Any accused who has been denied bail at first instance has the right to apply for bail review. These applications take place in the Superior Court of Justice. When an accused is charged with a particularly egregious crime, Ottawa criminal defence lawyers know all too well that often the only release that will transpire, will be in the Superior Court. Essentially, the first instance bail hearing becomes pro forma a stepping stone towards the next level of court. There are two ways in which an accused can procure a release in the Superior Court. First, by demonstrating that a legal error was made at first instance. Second, by demonstrating that there has been a material change in circumstances which merits release. Statistically, the second branch is the more viable approach. Often, we are able to procure a release with only mild tweaking of the initial bail plan. The material change in circumstances can be demonstrated with a new surety, a higher bond, the availability of cash bail, or written proof of counselling or employment. Alternatively, if a preliminary inquire has already been conducted, the gaping holes elicited from the complainant on cross often militate in favour of release.
Most often, the new bail plan incorporates a number of smaller changes, the combination of which is able to address the concerns enunciated by the Justice of the Peace at first instance. Unfortunately, there are several delays in getting to the Superior Court for bail review. Transcripts need to be ordered and the materials need to be filed. Though these applications are often straight-forward, they are always paper intensive and thus costly to mount. Regardless, liberty lost can never be regained, and when an accused has been unjustly detained at first instance, the only remedy is by way of appeal. The system is not perfect and that is why every decision is subject to bail review.