KNOW YOUR RIGHTS

Changing Bail Conditions

How to Legally Change Bail Conditions

This article examines how to change or modify your bail conditions for criminal charges in Toronto, Ontario. Those looking to change or modify a condition of their bail should consult a criminal lawyer. For information on the bail hearing process, read my article on understanding bail hearings.

Frequently asked questions about changing bail conditions:

Once bail is granted in court, the conditions set out in the recognizance of bail (bail document) are difficult to change without a great deal of time and effort exercised on the part of the lawyer.

In order to understand why this is so, one must understand how the bail system works in Canada.

For almost all offences (except murder, treason and a few other of Canada’s most serious crimes), bail is granted in the provincial court by either a Judge or Justice of the Peace.

Once bail is granted (or denied), no other judge or justice of the peace at the provincial court level can review that decision or the conditions of bail imposed by the original judge or justice. The only instance where a provincial court judge or justice can modify an existing bail condition is with the agreement of the Crown Attorney. Otherwise, an accused person must bring a formal application to review the bail conditions before a Judge in the Superior Court of Justice.

What is the easiest way to get a bail condition changed?

The easiest (and least expensive) way to get a bail condition changed is to convince a prosecutor to agree to the change without requiring a bail review hearing. This is also likely the quickest option available to someone looking to modify their bail.

However, prosecutors rarely modify or eliminate conditions imposed by a Judge or Justice without good reason for doing so. If a curfew condition was imposed by a Judge, the prosecutor is unlikely to remove that condition without a compelling reason provided by the accused.

For example, a prosecutor may agree to allow an exception to a curfew or house arrest condition for a specific purpose such as attending work or school. They are unlikely to simply eliminate the condition all together.

How can I convince the prosecutor to change my bail?

When requesting a change of bail from the prosecutor, having supporting documentation such as a travel itinerary for an upcoming vacation, proof of employment or proof of school registration are often essential tools to assist the prosecutor with making their decision. The better the documentation presented, the more likely a prosecutor will agree to modify the bail as requested.

What if the prosecutor doesn't agree with the proposed bail variation?

If the prosecutor does not agree to change the conditions of bail, the only other remedy is to bring a bail review application before a Superior Court Judge.

Can anyone request a change of bail conditions in Superior Court?

It is not enough to simply want a bail condition changed before you can bring an application in Superior Court. An accused person must also show that the judge or justice who imposed the original bail conditions made either an error of law by imposing the conditions they did or that there has been a material change in the accused person’s circumstances to warrant the change of bail conditions.

What is an error of law?

An example of an error of law may be found where the judge at the original bail hearing imposed a condition limiting the accused person’s ability travel by requiring them to deposit their passport with the police due to fears the accused would not show up for their trial where the evidence heard at the bail hearing would not support such an inference to be drawn.

What is a material change of circumstances?

An example of a material change of circumstances may be where an accused person seeks to relax strict bail conditions such as a curfew condition after certain serious charges against him, previously justifying the curfew were withdrawn.

What is required to bring a bail review in Superior Court?

Once an error of law or material change of circumstances exists, bringing an application to have a bail condition varied in Superior Court requires certain paperwork to be filed with the court before the application will be heard.

One of the items that must be filed with the application is a complete transcript of the original bail hearing so that the judge reviewing the bail conditions can see why a certain condition was imposed in the first place.

Typically this bail transcript takes one to two weeks from the date it is ordered before it is ready and costs $3.20 per page. A lengthy bail hearing may cost several hundred dollars to be transcribed.

Also required as part of the bail review application are affidavits (sworn statements) from both the accused person and anyone else who has agreed to supervise the accused person on bail (sureties).

After a date is affixed, the lawyer, along with the accused person and any other persons associated with the bail supervision plan (sureties) will be required to appear before the Judge in the Superior Court to establish why the original bail should be modified. This is often an all day process.

How quickly can a bail review be heard in court?

Once the paperwork for the application is assembled, the Court requires at least two business days notice before the application can be argued before a judge.

After a date is affixed, the lawyer, along with the accused person and any other persons associated with the bail supervision plan (sureties) will be required to appear before the Judge in the Superior Court to establish why the original bail should be modified. This is often an all day process.

How much does a bail review cost?

As you can see, a great deal of time, effort and money may be expended in an attempt to vary a bail condition that the Crown Attorney will not otherwise agree to change. Sometimes, the costs associated with attempting to change a bail condition may cost as much, if not more, than the costs of defending the original criminal charge. Costs are assessed on a case by case basis and will be determined based on the complexity of the issues and the length of time required to prepare and argue the bail review application.

Contact Daniel Brown at (416) 297-7200 to arrange a consultation to determine whether or not you, or someone you know, may be eligible for a bail review.