Merit test for bail review guidelines

• A lawyer must demonstrate that there is a reasonable chance of success on the review.

  The request for coverage should include a statement that the lawyer would advise a reasonable client of modest means to undertake the review. It must be supported by a significant change in circumstances or by demonstrated error on the part of the provincial justice or judge of the peace who conducted the original hearing.

  Factors taken into consideration:

  • fail to appear or/and fail to comply convictions on record;
  • summary of the criminal record;
  • availability of an acceptable surety;
  • strength of the Crown’s case the seriousness of the charge; and
  • amount of time already spent in pre‑trial custody

• The “public interest” can be established by counsel showing how a review will provide “targeted and purposive” judicial oversight of improper bail practices and decision making that are having a disproportionate and adverse impact on low‑income Ontarians and Legal Aid clients.

• LAO may authorize a review of a term or a condition of bail on the basis that the condition improperly limits the rights of the accused even though the accused has not been detained pending trial.

• Defence counsel’s request should demonstrate a material change of circumstances or an error of law by the justice who conducted the original hearing, or a failure by the original justice to exercise discretion appropriately by giving excessive weight to one relevant factor or insufficient weight to another.

• Defence counsel’s request seeking a bail review authorization may also include—if available and relevant—the following:

  • fail to appear or/and fail to comply conviction on record;
  • summary of the criminal record
  • availability of an acceptable surety;
  • strength of the Crown’s case;
  • seriousness of the charge; and
  • amount of time already spent in pre‑trial custody, and confirmation that there isn’t an immigration hold.

• The request may also be supported—if available—by a draft of the accused’s affidavit to be filed on the bail review. Failing this, and following a successful bail review, the lawyer may be asked to provide the district office with a copy of the affidavit filed.