What is Bail Review?
A bail review is an appeal of your bail hearing which is conducted in the Superior Court of Justice. If you are charged with a s. 469 offence such as murder, your bail review would be held in the Ontario Court of Appeal.
A bail review is not a second bail hearing. The reviewing judge does not simply review your application and make their own determination on judicial interim release. This is why the prospects of success on a bail review are lower than at the first bail hearing.
First, you must show the reviewing judge one of the following: i) a material change in circumstance, ii) that there was an error of law, or iii) that the decision was unreasonable. Once this has been accomplished, you are allowed to present your plan to argue why you should be released on bail (judicial interim release).
Why Seek Bail Review?
The impacts of pre-trial custody can be immense. The Supreme Court of Canada in R. v. Myers accepted the immense personal and professional impact that pre-trial custody may have on an accused person, but also accepted the impact that pre-trial custody can have on the prospect of success at trial. This is due to the fact that an accused person, who is presumed innocent, can spend months or years in pre-trial custody.
A bail review can also be brought to review bail conditions. Typically, conditions are varied and/or removed on consent as the case progresses. This can be attributed to good behaviour, but also a weakening of the Crown’s case. If the Crown is unwilling to consent to bail variations, a bail review can be brought to request the Court vary the condition(s).
How to Bring a Bail Review?
A bail review is an application to the court. You must file transcripts of the previous bail hearing, file affidavits for the proposed sureties and the accused, and submit any evidence you plan to rely upon.
The preparation and filing of a proper application is crucial for success on a bail review. The application needs to outline on what basis the bail review is being brought, and why the bail plan meets the three bail grounds (primary, secondary, and tertiary). Once the application is filed, you can schedule your bail review hearing which will be at least 3 days from the date of filing since notice to the Crown is required.
If you or someone you know has been detained after a bail hearing, please contact the lawyers of Lockyer Zaduk Zeeh to discuss the prospects of a bail review.