How to Prepare and Conduct a Bail Review

Updated November 2016

This How-To Brief outlines the steps to take to prepare and conduct a bail review. References to sections refer to sections of the Criminal Code. References to rules refer to the Criminal Proceeding Rules of the Superior Court of Justice (Ontario), made under the Criminal Code.

1Order a copy of the information or indictment

  • If the matter is in the Ontario Court of Justice, order a copy of the information from the clerk's office.
  • If the matter has moved to the Superior Court of Justice, order a copy of the indictment, which should have a copy of the original information attached, from the office of the registrar.
  • In addition to listing the charges outstanding, the information/indictment will provide the judge hearing the bail review with information regarding the timing of the laying of the information, dates of prior bail hearings and the stage of the proceedings.

2Order three copies of the transcript of the initial bail hearing

  • When ordering copies of the transcript, clearly indicate clearly indicate they are being ordered for a bail review. Court reporters have strict timelines for this type of transcript.
  • The transcript requested should include the order of the court, the reasons for the order and the evidence of any witnesses who were called at the initial hearing.
  • If the order of the court is not apparent in the transcript, then a copy of the actual order should to be provided with the bail review materials.

3Determine the qualification for the bail review

  • Review the transcript of the initial show cause hearing to determine whether an error in law was made. Look for issues such as
    • the failure to consider or make reference to the primary, secondary and/or tertiary grounds
    • the misapprehension of the evidence of witnesses at the initial show cause hearing
    • the application of conditions that have no relation to the allegations
     
  • Review the transcript of the initial show cause hearing to determine whether there has been a change in circumstances relating to the matter:
    • Are there new or additional sureties?
    • Has the client addressed an addiction issue while in custody?
    • Has the client addressed anger management issues while in custody?
    • Is there a significant change in the quantum of equity available?
    • Have charges been withdrawn or has the client been discharged on charges?
    • Is there new evidence that makes the case for the respondent weaker?
     

4Interview the potential sureties and the client

  • Collect as much personal knowledge as you can about each of the sureties so that there are no surprises at the bail review:
    • date of birth
    • address and how long they have resided at that address
    • information regarding previous addresses if current address is less than three years
    • who resides at the address with the proposed surety
    • work information including schedule
    • educational background
    • volunteer work/special skills
    • criminal record
    • driving record
    • outstanding charges
    • status in Canada
    • equity that surety is willing to sign against (for example real property, money in the bank or investments) and documents they will use to show proof of the equity
    • the relationship between the client and the proposed surety
    • the relationship, if any, between the surety and the alleged victim
    • the length of time the proposed surety and the client have known each other
    • during the time they have known each other, the frequency that the proposed surety and client have contact
    • whether the contact was in person, over the phone or by other means
    • if the contact has been sparse, the reason for the lack of contact and if/how this will change once the bail is in place
    • whether all parties are familiar with the outstanding charges and criminal record of the client
    • whether the client and the proposed surety have spoken about the current charges
    • whether the proposed surety signed bail for the client or anyone else in the past and whether there were any breaches of that bail
    • if there are multiple sureties, their relationships to each other and the method they will use to communicate to ensure an effective plan of supervision
     

5Determine a plan of release and supervision

  • Review the transcript to determine how the plan of release and supervision may be improved from the initial show cause hearing.
  • When creating a plan of release, consider the nature of the offence and the specific background of the client (does the client have a "fail to appear," a "fail to comply," a related criminal record, addiction issues, mental health issues, etc.).
  • Some of the issues that need to be addressed in the plan are
    • Where is the accused going to live?
    • If a curfew is being suggested, is the surety in a position to enforce the curfew?
    • Should there be a reporting condition? This should be offered if there are primary ground concerns like charges of or a record for failing to appear, or if the client has substantial ties outside the jurisdiction in which the outstanding matter will proceed.
    • If the client has addiction or mental health issues, can the plan include counselling and treatment?
    • If the client is facing domestic-related charges or offences involving violence, can the plan include anger management counselling?
    • Will the client be working or going to school if released and, if so, how will the accused be supervised during these periods?
    • Is it realistic that the client will abide by the conditions proposed?
     

6Prepare the affidavit of the client

  • The affidavit of the client should be as detailed as possible with respect to the relevant background information of the accused.
  • The affidavit of the client must contain the following information:
    • a list of all outstanding charges, including the charge(s) for which release is being sought
    • a reference to a criminal record, if one exists
    • status of client eg. Canadian citizen, permanent resident etc.
    • next appearance dates and trial or preliminary inquiry dates for all outstanding charges
    • residence(s) of the client for three years preceding the date of the offence charged and in respect of which release is sought
    • proposed place of residence upon release
    • the client's employment record for the three years preceding the date of the offence charged and in respect of the which release is sought
    • proposed place of employment upon release
    • the type of release that is being proposed by the accused, for example, a surety release, own recognizance, etc.
    • the terms of the order sought, for example, the amount of any surety release, with or without deposit, the names of proposed sureties, the amount for which each surety will sign, the proposed conditions etc.
     

7Prepare the affidavits of potential sureties

  • Affidavits of potential sureties should contain information similar to that contained in the previous section "Prepare the affidavit of the client":
    • detailed background information of the proposed sureties for at least three years preceding the bail review as gathered from the initial interview including work history, residential history, status in Canada, etc. (see “Interview the potential sureties and the client” section, above)
    • information relevant to the sureties' ability to supervise
    • information about the relationship to, and knowledge of, the accused
    • a clear plan of release, including proposed conditions, type of release and amount of release
     
  • Always compare the transcripts of the previous proceedings to the affidavits you have prepared for the bail review to make sure there are no inconsistencies in the evidence.
  • Always compare the affidavit of the client to the affidavit(s) of the surety to confirm there on no inconsistencies.

8Prepare the notice of application

  • The notice of application should include
    • the proposed date and time requested for the hearing
    • the grounds for the hearing
    • a reference to the evidence to be relied upon during the hearing
    • the order sought
    • a statement indicating whether the accused is to be present at the hearing
     
  • If the presence of the client is required, an affidavit should be attached to the notice that includes
    • details of the place of incarceration of the client
    • details of the date of the application and any conflicts in dates that may arise with other outstanding matters
    • a statement of the client's intention to be present
    • the name of the police force or police officer proposed to transport the client
    • a draft judge's order
     

9Prepare the supporting materials

  • Subrule 20.05(1) requires that the following supporting materials accompany the notice of application of a bail review:
    • an affidavit of the client that contains the information as discussed above under "Prepare the affidavit of the client"
    • if it is practicable, the affidavit of the current or prospective employer
    • affidavits of proposed sureties
    • a transcript of the prior judicial release hearing
     
  • All affidavits should be signed before the material is served.
  • Although a factum is not required, it may be useful if there are complicated issues of law or fact surrounding the particular bail review.
  • If the plan of release and supervision includes a treatment plan, proof of the availability of the plan should be included.
  • If there is a change in circumstances relating to the strength of the Crown’s case, provide copies of relevant transcripts and/or portions of relevant disclosure.

10Serve notice and supporting materials

  • All documents must be filed two days prior to the date suggested for the bail review unless the Crown has consented to a shorter time frame.
  • Prior to choosing the date for the bail review, it is prudent to contact the trial coordinator's office to confirm whether there are specific dates in the particular jurisdiction on which bail reviews are heard.
  • Confirm that all affidavits are commissioned prior to service.

11Consider the preparation of casebooks and supporting documentation

  • Prepare a casebook where appropriate and provide a copy to the court and the respondent in advance of the hearing date.
  • Supporting documentation could include matters such as a letter confirming employment

12Prepare the proposed sureties and the client for the bail review

  • If it has been decided to call proposed sureties or the client to testify at the bail review or if the Crown has requested the presence of a surety or the client for cross-examination, always ensure that
    • the person testifying reviews the relevant commissioned affidavit and agrees with the information contained within the document
    • the proposed sureties and the client understand and agree with the proposed plan of supervision
    • the proposed sureties and the client have discussed the plan of supervision and worked out each person's specific responsibility within the plan
    • the sureties are able to explain their role and responsibility as a surety
    • if a surety has signed a bail previously, the surety can explain the circumstances of the previous bail as well as any difficulties that may have occurred
    • each party understands the nature of the charges for which bail is being sought
     

13Determine the position of the Crown on release

  • Once a solid plan of release and supervision is fashioned, canvas it with the Crown to determine if a consent release is possible.
  • If the Crown consents to the plan of release, a draft order should be prepared by the lawyer in conjunction with the Crown prior to addressing the matter in court.
  • A blank draft order form can usually be obtained from the registrar in the court.
  • Even if a release is agreed to by the Crown, be ready to justify the plan to the judge. The judge still has the final word on whether a judicial interim release should be granted and what conditions would be appropriate upon release.

14Conduct the bail review

  • Review all relevant sections of the Criminal Code including those on bail review (ss. 520 and 521) and s. 515.
  • Seek detailed written instructions from the client to proceed with the bail review as prepared.
  • The lawyer should have a clear grasp of the information in all materials filed as well as the disclosure provided to date.
  • Be prepared to make submissions on
    • the grounds that allow a bail review to be brought
    • the plan of supervision and how it addresses the primary, secondary and/or tertiary grounds of judicial interim release
    • the type of order being requested
    • the conditions of release being proposed
    • the ability of the sureties to supervise
     

Statutes and Rules