Bail review in Murder cases

Judicial interim release in murder is considered by a Superior Court judge.  Pursuant to s. 522(4) of the Criminal Code an “order made under this section is not subject to review, except as provided in section 680”.  Section 680 deals with review by the relevant Court of Appeal and it is clear that such review is in the form of an appeal.

 

So what about change in circumstances?  Is an accused out of luck?

 

Apparently not, several cases suggest that, despite the apparently clear statute, a Superior Court judge can do a bail review for changed circumstances.  So,  R. v. Seti-Mayinga

2001 CarswellOnt 5335 holds such is proper.  The Court writes:

 

18          The Newfoundland Court of Appeal in R. v. T. (G.J.) (1999), 133 C.C.C. (3d) 180 (Nfld. C.A.) held that Code s. 522(4) does not prohibit a new hearing in Superior Court on the basis of changed circumstances.

 

19          The Saskatchewan Court of Appeal in R. v. Thatcher (1984), 37 Sask. R. 114 (Sask. C.A.) held that a superior court judge under s. 522 did have jurisdiction to entertain a fresh bail application, although the correctness of that decision may have been the subject of some controversy.

 

20          Similar conclusions, that a superior court judge could entertain a renewed application or reconsideration for judicial interim release, were reached by the Saskatchewan Court of Queens Bench in R v. Nuebauer, [1987] S.J. No. 222 (Sask. Q.B.), and the Alberta Court of Appeal in R. v. Patterson (1985), 36 Alta. L.R. (2d) 332, 19 C.C.C. (3d) 149 (Alta. C.A.), on the basis that s. 522(4), although it forbids review other than pursuant to s. 680, does not forbid a new hearing where no error is alleged and new circumstances are relied upon.

 

21          Kerans, J.A. said in Patterson that s. 522(4):

 

...forbids review other than by way of appeal in any case where error is alleged, but does not forbid a new hearing in a case where no error is alleged and new circumstances are relied upon.

 

22          There is some support for this view in the brief endorsement of the Ontario Court of Appeal in R. v. Stephens, [1991] O.J. No. 1288 (Ont. C.A. [In Chambers]).

 

23          It is not clear that R. v. Archer (1981), 59 C.C.C. (2d) 384 (Ont. C.A.), which predated Stephens and Daniels (infra.), is authority to the contrary.

 

24          It may be that Archer turned on the narrow question, whether the original detention order of Hollingworth, J. "Lapsed" when the accused was discharged of first degree murder and committed for trial on second degree murder only. That issue is not before the court here. In this case, even more importantly, from a common sense standpoint, is that Archer sought release in the face of a detention order. These applicants seek only a variation of their release conditions, not a fundamentally different result from the earlier order as was the case in Archer .

 

25          As for the inherent jurisdiction of this court to "reconsider" the terms of its earlier order in light of changed circumstances, see R. v. Wilder, [1996] B.C.J. No. 2136 (B.C. S.C.)

 

…

26          There is in Ontario very little authority that bears directly on the power of this court to vary, by way of fresh hearing or reconsideration or motion to vary, on the basis of changed circumstances, an order for judicial interim release.

 

27          The authorities in other provinces, although perhaps divided, favour a purposive interpretation of s. 522(4) which permits a new hearing or motion to vary on the basis of changed circumstances.

 

28          From a practical point of view, it does not make administrative sense to funnel through the Court of Appeal, before trial, every variation in the terms of a bail order necessitated by changed circumstances. Changes in reporting conditions, changes in the identity of sureties or the form or quantum of their recognizances, changes in employment and similar matters are minor administrative issues that should not require the full panoply of the Court of Appeal machinery contemplated by s. 680.

 

29          It is not unusual for the circumstances of the accused or the sureties to change during the months or even longer between the release order and the trial. As the Newfoundland Court of Appeal pointed out in R. v. T. (G.J.), the circumstances that give rise to the release are not necessarily static throughout the pretrial period. Changes in circumstances may give an entirely new complexion to the continued reasonableness of the release conditions, and it is difficult to think that Parliament intended to complicate or delay the opportunity to respond appropriately one way or the other, to changed circumstances.

 

30          As Doherty J.A. said in a different context in R. v. Daniels (1997), 35 O.R. 737, 119 C.C.C. (3d) 413 (Ont. C.A.), a fresh application based on a material change in circumstances makes more practical sense than does a full appeal by way of review. A purposive interpretation of the bail provisions suggests that a fresh hearing or motion to vary based on changed circumstances is preferable because it provides greater flexibility and greater access to judicial remedies for both the Crown and the accused, than a full blown appeal by way of review.

 

31          Mr. Vesa, in his persuasive argument, points out the purpose of the prohibition in s. 522(4), to provide certainty of procedure and to avoid the mischief of forum shopping, which used to be the case before the bail reform movement in the late 1960s. In earlier times, before this prohibition, an accused could simply go from judge to judge hoping for a second or third bite at the apple. That mischief is avoided if the motion to vary or to reconsider is restricted to cases where there is a significant change in circumstances and not just an attempt for a second or further bite at the apple.

 

32          In the context of this case, an appeal by way of review under Code s. 680 would require the transcription of the proceedings on February 15 and 16, the reproduction of much written material, and the involvement of an entirely different and higher level of court, causing not only delay but also a waste of scarce court resources.

 

33          By contrast, a fresh hearing or motion to vary in this court today provides a quick, simple, one-step way to resolve the question quickly and efficiently on its merits without all the baggage and delay associated with an appeal on the record. Speed and simplicity, in all matters touching upon the liberty of the subject, are important judicial values.

 

34          The object and purpose of the bail provisions of the Criminal Code is to provide a quick and flexible system to secure the liberty of the accused, if appropriate, pending trial, on suitable conditions when required.

 

35          As Doherty J. said in R. v. Saracino (1989), 47 C.C.C. (3d) 185 (Ont. H.C.), our bail system:

 

...emphasizes flexibility and the ready availability of the means to reassess or review an accused's bail status while the charges against him work their way through our criminal justice system.

 

36          As Professor Trotter points out at p. 300, the bail provisions of the Code should be interpreted so as to give the greatest practical effect to these principles of accessibility and flexibility.

 

37          For the reasons given above, including:

 

the lack of clarity in the bail provisions of the Code and the near-ambiguity in the use of the word "review" in s. 522(4),

 

the authorities referred to above,

 

the need to give greatest practical effect to the principles of accessibility and flexibility in matters touching upon the liberty of the subject,

 

the practical need for speedy and efficient access to judicial machinery to adjust bail conditions when required by changed circumstances,

 

I conclude that this court has jurisdiction to entertain the applicants' motion, on the basis of changed circumstances to adjust, by way of partial rehearing or reconsidering or motion to vary, the terms of their judicial interim release order.

 

38          It may or may not be that other considerations would apply on a motion to release a prisoner previously ordered detained under s. 522, or to reincarcerate someone previously released under s. 522. In the circumstances of this case, it is only necessary to conclude that this court has jurisdiction in a murder case like this to entertain a motion to vary or to reconsider or to reopen on the grounds of changed circumstances the terms of the previous judicial interim release order. It is for some other court on some other occasion to decide whether the nature of the release sought on a motion to vary or rehear is so different from the original order that it requires a review under s. 680 as opposed to a motion like this.