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Criminal - Appeals - Bail Review [CCC 680]. R. v. I.H.
In R. v. I.H. (Ont CA, 2026) the Ontario Court of Appeal allowed a CC 680 bail review, here wrt a "young person" under the YCJA:(1) The Bail Judge Had Jurisdiction Over the Murder Charge
[7] The applicant is a “young person” within the meaning of s. 2 of the YCJA. A young person’s judicial interim release must be decided by a youth justice court judge or justice from the relevant provincial or territorial court of justice: YCJA, s. 29. This general rule is subject to an exception for offences listed in s. 469 of the Criminal Code, such as murder: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 38(3); YCJA, s. 13(1).
[8] Section 33(8) of the YCJA provides that if a young person seeking release is charged with an offence referred to in s. 522 of the Criminal Code, “a youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section” (emphasis added). Accordingly, we look to s. 522 of the Criminal Code, which refers to individuals charged with an offence enumerated under s. 469 of the Criminal Code. Murder is an enumerated offence under s. 469. In other words, in circumstances where the young person has been charged with an offence referred to in s. 522 of the Criminal Code (which incorporates s. 469 offences), only a youth court judge has jurisdiction to grant release.
[9] One key distinction between youth and adult criminal courts is that young persons typically do not have the right to elect their mode of trial when prosecuted by indictment. However, s. 67 of the YCJA grants a young person this option in specific situations – one of which applies when a young person is charged with murder: YCJA, s. 67(1)(c).
[10] In this case, the applicant elected to be tried in the Superior Court of Justice composed of a judge and jury, although I have been informed that he may re-elect to be tried by a judge alone. Regardless, it was this election to proceed in the superior court that vested the superior court judge with jurisdiction over the murder charge by operation of ss. 13(2) of the YCJA. Both ss. 13(2) (without a jury) and 13(3) (with a jury) allow for a superior court judge to be deemed a “youth justice court judge” and the superior court to be deemed a “youth justice court for the purpose of the proceeding”. Both ss. 13(2) and 13(3) are triggered only when the young person elects their mode of trial in the superior court. Prior to this election being made, the superior court is not deemed a “youth justice court”. The superior court only gains jurisdiction through the young person’s election.
[11] In T.J.M., the Supreme Court of Canada provided clarity on this matter, ruling that in cases involving s. 469 offences, where a young person chooses to be tried in the superior court, both the provincial and superior courts share concurrent jurisdiction over the bail proceedings by virtue of ss. 13(2) and (3) of the YCJA: T.J.M., at paras. 9, 21-25. Without this election, the superior court gains no jurisdiction over the murder charge and the bail hearing must proceed in the Ontario Court of Justice.
[12] Accordingly, the superior court judge who denied bail in this case was deemed by virtue of the applicant’s election to be a youth justice court judge for purposes of the murder charge. He could therefore exercise jurisdiction in relation to the bail hearing for that charge.
(2) The Bail Judge Had No Jurisdiction Over the Six Unrelated Counts
[13] The bail judge also purported to exercise jurisdiction in relation to the six unrelated counts scheduled to proceed to trial in the Ontario Court of Justice. While the bail judge purported to exercise jurisdiction under s. 525 of the Criminal Code, the section that governs 90-day detention reviews, he had no jurisdiction to do so. My conclusion on this jurisdictional point leans on the helpful decision of Ellies R.S.J. in R. v. G.G., 2022 ONSC 6023.
[14] Section 14(1) of the YCJA grants youth justice courts exclusive jurisdiction over offences alleged to have been committed by a young person and that person must be dealt with as provided for in the YCJA. Returning to s. 13(1) of the YCJA, a youth justice court judge is defined as a judge sitting in a court established as a youth justice court. As before, in Ontario, the Ontario Court of Justice has been established for this purpose: CJA, s. 38(3).
[15] The applicant did not have the right to an election in relation to the other offences with which he was charged: YCJA, s. 67(1). Accordingly, those matters will be tried in the Ontario Court of Justice constituted as a youth justice court. Only the murder charge will be tried, by virtue of the applicant’s election, in the Superior Court of Justice deemed a youth justice court for purposes of the murder trial.
[16] Section 30.1 of the YCJA modifies s. 525 of the Criminal Code for young persons: if a young person is charged with an offence being prosecuted by summary conviction, they shall receive a detention review within 30 days instead of 90 days. Young persons charged with an indictable offence remain eligible for review within 90 days. As noted above, a superior court lacks jurisdiction over a young person’s detention or release unless two conditions are met: (1) at least one of the circumstances in s. 67 of the YCJA applies, and (2) the young person elects to be tried in the superior court. Until these prerequisites are satisfied, the superior court cannot conduct a detention review under s. 525 of the Criminal Code.
[17] Therefore, I conclude that the bail judge exceeded his jurisdiction when purporting to dismiss the application for release on the offences that will be proceeding to trial in the Ontario Court of Justice and are outside the reach of the deeming provisions in ss. 13(2) and (3) of the YCJA.
[18] One might wonder why this jurisdictional point is important given that it would have been open to the bail judge, in any event, to consider the facts underlying the non-murder counts as part of his decision as to whether to release on the murder charge. As will become clear in these reasons, the jurisdictional point is only important to remedy. As I will explain, pursuant to s. 680(1) and (3) of the Criminal Code, the bail judge’s decision must be set aside. I would order the applicant’s release, but only on the murder charge over which the bail judge had jurisdiction. In relation to the other counts, a youth justice court judge or justice presiding in youth court at the Ontario Court of Justice, must decide that bail application.
(3) This Court’s Jurisdiction Under Section 680 of the Criminal Code
[19] Pursuant to s. 33(9) of the YCJA, a decision made by a youth court judge pursuant to s. 33(8) of the YCJA and s. 522 of the Criminal Code, is reviewable pursuant to s. 680 of the Criminal Code. This is the s. 680 review pertaining to the interim release on the murder charge in this case.
[20] Section 680(1) of the Criminal Code involves a two-stage procedure.
[21] The first stage involves a preliminary assessment by the Chief Justice (or acting Chief Justice) as to whether a bail review should take place. In determining that question, consideration should be given to whether it is “arguable” that the bail judge committed “material errors of fact or law in arriving at the impugned decision, or that the impugned decision was clearly unwarranted in the circumstances”: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 64. This first stage has been described as akin to a motion for leave to appeal, “intended to weed out cases with no realistic possibility of success”: R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 41. If there is a realistic chance of success if a review were to be ordered, then a panel will review the matter. Ultimately, s. 680(1) allows a panel of this court to confirm, vary, or substitute the bail decision for another one that, in its opinion, should have been made.
[22] On consent of the parties, the powers of the court may be exercised by a single judge of the court: Criminal Code, s. 680(2). That consent has been provided in this case. Accordingly, both stages of review are before me.
[23] To avoid repetition, these reasons focus on the second stage of the analysis. This is because, as will become clear in the second-stage analysis, the first stage is easily passed.
[24] In light of this conclusion, I focus upon and apply the standard of review set out in Oland, at para. 61:Ultimately, in my view, a panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [Emphasis added.] ....
[58] Fresh evidence can be received on a s. 680 application. The reception of this evidence may at times stem from dynamic changes in the strength of the Crown’s case during the period of a person’s detention: R. v. Zora, 2020 SCC 14, [2020] 2 S.C.R. 3, at para. 92. Fresh evidence can be received where it is relevant and potentially material to the outcome. There should also be a reasonable explanation for the failure to present the evidence at first instance: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 132; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at paras. 52-53. . R. v. Zadi
In R. v. Zadi (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal from a denial of an "application for a bail review under s. 520 of the Criminal Code", on the basis that the "Criminal Code does not provide any right of appeal to this court from bail review decisions under ss. 520 or 521":[1] Ala Zadi seeks to appeal a decision of a judge of the Superior Court of Justice denying his application for a bail review under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46. In response, the Crown moves to quash the appeal for want of jurisdiction.
[2] The Criminal Code does not provide any right of appeal to this court from bail review decisions under ss. 520 or 521: see R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 18. Mr. Zadi acknowledges this, and seeks to invoke s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, his reliance on provincial legislation to give him a right of appeal in a criminal case is misplaced, since “appeal rights in criminal matters must be created by federal criminal legislation”: R. v. Thangarajah, 2025 ONCA 897, at para. 8, leave to appeal to S.C.C. requested, 42166; see also R. v. J.M., 2021 ONCA 735, 158 O.R. (3d) 81, at paras. 25-26. It makes no difference that Mr. Zadi claims that his appeal raises Charter issues, since “a right of appeal must be derived from a statutory source”: R. v. Scherba (2001), 2001 CanLII 4208 (ON CA), 54 O.R. (3d) 555 (C.A.), at para 10. Even if Mr. Zadi is correct that Harris J.’s decision amounted to a final order disposing of his Charter claims, there is no route under federal legislation by which this order can be appealed to this court.
[3] We accordingly quash Mr. Zadi’s appeal for want of jurisdiction. This makes it unnecessary for us to address his application to adduce fresh evidence on his appeal. R. v. S.H.
In R. v. S.H. (Ont CA, 2025) the Ontario Court of Appeal granted a Crown CCC s.680(1) bail review application, this from "an order of the motion judge dismissing the Crown’s application to revoke the respondent’s bail pending retrial":[1] This is an application under s. 680(1) of the Criminal Code, R.S.C. 1985, c. C-46 to review an order of the motion judge dismissing the Crown’s application to revoke the respondent’s bail pending retrial on historical sexual offences. The application was referred to the panel by the decision of Fairburn A.C.J.O. (R. v. S.H., 2025 ONCA 220).
[2] We conclude that the motion judge erred in law in concluding that the release order was a nullity. This error was material to the outcome as it led the motion judge to dismiss the Crown’s application to revoke the order.
[3] The application is granted. The release order is revoked for the reasons that follow.
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THE LAW
[9] The authority to revoke a release order is set out in s. 679(6) of the Criminal Code:679(6) Sections 495.1, 512.3 and 524 apply, with any modifications that the circumstances require, in respect of any proceedings under this section.
524(3) The judge or justice who hears the matter shall cancel a summons, appearance notice, undertaking or release order in respect of the accused if the judge or justice finds thatblockquote>
(a) the accused has contravened or had been about to contravene the summons, appearance notice, undertaking or release order; or
(b) there are reasonable grounds to believe that the accused has committed an indictable offence while being subject to the summons, appearance notice, undertaking or release order. [10] The test to be applied on a s. 680 application to review a bail decision was set out by the Supreme Court in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 61:[A] panel reviewing a decision of a single judge under s. 680(1) should be guided by the following three principles. First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [11] The second of these principles is relevant on this application.
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[15] We accept the Crown’s arguments. The release order was valid when the Crown applied to revoke it and the motion judge erred in law in concluding otherwise.
[16] The error in the release order is a reference to the wrong provision of the Criminal Code – s. 679(5), which governs bail pending appeal, rather than s. 679(7.1), which governs bail pending a new trial. This error is fairly described as a slip – a minor error that is of no consequence. Such errors do not invalidate an order and may be corrected by the court. See e.g., R. v. Hansen, 2015 BCCA 427, at paras. 5-6 (varying a bail order that wrongly referred to bail pending conviction appeal rather than bail pending sentence appeal).
[17] There was no prejudice to the respondent. The respondent applied for bail once this court allowed his appeal and the Crown consented to the respondent’s application. The release order made clear that the respondent was being released pending a new trial. It stated at the outset that the respondent was a person “with respect to whom a new trial was ordered”. And immediately following the mistaken statutory reference it stated: “UPON THE APPLICATION of the [respondent] for release pending a new trial…”. There could have been no doubt that the respondent was being released pending a new trial and that he was required to observe the conditions set out in the order.
[18] Nothing in Appendix A prejudiced the respondent, nor would it have done so if he were to be acquitted following retrial. Pursuant to s. 764(1) of the Criminal Code, a release order to appear for trial is binding only “until the accused is discharged or sentenced”.
[19] It is important to emphasize that the respondent was required to follow the terms of the release order regardless of any mistake in it, unless and until it was varied or revoked. Like all court orders, release orders made within jurisdiction must be followed: see e.g., R. v. Kenny (2003), 2003 CanLII 5917 (ON CA), 174 C.C.C. (3d) 389 (Ont. C.A.), at para. 32; see also R. v. Gaudreault (1995), 1995 CanLII 5075 (QC CA), 105 C.C.C. (3d) 270 (Que. C.A.), at p. 279, leave to appeal refused, [1996] C.S.C.R. No. 230. The respondent was not entitled to make a collateral attack on the order by challenging its validity only after he had been charged with breaching its terms, and only in response to the Crown’s application to revoke it. The rule is discussed in Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2024), at s. 6:36. In short, “[c]omplaints about the order are not cognizable as a defence to mechanisms of enforcement.”
[20] There is no question that the court had jurisdiction to make the release order in question. The respondent signed the release order and agreed to be bound by its terms in exchange for being released on bail pending his retrial. That being so, the order had to be followed despite the error. The respondent made a collateral attack on the release order, not a direct attack as he argues. The motion judge erred in law in finding that the release order was a nullity and dismissing the Crown’s application on that account. . R. v. Akram
In R. v. Akram (Ont CA, 2025) the Ontario Court of Appeal considered a CCC 680 bail review:E. Section 680 Bail Review: Governing Principles
[28] Section 680 of the Criminal Code sets out a two-step process for reviewing orders made pursuant to various enumerated provisions on applications for bail pending trial and appeal: R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 42; Gary Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2024), at ss. 8:19-8:24. The same standard of review applies to both: Jaser, at para. 45.
[29] The first stage of a s. 680 application requires that the Chief Justice (or acting Chief Justice) decide whether to direct a review of the order made by the bail judge. If a review is directed, either a panel of the court or, on consent of the parties, a single judge will review the order: Jaser, at para. 40.[2]
[30] In Jaser, the first stage of a s. 680 review was referred to by Doherty J.A. as akin to a motion for leave to appeal, intended to “weed out cases with no realistic possibility of success”: at para. 41. Determining whether a case has a reasonable chance of success if a review is ordered requires consideration of the scope and nature of the review contemplated by a s. 680 application: Jaser, at para. 41; R. v. Nygard, 2024 ONCA 828, at para. 8.
[31] There are three core principles that guide the scope and nature of that review, as set out by Moldaver J. in Oland, at para. 61:First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [32] To be clear, a s. 680 review does not present an opportunity for a reviewing court to simply substitute its own opinion for that of the bail judge. Rather, the reviewing court may only intervene “where it is arguable that the judge committed material errors of fact or law in arriving at the impugned decision” or where the bail decision was “clearly unwarranted”: Oland, at para. 64.
[33] In assessing the strength of an appeal, the reviewing court must have regard to the grounds addressed in the Notice of Appeal with “an eye to their general legal plausibility and their foundation in the record”: Oland, at para. 44; R. v. J.B., 2023 ONCA 741, at para. 6.
[34] An inquiry into whether a bail decision was clearly unwarranted is closely analogous to an inquiry into whether a decision is so contrary to the facts and law that it could not have been reasonably arrived at: R. v. K.M., 2017 ONCA 805, 137 O.R. (3d) 721, at para. 33. The “clearly unwarranted” standard demands deference to fact finding, but allows the reviewing court to consider whether there was a clearly inappropriate weighing of the competing factors resulting in the bail decision. As noted in Jaser, at para. 48: “If the reviewing court is satisfied the bail judge’s weighing of those factors was sufficiently skewed to produce a ‘clearly inappropriate’ order, the court will intervene on the bail review.” . R. v. Reyes
In R. v. Reyes (Ont CA, 2025) the Ontario Court of Appeal considered a bail review [CCC 680]:[7] Ms. Reyes has now commenced a review of this decision under s. 680 of the Criminal Code, R.S.C. 1985, c. C-46. I have been designated to conduct that review. With the consent of the parties, I have been asked and have agreed to conduct both steps of the review. The first step of that process involves the gate-keeping function of deciding whether the decision should be reviewed. A bail decision is reviewable if it is “‘arguable’ that the bail judge made material errors in law or fact when arriving at the impugned decision, or that the decision was clearly unwarranted”; in other words, is there a “reasonable chance of success if the review is ordered”: R. v. Nygard, 2024 ONCA 828, at para. 8. The second step, which is engaged only if the applicant clears the gate-keeping function, involves a determination of whether to intervene in the order made. Intervention is not appropriate unless the bail judge has made a palpable and overriding error, committed legal errors or errors in principle material to the outcome, or has arrived at a decision that is clearly unwarranted: R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 44. . R. v. Nygard
In R. v. Nygard (Ont CA, 2024) the Ontario Court of Appeal dismissed a CCC 680 bail review of a previously dismissed bail pending appeal application:[5] This is an application brought under the first stage of s. 680 of the Criminal Code, R.S.C. 1985, c. C-46, seeking an order that the bail decision be reviewed by a panel of this court. For the reasons that follow, the application is dismissed.
B. The first stage of a s. 680 hearing
[6] Section 680 operates in two stages. First, the Chief Justice (or acting Chief Justice) decides whether to direct a review either to a panel of the court or, on consent of the parties, to a single judge. If that direction is made, then the panel or single judge will review the matter.
[7] While the two stages are often collapsed, with the consent of the parties, into a single hearing before a single judge, this matter is beginning with the first stage alone. Accordingly, I must decide whether a panel of this court should review the decision of the bail judge.
[8] Determining whether the matter should be sent to a panel for review involves a gatekeeping function. As gatekeeper, the Chief Justice (or acting Chief Justice) must screen the matter and direct a review only where it is “arguable” that the bail judge made material errors in law or fact when arriving at the impugned decision, or that the decision was clearly unwarranted: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 63-64. In this context, the term “arguable” is to be applied in a manner that ensures that those cases with no realistic possibility of success are excluded from review. As Doherty J.A. said in R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673, at para. 41, this first stage of a s. 680 review is very similar to a motion for leave to appeal, where the question is whether “there is a reasonable chance of success if a review is ordered”.
[9] In determining whether that threshold is met, regard must be had to the highly deferential standard of review that would be applied by a panel at the second stage of a s. 680 hearing. That standard requires the reviewing panel to be guided by three principles, as set out in Oland, at para. 61:First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted. [10] To be clear, the review process is not intended to be one where the panel simply substitutes its opinion for the bail judge. Rather, intervention will only be warranted if the decision contains material errors of fact or law, or if the decision is clearly unwarranted: Oland, at para. 58.
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[31] The reviewability consideration requires that an appellate judge look to the apparent strength of the appeal: Oland, at para. 40. In Oland, at paras. 44 and 51, Moldaver J. gave guidance on the reviewability component of the test, noting that the bail judge should consider whether the grounds of appeal “clearly surpass” the minimal standard of “not frivolous”.
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[37] In my view, the bail judge understood how to approach the public interest test, she carefully balanced the reviewability and enforceability criteria, and ultimately concluded that, weighing all of the factors, the public’s confidence in the administration of justice would be undermined by the applicant’s release pending appeal.
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