Bail Review Powerpoint

The Law and Procedure of Bail Reviews

Stephanie Heyens, J.D.

Sr. Litigator Legal Aid Ontario

Criminal Code of Canada s. 520

s.520(1) If a justice...makes an order under subsection 515(2),(5),(6),(7),(8) or (12) or makes or vacates an order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge apply to a judge for a review of the order.

Notice to Defendants.521 Enacting section for Crown prosecutor's application

for a Bail Review. Substantively identical to that of s. 520.


Notice to prosecutors.520(2) An application under this section shall not,

unless the prosecutor otherwise consents, be heard by a judge unless the accused has given to the prosecutor at least two clear days notice in writing of the application.

Clear Days

Interpretation Act s.27(1) Where there is reference to a number of clear days or “at least” a

number of days between two events, in calculating that number of days the days on which the events happen are excluded.

versus

Criminal Proceedings Rules for the Superior Court of Justice (Ontario)

s. 3.01(1) In the computation of time under these rules or an order, except where a contrary intention appears,

(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens and including the day on which the second event happens, even if they are described as clear days or the words “at least” are used


Accused to be presents.520(3) If the judge so orders or the prosecutor

or the accused or his counsel so requests, the accused shall be present at the hearing of an application under this section and, where the accused is in custody, the judge may order, in writing, the person having the custody of the accused to bring him before the court.


Adjournment of proceedingss.520(4) A judge may, before or at any time

during the hearing of an application under this section, on application by the prosecutor or the accused, adjourn the proceedings, but if the accused is in custody no adjournment shall be for more than three clear days except with the consent of the accused.


Failure of accused to attends.520(5) Where an accused, other than an

accused who is in custody, has been ordered by a judge to be present at the hearing of an application under this section and does not attend the hearing, the judge may issue a warrant for the arrest of the accused.

s.520(6) A warrant issued under subsection (5) may be executed anywhere in Canada.


s.520(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,


and shall eithers.520(7)(d) dismiss the application, or (e) if the accused shows cause, allow the

application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.


Limitation of further applications520(8) Where an application under this section or

section 521 has been heard, a further or other application under this section or section 521 shall not be made with respect to that same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application.

Grounds for Review

Review the same evidence and plan of release aka bail de novo? OR

Review only where:a) a justice makes an error of law and/or b) a justice makes a jurisdictional error c) fresh evidence/”material change in circumstances” i.e. a new plan of release is proposed

Grounds for Review

R. v. Jeffrey St-Cloud 2015 SCC 27 paras 118-138

1. Not a bail de novo - so cannot review the exact same evidence and the exact same plan of release for adults- (note: young persons have the right to a bail de novo per: s. 33(1) of the Youth Criminal Justice Act

2. A hybrid remedy: a) error of law and/or b) fresh evidence a.k.a. “material change of circumstances”

Examples of Errors of Law

1. incorrect onus applied2. insufficient reasons: s.515(5) Where the prosecutor

shows cause why the detention of the accused in custody is justified, the justice....shall include in the record a statement of his reasons for making the order.” R. v. Brooks [2001] OJ No 1563 Hill J.

3. Not ordinarily resident: “...does not mean merely a citizen of another country if one has roots in Ontario.”

R. v. Sabatini 2015 ONCJ 282 at para 48

4.

Errors of Law

4. Inadmissible Evidence: a) prior acquittal R. v. Melo [1996] O.J. No. 1602b) discharges - s.730(3) states a discharge is not a conviction- absolute discharges not releasable to any person 1 yr

after their order; and- conditional discharges not releasable to any person 3

yrs after completion.

5. Eliciting evidence from accused despite not being called to testify R. v. Brooks [2001] OJ No 1563 Hill J

Errors of Law

6. Disproportionate Weight attributed: - uncharged conduct, withdrawals, stays, expired peace

bonds “where the quality of the evidence is poor or its relation to a live issue at a bail hearing is tenuous...”

R. v. Krasniqi [2008] O.J. No. 5815

7. Referring to the accused's “record” where only discharges, withdrawals, stays, peace bonds, proven. R. v. Brooks [2001] OJ No 1563 Hill J.

8. Improper Cross-Examination by Crown or Improperly Limiting Defence Direct Examination or Re-

Examination R. v. Villota [2002] OJ No 1027 Hill J..

Material Change in Circumstances

section 520(7)(c) “...such additional evidence or exhibits as may be tendered by the accused or the prosecutor.”-“the question is what is admissible as new evidence.” St-Cloud at para 124- creates a modified “Palmer” test at paras 129-138R. v. Palmer [1980] 1 SCR 759( “Palmer” test is the test for the admissibility of fresh evidence on appeals of conviction or sentence.)

“Palmer” Test

(1) The evidence should generally not be admit ted if, by due diligence, it could have been adduced at trial.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evi dence adduced at trial, be expected to have affected the result.

Modified “Palmer” Test

Material Change in Circumstances:

1.” ...a reviewing judge may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable.” para 132

2. “...the evidence...is relevant for the purposes of s.515(10).. (of the Criminal Code)” which enacts the three grounds for detention: primary, secondary and tertiary grounds.

Modified “Palmer” Test

3.”...that the evidence is credible...must be interpreted in light of the relaxation of the rules of evidence at the bail stage and in particular s.518(1)(e) which provides that 'the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”. para 136

4. “...the new evidence must be such that it is reasonable to think, having regard to all the circumstances, that it could have affected the balancing exercise engaged in by the justice under s.515(10). The new evidence must therefore be significant.”

Material Change in Circumstances

1. Most applications on the basis of “material change of circumstances” present:

a) a new release plan (eg. different suret(ies), higher level of supervision, etc)

b) new exculpatory evidence from disclosure or withdrawal or dismissal of charges.

c) new psychiatric or medical evidence Gary Trotter, Law of Bail in Canada 3rd Ed., s.8.3(1)(ii)(C)

But also:d) time to trial will be in excess of incarceratory sentenceR. v. Anderson [2004] O.J. No. 5629

Drafting and Filing a Bail Review

Application for Judicial Interim Release1. Draft Affidavit of the Surety – one for each proposed

surety2. Draft Affidavit of the Applicant3. Order 3 copies of transcript, order one copy of the

unsworn information, order interpreter4. Draft Application for Judge's Order and Draft order and

file 5. Draft: i) Cover and Back Pages on blue cardstock

ii) Index iii) Application for Judicial Interim Release

Drafting and Filing a Bail Review

Application for Judicial Interim Release1. Draft Affidavit of the Surety – one for each proposed

surety2. Draft Affidavit of the Applicant3. Order 3 copies of transcript, order one copy of the

unsworn information, order interpreter4. Draft Application for Judge's Order and Draft order and

file 5. Draft: i) Cover and Back Pages on blue cardstock

ii) Index iii) Application for Judicial Interim Release

Affidavit of Proposed Surety

Affidavit of Proposed SuretyI ________, of the City of ____________ in the

________Region MAKE OATH AND SAY AS FOLLOWS:

1. I am the ___________ of the Applicant and as such have knowledge of the matters herein deposed to.

2. I am ____ years old with a date of birth of ________. I was born in ______ , immigrated to Canada in ______ and became a ______________ in ______.

____________________________ .

Affidavit of Surety

3. I reside at ________________ in ___________ Ontario and have lived there for approximately ____ years. I live there with

4. I did not testify at/attend the initial show cause bail hearing because___________________.

5. I work as a ______ at _____ and have done so for _____ years. My hours of work are ___to_____ and I work ____day to _____day.

Affidavit of Surety

6. I have known the accused for ____yrs because _______________. I am aware of the charges he faces before this court and I am aware that he has prior convictions for ___________________. I am also aware that he has problems with addiction/mental health. Nonetheless I am willing to supervise him/her if s/he is released on bail.

7. I am willing to pledge any amount this Honourable Court sees fit / $____K in support of his release on bail.

Affidavit of Surety

8. I have:

- an approximate income of $__K annually and this income level has been consistent for ___ years at the same /different employers.

- savings/an RRSP/investments/vehicle worth $___K- own my house which is worth about $______K. The

outstanding mortgage on my house is approximately $____K.

9. I have/have not been a surety successfully for the accused /for someone previously.

Affidavit of Surety

10. I understand that if the accused does not abide by any condition placed upon him/her by this Honourable Court that I must report him to police and then attend the courthouse to revoke the bail which puts him/her back in jail. I will do this because I know that if I do not I am at high risk of having to pay the full amount of bail money I pledge.

11. To better assist me in supervising the accused I suggest the following bail conditions:

12. I believe the accused will abide by the conditions of this bail and listen to me because:

Affidavit of the Applicant

Affidavit of the ApplicantI ________, of the City of ____________ in the

________Region MAKE OATH AND SAY AS FOLLOWS:

1. I am the Applicant in the matter and as such have knowledge of the matters herein deposed to.

2. I am ____ years old with a date of birth of ________.I was born in ______ but was brought to Canada at age ___ by parents and became a ______ in _____.

____________________________ .


3. Prior to my incarceration I resided at ______________ in ___________ Ontario and have lived there for approximately ____ years. I lived there with______.

4. Prior to my incarceration I worked /did volunteer work at ____________ where I ________________ and had done so for ____ years.


6. I have been diagnosed with_______ and see Dr. _____ on a ____ basis. I have been prescribed medications ______________________ and I am willing to continue this therapy and medication.

7. I have known my proposed surety for ____ years when I met him/her _____________________________.


8. I know that if I break any rule on any bail this Honourable Court sees fit to impose on me that my surety could lose all of the money they pledge and I will go back to jail. I would not do that. It would ruin my relationship with my surety and affect their ability to support their family. I could not live with myself if that were to happen.

9. I am agreeable to following conditions:

Application for Judicial Interim Release

1. Style of Cause

2. Headline

3. TAKE NOTICE that the Applicant in this matter will bring an application before the Justice on ___day the ___the day of _____ , 2016 in the Superior Court of Justice located at __________Street in ____ Ontario at ___o'clock in the forenoon, or as soon thereafter as the matter can be heard seeking an Order for Judicial Interim Release of the Applicant pursuant to section 20 of the Criminal Code of Canada.


THE GROUNDS FOR THIS APPLICATION ARE:

1. On ____ the Applicant was arrested and charged with the offences before the court; and

2. On ______the Applicant had a contested show cause/s.524 bail revocation hearing where the onus was on ________ and ___________ was proposed as surety; and

3. On ____ the Applicant was ordered detained on the primary/secondary/tertiary grounds; and


4. The presiding justice made errors of law being: and/or

5. i) New individuals now propose that they act as surety for the Applicant; and/or

ii) Disclosure provided on _____ provides relevant exculpatory evidence; and/or

iii) outstanding charges have been dismissed / withdrawn

which were not available at show cause thereby constituting a Material Change in Circumstances.


6. The Applicant will attend court as required, is not a substantial risk to re-offend, and his/her detention is not necessary to maintain confidence in the administration of justice or to protect the public; and

7. Such further and other grounds as counsel might submit and this Honourable Court may allow.


THE APPLICANT RELIES UPON:

1. The transcript of the show cause hearing

2. a copy of the Information

3. the affidavits of the Applicant and proposed sureties; and

4. Sections 515 and 520 of the Criminal Code; and

5. Such further and other materials as counsel might submit and this Honourable Court may allow.


THE RELIEF SOUGHT IS an Order of Judicial Interim Release of the Applicant.

THE APPLICANT MAY BE SERVED WITH DOCUMENTS PERTINENT TO THIS APPPLICATION by Service through counsel in accordance with Rule 5.

DATED AT __________ this ____day of ____ 2016.Stephanie Heyens, J.D.

Sr. Litigation Counsel, LAO50 Eagle Street West

Newmarket, ONTel: 289 383-7318

[email protected]

The Judge's Order

Contents of the Application for a Judge's Order1. Application for a Judge's Order2. Supporting Affidavit for a Judge's Order3. Draft of the actual Judge's Order

Filing the Judge's Order1. Contact staff at your courthouse to determine where to

file this Application. 2. File Application and pick up signed Judge's Order3. Contact detention centre “Records” and ask to fax

them the Order and then mail the hard copy with the original signature.

Documents

Bail Review Powerpoint