Bail Reviews and 90-Day Detention Reviews in Ontario

Being denied bail is one of the most distressing experiences in the criminal justice system. If you or a loved one has been ordered detained after a bail hearing, it is important to understand that the decision is not final. There are legal mechanisms to challenge it — and they are used regularly and successfully.

This article explains the two main avenues: bail reviews in the Superior Court of Justice and 90-day detention reviews under the Criminal Code.

When Bail Is Denied

At your initial bail hearing, a Justice of the Peace (or, for more serious charges, a Superior Court judge) decides whether to release you. Bail can be denied on one or more of three grounds:

• Primary ground: There is a substantial likelihood you will not attend court
• Secondary ground: There is a substantial likelihood you will commit further offences or interfere with the administration of justice
• Tertiary ground: Your release would undermine public confidence in the administration of justice

If the Justice orders your detention, you remain in custody — potentially for many months — while your case works through the system. This is why bail reviews exist.

Bail Reviews in the Superior Court of Justice

What Is a Bail Review?

A bail review is an application to the Superior Court of Justice to review the decision of the Justice of the Peace who denied your bail (or who released you on conditions the Crown considers too lenient — the Crown can also seek a bail review).

This is not a simple “appeal” — a bail review is a fresh hearing before a Superior Court judge. The judge reviews the transcript and materials from the original bail hearing, considers any new evidence or changed circumstances, and makes their own independent decision.

The Legal Standard

The bail review judge will intervene if:

1. The original justice made an error of law — for example, misapplying the legal test for detention or applying the wrong burden of proof
2. The original justice made a clearly unreasonable decision — one that cannot be supported on the evidence presented
3. There has been a material change in circumstances since the original hearing — new or stronger sureties, a change in your residential plan, enrollment in a treatment program, or other developments that address the concerns that led to detention

In practice, we most commonly succeed on bail reviews by presenting new evidence that was not available at the original hearing — particularly new or stronger sureties, improved release plans, and evidence that addresses the specific concerns identified by the original justice.

How to Prepare for a Bail Review

A successful bail review requires significantly more preparation than the original bail hearing. We approach it as follows:

1. Obtain and review the transcript. We order the transcript of the original bail hearing to understand exactly why bail was denied — which ground, which concerns, and what evidence the justice relied upon.

2. Address the specific concerns. If the justice was concerned about the strength of the surety, we present a stronger surety — or an additional surety. If the concern was the lack of a residential plan, we secure appropriate housing. If the concern was substance abuse, we enroll you in a treatment program and present evidence of that enrollment.

3. Present new evidence. Bail reviews are most successful when we can present material that was not before the original justice. This may include:

• New or additional sureties with more financial resources or a closer supervisory relationship
• Letters from employers confirming employment
• Evidence of enrollment in counselling, treatment, or educational programs
• Updated legal opinions on the strength of the Crown’s case
• Changes in the charges (withdrawn counts, reduced charges)

4. Legal argument. We argue that the original decision was unreasonable in light of the evidence, that the burden of proof was not properly applied, or that the new evidence tips the balance in favour of release.

Timeline

A bail review can typically be brought within 2-4 weeks of the original denial, depending on how quickly the transcript can be obtained and new evidence assembled. In urgent cases, we can expedite the process.

90-Day Detention Reviews

What Is a 90-Day Review?

Under Section 525 of the Criminal Code, if you have been detained in custody for 90 days without your trial being concluded — or without a preliminary inquiry being commenced (for indictable offences) — the court must hold a hearing to review your continued detention. This is sometimes called an “automatic review” because it is triggered by the passage of time, not by an application from the defence (though the defence can also request it).

The purpose of the 90-day review is to prevent individuals from languishing in pre-trial custody indefinitely while the system moves slowly.

How It Works

The jailer (or the institutional head of the detention facility) is responsible for notifying the court when an accused person has been in custody for 90 days. The court then schedules a hearing, at which:

• The Crown must show cause why your continued detention is justified — the burden is on the Crown, just as it is at the original bail hearing (unless a reverse onus applies)
• The defence presents any new evidence, changed circumstances, or release plans that support your release
• The judge makes a fresh determination about whether detention is still necessary

Why 90-Day Reviews Are Valuable

After 90 days in custody, several things may have changed:

• New sureties may be available — family or friends who were not ready at the time of the original bail hearing may now be willing and able to serve as sureties
• Your situation may have stabilized — you may have addressed substance abuse issues, secured housing commitments, or demonstrated good behaviour in custody
• The Crown’s case may have evolved — charges may have been reduced, some counts may have been withdrawn, or the overall strength of the case may have become clearer
• Delay becomes a factor — the longer you are detained, the more weight the court gives to your right to reasonable bail, particularly in light of the Jordan delay framework. If your case is approaching the 18 or 30-month presumptive ceiling, the court is more likely to release you pending trial.

Can I Get a 90-Day Review If I Was Denied a Bail Review?

Yes. A 90-day review is a separate process from a bail review. Even if your bail review in Superior Court was unsuccessful, you are entitled to a 90-day review once the time has elapsed. The 90-day review is before the court that has jurisdiction over the substantive charges (usually the Ontario Court of Justice).

Bail Pending Appeal

If you have been convicted and sentenced to custody but are appealing your conviction, a separate process — bail pending appeal — allows you to apply for release while the appeal is being heard. This is discussed in our criminal appeals practice area page.

Bail Variations: An Alternative When Conditions Are the Problem

Sometimes the issue is not that you were denied bail but that your bail conditions are unworkable or unnecessarily restrictive. In those cases, you do not need a bail review — you need a bail variation. We have written a separate guide on common bail variations and what the Crown will agree to.

What You Can Do While Detained

If you are in custody waiting for a bail review or a 90-day review, there are concrete steps that can improve your chances:

1. Identify potential sureties and have them contact your lawyer. See our guide on surety responsibilities so they understand what is expected.
2. Arrange a residential plan — where will you live if released?
3. Enroll in programming — many detention facilities offer counselling, anger management, addictions treatment, and educational programs. Participation shows the court you are using your time constructively.
4. Maintain good institutional behaviour — the Crown may raise your conduct in custody at the bail review.
5. Stay in contact with your lawyer — we need your instructions and input to prepare the strongest possible application.

Detained and need a bail review? Contact us immediately. Every day in custody counts.