WDW328.MARCH17.docx

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Department
Woodsworth College Courses
Course
WDW101Y1
Professor
Dena Demos
Semester
Winter

Description
BAIL & GUILTY PLEAS Section 11(3) of the Charter: “Any person charged with an offence has the right not to be denied reasonable bail without just cause” TIED TO PRESUMPTION OF INNOCENCE (because everyone charged with an offence is presumed innocent, so you don’t stay in jail, don’t want innocent people sitting in bail, because when you are denied bail you might stay years between your charge and trial, you might possibly acquitted at the end of trial want to avoid those situations) Why is bail so important? - More likely to be convicted...being denied bail create incentive for people to plead guilty, if you are facing months of pre-trial custody, trial might not be for years and it might be for a minor charge - More likely to receive jail sentence - Restricted access to counsel...constraints on the accused, harder to access lawyer, but if you’re in jail there are only 2 hours per day, very limited access, might not even able to talk on phone, gathering evidence might be more difficult too (e.g. emails) - Limited ability to participate in preparing defence Section 515(1)...where an accused who is charged with an offence other than an offence listed i section 469 is taken before a justice, the justice SHALL, unless a plea of guilty by the accused is accepted ORDER...THAT THE ACCUSED BE RELEASED (judge must release the person w/t any conditions) on giving an undertaking without conditions, UNLESS THE PROSECUTOR...SHOWS CAUSE...WHY THE DETENTION OF THE ACCUSED IN CUSTODY IS JUSTIFIED or why an order under any other provision of this section should be made - presumption that accused person will be released from custody w/t any conditions given to them if they don’t plead guilty, the other starting point is that it is up to the crown to justify/proof why conditions should be imposed or detained *section 469 will keep coming up!! * Must read section 515 from beginning to end before exam!!!!! - justice of peace not a judge, no requirement that they have legal training, political appointments a day or two after charges are laid, little preparation for lawyers to argue for bail, bail is the most informal process, lower standard of proof -each step up the ladder, crown need to prove why more restrictive types of conditions need it LADDER EFFECT Options for release [see ss. 515(1) and 515(2)] a) release with no conditions [s. 515] b) release on recognizance with conditions [s.515 (2)(a)]...e.g. no cellphone c) release on recgonizance with conditions and with sureties (aka surety bail) [s.515(2)(b)]...need a surety a person in the community that will essentially take the place of a jail guard, someone that is responsible who comes to court that they will undertake to court to ensure that this person from now until their trial complies with the conditions of bail, they have to pledge a certain amount of money to do that, surety has to demonstrate they have assets worth the amount of the pledge, amount of bail depends on how serious charge is and the net worth of the person who is being the surety, amount of surety has to be sufficient that they will worry if they lose it thus ensuring that they will take job as surety seriously, the pledge is lost if the bail is breached, crown orders the forfeit the money (can be some or all), or if found that you really did try hard and just can’t prevent bail breach than no money is forfeited, surety has no criminal record and not part of the case and in a relationship with the accused where they can control them (e.g. parents), need someone there is a close relationship where the accused will listen to the surety but not too close where they won’t do what they’re supposed to do when the accused breaches bail d) release on recognizance with conditions and sureties PLUS deposit of cash if accused is not “ordinarily resident” within 200 km of jurisdiction *s. 515(2)(e)+ ; very very rare, only available if the person is not an oridinary resident of 200 km of where the offence was commited, e.g. if you live somewhere else..but you get cash bail back if you don’t breach e) detention ; order that you are actually going to be detained from now until you’re trial JP must reject less restrictive release before imposing more restrictive manner of release, the judge can’t start at detention, has to consider and reject each of the lower less restrictive means before imposing a more restrictive one GROUNDS FOR BAIL s. 515(10)(a) where the detention is necessary to ensure his or her attendance in court (primary ground); if there is a risk where the accused won’t show up for court, that is a ground to detain them, how to we consider that? If its a normal case the crown has the burden to demonstrate there is some concern that the person won’t show up, e.g. breaching bail in pass/ failure to appear before, or have a flight risk (live where there is no extradition treaty and may never come back, travel internationally lots, lots of money elsewhere), if they are likely to show up than they won’t have satisfy it on the primary ground (b) where the detention is necessary for the protection of the public (secondary ground), including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused, will, if released from custody, commit a criminal offence or interfere with the admin. of justice ; avoid any interference or intimidation of any witness, if there is any chance/evidence that an accused if released would somehow try to obstruct justice by threatening witness/convince witness not to testify/killing witness, etc., or obstruct justice, that’s one part of the protection branch, the other is if they are likely to commit another offence, 1) ensuring admin of justice in that case, 2) ensure accused person will not commit another offence if on bail..how do we look at it? Evidence of past attempts to threaten witnesses, have been charged with other offences while on bail etc... (c) on any other just cause being shown (CROSS IT OUT, struck out by SCC ) and without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment (tertiary ground) ; about how is the public react if this person gets release on bail, what would the reasonable person think, Crown can show that it is an overwhelming crown case (they have many evidence against the accused) - all on a balance of probabilities CONDITIONS OF BAILS - have to be on the basis on one of the three grounds for someone to be detained/conditions to be imposed s. 515(2) Where the justice does not make an order under (1) [release without conditions], he shall, unless the prosecutor shows cause why the detention of an accused is justified order that the accused be release (a) on his giving an undertaking with such conditions as the justice directs; ...if you are release under conditions under s. 515(4) The justice may direct as conditions under subsection (2) that the accused shall do any more or more of the following things as specified in the order (the condition on bail have to be connected to the reason why you wouldn’t show up for bail); a) report at time to be stated in the order to a peace officer.. (can be on phone/in person etc., periodic basis check up with officer...primary ground concern, means you’re still engaged in process and still around) b) remain within a territorial jurisdiction specified in the order; (e.g. not leaving Canada/gta etc., restrict mobility to satisify the primary ground that you will show up for trial) (c) notify the peace officer...of any charge in his address or his employment; (directed at primary ground) (d) abstain from communicating directly or indirectly with any victim, witness or other person identified in the order, or refrain from going to any place speicifed in the order (secondary ground, maintain integrity of prosecution, doesn’t restrict what your lawyers can do...indirect message could be contacting their friends to contact them) (e) where the accused is the holder of a passport, deposit his passport (primary ground concern, attached with it would be not apply for any other transportation documents) (e.1) comply with any other conditions specified in the order that the justice considers necessary to ensure the safety and security of any victim or witness; (secondary ground consideration, don’t want you do anything that could cause victim/witness not to show up) (f) comply with such other reasonable conditions specified in the order as the justice considers desirable - s. 515 (4)(f) gives JP enormous power to impose conditions that can severely restrict someone’s liberty...there’s been no prove yet, but their liberty is significantly restricted) JPs have enormous discretion to impose conditions - geographic limits - house arrest (can be a curfew, or just be in your house all the time...primary and secondary [less able to commit other offences] and tertiary [really big restriction on someone’s liberty, answer to not wanting serial killers walking on the streets+ ground concerns) - attend for counselling (taking medical treatment CANNOT, can refuse medical treatment , NO OBLIGATION to take any medication EVER, even if you have a serious mental illness that causes you to commit criminal offences, court cannot make you take medication even if it would satisfy second
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