Révocation, résiliation ou remplacement des ordonnances de mise en liberté sous caution ou de détention provisoire

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Principes généraux

Where the accused is out of custody on pending charges, either by virtue of an appearance notice, promise to appear, summons, undertaking or recognizance, the court may order the accused to be taken into custody after trial.(s. 523)

The "duration of any release order ... is governed by s. 523."

Duration of Release Mechanisms

Period for which appearance notice, etc., continues in force

523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)], the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3) [liberté de l'accusé pour infractions à l'art. 469], until his trial is completed; or

(b) in any other case,

(i) until his trial is completed, and

(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 [Pt. XXI — appels — définitions] is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

[omis (1.1), (1.2), (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Section 469 Offences

Under s. 523(1), release granted under s. 522(3), including s. 469 offences, only lasts until the trial is complete. The judge had no discretion to continue bail.

Consequence of a "Replacement" Information or Indictment

523
[omis (1)]

When new information is received

(1.1) If an accused is charged with an offence and a new information, charging the same offence or an included offence, is received while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, section 507 [procédure judiciaire recevant une information] or 508 [justice to hear informant and witness], as the case may be, does not apply in respect of the new information and the order for detention, release order, appearance notice, summons or undertaking applies in respect of the new information.

When direct indictment preferred

(1.2) If an accused is charged with an offence, and an indictment is preferred under section 577 [actes d'accusation directs] charging the same offence or an included offence while the accused is subject to an order for detention, release order, appearance notice, summons or undertaking, the order for detention, release order, appearance notice, summons or undertaking applies in respect of the indictment.
[omis (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Modifying and Vacating Bail or Detention Absent Misconduct

The general power to make an order vacating a release order and replace the order with a remand order or new release order is found in s. 523(2).

Bail can be revoked "on cause being shown" on the basis of reasons set out in s. 515(10).

Section 523(2) permits a release or detention order to be vacated and replaced with new one:

523
[omis (1), (1.1) and (1.2)]

Order vacating previous order for release or detention

(2) Notwithstanding subsections (1) [durée d'application des conditions de libération aux renseignements de remplacement] and (1.1) [conséquences de la réception de nouveaux renseignements],

(a) the court, judge or justice before which or whom an accused is being tried, at any time,

(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469 [Infractions pertinentes d'une compétence exclusive], or

(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1) [conséquences de la réception de nouveaux renseignements], without such consent, at any time

(i) where the accused is charged with an offence other than an offence listed in section 469 [Infractions pertinentes d'une compétence exclusive], the justice by whom an order was made under this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)] or any other justice,

(ii) where the accused is charged with an offence listed in section 469 [Infractions pertinentes d'une compétence exclusive], a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or

(iii) the court, judge or justice before which or whom an accused is to be tried,

may, on cause being shown, vacate any order previously made under this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)] for the interim release or detention of the accused and make any other order provided for in this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)] for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.

Provisions applicable to proceedings under subsection (2)

(3) The provisions of sections 517 [Ordonnance ordonnant que des éléments ne soient pas publiés pendant une période déterminée], 518 [Inquiry to be made by justice and evidence] and 519 [libération de l'accusé après une audience de justification] apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2) [pouvoir d'annuler les ordonnances précédentes], except that subsection 518(2) [libération sur plaidoyer de culpabilité en attendant la sentence] does not apply in respect of an accused who is charged with an offence listed in section 469 [Infractions pertinentes d'une compétence exclusive].
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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An application may be made to revoke bail under s. 523 after it has been granted pursuant to ss. 515 or 522 of the Code or after a bail review under s. 520 of the Code.

Section 523(2)(c)(iii) Vacating Old Order and Making New Order

Section 523(2)(c)(iii) provides that "the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previously made under this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)] for the interim release or detention of the accused and make any other order provided for in this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)] for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted."

The provincial court, Youth Justice court and Superior courts have jurisdiction to revoke old orders and make new orders.

Release Detainee Mid-Trial (523(2)(a))

Section 523(2)(a) permits a trial judge to revisit the matter of bail mid-trial. This appears to be the only available mechanism to consider bail once the trial has started.

It is effectively a form of review. It is not a de novo bail hearing. It is necessary that the accused show there was a material change of circumstances that requires the original order to be set aside. The new evidence must "put the criteria for release or detention in a markedly different perspective" and make the previous decision "unsustainable."

The onus of proof is on the party bringing the application.

The mere fact that the trial judge has heard some potentially prejudicial evidence does not prevent them from considering bail.

Whether to re-consider bail under 523(2) is discretionary under the principles of Part XVI of the Code.

Revoking Bail Upon Finding of Guilt/Conviction

Upon finding of guilt the judge has discretion in whether to revoke bail.

Period for which appearance notice, etc., continues in force

523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part [Pt. XVI – Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire (art. 493 à 529.5)], the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3) [liberté de l'accusé pour infractions à l'art. 469], until his trial is completed; or

(b) in any other case,

(i) until his trial is completed, and

(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 [Pt. XXI — appels — définitions] is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

[omis (1.1), (1.2), (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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The power to revoke bail post-conviction arises from s. 523(2).

The burden remains on the Crown to establish that the accused should be incarcerated immediately.

Discretion can be exercised where:

• new facts emerge about the index offence;
• new facts emerge about other offences;
• likelihood of jail term;

A judge may, on his own accord, revoke bail on conviction.

The lost of the presumption of guilt, alone, does not constitute reason to revoke bail.

Bail Revocation or Cancellation Upon Alleged Misconduct

• Bail Consequences Upon Alleged Misconduct

Vacating Recognizance

Attorney General may direct stay

579 (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or a defendant are commenced and before judgment, direct the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.
[omis (2)]
R.S., 1985, c. C-46, s. 579; R.S., 1985, c. 27 (1st Supp.), s. 117.

– CCC (CanLII), (Jus.)

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Voir également

• Estreatment of Recognizance
• Bail Revocation and Termination (Until December 18, 2019)