CITATION: R. v. Davis, 2026 ONSC 4029
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
S. Doherty, for the Crown Attorney
- and -
MALCOM DAVIS
S. Sabourin and R. McCourt, on behalf of Mr. Davis
HEARD: May 26, 29 and June 10, 2026
RULING ON BAIL POST-CONVICTION - SECTION 523 CC. 1
1The matter of continued bail or detention following a conviction, but prior to sentencing, has been the subject of debate and disparate rulings from various levels of courts across the country. Given the conflicting authorities, both Crown and defence counsel have requested clarification on this point of law. In these reasons, I respond to that request.
2On May 26, 2026, Malcom Davis was convicted by a jury with four counts, namely: discharge a firearm with intent to wound, maim, disfigure or endanger the life of another person; intentionally discharge a firearm while being reckless as to the life of safety of another person; possession of firearm not being the holder of a licence; and possession a loaded prohibited or restricted firearm without being the holder of an authorization or licence; contrary to their respective provisions of the Criminal Code, RSC 1985, c. C-46.
3Upon the registration of the convictions, the Crown attorney sought to revoke the accused’s bail pursuant to s. 523 of the Criminal Code. The defence opposed the application. Given the divergence in the jurisprudence, a multi-day hearing was established in order for the parties to address the issues.
4I revoked the judicial interim release order and ordered the offender to be remanded into custody pending sentence. I advised the parties that comprehensive written reasons would follow. These are my reasons.
Issue:
5The question raised for consideration is this: What is the appropriate analysis and legal test to address s. 523 of the Criminal Code, when the Crown seeks to revoke a judicial interim release order in favour of detention, upon the offender’s conviction, but prior to sentence?
Positions of the Parties:
6The Crown submits that the offender’s bail ought to be revoked. The Crown attorney focused his arguments on the conflicting jurisprudence from Ontario and Nova Scotia, and relied on cases that suggest considerations ought to be made to the principles in s. 515(10)(c) of the Code. In that regard, he argues that the landscape changes once the presumption of innocence is refuted and that the tertiary ground is paramount to warrant detention post-conviction.
7The defence opposes the Crown’s application under s.523 of the Criminal Code to vacate the existing release order pending sentence. The Crown has not shown cause for revocation and has filed no new admissible evidence. It seeks to vacate solely because a jury found Davis guilty. The defence argues that fact alone is legally insufficient to justify remand for non‑s.469 offences.
8The defence argues that revocation of bail after conviction is exceptional and is justified only where the Crown establishes one or more of the recognized categories of cause, or where no realistic, enforceable conditions are available to protect the public.
9The defence submits that s. 523 provides the court with discretionary power to vary or vacate an outstanding release order after conviction. For offences that do not attract mandatory post‑conviction detention under s. 523(1)(a), the statutory presumption in s. 523(2) is that an existing release order remains in force until sentence unless cause is shown to vary or vacate it. The Crown bears the onus of establishing cause to revoke bail.
10The defence submits that onus is not discharged by proof of conviction alone; the court must be satisfied, on the material presented, that the circumstances justify a departure from the presumption that release continues pending sentence.
11The Crown argues that the presumption of innocence no longer applies given the finding of guilty has been made. In response, the defence says that giving weight to this argument would weaken the regime put into place by Parliament and some of the jurisprudence. The accused must be given a fair opportunity to respond and to call evidence in rebuttal. Where the Crown’s material is conclusory or uncorroborated, courts have declined to vacate release orders and instead either dismiss the application or vary conditions.
Current Legislative framework:
12After the Crown has proven its case beyond a reasonable doubt, s. 523(1)(b)(ii) gives the trial judge who heard the case the unique discretion to revoke the offender’s bail pending their sentencing, without cause:
523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,
(b) in any other case,
(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence. [Emphasis added.]
Before a finding of guilt, s. 523(2) governs, and the Crown must show cause:
(2) Despite subsections (1) to (1.2),
(a) the court, judge or justice before which or whom an accused is being tried, at any time,
may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [Emphasis added.]
Brief History of Bail:
13Historically, bail was highly discretionary. Accused persons were ordinarily detained pending their trial, unless they applied for bail: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 14; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 26.
14In 1972, the Bail Reform Act, S.C. 1970‑71‑72, c. 37, responded to various academic works criticizing the bail system as “punitive, arbitrary, and inconsistent with the presumption of innocence”: R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 22.
15Parliament’s overarching vision of the Bail Reform Act was to create a liberal and enlighten system of pre-trial release “in which accused individuals would normally be granted bail,” consistent with the presumption of innocence: Myers, at para. 22 (emphasis added).
16In 1982, the right of any person charged with an offence not to be denied reasonable bail without just cause was enshrined in s. 11(e) of the Canadian Charter of Rights and Freedoms (“the Charter”). This right was to entrench the presumption of innocence in the pre-trial stage of the criminal trial process and safeguard the liberty of accused persons.
The Presumption of Innocence:
17Accused persons are presumptively entitled to bail because they are presumed innocent.
18The presumption of innocence is the “cornerstone of Canadian criminal law” upon which the entitlement to bail rests: St-Cloud, at para. 70.
19Innocent people ought not to have their liberty rights revoked without good reason for doing so. The presumption of innocence is therefore the source of the “just cause” requirement.
20The first principle and guideline courts should adhere to in interpreting bail provisions is that “[a]ccused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail”: R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at para. 67(a) [emphasis added].
21As explained again in Hall, at para. 12:
Section 11(e) of the Charter provides that “[a]ny person charged with an offence has the right . . . not to be denied reasonable bail without just cause”. The right conferred is “a basic entitlement to be granted reasonable bail unless there is just cause to do otherwise”: Pearson, supra, at p. 691. This entitlement rests on the presumption that an accused person is innocent until found guilty at trial. However, s. 11(e) also recognizes that, notwithstanding the presumption of innocence, “just cause” may exist for denying liberty to an accused person pending trial. [Emphasis added.]
22Section 11(e) does not apply to those no longer charged with an offence and no longer presumed innocent. That is one reason why appeal applicants have the burden when seeking bail pending appeal.
23There is a basic principle in our law that bail should not be more readily accessible post-conviction than for those awaiting trial and presumed innocent. The Supreme Court of Canada in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, decided that the s. 515(10) analysis must be modified in the bail pending appeal context to reflect this basic principle. To do so, each of the s. 515(10) factors are modified. The court elaborated, at para. 33-35:
33Approaching the matter this way advances an important policy consideration. It has the virtue of promoting consistency and harmony between the trial and appellate contexts so that, together, they may be seen as providing a cohesive and comprehensive statement of the law governing bail in Canada. Importantly, it accords with the basic principle that, in general, bail should not be more readily accessible for someone who has been convicted of a crime than for someone who is awaiting trial and is presumed innocent. Approaching the two contexts in that fashion can only serve to foster the goals of fairness and coherence and enhance society’s confidence in the administration of justice
34Greater accessibility to bail pending trial is rooted in the presumption of innocence. Accused persons charged with an offence in Canada are presumed to be innocent, and they remain so unless and until their guilt is proved beyond a reasonable doubt. With this in mind, the framers of the Canadian Charter of Rights and Freedoms saw fit to include in s. 11(e) the right of every person charged with an offence “not to be denied reasonable bail without just cause”: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 13.
35By contrast, once a conviction is entered, the presumption of innocence is displaced and s. 11(e) of the Charter no longer applies. This is reflected in the shift in onus which occurs when a person who has been convicted and sentenced applies for bail pending appeal. Unlike the pre-trial context, (where by and large the onus rests on the Crown to establish that an accused should be detained in custody), for appeal purposes, Parliament has seen fit to reverse the onus onto the applicant in all cases. [Footnotes omitted, Emphasis added.]
24As I will explain, the Crown need not show cause after proving the offender guilty beyond a reasonable doubt but prior to the imposition of sentence. Post-conviction, pending appeal, the applicant is faced with a reverse onus from before they were found guilty. Before being found guilty, the Crown bears the burden. After, pending appeal, it is clear that the offender bears the burden.
25By way of analogy, it makes little sense why the test for bail pending sentencing, where the correctness of the guilty verdict is not being questioned, would be more generous to the offender and put any burden on the Crown, after having proven its case beyond a reasonable doubt.
The Appellate Authority With Respect to the Issue - s. 523 of the Code:
26There is, but one appellate case in Canada that squarely addresses this subject, from the Court of Appeal of Alberta: R. v. Aheer, 2020 ABCA 232.
27While the Alberta Court of Appeal’s decision is not binding on me, it is robustly persuasive.
28In fact, for the reasons that follow, I find that it is timely that Ontario follow Aheer and its neighbouring provinces in adopting the Alberta Court of Appeal’s reasoning.
29The fundamental principle and ratio arising from the appellate court’s decision in Aheer, is:
Section 523(1)(b)(ii) governs revocation of bail pending sentencing, and not s. 523(2). (emphasis added).
30The Crown is not required to show cause because it has already proven guilt beyond a reasonable doubt. The presumption of innocence is lost.
31Being a temporary remand until the sentencing hearing, orders under s. 523(1)(b)(ii) are not meant to require a hearing in and of itself. The remand is limited by the fact that the appropriate sentence must be determined “as soon as practicable” after the finding of guilt: Criminal Code, s. 720; R v. Lenart (1998), 1998 CanLII 1774 (ON CA), 39 O.R. (3d) 55 (C.A.), at para. 48.
32Section 523(1)(b)(ii) and s. 523(2) reflect this basic principle. They are written plainly to require cause to be shown before the finding of guilt, and not afterwards.
33Before continuing to address the guidance from Aheer, I next turn to review the caselaw interpreting these sections, which have confused the matter.
Conflicting Caselaw:
34It is clear that there is disagreement and divergence in the jurisprudence.2
35The Criminal Code is federal legislation. Although some variation in practice between provinces may be warranted to reflect local conditions, the adoption of different principles is not desirable: The Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections, (Ottawa: Canadian Committee on Corrections,1969), at p. 126. As noted by the Supreme Court, “the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories.”: Antic, at para. 6.
M.(D.J.): s. 523(1) governs and cause needn’t be shown:
36In Ontario, it seems that McIsaac J. was the first to consider what principles should apply to s. 523(1) in the reported case of R. v. M.(D.J.), [1993] O.J. No. 2992 (Gen. Div.), at para. 10.
37Of significance is that McIsaac J. reasoned that the same principles which have been approved for bail pending appeal should apply to bail pending sentencing because the offender is similarly situated with the presumption of innocence lost: M.(D.J.), at para. 14. 3
38For those principles, McIsaac J. relied on R. v. Farinacci, 1993 CanLII 3385 (Ont. C.A.), wherein Arbour J.A. (as she then was) made the following observation about the position of the offender, at pp. 3 to 4:
In my opinion, the applicants cannot bring themselves within the ambit of s. 11(e) of the Charter. As a general rule, the rights enumerated in s. 11 are given to persons "charged with an offence", and, as such, are pre-trial or trial rights which are exhausted by a verdict. This certainly is the case of s. 11(e). Sopinka J. remarked in Potvin, supra, at p. 12 of his reasons, that s. 11(e) of the Charter could not apply to a person who has been acquitted and is a respondent in a Crown appeal. The applicants argue that after a conviction there is a residual presumption of innocence sufficient to support the application of s. 11(e). I disagree.
The right not to be denied reasonable bail without just cause is rooted in the presumption of innocence, which is substantially spent by the conviction.
Indeed, the presumption of innocence is spent by the verdict, be it a conviction or an acquittal. A conviction does not create a presumption of guilt. It constitutes a legal, conclusive finding of guilt. Like an acquittal, it is enforceable unless and until reversed. After a conviction, there is no presumption left, one way or the other. There is an enforceable finding of guilt. [Citations omitted.]
39In M.(D.J.), McIsaac J. sensibly adjusted the test for bail pending appeal to fit the circumstances of s. 523(1)(b)(ii), suggesting the following non-exhaustive factors, at para. 15:
The nature of the offence;
The offender’s criminal record;
The offender’s attitude during the trial; and
Other factors including whether the offender will likely serve a term of imprisonment.
40Being a court of concurrent jurisdiction, and following the principles of judicial comity, I am mindful that fellow Ontario Superior Court colleagues ought to be cautious and reticent to overrule a case: see Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. As recently clarified by the Supreme Court in R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 6:
The right approach can be stated plainly. Superior courts at first instance may not be bound if the prior decision is distinguishable on its facts or if the court had no practical way of knowing that the earlier decision existed. Otherwise, the decision is binding and the judge may only depart from it if one or more of the exceptions helpfully explained in Re Hansard Spruce Mills, 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), apply.
The subsequent case of R. v. Green did not follow M.(D.J.):
41Justice Ducharme came to a different conclusion than McIsaac J. in R. v. Green (2006), 2006 CanLII 27306 (ON SC), 210 C.C.C (3d) 543 (Ont. S.C.).
42The judge found that although “s. 523(1)(b) recognizes the possibility of post-conviction revocation of bail, it does not confer any power on the trial judge to do so”: Green, at para. 6. That power comes from s. 523(2), which requires the crown to show cause by demonstrating that “the detention of the accused is necessary for any of the reasons enumerated in s. 515(10) of the Code”: Green, at para. 8.
43The judge recognized that s. 11(e) of the Charter does not apply to offenders, per Farinacci. However, at para. 11, he stated: “this does not mean that the mere fact of conviction mandates the revocation of an existing judicial interim release order.”. Since the offender was “deemed worthy” of release (before being found guilty of a crime), bail was deemed to continue unless the Crown can show cause. This analysis appears to conflict with the principles in Oland, at para. 35.
44While fully cognizant of judicial comity principles. with respect, the jurist’s approach to s.523 and related pronouncements in Green is questionable.4
45In the year following Green, McIsaac J. noted that his colleague did not follow his prior ruling in M.(D.J.). Nevertheless, McIsaac J. reinforced his view in R. v. Shrubsole, [2007] O.J. No. 5309, (S.C.) at para. 2:
This approach was rejected by my brother Ducharme, J. in R. v. Green, (2006) 2006 CanLII 27306 (ON SC), 210 C.C.C. (3d) 543. In doing so, he refused to follow my ruling in R. v. D.J.M. [1993] O.J. No. 2992 that accepted that the change of status could trigger a revocation of bail. Despite this refusal to follow my ruling, I am not convinced it is wrong. I am of the view that the verdicts of the jury, especially ten of them, can merit a re-consideration of this offender's continued liberty pending sentence.
46This disagreement left much uncertainty.
47Subsequently, in R. v. Stojadinovich, [2010] O.J. No. 3664, (S.C.) at para. 8, Matheson J. disagreed with Ducharme J.’s fundamental premise that s. 523(1)(b)(ii) did not confer any power to revoke bail post-conviction, so resort must be had to s. 523(2).
48After reviewing the limited authorities available at that time, Matheson J. concluded at para. 13 of Stojadinovich, “people who have been convicted do not have a right to demand to be released on bail pending sentence.”
49In Manitoba, the case of R. v. LaGue, 2012 MBQB 273, proceeded under s. 523(2), but found that the guilty plea in that case was a material change in circumstance because the presumption of innocence was lost. As the court commented, at paras. 23-25:
23As I have already noted, the change in circumstances upon which the Crown relies is the fact that Mr. Lague has entered a plea of guilty to possession of child pornography, a serious offence, and is no longer the beneficiary of the presumption of innocence. The situation now, with Mr. Lague having entered a plea of guilty to the offence of possessing child pornography, is much akin to the situation he would be in following a trial where he was convicted for that same offence.
24The Crown also asserts that Mr. Lague is almost inevitably facing a period of incarceration, which the Crown estimates at one year. On the basis of the research I conducted, I have to agree with that assessment.
25While it is true that there have been no breaches of any of the conditions imposed upon Mr. Lague while he has been free on judicial interim release, and while it is true that he has appeared in court as and when required, in my opinion, the change of status of the accused that occurs upon a plea of guilty to a serious offence, especially one that cries out for incarceration, must be viewed as a change in circumstances that is both substantial and of significant magnitude. The fact that Mr. Lague must now realize the likelihood of his being incarcerated is virtually inevitable is also significant in terms of the risk of flight.
50In R. v. B.T.Q., 2017 ABQB 715, Tilleman J. addressed the interplay between s. 523(1)(b)(ii) and s. 523(2) at paras.15-17:
15The point can be made that s.523(1)(b)(ii) could essentially be considered redundant if the time period under s. 523(2) “until his trial is completed” includes both pre and post-conviction periods. In other words, why does Parliament explicitly identify two distinct time periods in s. 523(1), if the trial time period is all encompassing under this section (i.e. if the meaning of “trial” includes pre and post-conviction)? Also, why would two separate time periods be acknowledged in s. 523(1) if they were not to be read as being separate and distinct? The first distinct time period is identified at s. 523(1)(b)(i), “until his trial is completed,” and the second time period is found at s. 523(1)(b)(ii), “until a sentence [...] is imposed on the accused.” As the language used in s. 523(2) “trial is completed,” is the same as that in s. 523(1)(b)(i) but not s. 523(1)(b)(ii), applying s. 523(2) post-conviction is not correct, as the trial is complete. The time period this revocation of bail is being considered is post-conviction, the time period detailed in s. 523(1)(b)(ii).
16If s. 523(2)(a) is where the trail (sic) judge’s power to vary or revoke a bail post-conviction is found, s. 523(1)(b)(ii) need need not exist, as s. 523(1)(b)(i) would be sufficient enough to express the fact that the original release order of an accused will continue in effect until after sentencing.
17Following conviction, the proper section for the Crown’s application to revoke bail is s. 523(1)(b), for two reasons. First, because the trial is over; and second, a considerable new circumstance exists: the accused is no longer presumed innocent.
51I agree with the conclusions reached in BTQ., wherein Tilleman J. held at para. 24:
24In considering the application of s. 523, s. 515(10) does not apply piecemeal or automatically but the s. 515(10) principles, with few exceptions, continue to apply after conviction with modifications. At a pre-trial bail hearing, s. 515(10) factors include a consideration of the Crown’s case. At that stage, the necessary focus is to cautiously balance an individual’s freedom versus societal interests. That balance is due to the pinnacle of the criminal justice system which is the presumption of innocence and the danger of irrevocably interfering with the liberty of someone who may never be convicted. But after conviction, s. 515(10) is approached differently because the strengths of the Crown’s case are known and upon conviction there is no presumption of innocence.
R. v. Aheer:
52As mentioned, after many conflicting cases, the Alberta Court of Appeal in Aheer, picked up the issue and provided some clarity.
53In Aheer, the trial judge unilaterally remanded the offender into custody for 10 minutes after conviction and prior to sentencing to consider counsel’s sentencing submissions. There was no Crown application. The trial judge advised the offender that this “may be just for a few minutes. If it goes over to another day, you may be in custody during that adjournment break.” Ultimately, the judge imposed a one-year driving prohibition and a $3,000 fine.
54The Court of Appeal upheld the trial judge and concluded that Green was wrongly decided: Aheer, at para. 15.
55In Aheer, it clarified the legal test, at paras. 14-17:
14A different approach was adopted in R v BTQ, 2017 ABQB 715, where the court concluded that s 523(1)(b)(ii) provides the jurisdiction to revoke or vary bail following conviction, and there is no need to resort to s 523(2) for jurisdiction. The court said, at para. 8:
A plain language reading of all of s. 523 should be applied in order to avoid ambiguity or confusion. The language of s. 523(1) makes it clear that the original release order of an accused will continue in effect until his or her trial is complete. It goes further, by stating that if the accused is found guilty, the original order will remain effective until they are sentenced unless the trial judge orders otherwise. To state it plainly, under this provision, Parliament says that bail is to continue through to sentence unless I revoke it (s. 523(1)(b)(ii)). [Emphasis in original.]
15The summary conviction appeal judge followed the approach in BTQ. We agree with that approach. In our respectful opinion, a fair reading of s 523 does not support the interpretation given by the courts in Iyer and Green.
16The language in s 523(1)(b)(ii) contemplates that bail will continue after conviction and prior to sentencing, unless the judge orders otherwise. Section 523(2) opens with the phrase “Despite subsections (1) to (1.2)…”. This language suggests that section 523(1)(b)(ii) provides an exception to the rules in s 523(2) that would otherwise apply. In other words, s 523(2) allows bail to be vacated on cause being shown in the circumstances set out in ss 523(2)(a), (b) and (c). The very specific language in s 523(1)(b)(ii), which continues bail “unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence”, would be redundant if resort were needed to s 523(2) for jurisdiction to revoke bail after conviction and prior to sentencing. [Emphasis in Aheer.]
17When s 523(1)(b)(ii) is viewed in its overall context, this interpretation reflects the distinction between the pre-conviction and post-conviction bail provisions of the Criminal Code, as the accused no longer benefits from the presumption of innocence. Section 523(2) deals with the revocation of bail during the course of a trial, prior to conviction, so the requirement that the Crown show cause is not surprising. However, post-conviction, and prior to sentencing, the trial judge who heard all the evidence and convicted the accused has the unique discretion contemplated in s 523(1)(b)(ii) to revoke bail in an appropriate case, without the Crown having to show cause. [Emphasis added.]
56At para. 18, the Alberta Court of Appeal held:
18In short, ss 523(1)(b)(ii) and 523(2) address different scenarios. The former gives a trial judge the discretion to revoke bail upon conviction (after the presumption of innocence has been lost) and before sentence, without cause being shown. The latter allows a judge before whom the accused is being tried to vacate or vary an order of release or detention upon cause being shown “at any time”.
57Aheer represents the governing law in Alberta, British Columbia, and in several Nova Scotia cases. Unfortunately, as will be discussed later, uncertainty remains in Ontario.
58In British Columbia, in R. v. Hayes, 2025 BCSC 2187, Hardwick J. endorsed Aheer and found that conviction was a “manifest change in the landscape” justifying revocation of bail pending sentencing, even in the face of the offender complying with his release conditions: at para. 12. These reasons were reviewed on appeal in R. v. Hayes, 2026 BCCA 54, at para. 13.
59The court in R. v. F.C.M., 2025 BCSC 2242, at para. 16, concluded that Aheer resolved the uncertainty in the caselaw:
16This uncertainty was addressed by the Alberta Court of Appeal in R. v. Aheer, 2020 ABCA 232, a decision that was very recently followed in this province in R. v Hayes, 2025 BCSC 2187. In Aheer, the Alberta Court of Appeal held that s. 523(1)(b)(ii) and 523(2)(a), viewed in context, reflect the distinction between release before a finding of guilt and release after a finding of guilt. Section 523(2) governs revocation of bail before or during trial, prior to a finding of guilt, and the Crown must show cause. Once found guilty, however, an accused no longer benefits from the presumption of innocence. After a finding of guilt on evidence heard by the trial judge, s. 523(1)(b)(ii) grants the trial judge jurisdiction on his or her own motion to revoke bail, without a requirement that the Crown show cause. The two sections therefore address two distinct scenarios.
60In FCM, Hewson J. outlined three governing principles that it considered in deciding whether to exercise s. 523(1), at paras. 18-21:
18In exercising the jurisdiction conferred by s. 523(1)(b)(ii), I considered three principles. First, a conviction should not automatically lead to the revocation of bail, especially where the accused has complied with all conditions up to that point. Detention prior to sentencing will make it more difficult for an offender to marshal their submissions for a sentence hearing and might lead to an unnecessarily harsh penalty in any case in which further incarceration was ultimately found to be unnecessary.
19Second, the finding of guilt results in the loss of the presumption of innocence.
20Third, the decision to detain or release should be assessed under s. 515(10) as adapted to the circumstances. That well-known section sets out the primary, secondary, and tertiary grounds for detention. In simple terms, those three grounds are:
To ensure the offender’s attendance in court.
To protect the public, including victims and witnesses.
To maintain public confidence in the administration of justice.
21To be clear, s. 515(10) does not strictly apply to consideration of release or detention following a finding of guilt. I reach that conclusion for two reasons. First, the provision begins with the words, “[f]or the purposes of this section”, so the words of the section itself restrict its ambit. Second, the abatement of the presumption of innocence and the finding of guilt colour the consideration of all three factors listed in the section, particularly as they require an assessment of the risk of further offences. However, s. 515(10) and the jurisprudence developed under it can still serve as a guide to some of the factors for consideration following a finding of guilt.
61In a case arising from Nova Scotia, R. v. AMB, 2022 NSSC 203, Rosinski J. also endorsed the reasoning in Aheer. The court concluded it had “virtually unfettered” discretion to revoke bail pending sentencing under s. 523(1): AMB, at para. 7. Rosinski J. went on to state at para. 8, that while the statutory language in s. 523 does not contemplate a hearing, and the judge has no duty to give reasons, for the sake of procedural fairness, it is nevertheless important to request counsels’ submissions.
62I find Rosinski J.’s comprehensive analysis in AMB to be insightful and instructive. After thoroughly examining the impugned provisions, His Honour goes on with a comprehensive and exhaustive examination of the relevant legal principles and statutory interpretation. I adopt His Honour’s analysis and reasoning in AMB for this ruling.
63Unfortunately, another Nova Scotia case, R. v. W.F., 2023 NSSC 280 (“WF 1”), decided a few months before AMB, came to a different conclusion, with somewhat circular reasoning. Despite concluding that s. 11(e) of the Charter does not apply to accused persons, Bodurtha J. made the following comments at para. 9:
The mere fact of conviction does not necessarily mean the revocation of an existing judicial interim release order. Indeed, Parliament has, by enacting s. 523(1)(b)(ii) of the Code, directed that for offences other than those listed in s. 469 of the Code, the presumption is that existing bail orders will remain in force until the imposition of sentence. Any departure from this legislative direction will be the exception, and only where the Crown can demonstrate cause: [Green].
64The decision goes on to say whether s. 523(1) or s. 523(2) governs, the analysis remains largely the same, requiring a s. 515(10) analysis: WF 1, at para. 10. A s. 523(1)(b)(ii) application is essentially a review of a previous order, so the court must follow a s. 515(10) analysis to find a “material change of circumstances”: WF 1, at paras. 26-27. The judge echoed Ducharme J.’s comments that in assessing whether the Crown has shown cause, the same offender was previously deemed worthy of judicial release and has presumably been compliant with those terms: WF 1, at para. 13. The judge also considered it important to note that revoking bail pending sentencing can have a “significantly detrimental impact on the offender's ability to prepare for sentencing”: WF 1, at para. 14.
65Justice Bodurtha revisited the analysis a few months later in R. v. W.F., 2023 NSSC 281 (“WF 2”). This time, Bodurtha J. had the benefit of AMB and concluded opposite, namely, that the Crown does not need to show cause because the presumption of innocence is lost: WF 2, at para. 12. However, Bodurtha J. doubled down on the contention that a material change of circumstances is still required, at paras. 14-16:
14In Aheer, the court makes a distinction between s. 523(2), which does require cause to be shown, and s. 523(1)(b)(ii), where cause is not necessary (see paras. 17-18). Justice Rosinski accepted the Aheer approach in R. v. AMB, 2022 NSSC 203 (see paras. 37-38).
15This is the view suggested by Ewaschuk, Criminal Pleadings and Practice in Canada, at §6:35, where the authors cite Aheer in support of the statement that “Post-conviction, and prior to sentencing, the trial judge who heard all the evidence and convicted the accused has the “unique discretion” contemplated in s. 523(1)(b)(ii) to revoke bail in an appropriate case, without the Crown having to “show cause”. Post-conviction, the accused “no longer” benefits from the presumption of innocence”. [Emphasis in Criminal Pleadings and Practice.]
16In my view, even where the statutory provision is described as “without cause”, the discretion would require some judicial reason to exercise it. The issue before me is whether the facts from my initial denial of the application to revoke W.F.’s bail have materially changed such that I should now exercise my discretion and revoke bail. In the current circumstances, the facts have materially changed and I shall revoke W.F.’s bail.
66Respectfully, in my view, the trial judge’s conclusion in WF 1 is internally inconsistent and externally at odds with Aheer and AMB. What appears to be missing from the analysis is the fundamental import of the fact of the loss of the presumption of innocence. Notably, in WF 2 this principle is endorsed.
67However, in WF 2, Bodurtha J. still required “a material change in circumstances”, to be established while at the same time, appeared to diminish the loss of the presumption of innocence to a “factor”. In my view, it is not just a factor, it is the factor that gives rise to the application of Part XVI of the Criminal Code and the constitutional right to reasonable bail. Recall that in Hayes, the B.C. Supreme Court endorsed Aheer and found that conviction was a “manifest change in the landscape” justifying revocation of bail pending sentencing. It bears repeating that the presumption of innocence and its correlative right is lost and thus, a different framework is invoked for consideration by the trial judge when addressing an offender’s status post-conviction.
68While I am reticent to sound critical of judicial colleagues, with respect, the rulings in WF1 and WF2, for differing reasons, are plainly wrong. Both WF1 and WF2, are also contrary to the legislative interpretation of s. 523 and principles enunciated in both Aheer and the Nova Scotia case of AMB.
The Cases in Ontario:
69Despite its adoption by some other courts in Ontario, it is clear that Green did not follow McIsaac J.’s prior ruling in M.(D.J.). Yet, in Ontario, various trial courts have had mixed interpretation of the requisite legal test.5
70Defence counsel referred to the case of R. v. Tsega, 2021 ONSC 1129, wherein Gomery J. (as she then was) followed the decision in Green without any reference to Aheer or its related progeny. There is no indication that Her Honour was even taken to the Alberta Court of Appeal’s decision or the related jurisprudence from the western provinces.
71Her Honour concluded that s. 523(2) governs and the Crown must show cause for detention. With respect, and for reasons discussed earlier, I must respectfully disagree with the learned judge’s analysis. Moreover, I also do not adopt some of the proposed five principles in Tsega, listed at paras. 7-13.
72I discuss each in turn:
i. It is up to the Crown to establish that bail should be revoked.
Respectfully, this conclusion is directly at odds with the conclusion reached in Aheer and is mistaken in principle. The Crown has already proven its case beyond a reasonable doubt. No more can be required. While the Crown may make the application, it does not arise to the level of an onus. It can best be described as a neutral onus, based on the trial judge’s assessment of the circumstances of the offence and of the offender. As was the case in Aheer, and AMB, a trial judge can revoke bail pursuant to s. 523(1)(b)(ii) of its own initiative.
ii. The accused’s immediate detention must be justified under s. 515(10) of the Criminal Code.
With respect, this statement is incorrect and has no application to s. 523(1)(b)(ii) where we are no longer dealing with an accused person, but rather a convicted offender. For offenders, detention may be justified simply by the finding of guilt. Importing this rule into s. 523(1) is directly contrary and at odds with Aheer and the specific opening wording of 515(10) which states, “For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds …” (emphasis added).
iii. Generally speaking, the Crown must bring forward new facts that have emerged about the accused.
After having proven its case beyond a reasonable doubt, the Crown is not required to prove new facts over and above that high threshold for the trial judge to exercise their discretion to detain the offender. A material difference exists from when the offender was originally granted bail because, at that point, they were presumed innocent. Losing the presumption of innocence is a material change in and of itself, as recognized by the drafters of ss. 523(1) and 523(2).
iv. The judge must take into consideration the impact of pre-sentencing detention on the offender.
True, the trial judge may consider this as a factor in exercising their unique discretion but are not required to do so. Notably, this is not a factor in deciding bail pending appeal, which requires much more preparation.
v. Revocation of bail post-conviction is the exception rather than the rule.
With respect, I do not accept this proposition. In fact, quite the contrary.
As already discussed, the Crown does not have an onus under s. 523(1)(b)(ii) which reads, “unless the trial judge orders otherwise.” This clearly eliminates any possibility of a presumption in favour of the offender. As Parliament has plainly written in this section, the trial judge has discretion to revoke an offender’s bail, (which was granted when they were presumed innocent), after having been found guilty beyond a reasonable doubt. According to Aheer, there is no presumptive entitlement to bail. In my review of the preponderance of reported cases throughout Canada, the revocation of bail upon conviction is not the “exception”.
73To add to the confusion in the law, defence counsel raised other recent cases in Ontario. For example, in R. v. A.H., 2024 ONSC 427, the trial judge followed Tsega and Green in concluding that the Crown must show cause to revoke bail after a finding of guilt, and reference was made specifically to s. 523(2).
74In R. v. Singh, 2026 ONSC 725, the judge felt obliged to follow Green and Tsiga, without reference to the line of cases arising from Aheer.
75In my opinion, the jurisprudence has evolved over the past two decades to distinguish and reject the ratio in Green and its progeny. I must respectfully part ways with these and other cases that have followed Green and Tsiga wherein the “mere fact of conviction” does not seriously alter the landscape. Nor should a trial judge require a demonstrative material change in circumstances to revoke bail, just because the offender was previously determined to be worthy of judicial interim release or had a good bail plan in effect.
76As mentioned, the situation after conviction is different. When the offender was an accused person, he was granted bail because he was presumed innocent and the facts of the crime were unknown. After a finding of guilt, the accused becomes an offender. He did all or some of the things which were alleged at the initial bail hearing. This constitutes a fundamental material change in circumstances.
77As mentioned by the Supreme Court in St-Cloud, trial judges analyze an abundance of evidence throughout a trial and are more familiar with the situation of the offender than the judge who made the initial interim release decision. The trial judge is not in the same position as the justice who must decide whether to grant the accused interim release: St-Cloud, at para.110.
78Indeed, a guilty verdict is not “mere”, insignificant, trivial or small. The trial judge is much better armed with the information born out in the trial than the justice who presided over the initial bail hearing. There is no reason to restrict s. 523(1)(b)(ii) by requiring the Crown to show cause or requiring the judge to find a material change in circumstances.
79I must also reject the oft-repeated assertion that revocation of bail can have a “significantly detrimental impact on the offender’s ability to prepare for sentencing” or that this should be a weighty factor to consider in determining whether to revoke bail. True, materials presented for sentencing are prepared by counsel with input from the client. While it is acknowledged that there may be, at times, challenges to fruitful discussions with a client in custody, it has not been demonstrated that this is a disabling factor, and has not prevented or otherwise inhibited fulsome submissions in cases before me. In my view, this argument ought not rise to a meaningful consideration for bail post-conviction. I also note that the preparation for an appeal is substantially more burdensome than for sentencing, and this is not a factor in the test for granting bail pending appeal.
Application of the Legal Principles to this Case:
80Davis was found guilty of serious firearms-related offences. The offender fired numerous shots towards another individual throughout the streets of Hamilton. The Crown seeks a significant penitentiary sentence. The offender has complied with bail conditions for this matter prior to trial. However, the offender has a prior criminal record, including crimes of violence and weapons related offences. He has a long history of breaching court orders, including failing to attend court. He was arrested while in British Columbia. The use of firearms and related violence has escalated in the Hamilton community.
Summary:
81There is no reason, either from the relevant legislation or in principle, to import an onerous requirement for a material change in circumstances, post-conviction. However, if I am in error in that regard, the “material change of circumstances” is fully met with the ultimate loss of the presumption of innocence. Further, there is no presumptive entitlement to bail post-conviction.
82As clearly outlined by the Court of Appeal for Alberta in Aheer, “post-conviction, and prior to sentencing, the trial judge who heard all the evidence and convicted the accused has the unique discretion contemplated in s. 523(1)(b)(ii) to revoke bail in an appropriate case, without the Crown having to show cause.”: Aheer, at para. 17. The revocation of bail is generally triggered by the Crown making an application. In the trial decision, the judge unilaterally revoked bail without “any good reason” for doing so. Although this is not encouraged, the trial judge was not overturned. Nevertheless, the court held that there is no onus or requirement for the Crown to show a material change in circumstances.
83As the appellate court in Aheer held, s. 523(1)(b)(ii) governs revocation of bail pending sentencing, and not s. 523(2).
84Being a supposedly temporary remand until the sentencing hearing, orders under s. 523(1)(b)(ii) are not meant to require a hearing in and of itself. The remand is limited by the fact that the appropriate sentence must be determined “as soon as practicable” after the finding of guilt: Lenart, at para. 48. This means that the Crown is not required to show cause because it has already proven guilt beyond a reasonable doubt and the presumption of innocence is lost.
85As currently drafted, s. 523 does neither provide for an express nor indirect reference to either the Crown or defence having an “onus”. There is no express reference back to s. 515 of the Code. There is no current reference to an offender having the right to make an application to vary his bail post-conviction.6
86That being said, bail revocation sought by the Crown at the conclusion of trial is not automatic under s. 523(1)(b)(ii) (or for that matter under s. 523(2)).
87In my view, where the Crown makes an application to vacate a judicial interim release order after trial, procedural fairness obligates the judge to hear full submissions from the parties on this very issue.
88In considering the question of continued release or detention post-conviction, the trial judge’s reasoned exercise of discretion ought to be based on some analysis into the circumstances of the offender and the commission of the crime, as has come to light throughout the trial. Other considerations may include the real potential for a lengthy jail sentence, potential flight risks and other factors including, but not limited to, those referenced from McIsaac J.’s ruling in M.(D.J.).
89Justice Tilleman’s guidance from BTQ, at para. 25, is also instructive. These considerations also include an assessment of flight risk, public safety, confidence in the administration of justice that still come into play post-conviction. Components of past record, court behavior and nature of the crime can be relevant to flight risk. Whether detention is necessary to protect or keep the public safe, including whether there is a substantial likelihood the accused will re-offend. Finally, reference to the tertiary principles is appropriate; maintaining the public’s confidence in the administration of justice, considering the seriousness of the offence, the overall circumstances and the potential for a lengthy jail term.
90Additionally, consideration can also be made to Hewson J.’s conclusion in FCM, that the voluminous jurisprudence developed under it can also serve as a helpful guide in exercising a trial judge’s discretion under s. 523(1)(b)(ii).
Conclusion:
91As illuminated in these reasons, there is conflicting jurisprudence with regards to this particular issue in Ontario.
92With respect, for all of the aforesaid reasons, I do not adopt the analysis from Green and Tsiga, including their references to the statutory interpretation of s. 523(2), as it pertains to the issue of bail post-conviction.
93Indeed, the loss of the presumption of innocence and the rights engaged in s. 11(e) of the Charter cannot be overstated.
94Subject to prospective judicial interpretation of the recent amendments to s. 523 (2.1) of the Criminal Code, (Bill C-14), at this juncture, the Alberta Court of Appeal’s decision in Aheer is persuasive. For this specific ruling, I find that s. 523(1)(b)(ii) (and not s. 523(2)) is the applicable framework to determine an offender’s status post-conviction, and prior to the imposition of sentence.7
95After having considered the circumstances of the offence and of the offender, the nature of the convictions, the potential for a lengthy term of imprisonment, the public interest in the overall administration of justice, Mr. Davis’ judicial interim release order was vacated and the offender was remanded into custody pending sentence.
A.J. Goodman J.
Date: July 10, 2026
CITATION: R. v. Davis, 2026 ONSC 4029
COURT FILE NO.: CR-25-1126
DATE: 2026/07/10
ontario
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
- and -
MALCOM DAVIS
RULING ON BAIL POST-CONVICTION, SECTION 523
OF THE CRIMINAL CODE
A.J. Goodman J.
Released: July 10, 2026
Footnotes
- ** The recent enactments to s. 523(2.1) as announced by the Federal Government in Bill C-14, to be in effect on July 15, 2026, may fundamentally impact my analysis in these reasons.
- Section 523: “mired by detailed complexity, yet [failing] to convey adequate guidance”: Gary T. Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) at 420.
- In R. v. Lenart (1998), 1998 CanLII 1774 (ON CA), 39 O.R. (3d) 55, the Court of Appeal for Ontario briefly commented that “The trial judge had the authority to remand the accused in custody pending sentence under s. 523(1)(b)(ii) of the Criminal Code. The only restriction on the length of the remand is that the trial judge must determine the appropriate sentence "as soon as practicable" after the finding of guilt.”
- The criteria from R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460 regarding departing from judicial comity includes: the rationale of the earlier decision has been undermined by subsequent appellate decisions (Aheer); and some binding authority in case law or some relevant statute was not considered (M.(D.J.).
- See also R. v. Yassin, [2012] O.J. No. 6222 (C.J.), R. v. Niemi, [2008] O.J. No. 5830 (C.J.), R. v. Nistor, [2011] O.J. No. 5949 (C.J.), R. v. Tariq, [2016] O.J. No. 5386 (C.J.), R. v. Middleton, [2024] O.J. No. 3992 (C.J.).
- Bill C-14, s. (2.1): Despite subsection (2), if the prosecutor brings an application to vacate an order for the interim release of the accused after the accused is, at their trial, determined to be guilty of an offence other than an offence listed in section 469 and before a sentence within the meaning of section 673 is imposed on the accused, the court, judge or justice shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why their detention in custody is not justified under subsection 515(10) by clearly demonstrating that their proposed release plan addresses the risks posed by the accused as they relate to the grounds referred to in that subsection.
- It bears repeating that the very recent amendments (Bill C-14) to s. 523, with the addition of s. 523 (2.1), to come into effect on July 15, 2026, may directly impact my overall analysis, the prevailing jurisprudence and statutory interpretation. However, these reasons reflect the current law at the relevant time.