JUST 1010 Lecture Notes - Lecture 9: Online Petition, Reverse Onus, Recognizance
Introduction
After an arrest or detention, four decisions must be made:
•
Whether to release or continue detention;
1.
How long the detention should be;
2.
Whether or not to compel the acc to appear in court;
3.
And what document to serve to compel the acc in court
4.
Release —refers to the termination of arrest, detention, and custody.
•
An arrested person cannot be held in custody arbitrarily.
-
2 decisions have to be of both adult and young offenders:
•
Is continued detention justified?
1.
Is release mandatory?
2.
Compelling" Vs. "Charging"
Charge —to make a formal allegation by laying an Information.
•
Compel —to force an accused person to appear in court to answer the charge by issuing a document
such as "promise to appear," a "summons," or an "appearance notice."
•
Bail compromises the following 4 steps:
•
Release
1.
Judicial interim release,
2.
A court appearance, and
3.
Part XVI C.C., entitled "compel appearance of accused."
4.
Concept of Bail
Section 11(e) Charter
Governs judicial decision-making.
-
Contains two distinct elements:
-
the right to “reasonable bail,” and
1.
the right not to be denied bail without a “just cause.”
2.
Presumption of Innocence
Section 6 (1) C.C. ensures that a person "shall be deemed not to be guilty of the offence until he is
convicted."
•
Denial of bail has a "detrimental effect" on the presumption of innocence.
-
Objective
To maintain public confidence in the bail system and the justice system as a whole.
-
To create a "properly functioning bail system" with "narrow" and "carefully tailored" rules.
-
To preserve the presumption of innocence and impose pre-trial detention only in limited cases.
-
Concept of RICE
RICE is an informal term, not used in the C.C
-
(R)epetition of the Offence
(Statements, past criminal record, mental condition, etc.)
→
-
(I)dentity of the Arrested Person
(Official documents, verification)
→
-
(C)ourt Appearance
(Past failures to appear, offence severity, and absence of bindin2g factors)
→
-
(E)vidence relating to the offence
(Loss or destruction of evidence)
→
-
RICE fulfilled
Arrested person is not a public safety or fail-to-appear risk.
→
Release is generally mandatory.
→
•
RICE not fulfilled
Arrested person is a public safety or fail-to-appear risk.
→
Continued detention is justified.
→
•
Levels of Release and Detention
Release Documents: Compelling A Court Appearance
Deciding Whether to Charge and Compel
Officers may use their discretion in deciding whether to:
•
Charge the offender and compel a court appearance.
-
Not charge the offender and use an alternative means to solve the problem. This method is referred
to as unconditional release.
-
Goal is to eliminate the worst consequence
▪
Unconditional Release
“Solving the problem.”
•
An unconditional release is not a binding, formal agreement, and it gives the offender no formal legal
assurance that a charge will never be laid.
-
A police officer may later choose to charge the offender.
-
What if you don’t arrest but you want them in Court?
Pre arrest “release”
496 CCC
→
•
Appearance Notice
553 offences
→
Dual Procedure
→
Summary Conviction
→
•
Release Provisions
497 CCC Mandatory Release
Release is mandatory if:
RICE is fulfilled
→
Offence is either:
summary conviction, ora.
dual procedure.b.
→
•
Release from custody by peace officer (CCC)
•
497 (1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence
described in paragraph 496 (a), (b), or (c), peace officer shall, as soon as practicable,
•
release the person from custody with the intention of compelling their appearance by way of
summons; or
(a)
issue an appearance notice to the person and then release them.(b)
Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on
reasonable grounds,
•
that it is necessary in the public interest that the person be detained in custody or that the matter of
their release from custody be dealt with under another provision of this Part, having regard to all the
circumstances including the need to
(a)
establish the identity of the person,(i)
secure or preserve evidence of or relating to the offence,(ii)
prevent the continuation or repetition of the offence or the commission of another offence, or(iii)
ensure the safety and security of any victim of or witness to the offence; or(iv)
that if the person is released from custody, the person will fail to attend court in order to be dealt
with according to law.
(a)
Release Provisions
497 CCC Mandatory Release
Release is mandatory if:
Rise is fulfilled
→
Officer is either
→
-
Summary conviction, or A)
A dual procedure B)
Methods of Release
Appearance notice.
-
The intention of serving a summons subsequent to release.
-
Unconditional release.
-
Justified continued custody.
-
Release Documents: Compelling A Court Appearance
Not Release under 497 CCC
Methods of Release before OIC at station
Intention to serve a summons, Promise To Appear, recognizance, Undertaking, Unconditional
release.
-
Discretionary release —Section 499 C.C.
-
Discretionary release —Sections 503(2) and 503(2.1) C.C.
-
Justified continued custody.
-
Before OIC
Recognizance (498 CCC)
Appear in court or loose $
→
Without $ deposit ($500 max)
→
With $ deposit if lives >200 Km away
→
•
Undertakings (503 CCC)
Appear in court
→
Conditions
Remain, Notify, Abstain Comms, Deposit PP, Booze . . .Etc
○
→
•
If Not Released by OIC
Judicial interim release. (BAIL)
Rules found in s. 515 C.C.
→
-
Information MUST be laid first.
-
“Show cause hearing.”
-
To determine whether the accused person should be released or detained in custody until the trial.
-
Guilt or innocence not the issue.
-
Release Provisions
Section 503(1) C.C. creates rules about when the accused must be taken before a Justice for a bail
hearing.
24 hrs if possible
→
•
Once accused is before a Justice, a bail hearing must be conducted unless the accused pleads guilty
or is charged with a s. 469 C.C. offence, such as murder.
-
469 CCC offences go to a Judge.
•
Adjournment
Used to prepare for the bail hearing.
→
3 Days may be granted before or during bail hearing.
→
Cannot be longer than three clear days w/o consent of the accused
→
Participants in Show Cause Hearing:
Justice
-
Prosecutor
-
Accused
-
Defence
-
Factors Determining Release or Continued Detention
Primary grounds
reasonable grounds for believing that the accused may fail to appear in court.
→
•
Secondary grounds
reasonable grounds for believing that the accused may commit a criminal offence and endanger
the public.
→
•
Onus
•
Onus on prosecutor, usually.
-
Burden of proof
Do primary and/or secondary grounds exist?
→
-
Reverse Onus Situation
•
Burden of proof shifts to the accused.
-
In what circumstances does a reverse onus situation occur?
Already on release
→
Criminal Organization
→
Terrorism
→
Security offences
→
Not Canadian resident
→
Punishable by life under CDSA
→
Others-read 515 CCC
→
-
Outcome of Bail Hearing
Adjournment
•
Release on Undertaking
Without conditions
→
•
Released on Recognizance
With conditions
→
Sureties, Remain, Notify, Abstain Comms, Deposit PP, Booze . .
→
•
Detained “until dealt with according to law”
•
Is appealable.
•
Summary Offence-6months
Indictable-no time limit
READ
25 * knowS.
26 S.
27 * read onceS.
34S.
35 S.
RELATE TO
494 S.
PRE ARREST 496-
MANDATORY RELEASE497-
W9 Release Provisions: Principles of Law Enforcement Report Writing
Thursday,+March+ 15,+2018
7:53+AM
Introduction
After an arrest or detention, four decisions must be made:
•
Whether to release or continue detention;1.
How long the detention should be;2.
Whether or not to compel the acc to appear in court;3.
And what document to serve to compel the acc in court4.
Release —refers to the termination of arrest, detention, and custody.
•
An arrested person cannot be held in custody arbitrarily.
-
2 decisions have to be of both adult and young offenders:
•
Is continued detention justified?1.
Is release mandatory?2.
Compelling" Vs. "Charging"
Charge —to make a formal allegation by laying an Information.
•
Compel —to force an accused person to appear in court to answer the charge by issuing a document
such as "promise to appear," a "summons," or an "appearance notice."
•
Bail compromises the following 4 steps:
•
Release1.
Judicial interim release, 2.
A court appearance, and 3.
Part XVI C.C., entitled "compel appearance of accused." 4.
Concept of Bail
Section 11(e) Charter
Governs judicial decision-making.
-
Contains two distinct elements:
-
the right to “reasonable bail,” and1.
the right not to be denied bail without a “just cause.”2.
Presumption of Innocence
Section 6 (1) C.C. ensures that a person "shall be deemed not to be guilty of the offence until he is
convicted."
•
Denial of bail has a "detrimental effect" on the presumption of innocence.
-
Objective
To maintain public confidence in the bail system and the justice system as a whole.
-
To create a "properly functioning bail system" with "narrow" and "carefully tailored" rules.
-
To preserve the presumption of innocence and impose pre-trial detention only in limited cases.
-
Concept of RICE
RICE is an informal term, not used in the C.C
-
(R)epetition of the Offence
(Statements, past criminal record, mental condition, etc.)
→
-
(I)dentity of the Arrested Person
(Official documents, verification)
→
-
(C)ourt Appearance
(Past failures to appear, offence severity, and absence of bindin2g factors)
→
-
(E)vidence relating to the offence
(Loss or destruction of evidence)
→
-
RICE fulfilled
Arrested person is not a public safety or fail-to-appear risk.
→
Release is generally mandatory.
→
•
RICE not fulfilled
Arrested person is a public safety or fail-to-appear risk.
→
Continued detention is justified.
→
•
Levels of Release and Detention
Release Documents: Compelling A Court Appearance
Deciding Whether to Charge and Compel
Officers may use their discretion in deciding whether to:
•
Charge the offender and compel a court appearance.
-
Not charge the offender and use an alternative means to solve the problem. This method is referred
to as unconditional release.
-
Goal is to eliminate the worst consequence
▪
Unconditional Release
“Solving the problem.”
•
An unconditional release is not a binding, formal agreement, and it gives the offender no formal legal
assurance that a charge will never be laid.
-
A police officer may later choose to charge the offender.
-
What if you don’t arrest but you want them in Court?
Pre arrest “release”
496 CCC
→
•
Appearance Notice
553 offences
→
Dual Procedure
→
Summary Conviction
→
•
Release Provisions
497 CCC Mandatory Release
Release is mandatory if:
RICE is fulfilled
→
Offence is either:
summary conviction, ora.
dual procedure.b.
→
•
Release from custody by peace officer (CCC)
•
497 (1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence
described in paragraph 496 (a), (b), or (c), peace officer shall, as soon as practicable,
•
release the person from custody with the intention of compelling their appearance by way of
summons; or
(a)
issue an appearance notice to the person and then release them.(b)
Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on
reasonable grounds,
•
that it is necessary in the public interest that the person be detained in custody or that the matter of
their release from custody be dealt with under another provision of this Part, having regard to all the
circumstances including the need to
(a)
establish the identity of the person,(i)
secure or preserve evidence of or relating to the offence,(ii)
prevent the continuation or repetition of the offence or the commission of another offence, or(iii)
ensure the safety and security of any victim of or witness to the offence; or(iv)
that if the person is released from custody, the person will fail to attend court in order to be dealt
with according to law.
(a)
Release Provisions
497 CCC Mandatory Release
Release is mandatory if:
Rise is fulfilled
→
Officer is either
→
-
Summary conviction, or A)
A dual procedure B)
Methods of Release
Appearance notice.
-
The intention of serving a summons subsequent to release.
-
Unconditional release.
-
Justified continued custody.
-
Release Documents: Compelling A Court Appearance
Not Release under 497 CCC
Methods of Release before OIC at station
Intention to serve a summons, Promise To Appear, recognizance, Undertaking, Unconditional
release.
-
Discretionary release —Section 499 C.C.
-
Discretionary release —Sections 503(2) and 503(2.1) C.C.
-
Justified continued custody.
-
Before OIC
Recognizance (498 CCC)
Appear in court or loose $
→
Without $ deposit ($500 max)
→
With $ deposit if lives >200 Km away
→
•
Undertakings (503 CCC)
Appear in court
→
Conditions
Remain, Notify, Abstain Comms, Deposit PP, Booze . . .Etc
○
→
•
If Not Released by OIC
Judicial interim release. (BAIL)
Rules found in s. 515 C.C.
→
-
Information MUST be laid first.
-
“Show cause hearing.”
-
To determine whether the accused person should be released or detained in custody until the trial.
-
Guilt or innocence not the issue.
-
Release Provisions
Section 503(1) C.C. creates rules about when the accused must be taken before a Justice for a bail
hearing.
24 hrs if possible
→
•
Once accused is before a Justice, a bail hearing must be conducted unless the accused pleads guilty
or is charged with a s. 469 C.C. offence, such as murder.
-
469 CCC offences go to a Judge.
•
Adjournment
Used to prepare for the bail hearing.
→
3 Days may be granted before or during bail hearing.
→
Cannot be longer than three clear days w/o consent of the accused
→
Participants in Show Cause Hearing:
Justice
-
Prosecutor
-
Accused
-
Defence
-
Factors Determining Release or Continued Detention
Primary grounds
reasonable grounds for believing that the accused may fail to appear in court.
→
•
Secondary grounds
reasonable grounds for believing that the accused may commit a criminal offence and endanger
the public.
→
•
Onus
•
Onus on prosecutor, usually.
-
Burden of proof
Do primary and/or secondary grounds exist?
→
-
Reverse Onus Situation
•
Burden of proof shifts to the accused.
-
In what circumstances does a reverse onus situation occur?
Already on release
→
Criminal Organization
→
Terrorism
→
Security offences
→
Not Canadian resident
→
Punishable by life under CDSA
→
Others-read 515 CCC
→
-
Outcome of Bail Hearing
Adjournment
•
Release on Undertaking
Without conditions
→
•
Released on Recognizance
With conditions
→
Sureties, Remain, Notify, Abstain Comms, Deposit PP, Booze . .
→
•
Detained “until dealt with according to law”
•
Is appealable.
•
Summary Offence-6months
Indictable-no time limit
READ
25 * knowS.
26 S.
27 * read onceS.
34S.
35 S.
RELATE TO
494 S.
PRE ARREST 496-
MANDATORY RELEASE497-
W9 Release Provisions: Principles of Law Enforcement Report Writing
Thursday,+March+ 15,+2018 7:53+AM
Introduction
After an arrest or detention, four decisions must be made:
•
Whether to release or continue detention;1.
How long the detention should be;2.
Whether or not to compel the acc to appear in court;3.
And what document to serve to compel the acc in court4.
Release —refers to the termination of arrest, detention, and custody.
•
An arrested person cannot be held in custody arbitrarily.
-
2 decisions have to be of both adult and young offenders:
•
Is continued detention justified?1.
Is release mandatory?2.
Compelling" Vs. "Charging"
Charge —to make a formal allegation by laying an Information.
•
Compel —to force an accused person to appear in court to answer the charge by issuing a document
such as "promise to appear," a "summons," or an "appearance notice."
•
Bail compromises the following 4 steps:
•
Release1.
Judicial interim release, 2.
A court appearance, and 3.
Part XVI C.C., entitled "compel appearance of accused." 4.
Concept of Bail
Section 11(e) Charter
Governs judicial decision-making.
-
Contains two distinct elements:
-
the right to “reasonable bail,” and1.
the right not to be denied bail without a “just cause.”2.
Presumption of Innocence
Section 6 (1) C.C. ensures that a person "shall be deemed not to be guilty of the offence until he is
convicted."
•
Denial of bail has a "detrimental effect" on the presumption of innocence.
-
Objective
To maintain public confidence in the bail system and the justice system as a whole.
-
To create a "properly functioning bail system" with "narrow" and "carefully tailored" rules.
-
To preserve the presumption of innocence and impose pre-trial detention only in limited cases.
-
Concept of RICE
RICE is an informal term, not used in the C.C
-
(R)epetition of the Offence
(Statements, past criminal record, mental condition, etc.)
→
-
(I)dentity of the Arrested Person
(Official documents, verification)
→
-
(C)ourt Appearance
(Past failures to appear, offence severity, and absence of bindin2g factors)
→
-
(E)vidence relating to the offence
(Loss or destruction of evidence)
→
-
RICE fulfilled
Arrested person is not a public safety or fail-to-appear risk.
→
Release is generally mandatory.
→
•
RICE not fulfilled
Arrested person is a public safety or fail-to-appear risk.
→
Continued detention is justified.
→
•
Levels of Release and Detention
Release Documents: Compelling A Court Appearance
Deciding Whether to Charge and Compel
Officers may use their discretion in deciding whether to:
•
Charge the offender and compel a court appearance.
-
Not charge the offender and use an alternative means to solve the problem. This method is referred
to as unconditional release.
-
Goal is to eliminate the worst consequence
▪
Unconditional Release
“Solving the problem.”
•
An unconditional release is not a binding, formal agreement, and it gives the offender no formal legal
assurance that a charge will never be laid.
-
A police officer may later choose to charge the offender.
-
What if you don’t arrest but you want them in Court?
Pre arrest “release”
496 CCC
→
•
Appearance Notice
553 offences
→
Dual Procedure
→
Summary Conviction
→
•
Release Provisions
497 CCC Mandatory Release
Release is mandatory if:
RICE is fulfilled
→
Offence is either:
summary conviction, ora.
dual procedure.b.
→
•
Release from custody by peace officer (CCC)
•
497 (1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence
described in paragraph 496 (a), (b), or (c), peace officer shall, as soon as practicable,
•
release the person from custody with the intention of compelling their appearance by way of
summons; or
(a)
issue an appearance notice to the person and then release them.(b)
Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on
reasonable grounds,
•
that it is necessary in the public interest that the person be detained in custody or that the matter of
their release from custody be dealt with under another provision of this Part, having regard to all the
circumstances including the need to
(a)
establish the identity of the person,(i)
secure or preserve evidence of or relating to the offence,(ii)
prevent the continuation or repetition of the offence or the commission of another offence, or(iii)
ensure the safety and security of any victim of or witness to the offence; or(iv)
that if the person is released from custody, the person will fail to attend court in order to be dealt
with according to law.
(a)
Release Provisions
497 CCC Mandatory Release
Release is mandatory if:
Rise is fulfilled
→
Officer is either
→
-
Summary conviction, or A)
A dual procedure B)
Methods of Release
Appearance notice.
-
The intention of serving a summons subsequent to release.
-
Unconditional release.
-
Justified continued custody.
-
Release Documents: Compelling A Court Appearance
Not Release under 497 CCC
Methods of Release before OIC at station
Intention to serve a summons, Promise To Appear, recognizance, Undertaking, Unconditional
release.
-
Discretionary release —Section 499 C.C.
-
Discretionary release —Sections 503(2) and 503(2.1) C.C.
-
Justified continued custody.
-
Before OIC
Recognizance (498 CCC)
Appear in court or loose $
→
Without $ deposit ($500 max)
→
With $ deposit if lives >200 Km away
→
•
Undertakings (503 CCC)
Appear in court
→
Conditions
Remain, Notify, Abstain Comms, Deposit PP, Booze . . .Etc
○
→
•
If Not Released by OIC
Judicial interim release. (BAIL)
Rules found in s. 515 C.C.
→
-
Information MUST be laid first.
-
“Show cause hearing.”
-
To determine whether the accused person should be released or detained in custody until the trial.
-
Guilt or innocence not the issue.
-
Release Provisions
Section 503(1) C.C. creates rules about when the accused must be taken before a Justice for a bail
hearing.
24 hrs if possible
→
•
Once accused is before a Justice, a bail hearing must be conducted unless the accused pleads guilty
or is charged with a s. 469 C.C. offence, such as murder.
-
469 CCC offences go to a Judge.
•
Adjournment
Used to prepare for the bail hearing.
→
3 Days may be granted before or during bail hearing.
→
Cannot be longer than three clear days w/o consent of the accused
→
Participants in Show Cause Hearing:
Justice
-
Prosecutor
-
Accused
-
Defence
-
Factors Determining Release or Continued Detention
Primary grounds
reasonable grounds for believing that the accused may fail to appear in court.
→
•
Secondary grounds
reasonable grounds for believing that the accused may commit a criminal offence and endanger
the public.
→
•
Onus
•
Onus on prosecutor, usually.
-
Burden of proof
Do primary and/or secondary grounds exist?
→
-
Reverse Onus Situation
•
Burden of proof shifts to the accused.
-
In what circumstances does a reverse onus situation occur?
Already on release
→
Criminal Organization
→
Terrorism
→
Security offences
→
Not Canadian resident
→
Punishable by life under CDSA
→
Others-read 515 CCC
→
-
Outcome of Bail Hearing
Adjournment
•
Release on Undertaking
Without conditions
→
•
Released on Recognizance
With conditions
→
Sureties, Remain, Notify, Abstain Comms, Deposit PP, Booze . .
→
•
Detained “until dealt with according to law”
•
Is appealable.
•
Summary Offence-6months
Indictable-no time limit
READ
25 * knowS.
26 S.
27 * read onceS.
34S.
35 S.
RELATE TO
494 S.
PRE ARREST 496-
MANDATORY RELEASE497-
W9 Release Provisions: Principles of Law Enforcement Report Writing
Thursday,+March+ 15,+2018 7:53+AM
