Making A Bail Review Application

‍INTRODUCTION  

Bail in criminal law is the release of an accused person prior to being tried in court for the alleged criminal offence. The Canadian Charter of Rights and Freedoms guarantees the right not to be denied bail without a reasonable cause. That suggests that, where the court sees a reasonable cause based on the position advanced by the crown, bail maybe denied.

The accused may however see the situation differently. Thus, the accused may need to make an application for a review of the bail hearing with the intent of vacating or varying the previous bail order made. It is needful to add that, just like the accused, the crown also has the right to seek a review of the bail. Ss. 520 & 51 Criminal Code, RSC 1985

GROUNDS FOR BAIL REVIEW

For accused to seek for a review of the bail application, it is not automatic; they must come under the acceptable grounds for bail review application as highlighted in R v St Cloud 2015 SCC 27 . The grounds are reproduced hereunder: see generally ss. 520, 521 of the Code

1. Where there is change in circumstances or new evidence is submitted by the accused; 
2. where the impugned decision contains an error of law;
3. where the decision is clearly inappropriate.

HOW TO MAKE THE APPLICATION

It is taken for granted that in making this application, the accused would require the service of a competent defence lawyer. Be that as it may, there are certain requirements for the reviewing judge to hear this application. One of such requirements is that the accused must give at least two clear days notice in writing of the application to the prosecutor, else, the judge would not hear the application unless the prosecutor waives the right and consents otherwise. See s. 520(2).

The application must also be supported with the following documents:

1. the order previously made;  
2. the record of proceeding
3. a copy of the information,  
4. a transcript of any viva voce evidence of the accused or witnesses called by the accused or the prosecution.  

Once the application is competent and ripe for hearing, the court would review the the transcript, previous order made by the justice, the exhibits, if any, filed in the proceedings before the justice, and such additional evidence or exhibits as may be tendered by the accused or the prosecutor.

After the review, the judge may either dismiss the application, or if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted. See s. 520(7)(a)

The Supreme Court of Canada had an opportunity to pronounce on bail review applications in R v St. Cloud. In the case, the court issued defining guidelines for a bail reviewing judge. It held:

“This appeal is the first time this Court has been called upon to determine the extent of the power provided for in ss. 520 and 521 Cr. C. to review decisions with respect to detention or to interim release. Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr. C. to review such a decision is not open-ended.

I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene.” Para. 6 

The court went on to hold that:

“...Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.” Para. 121 

It can be safely argued that a change in the circumstances of the accused could be a new bail plan having a surety; evidence of treatment of the underlying behavioral problem connected with the alleged crime etc. and this can justify a vacation of the order of detention. It is often the case at the initial bail hearing that the crown may have objected to the bail application simply because the bail plan is not satisfactory or addresses the concern of the crown with respect to s.515(10). Thus, if the new bail plan addresses that, the crown may not have any further objection.  

The ladder principle can also apply in the face of the change in the circumstances. 

In R v Antic 2017 SCC 27 (CanLII), the court held:  

“However, once Mr. Antic had satisfied the bail review judge that new circumstances justified his vacating the order, the ladder principle ought to have guided the judge in fashioning a release order.” Para. 50 

Ladder principle dictates that the court should impose or start with the least onerous bail conditions and that if the court is to move up on the rung of the ladder, the crown must justify that move. In the case, the court held that: “A justice or a judge cannot impose a more onerous form of release solely because he or she speculates that the accused will not believe in the enforceability of a surety or a pledge. The bail system is based on the promises to attend court made by accused persons and on their belief in the consequences that will follow if such promises are broken.””

The clear default of position of law is that bail should be given without conditions and where that is not possible, conditions targeting the specific risk identified by the crown can be imposed. Therefore, if there is a change in the circumstances of the accused which are favourable to the accused, the ladder principle can apply at the review stage as well as held in Antic.

In conclusion, bail review is possible where an initial application for bail is refused or where variation of the bail conditions is sought. What is important for the criminal justice system as repeatedly advanced by the Supreme Court is that judges and indeed all parties in the bail system have a duty to uphold the doctrine of presumption of innocence and the right to reasonable bail.