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Difference between revisions of "Criminal Charges (1:IV)"
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The attending officers at the scene of an alleged summary conviction or hybrid offence do not always have cause to arrest the suspect. (See Section 495(2) ''Criminal Code'') When there is no cause to arrest the suspect but the police still intend to forward charges for an offence, they will serve an appearance notice on the accused compelling him or her to appear at a future date and time at a courthouse to face potential charges. (See ''Criminal Code'', s. 496 | The attending officers at the scene of an alleged summary conviction or hybrid offence do not always have cause to arrest the suspect. (See Section 495(2) ''Criminal Code'') When there is no cause to arrest the suspect but the police still intend to forward charges for an offence, they will serve an appearance notice on the accused compelling him or her to appear at a future date and time at a courthouse to face potential charges. (See ''Criminal Code'', s. 496 | ||
:'''NOTE:''' An accused person should note that he or she '''MUST''' attend court as directed in the Appearance Notice, but that sometimes the accused person will not be on the court list as the police might not forward the charges, the Crown might not approve charges or there may be a delay in processing the charges. If an accused person does not see | :'''NOTE:''' An accused person should note that he or she '''MUST''' attend court as directed in the Appearance Notice, but that sometimes the accused person will not be on the court list as the police might not forward the charges, the Crown might not approve charges or there may be a delay in processing the charges. If an accused person does not see their name on the court list on the appearance date they should go to the court registry to show them the Appearance Notice and ask if their they are on any court list. | ||
=== 2. Promise to appear === | === 2. Promise to appear === | ||
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* Tertiary—the detention is necessary to maintain confidence in the administration of justice (includes seriousness of the offence charged and strength of the Crown’s case) | * Tertiary—the detention is necessary to maintain confidence in the administration of justice (includes seriousness of the offence charged and strength of the Crown’s case) | ||
Often during the show cause hearing, the focus becomes the conditions an accused person can be released upon and the adequacy of the accused’s bail plan. A release plan may include: sureties, cash deposit or restrictive conditions such as a curfew or an area restriction. The Crown will usually have specific concerns about an accused’s behaviour. | Often during the show cause hearing, the focus becomes the conditions an accused person can be released upon and the adequacy of the accused’s bail plan. A release plan may include: sureties, cash deposit or restrictive conditions such as a curfew or an area restriction. The Crown will usually have specific concerns about an accused’s behaviour. Previously, the law required conditions of release to be as minimally restrictive on a person’s freedom as possible while still addressing the cause for concern. | ||
Currently, over 50% of inmates in provincial remand centres consist of individuals detained prior to their trial. Pre-trial detention can last as long as 24 months, inmates are held in crowded conditions, and indigenous individuals are overrepresented among them. Furthermore, detention can hurt an accused’s ability to provide a full defence and may lead to induced guilty pleas. Therefore, the bail decision can be life-changing to an individual accused. However, because of the temporary nature of bail and the length of time the court process takes, bail decisions are rarely appealed. | |||
In response to these problems, the Supreme Court of Canada modified the test for judicial interim release in ''R v Antic'', 2017 SCC 27 and ''R v Myers'', 2019 SCC 18. The court emphasized that the accused should be released at the earliest reasonable opportunity and on the least onerous grounds. The test in ''Myers'' requires a bail plan that reduces the risk of the accused re-offending to a reasonable level. There is no longer any requirement to address the risk completely. Furthermore, the courts in ''Myers'' allows for accused to be released from detention in order to receive treatment for mental health conditions and issues with substance abuse; this may help reduce the rate of re-offence and help defence counsel achieve better sentences for these accused. | |||
Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 42nd Parl, 2019, cl 210 (received Royal Assent on June 21, 2019, coming into force on December 18, 2019) [Bill C-75] amended Criminal Code to add sections 493.1 and 493.2 regarding releasing accused that are in custody. In short, the amendment emphasized the rulings in ''Antic'' and ''Myers'', stating that peace officers, justices, and judges should place the highest priority on releasing an accused at the earliest possible opportunity and on the least onerous grounds. Furthermore, section 493.2 obligates peace officers, justices, and judges to give particular attention to the circumstances of aboriginal accused and those accused who belong to vulnerable populations that are overrepresented in the criminal justice system and are disadvantaged in obtaining release. | |||
=== 5. Warrant in the first instance === | === 5. Warrant in the first instance === | ||
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=== 1. The Information === | === 1. The Information === | ||
The “Information” contains the specifics of the charge, including the date of the alleged offence, the name of the accused, and the specific section of the statute allegedly contravened. It guides the entire legal process faced by the accused. See Appendix B for a sample Information. | The “Information” contains the specifics of the charge, including the date of the alleged offence, the name of the accused, and the specific section of the statute allegedly contravened. It guides the entire legal process faced by the accused. See '''Appendix B''' for a sample Information. | ||
==== a) Review the Information ==== | ==== a) Review the Information ==== | ||
The Information should be reviewed to determine what offence the accused has been charged with. Review the appropriate ''Criminal Code'' provisions in an annotated ''Criminal Code'' which often provides quick references to common issues that arise from prosecution under that section of the ''Criminal Code.'' | The Information should be reviewed to determine what offence the accused has been charged with. Review the appropriate ''Criminal Code'' provisions in an annotated ''Criminal Code'' which often provides quick references to common issues that arise from prosecution under that section of the ''Criminal Code.'' | ||
One should review all aspects of the Information to ensure that it has been laid properly. Particularly, ensure that the Information has been laid within six months of the alleged offence on summary conviction offences. Also ensure that the date of the alleged offence and the names of the accused and complainant are correct. | One should review all aspects of the Information to ensure that it has been laid properly. Particularly, ensure that the Information has been laid within six months of the alleged offence on summary conviction offences (this becomes twelve months after December 18, 2019). Also ensure that the date of the alleged offence and the names of the accused and complainant are correct. | ||
==== b) Content of the Information ==== | ==== b) Content of the Information ==== | ||
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==== f) Limitation periods and the Information ==== | ==== f) Limitation periods and the Information ==== | ||
Section 786 of the ''Criminal Code'' states that no proceedings may be initiated in summary conviction offences after six months have elapsed from the time of the alleged offence, except on agreement of the prosecution and the defendant. The date on which proceedings commence is when the Information is laid, therefore, the Information must be laid within the | Section 786 of the ''Criminal Code'' states that no proceedings may be initiated in summary conviction offences after six months have elapsed from the time of the alleged offence, except on agreement of the prosecution and the defendant (twelve months after December 18, 2019). The date on which proceedings commence is when the Information is laid, therefore, the Information must be laid within the limitation period. Indictable offences have no specific statutory limitation period. | ||
=== 2. The Initial Sentencing Position (ISP) === | === 2. The Initial Sentencing Position (ISP) === | ||
The Crown’s Initial Sentencing Position should be reviewed. This will indicate whether Crown is seeking jail time | The Crown’s Initial Sentencing Position should be reviewed. This will sometimes indicate whether Crown is seeking jail time, or it can specify the sentence the Crown is seeking. A request for a more detailed initial sentencing position can be made. See [[Sample Initial Sentencing Position (1:App A) | Appendix A]] for a sample ISP. | ||
=== 3. Report to Crown Counsel (RTCC) === | === 3. Report to Crown Counsel (RTCC) === | ||
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==== d) Is there a possible Charter challenge ==== | ==== d) Is there a possible Charter challenge ==== | ||
Consider whether there is a possible Charter challenge that could result in the exclusion of evidence. Charter challenges include challenges to police searches, arrests, and confessions. (See ''Section | Consider whether there is a possible Charter challenge that could result in the exclusion of evidence. Charter challenges include challenges to police searches, arrests, and confessions. (See ''Section IX'' for information on Charter challenges) | ||
==== e) Are there any other exclusion rules ==== | ==== e) Are there any other exclusion rules ==== | ||
