Bail review for firearm offence

March 31, 2021

R v BMD, 2020 ABQB 577

On October 1, 2020, the Alberta Court of Queen’s Bench in Edmonton released a bail review decision in the case R v BMD, in which the accused was denied release by the Alberta Provincial Court on charges including possession of a stolen vehicle and unlawful possession of a firearm and ammunition, and then denied again upon review. This decision represented the second review of bail for a firearm offence

In front of each judge, the accused presented a different release plan, each time telling the Court that there had been a change in his circumstances that merited a fresh review of the Court’s initial decision to detain him until trial.

The Court discussed the law regarding what constitutes a change of circumstance and should be considered, which is summarized by the case law as follows:

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at the first or latest bail hearing;
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the first or latest bail hearing;
  3. The evidence must be credible in the sense that it is reasonably capable of belief; and
  4. The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at the first or latest bail hearing, be expected to have affected the result.

Regarding the first branch of this test, the Court stated that if the new plan is “anchored in the same circumstances as the first”, it is not truly new and thus not a material change: the new plan must be more than a mere change in legal strategy.

The Court goes on to explain in plain English, quoting precedent, why it’s so important to get a bail hearing right the first time:

An applicant for bail is obliged to put his or her best foot forward at the original hearing. Put another way, the original bail hearing is not a consequence-free opportunity to simply “test the waters” and if bail is refused on the basis of the applicant’s initial plan, then it is time to “up the ante” in subsequent applications, and offer other options that were known to the applicant at the original applicant, and which may have been less convenient, more expensive, or more restrictive.

When the consequences of getting it wrong the first time are so severe, an accused will nearly always benefit from talking to a lawyer first. The Alberta Bail Office will make sure your bail is properly handled the first time it’s argued before the Court, which is also by far the best time to achieve bail.



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