|
Criminal - Bail. R. v. Diakoloukas
In R. v. Diakoloukas (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against conviction for "one count of possession of child sexual abuse and exploitation material (“CSAEM”)".
Here the court usefully sets out the current stages of a bail pending appeal application:a. The general process for release on bail pending appeal
[83] In April 2020, problems arising from the COVID-19 pandemic triggered an overhaul of this court’s bail pending appeal process.
[84] Before the pandemic, when this court ordered bail pending appeal, the order was sent to the Ontario Court of Justice. That court would then issue a release order that the sureties would sign in person before a justice of the peace.[3] The completed release order would then be sent to the courthouse or institution holding the appellant and he would be released from there. The cumbersome nature of that process became clear in the early days of the pandemic and required streamlining.
[85] As a result, an “all-in-one” bail pending appeal template was created, alongside a new practice direction. The revised bail pending appeal process remains intact to this day, with only minor changes.
[86] In essence, a bail pending appeal release requires the following steps:(1) Bail application brought
. An application for bail pending appeal is generally brought on three clear days’ notice: Criminal Appeal Rules, r. 22(4). A judge may hear the application in writing if it is on consent. The application must be accompanied by an “all-in-one” draft release order: Criminal Appeal Rules, r. 22(6)(i); General Practice Direction Regarding All Proceedings in the Court of Appeal, at paras. 147-49.
(2) Release order signed and entered by the court
. If bail is granted (either on consent or otherwise), a “Release Order of the Court of Appeal for Ontario” will be signed and entered by the court.
. The order will have the court’s seal on the first page. It will begin with recitals. The recitals to the release order in this case (and the other appeals) specify that the appellant’s release shall occur “immediately” upon completion of Appendix A:
IT IS ORDERED THAT, upon the completion of Appendix A to this release order, the person having custody of the appellant shall immediately release the appellant if not otherwise detained [Emphasis added.]
. Appendix A contains all relevant information for the sureties, including the conditions that they are agreeing to, their financial obligations, their role and responsibilities, their promises, and what will happen if the appellant fails to comply. Appendix A also specifies that the appellant agrees to comply with the financial obligations and conditions and that he understands that he does not have to accept them, but if he does not, he will be detained.
. The release order specifies that “[u]pon the signature of the appellant, the release order will be complete”.
(3) Release order signed and witnessed
(a) Sureties
. Once the release order is signed and entered by this court, the motions clerk sends the order to counsel for the appellant to facilitate the signing of Appendix A by each surety and to witness their signatures.
. If the surety signs, thereby acknowledging the entirety of the order, counsel witnesses the signature and confirms that they have verified the surety’s identity.
. Counsel returns the signed order back to this court, following which the judge or motions clerk signs and dates the last page, which reflects that the “release order contains the signatures of the surety(ies) (if applicable) and the court.”
(b) Appellant
. The motions clerk then sends the signed order to the place where the appellant is detained. Someone at that location must facilitate the appellant signing his part of Appendix A and witness the appellant’s signature. This is the last thing that must occur before the appellant is to be released, assuming that he is not otherwise detained. [87] Bail applications may be heard on the same day as sentencing, with advance communication to the court and opposing counsel: Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario, s. 7.2.2.3. If the Crown consents to bail pending appeal, the application will often be placed before the motion judge in advance of sentencing. This permits the motion judge to consider the merits of the consent application while awaiting information about the sentence imposed.
[88] Even when applications proceed on consent, there is, of course, no guarantee that an order for release on bail pending appeal will be made and no guarantee that, even if the order is made, the appellant will be released that same day. Although the goal is efficiency, unavoidable delays can develop anywhere along the chain. . R. v. Cove [evidence]
In R. v. Cove (Ont CA, 2026) the Ontario Court of Appeal dismissed a CCC 680 bail review, which here focussing on the evidence that may be adduced on a bail application:Here the court considers the range of evidence that can be heard on a bail application:[19] The broad case-specific powers given to bail judges to receive and weigh evidence are described in Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 28:There are practically no prohibitions as regards the evidence the prosecution can lead to show cause why the detention of the accused in custody is justified. According to s. 518(1)(e) Cr. C., the prosecutor may lead any evidence that is “credible or trustworthy”, which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits. [20] Although the evidentiary door opens wide on bail hearings, bail judges must still evaluate the evidence proffered by both the Crown and the defence. Not all evidence is “credible or trustworthy”, and not all evidence that is “credible or trustworthy” is deserving of the same probative value. A broad approach to admissibility does not mean that evidence tendered should not be critically examined. As observed in R. v. St.-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 58:Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution’s case. On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise. For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case. [21] In my view, considerations by a bail judge of what evidence may or may not ultimately be admissible at trial are speculative and unhelpful at the bail stage. The bail judge must assess the quality of the evidence proffered on the bail hearing, not having regard to the rules of evidence which may apply at trial, but having regard to his assessment of the credibility and trustworthiness of the evidence as put before the bail judge on the hearing.
[22] Counsel for the applicant accepts, as a general proposition, that the rules of evidence have no application on the bail hearing. Counsel contends, however, that when the Crown relies on evidence tendered at the bail hearing as evidence of the apparent strength of the Crown’s case, the bail judge must consider the prospects of the admissibility of that evidence at trial. Counsel argues that unless the bail judge is satisfied the evidence will be admissible, that evidence cannot enhance the apparent strength of the Crown’s case.
[23] I cannot agree that a bail judge should speculate about the possible admissibility of evidence at trial when assessing the apparent strength of the Crown’s case at the bail hearing. If the assessment of the credibility or trustworthiness of evidence offered on a bail hearing in support of the apparent strength of the Crown’s case depends on the ultimate admissibility of that evidence at trial, I would anticipate that some bail hearings will become “mini trials”. The Crown will seek to put before the bail judge all of the evidence that might assist the Crown in eventually establishing the admissibility of the incriminating evidence at trial. The defence will feel an equal obligation to put everything before the bail judge that might suggest the evidence will ultimately not be admitted at trial.
[24] The relevant provisions in the Criminal Code are designed to avoid lengthy inquiries into the admissibility of evidence on a bail hearing. The measuring sticks of credibility and trustworthiness provide bail judges with valuable flexibility in assessing admissibility. At the same time, they remain sufficiently rigorous to permit an informed inquiry into the quality of the evidence as it relates to issues relevant to bail.
[25] Counsel for the applicant relies on R. v. S.A., 2020 ONSC 3622. In that case, the bail judge concluded that a statement made by a witness referred to in the evidence on the bail hearing would likely not be admissible hearsay at trial. The bail judge held he could not consider that evidence when assessing the apparent strength of the Crown’s case for the purposes of determining whether the accused should be granted bail.
[26] For the reasons outlined above, I think the bail judge in S.A. was wrong in assessing evidence tendered at the bail hearing by reference to his view of its ultimate admissibility at trial. The bail judge was obligated to consider the credibility and trustworthiness of the evidence. Some of the factors relevant to the credibility and trustworthiness of that evidence may also be ultimately relevant to the admissibility of the evidence at trial. In that sense, the relevant considerations overlap. However, at the bail hearing, the inquiry should remain focused on the credibility and trustworthiness of the evidence as it relates to the matters that are relevant on the bail hearing. Speculating about what might happen at the trial when the rules of evidence are fully in play is not helpful, may unnecessarily prolong the bail hearing, and potentially lead the bail judge astray.
[27] Counsel also relied on the decision of this court in R. v. Laframboise (2005), 2005 CanLII 63758 (ON CA), 203 C.C.C. (3d) 492 (Ont. C.A.). As I read this case, it does not support the applicant’s position.
[28] At Laframboise’s bail hearing, the Crown led evidence of a statement made by his co-accused. That statement implicated Laframboise in the homicide by placing him in an automobile at the scene. In the statement, however, the co-accused indicated Laframboise never got out of the vehicle and never had possession of a gun. Those parts of the co-accused’s statement potentially significantly minimized Laframboise’s involvement in the homicide. The bail judge ordered Laframboise detained.
[29] Cronk J.A. conducted a s. 680(2) review of the detention order. She summarized the co-accused’s statement. Although that statement would not have been admissible against Laframboise at his trial, nothing in Cronk J.A.’s reasons suggests that, if the statement was credible or trustworthy, it could not be used at the bail hearing by either the Crown or the defence. She said, at para. 35:Odette’s [the co-accused’s] statement is hearsay in respect of the appellant, but I find it of assistance in considering the potential impact of the appellant’s release. It demonstrates that Odette and the appellant are very differently situated. Proof that the appellant was present at the crime scene is a start, not the finish, to fixing the appellant with criminal responsibility for Bender’s death. [30] Cronk J.A. used the co-accused’s statement, both to place Laframboise at the scene, and as evidence of facts which tended to reduce Laframboise’s involvement in the homicide. Both aspects of the statement were relevant to her inquiry into the apparent strength of the Crown’s case. One part of the statement helped the Crown and the other helped Laframboise.
[31] The reasons in Laframboise demonstrate the value of the broad approach to admissibility mandated by the relevant provisions of the Criminal Code applicable to bail hearings. That approach applies equally to evidence which assists the defence or the Crown. . 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. Kuang
In R. v. Kuang (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, this brought against convictions for "assault (Criminal Code, R.S.C. 1985, c. C-46, s. 266), assault causing bodily harm (s. 267(b)), break and enter (s. 348(1)(b)), and two counts of threatening to use a weapon (s. 267(a))".
Here the court considers whether any duty lay on counsel to arrange bail surety:[50] The appellant also appears to criticize trial counsel for not sourcing or locating a suitable surety. But that is not the role of counsel; it is up to the client or the client’s family to identify potential sureties.
[51] The appellant relies on the fact that he was released on bail, with a surety, after the close of the evidence at trial. The surety was a family friend. Presumably, had that person been identified earlier, the appellant’s release may have been secured. However, the appellant offers no explanation as to why this person was not identified to act as surety earlier.
[52] I accept that a different lawyer may have run a bail hearing without a surety and offered a sizeable cash bail. But it is impossible to know whether that would have been successful.
|
