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What is Bail Review

Bail review is essentially an appeal of a bad bail hearing result that proceeds before a Superior Court Justice of the Ontario Superior Court of Justice, a higher court than the Ontario Court of Justice where your bail hearing would have taken place before a Justice of the Peace.

A bail review is not a second bail hearing. Even if the reviewing judge would have decided differently if hearing the original bail, s/he can't simply can't substitute a new decision for the original decision. Rather, the bail review must demonstrate that there was a significant legal error at the original hearing, such as a misinterpretation of the applicable legal test or a misapprehension of the evidence. 

Why Seek Bail Review

If you get detained at the pre-trial custody stage, you'll likely spend months and possibly even years in jail awaiting trial. You might serve far more jail time waiting for your trial than you would serve even if convicted of all offences you've been charged with after trial. The only way to challenge that pre-trial detention is through a bail review.

Even if you're not detained pending trial, your bail hearing might have imposed very onerous terms of release upon you that make your life and the life of your family unbearable. You might have voluntarily agreed to some of the onerous bail conditions in order to secure a negotiated release, but now find your life circumstances have changed such that it's very difficult to abide by the conditions: you may need to visit a dying family member, or have a great job offer, or require some other activity not permitted by your bail conditions. If the Crown does not consent to vary your bail, your only option is a bail review to change the conditions.

How to Succeed on Bail Review

Bail reviews are more difficult to succeed on than original bail hearings because they aren't simply a rehearing. Your best shot at reasonable bail is always at the initial hearing, which is why you need to take the time required to carefully prepare for it and work with a knowledgable lawyer who can maximize your chances of making bail. But bail reviews still can work. Generally speaking, the two strategies to use on a bail review are:

  1. the bail justice of the peace improperly applied the law;
  2. the bail justice of the peace misapprehended the facts.

As compared to criminal appeals of convictions and sentencing which have about a 1 in 3 chance of success at the Court of Appeal, bail reviews before the SCJ likely have a higher rate of success (although there are no firm statistics), and are very worthwhile pursuing if the resources exist to do so and you plan to take your case to trial.