When a justice of the peace orders someone detained, or imposes conditions one side believes are wrong, the case does not necessarily end there. Ontario law provides a specific process, called a bail review, for challenging a bail decision made at the Ontario Court of Justice. This page explains what a bail review is, who can bring one, how it differs from an appeal, and the general grounds a reviewing judge considers.
A bail review is a distinct legal process from the original bail hearing itself, covered in our guide to how bail hearings work in Ontario, and from an informal request to simply change a condition by agreement, covered in our page on changing release conditions. A bail review is generally used where the parties cannot agree, and one side believes the original decision was wrong or should no longer stand.
What a Bail Review Is
A bail review is an application to the Superior Court of Justice to review a decision about detention or release made by a justice of the peace or judge of the Ontario Court of Justice. It is sometimes described as sitting between a full appeal and a completely fresh hearing, because the reviewing judge can consider the record from the original hearing, but is also generally able to consider new evidence or a materially changed release plan that was not before the original decision-maker.
Sections 520 and 521 of the Criminal Code provide the framework for these reviews. Section 520 allows an accused person to apply for a review where they were detained, or where they disagree with the conditions imposed on their release. Section 521 allows the Crown to apply for a review where it believes a release order should not have been made, or that the conditions imposed were not restrictive enough.
Who Can Apply for a Bail Review
Either side can bring a bail review, though the process and considerations differ somewhat depending on who applies:
- The accused (section 520). An accused person who was detained, or who disagrees with specific conditions of their release, can apply to the Superior Court for a review. The accused generally must give the prosecutor advance written notice, typically at least two clear days, unless the prosecutor agrees to shorter notice.
- The Crown (section 521). The Crown can apply for a review where it believes a justice's decision to release the accused, or the conditions attached to that release, do not adequately address the risks in the case. This means a person who was released by a justice of the peace can still end up defending their release before a Superior Court judge if the Crown disagrees with the original decision.
A Bail Review Is Not an Appeal
It is important not to confuse a bail review with a formal appeal of a conviction or sentence, which is a separate process covered generally in our page on appeals in Ontario. A bail review deals only with the question of detention or release conditions while a case is ongoing, and it can happen at almost any stage before the case is finally resolved. It also does not require waiting for the case to conclude, unlike a conviction or sentence appeal.
The standard applied by a reviewing judge is also different from a full rehearing of the case from scratch. Rather than simply substituting their own view for the original justice's, a reviewing judge generally looks for a specific reason to intervene, discussed below, which reflects some deference to the original decision while still allowing for meaningful correction where warranted.
General Grounds for a Bail Review
A reviewing judge will generally intervene and change the original decision in situations that fall into a few broad categories:
- Error of law. The original justice made a legal mistake in applying the test for detention or release, or in weighing the factors the law requires.
- A clearly inappropriate decision. Even without an outright error of law, a reviewing judge can intervene if the original decision gave excessive weight to one relevant factor, or insufficient weight to another, resulting in an outcome that was clearly wrong given the evidence.
- Material change in circumstances. This is one of the most common grounds in practice. It can include genuinely new evidence that was not available at the original hearing, or, more commonly, a significantly strengthened release plan, such as a new or better surety, a residential treatment placement, an electronic monitoring arrangement, or new employment that addresses concerns the original justice raised.
A stronger release plan is often the most realistic path. Rather than arguing the original justice was wrong on the same facts, many successful bail reviews succeed because the accused person, often with a lawyer's help, has put together a materially better plan since the first hearing, addressing the specific concerns that led to detention or restrictive conditions in the first place.
How the Process Generally Works
A bail review is brought before a single judge of the Superior Court of Justice, generally on the basis of the transcript or record from the original bail hearing, along with any new material being introduced, such as an affidavit describing a new proposed surety or release plan. Both sides make submissions, and the reviewing judge then decides whether to uphold the original decision or substitute a different one. This process is generally faster than waiting for a trial to resolve the underlying charge, though it still requires preparing proper materials and, in most cases, retaining a lawyer experienced in this specific area.
Crown-Initiated Reviews
It is worth emphasizing that a bail review is not only a tool for people challenging detention. Where the Crown believes a justice of the peace was wrong to release someone, or believes the conditions set were inadequate given the risks in the case, it can apply under section 521 to have the Superior Court revisit that decision. A person who has already been released, and who may feel the matter is behind them, can be surprised to learn the Crown is seeking a review, which is one reason ongoing communication with a lawyer throughout the release period matters, not just at the initial hearing.
Possible Outcomes
A bail review can result in several outcomes: the original decision can be upheld unchanged, a detained person can be released on new terms, an existing release can have its conditions loosened or tightened, or, in a Crown-initiated review, a person who was released can be ordered detained. Because a bail review can go either way, both an accused person considering one, and a person responding to a Crown-initiated review, should get legal advice about the realistic likelihood of success before proceeding.
Frequently Asked Questions
How is a bail review different from an appeal?
A bail review addresses only detention or release conditions while a case is ongoing, and can happen quickly and at almost any stage. An appeal challenges a conviction or sentence after a case has concluded and follows a different, generally slower process.
Can I bring a bail review just because I disagree with the decision?
Simple disagreement is not enough. You generally need to point to an error of law, a clearly inappropriate decision, or a material change in circumstances, such as a stronger release plan.
Do I need new evidence for a bail review?
Not necessarily, but many successful reviews are supported by new or additional information, particularly a strengthened release plan, since this is often more persuasive than rearguing the same facts.
Can the Crown ask for someone's release to be reviewed too?
Yes. Under section 521 of the Criminal Code, the Crown can apply to the Superior Court to review a release order it believes should not have been made or was not restrictive enough.
How long does a bail review take?
It varies by courthouse and the complexity of the materials involved, but bail reviews are generally scheduled and resolved considerably faster than a full trial or appeal.
Do I need a lawyer for a bail review?
It is strongly recommended. Bail reviews involve specific legal grounds and procedural requirements, including notice periods, that are difficult to navigate without legal assistance.