Challenging Bail Decisions

• Author: Gary T Trotter
• Pages: 75-80

75

CHAPTER 7

Challenging Bail Decisions

1. INTRODUCTION

e title to this chapter might be somewhat misleading. I am not re-

ferring to bail decisions that are especially dicult, although many

can be. I am referring to the r ight of the parties (i.e., the accused and

the prosecutor) to challenge an existi ng bail order.

As criminal cases move through the system towards trial, t he

issue of bail is never completely closed. Both sides may apply to

change the order that is in place. e process of chal lenging a bail

order is referred to as a bail “review.” It could just as easily be referred

to as an “appeal.” e side attempting to challenge the order must

convince the reviewing judge that the bail order in place should be

set aside or adjusted because of (1) an error committed by the ori-

ginal judge or justice of the peace, (2) new evidence or a change of

circumstances relevant to the ba il issue, or (3) a combination of both.

And like medica l situations, sometimes the parties just want a second

opinion! But, as we shall see, not all judges bel ieve that the parties are

entitled to a second opinion.

2. WHAT MAY BE CHALLENGED?

e bail review provisions permit the accused person to challenge a

decision ordering his detention. Additional ly, an accused person may

be on a form of release, but on conditions that she considers too strict

(perhaps house arrest, as a random example!). Section 520 of the

Criminal Code permits an accused person to chal lenge the propriety

of these cond itions.1

e prosecutor has corresponding rights of review, under section

521 of the Criminal Code. e prosecutor may challenge a decision

ordering the release of the accused person, as well as the decision to