Court Appeal

March 14, 2023

R v F, 2013 ABQB 261

Mr. Royer brought a bail review application asking for Mr. F’s denial of bail to be overturned on the grounds that the bail judge inappropriately weighed his criminal record. The alleged error was that the bail judge erred in determining that the applicant’s criminal record was so bad that no conditions could be imposed that could deal with the legitimate concerns on the ground that the accused was a risk to the public.

The charges against Mr. F consisted of a flurry of residential break-ins and attempted break-ins. In every situation where the owner was in residence at the time of the break-in, the intruder fled without engaging in any kind of violence with the home owner.

Mr. F has a bad record stretching back to 1976. He did not have a recent record of failing to abide by court orders and he did have an offer of employment.

Nature of Application? Bail Denial Review application.

Did the bail judge commit an error in denying bail on the second ground by over emphasizing the accused’s record?

The legal test for the right to have a new bail hearing based on an error of law is the legal test of correctness. The original bail hearing judge errored in law by failing to consider the weaknesses in the Crown’s case. The Justice conducting the review said:

“the fact that the strength of the Crown’s case is not a relevant factor in most bail applications underlines the importance of the constitutional right to bail: an accused person is entitled to be presumed to be innocent until he has been proved guilty beyond a reasonable doubt at trial. While a bail judge is not entitled to take into account the strength of the Crown’s case in order to deny bail, it may be, of course, that a bail judge is entitled to take into account the frailty of the Crown’s case as a reason to grant bail.”


Mr. Royer argued that the original denial of bail was in error, and that his client was releaseable. The trial judge agreed. “In those circumstances, because the absence of analysis prevents transparency both to the parties and to a reviewing court, it was an error of law to state, without specifically considering both the record and the proposed conditions, that no conditions could be crafted to deal with legitimate concerns with the second ground.”

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