Understanding About the Bail and Detention Review

In the Canadian criminal justice system, an individual who has been charged with a criminal offence may be detained in custody or granted bail pending their trial (pre-trial release). Bail and detention are critical aspects of the legal process, as they involve the liberty of the accused and can have implications for the outcome of the case. In certain situations, a detainee or their legal counsel may seek a bail review or detention review to challenge a decision made by a lower court regarding the accused’s release or detention. This article will provide an overview of the process of bail and detention review in Canadian Criminal law, explaining the relevant legal framework, when a review may occur and how the process unfolds.

What is bail in Canadian law?

Bail refers to the temporary release of an accused person from custody before their trial. The primary purpose of bail is to allow the accused to be released while ensuring they will attend court when required while also taking into account public safety and the administration of justice. In Canada, the right to seek bail is enshrined in Section 11(e) of the Canadian Charter of Rights and Freedoms, which guarantees that individuals charged with a criminal offence have the right not to be denied reasonable bail without just cause.

Factors considered for bail

1. When deciding whether or not to grant bail, Canadian courts take a variety of factors into account. These include:
   Risk of Flight: Whether the accused is likely to attend court hearings and stand trial.
2. Public Safety: Whether releasing the accused would endanger public safety or encourage further criminal activity.
3. Risk of reoffending: Whether the accused is likely to commit other offences while on release.
4. Strength of the case: The likelihood of a conviction, based on the evidence at hand.
5. Criminal Record: The accused’s previous criminal history and any prior violations of bail conditions.

A judge may impose various conditions on bail, such as reporting to a probation officer, surrendering passports, attending counselling or treatment programs to ensure the accused’s compliance.

What is bail review in Canadian Law?

Bail review refers to the legal process by which a decision made by a lower court regarding bail can be challenged in a higher court. If an accused person has been denied bail or is subjected to conditions they believe are unjust, they may file for a bail review to reconsider the decision. The bail review process is an essential safeguard, ensuring that bail decisions are fair and in accordance with the Charter.

Grounds for bail review

An individual or their legal counsel may request a bail review for several reasons, including:

1. New evidence: If new evidence or information comes to light that may alter the decision to deny bail, a bail review can be requested. This might include changes to the accused’s situation, like securing a stable residence or employment, or demonstrating compliance with prior conditions.
2. Legal error: If the lower court made a legal error in applying the law or assessing the facts, a bail review may be necessary. For example, if the judge did not properly consider the presumption of innocence or violated the accused’s Charter rights.
3. Change in circumstances: If the circumstances surrounding the accused or the charges change, a bail review may be requested. This can include a shift in the severity of the charge or a change in the accused’s personal situation that affects their ability to comply with bail conditions.

The process of bail review

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

A bail review under s. 520 and 521 is a hybrid process between an appeal and a de novo hearing.

1. Filing a notice of appeal: The accused or their counsel must file a notice of appeal to request the bail review. This document outlines the grounds for the appeal and the specific changes they are seeking to the bail decision.
2. Review hearing: At the review hearing, the court will consider all the relevant facts and legal arguments presented by both the defence and the prosecution. The judge may choose to uphold the initial decision, modify the bail conditions or grant bail.
3. Decision: The judge will issue a ruling after reviewing the facts and law. The Court may either grant bail with revised conditions, deny bail, or release the accused on the existing terms.

Timing of Bail review

Bail reviews should generally be expedited, given the importance of personal liberty and the impact on the accused’s life. You can file an application for Bail Review anytime after a decision has been made denying bail. 

You do not need to wait 90 days to file an application for bail review.

Detention review in Canadian law

Where a detained accused’s trial has been delayed beyond a certain duration, the court is obligated to review bail (sometimes called a “90 day Administrative Bail Review”).

Section 525 authorizes an automatic review of the terms of detention where the trial has been delayed a period of more than 90 days (for indictable offences) or 30 days (for summary offences).^[1]

You cannot review an Accused’s detention pursuant to s. 525, unless the delay periods (90 days for indictable offences), has been met.

Grounds for Detention review

A detention review can occur when an individual has been in custody for a prolonged period, often longer than the period described by law without trial or when they are held without sufficient cause. Some of the key reasons for requesting a detention review include:

1. Unreasonable delay: If there is significant delay in proceeding with the case, a detention review can be requested to assess whether the detention is justified.
2. Change in circumstances: If the accused’s situation has changed in a way that would support their release, such as showing a willing ness to comply with bail conditions or offering new evidence.
3. Violation of Rights: If the accused believes their detention violates their right under the Charter of Rights and Freedoms, such as being deprived of their right to a timely trial.

The process of Detention Review

A detention review generally occurs in the Superior Court of Court of Appeal and follows a similar process to that of a bail review. The review can be requested by the accuse or their legal counsel, and it may involve a new hearing to evaluate whether continued detention is justified.

Conclusion

The bail and detention review processes are crucial components of the Canadian criminal justice system, ensuring that individuals are not unlawfully denied their freedom while awaiting trial. These reviews provide a mechanism to ensure that decisions regarding bail and detention are made fairly and in accordance with the law. Through bail and detention reviews, an accused person has the opportunity to challenge decisions that would have a significant impact on their liberty, while also balancing the need to protect public safety and the integrity of the justice system.

Please note that this article in no way constitutes legal advice. If you are seeking legal assistance from an experienced Criminal Defence lawyer, call Linh Pham at (306)502-5987 for a free phone consultation.