Practice Direction Regarding Bail Hearings

1. Introduction

1.1 The objective of this Practice Direction is to improve access to fair, timely, focused, and effective bail hearings which is a priority for the Ontario Court of Justice. To maintain public confidence in the justice system, bail proceedings must protect the liberty rights of an accused person and the safety of the public.

1.2 Accused persons have a constitutional right to reasonable bail and the right to a timely bail hearing.

1.3 All reasonable steps should be taken to accommodate bail hearings, whether or not on consent, on the same day that the parties are ready to proceed. This principle applies to weekday bail courts and Weekend and Statutory Holiday (WASH) bail courts.

1.4 In this protocol, the term “defence counsel” includes duty counsel.

2. Materials

Any materials filed should be filed in accordance with the Court’s Serving and Filing Criminal Court Documents Practice Direction.

Contested Hearings

2.1 Where a bail hearing is a contested hearing, the hearing should proceed expeditiously, based on a focused record. The expectation is that in many cases, the only materials filed by the Crown will be the accused’s criminal record (if any), the synopsis or summary of allegations¹, and copies of any prior release orders.

2.2 Where the Crown or defence counsel concludes that filing additional materials is necessary for a fair hearing, that material must be summarized such that only the portions on which the Crown or defence counsel intends to rely are filed.² Alternatively, counsel may provide oral summaries of any additional evidence upon which they intend to rely.

2.3 The Crown is expected to continue to provide a bail package to defence counsel in advance, so they may adequately prepare for the hearing. The bail package should include the materials referenced in subsection 2.1 and any other material upon which the Crown intends to rely at the hearing.

2.4 If a surety is proposed, defence counsel should prepare the surety declaration, share it with the Crown, and ensure it is filed with the Court in advance of the hearing, unless the Crown is consenting to the Court dispensing with the declaration(s) under s. 515.1(2)(a) of the Code.

Consent Releases

2.5 Where a release is proceeding by way of Crown consent, parties must speak about the terms of the consent release in advance of the hearing.

2.6 Parties are expected to set out orally, or in writing, the proposed terms and conditions of release and file the surety declaration(s) (if applicable) to expedite the potential approval of the consent release by the presiding judicial officer.

2.7 All proposed consent releases put before the court shall be accommodated the same day.

3. The Hearing

Onus and Parties’ Positions

3.1 At the beginning of each bail hearing parties will set out:

• The onus.
• The Crown position on detention.
• What ground(s) for detention are at issue and why.
• The Crown position on the appropriate form of release if a detention order is not being sought.
• The defence position on the appropriate form of release.
• The defence’s proposed plan of release.

Time Targets for Hearings

3.2 Consistent time targets for hearings improve predictability in scheduling for all parties.

3.3 Judicial officers presiding over bail hearings have the authority and responsibility to manage bail hearings in a way that ensures fairness and efficiency. This may include establishing time targets for evidence and submissions at the outset of the hearing.

3.4 In many cases, the issue of bail can be determined based on materials filed (as set out in subsection 2.1) and focused oral submissions, without the need for viva voce evidence.

3.5 The Court expects that routine contested bail hearings will be completed in no longer than 30 minutes, subject to the discretion of the presiding judicial officer.

3.6 The Court expects that consent releases will be completed in no longer than 15 minutes, subject to the discretion of the presiding judicial officer.

4. Sureties

4.1 Release with a surety is only required where the court is satisfied that a surety release is the least onerous form of release possible in the circumstances, regardless of onus.

4.2 All parties must consider and propose alternatives to release with a surety where appropriate.

4.3 If a surety is proposed, defence counsel should prepare the surety declaration, share it with the Crown, and ensure it is filed with the Court in advance of the hearing, unless the Crown is consenting to the Court dispensing with the declaration under s. 515.1(2)(a) of the Code.

4.4 The Court expects that surety declarations will be completed, signed, and sworn before filing. Where a surety declaration has been completed, but it has not been feasible to swear the declaration, the surety may be asked to attend the hearing to confirm the accuracy of the contents on the record under oath. Where attendance is required, the surety may attend by audio-video conference, unless otherwise directed to attend in person by the presiding judicial officer.

4.5 Where a surety declaration has been filed, the expectation is that examination in chief and cross-examination of the surety are not required.

4.6 Where the Crown believes that further scrutiny of the proposed release plan through cross-examination is necessary and relevant, the Crown must identify the issues and purpose of cross-examination as it relates to the live issues in the hearing, as well as a time estimate for the cross-examination. The judicial officer should take steps to ensure the cross-examination is focused and relevant to the live issues and does not unnecessarily prolong the hearing.

4.7 Defence counsel may set out the bail plan through submissions.

4.8 Sureties should make themselves available at the time of the bail hearing so that if a release is ordered, it can be entered into immediately.

4.9 Where it is not feasible for the surety to sign the release order in the presence of the Court, the presiding judicial officer may dispense with having the surety physically sign the release order, provided that the judicial officer is satisfied that the surety has committed to fulfilling their obligations as a surety, including the financial obligation, as set out in the release, and that they understand that they are bound by the terms and conditions of the release order even if they do not sign it.

5. Youth and Remote Fly-In First Nations Communities

5.1 The prejudicial impact of adjournments on an accused person who is arrested in a remote First Nation Community are magnified due to the likelihood of being flown out of their community to be admitted into custody on remand.

5.2 The same consideration applies for young persons where there is no youth detention facility located in the community.

5.3 In both instances, all reasonable efforts should be made to address bail at the first appearance while the accused is still in their home community.

6. Complex Bail Matters

6.1 Where a matter has two or more of the features listed below, counsel may identify it to the presiding judicial officer as a Complex Bail Matter. Subject to the discretion of the presiding judicial officer, a matter that is determined to be a Complex Bail Matter will be eligible for additional court time, which will not ordinarily exceed two hours.³

• Two or more proposed sureties where the Crown seeks to cross-examine;
• Matters requiring the assistance of an interpreter;
• Section 524 application with two or more existing release orders; and/or
• Specialized prosecution team matters if identified as such at the time of the bail hearing.⁴

6.2 Complex Bail hearings will be heard the same day they are identified as Complex.

Sharon Nicklas
Chief Justice
Ontario Court of Justice

¹ This includes synopses or summaries of allegations for outstanding charges where those charges are the subject of a s. 524 application. ↩

² For example, in Project cases involving multiple accused, a table setting out a list of defendants, charges, contraband seized, etc. may fall into this category of material. ↩

³ This court time includes the time to issue a decision on the issue of release. ↩

⁴ Includes Public Prosecution Service of Canada’s project, national security, and regulatory cases and matters from the Ministry of the Attorney General’s Intensive Serious Violent Crime Bail Teams (ISVCBTs), Complex Prosecutions Bureau, Human Trafficking Team, Guns and Gangs Team, and Sexual Violence Advisory Group. ↩