There is often confusion about whether and when a person is entitled to a bail review. The short answer is that, although a person who has been remanded in custody may be entitled to a bail review, the justice (ie: Provincial Court Judge or JP) who denied bail has to have made an obvious error, there has to be an unreasonable delay in getting the matter to trial, the Crown has to consent, or there has to have been a significant change in circumstances.
Under s. 523(2)(a) a Provincial Court Judge or Supreme Court Judge who is trying an accused may, on cause being shown, vacate any previous bail order and make another, including either releasing or detaining the person. Of note, if the Crown consents then then a justice can review or revise an existing bail order. A Provincial Court Judge can also make or vary a bail order at the end of a preliminary inquiry.
Pursuant to s. 525(1) if an accused is in custody pending trial on a matter for which the trial has not commenced, and is not being detained on any other matter then ‘the person having custody of the accused’ is required to apply forthwith to a Supreme Court Judge to schedule a review aimed at determining whether the person should be released from custody:
- (a) for an indictable offence, after 90 days from the date the prisoner was taken before a justice following his arrest (or he was otherwise detained);
- (b) for a summary offence, after 30 days.
- (2) When an application is brought under (1), the judge is required to fix a date for a hearing.
- (3) The review is to determine whether the accused should be released, based on whether the prosecutor has been responsible for any unreasonable delay in bringing the matter to trial.
- (4) The judge who hears the review is required to determine whether the accused’s continued detention is justified based on primary, secondary and tertiary grounds concerns (the same test as at any bail hearing).
- (5) & (6) A person who gets released on bail pursuant to (4) may be arrested if there are reasonable grounds to believe the person has breached or is about to breach his release condition(s), and the person is entitled to a new bail hearing (7).
- (8) A judge may direct that a trial be expedited (on a s. 525 bail review).
Section 680 provides that appeals from a s. 525(4) order are heard by the court of appeal.
