Canadian Criminal Procedure and Practice/Release and Attendance/Judicial Interim Release

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Introduction[edit]

Where a person is in custody and the police decide not to release the accused under a police-authorized mechanism, the accused must be brought before a judge to determine if they should be released on bail.

Bail is a form of contract between the crown and the surety, where the crown releases the accused in exchange for the guarantee that the accused will abide by the terms of release.[1]

Section 11(e) of the Charter of Rights and Freedoms states that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause". This means that the accused cannot be denied bail without reason and only where necessary.[2]

Under s. 515(1), a judge or justice must release a person held in custody on an undertaking without conditions unless the Crown can show cause to do otherwise.

Under s. 522 only a superior court justice may consider the release of someone charged with an offender under s. 469 (murder, treason, etc).

  1. Ewaschuk, Criminal Practice and Procedure in Canada at 6:0010 where the terms are violated the surety will incur a debt with the crown.
  2. R. v. Hall, [2002] SCJ No. 65 2002 SCC 64
    R. v. Villota, 2002 CanLII 49650 (ON S.C.) 2002 CanLII 49650
    R. v. Morales, [1992] SCJ No. 98 Lamer CJC
    R. v. Hall 2000 OJ No 3188 (ONCA)

Onus[edit]

The burden of proof is presumed to be on the crown on a balance of probabilities.[1]

That is, unless the charge falls within the offences listed in s.515 (6):

  • offences committed while at large on other indictable matters (s.515(6)(a)(i))
  • offences related to criminal organizations
  • offences related to terrorism
  • certain offences under the Security of Information Act
  • offences relating to weapons trafficking or importing
  • certain offences that were committed with a firearm
  • offences involving firearms, prohibited weapons, or similar, while under a weapons prohibition order
  • offences while not ordinarily resident in Canada; (s.515(6)(b))
  • breach of conditions under s.145(2) to (5) while released on conditions of bail;
  • offences punishable by life imprisonment under the CDSA

For the purpose of reverse onus, "indictable offences" includes hybrid offences, but not those in which there was a summary election.[2]

  1. R. v. Julian (1972) 20 CRNS 227 (NSSC)
  2. R v Cooper (2007) 256 NSR (2d) 200 (NSSC)
    R v Hopkins [2004] BCJ No 2273 (BCSC)

Release[edit]

The release powers of a Justice is given in sections 515(1) and (2) which state:

Order of release
515. (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.

Release on undertaking with conditions, etc.
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.

...

It is not always necessary to have the surety to appear in court.[1]

  1. R. v. Brooks, [2001] Ont.SCJ; R. v. J.V. (2002] Ont.SCJ

Conditions[edit]

515

...

Conditions authorized
(4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order:

(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order;
(e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence; and
(f) comply with such other reasonable conditions specified in the order as the justice considers desirable.

...

Under s. 515(4.1), the court shall order a firearm prohibition on persons released for certain charges including:

  • offences where violence is used, threatened, or attemtped
  • criminal harassment
  • intimidation of a justice system participant
  • terrorism offences
  • certain firearms offences
  • certain CDSA offences
  • certain offences under Security of Information Act


Where the judge refuses to do so he must give reasons.(s. 515(4.12))

The court may order that that there be no contact with named individuals, if a person is ordered detained (s.515(12)) or remanded (s.516(2)). Note that these orders are not stand-alone orders and only last up until the next court appearance. Thus, it must be renewed at each time the matter is in court.[1]

  1. R v Brown 2000 NSCA 147 - re 515(12) orders
    R v Kalashnikoff [2004] OJ No 113 (ONSC) - re 516(2) orders

Variation and Review of Conditions[edit]

The terms of a release order can be varied according to s. 523 (2) of the Code:

523

...

Order vacating previous order for release or detention
(2) Notwithstanding subsections (1) and (1.1),

(a) the court, judge or justice before which or whom an accused is being tried, at any time,
(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or
(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time
(i) where the accused is charged with an offence other than an offence listed in section 469, the justice by whom an order was made under this Part or any other justice,
(ii) where the accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or
(iii) the court, judge or justice before which or whom an accused is to be tried,
may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.

CCC

This section has been interpreted by most courts as meaning that a provincial court judge cannot vary the conditions on demand without the consent of the crown.[1] c.f. R. v. Greener 2003 NSPC 58</ref> A Superior Court judge, however, will have jurisdiction to change conditions on application.

See also 520, 521, 522, 524, 525.

  1. R v Mukpo 2012 NSSC 107 R. v. Arkison [1996] B.C.J. No. 2549
    R. v. Hill 2005 NSPC 50

Rendering Surety[edit]

Where a surety no longer wishes to be responsible as a surety for the accused, he may render surety under s. 766(1) and 767 to have the accused rendered into custody thus relieving him of his obligations.

Change of Surety[edit]

Where a surety no longer wishes to be responsible as a surety for the accused and there is a suitable substitution available, the surety will render surety under s. 766(1) and 767, but rather than render the accused into custody, the court may substitute the previous surety with a new one under s. 767.1. The new surety is in place once he has signed the recognizance.

Grounds of Denying Bail[edit]

Section 515(10) of the Criminal Code provides that bail may be denied in three situations:

(a) where the detention is necessary to ensure [the accused’s] attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public . . . including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) on any other just cause being shown and, without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment.


CCC

Primary Grounds[edit]

Under s.515(10)(a) bail can be denied "where the detention is necessary to ensure [the accused’s] attendance in court". This ground addresses whether the accused is a flight risk.

This can include factors such as:

  • family or community roots in the jurisdiction
  • citizenship / ownership of a passport
  • current residence
  • plans for release
  • employment
  • possibility of lengthy sentence
  • history of flight
  • criminal record for breaching court orders
  • availability of sureties

Secondary Grounds[edit]

Under s. 515(10)(b), bail can be denied "for the protection or safety of the public ... including any substantial likelihood that the accused will...commit a criminal offence or interfere with the administration of justice".

Substantial likelihood means "substantial risk". It is not the same as proof beyond a reasonable doubt or probability. [1]

Denial of bail can include factors such as:

  • seriousness of the offence
  • surrounding circumstances of the offence and offender
  • accused's potential culpability
  • degree of planning and deliberation
  • involvement of firearms
  • mental health issues / addiction issues
  • likelihood of lengthy sentence
  • strength of the Crown's case
  • risk or harm to victim
  • accused's criminal record
  • previous outstanding release conditions
  • history of abiding by court orders and conditions
  1. R. v. Link 1990 ABCA 55; c.f. Walsh 2000 PEISC

Tertiary Grounds[edit]

Under 515(10)(c), bail can be revoked "in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment."

In cases where the crime is heinous and the evidence overwhelming bail must be denied to preserve the public's confidence in the administration of justice.[1]

  1. R v Hall [2002] SCJ No 65 at para. 26

Hearing[edit]

Adjourning Hearing[edit]

On application of the prosecutor, a judge has the discretion to delay a bail hearing by up to three days without the consent of the accused. (s. 516)

When requested a judge "is obliged to grant a reasonable opportunity" for the crown to show cause.[1]

  1. R v CGF [2003] NSJ No 456 (NSCA)

Evidence[edit]

A bail hearing is an informal process where the strict rules of evidence do not apply.[1]

The exemptions to the rules of evidence are set out in s. 518:

Inquiries to be made by justice and evidence
518. (1) In any proceedings under section 515,

(a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable;
(b) the accused shall not be examined by the justice or any other person except counsel for the accused respecting the offence with which the accused is charged, and no inquiry shall be made of the accused respecting that offence by way of cross-examination unless the accused has testified respecting the offence;
(c) the prosecutor may, in addition to any other relevant evidence, lead evidence
(i) to prove that the accused has previously been convicted of a criminal offence,
(ii) to prove that the accused has been charged with and is awaiting trial for another criminal offence,
(iii) to prove that the accused has previously committed an offence under section 145, or
(iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused;
(d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel;
(d.1) the justice may receive evidence obtained as a result of an interception of a private communication under and within the meaning of Part VI, in writing, orally or in the form of a recording and, for the purposes of this section, subsection 189(5) does not apply to that evidence;
(d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence; and
(e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.


CCC

The court is permitted to consider hearsay evidence.[2] This includes admissions and confessions by the accused, and does not require a voir dire for voluntariness.[3]

A prior criminal record is admissible as well as any acquittals on similar charges.[4]

  1. R. v. Kevork et a1 (1984), 12 C.C.C. (3d) 339 (Ont. H.C.J.)
  2. Re Powers and the Queen (1972), 9 C.C.C. 533 (Ont. H-CJ.)
    R. v. Zeolkowsh (1989), 50 C.C.C. (3d) 566 (S.C.C.) at p. 569
  3. Bouffard v. R. (1979) 16 C.R (3d) 373 (Que. S.C.)
  4. R. v. Lanen (1976) 34 CRNS 399 (BCSC)

Breach of Release[edit]

Where the accused is released on bail, and he fails to attend the judge may order a warrant under s.512(2) or 597.

Section 512(2) states:

Certain actions not to preclude issue of warrant
512. (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that

(a) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed or cancelled under subsection 508(1);
(b) a summons has previously been issued under subsection 507(4); or
(c) the accused has been released unconditionally or with the intention of compelling his appearance by way of summons.

Warrant in default of appearance
(2) Where

(a) service of a summons is proved and the accused fails to attend court in accordance with the summons,
(b) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed under subsection 508(1) and the accused fails to attend court in accordance therewith in order to be dealt with according to law, or
(c) it appears that a summons cannot be served because the accused is evading service,

a justice may issue a warrant for the arrest of the accused.

R.S., 1985, c. C-46, s. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997, c. 18, s. 58.

CCC

Bench warrant
597. (1) Where an indictment has been preferred against a person who is at large, and that person does not appear or remain in attendance for his trial, the court before which the accused should have appeared or remained in attendance may issue a warrant in Form 7 for his arrest.

Execution
(2) A warrant issued under subsection (1) may be executed anywhere in Canada.

Interim release
(3) Where an accused is arrested under a warrant issued under subsection (1), a judge of the court that issued the warrant may order that the accused be released on his giving an undertaking that he will do any one or more of the following things as specified in the order, namely,

(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating with any witness or other person expressly named in the order except in accordance with such conditions specified in the order as the judge deems necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order; and
(f) comply with such other reasonable conditions specified in the order as the judge considers desirable.

Discretion to postpone execution
(4) A judge who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge having jurisdiction in the territorial division in which the warrant was issued.

Deemed execution of warrant
(5) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed.

R.S., 1985, c. C-46, s. 597; R.S., 1985, c. 27 (1st Supp.), s. 121; 1997, c. 18, s. 68.

CCC

Forfeiture of Bail[edit]

Where an accused released on a recognizance is in breach of the order, the crown may seek forfeiture under s. 770 of the cash or property pledged as part of the recognizance.

Before the court can order forfeiture the Crown must establish that the failure to comply with the underlying recognizance must have delayed or defeated the ends of justice. (s. 770(1)(c))

Mere technical failures to attend is not sufficient to warrant the forfeiture.[1]

  1. R. v Taylor [2002] O.J. No. 4246 (Sup.Ct.J.)
    R. v. Nanooch, 2008 ABQB 644 court should make explicit inquiry into reasons for being late and makign a finding that the lateness meant justice was delayed or defeated

Revocation of Bail[edit]

Where the accused in not in custody on pending charges, either by virtue of an appearance notice, promise to appear, summons, undertaking or recognizance, the court may order the accused to be taken into custody after trial.(s. 523)

Section 523 states:

Period for which appearance notice, etc., continues in force
523. (1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or
(b) in any other case,
(i) until his trial is completed, and
(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

...

Order vacating previous order for release or detention
(2) Notwithstanding subsections (1) and (1.1),

(a) the court, judge or justice before which or whom an accused is being tried, at any time,
(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or
(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time
(i) where the accused is charged with an offence other than an offence listed in section 469, the justice by whom an order was made under this Part or any other justice,
(ii) where the accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or
(iii) the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.

Provisions applicable to proceedings under subsection (2)

(3) The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in section 469.

R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89.

...

Hearing
(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall

(a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or
(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.

Retention of accused
(4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or
(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

CCC

An application may be made to revoke bail under s. 523 after it has been granted pursuant to ss. 515 or 522 of the Code or after a bail review under s. 520 of the Code.

The loss of the presumption of innocence, by itself, is not reason to revoke bail.[1]

  1. R. v. Green, 2006 CanLII 27306 (ON S.C.) at para. 15

Bail Pending Appeal[edit]

679. (3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that

(a) the appeal or application for leave to appeal is not frivolous;
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest.


CCC

The third factor takes into account the appellant’s risk to reoffend, the strength of his case, the nature and circumstances of the offence, the circumstances of the appellant himself, delay and its impact, post-charge conduct, the possible terms of release, and the impact of release on the confidence of the public in the administration of justice. [1]

Courts have considered bail in the following offences:

  • Sexual assault [2]
  • Drug trafficking
  1. L.S.R. v. R., 2008 SKCA 77
    R. v. Toy, 2009 SKCA 32
  2. R v Tcho, 2011 SKCA 113 (released)

Superior Court Bail Review[edit]

The accused (s. 520) or the Crown (s. 521) may apply to have a superior court judge review an order of release or remand under s. 515 or 523.

Once an application for review under s. 520 or 521 has been successful, the original bail instrument is terminated and a new order is in place. This new order cannot subsequently be reviewed under s. 520 or 521.[1]

  1. R. v. Smith, 2003 SKCA 8 citing R. v. Lahooti (1978), 38 C.C.C. (2d) 481 (Ont.H.C.J.) and R. v. Saracino (1989), 47 C.C.C. (3d) 185 (Ont.H.C.J.)

Court of Appeal Bail Review[edit]

An accused can seek a review of the court's decision on bail under s. 680

Review by court of appeal
680. (1) A decision made by a judge under section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision,

(a) vary the decision; or
(b) substitute such other decision as, in its opinion, should have been made.

Single judge acting
(2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court.

Enforcement of decision
(3) A decision as varied or substituted under this section shall have effect and may be enforced in all respects as though it were the decision originally made.

R.S., 1985, c. C-46, s. 680; R.S., 1985, c. 27 (1st Supp.), s. 142; 1994, c. 44, s. 68.

CCC

The test for leave to review bail requires that:[1]

  1. there is a reasonable prospect of success on review; or
  2. the court, applying the law, could possibly conclude that the application for release should have been allowed (if bail was denied).

This is a low standard.[2]


  1. R. v. Uppal, 2003 BCCA 571 (CanLII) at para. 17
  2. Uppal at para. 17

See Also[edit]