There is concurrent jurisdiction in the Superior Court of Justice and the Court of Appeal to conduct a bail review under section 520 of the Criminal Code.
R. v. Durrani, 2008 ONCA 856 (CanLII), at para. 16;
This results from the definitions of “superior court of criminal jurisdiction” and “judge” in sections 2 and 493 of the Criminal Code including both judges of the Superior Court of Justice of Ontario and the Ontario Court of Appeal.
A judge of the Superior Court of Justice may review the bail order (including a detention order) made by another judge of that same court.
R. v. Rootenberg, 2018 ONCA 335.
Section 520 clearly envisions more than one opportunity to bring a bail review application and contemplates that different judges of the superior court will sometimes hear these applications.
R. v. Durrani, 2008 ONCA 856 (CanLII), at para. 29.
Absent special circumstances, courts of appeal should deal with bail pending appeal and superior courts should deal with bail prior to and during a trial.
R. v. Durrani, at para. 34.
An alleged error of law by a judge of the Superior Court of Justice does not, on its own, qualify as a special circumstance justifying a judge of the Court of Appeal to entertain a review.
R. v. Rootenberg, 2018 ONCA 335, at para. 16;
for a non-exhaustive list of what may constitute special circumstances see para. 29 of Durrani;
see also R. v. George, 2018 ONCA 314.
If a justice … makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.
Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).