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Difference between revisions of "Criminal Charges (1:IV)"
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→4. Judicial interim release (bail)
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A person who has been charged with an offence may be arrested by the police and not be released on a promise to appear. This can occur if the police are seeking conditions on the promise to appear which the accused does not agree to or if the police determine that in its opinion the accused ought not to be released from custody. | A person who has been charged with an offence may be arrested by the police and not be released on a promise to appear. This can occur if the police are seeking conditions on the promise to appear which the accused does not agree to or if the police determine that in its opinion the accused ought not to be released from custody. | ||
A detained person must be brought before either a judge or a justice of the peace without unreasonable delay or where a justice is not available within a period of 24 hours after the person has been arrested, the person shall be taken before a Justice as soon as possible. (see | A detained person must be brought before either a judge or a justice of the peace without unreasonable delay or where a justice is not available within a period of 24 hours after the person has been arrested, the person shall be taken before a Justice as soon as possible. (see Criminal Code, s 503). When the accused is brought before a Judge or a justice of the peace and the Crown is seeking the continued detention of the accused the onus is on the Crown to show cause as to why the continued detention of the accused is necessary (see Criminal Code, s 515(10)), except for the offences listed under section 515(6) of the Criminal Code. Section 515(6) includes very serious offences such as murder and treason and less serious matters where special considerations apply such as when violence was allegedly used against an intimate partner and the accused has been previously convicted of an offence. For these offences, the onus is reversed and it is on the accused to show why they can be safely released on bail. | ||
There are three ways in which the detention of a person charged with a criminal offence can be justified under section 515(10) of the Criminal Code. In the case law these are usually referred to as: | There are three ways in which the detention of a person charged with a criminal offence can be justified under section 515(10) of the Criminal Code. In the case law these are usually referred to as: | ||
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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 | 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. This is particularly the case where an accused is in a reverse onus. A release plan may include sureties, cash deposit or restrictive conditions such as a curfew or an area restriction. Sureties can only be imposed when less onerous forms of release are inadequate. 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. | 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. | ||