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Tom Rees | Criminal Defence Lawyer Winnipeg

Ontario Court of Appeal revokes bail after contact breach

An Ontario man charged with murder was released on bail with a surety of $125,000.00. One of the conditions of the recognizance order was to refrain from any direct or indirect communication with the owners and employees of the bar where the offence took place, any witnesses in the matter, and the family of victim.

[29]      Section 679(6) of the Criminal Code makes the provisions of ss. 525(5), (6) and (7) applicable to persons who have been released from custody pending determination of their appeal to the court of appeal: “with such modifications as the circumstances require”.

[30]      Among the incorporated provisions, s. 525(5) permits a judge (of the superior court of criminal jurisdiction[1]) to issue a warrant for the arrest of an accused who has been released from custody if the judge is satisfied that there are reasonable grounds to believe that since release an accused:

  1. has violated or is about to violate his or her form of release; or
  2. has committed an indictable offence[2].

Section 525(6) authorizes a peace officer to arrest an accused without warrant where the officer has the same reasonably grounded belief that would permit issuance of a warrant of arrest under s. 525(5).

[31]      The final incorporated provision, s. 525(7), authorizes release of an accused arrested with or without warrant under either s. 525(5) or s. 525(6), provided the accused shows cause why his or her detention in custody is not justified on any ground enumerated in s. 515(10). Section 525(7) lacks the detail contained in ss. 524(4) and 524(8), which require a judicial finding of previous or anticipated breach or commission of an indictable offence since release as a condition precedent to cancellation of the form of release and a hearing at which the accused is entitled to show cause for release.

[32]      The inscrutable “such modifications as the circumstances require”, a close relative of mutatis mutandis, has a chequered past with judges of this court. But after a few skirmishes along the way, the parties agree that, at least where an appellant is in custody on a charge of failure to comply with a recognizance entered into pursuant to an order for release pending appeal, a chambers judge has authority to:

  1. revoke the release order;
  2. cancel the recognizance; and

iii.        where the appellant shows cause that his or her detention is not necessary within s. 515(10) of theCriminal Code, order the appellant’s release from custody on a fresh recognizance.

See, R. v. Dallaire (2001), 2001 CanLII 24106 (ON CA), 141 O.A.C. 65, 40 C.R. (5th) 385 (C.A. – Chr.’s), at paras. 11-14. See also, Trotter, The Law of Bail in Canada (3rd ed.), s. 11.6, at p. 11-19.

On October 27, 2014, the accused approached a witness at a gas station and discussed the case with them. The accused was arrested and charged with breaching his release order. The Crown made a motion to revoke his release. The Ontario Court of Appeal granted the motion and revoked the bail order.

Link to Case

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