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Criminal - Appeals - Bail Review [CCC 680]. 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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