Bail Hearings

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 92252)

General Principles

The purpose of a "show cause" hearing (or "bail hearing") is to provide an expeditious hearing that is flexible and procedurally informal while still protecting the liberty interests and security of the public.[1]

A bail hearing is not is not meant to like a trial or adopt a sort of complexity.[2]

The key elements of bail hearings are that they are done in a timely manner. This requires a "certain level of informality" including relaxed rules of evidence and expansive application of relevance.[3]

  1. R v Ghany, 2006 CanLII 24454 (ON SC), 40 CR (6th) 290, per Dunro J, at para 59
  2. Ghany, ibid., at para 59 ("Third, bail hearings are not meant to be trials, nor should this “summary proceeding assume the complexities of trials”. The show cause hearing is meant to be expeditious, with a degree of flexibility and procedural informality sufficient to protect the liberty interests and security of the public")
  3. Ghany, ibid., at para 62 citing Law of Bail in Canada

Jurisdicton

Section 493 defines a "judge" within the provisions of bail as:

493 In this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)],
...
"judge" means

(a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,
(b) in the Province of Quebec, a judge of the superior court of criminal jurisdiction of the province or three judges of the Court of Quebec,
(c) [Repealed, 1992, c. 51, s. 37]
(d) in the Provinces of Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta and Newfoundland and Labrador, a judge of the superior court of criminal jurisdiction of the Province,
(e) in Yukon and the Northwest Territories, a judge of the Supreme Court, and
(f) in Nunavut, a judge of the Nunavut Court of Justice;

...
R.S., 1985, c. C-46, s. 493; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 5, c. 17, s. 12; 1992, c. 51, s. 37; 1994, c. 44, s. 39; 1999, c. 3, s. 30; 2002, c. 7, s. 143; 2015, c. 3, s. 51; 2019, c. 25, s. 209.

CCC (CanLII), (DOJ)


Note up: 493

A bail judge is not a "court of competent jurisdiction" for the purpose of Charter violations.[1] Thus, a bail hearing is not the forum for s. 24 Charter relief. Evidence going towards a breach is not relevant.[2] Similarly, applications for prerogative writs such as habeas corpus do not apply.[3]

  1. See Criminal Code and Related Definitions
  2. Ghany, supra, at para 62
    R v Reimer (1987) 2 WCB (2d) 94 (MBCA)(*no CanLII links)
  3. R v Pearson, 1992 CanLII 52 (SCC), [1992] 3 SCR 665, per Lamer CJ
    R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711, per Lamer CJ

Burden of Proof

The burden of proof is presumed to be on the crown on a balance of probabilities.[1] The burden is upon the Crown to establish that one of the three grounds for denying bail has been made out unless the offence is one that engages the reverse onus.

  1. R v Julian (1972) 20 CRNS 227 (NSSC)(*no CanLII links)

Reverse Onus

Application to Adjourn Bail Hearing

See also: Continued Detention After Appearing Before a Justice

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)

Remand in custody

516 (1) A justice may, before or at any time during the course of any proceedings under section 515 [judicial interim release provisions], on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.
[omitted (2) and (3)]

R.S., 1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s. 31(Preamble); 2019, c. 25, s. 227.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 516(1)

Where an accused has been brought before a judge within the 24 hour window and both the defence and Crown are prepared, the judge must begin the hearing "forthwith". The accused should not have to "make an appointment" to have a bail hearing.[1]

"[U]nreasonably prolonged custody awaiting a bail hearing" can be a form of unjustified detention.[2] Routine adjournments that are not at the request of Crown or defence are "unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system."[3] Pleading "lack of resources" is not an answer to imperilling such rights.[4]

Who Can Adjourn

Certain cases suggest that the only persons who can seek an adjournment is either the accused or prosecutor.[5] However, there is some authority to suggest a court may adjourn on its own motion as part of it's authority to control it's own process.[6]

  1. R v Villota, 2002 CanLII 49650 (ON SC), 163 CCC (3d) 507, per Hill J, at para 66
  2. Villota, ibid., at para 66
  3. Villota, ibid., at para 67
  4. Villota, ibid., at para 68
  5. Ashini, [2014] NJ No 407 (PC)
    R v Grande, 2021 ABPC 7 (CanLII), per Fraser J
  6. R v Paul, 2022 NSPC 60 (CanLII), per Atwood J

Evidence

Publication Ban

See also: Public and Media Restrictions

Section 517 permits a publication ban upon all evidence presented at a bail hearing:

Order directing matters not to be published for specified period

517 (1) If the prosecutor or the accused intends to show cause under section 515 [judicial interim release provisions], he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
Failure to comply

(2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) [order directing matters not to be published for specified period] is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 17]
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17; 2018, c. 29, s. 62.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 517(1) and (2)

This section was found to violate s. 7 of the Charter for violating the freedom of expression but was saved by s. 1 of the Charter and is therefore constitutional.[1]

Application to s. 680 Bail Review

The scope of s. 517 publication bans does not extend to cover the publication of decisions arising from a s. 680 hearing.[2]

  1. Toronto Star Newspapers Ltd. v Canada, 2009 ONCA 59 (CanLII), 239 CCC (3d) 437, per Feldman JA (3:2)
  2. R v JA, 2020 ONCA 695 (CanLII), per curiam

Release on Guilty Plea During Bail Hearing

518
[omitted (1)]

Release pending sentence

(2) Where, before or at any time during the course of any proceedings under section 515 [judicial interim release provisions], the accused pleads guilty and that plea is accepted, the justice may make any order provided for in this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] for the release of the accused until the accused is sentenced.
R.S., 1985, c. C-46, s. 518; R.S., 1985, c. 27 (1st Supp.), ss. 84, 185(F); 1994, c. 44, s. 45; 1999, c. 25, s. 9(Preamble).
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 518(2)

See Also