Your brother was denied bail on Tuesday. The family was in the courtroom at 7755 Hurontario Street, heard the justice’s decision, and saw him led back through the door. Now someone is asking if a different lawyer can fix it, and someone else has heard you can “appeal” within a day or two. Meanwhile, he is calling home from a detention centre, wanting to know what’s next.
The answer is usually a bail review. It’s a real remedy, and in the right circumstances it can result in release, but it works differently from how many people imagine. It isn’t a second try before a new judge with a fresh slate, and being unhappy with the first result isn’t enough. Whether it’s worth doing, and when, depends largely on what went wrong the first time and what has changed since.
This is general information only and not legal advice. Bail decisions depend heavily on the accused person’s background, the charges, and the plan offered. Because the rules on bail have also been amended in significant ways, advice should be based on the current Criminal Code.
Where a Bail Review Fits
A detention order is usually made by a justice of the peace or a judge of the Ontario Court of Justice under section 515 of the Criminal Code. Section 520 lets an accused apply to a judge of the Superior Court of Justice, at any time before trial, to review that order. Section 521 gives the Crown the same kind of avenue if it believes a person should not have been released, or that their conditions were too light.
Section 520 can also be used to challenge conditions, not just detention. If someone was released on a curfew that makes it impossible to keep a night-shift job in Mississauga, for example, a review or a variation can address that. Often the Crown’s consent will make a formal application unnecessary, so that’s normally explored first.
Some charges have different rules. For offences listed in section 469, such as murder, bail is dealt with by a Superior Court judge in the first place, and there is a different review route to the Court of Appeal under section 680. Your lawyer will need to confirm which route applies to the charge.
The Test a Reviewing Judge Applies
The leading case is R. v. St-Cloud, 2015 SCC 27. The Supreme Court of Canada held that a bail review isn’t a fresh hearing and isn’t an unlimited chance to re-argue the same points. A reviewing judge should interfere in limited circumstances:
- An error of law. For example, the justice applied the wrong test or misunderstood the burden of proof.
- A clearly inappropriate decision. The decision gave excessive weight to one relevant factor or too little to another, so that the result can’t stand, even though the judge reviewing it need not agree with every finding.
- A material change in circumstances. Relevant new evidence, which has to be credible and reasonably capable of affecting the balance.
Disagreement alone falls short of all three. A judge won’t normally overturn a detention order on the basis that they’d have decided differently.
The St-Cloud approach to new evidence is more flexible than the one used on a regular appeal. Evidence doesn’t need to be something that wasn’t available at the first hearing, as long as there’s a legitimate reason for it not having been put forward then, and it is relevant to bail. This matters when a family only found a suitable surety after the hearing, or when new information has come out about the Crown’s case.
Section 520(7) tells the judge what can be considered: the transcript of the earlier proceedings, the exhibits, and any further evidence offered by either side. The judge then either dismisses the application or, if the accused shows cause, vacates or varies the order and makes another order under section 515.
What Commonly Changes a Case
Some of the strongest applications rest on new facts rather than legal arguments. Examples of what might count, depending on the case:
- A better release plan. A surety who lives in a suitable place, has no record that disqualifies them, and can supervise closely. Or a treatment bed that has become available.
- A stronger address. A different home where the accused wouldn’t be close to the complainant, or isn’t surrounded by the alleged associates.
- Weakening of the Crown’s case. A charge withdrawn, a co-accused released, a video that undercuts the first version of events, or disclosure that wasn’t available at the hearing.
- Time spent in custody. If time in pre-trial custody is likely to approach or exceed a probable sentence, that may become an important factor. Delays in the trial date may be relevant as well.
- Changes in health or family. A serious medical condition that a jail can’t treat properly, for example, though the mere fact of hardship won’t usually be enough.
- Electronic monitoring or bail supervision. Depending on the case and availability, these can be added to the plan.
A review should also address the actual reason bail was denied. If the justice was concerned about the safety of a particular complainant, a new plan with a second surety doesn’t accomplish much unless it deals with that risk directly. Reading the transcript is the only reliable way to know what the reasons really were, and these often aren’t the same as what a family remembers.
The Burden and the Stricter Rules on Reverse Onus
Under section 520(7), the accused has to show cause on the review. In other words, it falls on the person applying to persuade the court that the order should change, even if the Crown had the burden at the first hearing. Under the ordinary rules, the justice would have considered the principle of restraint in section 493.1, along with the three grounds for detention in section 515(10): attendance in court, public protection, and public confidence in the administration of justice.
If the charge is covered by a reverse onus under section 515(6), the bar is high. The accused must show cause by clearly demonstrating that the proposed plan addresses the risks they present in relation to those grounds. This list has grown over time and now includes offences such as break and enter of a home, violent or organized crime-related auto theft, assaults involving choking, and certain other repeat violent matters. The “ladder principle,” which requires courts to consider less restrictive forms of release first, doesn’t help an accused in a reverse-onus case. A general promise to do better won’t meet this standard, so expect that the judge will look at the details of the plan.
Rules on who can be a surety are also stricter. A person convicted of a serious offence within the previous 10 years generally can’t act as surety, unless no other suitable person is available and naming them would be in the interests of justice. A family should raise any concerns about a proposed surety early on, because finding out at a hearing that a person can’t be accepted can be a big setback.
What the Application Looks Like
A bail review at the Superior Court of Justice in Brampton is a formal application. Rule 20 of the Superior Court’s Criminal Proceedings Rules deals with these applications and with the materials required, and regional practice directions can affect scheduling, so your lawyer should check current requirements before filing.
Typical materials include:
- a notice of application setting out the grounds and the order being sought
- the transcript of the bail hearing, including the reasons
- any exhibits filed at the original hearing
- the information, showing the charges, and the detention order
- an affidavit from the accused, describing background and plan
- affidavits from proposed sureties, along with information about the surety’s address, job, income, and criminal record, if any
- letters from treatment programs, employers, or doctors where they apply
- written submissions or case law, where they’re helpful
The Criminal Code requires at least two clear days’ written notice to the prosecutor unless the Crown agrees to less. In practice, though, the biggest delay is often getting the transcript. If the audio has to be ordered and typed, it can take time, and a lawyer may need to ask for an expedited transcript. Be careful what an affidavit says, too. A person in custody who gives evidence or swears an affidavit needs to be properly advised, because what they say may be raised later. Section 520(3) lets the accused attend the hearing, and the court often uses video links from the detention facility.
Timing and the 30-Day Rule
Rushing can be a mistake, and that surprises many families. Section 520(8) provides that once an application has been heard under section 520, 521, or 525, a further review application can’t be brought for 30 days without leave of a judge. A weak application brought on Friday, with a poorly prepared surety, may lose the chance to bring a stronger one soon after. It can make more sense to spend a few extra days getting the plan right.
But waiting has its own cost. Every day in custody affects jobs, housing, children, and mental health, and a person held in pre-trial custody is under pressure to plead guilty just to get out. Credit for time served is available under the Code, at up to 1.5 days for each day in custody in many cases, but that doesn’t remove that pressure. Don’t accept a plea “just to go home” before getting proper advice.
The Automatic 90-Day Detention Review
Separately from any application by the accused, section 525 requires that the person holding someone in custody apply for a detention review if the trial hasn’t started within 90 days of the accused first being brought before a justice, or from the date of a later detention order or review decision. The accused can waive it in writing.
In R. v. Myers, 2019 SCC 18, the Supreme Court said that this hearing must be held and isn’t dependent on showing unreasonable delay. The judge asks whether the continued detention is justified under section 515(10), given everything that has happened since, and can give directions to move the case along. It isn’t a rehearing of the original bail decision, but a real opportunity to bring forward changes, and it should be prepared for instead of treated as routine. The Ontario Superior Court has a practice advisory on how those reviews are scheduled.
If a section 520 review has already failed, a section 525 hearing may be the next real opportunity to put a stronger plan before a judge.
What Families Can Do Now
Families can help a great deal, as long as they stay inside the rules. Find out who might act as a surety and be honest with them about what’s involved, including that they could lose money if the accused breaches. Gather proof of address, employment, and income. If addiction or mental health is involved, call programs to ask about waiting lists and whether a written acceptance can be provided. Ask the accused’s lawyer what is needed before you contact anyone else.
Don’t talk about the facts of the case on jail phones, because those calls are generally recorded. Don’t contact the complainant or any witness, even to apologize or to ask them to “drop it.” That can harm the application and may lead to new charges.
The firm’s criminal law page explains how it assists with matters like these, and the Brampton service area page includes local information. If someone you know has just been detained, you can contact the office to discuss the next steps.