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On being arrested and charged with an offence, an individual could be released by a police officer on his own or held for a bail hearing before a judicial officer. There are means along with applicable procedural requirements by which an adult accused can also seek release from custody.

Release by the police

It is possible for the police to release a person arrested for most offences without any need for an appearance in court  by exercising their wide discretionary powers. A peace officer  can release an individual who has been arrested without a warrant for a summary conviction offence, a Crown option offence, or any offence within the absolute jurisdiction of the provincial court. Before  release, the officer can issue an appearance notice prior to releasing the person or under the Criminal Code compel the accused’s appearance in court by a summons.

Release powers of  the “officer in charge” of the police station are broader. Not only does the officer in charge play a role in reviewing a peace officer’s decision not to release, but he or she also has the ability to release a person arrested without a warrant for any offence punishable by imprisonment for five years or less. Besides, the officer in charge can release a person arrested with a warrant endorsed by a justice.  In addition to, releasing an accused unconditionally and seeking a summons, the officer in charge may grant release on a promise to appear or on a recognizance.

It is normal for both a peace officer and an officer in charge to release an accused, unless there are reasonable grounds to believe that the accused will fail to attend court or that detention is necessary in the public interest. Here “public interest” refers to the need to establish the identity of the accused, to secure or preserve evidence, to prevent the continuation or commission of an offence, or to secure the safety of a victim or witness.  Finally, excepting murder, the officer in charge has the discretion to release an accused charged with any offence.

Getting Bail

A crucial feature of the criminal process is the ability to seek and obtain bail. Actually, the right of a person charged with an offence not to be denied reasonable bail without just cause is a cornerstone of the Canadian Charter of Rights and Freedoms (Charter). Interpretation of the words “reasonable bail” by the Supreme Court of Canada means that the terms of release, including the amount set for bail and the restrictions placed on the accused’s liberty, must be reasonable. “Just cause” means that bail only be denied in a narrow set of circumstances, and only when the denial is necessary to promote the proper functioning of the bail system. The trial itself is greatly influenced by the outcome of a bail hearing. The Supreme Court of Canada observed that accused persons detained in custody are more likely to plead guilty or to be found guilty when they proceed with a trial, and are less able to participate in preparing their defence.  Accused persons are generally divided into two groups for the purposes of the judicial interim release provisions, those charged with an offence listed in section 469 of the Code and those charged with any other offence.  In dealing with these two types of accused, there are substantial differences in the procedure involved.

Appearance before a justice

There is a positive obligation, under which police are required to take an arrested person, whom they cannot or choose not to release, before a justice/judge. This must occur as soon as possible and without unreasonable delay, and in any event within 24 hours; or when a justice is not available within the 24 hour period, as soon as possible  thereafter.  This onerous responsibility is not affected in any manner. Even when the accused has not inquired about bail or that the justice does not have jurisdiction to deal with the offence with which the accused is charged.  A failure to abide by the  duty imposed by this provision could amount to a breach of  the Charter. Likewise, a person charged with a non-section 469 offence brought before a justice is entitled to a bail hearing in accordance with section 515 of the Code, even if he or she is being held in custody for some other reason, for instance,  serving a sentence.   As opposed to this, if an accused charged with a section 469 offence is brought before a justice, the justice is to remand the accused in custody. There, the accused is not entitled to an automatic bail hearing, but has to bring an application for release before a judge of the Superior Court of Justice.

Bail hearings for unlisted offences

It is not feasible for either the accused or the prosecutor to immediately proceed with a bail hearing when a person charged with an offence not listed in section 469 is taken before a justice.  Requested by the prosecutor or the accused, a justice can adjourn the proceedings, under Section 516 of the Code , for a period of not more than three clear days.  It could also be for a longer period with the consent of the accused,  and the accused is remanded in custody. A justice can grant an adjournment both prior to and during a release hearing under Section 516.  When following section 516, the justice can make an order prohibiting the accused from communicating directly or indirectly with a victim, witness, or other named person.

While hearing for bail for an accused charged with an offence unlisted in section 469, there is an initial presumption that the justice should order the accused released on an undertaking without conditions unless the prosecutor shows cause why the accused’s detention in custody is justified or why a more onerous form of release ought to be ordered.  It would be seen therefore that the onus is on the prosecutor to show, on a balance of probabilities, why the accused should not be granted the least onerous form of release.

At the bail hearing, a significant amount of information about the accused and the offence(s) with which he or she is charged may be stated.  Some of this information could be inadmissible at the accused’s trial and the publication of this information could compromise the accused’s ability to obtain a fair trial.  Likewise, publicity about information given at a show of cause hearing could have a negative impact on the Crown’s case by further restricting police investigation and showing the evidences of potential witnesses in a bad light.

These concerns are addressed to some extent under Section 517 of the Code by giving the justice the power to delay any broadcast or publication of the bail proceedings until either the end of the preliminary inquiry if the accused is discharged, the end of the trial, or once an accused pleads guilty. This non-publication order has within its ambit “the evidence taken, the information given or representations made and the reasons, if any, given or to be given by the justice.”  Without referring to the reasons for the decision, the media can broadcast or publish the actual decision to release or detain.

If the accused requests an order under section 517, the justice has to make it. Also, the court has a discretion to make a non-publication order on its own initiative or at the request of the prosecutor.

There are controversies on Section 517 because it is subject to attack under section 2(b) of the Charter.  Admittedly the section has been found to infringe the Charter, but it has been upheld as a reasonable limit under section 1 of the Charter.  For proper representation, confidentiality and security of your identity and reputation, contact the lawyers at Levy Zavet PC.