The terms of a release order can be changed in accordance with section 523(2) of the Criminal Code. Often, purposed bail conditions are accepted by an accused person simply so that they can be released from custody. Once out of custody, it becomes evident that certain conditions may be too restrictive or cause significant issues with family and employment.
Variation by Consent
The easiest and most cost-effective way to vary bail conditions is by consent of the Crown Prosecutor. This means that the Crown Prosecutor agrees to changes in the bail conditions. The changes are then presented to a Judge who generally will simply sign off on the variation. A consent bail variation can happen very quickly without the need to conduct a costly bail hearing.
If seeking the consent of the Crown Prosecutor to vary the bail conditions, it is important for an accused to provide as much supporting documentation to justify the request. Common examples are travel itineraries and proof of change of address or employment.
Variation not by Consent
If the Crown Prosecutor refuses to consent to the bail variation, an application must be brought before a Justice in the Court of Queen’s Bench. This is a much more onerous and time-consuming process that requires an actual hearing in which the Court will make the final decision. This process is call a bail review application.
The accused bears the onus on review under section 520 of the Criminal Code to show cause on a balance of probabilities why the current order should vacated and new conditions put in place. This can be established by showing an error in principle in the order or a material change in circumstances that would make it unjust not to change the original order.
There are only three circumstances in which an accused can bring a bail review application:
- There has been an error of law;
- Where the original decision was clearly inappropriate such as giving excessive weight to one factor and insufficient weight to another; or
- Where there has been a material change in circumstances
When considering the material change in circumstances, the reviewing court is to consider the fresh evidence test in a flexible manner to consider if the new evidence for review should be considered. Such considerations are: due diligence, relevance, credibility and effect on the result.
Court of Appeal Bail Review
Under section 680 of the Criminal Code, an accused can seek a bail review to the Court of Appeal in narrow circumstances. The test for leave to review bail requires that:
- There is a reasonable prospect of success on review; or
- The Court, applying the law, could possibly conclude that the application for release should have been allowed (in circumstances where bail is denied).
