Bail was denied in Ontario: how does a bail review in the Superior Court work?

If a justice ordered you or a family member detained, the accused can ask a judge of the Superior Court of Justice to review that order under section 520 of the Criminal Code. It is not a fresh bail hearing: the judge can step in only for an error of law, a clearly inappropriate decision, or relevant new evidence showing a material change. The accused has to show cause, and after one review another generally has to wait 30 days unless a judge gives leave.

A bail review starts where the first hearing ended. If you have not read it yet, our page on bail hearings in Ontario explains the three grounds for detention and how a release plan is built. This page covers what happens after a justice has said no: who hears the review, what the judge can change, the paperwork, the Crown's own review and the automatic 90-day review.

In the Criminal Code's bail provisions, "judge" in Ontario means a judge of the superior court of criminal jurisdiction (s. 493). So a detention order made at the bail centre or a local courthouse is reviewed in the Superior Court of Justice. Section 520 covers orders made under section 515, which is the ordinary bail section. Murder and the other offences listed in section 469 are different: only a Superior Court judge can release the accused at all (s. 522), and those cases are outside this page.

How does a bail review work, step by step?

1. Order the transcript and collect the exhibits. The Superior Court's Criminal Proceedings Rules require the application to include a transcript of the original bail hearing and of any earlier review, plus a legible copy of every exhibit filed (r. 20.05(1)(d) and (e)). The reviewing judge may consider that transcript, those exhibits and any additional evidence either side tenders (s. 520(7)).
2. Prepare the affidavits. The accused's affidavit must set out the charges and any other outstanding charges with their trial or preliminary inquiry dates, where the accused lived and worked in the three years before the alleged offence, where they will live and work if released, and the form of release proposed, including the names of sureties and the amounts (r. 20.05(2)). Where practicable, the application also includes an affidavit from each proposed surety and from a proposed employer (r. 20.05(1)(b) and (c)).
3. Prepare the notice of application. The application is made by notice of application in Form 1 to a judge of the Superior Court in the place where the accused is to be tried (r. 20.02(1)). The notice says whether the accused will be present and, if so, in person or virtually (r. 20.03(1)).
4. Serve the Crown and file. The Crown must get at least two clear days' written notice unless it consents to a shorter time (s. 520(2); r. 20.04(1)). The materials and proof of service are filed in the court office where the application will be heard, and uploaded, at least one day before the hearing (r. 20.04(3)). No factum is needed unless the court asks for one (r. 20.05(4)).
5. The hearing. The judge either dismisses the application or, if the accused shows cause, vacates or varies the order and makes any order section 515 allows (s. 520(7)(d) and (e)). If the accused is in custody, an adjournment cannot be longer than three clear days without the accused's consent (s. 520(4)).
6. If release is ordered. The judge's order can be made in Form 10, which lets a justice prepare the release documents once any condition, such as a surety signing, is met (r. 20.06(1) and (2)). If the Crown consents in writing to a release on agreed terms, a judge can make the order in Form 10A without counsel attending (r. 20.06(3)).

In Toronto, Superior Court criminal matters are at 361 University Avenue, Toronto, M5G 1T3, and the Criminal Trial Office is on the 4th floor. Our guide to the Superior Court criminal courthouse at 361 University Avenue explains the building. The Toronto Region practice direction allows bail reviews to be scheduled in person on two clear days' notice under the Criminal Proceedings Rules, while virtual reviews are booked through the trial coordinator. For a virtual review, materials filed by 10:00 a.m. on Wednesday can be heard the following Monday, and materials served and filed by 10:00 a.m. on Thursday can be heard the following Tuesday to Friday, in 10:00 a.m. and 2:00 p.m. slots.

Outside Toronto, the Superior Court in Newmarket lists bail hearings and reviews with its criminal trial office at [email protected], 905-853-4823 extension 6, at 50 Eagle Street West. Our page on criminal cases at the Newmarket courthouse covers York Region. In Peel, the Superior Court lists [email protected] for bail hearings and reviews, and our guide to the Brampton courthouse explains where Peel cases are heard.

Which kind of review fits your situation?

Why is a bail review not a second bail hearing?

In R. v. St-Cloud, 2015 SCC 27, the Supreme Court of Canada held that sections 520 and 521 do not provide for a hearing from scratch. Unless there is new evidence, the reviewing judge is not in a better position than the justice to decide whether detention is necessary (para. 118). The review is a hybrid remedy, and the Court named three situations in which the judge can intervene (paras. 121 and 139):

• An error of law by the justice who made the order.
• A clearly inappropriate decision, meaning the justice gave excessive weight to one relevant factor or not enough weight to another. The judge cannot interfere simply because they would have weighed the factors differently.
• New evidence, tendered by the accused or the Crown, that shows a material and relevant change in the circumstances of the case.

New evidence is tested against four criteria the Court adapted for bail. The reason it was not offered earlier must be legitimate and reasonable, and it is not limited to evidence that did not exist before the first hearing (paras. 132 and 133). It must be relevant to the grounds in section 515(10) (para. 135). It must be credible in the sense that it is reasonably capable of belief (para. 136). And it must be significant: it must be reasonable to think it could have affected the justice's balancing (para. 137). If the new evidence meets the criteria, the reviewing judge can redo the analysis as if they were the first decision-maker (para. 138).

Families often ask whether a new surety, a different home or a job offer counts. Each of those can be put forward as additional evidence under section 520(7)(c), and the judge then applies the criteria above. Our page on what a surety agrees to in Ontario explains what the court expects of the people who offer to supervise.

What is the 90-day detention review?

If an accused is detained and the trial has not started within 90 days of first appearing before a justice, or within 90 days of a later detention order or review decision, the person who has custody of the accused must apply to a judge to fix a date for a hearing (s. 525(1)). At that hearing, the judge considers whether the Crown or the accused has been responsible for delay and can give directions to speed the case up or set a further hearing (s. 525(4)). If the judge is not satisfied that continued detention is justified under section 515(10), the judge must make a release order (s. 525(5)).

In R. v. Myers, 2019 SCC 18, the Supreme Court held that unreasonable delay is not a threshold the accused must cross before the detention is looked at. The question is whether continued detention is justified, looking at any new evidence or change in circumstances, time already spent in custody, any unreasonable delay and the reasons for the original order. A separate question is whether the overall delay breaches the Charter, which is explained on our page about how long a criminal case can take in Ontario.

What changes the answer?

• The ground the justice relied on. Detention can rest on attendance in court, public safety, or confidence in the administration of justice (s. 515(10)(a) to (c)). The release plan and any new evidence have to answer the ground actually used.
• Who is asking. On the accused's review the accused must show cause (s. 520(7)(e)). On a Crown review of a release order, the prosecutor must show cause (s. 521(8)(e)).
• How recently there was a review. A further application under section 520 or 521 within 30 days of a decision on a section 520, 521 or 525 application needs a judge's leave (s. 520(8); s. 521(9)).
• Whether the order followed a breach. An order made after a hearing under section 524, where an earlier release was cancelled, can be reviewed under sections 520 and 521 as if it had been made under section 515 (s. 524(10)).

A worked example

For example, imagine Kian, a 26-year-old who lives with his mother in Richmond Hill and is charged by York Regional Police with assault and breaching a release order. At his bail hearing the justice of the peace detained him on the public safety ground. The only proposed surety was his mother, who works night shifts, and the justice found she could not supervise him. His father was in Iran caring for a relative at the time.

Three weeks later his father is back in Ontario and willing to act as a surety, and Kian's former employer will take him back on day shifts. Kian's lawyer orders the bail hearing transcript, prepares Kian's affidavit and an affidavit from his father, and files a Form 1 notice of application in the Superior Court in Newmarket, serving the Crown more than two clear days ahead. The father gives his evidence through a Farsi interpreter; Ontario provides court interpretation in any language required in criminal matters. At the review, the judge asks whether the father's absence is a legitimate and reasonable explanation for not offering him earlier, whether his evidence is credible, and whether it could have changed the justice's balancing. If the judge is satisfied, the judge looks at the public safety ground afresh with the new plan. This is a hypothetical walk-through, not a prediction of any result.

What mistakes do people make?

1. Treating the review as a second chance with the same plan. Without an error of law, a clearly inappropriate decision or new evidence, the judge has no basis to step in (St-Cloud, para. 139).
2. Filing without the transcript. The rules require the transcript of the bail hearing and of any earlier review (r. 20.05(1)(d)), and it takes time to obtain.
3. Leaving the release plan vague. The affidavit must state the form of release proposed and, where practicable, the conditions, any deposit and the sureties with their amounts (r. 20.05(2)(d) and (e)).
4. Coming back too soon. A further review inside 30 days needs a judge's leave (s. 520(8)).
5. Waiting for the 90-day hearing when the first decision was wrong. The 90-day hearing asks whether detention is still justified at that point; a section 520 review can be brought at any time before trial.

What to do this week

1. Get the paperwork from the bail hearing. Note the date, the courthouse and the ground for detention; a lawyer will order the transcript.
2. List possible sureties. Note each person's address, work hours, relationship to the accused and whether they have photo identification; Toronto's practice direction asks counsel to have a copy of each proposed surety's photo ID.
3. Gather three years of history. Collect proof of addresses and jobs for the three years before the alleged offence, because the affidavit has to cover them (r. 20.05(2)(b) and (c)).
4. Write down what has changed. A new surety, home or job is the kind of fact a review can be built on.
5. Note the 90-day date. Count 90 days from the first appearance before a justice so you know when the automatic review is due (s. 525(1)).
6. Speak to a lawyer in the language you are most comfortable in. If the family is more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains each step.

Frequently asked questions

Can the Crown ask for a review if the accused was released?

Yes. Under section 521, the prosecutor can apply to a Superior Court judge to review a release order at any time before trial, on at least two clear days' written notice to the accused. The prosecutor must show cause, and if the judge orders detention and the accused is not in custody, a warrant for committal is issued (s. 521(6)).

Does the accused have to attend the bail review?

The accused must be present if the judge orders it or either side asks (s. 520(3)). Toronto's practice direction says the accused need not be present for a bail review, while presence by audio or video is likely required for a 90-day detention review.

Can a review change conditions instead of release or detention?

Yes. Section 520 applies to orders under section 515(2), which include release orders with conditions, so an accused can ask a Superior Court judge to vary conditions. When the Crown agrees, a variation can often be done on consent instead, which our page on changing a no-contact bail condition explains.

What happens if the review is dismissed?

The detention order stands. A further application can be brought after 30 days from the decision, or earlier with a judge's leave (s. 520(8)), and the 90-day review under section 525 still applies if the trial has not started.

Is a bail review the same as an appeal?

No. A bail review deals only with release or detention before trial. An appeal challenges a conviction or sentence after the trial, which is explained in our guide to appealing a criminal conviction in Ontario.

Should the family use duty counsel or hire a lawyer for the review?

A review has strict paperwork requirements: a Form 1 notice, affidavits, the transcript and service on the Crown. Our page on duty counsel or your own lawyer at a Toronto bail hearing compares the two options.

Getting help

Gambriani Law PC prepares bail reviews in the Superior Court for people detained in Toronto, York Region and Peel, and works with families and sureties in English and Farsi. Call +1 647 970 3370 or reach us through the contact page.

This page is general information about Ontario bail law, not legal advice about anyone's case.