What Should You Do if New Circumstances Arise After Bail Has Been Denied?

What Should You Do if New Circumstances Arise After Bail Has Been Denied?

In Canada, the right to reasonable bail is protected under section 11(e) of the Canadian Charter of Rights and Freedoms. However, there are instances when an accused person may be denied bail due to perceived risks such as non-compliance, flight risk, or public safety concerns. While being denied bail is a significant setback, it is not necessarily the end of the road. If new circumstances arise after a bail denial, the accused has the opportunity to seek a bail review under section 520 of the Criminal Code of Canada.

This article provides a comprehensive guide on what to do when new circumstances emerge after bail has been denied, explaining the legal framework, the steps to take, and how these circumstances can impact the bail review process.

Understanding Bail Denial in Canada

Before discussing how to address new circumstances, it is essential to understand why bail might have been denied. When deciding whether to grant bail, the court considers three primary grounds as outlined in section 515(10) of the Criminal Code:

Primary Ground: To ensure the accused will appear in court when required.

Secondary Ground: To protect the public, victims, or witnesses from harm, including preventing further criminal activity.

Tertiary Ground: To maintain confidence in the administration of justice, particularly in cases involving serious offences or strong evidence against the accused.

If the court finds that detention is necessary based on one or more of these grounds, the accused may be denied bail. However, the situation is not always static, and new developments can alter the court’s initial assessment.

What Constitutes New Circumstances?

New circumstances refer to any material changes that were not present or known at the time of the original bail hearing but could significantly impact the court’s decision.

Examples include:

• Improved Personal Circumstances: Stable employment, housing, or the availability of a responsible surety.
• New Evidence: Information that challenges the prosecution’s case or strengthens the accused’s defence.
• Changes in Risk Assessment: Evidence demonstrating that the accused no longer poses a flight risk, threat to public safety, or risk of reoffending.
• Delays in Trial Proceedings: Extended delays in the trial process that could result in prolonged pre-trial detention.
• Resolution of Concerns: Addressing issues that led to bail denial, such as providing a suitable surety or clarifying misunderstandings about the accused’s circumstances.

Steps to Take When New Circumstances Arise

If new circumstances have emerged after bail has been denied, it is crucial to act quickly and follow a structured approach. Here are the key steps to take:

1. Consult with Legal Counsel
The first and most critical step is to consult an experienced criminal defence lawyer. Legal counsel can evaluate whether the new circumstances are significant enough to justify a bail review and guide you through the procedural requirements. Lawyers can also craft a strong argument highlighting why the court should reconsider its initial decision.

2. File an Application for a Bail Review
Under section 520 of the Criminal Code, the accused can apply for a bail review in a superior court. This application allows the court to reassess the original decision in light of new evidence or changed circumstances. To initiate the process, the accused (or their lawyer) must:

• Prepare a Notice of Application: This document outlines the grounds for seeking a review and provides a summary of the new circumstances.
• File Supporting Affidavits: Affidavits from the accused, sureties, or other relevant parties should detail the new information and how it addresses the court’s concerns.
• Submit the Transcript of the Original Bail Hearing: The transcript provides a record of the initial decision and allows the reviewing court to assess whether the new circumstances are material.

3. Compile Supporting Evidence
To strengthen the bail review application, the accused should compile all available evidence supporting the new circumstances. Examples of evidence include:

• Letters from employers confirming job offers or ongoing employment.
• Documentation of stable housing arrangements.
• Proof of compliance with any conditions imposed during detention, such as behavioural programs or substance testing.
• Affidavits from proposed sureties outlining their ability to supervise and enforce bail conditions.

4. Present the Application at a Bail Review Hearing
At the bail review hearing, the superior court judge will reassess the case based on the new circumstances. Both the defence and the Crown will present arguments, and the judge will decide whether to uphold, vary, or overturn the original decision.The judge will consider:

• Whether the new circumstances sufficiently mitigate the risks identified in the initial bail denial.
• Whether the proposed bail plan, including any new conditions, adequately addresses public safety, flight risk, and the administration of justice.
• Whether detaining the accused would violate their rights under the Charter, particularly if the detention is no longer justified in light of the new information.

Challenges in Pursuing a Bail Review

While a bail review can provide relief, it is not without challenges. Common obstacles include:

• Demonstrating Materiality: The accused must prove that the new circumstances are significant enough to warrant reconsideration.
• Judicial Deference: Superior court judges may be reluctant to overturn the decisions of lower courts unless there is clear evidence of error or material change.
• Delays in Scheduling: Filing and scheduling a bail review can take time, extending the period of pre-trial detention.

The Role of Defence Counsel in Bail Reviews

Defence lawyers play an essential role in navigating the bail review process. Their responsibilities include:

• Assessing the Strength of the New Circumstances: Determining whether the changes are sufficient to justify a review.
• Crafting a Persuasive Argument: Highlighting how the new evidence or circumstances address the risks identified in the original decision.
• Preparing Affidavits and Evidence: Ensuring all supporting documents are thorough and credible.
• Advocating at the Hearing: Presenting a compelling case to the judge, emphasizing the accused’s rights and the importance of proportionality in bail decisions.

Why Acting Quickly Is Essential

Time is of the essence when new circumstances arise. Delays in filing for a bail review can prolong pre-trial detention and weaken the argument that immediate reconsideration is necessary. Acting promptly also ensures that the accused’s rights under the Charter are protected.

Contact Celine Dostaler for Bail Review Assistance

If you or a loved one has been denied bail and new circumstances have arisen, it is essential to seek expert legal advice. A bail review can provide a second chance at securing release, but the process requires careful preparation and skilled advocacy.

As an experienced criminal defence lawyer based in Ottawa, I can guide you through every step of the bail review process. Contact me, Celine Dostaler, at Celine Dostaler Criminal Defence Lawyer, and together, we can work to secure the release and protect your rights.