How Are Bail Conditions Changed?

We recently covered how bail conditions are imposed. Now we turn to how those conditions are changed.

The presumption is that people charged with criminal offences will be released

Most people charged with criminal offences will be released from custody as their case works its way through the system. Many of those people will have conditions placed on them that they must comply with while the charge remains active. There are often referred to as bail conditions. Commonly, people will want to have their conditions changed. There are a number of ways an application to vary bail conditions can be made depending on the particular circumstances of the case. 

The first step is to determine how the conditions were imposed. If they were imposed by a police officer an application can be brought pursuant to s. 502 of the Criminal Code to vary or replace the police undertaking. This can often come up in cases involving allegations of domestic violence where there is some urgency to have contact with children or even the complainant who does not want the matter to proceed.

If the conditions were imposed by a Judicial Justice or Judge then it can be more challenging to get conditions varied. The first step is to negotiate with Crown Counsel to see if they will consent to the variation that is being sought. If they won’t consent then a Provincial Court Judge does not have jurisdiction to make any variations to the bail conditions. In practice Crown Counsel will sometimes take the view that the variation should not be allowed but will consent to the application being heard by a Provincial Court Judge as this is simply a more efficient manner for things to proceed. 

Bail Review Hearings are conducted in Supreme Court

If Crown Counsel won’t consent to there even being a hearing in Provincial Court then an application pursuant to s. 520 of the Criminal Code will need to be made in Supreme Court. The accused bears the onus on review under s. 520 to show cause on a balance of probabilities why the current order should be vacated.

After sorting out the appropriate procedure the merit of the application must also be considered. Release is to be on the least onerous conditions that still address the considerations for bail. Those are:

-       Primary: A concern about whether the accused will appear in court

-       Secondary: Whether there is a substantial likelihood that the accused will commit a further offence which would endanger public safety

-       Tertiary: Where detention is necessary to maintain confidence in the administration of justice

If a variation is to be achieved it is critical that the evidence no longer support the need for the particular condition at issue. For example if an accused has a condition not to attend to a particular residence but the alleged victim has moved the condition is no longer needed for public safety purposes. Similarly, if a complainant and their spouse are working collaboratively to address issues in their relationship it may no longer be necessary to restrict their contact.