Court of Appeal jurisdiction to conduct bail review

Section 520(1) of the Criminal Code provides:

If a justice … makes an order under subsection 515(2), (5), (6), (7), (8) or (12) … the accused may, at any time before the trial of the charge, apply to a judge for a review of the order. [Emphasis added]

Section 493 of the Code defines “judge” as “in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province.” In s. 2 of the Code, “superior court of criminal jurisdiction” is defined as “in the Province of Ontario, the Court of Appeal or the Superior Court of Justice.”

As a result a bail review may be conducted by either a Superior Court judge or a judge of the Court of Appeal.

Today’s decision in R. v. Durrani, 2008 ONCA 856 upholds a longstanding practice of the Court of Appeal to refuse to consider such bail reviews except in special circumstances.

The Court holds:

[18] The question raised by this appeal is whether, in a clear concurrent jurisdiction situation, the Court of Appeal should exercise or decline its jurisdiction to hear a bail review application in the circumstances of this case.

[19] Historically, most courts of appeal in Canada have been reluctant to exercise their concurrent jurisdiction in this domain. As explained by Trotter in The Law of Bail in Canada, at 301-02:

While there is concurrent jurisdiction under ss. 520 and 521 in two levels of court in most provinces, the overwhelming majority of bail reviews are heard in the Superior or Supreme Court. The courts of appeal have shown great reluctance to exercise their jurisdiction under ss. 520 or 521. Attempts to invoke the jurisdiction of an appeal court judge in these circumstances often occur after an application has already been heard in the Superior Court pursuant to ss. 520 or 521. On numerous occasions, appellate judges have said that the jurisdiction of a judge of a court of appeal ought to be invoked only in “special” or “exceptional” circumstances.

…

[22] In the provinces where courts of appeal decline to exercise their concurrent jurisdiction to conduct bail reviews under s. 520 of the Code absent special circumstances, what constitutes special circumstances has been defined quite narrowly. Some examples of special circumstances include: where there has been a substantial period of delay due to the absence of a transcript from the bail review, the superior court judge refused to proceed without the transcript, and it is essential and urgent that the matter be dealt with (R. v. Carrier 51 (1979), C.C.C. (2d) 307 cited in Mallett); where no superior court judge is readily available (Mallett); and where two superior court judges on two bail applications applied differing interpretations of s. 515 of the Code and the case law (Smith). Of course, none of these exceptions applies in the present case. In his submissions, the applicant raises a number of arguments in order to overcome this problem.

…

[32] I make one final observation. In my view, there are strong policy and practical reasons for adopting the ‘special circumstance’ overlay to the concurrent jurisdiction set out in s. 520 of the Code. First, if evidence is to be heard at the bail review, the Superior Court is better positioned to hear the review; it has the facilities, staff and mechanisms to respond to this necessity: see Petrie, Seminick, and R. v. Ranger (2003), 180 O.A.C. 138 (On. C.A)(Feldman J.A. in Chambers).

[33] Second, there are many other provisions in the Criminal Code that confer concurrent jurisdiction on a court of appeal as a “superior court of criminal jurisdiction”, but an appellate court would rarely, if ever, exercise those powers for practical and policy reasons: see, for example, ss. 184.2, 184.3, 185, 186, 187, 188 and 196 (wiretaps); s. 258 (release of blood samples for testing); ss. 468 and 470 (trying indictable offences); s. 488.1 (examination of seized solicitor-client privileged documents; s. 490 (retention orders in relation to items seized); s. 490.2 (forfeiture of offence related property); and s. 699 (insurance of out-of-province subpoena).

[34] I conclude that, absent special circumstances, courts of appeal should deal with bail pending appeal and superior courts should deal with bail prior to and during a trial. The applicant has not established special circumstances to justify the intervention of this court in his case.