Full Text:Volume 4

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Contents

Volume IV: Procedure and Practice

Introduction to Procedure and Practice

Preface

This text was written as a reference on the procedure for prosecuting and defending Criminal Code offences. The audience for this text will be mostly criminal law practitioners, police officers, and law students, including those who need a convenient way to look up principles and case law. Where possible there are links to cited cases on CanLII for ease of reference.

As of this writing this text remains a work in progress. Errors and omissions should be expected and so it is always recommended that source materials be consulted to confirm the contents of these materials.

Organization of the Section

This section is grouped into three main parts. It is meant to cover all aspects of procedure from the point of initial investigation by police, including arrest and search powers, remedies for charter breaches during investigations, through to bail, which completes the first part. The second part reviews the duties of counsel in preparing for trial, most importantly the right to disclosure. The final part, and biggest, covers many areas of law beginning with the form of charges, pleas, and elections. Motions available before and during trial are then covered. The section also covers the law of preliminary inquiries and trial, focusing on each step of a trial as well as special consideration for jury trials. The last portion of the part involves appeals and cases involving the special procedures around those with mental disorders.

Example Process

Case Flow.png

Arrest, Detention and Release

Arrest and Detention

Introduction

The police powers of detention and arrest are some of the most important powers available to a peace officer in their investigation of criminal activity. It is also some of the most invasive powers upon a person's liberty. This is a classic issue of procedural law that circumscribes the peace officers authority in these matters.

These chapters cover not only the powers of police to detain or arrest, but also the right a person has when the police engage in such conduct and remedies for breaches of those rights.

The transition from investigative detention to arrest and search is a fluid and dynamic process in situations such a traffic stop. It is not to be segmented into discrete parts.[1]

In general terms, the law should not "unduly hamper" the police in criminal investigations.[2]

State Agency
Arrest and detention by private security on the basis of committing a criminal offence and then delivery to the police does not amount to state conduct.[3]

  1. see R v Schrenk (C.A.), 2010 MBCA 38 (CanLII), 255 Man.R. (2d) 12, per Steel JA
    R v Amofa (R.), 2011 ONCA 368 (CanLII), 282 O.A.C. 114, per Blair JA at para 19
  2. R v Hart, 2012 NLCA 61 (CanLII), per Barry JA appealed to 2014 SCC 52 (CanLII), per Moldaver J
  3. R v Dell, 2005 ABCA 246 (CanLII), per Fruman JA and Cote JA
    See also Charter Applications#State Agent

Topics

See Also

Investigative Detention

General Principles

See also: Reasonable Suspicion

The police have a common law right to detain people for investigative purposes. The investigation must be based on a "reasonable suspicion that the particular individual is implicated in the criminal activity under investigation" for it to be considered lawful.[1]

Police are not permitted to detain anyone for the purpose of "ferreting out criminal activity" or to determine if someone is "up to no good". There must be "particularized" suspicion relating to specific criminal activity.[2]

The right against arbitrary detention does not extend to a free-standing right to flee.[3]

Requirements for Detention
The detention must be in relation to a suspected (1) "recent or on-going criminal offence" that is (2) connected to the detainee.[4] The crime must be known by the officer. It is not sufficient if the crime is merely suspected.[5]

Sufficiency of Belief[6]
An officer's "grounds to believe" an offence has been committed will fall short of being "objectively reasonable and probable" allowing for an arrest. If the officer instead has a "reasonable suspicion" that the suspect was involved in a criminal offence, it may be enough to justify investigative detention.[7]

Duration of Power
Investigative detention is permissible only so long as it is "reasonably necessary" in the "totality of the circumstances".[8] What is reasonably necessary will depend on the "nature of the situation" such as:[9]

  • intrusiveness of the detention
  • Nature or seriousness of the offence,
  • complexity of the investigation,
  • any immediate public or individual safety concerns,
  • the ability of the police to continue the investigation without continuing the detention of the suspect,
  • the lack of diligence of the police,
  • the lack of immediate availability of investigative tools,
  • the information known to the police about the suspect or the crime, and
  • the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope.

Appellate Review
Whether someone was unlawfully detained under s. 9 of the Charter is a question of law and is reviewable on a standard of correctness.[10]

  1. R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59
  2. R v Yeh, 2009 SKCA 112 (CanLII) at para 75 per Richards JA ("It is, of course, well established that the police do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity. More particularly, they may not conduct an investigative detention to determine whether an individual is, in some broad way, “up to no good.” In order to justify an investigative detention, the police suspicion must be particularized, i.e. it must relate to specific criminal wrongdoing.")
  3. R v Jackson, 2011 ONSC 5516 (CanLII), at paras 62 to 64
  4. Mann, supra at para 34
    R v Bramley 2009 SKCA 49 (CanLII) at
  5. Bramley, ibid. at para 29 to 34
  6. see also Reasonable Suspicion
  7. R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] O.J. No. 3754 (S.C.J.) - summary of rules of arrest and detention
    R v D.L.W., 2012 BCSC 1700 (CanLII) at para 31
  8. R v Clayton, [2007] 2 SCR 725, 2007 SCC 32 (CanLII)
  9. Clayton, ibid.
    R v Barclay, 2018 ONCA 114 (CanLII), per Hoy ACJO at para 31
  10. R v Shepherd at para 20

Right Against Arbitrary Detention

See also: Warrantless Arrests#Right Against Unlawful Arrest

Section 9 of the Charter prohibits arbitrary detention. Under the header "Detention or imprisonment" the Charter states:

9. Everyone has the right not to be arbitrarily detained or imprisoned.


CCRF

Purpose of Charter Right
The "purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference"[1] Thus "a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9"[2]

Burden of Proof
The burden is upon the applicant to prove that the accused was "detained" within the meaning of s. 9 which must be proven on a balance of probabilities.[3]

"Arbitrary"
Detention is "arbitrary" where it "bears no relation to, or is inconsistent with the law which founds the state action" under common law or statute.[4]

The term "arbitrary" should not be considered distinguishable from "unlawful".[5]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J, at para 20
  2. Grant, ibid. at para 55
  3. R v Bush, 2010 ONCA 554 (CanLII), (2010), 259 CCC (3d) 127 at para 74 (Ont. C.A.)
    R v B.(L.) 2007 ONCA 596 (CanLII), (2007), 227 CCC (3d) 70 at para 60 (Ont. C.A.)
  4. R v Whipple, 2016 ABCA 232 (CanLII) leave refused
    R v Vuozzo, 2013 ABCA 130 (CanLII) leave refused
  5. Grant, supra ("Earlier suggestions that an unlawful detention was not necessarily arbitrary... have been overtaken by Mann")
    c.f. Whipple, supra at para 47 ("...the framers of the Charter can be taken to have understood the distinction between “illegal” and “arbitrary”. ... it is hard to believe that the framers of the Charter thought “illegal” and “arbitrary” were identical notions.")

Types of Detention

A detention is where a "state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away." This can include "any form of 'compulsory restraint'".[1]

A person becomes detained where he "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist".[2]

Detention is determined on an objective test: "having regard to the entire interaction, with the actions of the police cause a reasonable person in the position of the suspect to conclude that he or she is not free to go, and must comply with the directions of the police"[3]Factors to consider include the "circumstances of the encounter, the nature of the police conduct in the particular characteristics or circumstances of the individual."[4]

A person can be detained physically or psychologically.

Psychological Detention
Psychological detention is where "the individual has a legal obligation to comply wit hthe restrictive request or demand, or a reaonsalbe person who conclude ...that he ... had no choice but to comply".[5]

A person who is delayed or kept waiting by police is not necessarily psychologically detained.[6]

Psychological detention has three elements:

  1. a police direction or demand;
  2. the individual’s voluntary compliance with the direction or demand resulting in a deprivation of liberty or other serious legal consequences; and
  3. the individual’s reasonable belief that there is no choice but to comply[7]

Detention by police does not continue subsequent to release on terms of bail, and so entitlements such as the right to silence do not apply.[8]

The purpose for detention can have concurrent reasons, such as conducting traffic enquiries while making observations of drug related offences.[9]

An officer cannot detain a suspect on the basis of a hunch.[10]

  1. R v Grant, 2009 SCC 32 (CanLII), 2009 SCC 32 at para 25
  2. Grant at para 25
    R v Therens, at p. 644
  3. R v B.S., 2014 BCCA 257 (CanLII)
  4. BS, ibid.
  5. Grant, supra at para 44
  6. R v Mann, 2004 SCC 52 (CanLII) at p. 19
    R v B.S., supra at para 16, 31

  7. R v Grant, 2006 CanLII 18347, (2006), 209 CCC (3d) 250 at para 8 and 28 (ONCA)
    R v Nesbeth, 2008 ONCA 579 (CanLII) at para 15-17
    R v Harris, 2007 ONCA 574 (CanLII) at para 17
    R v Suberu, 2009 SCC 33 (CanLII), (2009), 245 CCC (3d) 112 at paras 23-35
  8. R v Earhart, 2011 BCCA 490 (CanLII)
  9. R v Harding 2010 ABCA 180 (CanLII) at para 18
    R v Yague, 2005 ABCA 140 (CanLII), 371 AR 286 at paras 7 - 9
    R v Nolet, 2010 SCC 24 (CanLII)
    R v Hugh, 2014 BCSC 1426 (CanLII) - Police may have dual purpose in performing a lawful stop
  10. R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59 at paras 34-35
    R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494 at para 20

Public Encounters

Stopping a person will not always amount to detention. [1] Not "every stop for purposes of identification, or even interview" will be a detention.[2] It is only where there is either physical restraint or police direction. [3]

An officer may only stop a person for "legal reasons". There must be a lawful reason for stopping a person such as in a motor vehicle situation to check their license and insurance, sobriety and fitness of the vehicle.[4]

A "preliminary encounter" between an officer and the public where identification is requested does not amount to a detention.[5] The officer needs no grounds at all to ask such questions.[6]

There is generally a presumption that "preliminary non-coercive questions", such as requests for identification, are not a form of detention.[7] The line will often be crossed once more "coercive" steps are taken.[8]

Detention will arise where there is a "significant deprivation of liberty" that is "focused", as opposed to simply a "delay” arising from “exploratory” questioning.[9]

A simple pat-down will not necessarily amount to a detention.[10]

  1. R v Grafe, 1987 CanLII 170 (ON CA)
    R v Hall, 1995 CanLII 647 (ON CA), (1995), 22 O.R. (3d) 289
  2. R v Mann, [2004] 3 SCR 59, 2004 SCC 52 (CanLII)
  3. R v Grant 2009 SCC 32 (CanLII) at para 30
  4. R v Ladouceur (2002), 165 CCC (3d) 321, 2002 SKCA 73 (CanLII)
  5. R v Jackson, 2011 ONSC 5516 (CanLII), at para 49
    R v Grafe
    R v Hall at 295 (cited to OR)
    R v Grant, 2006 CanLII 18347 (ON CA), (2006), 209 CCC (3d) 250 at paras 13 and 29 (Ont. C.A.)
    R v Harris 2007 ONCA 574 (CanLII), (2007), 225 CCC (3d) 193 at para 42 (Ont. C.A.) per Doherty JA.
  6. R v Grafe at pp. 271 and 274
  7. Jackson at para 51
    Suberu at paras 23 to 35
  8. Jackson at para 51
  9. Jackson at para 52
    Suberu at paras 23 to 35
  10. R v Simmons, [1988] 2 SCR 495, 1988 CanLII 12 (SCC)

Questioning

An officer may only ask questions that are justifiable in the situation.[1] This would depend on the context of the questioning. In a motor vehicle stop, an officer may only ask questions regarding the legality of the operation of the motor vehicle. Anything beyond that requires reasonable grounds before engaging in the questions.[2] Any evidence obtained by questions that do law relate to the situation and do not have reasonable grounds will violate s. 8 and 9 of the Charter.[3]

Police questioning a young accused for the purpose of forming grounds to administer the roadside screening test need not comply with s. 146 of the YCJA requiring police to wait for counsel or adult to attend.[4]

  1. R v Ladouceur, 2002 SKCA 73 (CanLII), (2002), 154 CCC (3d) 321
  2. Ladouceur
  3. R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615 - an investigation that went beyond issues of highway safety violated Charter
  4. R v P.D. 2009 CanLII 18220 (ON SC) at para 28

Answering Questions

There is no legal duty upon a person to identify himself to a police officer in every situation.[1]

It is well understood that merely asking for ID alone does not amount to detention.[2]

There should be a questioning of suspected criminal activity that results in a "focused interrogation amounting to detention".[3]

Where the obligation to answer questions, such as those related to identity, then the failure to do so may result in a charge of Obstruction of a Peace Officer under s. 129 of the Criminal Code.

The compelled attendance to the principal's office is not a detention.[4]

  1. R v Moore, 1978 CanLII 160 (SCC), [1979] 1 SCR 195, (1978) 24 NR 181 (SCC)
    see also Rice v Connelly, [1966] 2 ALL E.R. 649 (House of Lords)
  2. R v Frank, 2012 ONSC 6274 (CanLII) at para 47
  3. R v Suberu 2009 SCC 33 (CanLII)
  4. R v M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 SCR 393

Interview

Whether a request to attend for a formal interview is a detention within the meaning of section 9 of the charter Will depend upon the "constellation of circumstances".[1]

Consideration will be upon what was stage of the investigation and what was the objective of questioning.[2]

Detention will be found where the police have decided that "the accused was the perpetrator or involved in its commission" or where "the questioning was conducted for the purpose of obtaining incriminating statements from the accused".[3]

Questions of a "general nature" will lean in favor of there being no detention.[4]

  1. R v Moran, 1987 CanLII 124 (ON CA)
  2. Moran at page 259
  3. Moran
  4. Moran

International Borders

Routine questioning of a person during secondary screening at an international border is not a detention within the meaning of s. 10(b) of the Charter.[1]

  1. Dehghani v Canada, (M.E.I.), 1993 CanLII 128 (SCC), 1 SCR 1053, per Iacobucci J, at 1074

Motor Vehicle Stops

A vehicle stop is a form of detention.[1] This includes waiting for a breathalyzer test pursuant to the breathalyzer demand or the taking of blood samples pursuant to a blood sample demand.[2]

There are generally five reasons for which police may be engaged in random stops of vehicles:[3]

  • check for fitness to drive
  • check ownership of vehicle
  • check for valid licence
  • check for valid insurance or
  • check for impaired driving

All provincial Highway safety Acts authorize police to perform some from of detention.[4] Investigating a Motor Vehicle Act violation does not permit the officer to take the detained person into the police vehicle even where safety may be a concern.[5]

Dual purposes in random traffic stops are permissible in some circumstances.[6]

Taking of ID Card
The taking of a government ID card in order to conduct a query of police databases may be a form of psychological detention.[7]

  1. R v Brookwell, 2008 ABQB 545 (CanLII) at para 29, citing R v Orbanski & Elias 2005 SCC 37 (CanLII), at para 31
  2. R v Harder, 1989 CanLII 2857, 49 CCC (3d) 565 (BCCA)
    R v Greene, 1991 CanLII 6874 (NL CA), [1991] N.J. No. 12 , 62 CCC (3d) 344 (Nfld. C.A.)
  3. This will depend on the powers granted by the provincial motor vehicle legislation
  4. ON: Highway Traffic Act, RSO 1990, c H.8
    QC: Highway Safety Code, CQLR c C-24.2
    SK: The Traffic Safety Act, SS 2004, c T-18.1
    NB: Highway Act, RSNB 1973, c H-5
    NL: Highway Traffic Act, RSNL 1990, c H-3
    PEI: Highway Traffic Act, RSPEI 1988, c H-5
    NS: Motor Vehicle Act, RSNS 1989, c 293
    AB: Traffic Safety Act, RSA 2000, c T-6
    BC: Motor Vehicle Act, RSBC 1996, c 318
    MB: The Highway Traffic Act, CCSM c H60
  5. R v Timmer, 2011 ABQB 629 (CanLII)
  6. R v Pham, 2016 ONCA 258 (CanLII), at para 7
    R v Jensen, [2015] O.J. No. 3761 (C.A.)(*no CanLII links) , at para 8 leave refused [2015] SCCA No 390
    R v Shipley, 2015 ONCA 914 (CanLII), at paras 3-7
    R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, at paras 37-40
  7. R v Loewen 2018 SKCA 69 (CanLII)

Safety/Random Traffic Stops

Random traffic check stops are prima facie violations of right to be free from arbitrary detention, however, have often been declared justifiable pursuant to s. 1 of the Charter. [1]

Random stops of persons for "reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle"[2]

Random stop programs that are used to investigate for any number of offences, providing for a "comprehensive check for criminal activity", are flawed and cannot permit detention for any purpose at all.[3]

These programs must "not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search".[4] The checks should not extend beyond their primary purpose "to check for sobriety, licenses, ownership, insurance and the mechanical fitness of cars."[5]

Random stops for the purpose of enforcing provincial legislation are suggested as being unconstitutional.[6]

A passenger of a vehicle detained at a traffic stop is not detained within the meaning of s. 9 of the Charter. They are merely a bystander and do not have to comply with the officer's request unless required under the provincial motor vehicle Act.[7]

  1. R v Hufsky, 1988 CanLII 72, [1988] 1 SCR 621
    R v Ladouceur, 1990 CanLII 108, [1990] 1 SCR 1257
    R v Mellenthin, 1992 CanLII 50 (S.C.C.), [1992] 3 SCR 615
    R v Simpson (1993), 79 CCC (3d) 482 (Ont. C.A.), 1993 CanLII 3379 (ON CA) R v Nolet, 2010 SCC 24 (CanLII) (a "random vehicle stop on the highway is, by definition, an arbitrary detention")
  2. Nolet, ibid. at para 25
  3. R v Nolet referencing R v Ladouceur, 2002 SKCA 73 (CanLII)
  4. Mellenthin, supra at para 20
  5. Mellenthin, supra at para 20
  6. R v Stengler, 2003 SKPC 119 (CanLII), - detention under the Fisheries Act (Sask)
  7. R v Mooiman and Zahar, 2016 SKCA 43 (CanLII) at paras 21 to 22
    R v Hebrada-Walters, 2013 SKCA 24 (CanLII) at paras 19-26
    R v Ramos, 2011 SKCA 63 (CanLII) at para 24

Perimeters and Checkpoints

It is possible to stop persons at a roadblock set-up after a serious reported crime, even where the person does not match the description.[1]

  1. R v Clayton, [2007] 2 SCR 725, 2007 SCC 32 (CanLII)

Rights Upon Detention

Right to be Informed of Reasons

Right to Counsel

See also Right to Silence and Right to Counsel

Upon being detained an officer must tell the detainee of their right to counsel.[1]

The obligation is engaged immediately upon detention, subject to any exceptions such as exigent circumstances or officer safety.[2]

  1. R v Manninen, [1987] 1 SCR 1233, 1987 CanLII 67 (SCC)
  2. R v Suberu, [2009] 2 SCR 460, 2009 SCC 33 (CanLII)

Search Incident to Detention

Duration of Detention

An office who is not detaining or no longer wishes to detain the suspect must clearly communicate to the suspect that they are free to go.[1]There must be both an objective and subjective belief on the part of the suspect that they are still detained for there to be an unlawful detention. [2]

Detention that last beyond what is necessary may violate s. 9 for arbitrary detention.

The decision to detain a person overnight when arrested for impaired driving can result in a violation of section 9 of the charter with the remedy of a stay of proceedings under section 24 (1).[3]

Duration in Holding Cells
Police have statutory authority to hold someone after arrest for up to 24 hours.[4] However, holding an accused cells after arrest, beyond what would be legitimately necessary has resulted in a violation of s. 9 and may permit a stay of proceedings.[5]

  1. R v Tran, 2010 ABCA 211 (CanLII) at para 30
  2. Tran
  3. e.g. Holbrook, 2008 SKPC 133 (CanLII)
  4. see Initial Post-Charge Detention
  5. e.g. R v Poletz, 2014 SKCA 16 (CanLII) - holding in cell for 12 hours due to "convenience" or "lack of resources" violated s. 9, but stay order was overturned

De Facto Arrest

An investigative detention can be of such duration that it becomes a de facto arrest.[1]

  1. R v Greaves, 2004 BCCA 484, 189 CCC (3d) 305 at para 37 ("The detention must also be reasonably necessary in all the circumstances. Iacobucci J. indicated that, generally, this means an investigative detention will be “of brief duration” (¶ 22) and cannot become a “de facto” arrest (¶ 35)")
    R v Strilec, 2010 BCCA 198 (CanLII), [2010] BCJ No. 699
    R v Orr, 2010 BCCA 513 (CanLII), [2010] BCJ No. 2576
    R v Madore & Madeira, 2012 BCCA 160 (CanLII)
    R v Trieu, 2010 BCCA 540 (CanLII)

See Also

Warrantless Arrests

Introduction

See also: Compelling the Accused to Attend Court, Release by Police, and Arrest Procedure

Arrest.png

Power to Arrest

Where there is no warrant for a person's arrest, a peace officer is governed by section 495:

Arrest without warrant by peace officer
495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII [Miscellaneous, s. 841 to 849] in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) [Duty Not to Arrest on Public Interest Grounds]...
Consequences of arrest without warrant
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).


R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.


CCC

A police officer can arrest where:

  1. there is reasonable grounds a person has committed an indictable offence;
  2. there is reasonable grounds a person is about to commit an indictable offence;
  3. a person is committing an indictable offence; or
  4. a person has a warrant out for his/her arrest.

There is limited power to arrest where the accused is found committing a summary offence and it is necessary to establish the accused's identity, among other things.[1]

There is also a common law power for peace officers to arrest without a warrant where the officer has an honest and reasonable belief that there is a breach of the peace.[2]

Section 495 (1)(b) does not require the officer to "rule out potential innocent explanations" to his observations.[3] The formation of reasonable grounds does not require a prima facie case.[4]

  1. Moore v The Queen, [1979] 1 SCR 195 1978 CanLII 160 (SCC), per Spence J
  2. Hayes v Thompson 1985 CanLII 151 (BC CA), (1985), 18 CCC (3d) 254, per Hutcheon JA
    Brown v Durham (Regional Municipality) Police Force, [1998] O.J. No. 5274, 1998 CanLII 7198 (ON CA), per Doherty JA
    R v Collins, 2012 CanLII 26587 (NL PC), per Orr J
  3. R v MacCannell, 2014 BCCA 254 (CanLII), per Garson JA at para 46
  4. MacCannell, ibid.

Duty Not to Arrest on Public Interest Grounds

495.
...
(1) [Powers of warrantless arrest]...
Limitation
(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553 [Absolute jurisdiction offences],
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction [i.e. hybrid offences], or
(c) an offence punishable on summary conviction [see list of summary offences],

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

(3) [arrests under 495 deemed lawfully] ...
R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
[annotation(s) added]


CCC

Related to this duty, s. 497 imposes a duty to release an arrested person which applies the same consideration.

The failure to properly consider factors in favour of release may be grounds to find arbitrary detention.[1]

  1. see R v Baker (1988), 88 NSR (2d) 250 (NSCA)(*no CanLII links)
    R v Cayer (1988), OJ No. 1120 (ONCA)(*no CanLII links)

Right Against Unlawful Arrest

See also: Investigative Detention#Right Against Arbitrary Detention

Section 9 of the Charter prohibits arbitrary detention. Under the header "Detention or imprisonment" the Charter states:

9. Everyone has the right not to be arbitrarily detained or imprisoned.


CCRF

Purpose
The "purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference"[1] Thus "a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9"[2]

Burden
The burden is upon the applicant to prove that the accused was "detained" within the meaning of s. 9 which must be proven on a balance of probabilities.[3]

The burden then moves onto the Crown to establish that a warrantless arrest was legal and not in violation of s. 9 of the Charter.[4]

Standing
An accused arrested on grounds that included evidence obtained through the breach of a third party's Charter rights does not have standing to challenge the third party's rights.[5] The only remedy in such a situation would be in an abuse of process application.[6]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ at para 20
  2. Grant, ibid. at para 55
  3. R v Bush, 2010 ONCA 554 (CanLII), (2010), 259 CCC (3d) 127, per Durno J at para 74
    R v B.(L.) 2007 ONCA 596 (CanLII), (2007), 227 CCC (3d) 70, per Moldaver JA at para 60
  4. R v Murphy, 2018 NSSC 191 (CanLII), per Rosinski J at para 4
  5. R v Todd, 2015 BCSC 680 (CanLII), per Rogers J R v Tran, 2016 BCPC 159 (CanLII), per Lamperson J at paras 46 to 49
    C.f. R v Brown, 2014 BCSC 1665 (CanLII), per Funt J
  6. Tran, ibid. at para 46

Reasonable and Probable Grounds

See also: Reasonable and Probable Grounds

An arresting officer must have reasonable and probable grounds to make the arrest. Those grounds must be subjectively held by the officer and must be reasonable.[1] Thus, the analysis considers both an objective and subjective component.[2]

An arresting officer is not required the same scrutiny as a justice of a peace would need to be in considering a search warrant.[3]

Objective Requirement
The objective component asks whether the "existence of objectively reasonable grounds for arrest requires that a Court consider whether a reasonable person would find reasonable and probable ground for arrest". This reasonable person must be "in the shoes" of the officer, taking into account "training and experience".[4]

The analysis is "approached as a whole" looking at the "cumulative effect" of all the evidence known at the time.[5]

Timing When Grounds are Formed
Police cannot arrest first and then determine after the fact whether the accused had a connection with their investigation.[6]

The reasonableness of an officers actions is based on what was known to them prior to acting, regardless of its accuracy and completeness. The court may take into account the nature of the power being exercised in its context. The dynamics of an arrest will vary in different circumstances and will sometimes need to be decided upon quickly.[7]

Sources
The officer may base his belief upon assumptions or secondary sources. However, the belief cannot be only a hunch. The circumstances must be sufficient to convince a reasonably fair-minded person put in the same position as the officer that the grounds for his or her belief are reasonable. The facts must not be considered piecemeal but in a holistic manner.[8]

Foundation of Belief
A conclusory statement from one officer to another, such as “a drug transaction has taken place ”, will not support an objective finding of reasonable and probable grounds for an arrest.[9]

Sharing of Reasonable Belief Between Officers
The arresting officer can safely assume grounds exist where he is directed by another officer to arrest the accused.[10] It is the officer who has formed the grounds who decides on whether to arrest a person. They do not need to be the one performing the arrest and the arresting officer may rely on the assessment of that officer.[11]

Multiplicity of Beliefs
A police office can have more than one believe and objective in doing a search incident to arrest as long as it is objectively justifiable.[12]

Sufficiency of Investigation
An arrest may be invalid where the investigator failed to gather sufficient information to form grounds by abbreviating their investigation.[13]

The police observation of two men exchanging an unknown object, without anything more, does not meet the standard of reasonable suspicion to detain or reasonable and probable grounds to arrest.[14]

Timing at Which Grounds are Formed
Objective reasonableness is determined on the "factual matrix that existed at the time the arrest was made". Other information not known to the arresting officer is not relevant.[15]

  1. R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, per Cory J at pp. 250-1
  2. Storrey, ibid.
    R v Grotheim, 2001 SKCA 116 (CanLII), per Cameron JA
    R v McClelland, 1995 ABCA 199 (CanLII), (1995), 165 A.R. 332 (C.A.), per McFadyen JA (2:1) at para 21
    R v Juan, 2007 BCCA 351 (CanLII), per Thackray JA, at para 27
    R v Phung 2013 ABCA 63 (CanLII), per curiam
  3. see R v Polashek, 1999 CanLII 3714 (ON CA), (1999), 45 O.R. (3d) 434, per Rosenberg JA Golub, supra at p.750
  4. Phung, supra at para 10
  5. R v Nolet, 2010 SCC 24 (CanLII), per Binnie J at para 48
  6. see R v Whitaker, 2008 BCCA 174 (CanLII), per Frankel JA
    R v Chaif-Gust, 2011 BCCA 528 (CanLII), per Finch CJ
  7. R v Golub, 1997 CanLII 6316 (ON CA), (1997), 34 O.R. (3d) 743, 117 CCC (3d) 193 (C. A.), per Doherty JA at p. 750
  8. R v Chin, 2003 ABPC 118 (CanLII), per Allen J at para 60
  9. R v Lal (1998), 130 CCC (3d) 413 (BCCA) 1998 CanLII 4393 (BCCA), per Ryan JA
  10. R v Chervinski, 2013 ABQB 29 (CanLII), per Hall J at para 21, 22
  11. R v Shokar, 2006 BCSC 770 (CanLII), per Joyce J at para 21
    R v Hall, 2006 SKCA 19 (CanLII), per Gerwing JA
  12. R v Chubak, 2009 ABCA 8 (CanLII), per Ritter JA, at para 18
    R v Galye, 2015 BCSC 1950 (CanLII), per Kent J at para. 38 (an "arresting officer's subjective belief that he or she has the requisite reasonable grounds is insufficient by itself for an arrest under s. 495(1)(a) of the Code to be lawful. Those grounds must also be justifiable from an objective point of view")
  13. e.g. R v Munoz 2006 CanLII 3269 (ON SC), (2006), 86 O.R. (3d) 134, 205 CCC (3d) 70 (Ont. Sup. Ct. J.), per Ducharme J
  14. R v NO, 2009 ABCA 75 (CanLII), per curiam
    R v Rahmani-Shirazi, 2008 ABQB 145 (CanLII), per Sullivan J
  15. Galye, supra at para 38 ("Determining whether the arresting officer's grounds were objectively reasonable involves an assessment of the factual matrix that existed at the time the arrest was made. Whether other information, had it been available, might have strengthened or weakened those grounds is not a relevant consideration")

"About to Commit"

Under s. 495(1)(a) a peace officer may make a warrantless arrest of a person wo is "about to commit" a hybrid or indictable offence.

An inebriated person about to operate a motor vehicle will be "about to commit" an offence of impaired driving.[1]

  1. see R v Beaudette (1957), 118 CCC 295, 1957 CanLII 502 (ON CA), per Schroeder JA

"Finds Committing"

Under s. 495(1)(b) empowers a peace officer to make a warrantless arrest where a person is "apparently" committing an offence. This must be an honestly held belief and must be reasonable. The officer does not have to be so certain as equate with a conviction.[1]

The requirements of "finds committing" consist of:[2]

  1. the officer's knowledge must be contemporaneous with the event;
  2. the officer must actually observe or detect the commission of the offence; and
  3. there must be an "objective basis for the officer's conclusion that an offence is "being committed". It "must be apparent to a reasonable person placed in the circumstances of an arresting officer".

It has been found that the strong smell of raw marijuana can be sufficient to conclude that the accused was in possession or marijuana and is arrestable under s.495(1)(b).[3] A faint and intermittent smell is not sufficient for arrest.

The person arresting does not mean that he "must be present when the offence is committed". He can "rely on reasonable inferences drawn from what he or she has seen transpire".[4]

  1. The Queen v Biron, [1976] 2 SCR 56 1975 CanLII 13, per Martland J
    R v Roberge 1983 CanLII 120 (SCC), (1983), 4 CCC (3d) 304, per Lamer J
  2. R v STP, 2009 NSCA 86 (CanLII), per MacDonald CJ
  3. R v Harding, 2010 ABCA 180 (CanLII), 482 AR 262, per curiam, at para 29
  4. R v McCowan, 2011 ABPC 79 (CanLII), per Fradsham J

Confidential Sources and Informers

Procedure

When an accused challenges the grounds of a warrantless arrest, trial fairness requires that the onus is on the Crown to establish the reasonable and probable grounds on direct examination and the defence must be permitted to cross-examine the officer.[1]

  1. R v Besharah, 2010 SKCA 2 (CanLII), per Smith JA at para 35

Types of Observations Forming Grounds of Arrest

An observed "hand to hand" exchange without any suggestive circumstances is no reasonable basis to conclude an illegal activity.[1]

However, certain activities may be interpreted using expertise and experience may be found to be reasonably believed to be connected to illegal activity.[2]

Marijuana Smell
The use of the smell of fresh marijuana as grounds to arrest requires an opinion with "substantial underpinnings and training and/or experience" and still be considered with caution.[3]

In many circumstances, there should be some corroboration by another individual.[4]

Observation of a "very strong smell" alone may in some circumstances be sufficient to arrest.[5]

  1. R v Russell, 2017 ABQB 298 (CanLII), per Goss J, at para 35
    R v NO, 2009 ABCA 75 (CanLII), per curiam at paras 41 and 42
  2. R v Rajaratnam, 2006 ABCA 333 (CanLII), per curiam at para 25
  3. R v Quesnel, 2018 NSSC 221 (CanLII), per Scaravelli J at para 48
  4. Quesnel, ibid. at para 48
  5. R v Harding, 2010 ABCA 180 (CanLII), per curiam

Citizen's Arrest

See also: Arrest by a Citizen

See Also

Post-Charge Detention

General Principles

Holding a person in custody when it is not prescribed by the provisions of the Criminal Code would be a violation of s. 9 of the Charter.[1]

  1. R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J at para 54 (“[A] detention not authorized by law is arbitrary and violates s. 9 [of the Charter]”)

Release

When Detained by Peace Officer

Release from custody by peace officer
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) [issuing an appearance notice], the peace officer shall, as soon as practicable,

(a) release the person from custody with the intention of compelling their appearance by way of summons; or
(b) issue an appearance notice to the person and then release them.

Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3) [Remand in custody for return to jurisdiction where offence alleged to have been committed].
Consequences of non-release
(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).
[annotation(s) added]


CCC

When Detained by Officer-in-Charge

Release from custody by officer in charge
498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) [deliver to police after citizen's arrest] or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) [taking a detainee before a justice] for an offence described in paragraph 496(a), (b) or (c) [issuing an appearance notice], or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).


CCC

Section 498 directs an officer to release an accused as soon as practicable, unless one of the reasons listed in (1.1). One of the "reasonable public interest" grounds include the need to detain a person until they are sober and safe to be released.[1]

  1. R v Viszlai, 2012 BCCA 442 (CanLII), per Frankel JA at para 47
    R v Sapusak, [1998] O.J. No. 3299(*no CanLII links)
    R v Coulter, [2000] O.J. No. 3452 (Ont. Ct. J.), affirmed [2001] O.J. No. 5608 (Sup. Ct. J.)(*no CanLII links)
    R v Padda, 2003 CanLII 52405 (ON CJ), [2003] O.J. No. 5502 (Ont. Ct. J.), per Duncan J
    R v Gaudette, [2005] O.J. No. 2399 (Ont. Ct. J.)(*no CanLII links) , reversed for other reasons, [2006] O.J. No. 3732 (Sup. Ct. J)(*no CanLII links)
    R v Kisil, 2009 ONCJ 424 (CanLII), [2009] O.J. No. 3821 (Ont. Ct. J.), per Nadel J
    R v Prentice, 2009 ONCJ 708 (CanLII), [2009] O.J. No 6001 (Ont .Ct .J.), per Schwarzl J
    R v Key, 2011 ONCJ 780 (CanLII), [2011] O.J. No. 5972 (Ont. Ct. J.), per Robertson J
    R v Baxter, 2012 ONCJ 91 (CanLII), [2012] O.J. No. 796 (Ont. Ct.J), per Schwarzl J

Impaired Driving Investigations

Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:[1]

  1. the accused's blood alcohol level,
  2. whether the accused was charged with impaired operation,
  3. his or her level of comprehension,
  4. that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension),
  5. that the accused's vehicle would have been impounded,
  6. whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound,
  7. whether the accused had a criminal record and if so, its contents,
  8. whether the accused had outstanding charges,
  9. his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment.

The analysis should not simply be limited to the BAC level results.[2]

  1. R v Price 2010 ONSC 1898 (CanLII), per Durno J, at para 93
  2. Price, ibid. at para 93

Taking to a Judge

Under s. 503, when a police officer arrests an individual without a warrant, they have the discretion to hold the person for up to 24 hours until charges are laid and they must be prepared to show cause as to why the person should be kept in custody before a Judge of the Court or Justice of the Peace. The Justice will assess whether there is a reason to detain the individual or else release them on any conditions.

The 24 hour time limitation can be extended where a judge or justice of the peace is not available within the time limit such as during weekends or holidays.

Section 503 states:

Taking before justice
503. (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) [delivery to police after citizen arrest] or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,

(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him.

...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).
[annotation(s) added]


CCC

Where the decision to detain is not made out, such as under s. 498 [3], it may be grounds for a stay of proceedings.[1]

This is governed by section 83.3 of the Criminal Code:

Duty of peace officer
83.3
...
(5) If a peace officer arrests a person without warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

(a) lay an information in accordance with subsection (2); or
(b) release the person.

When person to be taken before judge
(6) A person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

(a) if a provincial court judge is available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period, and
(b) if a provincial court judge is not available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as possible,

unless, at any time before the expiry of the time prescribed in paragraph (a) or (b) for taking the person before a provincial court judge, the peace officer, or an officer in charge within the meaning of Part XV [Special Procedure and Powers, s. 483 to 492.2], is satisfied that the person should be released from custody unconditionally, and so releases the person.
...
2001, c. 41, s. 4.
[annotation(s) added]


CCC

For more details on this see the Chapter on Compelling the Accused to Attend Court.

  1. R v Lewis, 2001 BCPC 426 (CanLII), per Dossa J
    R v McKelvey, 2008 ABQB 466 (CanLII), per Langston J

See Also

Warrant Arrests

General Principles

See also: Arrest Procedure

A warrant is one among several means of securing a person's attendance at court, usually it is the accused. There are several sections of the Code that address arrest warrant powers depending on the circumstances.

There are:

  • Arrest Warrant at first instance upon charges being laid against an accused (s. 507(4) "Public Interest" warrant)
  • Arrest Warrant (or a "bench" warrant) for non-attendance at court (s. 512 and 597)
  • Arrest Warrant for failing to attend the police station pursuant to the Identification of Criminals Act (s. 502)
  • Arrest Warrant for breaching any terms of release (524)
  • Arrest Warrant for witnesses (s. 698 to 705)

An arrest warrant in a general sense authorizes a peace officer to 1) arrest the named person and to 2) bring them "before a judge in the territorial division in which the warrant issued".[1]

Youth Court Justice
Any warrant issued by a youth court justice may be executed anywhere in Canada.[2]

  1. R v Charles, 2012 SKCA 34 (CanLII), at para 9
  2. see s. 145 YCJA: "145 A warrant issued by a youth justice court may be executed anywhere in Canada."

Arresting the Accused at First Instance and Issuing Process

See also: Laying of an Information and Issuing Process

Arresting the Accused After They Failed to Attend Court

Arrest Warrant for Breaches of Orders

Form of Arrest Warrants

Contents of warrant to arrest
511. (1) A warrant issued under this Part [PART XVI (s. 493 to 529.5)] shall

(a) name or describe the accused;
(b) set out briefly the offence in respect of which the accused is charged; and
(c) order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some other judge or justice having jurisdiction in the same territorial division, to be dealt with according to law.

...
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.
[annotation(s) added]


CCC


511
...
No return day
(2) A warrant issued under this Part [Part XVI: Compelling Appearance of an Accused Before a Justice and Interim Release, s. 493 to 529.5] remains in force until it is executed and need not be made returnable at any particular time.
...
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.
[annotation(s) added]


CCC

Formalities of warrant
513. A warrant in accordance with this Part [Part XVI: Compelling Appearance of an Accused Before a Justice and Interim Release, s. 493 to 529.5] shall be directed to the peace officers within the territorial jurisdiction of the justice, judge or court by whom or by which it is issued.
R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]


CCC

Execution of Warrant

See also: Entry into Place to Execute an Arrest Warrant

511. ...
Discretion to postpone execution
(3) Notwithstanding paragraph (1)(c), a judge or justice who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge or justice having jurisdiction in the territorial division in which the warrant was issued.
Deemed execution of warrant
(4) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed. ...
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.


CCC

Execution of warrant
514. (1) A warrant in accordance with this Part [PART XVI Compelling Appearance of Accused Before a Justice and Interim Release, s. 493 to 529.5] may be executed by arresting the accused

(a) wherever he is found within the territorial jurisdiction of the justice, judge or court by whom or by which the warrant was issued; or
(b) wherever he is found in Canada, in the case of fresh pursuit.

By whom warrant may be executed
(2) A warrant in accordance with this Part may be executed by a person who is one of the peace officers to whom it is directed, whether or not the place in which the warrant is to be executed is within the territory for which the person is a peace officer.

R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]


CCC

Witness Warrants

Release After Warrant Arrest

See also: Release by Police

Where an accused is arrested under a warrant the officer will not normally have discretion to release the accused before delivering the accused before a justice or judge. An exception exists under s. 503(3) where the warrant is "endorsed" for release.

Special Issues

Outside Native Jurisdiction

Delayed Arrests

See also: Right to a Trial Within a Reasonable Time

The practice of waiting to execute an arrest warrant until the accused has finished serving a previous sentence is considered inappropriate.[1]

Where the accused is easily locatable within the province, with no change of name, listed address, and no efforts to conceal his location, will lean to the side of unacceptable delay.[2]

A lack of effort on the part of the police will support unreasonable delay.[3]

  1. R v Parisien (1971) 3 CCC (2d) 433, 1971 CanLII 1171 (BC CA), per Branca JA at p. 437 per Fauteux
    R v Cardinal, 1985 ABCA 157 (CanLII)
  2. e.g. Gahan v A.G. Alberta, 1988 CanLII 3471 (AB QB), [1988] A.J. No. 415 (QB)
    R v Carey, [1983] BCJ No. 307 (County Ct.)(*no CanLII links)
  3. e.g. R v Yellowhorse, [1990] A.J. No. 964 (Prov.Ct.)(*no CanLII links)

Arresting the Wrong Person

Arrest of wrong person
28 (1) Where a person who is authorized to execute a warrant to arrest believes, in good faith and on reasonable grounds, that the person whom he arrests is the person named in the warrant, he is protected from criminal responsibility in respect thereof to the same extent as if that person were the person named in the warrant.
Person assisting
(2) Where a person is authorized to execute a warrant to arrest,

(a) every one who, being called on to assist him, believes that the person in whose arrest he is called on to assist is the person named in the warrant, and
(b) every keeper of a prison who is required to receive and detain a person who he believes has been arrested under the warrant,

is protected from criminal responsibility in respect thereof to the same extent as if that person were the person named in the warrant.
R.S., c. C-34, s. 28.


CCC

See Also

Accused Arrest Warrants for Failing to Attend Court

General Principles

See also: Warrant Arrests

Where an accused fails to comply with an undertaking to attend court, s. 512 permits the court to issue a warrant of arrest.

Certain actions not to preclude issue of warrant
512. (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that

(a) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed or cancelled under subsection 508(1) [justice to hear informant and witnesses before issuing process];
(b) a summons has previously been issued under subsection 507(4) [issuing process with summons]; or
(c) the accused has been released unconditionally or with the intention of compelling his appearance by way of summons.

Warrant in default of appearance
(2) Where

(a) service of a summons is proved and the accused fails to attend court in accordance with the summons,
(b) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed under subsection 508(1) [justice to hear informant and witnesses before issuing process] and the accused fails to attend court in accordance therewith in order to be dealt with according to law, or
(c) it appears that a summons cannot be served because the accused is evading service,

a justice may issue a warrant for the arrest of the accused.
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.


CCC

Where the justice has "reasonable reasonable grounds to believe that it is necessary in the public interest to issue a summons rather than a warrant, then it would be within his discretion to so proceed."[1] This would include information as to the whereabouts or medical condition of the accused.[2]

Under s. 511, the execution of a warrant or arrest authorizes 1) the arrest of the accused and 2) the officer to bring the accused before a judge in the territorial division in which the warrant was issued.[3]

A provincial court judge upon issuing an arrest warrant cannot require that the accused only be brought the issuer of the warrant.[4]

Warrants under s. 512 can be issued at any point in the proceedings.[5]

Forms
A summons under s. 508 or 512 should use Form 6.

  1. R v Demelo, 1994 CanLII 1368 (ON CA), per Austin JA
  2. Demelo, ibid.
  3. Charles, supra
  4. R v Davidson, 2004 ABCA 337 (CanLII), per curiam
  5. Ex Parte Chung (1976), 26 CCC (2d) 497 (BCCA), 1975 CanLII 1231 (BC CA), per Bull JA, at p. 509 per McFarlane JA. ("The jurisdiction of the Justice is not, therefore, limited to acting upon the initial receipt of the information, and he can receive and consider the information a second time even after the unconditional release of the accused. … There are no words limiting the exercise of the powers of a Justice to any particular stage of the proceedings.")
    R v Anderson, 1983 ABCA 264 (CanLII), per Kerans JA at paras 48 to 51

Bench Warrant for Failing to Attend Trial

The judge ordering an arrest under s. 475 (absconding during trial), Part XVI (compelling attendance), 597 (bench warrant), 800 (summary trial) or 803 (summary appearance) can issue a warrant using "Form 7", which is the standard arrest warrant.

Bench warrant
597. (1) Where an indictment has been preferred against a person who is at large, and that person does not appear or remain in attendance for his trial, the court before which the accused should have appeared or remained in attendance may issue a warrant in Form 7 for his arrest.
Execution
(2) A warrant issued under subsection (1) may be executed anywhere in Canada.

Interim release
(3) Where an accused is arrested under a warrant issued under subsection (1), a judge of the court that issued the warrant may order that the accused be released on his giving an undertaking that he will do any one or more of the following things as specified in the order, namely,

(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating with any witness or other person expressly named in the order except in accordance with such conditions specified in the order as the judge deems necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order; and
(f) comply with such other reasonable conditions specified in the order as the judge considers desirable.

Discretion to postpone execution
(4) A judge who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge having jurisdiction in the territorial division in which the warrant was issued.
Deemed execution of warrant
(5) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed.
R.S., 1985, c. C-46, s. 597; R.S., 1985, c. 27 (1st Supp.), s. 121; 1997, c. 18, s. 68.


CCC

s. 800
...
Counsel or agent
(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.
...
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21.


CCC

Summary Conviction Trial

803 (1) ...
Non-appearance of defendant
(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or
(b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.


...
(5) to (8) [Repealed, 1991, c. 43, s. 9]
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s. 112; 2008, c. 18, s. 45.


CCC

Effect of Failure to Attend on Jurisdiction

485
...
When accused not present
(1.1) Jurisdiction over an accused is not lost by reason of the failure of the accused to appear personally, so long as subsection 515(2.2) [bail appearance by video-link], paragraph 537(1)(j), (j.1) or (k) [video-link appearance before preliminary inquiry judge], subsection 650(1.1) or (1.2), paragraph 650(2)(b) [Video-link appearance of accused] or 650.01(3)(a) [appearance by designation of counsel], subsection 683(2.1) [appear by telepresence] or 688(2.1) [right to attend appeal] or a rule of court made under section 482 or 482.1 [powers to make rules of court] applies.
Summons or warrant
(2) Where jurisdiction over an accused or a defendant is lost and has not been regained, a court, judge, provincial court judge or justice may, within three months after the loss of jurisdiction, issue a summons, or if it or he considers it necessary in the public interest, a warrant for the arrest of the accused or defendant.
Dismissal for want of prosecution
(3) Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1 [recommencing dismissed charges].
Adjournment and order
(4) Where, in the opinion of the court, judge, provincial court judge or justice, an accused or a defendant who appears at a proceeding has been misled or prejudiced by reason of any matter referred to in subsection (1), the court, judge, provincial court judge or justice may adjourn the proceeding and may make such order as it or he considers appropriate.
Part XVI to apply
(5) The provisions of Part XVI [Compelling Appearance of an Accused Before a Justice and Interim Release, s. 493 to 529.5] apply with such modifications as the circumstances require where a summons or warrant is issued under subsection (2).
R.S., 1985, c. C-46, s. 485; R.S., 1985, c. 27 (1st Supp.), s. 67; 1992, c. 1, s. 60(F); 1997, c. 18, s. 40; 2002, c. 13, s. 19.
[annotation(s) added]


CCC

Effect of Bench Warrant on Mode of Trial

Election deemed to be waived
598 (1) Notwithstanding anything in this Act, where a person to whom subsection 597(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or a provincial court judge without a jury, he shall not be tried by a court composed of a judge and jury unless

(a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or
(b) the Attorney General requires pursuant to section 568 [Attorney General Override] or 569 [Attorney General may require trial by jury — Nunavut] that the accused be tried by a court composed of a judge and jury.

Election deemed to be waived
(2) An accused who, under subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 536 [trial of absolute jurisdiction offences] or 536.1 [trial of absolute jurisdiction offences - Nunavut] to be tried without a jury by a judge of the court where the accused was indicted and section 561 [right of re-election] or 561.1 [right of re-election - Nunavut], as the case may be, does not apply in respect of the accused.
R.S., 1985, c. C-46, s. 598; R.S., 1985, c. 27 (1st Supp.), ss. 122, 185(F), 203(E); 1999, c. 3, s. 51; 2002, c. 13, s. 48(E).


CCC

While s. 598 does violate s. 11(f) of the Charter it is saved as a reasonable limitation under s. 1 of the Charter.[1]

  1. R v Lee, [1989] 2 SCR 1384, 1989 CanLII 21 (SCC), per Lamer J

Arrest Warrants for Witnesses

General Principles

See also: Warrant Arrests

Subpoena
698 (1) Where a person is likely to give material evidence in a proceeding to which this Act applies, a subpoena may be issued in accordance with this Part requiring that person to attend to give evidence.

Warrant in Form 17
(2) Where it is made to appear that a person who is likely to give material evidence

(a) will not attend in response to a subpoena if a subpoena is issued, or
(b) is evading service of a subpoena,

a court, justice or provincial court judge having power to issue a subpoena to require the attendance of that person to give evidence may issue a warrant in Form 17 to cause that person to be arrested and to be brought to give evidence.

Subpoena issued first
(3) Except where paragraph (2)(a) applies, a warrant in Form 17 shall not be issued unless a subpoena has first been issued.
R.S., 1985, c. C-46, s. 698; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Warrant for absconding witness
704 (1) Where a person is bound by recognizance to give evidence in any proceedings, a justice who is satisfied on information being made before him in writing and under oath that the person is about to abscond or has absconded may issue his warrant in Form 18 directing a peace officer to arrest that person and to bring him before the court, judge, justice or provincial court judge before whom he is bound to appear.
Endorsement of warrant
(2) Section 528 applies, with such modifications as the circumstances require, to a warrant issued under this section.
Copy of information
(3) A person who is arrested under this section is entitled, on request, to receive a copy of the information on which the warrant for his arrest was issued.
R.S., 1985, c. C-46, s. 704; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Warrant when witness does not attend
705 (1) Where a person who has been served with a subpoena to give evidence in a proceeding does not attend or remain in attendance, the court, judge, justice or provincial court judge before whom that person was required to attend may, if it is established

(a) that the subpoena has been served in accordance with this Part, and
(b) that the person is likely to give material evidence,

issue or cause to be issued a warrant in Form 17 for the arrest of that person.
Warrant where witness bound by recognizance
(2) Where a person who has been bound by a recognizance to attend to give evidence in any proceeding does not attend or does not remain in attendance, the court, judge, justice or provincial court judge before whom that person was bound to attend may issue or cause to be issued a warrant in Form 17 for the arrest of that person.
Warrant effective throughout Canada
(3) A warrant that is issued by a justice or provincial court judge pursuant to subsection (1) or (2) may be executed anywhere in Canada.
R.S., 1985, c. C-46, s. 705; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Order where witness arrested under warrant
706 Where a person is brought before a court, judge, justice or provincial court judge under a warrant issued pursuant to subsection 698(2) or section 704 or 705, the court, judge, justice or provincial court judge may order that the person

(a) be detained in custody, or
(b) be released on recognizance in Form 32, with or without sureties,

to appear and give evidence when required.
R.S., 1985, c. C-46, s. 706; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Where the applicant fails to establish how the witness' evidence is material the judge should not issue a witness warrant.[1]

  1. R v Kinzie, [1956] O.W.N. 896 (Ont. C.A.)(*no CanLII links)
    R v Darville (1956), 116 CCC 113 (S.C.C.), 1956 CanLII 463 (SCC)
    Foley v Gares (1989), 1989 CanLII 5134 (SK CA), 53 CCC (3d) 82 (Sask. C.A.)
    R. v Singh (1990), 1990 CanLII 5684 (AB QB), 108 A.R. 233 (Alta. Q.B.)

Arrest Warrant for Breach of Court Orders

General Principles

See also: Warrant Arrests and Breach of Release Conditions

Warrant for Breach of Summons, Appearance Notice, Undertaking or Recognizance

Issue of warrant for arrest of accused
524. (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused

(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he may issue a warrant for the arrest of the accused.
...
R.S., 1985, c. C-46, s. 524; 1999, c. 3, s. 33.


CCC

Warrantless Arrest

524
...
Arrest of accused without warrant
(2) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused

(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or
(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

may arrest the accused without warrant.
Hearing
(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall

(a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or
(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.


CCC

Warrant of Arrest for Failure to Attend

See also: Warrant Arrests

Where the accused is released on bail, and he fails to attend the judge may order a warrant under s.512(2) or 597.

Section 512(2) states:

Certain actions not to preclude issue of warrant
512. (1) A justice may, where the justice has reasonable and probable grounds to believe that it is necessary in the public interest to issue a summons or a warrant for the arrest of the accused, issue a summons or warrant, notwithstanding that

(a) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed or cancelled under subsection 508(1);
(b) a summons has previously been issued under subsection 507(4); or
(c) the accused has been released unconditionally or with the intention of compelling his appearance by way of summons.

Warrant in default of appearance
(2) Where

(a) service of a summons is proved and the accused fails to attend court in accordance with the summons,
(b) an appearance notice or a promise to appear or a recognizance entered into before an officer in charge or another peace officer has been confirmed under subsection 508(1) and the accused fails to attend court in accordance therewith in order to be dealt with according to law, or
(c) it appears that a summons cannot be served because the accused is evading service,

a justice may issue a warrant for the arrest of the accused.
R.S., 1985, c. C-46, s. 512; R.S., 1985, c. 27 (1st Supp.), s. 82; 1997, c. 18, s. 58.


CCC

Bench warrant
597. (1) Where an indictment has been preferred against a person who is at large, and that person does not appear or remain in attendance for his trial, the court before which the accused should have appeared or remained in attendance may issue a warrant in Form 7 for his arrest.
Execution
(2) A warrant issued under subsection (1) may be executed anywhere in Canada.
Interim release
(3) Where an accused is arrested under a warrant issued under subsection (1), a judge of the court that issued the warrant may order that the accused be released on his giving an undertaking that he will do any one or more of the following things as specified in the order, namely,

(a) report at times to be stated in the order to a peace officer or other person designated in the order;
(b) remain within a territorial jurisdiction specified in the order;
(c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(d) abstain from communicating with any witness or other person expressly named in the order except in accordance with such conditions specified in the order as the judge deems necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order; and
(f) comply with such other reasonable conditions specified in the order as the judge considers desirable.

Discretion to postpone execution
(4) A judge who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge having jurisdiction in the territorial division in which the warrant was issued.
Deemed execution of warrant
(5) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed.
R.S., 1985, c. C-46, s. 597; R.S., 1985, c. 27 (1st Supp.), s. 121; 1997, c. 18, s. 68.


CCC

Warrant for Breaching the Identification of Criminals Act

Failure to appear
502. Where an accused who is required by an appearance notice or promise to appear or by a recognizance entered into before an officer in charge or another peace officer to appear at a time and place stated therein for the purposes of the Identification of Criminals Act does not appear at that time and place, a justice may, where the appearance notice, promise to appear or recognizance has been confirmed by a justice under section 508, issue a warrant for the arrest of the accused for the offence with which the accused is charged.
R.S., 1985, c. C-46, s. 502; 1992, c. 47, s. 70; 1996, c. 7, s. 38; 1997, c. 18, s. 54.


CCC

Out of Province Arrest Warrants

General Principles

It has been said that all types of warrants can have application in any province. A provincial judge in any jurisdiction may validate a warrant from another jurisdiction under s. 461.[1]

"Canada-wide" Warrants
Canada-wide warrants are warrants that are not attached to particular jurisdictions. This typically refers to warrants issued under s. 703, which can only be ordered by a judge of a superior court or appellate court.

Section 703 states:

Warrant effective throughout Canada
703 (1) Notwithstanding any other provision of this Act, a warrant of arrest or committal that is issued out of a superior court of criminal jurisdiction, a court of appeal, an appeal court within the meaning of section 812 or a court of criminal jurisdiction other than a provincial court judge acting under Part XIX may be executed anywhere in Canada.
Warrant effective in a province
(2) Despite any other provision of this Act but subject to subsections 487.0551(2) and 705(3), a warrant of arrest or committal that is issued by a justice or provincial court judge may be executed anywhere in the province in which it is issued.
R.S., 1985, c. C-46, s. 703; R.S., 1985, c. 27 (1st Supp.), s. 149; 2007, c. 22, s. 22.


CCC

  1. R v Cardinal, 1985 ABCA 157 (CanLII), per Kerans JA, at para 8

Transferring Local Warrants to Different Provinces

Where no Canada-wide warrant is issued and a regular 514 warrant has been issued in another jurisdiction, under s. 528 the local court may endorse the foreign warrant (sometimes referred to as "backing" a warrant):

Endorsement of Warrant
Endorsing warrant
528.(1) Where a warrant for the arrest or committal of an accused, in any form set out in Part XXVIII in relation thereto, cannot be executed in accordance with section 514 or 703, a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.
Copy of affidavit or warrant
(1.1) A copy of an affidavit or warrant submitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of subsection (1).
Effect of endorsement
(2) An endorsement that is made upon a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it was originally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrant and to take the accused before the justice who issued the warrant or before any other justice for the same territorial division.
R.S., 1985, c. C-46, s. 528; R.S., 1985, c. 27 (1st Supp.), s. 93; 1994, c. 44, s. 51.


CCC

This section allows either local police or the police of the other jurisdiction to arrest the accused, who is located locally, and be transported to the jurisdiction of the original warrant.

The application should use Form 28.[1]

  1. e.g. see R v Charles, 2012 SKCA 34 (CanLII), per Smith JA at para 11
    see List of Criminal Code Forms

See Also

Reasonable Suspicion

General Principles

See also: Reasonable and Probable Grounds, Investigative Detention, and Plain View Search and Seizure#Sniffer Dogs

A "suspicion" refers to an expectation that a person is "possibly engaged in some criminal activity."[1]

A suspicion must be reasonable to be lawful, which requires "more than a mere suspicion and something less than a belief based upon reasonable and probable grounds". It must be supported by factual elements that can be independently assessed.[2]

Lower Than "Probable"
Reasonable suspicion is a standard lower than "reasonable and probable grounds".[3] The main distinction is "merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts".[4] It refers to the "possibility of uncovering criminality, not the probability of doing so".[5]

It follows that the "degree of reliability and the amount of information to establish that lower threshold is lower" than RPG.[6]

"Reasonable"
The presumption of reasonable suspicion should "not be disturbed unless it is unreasonable or not rationally capable of supporting an inference of suspicion." [7]

Taking Account of Realities of Policing
In evaluating police decision-making, the reviewing judge must "take into account that the police at the scene are often required to make quick decisions based on available information, some of which may not be complete or exact, in situations that are rapidly changing and potentially volatile."[8]

The judge should also account for an officer's experience in the particular type of investigation. The officer's experience may allow him to draw inferences and deductions that regular people would fail to make.[9]

  1. R v Kang‑Brown 2008 SCC 18 (CanLII) at para 75
  2. Kang-Brown, ibid. at para 75
  3. R v Xuan Nguyen, 2013 SKQB 36 (CanLII) at para 27
  4. R v Kang‑Brown, supra at para 75
  5. R v Navales, 2014 ABCA 70 (CanLII), at paras 18
  6. Xuan Nguyen, supra at para 27
  7. Xuan Nguyen, supra at para 29 citing R v Gunn
    See R v Gunn, 2012 SKCA 80 (CanLII), 399 Sask.R. 170, at paras 15‑23
  8. Xuan Nguyen, supra at para 30
  9. Xuan Nguyen, supra at para 31

Reasonable Suspicion Test

A reasonable suspicion lies between a mere suspicion and reasonable and probable grounds. [1]

Multitude of Conclusions Possible
Reasonable suspicion does not require that it be the only possibility, but merely one possible conclusion based on supported facts.[2] It also means that reasonable suspicion does not need to be the only inference from a particular constellation of factors.[3]

Where suspicion deals with possibilities rather than probabilities it necessarily means that it is possible to reasonably suspect that innocent people are involved in crime.[4]

Reliability and Specificity of Evidence
Reasonable suspicion can rely on information that is less reliable than for establishing "reasonable and probable grounds".[5]

The evidence forming reasonable suspicion need to indicate the "possibility of criminal behavour". The evidence itself need not include unlawful behaviour or evidence of a specific criminal act.[6]

Assessed on Totality of Evidence
The assessment is based on the totality of the evidence-all surrounding circumstances-rather than piece by piece consideration of whether the evidence is consistent with the factors. [7] The inquiry must consider "the constellation of objectively discernible facts said to give the investigating officer reasonable cause to suspect that the individual is involved in criminal activity".[8]

No Obligation to Make Inquiry
The obligation of police to consider all factors does not require them to make inquiry into exculpatory factors or rule out innocent explanations.[9]

Relevant Factors
The suspicion must be "sufficiently particularized" as an overly "generalized suspicion" would capture too many innocent persons.[10] Accordingly, factors that may "go both ways" are not sufficient on their own to support reasonable suspicion.[11] Such factors do not preclude reasonable suspicion arising when they are part of the constellation of factors.[12]

Any factors that are favourable or unfavourable (including "exculpatory, neutral or equivocal") must still be considered as part of the totality of circumstances.[13]

Standard of Review
Determination of whether factors amount to a reasonable suspicion is question of law reviewable on a standard of correctness.[14]

  1. R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, at para 75
    see R v Monteyne, 2008 SKPC 20 (CanLII) (re suspicion)
    R v Donald, [2010] S.J. No. 564, 2010 SKPC 123 (CanLII) at para 18
  2. R v Chipchar, 2009 ABQB 562 (CanLII), (2009) AJ No 1058
  3. Chehil, ibid. at para 32
  4. Chehil, ibid. at para 28
  5. R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, [2008] SCJ No 18 at para 75 at 79
  6. Chehil, ibid. at para 35
  7. R v Todd, 2007 BCCA 176 (CanLII)
    R v Wong, 2001 BCCA 13 (CanLII)
    R v Usher, 2011 BCCA 271 (CanLII)
    R v Nahorniak, 2010 SKPC 68 (CanLII) at para 23
    R v Cuthbertson, 2003 ABPC 83 (CanLII) at 46
  8. R v Navales, 2014 ABCA 70 (CanLII) at paras 19
    R v Chehil, 2013 SCC 49 (CanLII) at paras 29, 31
  9. Chehil, ibid. at para 34
  10. Navales, supra at para 19
    Chehil, supra at paras 30 to 31
  11. Navales, supra at para 19
    Chehil, supra at para 31
  12. Chehil, supra at para 31
  13. Navales, supra at para 19
    Chehil, supra at para 33
  14. R v Wunderlich, 2014 ABCA 94 (CanLII), at para 8
    R v MacKenzie, 2013 SCC 50 (CanLII), at para 54

Subjective Component

The subjective belief for the demand is a question of fact.[1]

  1. R v Bernshaw
    R v MAL, 2003 CanLII 21523 (ON CA), [2003] OJ No 1050
    R v Shepherd, 2009 SCC 35 (CanLII), [2009] 2 SCR 527, [2009] SCJ 35 at paras 18 to 20
    R v Biccum, 2012 ABCA 80 (CanLII), [2012] AJ No 234 (CA) at paras 9 to 10

Objective Component

Reasonable suspicion must include objective reasonableness. [1]

The judge is permitted to consider the police officer's training and personal experience in determining objective reasonableness.[2]However, the evidence of a police officer is no less worthy of scrutiny.

The officer himself cannot dictate what is reasonable and what is not. [3]

Observations of a suspect running away from police, on its own, is not enough to allow for police to detain or search.[4]

  1. R v Smith, 2011 SKPC 149 (CanLII), [2011] S.J. No. 650 (Sask. Prov. Ct.) at para 44
    R v Ajula 2011 ONCJ 10 (CanLII)
  2. R v Rajaratnam, 2006 ABCA 333 (CanLII) at para 25
    R v Juan, 2007 BCCA 351 (CanLII) at paras 18-21, 222 CCC (3d) 289.
    R v MacKenzie, 2011 SKCA 64 (CanLII)
  3. R v Payette, 2010 BCCA 392 (CanLII) at para 29
  4. e.g. R v N.(N.), 2009 ONCJ 508 (CanLII) - police see suspect running away from them in high crime area, no reason to believe crime had occurred

Compared to Reasonable Grounds

See also: Reasonable and Probable Grounds

Reasonable suspicion "involves possibilities, not probabilities".[1] Courts must be careful not to conflate the two standards.[2]

  1. R v Williams, 2013 ONCA 772 (CanLII), at para 22
    R v MacKenzie, 2013 SCC 50 (CanLII) at para 38
    R v Chehil, 2013 SCC 49 (CanLII), at para 27
  2. Williams at para 22
    MacKenzie 84
    Chehil, supra at para 27

Impaired Driving

See also: Screening Device

A police officer may demand that a person who is found in care and control or in operation of a vehicle undergo a roadside screening test for alcohol. The officer must have "reasonable grounds" to suspect (or "reasonable suspicion") that alcohol is in their body to make a roadside test demand.[1] The quantity of alcohol and the level of impairment is irrelevant.

Burden of Proof
The burden is on the Crown to prove that there were grounds to administer the test on a balance of probabilities.

Failure to For Grounds
Where an officer administers an ASD without reasonable suspicion, a Charter violation under s. 8 and 9 result. [2]

Sufficiency of Grounds
The standard required for the ASD test under 254(3)(a)(i) is not a “standard of proof” as understood in judicial proceedings.[3]

An admission of having consumed alcohol without mention of when and how much can be considered sufficient to form a reasonable suspicion.[4]

Compelled Statements or Participation
Evidence that was obtained from the accused through his compelled participation can only be used to establish grounds of suspicion and cannot be used to incriminate the accused.[5]

  1. R v Maslanko, 2011 ABPC 202 (CanLII)
    R v Haas, 2005 CanLII 26440 (ON CA)
    R v Church, 2008 BCSC 686 (CanLII) at para 6
    R v Gaudaur, 2008 BCSC 981 (CanLII) at paras 40-42
    R v Lemma, 2011 ABPC 312 (CanLII) (no grounds)
    R v Beechinor, 2004 SKPC 49 (CanLII), [2004] S.J. No. 187 (SKPC)
  2. e.g. R v Zoravkovic, [1997] O.J. No. 1010 (Ont. C.J.), 1998 CanLII 3202 (ON CA)
    R v Hendel, [1997] O.J. No. 2849 (Ont. C.J.)(*no CanLII links)
    R v Smith, [1997] O.J. No. 3677 (Ont. C.J.)(*no CanLII links)
    R v O’Flanagan, [2009] S.J. No. 55, 2009 SKPC 14 (CanLII)
    R v Thompson, [2003] S.J. No. 240, 2003 SKPC 56 (CanLII)
  3. R v Loewen, 2010 ABCA 255 (CanLII) at para 13
  4. R v Flight, 2014 ABCA 185 (CanLII) at para 39 to 61
  5. R v Orbanski; R v Elias, [2005] 2 SCR 3, 2005 SCC 37 (CanLII), at para 58

Reasonable Suspicion Test

The standard only requires a belief on the presence of alcohol and not the amount consumed, the effects or degree of impairment.[1]

The suspicion is of the "consumption alone and not its amount or behavioural consequences".[2]

Multiple Officers Involved
The officer who makes the demand does not need to be the officer who had initial contact with the accused.[3] However, the officer making the demand must be the one who formed a reasonable suspicion that the accused has alcohol in his system.[4] This basis can be based on information received from another officer.

Totality
The requirement of considering the totality of circumstances requires considering not only evidence suggestive of alcohol in the body but also evidence suggesting otherwise as well as the absence of evidence.

The objectively verifiable evidence should not be dissected and individually tested.[5]

Source of Alcohol
An officer should be able to describe the origin of the alcoholic smell, by indicating whether other people were in the car, or otherwise suggesting where the source of the odor could be from.[6]

It is not necessary that the crown eliminate all other possible sources of the odor of alcohol to form reasonable suspicion.[7]

Requirements for Reasonable Suspicion
For the peace officer to form reasonable suspicion, the officer must:[8]

  • subjectively and honestly suspect the driver who had alcohol in his body; and,
  • The subject of suspicion must be based on "objectively verifiable circumstances"

Reviewing the grounds requires the application of the Mackenzie test: "what a reasonable person, standing in the shoes of the investigating police officer and aware of all the objectively verifiable evidence, reasonably suspect the driver had alcohol in his or her body?"[9]

  1. R v Gilroy 1987 ABCA 185 (CanLII) per McClung JA
    R v Thomas, 2008 ABQB 610 (CanLII)
  2. Gilroy at para 8
  3. R v Telford, 1979 ABCA 244 (CanLII)
  4. R v Sahota [2000] OJ No 3943 (ONCJ)(*no CanLII links)
    Telford
  5. R v Yates, 2014 SKCA 52 (CanLII) at para 34
  6. E.g. Yates, ibid.
  7. Yates, ibid.
  8. Yates, ibid.
  9. Yates, ibid.

Subjective Component

There should not simply be signs of consumption of alcohol, but also signs of impaired driving skills. Once both are established, the analysis must consider the degree of each and the totality of the circumstances. [1]

Impairment to driving skills requires that on an objective basis there is impairment “such as coordination, comprehension and a poor (but not simply illegal) driving pattern.” If any one of these is found as well as evidence of alcohol consumption, then there is an objective basis to conclude the driver’s ability to drive is impaired by alcohol.[2]

Alternate explanations or imprecise descriptions do little to reduce the value of the observations. This is because the observations to not need to meet a formal burden of proof. Also, most any signs can be explained by something other than alcohol.[3]

An admission of "two drinks", without any indication of the time of these drinks, was enough to support a reasonable suspicion.[4]

An admission of “two drinks” is not relevant to establishing impairment. It is only where there is an admission of many drinks, that the inference of impairment can be made.[5]

Evidence of an amount of consumption can also be enough to create a reasonable suspicion.[6]

Grounds should include more than simply an admission of the accused that they had drank alcohol within the past three hours. [7]

  1. R v Baltzer, 2011 ABQB 84 (CanLII) at paras 40 to 41
    e.g. R v Spiry, 2010 ABPC 61 (CanLII), at para 19 - evidence of consumption only is not likely sufficient to form reasonable grounds
  2. R v Baltzer at para 38
  3. R v Baltzer 2011 ABQB 84 (CanLII) at 36-37
  4. R v Kimmel, 2008 ABQB 594 (CanLII)
    R v Thomas, 2008 ABQB 610 (CanLII)
    R v Ross, 2011 ABPC 173 (CanLII)
    c.f. R v Dyer, 2007 ABPC 116 (CanLII)
  5. R v Baltzer at 36-37
  6. R v Gilroy, 1987 ABCA 185 (CanLII), (1987), 79 A.R. 318 (C.A.), leave to appeal to S.C.C. refused
    R v Stauch, 2007 ABQB 85 (CanLII)
  7. R v Mowat, 2010 BCPC 430 (CanLII)
    R v Baker, 2004 ABPC 218 (CanLII), [2004] A.J. No. 1355
    R v Hnetka, 2007 ABPC 197 (CanLII), [2007] A.J. No. 806
    R v Klontz, 2007 ABPC 311 (CanLII), [2007] A.J. No. 1283
    R v Hemery, 2008 ABPC 209 (CanLII)

Objective Component

The grounds need not be proven a on balance of probabilities.[1]

To be reasonable it does not need to be the only conclusion derived from the circumstances. The court considers whether a reasonable person in the circumstances would have a suspicion that the person was impaired by alcohol.

The smell of alcohol on the breath of the driver, by itself, is sufficient to support the suspicion that the driver was operating the vehicle while impaired.[2] Or the suspicion that there was alcohol in their body.[3]

However, the smell of acohol in the vehicle does satisfy the objective grounds to use the screening device.[4]

It is not necessary to consider the timing at which the suspected alcoholic beverage was consumed.[5]

The lack of evidence of consumption can weigh against the formation of a reasonable suspicion.[6]

An officer need not spell out his subjective suspicion that there is alcohol in the accused’ body using the words of s. 254(2). The court may infer the suspicion based on all of the evidence.[7]

It is generally considered that the “point in time” for the issue of reasonable grounds is at the time of the arrest. Certain cases have concerned the moment being at the time at the time of the demand.[8]

If the accused had drank alcohol within 15 minutes of the first test may render the ASD test unreliable. The mere possibility of consuming alcohol within 15 minutes does not affect the reliability of the ASD.[9] The main issue is whether there was any evidence which may have caused the officer to investigate when the accused had his last drink. If "credible evidence" exists the officer should delay test for 15 minutes to ensure reliability.[10]

  1. R v Loewen, 2010 ABCA 255 (CanLII) at para 18
  2. R v Stauch, 2007 ABQB 85 (CanLII), (2007) AJ No 142 (QB)
    R v Carson (2009) OJ No 660, 2009 ONCA 157 (CanLII)
    R v Gannon, 2007 ABPC 65 (CanLII)
    R v Redstar, 2009 ABPC 79 (CanLII)
    R v Tellefson, 2009 ABPC 159 (CanLII)
  3. R v Lindsay, 1999 CanLII 4301 (ON CA), [1999] OJ No 870, 134 CCC (3d) 159
    R v Butchko, 2004 SKCA 159 (CanLII), [2004] SJ No 735, 192 CCC (3d) 552
  4. R v Rasheed, 2009 ONCJ 41 (CanLII) at para 20
  5. R v Aujla, 2011 ONCJ 10 (CanLII) at para 36
  6. R v Zoravkovic 1998 CanLII 3202 (ON CA), (1998), 112 O.A.C. 119 (Ont. C.A.)
  7. R v Imanse, 2010 BCSC 446 (CanLII))
    R v Dietz, [1993] A.J. No. 45 (C.A.)(*no CanLII links)
    R v Church, 2008 BCSC 686 (CanLII)
    R v Donald (No.2), 2010 SKPC 123 (CanLII)
  8. R v Shaw, 2011 SKQB 425 (CanLII)
  9. R v Einarson, 2004 CanLII 19570 (ON CA), (2004) 183 CCC (3d) at para 35
  10. R v Szybunka, 2005 ABCA 422 (CanLII) at para 8

Sniffer Dogs

See also: Plain View Search and Seizure

"Sniffer dog" searches, most typically seen at border-crossings including airports, can be permitted on the standard of reasonable suspicion.[1]

For a sniffer dog search to be valid, the court must ask itself:[2]

  1. did the officer subjectively believe that there were reasonable grounds to suspect that the accused was in possession of the drugs?
  2. were there sufficient grounds to reasonably suspect the accused was in possession of drugs?

Reasonable suspicion in this circumstances requires an "expectation" that the accused is "possibly engaged in some criminal activity. As well, the suspicion must be supported by facts that can be subject to review."

As part of the determination of reasonable suspicion it includes the presence of a "masking agent" such as perfumes, colognes or other odour producing products. [3]

See also: R v Navales 2011 ABQB 404 (CanLII)
R v Loewen, 2010 ABCA 255 (CanLII)
R v Calderon, 2004 CanLII 7569 (ON CA)

  1. R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456
  2. Kang-Brown, ibid.
  3. R v Nguyen, 2012 ABQB 199(CanLII) at para 97

Drug Trafficking

A observed hand-to-hand exchange in isolation can only amount to a suspicion and nothing more as it may equally be an innocent exchange of small objects.[1]

  1. R v NO, 2009 ABCA 75 (CanLII), at para 41
    R v Celestin, 2013 ABPC 242 (CanLII), at para 55
    R v Fares, 2014 ABQB 160 (CanLII),

See Also

Procedural Rights

Arrest Procedure

Introduction

At the time of arrest, an officer must typically inform the accused of the following and confirm that they understand:

  1. inform of reason for arrest
  2. Charter of Rights caution / Right to Silence
  3. right to speak to a lawyer
  4. access to legal aid
  5. secondary police cautions

Validity of Arrest

An arrest consists of two elements:[1]

  1. the actual seizure or touching of a person's body with a view towards his detention or
  2. the pronouncing of "words of arrest" to a person who submits to the arresting officer.

An arrest will only be lawful if:[2]

  1. police have a subjective belief that there are reasonable and probable grounds to arrest the accused.
  2. the grounds must be objectively justifiable
  1. R v Whitfield [1970] SCR 46, 1969 CanLII 4 (SCC), per Judson J
    R v Lo, 1997 CanLII 1908 (BC SC), per Romilly J at paras 6 to 10
    R v Latimer, 1997 CanLII 405 (SCC), (1997), 112 CCC (3d) 193, per Lamer CJ at paras 24-5
  2. R v Lo at paras 6 to 10
    See also R v Storrey, 1990 CanLII 125 (SCC), (1990), 53 CCC (3d) 316, per Cory J at 322-4 (S.C.C.)
    R v Grant, [2009] 2 SCR 353, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at paras 54-6

Identification

Once a person is lawfully arrested they have an obligation to identify themselves.[1] Failure to do so may result in an offence of obstruction.[2]

  1. R v Pauli, 2014 SKQB 246 (CanLII), per Dawson J
  2. e.g. Pauli, ibid.

Notice Upon Arrest

Duty of person arresting
29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.
Notice
(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of

(a) the process or warrant under which he makes the arrest; or
(b) the reason for the arrest.

Failure to comply
(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility.
R.S., c. C-34, s. 29.


CCC

Topics

Right to be Informed of Charges

General Principles

See also: Right to be Informed of Reasons for Arrest or Detention

Section 11(a) of the Charter guarantees to right to be informed of the specific charges against the accused. It states:

Proceedings in criminal and penal matters
11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;


CCRF

This right has two components. "The primary protection is notice of the specific offence. Without notice of the specific offence an accused may be deprived of the ability to make full answer and defence. Accused have the right to know with what they are charged so they can make decisions about their defence, assemble evidence and prepare to meet the prosecution case."[1] This right protects the rule of law that "an accused can only be charged with an offence known to law".[2] The second component is the right against unreasonable delay in being informed. This right is designed to protect the right to full answer and defence.[3]

  1. R v Cisar, 2014 ONCA 151 (CanLII), per Rosenberg JA at para 11
  2. Cisar, ibid. at para 11
  3. Cisar, ibid. at para 12

Sufficiency

See also: Form and Content of Charges

Section 581 largely codifies the requirements of sufficiency for the purpose of s. 11(a).[1]

Substance of offence
581. (1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.
Form of statement
(2) The statement referred to in subsection (1) may be

(a) in popular language without technical averments or allegations of matters that are not essential to be proved;
(b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offence; or
(c) in words that are sufficient to give to the accused notice of the offence with which he is charged.

...
Reference to section
(5) A count may refer to any section, subsection, paragraph or subparagraph of the enactment that creates the offence charged, and for the purpose of determining whether a count is sufficient, consideration shall be given to any such reference.
...[(6)]...
R.S., 1985, c. C-46, s. 581; R.S., 1985, c. 27 (1st Supp.), s. 118.


CCC

  1. R v Cisar, 2014 ONCA 151 (CanLII), per Rosenberg JA at para 11
    R v Cancor Software Corp. (1990), 1990 CanLII 6817 (ON CA), 74 O.R. (2d) 65 (CA), per McKinlay JA
    R v Lucas, 1983 CanLII 2948 (NS SC), (1983), 57 NSR (2d) 159 (S.C. App. Div.), per Jones JA

Unreasonable Delay

This right prohibits "unreasonable delay". The analysis of delay considers the same factors as delay under s. 11(b):[1]

  1. length of delay;
  2. reasons for delay;
  3. waiver of any time periods; and
  4. prejudice to the accused.
  1. R v Cisar, 2014 ONCA 151 (CanLII), per Rosenberg JA at paras 12 to 27
    R v Delaronde, 1997 CanLII 404 (SCC), [1997] 1 SCR 213, per Lamer CJ

See Also

Right to be Informed of Reasons for Arrest or Detention

General Principles

Section 10(a) of the Charter creates a constitutional right for those detained or arrested. The section states:

Arrest or detention
10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;...


CCRF

At point of detention the detainee must be "advised, in clear and simple language, of the reasons for the detention."[1]

Section 10(a) of the Charter entitles all people "the right on arrest or detention ... to be informed promptly of the reasons therefore". It is generally expected that the arresting officer, upon making the arrest, will inform the person of the reason for the arrest. However, where the reason is obvious and the person is well aware of the reason, it is not necessary.[2]

The rights under s.10(a) have been met where the substance of what the accused has been explained is what he is reasonably "supposed to understand in the context and circumstances of the case".[3] As well, the accused should understand the basis for his apprehension, detention or arrest and the extent of his jeopardy.[4]

  1. R v Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59, at para 21
    R v Kelly, (1985), 7 O.A.C. 46, [1985] O.J. No. 2, 1985 CanLII 3483 (ON CA), per Morden JA at para 14
  2. Koechlin v Waugh & Hamilton, [1957] O.J. No. 105, 118 CCC 24 (Ont. C.A.), 1957 CanLII 359 (ON CA), per Laidlaw JA
  3. R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, 63 CCC (3d) 289 at para 35
    R v SEV, 2009 ABCA 108 (CanLII) at para 22, 23
  4. R v Latimer, 1997 CanLII 405 (SCC), [1997] 1 SCR 217 at para 31
    R v Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, 50 CCC (3d) 1 at para. 24

Purpose

One of the primary purposes of this right is "so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy".[1] Accordingly, a person can only exercise his right to counsel under s. 10(b) in a meaningful way if he knows the extent of his jeopardy.[2]

The purpose of s. 10(a) is to allow the detainee to immediately undertake his defence, including whether to respond to any accusations.[3]

  1. R v Borden, 1994 CanLII 63 (SCC) at p. 419
  2. R v SEV, 2009 ABCA 108 (CanLII) at para 22
    R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, 50 CCC (3d) 1 at para 24
  3. R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869 at para 2

Sufficiency of Information

The primary point of inquiry is whether the accused can reasonably be supposed to have understood the reason or basis for the investigation.[1]

There is no obligation to provide "precise or technical language" as long as the officer provided clear notice that "conveys the substance of the reason(s) for the detention".[2]

Failure to inform the accused that he is "arrested" and charged with a specific offence may not be fatal where the accused understood the basis for his apprehension and the extent of his jeopardy.[3]

To understand the extent of jeopardy it is not necessary to be aware of the precise charge face or the full extent of the details of the case.[4]

It is not necessary to always inform the accused of the circumstances of the offence. In a murder case it is not necessary to reveal the victim's identity.[5]

  1. R v Evans 1991 CanLII 98 (SCC) at para 35
    R v Carrier, 2008 ABCA 134 (CanLII) at para 7
    R v Lund, 2008 ABCA 373 (CanLII) at paras 11 and 16 ("The inquiry must be whether, substantively, the accused can reasonably be supposed to have understood the basis for the investigation. ")
  2. R v Richards, 2016 ONSC 3556 (CanLII), at para 29 per Hill J.
    R v Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59, at para 21
    Evans, supra at para 35
    R. v Nguyen, 2008 ONCA 49 (CanLII), 231 CCC (3d) 541 (Ont. C.A.), at paras 16-20
  3. R v Latimer, 1997 CanLII 405 (SCC), [1997] 1 SCR 217, 112 CCC (3d) 193 at para 31
  4. R v Smith, 1991 CanLII 91 (SCC), [1991] 1 SCR 714, 63 CCC (3d) 313 at para 28
  5. R v Jackson, 2005 ABCA 430 (CanLII)

Promptly

This duty must be done "promptly".[1] What amounts to being promptly will turn on the specifics of the case.[2]

  1. In R v Borden, 1994 CanLII 63 (SCC), (1994) 92 CCC (3d) 404 (S.C.C.)
  2. R v Eatman (1982) 45 NBR (2d) 163 (NBQB)(*no CanLII links) at 165

Change in Circumstances

Any change in jeopardy may require a further caution and right to counsel. It must be a change that is discrete and fundamental to the purpose of the investigation. This includes new offences or more serious offences.[1]

The change in jeopardy does not include new evidence coming to light of the original offence being investigated.[2]

  1. R v Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138 at para 25
    R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869 at para 48
  2. R v SEV, 2009 ABCA 108 (CanLII) at para 27

Specific Circumstances

In an impaired driving investigation, a suspect who is asked to attend the officer's vehicle for a screening test must first be advised of the reasons.[1]

There is some suggestion that a general warrant could permit police not to inform the detainee of the complete reason for detention.[2]

  1. R v Anderson, 2010 SKQB 70 (CanLII) at para 36
  2. R v Whipple, 2016 ABCA 232 (CanLII)

Right to be Informed of Charges

See Also

Right to Counsel

General Principles

Upon arrest or detention, an accused has a constitutional right to counsel under s. 10(b) of the Charter.

10. Everyone has the right on arrest or detention...

b) to retain and instruct counsel without delay and to be informed of that right; ...


CCRF

Section 10(b) is engaged any time where an individual is "deprived of liberty and in control of the state", consequently are "vulnerable to the exercise of its power and in a position of legal jeopardy". This right attempts to "mitigate this legal disadvantage" and promote "principles of adjudicative fairness".[1]

Obligations Imposed by Right
Section 10(b), when invoked, imposes several obligations:[2]

  1. the officer must inform the detainee of his right to instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
  2. if the detainee has indicated a desire to exercise this right, the officer must provide the detainee with a reasonable opportunity to exercise that right, except in urgent and dangerous circumstances;
  3. the officer must refrain from eliciting evidence from the detainee until he has had that reasonable opportunity to contact counsel, except in urgent and dangerous circumstances.

The first two obligations are known as the informational component and implementation component.[3] These components impose a duty on the detaining or arresting officer to inform the accused that they have the right to counsel and to ensure that they have the opportunity to exercise the right.

Onus or Burden
The onus is upon the accused to establish they right s. 10(b) Charter rights were violated. This includes the burden to show that the detainee acted diligently.[4]

Where the detainee has invoked the right to counsel, the Crown has the onus of establishing that the detainee was provided with a reasonable opportunity to exercise that right.[5]

Purpose
The purpose of the right to counsel is to permit a detainee "to be informed of his rights and obligations" and "to obtain advice as to how to exercise those rights".[6] It is intended to "ensure a level legal terrain for the detainee".[7]

It is also to assist the detainee to determine whether to cooperate or not.[8] For this reason there should only be access to counsel once.[9]

  1. R v Willier, 2010 SCC 37 (CanLII), per McLachlin CJ and Charron J, at para 28
    R v Clarkson, 1986 CanLII 61 (SCC), [1986] 1 SCR 383, per Wilson J
    R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, per Lamer J
  2. R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, per Lamer CJ at para 34
    R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, per Lamer CJ at para 17
    R v MacLean, 2013 ABQB 60 (CanLII), per Ouellette J summarizing at para 18
  3. R v Luong 2000 ABCA 301 (CanLII) at para 12
  4. Luong, ibid. at para 12
    R v Willier, 2010 SCC 37 (CanLII), per McLachlin CJ and Charron J - the onus is on applicant to show access to counsel did not correct "power imbalance"
  5. Luong, supra at para 12
  6. R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J, at pp. 1242 to 43
    Brydges, supra
  7. R v Briscoe, 2015 ABCA 2 (CanLII), per Watson JA at para 47
  8. R v Sinclair 2010 SCC 35 (CanLII), per McLachlin CJ and Charron J
  9. Sinclair, ibid.

Effect of Right Once Engaged

The police must inform the detainee of their right to counsel without delay and the availability of legal aid and duty counsel.[1] The police must advise the detainee "of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction at the time of detention and of how such advice can be accessed".[2]

If the detainee wishes to access counsel, the police must provide a reasonable opportunity to exercise that right and stop from taking any statements. [3]

The detained person must be reasonably diligent in exercising their right. [4]

The right does not extend to guaranteeing a "right of the detainee to appreciate the evidential situation when he intersects with the police."[5]

As soon as the right is properly asserted, the police have an obligation to assist the detainee in exercising that right without delay.[6] The police must also cease questioning or otherwise attempting to elicit evidence until the detainee has been given a reasonable opportunity to retain and instruct counsel.[7] The only exception to this is where there has been a clear waiver.[8]

The police are obliged to comply with s. 10(b) "immediately" subject to officer safety or other necessary limitations justifiable under s. 1 of the Charter.[9]

The detainee or accused does not need to "make an express request to use the telephone"[10]

Police must cease questioning while under the obligation to facilitate access to counsel unless in the case of urgency.[11]

Answering questions that are asked in violation of s. 10(b) cannot be held to be a waiver of those rights.[12]

After the right has been invoked, police cannot include as part of any of their rights recitation the question: "Do you wish to say anything?".[13]

Satisfying Right
The judge must first determine whether, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel.[14]

It is suggested that in "most cases" where the detainee invokes their 10(b) rights, a caution followed by an opportunity to consult counsel will be sufficient.[15]

  1. R v Brydges, [1990] 1 SCR 190, 1990 CanLII 123 (SCC), per Lamer J
  2. R v Pozniak, [1994] 3 SCR 310, 1994 CanLII 66 (SCC), per Lamer CJ
  3. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J
  4. R v Basko 2007 SKCA 111 (CanLII), per Wilkinson JA at para 21
  5. Briscoe, supra at para 48
  6. Manninen, supra at para 22
  7. R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206, per Iacobucci J at para 13
    Manninen, supra at para 23
  8. Manninen, supra at para 23
  9. R v Suberu, 2009 SCC 33 (CanLII), per McLachlin CJ and Charron J at paras 2, 37, 39, 41-42
  10. Manninen, supra
  11. Manninen, supra
  12. Manninen, supra
  13. R v GTD, 2017 ABCA 274 (CanLII), per curiam (2:1) aff'd at 2018 SCC 7 (CanLII), per Brown J
  14. Luong, supra at para 12
  15. R v Sinclair 2010 SCC 35 (CanLII), per McLachlin CJ and Charron J at para 2

Cautioning Without Detention or Arrest

Anytime where a peace officer is interviewing a person for whom "there are reasonable grounds to suspect that the person ... has committed an offence", the officer should caution them.[1]

The basis of suspicion must be based on more than "mere speculation...or...even...reliable information that may warrant further inquiry".[2]

  1. R v Singh, 2007 SCC 48 (CanLII), per Charron J at para 32
  2. R v AD, [2003] OJ No 4901 (SCJ)(*no CanLII links) at para 75
    R v Chui, 2015 ONSC 552 (CanLII), per Clark J

Informational Component

Implementation Component

Post-Fulfillment

Once the right to speaking with counsel has been fulfilled the officer need to cease the interview simply because the accused does not want to speak with them.[1]

Once the obligations have been fulfilled the police may undertake questioning at will and do not need to stop by further requests for a chance to speak with a lawyer.[2] However, if counsel is on the way, they must wait for counsel to arrive.[3]

The police do not need to cease a lawful search while the accused seeks counsel.[4]

Once the suspect has been given access to counsel, the police may interview him even after he has been remanded under a detention order without any need to provide him with counsel again.[5]

The exercise of the right to silence in response to any question, unless justified another rule of evidence, cannot be admitted against the accused for any purpose.[6]

  1. R v Baidwan, 2001 BCSC 1889 (CanLII), per Holmes J
    R v Singh, [2007] 3 SCR 405, 2007 SCC 48 (CanLII), per Charron J
    R v Bohnet, 2003 ABCA 207 (CanLII), per Hunt JA
    R v Gormley, 1999 CanLII 4160 (PE S.C.A.D.), per Carruthers CJ
    R v Reddick (1987), 77 NSR 92d) 439 (NSCA)(*no CanLII links)
  2. R v Wood, 1994 CanLII 3976 (NS CA), per Chipman JA
  3. R v Howard, 1983 CanLII 3507 (ON CA), per Howland CJ
  4. R v Borden 1994 CanLII 63 (SCC), [1994] 3 SCR 145, per Iacobucci J
  5. R v Bhander, 2012 BCCA 441 (CanLII), per Saunders JA
    c.f. R v Precourt, 1976 CanLII 692 (ON CA), per Martin JA (1976), 39 CCC (2d) 311 (Ont. C.A.)
  6. R v Chambers, [1990] 2 SCR 1293, 1990 CanLII 47 (SCC), per Cory J

Additional Access to Counsel

Waiver of Right to Counsel

The onus is on the Crown to prove that there was a valid waiver of Charter rights.[1]

A line of cases suggests that answers along the line of “no, not right now” is a equivocal answer due to its ambiguity of interpretation.[2]

Answers such as “what will they do for me?” was equivocal and so was not sufficient.[3] Other equivocal answers include:

  • "no, what for?"[4]
  • "I don't have a lawyer, it's just a waste of time, I'm fine to drive" [5]

However, several answers have been found to be unequivocal and so amount to a waiver:

  • “No, I have no use to call one”[6]
  • “No, I’ll talk to one tomorrow”[7]

In response to a comment such as “not right now”, if the officer explains how to engage the right at a later point--such as stating, “if you change your mind at any time tonight during this whole process”--then the waiver will be considered valid.[8]

Wording such as “no, I don’t think so” will often turn on the wording used, including whether it was confidently said, quickly said, or subjectively showed some doubt to the officer.[9]

  1. R v Luong 2000 ABCA 301 (CanLII), per Berger JA at para 12
  2. e.g. R v Jackman 2008 ABPC 201 (CanLII), per Anderson J
    R v Turcott 2008 ABPC 16 (CanLII), per Bascom J
    R v Bruno 2009 ABPC 232 (CanLII), per Henderson J
  3. R v Shaw 2001 ABPC 84 (CanLII), per Lefever J
  4. R v Wycislak, 2011 BCPC 175 (CanLII), per Pendleton J
  5. R v Watt, 2009 MBQB 297 (CanLII), per McKelvey J
  6. R v Moore 2007 ABQB 638 (CanLII), per Greckol J
  7. R v Mwangi, 2010 ABPC 243 (CanLII), per Henderson J - court said it was unequivocal because there was only one interpretation of wording
  8. R v MacGregor, 2012 NSCA 18 (CanLII), per Bryson JA at para 31
    R v Seehra, 2009 BCPC 194 (CanLII), per Gulbransen J
  9. e.g. R v Korn, 2012 ABPC 20 (CanLII), per Henderson J at para 46

Prosper Warning

Where an accused is detained and asserts the right to counsel in a diligent manner and then changes their mind, the police must administer a “Prosper Warning”. This warning requires the officer to tell the detainee that he still has a right to a reasonable opportunity to contact a lawyer, and that during this time the police cannot take any statements until he had had a reasonable opportunity to contact a lawyer.[1] If the officer fails to give the Prosper warning, there will be a Charter violation.

  1. R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, per Lamer CJ at p. 378-79

Special Issues in Right to Counsel

See Also

Informational Component to Right to Counsel

General Principles

See also: Right to Counsel

The right to counsel can only be properly realized where the accused is given an opportunity to fully understand the jeopardy that they are in and appreciate the consequences of the decision to speak to counsel. Thus, they must be informed of the offence as part of the informational component.[1]

The informational duty requires the officer to inform the detainee of his right to retain and instruct counsel without delay.

Legal Aid
The police must also inform the accused of the availability of duty counsel and legal aid.[2] The police must provide details on accessing 24 hours duty counsel phone by giving a toll-free number to call.[3] The failure to provide a specific telephone number to Legal Aid is fatal to the fulfillment of the right.[4]

Burden of Proof
Absent proof of circumstances showing that the accused did not understand his right to counsel when he was informed of it, then the onus is on the detainee to prove that he was denied an opportunity to ask for counsel at the time of detention.[5]

Choice of Counsel
There is a right to an opportunity to contact counsel of choice.[6]

If the accused asks for a specific lawyer but that lawyer is not available, then they are expected to choose someone else.

Consequence of Invoking the Right
The police have an obligation to hold off from questioning while the accused is given reasonable opportunity to contact a lawyer.[7]

  1. R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J
    R v O'Donnell, 1991 CanLII 2695 (NB C.A.), per Angers JA
  2. R v Brydges, [1990] 1 SCR 190 1990 CanLII 123 (SCC), per Lamer J
    R v Luong, 2000 ABCA 31 (CanLII), per curiam
  3. R v Bartle, [1994] 3 SCR 173, 1994 CanLII 64 (SCC), per Lamer CJ
    R v Pozniak, [1994] 3 SCR 310, 1994 CanLII 66 (SCC), per Lamer CJ
    R v Cobham, [1994] 3 SCR 360, 1994 CanLII 69 (SCC), per Lamer CJ
    R v Matheson, [1994] 3 SCR 328, 1994 CanLII 67 (SCC), per Lamer CJ
  4. R v Deabreu, 1994 CanLII 1186 (ON C.A.), per curiam
  5. R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537, per curiam
  6. R v Kowalchuk, 1999 CanLII 12437 (SK QB), per Matheson J
    R v Keagan, 2003 NLSCTD 48 (CanLII), per Fowler J
    R v Top, 1989 ABCA 98, per Cote JA
    R v Nelson, 1991 CanLII 1446 (BC CA), per MacFarlane JA
    R v Tremblay, [1987] 2 SCR 435 1987 CanLII 28, per Lamer J
    R v Playford, 1987 CanLII 125 (ON CA), per Goodman JA
  7. R v Cutknife, 2000 ABQB 641 (CanLII), per Marceau J
    R v Russell, 2000 NBCA 53 (CanLII), per Deschênes JA

Secondary Caution

See also: Right Against Self-Crimination#Secondary Caution

When Detainee Changes Their Mind (Prosper Warning)

If a detainee changes their mind after initially expressing a desire to access counsel and then changes their mind about counsel after being "diligent but unsuccessful", the police have an obligation to to "inform the detainee of his or her right to a reasonable opportunity to contact counsel".[1] The police also have an obligation to hold off on questioning until after they have informed the detainee of this additional right.[2]

  1. R v Willier, 2010 SCC 37 (CanLII), per McLachlin CJ and Charron J ("[W]hen a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then.")
  2. Prosper, ibid.

Other Consequences

Police are not obliged to notify the detainee that the access to counsel will occur at the police station.[1]

The instructions asking whether they want to speak to counsel "now" does not oblige on-site access to counsel.[2]

It does not necessarily result in a breach if the officer fails to re-advise the detainee of the right to counsel once they are at the station. However, it is generally preferable that officers do so.[3]

  1. R v Devries, 2009 ONCA 477 (CanLII), per Doherty JA
  2. Devries, ibid.
  3. Devries, ibid.

Procedure

Typically, the officer will read from a script such as this:

I am arresting you for [name of offence(s)].

You have the right to retain and instruct counsel without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to [toll-free phone number(s)] during business hours and [toll-free phone number(s)] during non-business hours.

Do you understand?

Do you wish to call a lawyer?

You also have the right to apply for legal assistance through the provincial legal aid program.

Do you understand?

See Also

Implementation Component to Right to Counsel

General Principles

The implementation component is engaged once the detainee indicates a desire to exercise the right to counsel.[1]

The implementation component involves two aspects: [2]

  1. the officer must provide the detainee with reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances.[3]
  2. refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel except in urgent or dangerous circumstances.[4]

Consideration of the elements of the implementation component, particularly the "reasonableness", requires the court to consider the "totality of circumstances".[5] There should be no clear line drawn between "reasonable opportunity" and "reasonable diligence".[6]

If the implementational component was not satisfied then there is a breach of the Charter right.[7]

The right to counsel does not include a right to use of a specific phone that is available. It also does not impose an obligation upon police to give access to their own cell phones or those of others in order to facilitate access to counsel.[8]

Application of Implementation Component
The implementation component does not arise until there is an expressed desire to exercise those rights.[9]

Once the accused has been informed of his rights, he has an obligation to pursue them. [10]

The right to be informed of the right to counsel does not go so far as to guarantee the appreciation of all the information given.[11]

Form of Access to Counsel
The accused is not entitled to counsel to be present in person during an interrogation.[12]

There is nothing preventing the accused from having counsel present with the consent of the police.[13]

Choice of Counsel
The right to counsel includes the right to counsel of choice and that the counsel represents the accused throughout. This right is limited to counsel who are competent to undertake the retainer; willing to act; available to represent the accused within a reasonable time; and free of any conflicts.[14]

If the chosen lawyer is not available within a reasonable amount of time, the detainee is expected to call another lawyer or else the police duty to hold off questioning.[15] What amount to reasonable time depends on the circumstances.[16]

Mental State of Detainee
The detainee must possess an operating mind for the right to be properly exercised.[17]

Physical State of Detainee
Where an accused is brought to hospital due to injuries and detained by police, they still have an obligation to provide access to counsel.[18] The burden is upon the police to prove that there are any "logical or medical barriers" to get the accused in contact with a lawyer.[19]

The police should in all cases make inquiries into the ability of the hospital to facilitate access and the accused health to satisfy himself whether there are barriers to access.[20]

  1. R v Luong, 2000 ABCA 301 (CanLII), per Berger JA at para 12
  2. R v Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3, per Lamer J
  3. R v Bartle 1994 CanLII 64 (SCC), (1994), 92 CCC (3d) 289 (S.C.C.), per Lamer CJ at 301
  4. Bartle, supra at 301
  5. R v Brown, 2009 NBCA 27 (CanLII), per Richard JA at para 23
  6. Brown, ibid.
  7. Luong, supra at para 12
  8. R v Taylor, 2014 SCC 50 (CanLII), per Abella J
  9. R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537, per curiam, at para 6
    R v Bartle at 151-192
  10. R v Tremblay, 1987 CanLII 28 (SCC), [1987] 2 SCR 435, per Lamer J
    R v McCrimmon, [2010] 2 SCR 402, 2010 SCC 36 (CanLII), per McLachlin CJ and Charron J, at para 18
    R v Willier, 2010 SCC 37 (CanLII), per McLachlin CJ and Charron J, at para 33
  11. R v Kennedy, 1995 CanLII 9863 (NL CA), [1995] N.J. No. 340, 135 Nfld. & P.E.I.R. 271 (Nfld. C.A.), per Marshall JA at 28 to 31
  12. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per MacLachlin CJ and Charron J
    R v McCrimmon, supra
  13. Sinclair, supra
  14. R v McCallen, 1999 CanLII 3685 (ON CA), (1999), 131 CCC 518 (Ont.C.A.), per C'Connor JA
  15. Willier, supra
    R v LeClair, 1989 CanLII 134 (SCC), per Lamer J
  16. R v Whitford, 1997 ABCA 85 (CanLII), (1997) 196 AR 97 (CA), per Berger JA
  17. R v Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914, per Sopinka J
  18. R v Taylor, 2014 SCC 50 (CanLII), per Abella J
  19. Taylor, ibid.
  20. Taylor, ibid.

Holding Off on Questioning

The obligation to hold off on questioning does not include questions that are not "about the offence", "to gather evidence", or for "investigative purpose[s]". [1] Questions that are to "assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others" are valid at any time.[2]

  1. R v Sinclair, 2003 BCSC 2040 (CanLII), [2003] BCJ No. 3258, per Powers, aff’d 2008 BCCA 127 (CanLII), 169 C.R.R. (2d) 232, per Frankel JA, aff’d 2010 SCC 35 (CanLII), 259 CCC (3d) 443, per McLachlin CJ and Charron J
    R v Dupe, 2010 ONSC 6594 (CanLII), per Dambrot J at para 24 (must hold off on "questioning intended to elicit evidence, sometimes referred to as investigative questioning")
  2. Dupe, ibid. at para 24

Reasonable Opportunity to Access Counsel

The police must give the accused a reasonable opportunity to contact counsel on arrest in order to foster fair his fair treatment.[1]

Failed Attempts to Contact Counsel
Where the accused fails to reach the lawyer of choice, leaves a voicemail and expects to get a call back but does not tell the officer, and then refuses other counsel, he cannot claim that he was not given reasonable access to counsel.[2]

Facilitating a single failed attempt to call counsel of choice of an accused may or may not be sufficient.[3]

Satisfaction of Accused
Where an accused accesses the phone to speak to counsel and then afterwards states that he will not answer questions until he speaks with legal aid, the officer must make inquiry into whether they were satisfied with their advice or else they will be required to give access to counsel again.[4]

Urgency or Danger
A reasonable opportunity is not needed in circumstances where there is urgency or danger.[5]

The expiry of the two-hour evidentiary presumption under s. 258(1)(c)(ii) is not by itself an urgency to cancel the right to counsel.[6]

Facilitating Internet Access
There has been some suggestion that the access right should include the ability to access the internet to find a lawyer.[7]

  1. R v Brydges 1990 CanLII 123 (SCC), (1990), 53 CCC (3d) 330 (S.C.C.)
  2. R v Top 1989 ABCA 98 (CanLII), (1989), 48 CCC (3d) 493 (Alta.C.A.), per Cote JA
  3. R v Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230, per Weiler JA at paras 11 to 12 - left voice mail with counsel of choice, waited an hour. Refused to accept duty counsel. Police found diligent. c.f. R v Millar, 2008 ONCJ 685 (CanLII), per Reinhardt J at paras 23 to 24 - single phone call insufficient
  4. R v Whitford 1997 ABCA 85 (CanLII), (1997), 115 CCC (3d) 52 (Alta. C.A.), per Berger JA
  5. R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, per Lamer CJ
    R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ ("The existence of exigent or urgent circumstances that militate against any delay in the interrogation")
    R v Taylor, [2014] 2 SCR 495, 2014 SCC 50 (CanLII), per Abella J, at para 31 (“a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances”)
  6. R v Prosper, [1994] 3 SCR 236, 1994 CanLII 65 (SCC)
  7. R v McKay, 2013 ABPC 13 (CanLII), per Lamoureux J

Contacting a Non-Lawyers/Third Parties

Certain courts state there is no absolute right to an accused to contact family members such as wife, even if it were for the purpose of contacting a lawyer.[1] It is only where the accused informs the police that the purpose of the call is to assist in contacting a specific lawyer that the police should permit the phone call.[2] However, the phone call would not be private or privileged.[3]

There is also no violation for refusing an unexplained request to contact a friend in the police force.[4]

Police should generally allow the detainee to contact a third-party such as spouse, parent, neighbour, friend, etc., if it is for the purpose of facilitating contact with legal counsel.[5]

The request to contact counsel through a third party must be reasonable.[6] A request will be unreasonable where it may compromise the investigation, such as where the 3rd party could be an accomplice of some sort or may assist in destroying evidence or intimidating witnesses.[7] It may also be unreasonable where the time to contact the third party is too long.[8]

However, officer can be the intermediary in this contact and does not need to allow the accused to speak to the third-party directly, so long as the accused can properly exercise their right to contact counsel.

  1. R v KWJ, 2012 NWTCA 3 (CanLII), per curiam - no violation of 10(b) where police did not allow accused to contact wife during interrogation
    R v Magalong, 2013 BCCA 478 (CanLII), per Saunders JA at para 33
    c.f. R v Hughes, 2014 ABQB 166 (CanLII), per Bast J at paras 6 to 8
  2. R v Crossman, 1991 CanLII 471 (BC CA), per Lambert JA
    R v Underhill (1992), 1992 CanLII 7709 (ON SC), 10 O.R. (3d) 625 (Ct. J. (Gen. Div.)
    KWJ, supra
  3. KWJ, supra
  4. R v Webber, 2002 BCCA 692 (CanLII)
  5. R v Menard, 2010 BCSC 1416 (CanLII),
    Tremblay, supra
    R v Kumarasamy, [2002] O.J. No. 303 (S.C.J.)(*no CanLII links)
  6. Menard, supra ("the request to contact a third party for assistance in retaining counsel must be a reasonable request")
  7. Menard, supra
  8. Menard, supra

Diligence of the Detainee

The right to counsel is not an absolute right. The accused must be reasonably diligent to exercise it.[1] Where the accused is not diligent, the duties of the police are suspended.[2]

If the first part of the implementational duty is satisfied, the judge will only then consider whether the detainee has been reasonably diligent in exercising the right. The onus is on the accused to establish reasonable diligence.[3]

If the detainee failed to be reasonably diligent in exercising their right, the implementational duties do not arise or are suspended and so there cannot be a violation.[4] 

  1. R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173
  2. R v Brydges, 1990 CanLII 123 (SCC) at at para 14
  3. R v Smith 1989 CanLII 27 (SCC), [1989] 2 SCR 368, 50 CCC (3d) 308  (S.C.C.) at 315-16 and 323
  4. R v Tremblay 1987 CanLII 28 (SCC), (1987), 37 CCC (3d) 565 (S.C.C.) at 568
    R v Leclair 1989 CanLII 134 (SCC), (1989), 46 CCC (3d) 129 (S.C.C.) at 135
    R v Black 1989 CanLII 75 (SCC), (1989), 50 CCC (3d) 1 (S.C.C.) at 13
    Smith, supra at 314
    Bartle, supra at 301
    R v Prosper 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at 375-381 and 400-401 (cited to CCC)

Choice of Counsel

See also: Right to Choice of Counsel

Police Comments to Detainee

The police have a right to try to persuade a person to speak to them.[1]

Disparaging Counsel
It is not permissible for a police officer to make inappropriate comments regarding defence counsel that attack their integrity.[2] Where police do so, it has the effect of nullifying the reliance the advice given. To rebut this nullification, it would be necessary to have the detainee be given a further opportunity to contact a lawyer.[3]

Inappropriate attacks on the integrity of counsel consist of comments are those that are "repeated disparaging comments made about defence counsel’s loyalty, commitment, availability, as well as the amount of his legal fees".[4]

However, not all negative comments will amount to a breach of s. 10(b).[5]

Police should not attempt to say anything that may cause the accused to be "talked out" or otherwise persuaded not to call legal aid duty counsel.[6]

  1. R v Hebert (1990), 1990 CanLII 118 (SCC), per McLachlin J
    R v Ekman, 1999 CanLII 6732 (BC SC), per Stromberg-Stein J
  2. R v Burlingham 1995 CanLII 88 (SCC), [1995] 2 SCR 206, per Iacobucci J
    R v McKinnon, 2005 ABQB 303 (CanLII), per Sullivan J
    R v Timmons, 2002 NSSC 113 (CanLII), [2002] NSJ 209, per Edwards J
  3. See Burlingham, supra
  4. Burlingham, supra at para 4
  5. e.g. see R v Mujku, 2011 ONCA 64 (CanLII), per MacPherson JA
  6. R v Balgobin, 2011 ONCJ 108 (CanLII), per Libman J - officer stated it could take anywhere from 2 minutes to two hours for duty counsel to call back.

Delay in Contacting Counsel

The degree of delay permitted is a matter of context.[1]

The police wait of 10 minutes after a second failed attempt to contact counsel to conduct breath test breached s. 10(b) rights.[2]

Examples
Evidence obtained from a motorist’s involvement in screening tests, without being given their right to counsel, should be excluded from evidence incriminating the driver. [3]

  1. R v Smith, 1986 CanLII 103 (MB CA), per Huband JA
  2. R v Samatar, 2011 ONCJ 520 (CanLII), per Knazan J
  3. R v Orbanski 2005 SCC 37 (CanLII), per Charron J

Privacy While in Contact with Lawyer

The right to counsel includes the corollary right to consult in private.[1]

R v O’Donnell, 2004 NBCA 26 (CanLII), per Robertson JA at para 4
</ref>This means that at a "bare minimum" the detainee must be able to consult with counsel without the conversation being overheard.[2]

A violation will exist where the accused reasonably believes that the police may be overhearing the conversation with counsel regardless of whether police are actually listening.[3]

There is no obligation on the part of the detainee to request privacy in making their phone call.[4]

  1. R v Young (1987), 1987 CanLII 108 (NB CA), 81 N.B.R. (2d) 233 (N.B. C.A.), per Stratton CJ
    R v LePage (1986), 1986 CanLII 119 (NS CA), 32 CCC (3d) 171 (N.S. C.A.), per Jones JA
    R v McKane (1987), 35 CCC (3d) 481 (Ont. C.A.), 1987 CanLII 6794 (ON CA), per Martin JA
    R v Playford (1987), 1987 CanLII 125 (ON CA), 40 CCC (3d) 142 (Ont. C.A.), per Goodman JA
  2. O'Donnell, ibid. at para 4
  3. R v Banks, 2009 ONCJ 604 (CanLII), per Perkins-McVey J
  4. O'Donnell, supra at para 4

Quality of Advice

The "police have no obligation under s. 10(b) to monitor the quality of the legal advice received by a detainee from duty counsel".[1]

It is also not proper to speculate on how legal advice would have changed the ultimate decisions on the part of the accused.[2]

  1. R v Beierl, 2010 ONCA 697 (CanLII), per curiam
  2. R v Black, [1989] 2 SCR 138, 1989 CanLII 75 (SCC), per Wilson J at para 24 (" It is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.")

Fulfillment of Obligation

The advice received in privileged and so police do not need to inquire about the adequacy of the legal advice the detainee received.[1] If there is any issue with the advice given that is for the detainee to raise.

If the detainee is unsuccessful in reaching a lawyer, for example, if he receives a busy signal, no answer, disconnected phone, recorded message, or someone other than the lawyer, it is for the accused to inform the police about so that they can fulfill their duty. It is not for the police to "play twenty questions".[2]

The judge must take an objective view of the circumstances to determine if the implementational component was fulfilled.[3] This must take into account the "totality of the circumstances".[4]

The police are entitled to act on what the accused tells them about the access to counsel. The are not expected to be "mind-readers".[5]

The police may be able to infer that the accused is ready to move on to the next step where he knocks on the door to retrieve the officer.[6]

  1. R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429, per McLachlin CJ and Charron J
  2. R v Top 1989 ABCA 98 (CanLII), (1989), 48 CCC (3d) 493, per Cote JA at p. 497
  3. Top, ibid.
  4. R v Adamiak, 2013 ABCA 199 (CanLII), per curiam, at para 27 (“...whether his section 10(b) rights were breached required an examination of the totality of the circumstances ...”)
  5. Top, ibid.
    R v Liew, 1998 ABCA 98 (CanLII), (1998) 212 AR 381, per Veit J at para 18 (“He did not tell them of his difficulty. The police are not mind-readers and, as this Court has said in the past, they are not there to play "Twenty Questions".”)
  6. R v Jones, 2005 ABCA 289 (CanLII), per curiam (2:1) at para 11 (“On the only evidence, the appellant knocked on the door because he had terminated his efforts and was ready to proceed to the next step. The police officer reasonably concluded from the appellant's actions that the appellant had terminated his efforts to try to call his own lawyer.”)

Right to Additional Opportunities to Consult with Counsel

General Principles

See also: Implementation Component to Right to Counsel

Generally, once a detainee has finished exercising their right to counsel they have no further ability to access counsel again.[1] The right to counsel is "essentially a one time matter", unless it falls into one of the exceptions.[2]

Absent one of the exceptions, further access to counsel beyond the first consultation is entirely discretionary.[3] This applies even where the police may have promised further access.[4]

  1. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J
  2. Sinclair, ibid. at para 64
  3. R v Briscoe 2012 ABQB 111 (CanLII), per Yamauchi J at para 113
  4. Briscoe, ibid. at para 114, 119

Exceptions

Several exceptions exist:[1]

  • Where during the investigation "new or non-routine procedures involving the detainee" are being applied, the accused should be permitted counsel.[2]
  • where the jeopardy increases due to new evidence rendering the offence more serious or new, more serious charges arise.[3]
  • if it is learned that the previous waiver of rights was not done properly.[4]
  • the previous caution was insufficient or defective
  • "change in circumstances results from new procedures involving the detainee"
  • "developments in the investigation" such that they accuse must chose "whether they should ... cooperate with the investigation or not"

The categories of circumstances that require additional access to counsel is not a "closed" list.[5]

Change in Circumstances Exception
The detainee will get an additional chance to consult with counsel where there had been a "change in circumstances" that are objectively observable that renders access "necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation".[6]

  1. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J, at para 2
    R v MacLean, 2013 ABQB 60 (CanLII), per Ouellette J at para 24
    R v M(AR), 2011 ABCA 98 (CanLII), per curiam at para 38 leave denied
  2. Sinclair, supra at paras 50-52
    R v Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3, per Lamer J
  3. Sinclair, supra at paras 50-52
    See R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, per McLachlin J
    R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J
  4. See R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206, per Iacobucci J
  5. Sinclair, supra
  6. Sinclair, supra at para 54

Procedure

Where new or non-routine procedures involving the detainee arise, the detainee should be permitted new access to counsel.[1]

The applicable procedures will not be those that are part of "predictable police questioning".[2]

The procedure will arise where the detainee's participation is "essential" and they have a right to decline participation or a right to understand the procedure.[3]

"Non-routine" procedures will include participation in a line-up or submitting to a polygraph.[4]

A "re-enactment" is not considered a non-routine procedure. It is merely a "statement by conduct".[5]

  1. R v ARM, 2011 ABCA 98 (CanLII), per curiam
  2. R v Briscoe, 2015 ABCA 2 (CanLII), per Watson JA at para 48
  3. Biscoe, ibid. at para 48
  4. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J at para 50
  5. R v Ashmore, 2011 BCCA 18 (CanLII), per Frankel JA

Change of Jeopardy

While a detainee is in custody on charges and has received access to counsel, but at some point later the circumstances of the detainment change and further charges are being investigated resulting in a change in jeopardy in the detainee, the accused must be given a further opportunity to consult with counsel on the new situation.[1]

A change in circumstances "must be objectively observable in order to trigger additional implementational duties for the police".[2] The change in circumstances must suggest "that the choice faced by the accused has been significantly altered" requiring advice in order to fill the purposes of the charter right.[3]

There will only be a breach when "it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct".[4]

Where a person was given access to counsel on arrest, a laying of the charge on the offence for which he was arrested is not a change of circumstances.[5]

Police may assume that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his rights in the context of the police investigation.[6]

  1. R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J
    R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J
  2. Sinclair, ibid.
  3. Sinclair, ibid.
  4. Sinclair, ibid.
  5. R v Bhander, 2012 BCCA 441 (CanLII), per Saunders JA at para 40 to 46
  6. Sinclair, ibid.

Post-Charge Detention

General Principles

Holding a person in custody when it is not prescribed by the provisions of the Criminal Code would be a violation of s. 9 of the Charter.[1]

  1. R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J at para 54 (“[A] detention not authorized by law is arbitrary and violates s. 9 [of the Charter]”)

Release

When Detained by Peace Officer

Release from custody by peace officer
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) [issuing an appearance notice], the peace officer shall, as soon as practicable,

(a) release the person from custody with the intention of compelling their appearance by way of summons; or
(b) issue an appearance notice to the person and then release them.

Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3) [Remand in custody for return to jurisdiction where offence alleged to have been committed].
Consequences of non-release
(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).
[annotation(s) added]


CCC

When Detained by Officer-in-Charge

Release from custody by officer in charge
498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) [deliver to police after citizen's arrest] or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) [taking a detainee before a justice] for an offence described in paragraph 496(a), (b) or (c) [issuing an appearance notice], or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).


CCC

Section 498 directs an officer to release an accused as soon as practicable, unless one of the reasons listed in (1.1). One of the "reasonable public interest" grounds include the need to detain a person until they are sober and safe to be released.[1]

  1. R v Viszlai, 2012 BCCA 442 (CanLII), per Frankel JA at para 47
    R v Sapusak, [1998] O.J. No. 3299(*no CanLII links)
    R v Coulter, [2000] O.J. No. 3452 (Ont. Ct. J.), affirmed [2001] O.J. No. 5608 (Sup. Ct. J.)(*no CanLII links)
    R v Padda, 2003 CanLII 52405 (ON CJ), [2003] O.J. No. 5502 (Ont. Ct. J.), per Duncan J
    R v Gaudette, [2005] O.J. No. 2399 (Ont. Ct. J.)(*no CanLII links) , reversed for other reasons, [2006] O.J. No. 3732 (Sup. Ct. J)(*no CanLII links)
    R v Kisil, 2009 ONCJ 424 (CanLII), [2009] O.J. No. 3821 (Ont. Ct. J.), per Nadel J
    R v Prentice, 2009 ONCJ 708 (CanLII), [2009] O.J. No 6001 (Ont .Ct .J.), per Schwarzl J
    R v Key, 2011 ONCJ 780 (CanLII), [2011] O.J. No. 5972 (Ont. Ct. J.), per Robertson J
    R v Baxter, 2012 ONCJ 91 (CanLII), [2012] O.J. No. 796 (Ont. Ct.J), per Schwarzl J

Impaired Driving Investigations

Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:[1]

  1. the accused's blood alcohol level,
  2. whether the accused was charged with impaired operation,
  3. his or her level of comprehension,
  4. that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension),
  5. that the accused's vehicle would have been impounded,
  6. whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound,
  7. whether the accused had a criminal record and if so, its contents,
  8. whether the accused had outstanding charges,
  9. his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment.

The analysis should not simply be limited to the BAC level results.[2]

  1. R v Price 2010 ONSC 1898 (CanLII), per Durno J, at para 93
  2. Price, ibid. at para 93

Taking to a Judge

Under s. 503, when a police officer arrests an individual without a warrant, they have the discretion to hold the person for up to 24 hours until charges are laid and they must be prepared to show cause as to why the person should be kept in custody before a Judge of the Court or Justice of the Peace. The Justice will assess whether there is a reason to detain the individual or else release them on any conditions.

The 24 hour time limitation can be extended where a judge or justice of the peace is not available within the time limit such as during weekends or holidays.

Section 503 states:

Taking before justice
503. (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) [delivery to police after citizen arrest] or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,

(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him.

...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).
[annotation(s) added]


CCC

Where the decision to detain is not made out, such as under s. 498 [4], it may be grounds for a stay of proceedings.[1]

This is governed by section 83.3 of the Criminal Code:

Duty of peace officer
83.3
...
(5) If a peace officer arrests a person without warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

(a) lay an information in accordance with subsection (2); or
(b) release the person.

When person to be taken before judge
(6) A person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

(a) if a provincial court judge is available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period, and
(b) if a provincial court judge is not available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as possible,

unless, at any time before the expiry of the time prescribed in paragraph (a) or (b) for taking the person before a provincial court judge, the peace officer, or an officer in charge within the meaning of Part XV [Special Procedure and Powers, s. 483 to 492.2], is satisfied that the person should be released from custody unconditionally, and so releases the person.
...
2001, c. 41, s. 4.
[annotation(s) added]


CCC

For more details on this see the Chapter on Compelling the Accused to Attend Court.

  1. R v Lewis, 2001 BCPC 426 (CanLII), per Dossa J
    R v McKelvey, 2008 ABQB 466 (CanLII), per Langston J

See Also

Waiver of Charter Rights

General Principles

The waiver of any Charter right must be done clearly and unequivocally with full knowledge of the scope of the right and effect of the waiver.[1]

It is necessary for the Crown to prove waiver of an accused right under s. 8.[2]

An express or implied invitation, such as at the attendance of police at the door of a residence or being invited into the house, results in the waiving of privacy.[3]

  1. Korponay v Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 SCR 41, per Lamer J at p. 49 ("the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.")
  2. See: R v Neilson, 1988 CanLII 213, (1988), 43 CCC (3d) 548 (SKCA), per Bayda CJ
  3. See R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, per Sopinka J at 12-13 implied invitation
    R v Roy, 2010 BCCA 448 (CanLII), per Lowry JA express invitation

See Also

Exclusion of Evidence Under Section 24(2) of the Charter

General Principles

See also: Discretionary Exclusion of Evidence

Where there has been a finding of a breach of any right under the Charter, the applicant may apply to have evidence that is connected with the breach excluded from the trial under s. 24(2) of the Charter which states:

Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


CCRF

Necessary Elements to Invoke s. 24(2) of the Charter
In order to invoke section 24(2) to exclude evidence, there must be a (1) infringement of Charter rights, (2) nexus between the in infringement and the evidence to be excluded, (3) the effects of the breach warrant the exclusion of evidence.[1]

Standing
Only a person whose Charter right have been infringed may claim relief under s. 24(2) of the Charter.[2]

Burden and Standard of Proof
Section 24(2) analysis assumes that a breach has already been established and that the breach will bring the administration of justice into disrepute. The burden then shifts to the Crown to prove that in fact the administration of justice will not be brought into disrepute.[3]

The standard of proof is on the balance of probabilities.[4]

Purpose
The purpose of s. 24(2) is to ensure the admission of evidence obtained by a Charter breach will not further damage the repute of the justice system beyond what has already been caused by the breach itself.[5]

The section primarily intends to "maintain the good repute of the administration of justice", which relates to "the processes by which those who break the law are investigated, charged and tried". It also includes "maintaining the rule of law and upholding Charter rights".[6]

Breach of Charter rights "affects not only the accused, but also the entire reputation of the criminal justice system". It follows that the "the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques are of fundamental importance in applying" s. 24(2).[7]

The section is not intended to "punis[h] the police or provid[e] compensation to the accused".[8]

Interpretation
Like other parts of the Charter, s. 24(2) is to be interpreted in a "purposive" manner.[9]

The use of the word "would" is interpreted as equivalent to "could". This is due to the interpretive relevance of the french version of the section which is more generous to the accused.[10]

Types of Evidence
The types of evidence that can be excluded can include observational evidence made by police officers after the Charter breach.[11]

"Court of Competent Jurisdiction"
The Court must be a "court of competent jurisdiction" in order to have the power to exclude evidence under s. 24(2) of the Charter.[12]

  1. R v Spackman, 2012 ONCA 905 (CanLII), per Watt JA at para 100
  2. Charter Applications#Standing
  3. R v Simpenzwe, 2009 ABQB 579 (CanLII), per Yamauchi J at para 48
  4. R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer CJ, at pp. 276-277
    see also R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613, per Dickson CJ
    R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, per Dickson CJ
  5. R v Grant 2009 SCC 32 (CanLII), per McLachln CJ and Charron J at para 69
  6. Grant, ibid. at para 67
  7. R v Burlingham, [1995] 2 SCR 206, 1995 CanLII 88 (SCC), per Iacobucci J at para 50 ("Short-cutting or short circuiting [Charter] rights affects not only the accused, but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental importance in applying s. 24(2)")
  8. Grant, supra at para 70
  9. Collins, supra at p. 287
  10. Collins, supra at p. 287 (SCR)
  11. R v Yaran, 2009 ABPC 150 (CanLII), per Fradsham J at para 8
  12. Collins, supra p. 287

Test for Exclusion

Revised Test
The Supreme Court of Canada made a complete revision of the analytical approach in R v Grant, 2009 SCC 32 (CanLII). Under Grant, there are "three avenues of inquiry" that a court must consider:[1]

...when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute...

The factors should be weighed to determine whether, "having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute". [2] No single factor should trump any of the other factors.[3]

The balancing is not a determination of whether the court approves or disapproves of the conduct in the particular case, but is meant to consider the broader effects of judicially condoning the Charter breach by allowing the Crown to admit evidence it should not have.[4]

This analysis should focus on the "long-term, prospective and societal" effect of the violations.[5]

It is less concerned with the particular case as it is concerned with the impact in the future of admitting evidence obtained in such a illegal manner.[6]

It is intended to reflect society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law".[7]

The analysis should be from an objective view and ask "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute"[8]

There is no rule requiring the automatic exclusion of a statement obtained by Charter violations.[9]

Relationship between the Three Factors
The first two factors are meant to work "in tandem" as they both pull towards the exclusion of evidence, while the third factor pulls in the opposite direction towards the interests in admitting the evidence.[10]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J, at para 71
  2. R v Harrison, 2009 SCC 34 (CanLII), per McLachlin CJ at para 36 See also R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J
    R v Côté, 2011 SCC 46 (CanLII), [2011] 3 SCR 215, per Cromwell J, at para 45-48
  3. Grant, supra at para 86
  4. R v ARM, 2011 ABCA 98 (CanLII), per Topolniski JA at para 64
  5. see R v Mahmood, 2011 ONCA 693 (CanLII), per Watt JA
    R v Dhillon, 2012 BCCA 254 (CanLII), [2012] BCJ No. 1158 (C.A.), per D Smith JA at para 78
    Grant, supra at para 69 and 70
  6. R v Morelli, 2010 SCC 8 (CanLII), per Fish J at para 108
  7. R v Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.), per Cory J at pp. 1219-20
  8. Grant, supra at para 68
  9. R v NY, 2012 ONCA 745 (CanLII), per Blair JA at para 56, 57
  10. R v McGuffie, 2016 ONCA 365 (CanLII) , per Doherty JA at para 62 to 63

Appellate Standard of Review

A appellate court should give a discretionary decision of a judge, such as in a 24(2) analysis, high deference. The judge should only interfere where "the judge did not give weight to all relevant considerations". [1]

The decision to exclude evidence under s. 24(2) is a matter of law, however, one with “considerable deference”. [2]

Failure to perform the s. 24(2) Charter analysis is an error or law and is reviewable on a standard of correctness.[3]

Absent an error of principle, a palpable and overriding factual error or an "unreasonable determination", an appellate court should not interfere with the application of s. 24(2) of the Charter.[4]

  1. R v Bacon, 2012 BCCA 323 (CanLII), per Saunders J at para 14
  2. see R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J at para 43, 86
    R v Beaulieu, 2010 SCC 7 (CanLII), per Charron J at para 5
    R v Cote, [2011] 3 SCR 215, 2011 SCC 46 (CanLII), per Cromwell J at para 44
  3. R v Willier, 2008 ABCA 126 (CanLII), 429 AR 135, per Slatter JA aff’d 2010 SCC 37 (CanLII), [2010] 2 SCR 429
  4. R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA, at para. 64
    R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J, at para. 86
    R v Cole, 2012 SCC 53 (CanLII), per Fish J, at para. 82
    R v Côté, 2011 SCC 46 (CanLII), per Cromwell J, at para. 44

Causation ("in a manner")

The breach of a Charter will only warrant a remedy under s. 24(2) where the evidence was obtained "in a manner" that violated the Charter right.[1]

The nexus element requires that the evidence be obtained by the breach. Without causation there is no remedy under s. 24(2).[2] However, there is a residual exclusion of evidence under s. 24(1) for violation of trial fairness protected under s. 7 and 11(d) of the Charter.[3]

The proximity of the connection between the breach and the evidence is a question of fact on each case.[4]

A strict causal connection between the breach and the evidence is not required. Rather a "purposive and generous approach" should be taken.[5] The evidence is "tainted" by the breach if the evidence "can be said to be part of the same transaction or course of conduct".[6] This determination can be identified "causally, temporally and/or contextually".[7]

Examples
Evidence seized through a valid search done pursuant to a warrant can still be subject to exclusion as a warrant cannot be said to "expressly or by necessary implication or by the operating requirements of the legislation overrides the citizen's s. 10(b) rights".[8]

The police cannot use evidence obtained by a prior Charter breach to support a search warrant to seize further evidence.[9]

  1. Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980 (QL), per Dickson CJ, at para 48 “…the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence”.
  2. R v Spackman, 2012 ONCA 905 (CanLII), per Watt JA, at para 101
    R v Petit, 2003 BCCA 522 (CanLII), per Donald JA
    R v Luu, 2006 BCCA 73 (CanLII), per Smith JA
  3. Spackman, supra at para 101
    R v White 1999 CanLII 689 (SCC), [1999] 2 SCR 417, per Iacobucci J at para 89
    R v Harrer, 1995 CanLII 70 (SCC), [1995] 3 SCR 562, per La Forest J at para 42
  4. R v Goldhart, 1996 CanLII 214 (SCC), [1996] 2 SCR 463, per Sopinka J at para. 40
  5. R v Plaha, 2004 CanLII 21043 (ON CA), per Sopinka J at para 45 ("The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.")
    R v Wittwer, 2008 SCC 33 (CanLII), per Fish J at para 21 ("In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct...The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”...A connection that is merely “remote” or “tenuous” will not suffice...")
    R v Butters, 2014 ONCJ 228 (CanLII), per Paciocco J, at para 63
    R v Pino, 2016 ONCA 389 (CanLII), per Laskin JA at para 50 to 68
  6. Wittwer, supra at para 21 ("The [evidence] will be tainted if the breach and the impugned [evidence] can be said to be part of the same transaction or course of conduct")
  7. Butters, supra, at para 63
    R v Mack, 2014 SCC 58 (CanLII), per Moldaver J
    Goldhart, supra para 40
    R v Keror, 2017 ABCA 273 (CanLII), per curiam
  8. R v Strachan, [1988] 2 SCR 980, 1988 CanLII 25 (SCC), per Dickson CJ, at para 64 per Wilson J (in concurrence) (there is no "search warrants which expressly or by necessary implication or by the operating requirements of the legislation overrides the citizen's s. 10(b) rights")
  9. R v Carrier, 1996 ABCA 145 (CanLII), per Cote JA at para 55 (we do not want the police "to get a warrant on the basis of some earlier Charter breach, and then shore up the voidable warrant with the fruits of the search which it purported to authorize.")
    R v Evans, [1996] 1 SCR 8, 1996 CanLII 248 (SCC), per Sopinka J at para 19 ("warrants based solely on information gleaned in violation of the Charter are invalid")

First Factor: Seriousness of Police Misconduct

The first factor considers the effect of the police misconduct on the reputation of the justice system. Effectively, considering whether the courts are "condoning" the deviation from the rule of law by failing to disassociate themselves from the fruits of the misconduct.[1]

This factor involves the exercise of placing the breach on the "continuum of misconduct".[2]

However, an over-readiness to exclude for "fleeting and technical violation[s]" is likely "to be seen as symptom of systemic impotency which would breed public contempt for the criminal justice system"[3]

The inquiry is into "what the police did" and what is "their attitude when they did it".[4]

Factors the court must consider include:[5]

  • Was the breach “inadvertent or minor” or a result of willful or reckless or deliberate disregard for the Charter?
  • Did the police act in good faith?
  • Were there “extenuating circumstances”?

The existence of multiple Charter breaches will have the effect of aggravating the seriousness of the breach. [6]

  1. R v Ngai, 2010 ABCA 10 (CanLII), [2010] A.J. No. 96 (C.A.), ("court's first stage of inquiry requires it to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to disassociate themselves from the fruit of that unlawful conduct." )
    R v Dhillon, 2010 ONCA 582 (CanLII), [2010] O.J. No. 3749 (C.A.), per Simmons JA at para 45
  2. R v Blake, 2010 ONCA 1 (CanLII), [2010] OJ No 48 (ONCA), per Doherty JA
    R v Flett, 2016 MBPC 66 (CanLII), per Corrin J at para 20
  3. see R v Shinkewski, 2012 SKCA 63 (CanLII), [2012] S.J. No. 376 (C.A.), per Caldwell JA at para 33
    R v Giulioni, 2011 NLTD 117 (CanLII), [2011] N.J. No. 322 (S.C.), per Goodridge J
    R v Hart, 2012 NLCA 61 (CanLII), per Barry JA
  4. R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA at para 48
  5. R v Loewen 2010 ABCA 255 (CanLII), per Slatter JA at para 83
  6. R v Calderon (2004) 2004 CanLII 7569 (ON CA), 188 CCC (3d) 481 (Ont. C.A.), per Weiler JA, at paras. 93-94

Level of Intent

The gravity of the conduct depends on the degree of intention of the officer, ranging from inadvertent or minor violations to willful or reckless disregard for Charter rights.[1]

Flagrant disregard of Charter right are to be treated differently than breaches arising out of conduct that is in accordance with the law.[2]

The Court should consider "what the police did and their attitude when they did it".[3]

A "cavalier" attitude to the use of police powers will also aggravate the breach.[4]

The judge is permitted to proceed on the basis that the police conduct themselves in accordance with the law where there has been no "claim of police misconduct or negligence in [police activity]”.[5]

Whether the conduct was an isolated incident or part of a larger pattern of police disregard of Charter rights will affect the seriousness of the breach.[6] This can usually come out through voir dire evidence of whether the officer was acting on an established practice.

The seriousness can be mitigated by factors such as "good faith" on the part of the officer or extenuating circumstances that may warrant quick action to avoid losing evidence.[7]

The presence of reasonable and probable grounds for the police conduct will lessen the seriousness of the violation.[8]

The officer's knowledge of their limits of their authority is a factor in determining the seriousness of the breach.[9]

Even physical evidence that is reliable can be excluded where the violation was "deliberate and egregious and severely impacted" the accused's rights.[10]

Technical Errors
Mere technical errors in the warrant that results in a breach, absent bad faith or negligence, should not be used to undermine or upset presumptively valid warrants.[11]

Negligence
When evaluating conduct it is permissible for a judge to make findings that the police were careless or negligent.[12]

Negligence can be found where there are errors on the face of the warrant such that "with a minimum of care and attention" by the affiant, authorizing justice, or executing officers, it would have been discovered.[13]

Overly expeditious execution of a warrant where there is knowledge on the part of the police that there was no risks of destruction of evidence may play a part in the considerations.[14]

Errors in the dates authorized for the execution of the search have been found to be negligent.[15]

Alternatives
Where the evidence could have been obtained without infringing the Charter can render the breach more serious.[16]

Examples
Entry into a residence with an invalid warrant or without any warrant is considered a serious violation of the accused's rights and tends to lean towards exclusion.[17]

Factors considered on a breach of s. 8 include:[18]

  1. the good faith of the officers who breached the rights;
  2. was the police conduct inadvertent or a deliberate ignoring of the law?
  3. were their actions motivated by a genuine and realistic urgency or necessity?
  4. could the evidence have been found in any other way?
  5. the obtrusiveness or otherwise of the search
  6. any expectation of privacy; and
  7. the existence of reasonable and probable grounds.
  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 74
  2. see R v Beaulieu, 2010 SCC 7 (CanLII), [2010] 1 SCR 248, per Charron J
    R v Loewen, 2011 SCC 21 (CanLII), [2011] 2 SCR 167, per McLachlin CJ
  3. see R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA, at para 48
  4. R v Brown, 2012 ONCA 225 (CanLII), per curiam
  5. R v Blake, 2010 ONCA 1 (CanLII), per Doherty JA
  6. R v Greffe, 1990 CanLII 143 (SCC), [1990] 1 SCR 755, per Lamer J, at para 50
  7. R v Silveira, 1995 CanLII 89 (S.C.C.), [1995] 2 SCR 297, per Cory J
  8. R v Caslake, 1998 CanLII 838 (SCC), [1998] 1 SCR 51, per Lamer CJ
    R v Belnavis, 1997 CanLII 320 (SCC), [1997] 3 SCR 341, per Cory J
  9. R v Nguyen, 2009 CanLII 59692 (ON SC), per Bryant J at para 220
  10. Nguyen, ibid.
  11. R v Pammett, 2014 ONSC 1242 (CanLII), per McCarthy J, at para 10
  12. R v Campbell, 2018 NSCA 42 (CanLII), per Bourgeois JA at paras 30 to 31, 37
  13. Campbell, ibid. at para 40
  14. Campbell, ibid. at para 40
  15. Campbell, ibid.
    R v LSU, 1999 CanLII 15167 (BC SC), per Stromberg-Stein J, at para 39 ("Non-compliance with the time indicated on the search, acting on an undated search warrant, and the preparation of an inadequate Information to Obtain is not merely sloppy and careless but amounts to negligence.")
  16. Nguyen, ibid. at para 222
  17. R v Maton, 2005 BCSC 330 (CanLII), per Romilly J at para 56-64
  18. R v Moldovan, 2009 CanLII 58062 (ON SC), per R Clark J, at para 163
    R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J at paras 52

Good Faith

Good faith, if established, will favour admission because it will "reduce the need for the court to disassociate itself from police conduct".[1]

Evidence including testimony from the officer establishing that they reasonably believed that their actions were authorized by law or reflective of the state of the law at the time.[2]

Good faith however cannot be equated with wilful blindness, negligence or ignorance.[3] Same goes for recklessness[4], negligence[5], casually,[6], or intentionally.[7]

Courts should forgive "understandable errors" since they do not significantly corrode public confidence in the system.[8] There can be no finding of bad faith where the police do exactly what they are supposed to do in the circumstances.[9]

The officer's quality and focus of training has some but limited importance in considering good faith.[10]

Whether the Crown was consulted for advice on the matter will weigh towards the likelihood of good faith.[11] There is however little relevancy in the failure of either police or crown to take notes of their advice conversation.[12]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 75
  2. R v Spencer, 2014 SCC 43 (CanLII), per Cromwell J at para 77
  3. R v Tombs, 2012 BCSC 1826 (CanLII), per Brown J, at paras 89 to 90
  4. Grant, supra at para 74
  5. R v Morelli, 2010 SCC 8 (CanLII), per Fish J at para 99
  6. R v Buhay, 2003 SCC 30 (CanLII), per Arbour J at para 57
  7. Grant, supra at para 133
  8. Grant, supra at para 75
  9. R v Blake, 2010 ONCA 1 (CanLII), per Doherty JA at para 25
  10. R v Clayton, 2007 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J at para 51, 52
  11. R v Jones, 2011 ONCA 632 (CanLII), per Blair JA
  12. see Jones, ibid.

Urgency or Necessity

Searches that are done out of urgency or necessity favour admission of evidence. [1] Circumstances would include risk of evidence being destroyed or lost.[2]

The presence of ignored lesser intrusive options to chosen the method of investigation will have an aggravating effect on the seriousness of the Charter breach.[3]

A disregard of any non-violate alternative options supports exclusion of the evidence.[4]

  1. R v Buhay, 2003 SCC 30 (CanLII), [2003] 1 SCR 631, per Arbour J at para 52, 61, 63
  2. Buhay, ibid.
  3. R v Brown, 2012 ONCA 225 (CanLII), per curiam
  4. R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer CJ at para 38

Police Policies and Practice

It is valid for courts to consider the existence of police policy when the infringing police conduct was in compliance with policies or practices. This will militate towards exclusion.[1]

  1. R v GTD, 2017 ABCA 274 (CanLII), per curiam (2:1) aff'd at 2018 SCC 7 (CanLII), per Brown J

Second Factor: Impact on Personal Interests

The greater the impact on the accused's rights, the more likely admission of the evidence will bring the administration of justice into disrepute.[1]

The impact on the personal interests is a two part inquiry. First, the interest engaged must identified, and then the degree to which the violation impacted this interest must be considered.

The impact can range from fleeting and technical to profoundly intrusive.[2]

Being stopped and searched without justification impacts liberty and privacy in more than a trivial manner. [3]

Stopping a vehicle creates a lesser impact on personal interests than a search of a residence.[4]

In the context of an roadside screening demand, it has been said that only the breaching event is to be considered in determining the impact on personal interests. The judge should not consider the events that follow including the subsequent arrest, personal consequences, or employment consequences.[5]

Denial of Ownership of Evidence
The fact that the accused denies ownership in the item seized is an "important factor" to consider[6]


  1. R v Côté, 2011 SCC 46 (CanLII) at para 47
  2. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J
  3. R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494 at para 31 "being stopped and subjected to a search by the police without justification impacts on the motorist's rightful expectation of liberty and privacy in a way that is much more than trivial.”)
  4. see R v Bacon, 2012 BCCA 323 (CanLII), [2012] BCJ No. 1571 (C.A.), at para 34
    R v Loewen, 2011 SCC 21 (CanLII), [2011] 2 SCR 167, [2011] S.C.J. No. 100, at para 12 and 13
    R v Harrison, at para 31
  5. R v Booth, 2010 ABQB 797 (CanLII)
  6. R v Harrison, [2009] 2 SCR 494, 2009 SCC 34 (CanLII), at para 63 and 64 endorsing the Court of Appeal decision

Discoverability

The older test under Collins placed emphasis on the discoverability of the evidence, inquiring whether the evidence would have been otherwise discovered during the investigation. Under the new model, the discoverability is still relevant to the first two branches of the analysis but less crucial to the analysis.[1] However, putting too much weight on discoverability may be an error in law.[2]

The law remains that the impact of a breach is lessened and the admission is more likely where the derivative evidence was otherwise discoverable.[3] The "more likely that the evidence would have been obtained even without [the impugned statement of the accused] the lesser the impact of the breach on the accused’s underlying interest against self-incrimination".[4]

  1. R v Côté, 2011 SCC 46 (CanLII) at para 70
  2. R v MacMillan, 2013 ONCA 109 (CanLII) starting at para 63
  3. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 125
  4. Grant, ibid. at para 122

Third Factor: Interest in Trying Case on Merits

The third step considers the "truth-seeking function" of the trial process.[1] It asks whether this "truth-seeking function" is better served by either the exclusion or admission of the evidence.[2]

This factor "reflects society's expectation that the criminal allegations will be adjudicated according to their merits."[3] It is presumed that society has an interest in adjudicating matters on the merits. A balance must be made between the effect of its exclusion to the effect of its inclusion.

This factor "becomes important" when either the first or the second factor (but not both) push "strongly toward the exclusion of the evidence".[4] However, where both favour exclusion, the third factor will "seldom, if ever, tip the balance in favour of admissibility'.[5] When both favour inclusion, the third factor will "almost certainly confirm the admissibility of the evidence".[6]

Relability of the Evidence
The "reliability" of the evidence is an important inquiry. If the breach brings the reliability into question it will favour exclusion.[7] Admitting unreliable impacts the fairness of the trial and the public's desire to uncover the truth. However, excluding reliable evidence will undermine trial fairness and the truth-seeking function of the justice system.[8]

It is inconsistent with the Charter to "view that reliable evidence is admissible regardless of how it was obtained".[9]

Where the evidence forms the core of the Crown's case, admitting unreliable evidence is more likely to bring the administration of justice into disrepute. By contrast, excluding reliable evidence in such a circumstances will impact trial fairness and the truth-seeking function even more.[10]

Importance to the Crown's Case
The importance of the evidence on the Crown's case is also important. [11] Where the exclusion would effectively "gut" the case, it will be a factor in favour of admission.[12]

Seriousness of Offence
The seriousness of the offence has some importance,[13] but not as much as it did under the old "Stillman test".[14] Nevertheless, seriousness can "cut both ways".[15] The importance of the short-term desire to convict for serious offences is balanced against the need for fair conduct where the penalty is so great.

There will be cases where the seriousness of the offence is considered "neutral".[16]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J
  2. Grant, ibid. at para 79
  3. R v Manchulenko, 2013 ONCA 543 (CanLII), per Watt JA, at para 92
  4. R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA at para 63 ("In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence")
  5. McGuffie, ibid. at para 63
  6. McGuffie, ibid. at para 63
  7. Grant, supra at para 83
    R v Atkinson, 2012 ONCA 380 (CanLII), [2012] O.J. No. 2520 (C.A.), per Watt JA, at para 93
  8. Grant, supra at para 81 ("exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.")
  9. Grant, supra at para 80
  10. Cote, supra at para 47
  11. Grant, supra at para 83
  12. see R v MacDonald, 2012 ONCA 495 (CanLII), [2012] O.J. No. 3210 (C.A.), per MacPherson JA
  13. R v Reddy, 2010 BCCA 11 (CanLII), per Frankel JA, at para 94
    R v Stevens, 2011 ONCA 504 (CanLII), per Armstrong JA, at para 62
  14. R v Tombs 2012 BCSC 1826 (CanLII), per N Brown J at para 92
  15. Grant, supra at para 84
  16. see R v Martin, 2010 NBCA 41 (CanLII), [2010] NBJ No. 198 (C.A.), per Richard JA at para 96

Balancing of Factors

The balancing of these factors must focus upon the "long-term prospective repute of the administration of justice".[1]

Where the first and second factors favour exclusion the third factor “will seldom, if ever, tip the balance in favour of admissibility”.[2]

  1. R v Morelli, 2010 SCC 8 (CanLII), per Fish J at para 108
  2. R v McGuffie, 2016 ONCA 365 (CanLII), per Doherty JA at para 6

Analysis for Certain Types of Evidence

Statements by Accused

The common law historically treats statements different from other types of evidence.[1] The concern for "proper police conduct in obtaining statements" and "the centrality of the protected interested" present in most cases will favour the exclusion of statements.[2]

The third factor will often be attenuated due to the lack of reliability of a unconstitutionally obtained statement.[3]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 98
  2. Grant, ibid. at para 98
  3. Grant, ibid. at para 98

Bodily Evidence

On the second factor, a breach of s. 8 of the Charter will focus on the "degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused".[1]

The third factor will usually favour admission in cases involving bodily samples as it is usually inherently reliable.[2]

Generally, where the breach was "deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded".[3]

Due to the reliability of bodily substances independent of the breach. The third factor will tend to weigh in favour of admission.[4]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 109
  2. Grant, ibid. at para 110
  3. Grant, ibid. at para 111
  4. Grant, ibid. at para 115

Non-Bodily Physical Evidence

Exclusion of physical evidence will typically result where the conduct is "deliberate or egregious".[1]

Breaches of s. 8 will concern the impact on the type of privacy interests as well as the interests of human dignity.[2]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 112
  2. Grant, ibid. at paras 112 to 113

Derivative

Derivative evidence is physical evidence obtained through the information provided by an unlawfully obtained statement.[1]

The second factor should consider to what extent the breach "impinged upon that interest in a free and informed choice".[2] A significant compromise of this interest will "strongly favour" the exclusion of evidence.[3]

Whether the evidence was otherwise discoverable will be a consideration in favour of admission. The lack of discoverability will favour exclusion.[4]

Applying the "discoverability rule" as determinative will not always work as it relies on hypothetical and theoretical circumstances.[5]

Given the reliability of real or physical evidence, the third factor will usually favour admission.[6]

Deliberate abuse of accused's rights should result in exclusion.[7]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 116
  2. Grant, ibid. at para 125
  3. Grant, ibid. at para 125
  4. Grant, ibid. at para 122
  5. Grant, ibid. at paras 120-121
  6. Grant, ibid. at para 126
  7. Grant, ibid. at para 128

Interests for Specific Offences

No matter how serious the offence and important the societal interest in eliminating the crime, the Charter must always be compiled with.[1]

  1. R v Silveira, [1995] 2 SCR 297, 1995 CanLII 89 (SCC), per Cory J at para 91 ("It cannot be disputed that the drug trade is odious, and poses a grave threat to society. And I therefore agree that all reasonable steps must be taken to eradicate it. But we cannot allow the desirability of these efforts to make the courts deviate from their high duty to ensure that those who wield power on behalf of the state must do so within the limits the Charter dictates for the benefit of the individual. No matter how grave the threat, law enforcement must operate in conformity with the enshrined protections of the Charter")

Motor Vehicle Offences

Cases have addressed society's interest screening of impaired drivers to reduce the carnage on our highways prefers the inclusion of evidence.[1]

The ASD procedure has been described as a "non-invasive" and "does not undermine bodily integrity or dignity".[2]

Breath sample evidence by ASD or intoxilyzers are "generally considered reliable" subject to other evidence in a given case.[3]

  1. see R v Elias; R v Orbanski 2005 SCC 37 (CanLII), (2005), 196 CCC (3d) 481 (S.C.C.), per Charron J at paras 3, 24-27; 49; 55 and 58
  2. R v Vandenberg 2010 ABQB 261 (CanLII), per L.J. Smith J
  3. R v Bryce, 2009 CanLII 45842 (ON SC), [2009] O.J. No. 3640 (ONSC), per Hill J at paras 64 and 65

Weapons Offences

In consideration under s.24(2) of the Charter, courts have commented on the public interest with respect to gun cases:[1]

Offences involving handguns is a “serious and growing societal danger”.[2] There is a strong emphasis on the need to denounce and deter the use of firearms in public places.[3] There has been judicial notice that as of 2007 there has been a national increase in gun violence and gun-related offences.[4]

It has been said that "the exclusion of firearms would more negatively impact the administration of justice than their admission."[5]

  1. See R v Campbell, 2009 CanLII 55314 (ON SC), [2009] OJ 4132, per Marrocco J
  2. R v Clayton, 2005 CanLII 16569 (ON CA), per Doherty JA at 41 appealed at 2007 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J
  3. R v Danvers, 2005 CanLII 30044 (ON CA), per Armstrong JA at para 77
    R v Bellamy, 2008 CanLII 26259 (ON SC), [2008] 175 C.R.R. (2d) 241, per Boswell J at para 76
    R v Brown, [2006] O.J. No. 4681 (Ont. S.C.J.), 2006 CanLII 39311 (ON SC), per Trafford J at para 9
  4. R v Clayton 2007 SCC 32 (CanLII), per Abella J at para 110
  5. R v Mpamugo, 2009 CanLII 9741 (ON SC), [2009] O.J. No. 953 (S.C.), per Baltman J at para 48
    R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494, per McLachlin CJ at para 82

Drugs and Guns Offences

There have been many cases confirm the public interest in prosecuting drug and gun offences.[1]

  1. R v Prosser, 2014 ONSC 2645 (CanLII), per Wilson J, at para 99
    R v Greffe, 1990 CanLII 143 (SCC), [1990] 1 SCR 755, per Lamer J
    R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, per Cory J
    R v Nguyen [2005] O.J. No. 1948 (S.C.J.)(*no CanLII links)
    R v Brown, 2009 ONCA 563 (CanLII), 251 O.A.C. 264, per curiam at para 33
    R v Brown, [2007] O.J. No. 5659 (S.C.J.), per Nordheimer J at para 20 appealed to 2009 ONCA 563 (CanLII)
    R v Smickle, 2013 ONCA 678 (CanLII), 304 CCC (3d) 371, per Doherty JA at paras 28-30

Types of Police Conduct

Police are presumed to know the law. However, where there exist conflicting precedent they are not expected to reflect "judicially" on the distinctions.[1]

The unlawful entry into a persons home "is the ultimate invasion of privacy. It is a denial of one of the fundamental rights of individuals living in a free and democratic society.”[2]

Where telewarrant process was used "without having adequately demonstrated that it was impractical to appear in person" is not considered a "serous breach".[3]

Admission of evidence obtained from unacceptable police conduct or practices in performing warrantless searches leaves justice with a "black eye".[4]

A search of a dwelling house "must be approached with the degree of responsibility appropriate to an invasion of a place where the highest degree of privacy is expected".[5]

Breach of Solicitor-Client Privilege
An unlawful seizure of solicitor-client privilege documents should include consideration of:[6]

  • the number of seized records over which privilege was indeed claimed
  • whether notes were taken relating to the seizure of the items
  • whether the records were indeed looked at
  • whether any privileged information was disclosed to police
  • whether the Crown sought to adduce any privilege documents.


  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at para 133 ("We add that the Court’s decision in this case will be to render similar conduct less justifiable going forward. While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is...")
  2. R v Silveira, 1995 CanLII 89 (S.C.C.), [1995] 2 SCR 297, per Cory J at para 148
  3. R v Lacelle, 2013 ONCA 390 (CanLII), per curiam at para 11
  4. R v Morelli, 2010 SCC 8 (CanLII), per Fish J, at para 110
  5. Sutherland, supra at para 15
  6. R v Schulz, 2018 ONCA 598 (CanLII), per Brown JA, at para 26

Evidence Collected Outside Canada

See also: Discretionary Exclusion of Evidence

Th Charter generally does not apply to foreign authorities.[1]

Evidence collected outside of Canada in a manner compliant with local laws but not compliant with Canadian laws may be admissible unless do admit it would render the trial unfair.[2] All relevant factors must be considered.[3]

A major factor includes whether the official conducting the investigation is from Canada or a foreign country. [4]

Trial will be unfair where "so grossly unfair as to repudiate the values underlying our trial system and condone procedures which are anathema to the Canadian conscience"[5]

  1. R v Harrer, [1995] 3 SCR 562, 1995 CanLII 70 (SCC), per La Forest J, at para 35
  2. R v Tan, 2014 BCCA 9 (CanLII), per Bennett JA
  3. R v Cook, 1998 CanLII 802 (SCC), [1998] 2 SCR 597{{perSCC|Cory and Iacobucci JJ}
    R v Hape 2007 SCC 26 (CanLII), (2007), 220 CCC (3d) 161 (S.C.C.), per LeBel J at para 109
  4. R v Mathur, CanLII 38943 (ON SC) at para 33
  5. Harrer at para 51

Pre-Grant Analysis

Trial Fairness
The factor of "trial fairness" under the previous Collins test had problems, including that is was largely determinative of the issue. Rather, trial fairness is considered an overarching goal of the analysis and not merely a factor.[1]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at paras 62 to 65

Collins/Stillman Analysis

Under the Collins test, the administration of justice is brought into "disrepute" where a combination of three factors weight in favour of exclusion of evidence. These sets of factors consist of:[1]

  1. factors affecting the fairness of the trial,
  2. factors relevant to the seriousness of the violation; and
  3. factors relevant to the effect of excluding the evidence.

The Stillman test considers the first set of factors. It examines the nature of the evidence and alternatives to its discovery.[2] The Stillman test directs the following analysis:

  1. Classify the evidence as conscriptive or non-conscriptive based on the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the Court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.
  2. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.
  3. If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered.
  1. R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer CJ
  2. R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J

Conscriptive Evidence

Evidence that is conscriptive is a factor against the admission of evidence obtained by a Charter violation.

Conscriptive evidence affects the trial fairness factor. It arises from any of the following:[1]

  1. statements
  2. use of the accused's body
  3. taking of bodily sample
  4. evidence derived from the above (derivative evidence)

Evidence that is conscriptive and not otherwise discoverable will tend to be excluded.

A voluntary statement cannot be conscriptive.[2]

Burden and Standard of Proof
Conscriptiveness must be proven by the Accused on a balance of probabilities.

Discoverability
Discoverable evidence is evidence that 1) can be proven by other non-conscriptive means or 2) would inevitably be discovered.[3]

Discoverability must be proven by the Crown on a balance of probabilities.

The automatic exclusion of non-discoverable conscriptive evidence was rejected under the Grant approach.[4]

  1. Watt, Manual of Criminal Evidence at 41.03
    R v Stillman, 1997 CanLII 384 (SCC), [1997] 1 SCR 607, per Cory J - lists the first three factors
  2. Watt at 41.03
  3. Stillman
  4. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J

Other Uses of Excluded Evidence

Evidence that has been subject to an exclusion under s. 24(2) of the Charter in a criminal trial will normally be inadmissible for other purposes, including a dangerous offender applications.[1]

Where the excluded evidence is a statement, the excluded statement will not normally be permitted to be used to impeach the accused during cross-examination.[2]There may however be in "very limited circumstances" cases where this should be permitted.[3]

  1. R v Ricciardi, 2018 ONSC 445 (CanLII), per Di Luca J
  2. R v Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660, per Sopkina J, para 34 ("The effect of destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from the mouth of the accused in breach of his or her Charter rights will usually have the same effect as use of the same evidence when adduced by the Crown in its case in chief for the purpose of incrimination.")
  3. Calder, ibid. at para 35

Relevant Charter Rights

Other Remedies for Charter Breaches

See Also

External Links

Post-Charge Detention

General Principles

Holding a person in custody when it is not prescribed by the provisions of the Criminal Code would be a violation of s. 9 of the Charter.[1]

  1. R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J at para 54 (“[A] detention not authorized by law is arbitrary and violates s. 9 [of the Charter]”)

Release

When Detained by Peace Officer

Release from custody by peace officer
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) [issuing an appearance notice], the peace officer shall, as soon as practicable,

(a) release the person from custody with the intention of compelling their appearance by way of summons; or
(b) issue an appearance notice to the person and then release them.

Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3) [Remand in custody for return to jurisdiction where offence alleged to have been committed].
Consequences of non-release
(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).
[annotation(s) added]


CCC

When Detained by Officer-in-Charge

Release from custody by officer in charge
498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) [deliver to police after citizen's arrest] or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) [taking a detainee before a justice] for an offence described in paragraph 496(a), (b) or (c) [issuing an appearance notice], or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).


CCC

Section 498 directs an officer to release an accused as soon as practicable, unless one of the reasons listed in (1.1). One of the "reasonable public interest" grounds include the need to detain a person until they are sober and safe to be released.[1]

  1. R v Viszlai, 2012 BCCA 442 (CanLII), per Frankel JA at para 47
    R v Sapusak, [1998] O.J. No. 3299(*no CanLII links)
    R v Coulter, [2000] O.J. No. 3452 (Ont. Ct. J.), affirmed [2001] O.J. No. 5608 (Sup. Ct. J.)(*no CanLII links)
    R v Padda, 2003 CanLII 52405 (ON CJ), [2003] O.J. No. 5502 (Ont. Ct. J.), per Duncan J
    R v Gaudette, [2005] O.J. No. 2399 (Ont. Ct. J.)(*no CanLII links) , reversed for other reasons, [2006] O.J. No. 3732 (Sup. Ct. J)(*no CanLII links)
    R v Kisil, 2009 ONCJ 424 (CanLII), [2009] O.J. No. 3821 (Ont. Ct. J.), per Nadel J
    R v Prentice, 2009 ONCJ 708 (CanLII), [2009] O.J. No 6001 (Ont .Ct .J.), per Schwarzl J
    R v Key, 2011 ONCJ 780 (CanLII), [2011] O.J. No. 5972 (Ont. Ct. J.), per Robertson J
    R v Baxter, 2012 ONCJ 91 (CanLII), [2012] O.J. No. 796 (Ont. Ct.J), per Schwarzl J

Impaired Driving Investigations

Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:[1]

  1. the accused's blood alcohol level,
  2. whether the accused was charged with impaired operation,
  3. his or her level of comprehension,
  4. that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension),
  5. that the accused's vehicle would have been impounded,
  6. whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound,
  7. whether the accused had a criminal record and if so, its contents,
  8. whether the accused had outstanding charges,
  9. his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment.

The analysis should not simply be limited to the BAC level results.[2]

  1. R v Price 2010 ONSC 1898 (CanLII), per Durno J, at para 93
  2. Price, ibid. at para 93

Taking to a Judge

Under s. 503, when a police officer arrests an individual without a warrant, they have the discretion to hold the person for up to 24 hours until charges are laid and they must be prepared to show cause as to why the person should be kept in custody before a Judge of the Court or Justice of the Peace. The Justice will assess whether there is a reason to detain the individual or else release them on any conditions.

The 24 hour time limitation can be extended where a judge or justice of the peace is not available within the time limit such as during weekends or holidays.

Section 503 states:

Taking before justice
503. (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) [delivery to police after citizen arrest] or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,

(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him.

...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).
[annotation(s) added]


CCC

Where the decision to detain is not made out, such as under s. 498 [5], it may be grounds for a stay of proceedings.[1]

This is governed by section 83.3 of the Criminal Code:

Duty of peace officer
83.3
...
(5) If a peace officer arrests a person without warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

(a) lay an information in accordance with subsection (2); or
(b) release the person.

When person to be taken before judge
(6) A person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

(a) if a provincial court judge is available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period, and
(b) if a provincial court judge is not available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as possible,

unless, at any time before the expiry of the time prescribed in paragraph (a) or (b) for taking the person before a provincial court judge, the peace officer, or an officer in charge within the meaning of Part XV [Special Procedure and Powers, s. 483 to 492.2], is satisfied that the person should be released from custody unconditionally, and so releases the person.
...
2001, c. 41, s. 4.
[annotation(s) added]


CCC

For more details on this see the Chapter on Compelling the Accused to Attend Court.

  1. R v Lewis, 2001 BCPC 426 (CanLII), per Dossa J
    R v McKelvey, 2008 ABQB 466 (CanLII), per Langston J

See Also

Compelling the Accused to Attend Court

Introduction

See also: Warrantless Arrests and Warrant Arrests

A person can be compelled to attend court to face criminal charges in several ways. It starts with the police. They investigate a crime and at some point they suspect an individual is responsible.

The police start by doing one of three things:

  1. serve an appearance notice on the accused;
  2. arrest the accused; or
  3. lay a charge and issue a warrant or summons

These are not mutually exclusive actions but rather first steps.

Where the person is given an appearance notice, they are simply served with a document directing them to attend court.

Where the person is arrested first, the police will decide whether to lay a charge. If a charge will be layed the police can do one of the following:

  1. hold him for court
  2. release him using a summons, Appearance Notice, Promise to Appear (with or without an undertaking), or Recognizance (with or without an undertaking)

If they are held for court, the issue of release will be left to the judge to determine.

Where the charge is layed first, the warrant or summons gives authority to the police to locate the individual for the purpose of arresting them to serving them with notice to attend court.

Topics

Flow Chart

Charging flow chart.png

See Also

Compelling Attendance by Accused Without Arrest

Compelling Attendance Without Arrest

Appearance Notice

Under s. 495(2), a police officer who forms grounds of arrest pursuant to s. 495(1), shall not arrest the individual to ensure that they will attend court where:

  1. where the offence is one under s. 553, a summary, or hybrid offence, and
  2. where the officer "believes on reasonable grounds that the public interest...may be satisfied without so arresting the person" while having regard to all the circumstances including the need to:
    1. establish the identity of the person,
    2. secure or preserve evidence of or relating to the offence, or
    3. prevent the continuation or repetition of the offence or the commission of another offence, and
  3. he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

If the officer does not arrest due to s. 495(2), then under s. 496, the officer "may issue an appearance notice to the person"

Grounds to Issue an Appearance Notice Without an Arrest

Section 496 concerns the issuing of an appearance notice without arrest:

Issue of appearance notice by peace officer
496. Where, by virtue of subsection 495(2), a peace officer does not arrest a person, he may issue an appearance notice to the person if the offence is

(a) an indictable offence mentioned in section 553;
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction; or
(c) an offence punishable on summary conviction.

R.S., c. C-34, s. 451; R.S., c. 2(2nd Supp.), s. 5.


CCC

The listed offences in s. 496(a), (b) and (c) appear to consist of all straight summary conviction offences, hybrid offences, and those indictable offences listed in s. 553.[1] These listed offences match the same listed offences found in s. 495(2) which establish offences for which an officer may consider not affecting an arrest.[2]

Where an officer provides an appearance notice, the notice must be confirmed under s. 505 and 508.

An "appearance notice" is defined under s. 493 as "a notice in Form 9 issued by a peace officer".

If an accused refuses to sign an appearance notice, that is not a reason to detain. The signature "merely permits the appearance notice to be confirmed by a justice of the peace". Without it the officer would need to adduce proof of service.[3]

A failure of a judge to confirm an appearance notice does not remove the judge's jurisdiction over the matter. The defect can be cured by the accused's attendance.[4]

Appearance notices can be issued after arrest under s. 497 or 498.

  1. see Absolute Jurisdiction Offences for a list of 553 offences:
    • "theft, other than theft of cattle" (where value =< $5,000)
    • "obtaining money or property by false pretences", (where value =< $5,000)
    • "possess stolen property" (value =< $5,000)
    • Fraud (value =< $5,000)
    • "mischief under subsection 430(4)" (value =< $5,000)
    • Gaming and betting-related offences]
    • Keeping a Common Bawdy-house (210)
    • "fraud in relation to fares" under s 393
    • Breach of SOIRA Order under s. 490.031 or 490.0311
    • "failure to comply with probation order" under s. 733.1
    • "breach of recognizance" under s. 811
    • Possession of a Schedule II Drug
    • Trafficking Scheduled II Drug
    • "counselling or with a conspiracy or attempt to commit or with being an accessory after the fact" of the listed offences
  2. See Warrantless Arrests
  3. R v Farncombe, 1984 CarswellSask 368, 12 W.C.B. 222, 34 Sask. R. 161, 1984 CanLII 2626 (SK QB), per Matheson J, at para 13
  4. Re Ridgely (1978), 42 CCC (2d) 291, 1978 CanLII 2471 (NL SC), per Mifflin CJ - Mandamus was used to compel the judge to require attendance

Issuing a Summons Without Arrest

Summons
509 (1) A summons issued under this Part shall

(a) be directed to the accused;
(b) set out briefly the offence in respect of which the accused is charged; and
(c) require the accused to attend court at a time and place to be stated therein and to attend thereafter as required by the court in order to be dealt with according to law.

Service on individual
(2) A summons shall be served by a peace officer who shall deliver it personally to the person to whom it is directed or, if that person cannot conveniently be found, shall leave it for him at his latest or usual place of abode with an inmate thereof who appears to be at least sixteen years of age.
(3) [Repealed, 2008, c. 18, s. 17]

Content of summons
(4) There shall be set out in every summons the text of subsection 145(4) and section 510.

Attendance for purposes of Identification of Criminals Act
(5) A summons may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act, where the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act.
R.S., 1985, c. C-46, s. 509; R.S., 1985, c. 27 (1st Supp.), s. 80; 1992, c. 47, s. 71; 1996, c. 7, s. 38; 2008, c. 18, s. 17.


CCC

A summons has no connection to the powers of arrest or judicial release. The subject is simply compelled to attend court and nothing more.[1]

Fingerprinting
A summons for the purpose of attending for fingerprinting is only permitted when there is a concurrent order to attend court relating to charges.[2]

Procedure
A person who is to be summons should be given a notice under Form 6 of the Code.[3]

Warrantless Arrests

Introduction

See also: Compelling the Accused to Attend Court, Release by Police, and Arrest Procedure

Arrest.png

  1. R v Goikhberg 2014 QCCS 3891 (CanLII), per Cournoyer J at paras 50 to 57, 85
  2. R. v Michelsen (1983), 4 CCC (3d) 371, 33 C.R. (3d) 285 (Man. Q.B.), 1983 CanLII 3564 (MB QB), per Scollin J
  3. Goikhberg, supra at para 54

Power to Arrest

Where there is no warrant for a person's arrest, a peace officer is governed by section 495:

Arrest without warrant by peace officer
495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII [Miscellaneous, s. 841 to 849] in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) [Duty Not to Arrest on Public Interest Grounds]...
Consequences of arrest without warrant
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).


R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.


CCC

A police officer can arrest where:

  1. there is reasonable grounds a person has committed an indictable offence;
  2. there is reasonable grounds a person is about to commit an indictable offence;
  3. a person is committing an indictable offence; or
  4. a person has a warrant out for his/her arrest.

There is limited power to arrest where the accused is found committing a summary offence and it is necessary to establish the accused's identity, among other things.[1]

There is also a common law power for peace officers to arrest without a warrant where the officer has an honest and reasonable belief that there is a breach of the peace.[2]

Section 495 (1)(b) does not require the officer to "rule out potential innocent explanations" to his observations.[3] The formation of reasonable grounds does not require a prima facie case.[4]

  1. Moore v The Queen, [1979] 1 SCR 195 1978 CanLII 160 (SCC), per Spence J
  2. Hayes v Thompson 1985 CanLII 151 (BC CA), (1985), 18 CCC (3d) 254, per Hutcheon JA
    Brown v Durham (Regional Municipality) Police Force, [1998] O.J. No. 5274, 1998 CanLII 7198 (ON CA), per Doherty JA
    R v Collins, 2012 CanLII 26587 (NL PC), per Orr J
  3. R v MacCannell, 2014 BCCA 254 (CanLII), per Garson JA at para 46
  4. MacCannell, ibid.

Duty Not to Arrest on Public Interest Grounds

495.
...
(1) [Powers of warrantless arrest]...
Limitation
(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553 [Absolute jurisdiction offences],
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction [i.e. hybrid offences], or
(c) an offence punishable on summary conviction [see list of summary offences],

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

(3) [arrests under 495 deemed lawfully] ...
R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
[annotation(s) added]


CCC

Related to this duty, s. 497 imposes a duty to release an arrested person which applies the same consideration.

The failure to properly consider factors in favour of release may be grounds to find arbitrary detention.[1]

  1. see R v Baker (1988), 88 NSR (2d) 250 (NSCA)(*no CanLII links)
    R v Cayer (1988), OJ No. 1120 (ONCA)(*no CanLII links)

Right Against Unlawful Arrest

See also: Investigative Detention#Right Against Arbitrary Detention

Section 9 of the Charter prohibits arbitrary detention. Under the header "Detention or imprisonment" the Charter states:

9. Everyone has the right not to be arbitrarily detained or imprisoned.


CCRF

Purpose
The "purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference"[1] Thus "a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9"[2]

Burden
The burden is upon the applicant to prove that the accused was "detained" within the meaning of s. 9 which must be proven on a balance of probabilities.[3]

The burden then moves onto the Crown to establish that a warrantless arrest was legal and not in violation of s. 9 of the Charter.[4]

Standing
An accused arrested on grounds that included evidence obtained through the breach of a third party's Charter rights does not have standing to challenge the third party's rights.[5] The only remedy in such a situation would be in an abuse of process application.[6]

  1. R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ at para 20
  2. Grant, ibid. at para 55
  3. R v Bush, 2010 ONCA 554 (CanLII), (2010), 259 CCC (3d) 127, per Durno J at para 74
    R v B.(L.) 2007 ONCA 596 (CanLII), (2007), 227 CCC (3d) 70, per Moldaver JA at para 60
  4. R v Murphy, 2018 NSSC 191 (CanLII), per Rosinski J at para 4
  5. R v Todd, 2015 BCSC 680 (CanLII), per Rogers J R v Tran, 2016 BCPC 159 (CanLII), per Lamperson J at paras 46 to 49
    C.f. R v Brown, 2014 BCSC 1665 (CanLII), per Funt J
  6. Tran, ibid. at para 46

Reasonable and Probable Grounds

See also: Reasonable and Probable Grounds

An arresting officer must have reasonable and probable grounds to make the arrest. Those grounds must be subjectively held by the officer and must be reasonable.[1] Thus, the analysis considers both an objective and subjective component.[2]

An arresting officer is not required the same scrutiny as a justice of a peace would need to be in considering a search warrant.[3]

Objective Requirement
The objective component asks whether the "existence of objectively reasonable grounds for arrest requires that a Court consider whether a reasonable person would find reasonable and probable ground for arrest". This reasonable person must be "in the shoes" of the officer, taking into account "training and experience".[4]

The analysis is "approached as a whole" looking at the "cumulative effect" of all the evidence known at the time.[5]

Timing When Grounds are Formed
Police cannot arrest first and then determine after the fact whether the accused had a connection with their investigation.[6]

The reasonableness of an officers actions is based on what was known to them prior to acting, regardless of its accuracy and completeness. The court may take into account the nature of the power being exercised in its context. The dynamics of an arrest will vary in different circumstances and will sometimes need to be decided upon quickly.[7]

Sources
The officer may base his belief upon assumptions or secondary sources. However, the belief cannot be only a hunch. The circumstances must be sufficient to convince a reasonably fair-minded person put in the same position as the officer that the grounds for his or her belief are reasonable. The facts must not be considered piecemeal but in a holistic manner.[8]

Foundation of Belief
A conclusory statement from one officer to another, such as “a drug transaction has taken place ”, will not support an objective finding of reasonable and probable grounds for an arrest.[9]

Sharing of Reasonable Belief Between Officers
The arresting officer can safely assume grounds exist where he is directed by another officer to arrest the accused.[10] It is the officer who has formed the grounds who decides on whether to arrest a person. They do not need to be the one performing the arrest and the arresting officer may rely on the assessment of that officer.[11]

Multiplicity of Beliefs
A police office can have more than one believe and objective in doing a search incident to arrest as long as it is objectively justifiable.[12]

Sufficiency of Investigation
An arrest may be invalid where the investigator failed to gather sufficient information to form grounds by abbreviating their investigation.[13]

The police observation of two men exchanging an unknown object, without anything more, does not meet the standard of reasonable suspicion to detain or reasonable and probable grounds to arrest.[14]

Timing at Which Grounds are Formed
Objective reasonableness is determined on the "factual matrix that existed at the time the arrest was made". Other information not known to the arresting officer is not relevant.[15]

  1. R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241, per Cory J at pp. 250-1
  2. Storrey, ibid.
    R v Grotheim, 2001 SKCA 116 (CanLII), per Cameron JA
    R v McClelland, 1995 ABCA 199 (CanLII), (1995), 165 A.R. 332 (C.A.), per McFadyen JA (2:1) at para 21
    R v Juan, 2007 BCCA 351 (CanLII), per Thackray JA, at para 27
    R v Phung 2013 ABCA 63 (CanLII), per curiam
  3. see R v Polashek, 1999 CanLII 3714 (ON CA), (1999), 45 O.R. (3d) 434, per Rosenberg JA Golub, supra at p.750
  4. Phung, supra at para 10
  5. R v Nolet, 2010 SCC 24 (CanLII), per Binnie J at para 48
  6. see R v Whitaker, 2008 BCCA 174 (CanLII), per Frankel JA
    R v Chaif-Gust, 2011 BCCA 528 (CanLII), per Finch CJ
  7. R v Golub, 1997 CanLII 6316 (ON CA), (1997), 34 O.R. (3d) 743, 117 CCC (3d) 193 (C. A.), per Doherty JA at p. 750
  8. R v Chin, 2003 ABPC 118 (CanLII), per Allen J at para 60
  9. R v Lal (1998), 130 CCC (3d) 413 (BCCA) 1998 CanLII 4393 (BCCA), per Ryan JA
  10. R v Chervinski, 2013 ABQB 29 (CanLII), per Hall J at para 21, 22
  11. R v Shokar, 2006 BCSC 770 (CanLII), per Joyce J at para 21
    R v Hall, 2006 SKCA 19 (CanLII), per Gerwing JA
  12. R v Chubak, 2009 ABCA 8 (CanLII), per Ritter JA, at para 18
    R v Galye, 2015 BCSC 1950 (CanLII), per Kent J at para. 38 (an "arresting officer's subjective belief that he or she has the requisite reasonable grounds is insufficient by itself for an arrest under s. 495(1)(a) of the Code to be lawful. Those grounds must also be justifiable from an objective point of view")
  13. e.g. R v Munoz 2006 CanLII 3269 (ON SC), (2006), 86 O.R. (3d) 134, 205 CCC (3d) 70 (Ont. Sup. Ct. J.), per Ducharme J
  14. R v NO, 2009 ABCA 75 (CanLII), per curiam
    R v Rahmani-Shirazi, 2008 ABQB 145 (CanLII), per Sullivan J
  15. Galye, supra at para 38 ("Determining whether the arresting officer's grounds were objectively reasonable involves an assessment of the factual matrix that existed at the time the arrest was made. Whether other information, had it been available, might have strengthened or weakened those grounds is not a relevant consideration")

"About to Commit"

Under s. 495(1)(a) a peace officer may make a warrantless arrest of a person wo is "about to commit" a hybrid or indictable offence.

An inebriated person about to operate a motor vehicle will be "about to commit" an offence of impaired driving.[1]

  1. see R v Beaudette (1957), 118 CCC 295, 1957 CanLII 502 (ON CA), per Schroeder JA

"Finds Committing"

Under s. 495(1)(b) empowers a peace officer to make a warrantless arrest where a person is "apparently" committing an offence. This must be an honestly held belief and must be reasonable. The officer does not have to be so certain as equate with a conviction.[1]

The requirements of "finds committing" consist of:[2]

  1. the officer's knowledge must be contemporaneous with the event;
  2. the officer must actually observe or detect the commission of the offence; and
  3. there must be an "objective basis for the officer's conclusion that an offence is "being committed". It "must be apparent to a reasonable person placed in the circumstances of an arresting officer".

It has been found that the strong smell of raw marijuana can be sufficient to conclude that the accused was in possession or marijuana and is arrestable under s.495(1)(b).[3] A faint and intermittent smell is not sufficient for arrest.

The person arresting does not mean that he "must be present when the offence is committed". He can "rely on reasonable inferences drawn from what he or she has seen transpire".[4]

  1. The Queen v Biron, [1976] 2 SCR 56 1975 CanLII 13, per Martland J
    R v Roberge 1983 CanLII 120 (SCC), (1983), 4 CCC (3d) 304, per Lamer J
  2. R v STP, 2009 NSCA 86 (CanLII), per MacDonald CJ
  3. R v Harding, 2010 ABCA 180 (CanLII), 482 AR 262, per curiam, at para 29
  4. R v McCowan, 2011 ABPC 79 (CanLII), per Fradsham J

Confidential Sources and Informers

Procedure

When an accused challenges the grounds of a warrantless arrest, trial fairness requires that the onus is on the Crown to establish the reasonable and probable grounds on direct examination and the defence must be permitted to cross-examine the officer.[1]

  1. R v Besharah, 2010 SKCA 2 (CanLII), per Smith JA at para 35

Types of Observations Forming Grounds of Arrest

An observed "hand to hand" exchange without any suggestive circumstances is no reasonable basis to conclude an illegal activity.[1]

However, certain activities may be interpreted using expertise and experience may be found to be reasonably believed to be connected to illegal activity.[2]

Marijuana Smell
The use of the smell of fresh marijuana as grounds to arrest requires an opinion with "substantial underpinnings and training and/or experience" and still be considered with caution.[3]

In many circumstances, there should be some corroboration by another individual.[4]

Observation of a "very strong smell" alone may in some circumstances be sufficient to arrest.[5]

  1. R v Russell, 2017 ABQB 298 (CanLII), per Goss J, at para 35
    R v NO, 2009 ABCA 75 (CanLII), per curiam at paras 41 and 42
  2. R v Rajaratnam, 2006 ABCA 333 (CanLII), per curiam at para 25
  3. R v Quesnel, 2018 NSSC 221 (CanLII), per Scaravelli J at para 48
  4. Quesnel, ibid. at para 48
  5. R v Harding, 2010 ABCA 180 (CanLII), per curiam

Citizen's Arrest

See also: Arrest by a Citizen

See Also

Warrant Arrests

General Principles

See also: Arrest Procedure

A warrant is one among several means of securing a person's attendance at court, usually it is the accused. There are several sections of the Code that address arrest warrant powers depending on the circumstances.

There are:

  • Arrest Warrant at first instance upon charges being laid against an accused (s. 507(4) "Public Interest" warrant)
  • Arrest Warrant (or a "bench" warrant) for non-attendance at court (s. 512 and 597)
  • Arrest Warrant for failing to attend the police station pursuant to the Identification of Criminals Act (s. 502)
  • Arrest Warrant for breaching any terms of release (524)
  • Arrest Warrant for witnesses (s. 698 to 705)

An arrest warrant in a general sense authorizes a peace officer to 1) arrest the named person and to 2) bring them "before a judge in the territorial division in which the warrant issued".[1]

Youth Court Justice
Any warrant issued by a youth court justice may be executed anywhere in Canada.[2]

  1. R v Charles, 2012 SKCA 34 (CanLII), at para 9
  2. see s. 145 YCJA: "145 A warrant issued by a youth justice court may be executed anywhere in Canada."

Arresting the Accused at First Instance and Issuing Process

See also: Laying of an Information and Issuing Process

Arresting the Accused After They Failed to Attend Court

Arrest Warrant for Breaches of Orders

Form of Arrest Warrants

Contents of warrant to arrest
511. (1) A warrant issued under this Part [PART XVI (s. 493 to 529.5)] shall

(a) name or describe the accused;
(b) set out briefly the offence in respect of which the accused is charged; and
(c) order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some other judge or justice having jurisdiction in the same territorial division, to be dealt with according to law.

...
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.
[annotation(s) added]


CCC


511
...
No return day
(2) A warrant issued under this Part [Part XVI: Compelling Appearance of an Accused Before a Justice and Interim Release, s. 493 to 529.5] remains in force until it is executed and need not be made returnable at any particular time.
...
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.
[annotation(s) added]


CCC

Formalities of warrant
513. A warrant in accordance with this Part [Part XVI: Compelling Appearance of an Accused Before a Justice and Interim Release, s. 493 to 529.5] shall be directed to the peace officers within the territorial jurisdiction of the justice, judge or court by whom or by which it is issued.
R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]


CCC

Execution of Warrant

See also: Entry into Place to Execute an Arrest Warrant

511. ...
Discretion to postpone execution
(3) Notwithstanding paragraph (1)(c), a judge or justice who issues a warrant may specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge or justice having jurisdiction in the territorial division in which the warrant was issued.
Deemed execution of warrant
(4) Where the accused appears voluntarily for the offence in respect of which the accused is charged, the warrant is deemed to be executed. ...
R.S., 1985, c. C-46, s. 511; R.S., 1985, c. 27 (1st Supp.), s. 81; 1997, c. 18, s. 57.


CCC

Execution of warrant
514. (1) A warrant in accordance with this Part [PART XVI Compelling Appearance of Accused Before a Justice and Interim Release, s. 493 to 529.5] may be executed by arresting the accused

(a) wherever he is found within the territorial jurisdiction of the justice, judge or court by whom or by which the warrant was issued; or
(b) wherever he is found in Canada, in the case of fresh pursuit.

By whom warrant may be executed
(2) A warrant in accordance with this Part may be executed by a person who is one of the peace officers to whom it is directed, whether or not the place in which the warrant is to be executed is within the territory for which the person is a peace officer.

R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]


CCC

Witness Warrants

Release After Warrant Arrest

See also: Release by Police

Where an accused is arrested under a warrant the officer will not normally have discretion to release the accused before delivering the accused before a justice or judge. An exception exists under s. 503(3) where the warrant is "endorsed" for release.

Special Issues

Outside Native Jurisdiction

Delayed Arrests

See also: Right to a Trial Within a Reasonable Time

The practice of waiting to execute an arrest warrant until the accused has finished serving a previous sentence is considered inappropriate.[1]

Where the accused is easily locatable within the province, with no change of name, listed address, and no efforts to conceal his location, will lean to the side of unacceptable delay.[2]

A lack of effort on the part of the police will support unreasonable delay.[3]

  1. R v Parisien (1971) 3 CCC (2d) 433, 1971 CanLII 1171 (BC CA), per Branca JA at p. 437 per Fauteux
    R v Cardinal, 1985 ABCA 157 (CanLII)
  2. e.g. Gahan v A.G. Alberta, 1988 CanLII 3471 (AB QB), [1988] A.J. No. 415 (QB)
    R v Carey, [1983] BCJ No. 307 (County Ct.)(*no CanLII links)
  3. e.g. R v Yellowhorse, [1990] A.J. No. 964 (Prov.Ct.)(*no CanLII links)

Arresting the Wrong Person

Arrest of wrong person
28 (1) Where a person who is authorized to execute a warrant to arrest believes, in good faith and on reasonable grounds, that the person whom he arrests is the person named in the warrant, he is protected from criminal responsibility in respect thereof to the same extent as if that person were the person named in the warrant.
Person assisting
(2) Where a person is authorized to execute a warrant to arrest,

(a) every one who, being called on to assist him, believes that the person in whose arrest he is called on to assist is the person named in the warrant, and
(b) every keeper of a prison who is required to receive and detain a person who he believes has been arrested under the warrant,

is protected from criminal responsibility in respect thereof to the same extent as if that person were the person named in the warrant.
R.S., c. C-34, s. 28.


CCC

See Also

Laying of an Information

General Principles

Either before or after arrest a peace officer can create a charge by laying of an information. It typically involves the officer, who has formed reasonable grounds to believe that a criminal offence has occurred, draft an information that will be presented to a justice of the peace along with a sworn summary of the evidence. Under s. 507 or 508 the justice of the peace will determine whether there is sufficient grounds to go forward with laying the sworn information and have the accused attend court. If there is sufficient grounds the justice will either issue a summons or a warrant, or simply confirm the appearance notice already served on the accused. This step is known as "issuing process". Once completed the accused will be required to attend court on the first appearance date. If not satisfied, the justice may cancel the appearance notice, promise to appear or recognizance.

An information must be sworn by an officer who has formed reasonable and probable grounds to believe that the offence described had been committed by the accused.[1] A failure to have the requisite grounds does not render the informations void ab initio.[2]

Charges can be laid before any justice within the province.[3]

Consequences of Laying an Information
The swearing of information commences "criminal proceedings" against the accused.[4]

A person is not an "accused" until such time as the charges have been laid.[5]

Form of Information
According to s. 506, the format for an information is taken from Form 2 of the Code:

Form
506 An information laid under section 504 [In What Cases Justice May Receive Information, see below] or 505 [Time within which information to be laid in certain cases, see below] may be in Form 2.
R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]


CCC

  1. R v Awad, 2014 NSSC 44 (CanLII)
  2. R v Whitmore (1987), 41 CCC (3d) 555 (Ont. H.C.J.), 1987 CanLII 6783 (ON SC), per Ewaschuk J. aff’d 51 CCC (3d) 294 (Ont. C.A.)
    Awad at para 14
  3. R v Ellis, 2009 ONCA 483 (CanLII)
  4. R v Awad, 2015 NSCA 10 (CanLII) at para 49
    R v Pardo (1990), 62 CCC (3d) 371 (Que. C.A.), 1990 CanLII 10957 (QC CA),per Gendreau JA
    R v McHale, 2010 ONCA 361 (CanLII), per Watt JA, at para 85 ("Laying or receipt of an information commences criminal proceedings"
  5. Pardo, supra (“a person is an accused as of the laying of the information, which constitutes the beginning of the proceedings”)
    Campbell v Ontario (Attorney General), (1987), 60 O.R. (2d) 617, 1987 CanLII 4333 (ON CA)

Indictable Offences

The two main routes for peace officers to lay an information for an indictable offence (including hybrid offences) start at s. 504 and 505. The main difference between the two options is based on whether the accused was subject to notice of charges. Under s. 504, an information is laid without the accused having any contact with police. Under s. 505 the accused is either arrested or given an appearance notice before an information is laid.

Laying an Information Under s. 504

See also: Reasonable and Probable Grounds and Issuing Process

Under s. 504, where an accused person is charged with an offence, the Information detailing the charge will be sworn by a peace officer. An officer may only swear an information on the basis of personal information or upon reasonable and probable grounds.[1]

In what cases justice may receive information
504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person
(i) is or is believed to be, or
(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;
(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or
(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

R.S., c. C-34, s. 455; R.S., c. 2(2nd Supp.), s. 5.


CCC

Section 504 provides a preliminary "screen" of the case to only proceed where there is a prima facie case.[2]

The justice's function at this stage is "entirely ministerial or administrative."[3]

The process set out in s. 504 is mandatory without any discretion, even in the case of private prosecutions.[4] No additional steps, such as requiring leave before laying an information are permitted.[5]

If the justice affirms the information by signing it, then the information has been laid and the matter begins the prosecution. The judge then must go to the next stage under s. 507 (public prosecutions) or 507.1 (private prosecutions).[6]

Once an information is sworn and laid, there is no obligation on the part of police to seek a summons or arrest "immediately following" the laying of the information.[7]

  1. R v Kamperman (1981), 48 N.S.R. (2d) 317, 92 A.P.R. 317 (S.C.T.D), 1981 CanLII 3159 (NS SC), per Glube J
  2. R v Whitmore, (1989), 35 O.A.C. 373, 51 CCC (3d) 294 (Ont. C.A.), 1989 CanLII 7229 (ON CA) ("In any event, the duty of the justice of the peace is, first, to determine if the information is valid on its face and secondly, to determine whether it discloses or there is disclosed by the evidence a prima facie case of the offences alleged.")
  3. R v Lupyrypa, 2008 ABQB 427 (CanLII), at paras 48-49
  4. R v Thorburn, 2010 ABQB 390 (CanLII) at paras 56, 59
  5. Thorburn, ibid.
  6. Thornburn at para 59
  7. R v Worme, 2014 SKQB 383 (CanLII), at para 33

Laying an Information Under s. 505

See also: Issuing Process

Section 505 addresses the timing in which the information should be laid before a justice. It states:

Time within which information to be laid in certain cases
505. Where

(a) an appearance notice has been issued to an accused under section 496 [Issue of appearance notice by peace officer], or
(b) an accused has been released from custody under section 497 [Release from custody by peace officer] or 498 [Release from custody by officer in charge],

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.
R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]


CCC

Where the peace officer fails to comply with 505 by laying an information after the first court appearance does not result in a lack of jurisdiction over the offence or invalidate the information. [1]

  1. R v Markovic, 2005 CanLII 36251, OJ No 4286 (ON CA)

Issuing Process

See also: Issuing Process

Laying An Information by Phone

Under s. 508.1, an information can be laid before a justice of the peace by way of telecommunications including telephone. In this case the information provided by phone is deeded to be under oath (s. 508.1(2)).

Information laid otherwise than in person
508.1 (1) For the purposes of sections 504 to 508, a peace officer may lay an information by any means of telecommunication that produces a writing.
Alternative to oath
(2) A peace officer who uses a means of telecommunication referred to in subsection (1) shall, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to the officer’s knowledge and belief, and such a statement is deemed to be a statement made under oath.
1997, c. 18, s. 56.


CCC

Laying an Information in Private Prosecution (s. 507.1)

See also: Private Prosecutions

Summary Offences

The process of laying charges for summary offences is similar to that of indictable offences. The procedure is set out in s. 788 to 795.

Commencement of proceedings
788. (1) Proceedings under this Part shall be commenced by laying an information in Form 2.
One justice may act before the trial
(2) Notwithstanding any other law that requires an information to be laid before or to be tried by two or more justices, one justice may

(a) receive the information;
(b) issue a summons or warrant with respect to the information; and
(c) do all other things preliminary to the trial.

R.S., c. C-34, s. 723.


CCC

Formalities of information
789. (1) In proceedings to which this Part applies, an information

(a) shall be in writing and under oath; and
(b) may charge more than one offence or relate to more than one matter of complaint, but where more than one offence is charged or the information relates to more than one matter of complaint, each offence or matter of complaint, as the case may be, shall be set out in a separate count.

No reference to previous convictions
(2) No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions.
R.S., c. C-34, s. 724.


CCC

Under s. 795, the provisions of Parts XVI and XVIII, XVIII.1, XX and XX.1 apply equally to summary offences.

All summary offences can only be sworn less than 6 months after the date of the allegations. (s. 786(2))

Replacement Informations

523
...
Where new information charging same offence
(1.1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, a new information, charging the same offence or an included offence, is received, section 507 [Justice to hear informant and witnesses — public prosecutions] or 508 [Justice to hear informant and witnesses], as the case may be, does not apply in respect of the new information and the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the new information.
...
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.
[annotation(s) added]


CCC

Under s. 524(1.1) a court has "jurisdiction to receive and proceed on a relaid information nothwithstanding that the process has not been issued no that information".[1]

New Charges
Section 523(1.1) does not apply for new charges before the court that does not have process.[2]

Where the accused and a new information without process are both before the court, the court has jurisdiction to deal with the information.[3]

  1. R v Brar, 2007 ONCJ 359 (CanLII) at para 8
    Re McCarthy and The Queen (1999), 1998 CanLII 5749 (BC SC), 131 CCC (3d) 102
  2. R v Dougan, 2012 YKSC 88 (CanLII), at para 19
  3. Dougan, supra at para 19
    McCarthy, supra

Direct Indictment Laid

See also: Direct Indictments

523
...
When direct indictment is preferred charging same offence
(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.
...
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.


CCC

Replacement Release Order

See also: Terms of Release#Variation and Review of Conditions

Section 523(2) and (3) relate to the vacating of a previous detention/bail order.

523
...
Order vacating previous order for release or detention
(2) Despite subsections (1) to (1.2),

(a) the court, judge or justice before which or whom an accused is being tried, at any time,
(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or
(c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time
(i) where the accused is charged with an offence other than an offence listed in section 469, the justice by whom an order was made under this Part or any other justice,
(ii) where the accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or
(iii) the court, judge or justice before which or whom an accused is to be tried,

may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted.
Provisions applicable to proceedings under subsection (2)
(3) The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in section 469.
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.


CCC

The judge must be satisfied that that "cause" has been shown before they may vacate the old order and make any new one.[1]

The ability to seek an order under 523(2) will depend on the stage of proceedings. An application can be made when:

  1. during trial (523(2)(a))
  2. upon "completion of the preliminary inquiry", except when it is a 469 offence (523(2)(b))
  3. with consent of Crown and defence (523(2)(c)); or
  4. if no consent, then "any time" so long as it is an order under (1.1) [ie. Replacement information] and the application is before any judge or justice (for a non 469 offence) or, if it is a 469 offence, it must be before a superior court of criminal jurisdiction;

A judge should only interfere where there has been a "material change in circumstances".[2]

Merely being committed to trial after a preliminary inquiry does not amount to "cause".[3]

Exclusive jurisdictions Offences under s. 469 do not apply to these orders under 523(2) and (3).[4]

  1. See s. 523(2) "on cause being shown"
  2. R v McDonell, 2012 ONSC 2567 (CanLII), at para 17
  3. McDonell, at para 19
  4. See 523(3)

Transferring the Accused's Matter to the Proper Jurisdiction

Order that accused appear or be taken before justice where offence committed
543. (1) Where an accused is charged with an offence alleged to have been committed out of the limits of the jurisdiction in which he has been charged, the justice before whom he appears or is brought may, at any stage of the inquiry after hearing both parties,

(a) order the accused to appear, or
(b) if the accused is in custody, issue a warrant in Form 15 to convey the accused

before a justice having jurisdiction in the place where the offence is alleged to have been committed, who shall continue and complete the inquiry.
Transmission of transcript and documents and effect of order or warrant
(2) Where a justice makes an order or issues a warrant pursuant to subsection (1), he shall cause the transcript of any evidence given before him in the inquiry and all documents that were then before him and that are relevant to the inquiry to be transmitted to a justice having jurisdiction in the place where the offence is alleged to have been committed and

(a) any evidence the transcript of which is so transmitted shall be deemed to have been taken by the justice to whom it is transmitted; and
(b) any appearance notice, promise to appear, undertaking or recognizance issued to or given or entered into by the accused under Part XVI shall be deemed to have been issued, given or entered into in the jurisdiction where the offence is alleged to have been committed and to require the accused to appear before the justice to whom the transcript and documents are transmitted at the time provided in the order made in respect of the accused under paragraph (1)(a).


R.S., c. C-34, s. 471; R.S., c. 2(2nd Supp.), s. 7.


CCC

Confirming Attendance

Once the accused attends for the first time in court, the authority of the justice of the peace or peace officer is complete and only the judge may compel future attendance. The purpose of a promise to appear, summons, or any other tool to ensure attendance is to secure attendance for the first time. After the initial appearance the promise to appear is irrelevant.[1]

Whenever a judge had an information before him, he must comply with section 508. Section 508(b)(i) would appear to require that judges confirm that the notice, promise to appear or recognizance remains in effect and then endorse the information.[2]

However, case law has been divergent on the issue of whether the failure to confirm the order to return to court creates a nullity, invalidating the information. While there are a number of cases supporting the nullity effect on the lack of confirmation,[3] there is a growing line of cases that see it as having no effect on the validity of the charge.[4]

  1. R v Oliveira, 2009 ONCA 219 (CanLII) at 30
  2. R v Key, 2011 ONCJ 780 (CanLII) - detailed review of cases
  3. eg. R v Koshino, [1991] O.J. No. 173 (Gen. Div.)(*no CanLII links)
    R v Sandoval, [2000] O.J. No. 5591 (S.C.J.)(*no CanLII links)
    R v Smith, 2008 CanLII 3410 (ON SC), [2008] O.J. No. 381 (S.C.J.)
    R v Pilieci (2010), 257 CCC (3d) 541 (Ont. S.C.J.), 2010 ONSC 3606 (CanLII)
  4. R v Rennie, [2004] O.J. No. 4990 (S.C.J.)(*no CanLII links)
    R v Pavlick, [2008] O.J. No. 2114 (S.C.J.)(*no CanLII links)
    R v Sullivan, [2009] O.J. No. 5075 (S.C.J.)(*no CanLII links)
    R v Duran, 2011 ONSC 7346 (CanLII)
    R v Morton, 1992 CanLII 7818 (ON SC), (1992), 70 CCC (3d) 625 (Ont. Gen. Div.), affirmed, (1993), 83 CCC (3d) 95 (Ont.C.A.), 1993 CanLII 8575 (ON CA), per curiam
    R v Matykubov,2010 ONCJ 233 (CanLII)
    See also R v Wetmore (1976), 18 N.S.R. (2d) 292 (NSCA), 1976 CanLII 1358 (NS CA), per MacKeigan CJNS

Confirming Attendance After Conviction and Before Sentencing

732.2
...
Compelling appearance of person bound
(6) The provisions of Parts XVI [Compelling Appearance of an Accused Before a Justice and Interim Release, s. 493 to 529.5] and XVIII [Procedure on Preliminary Inquiry, s. 535 to 551] with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under subsections (3) and (5).
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).
[annotation(s) added]


CCC

See Also

Issuing Process

General Principles

See also: Laying of an Information and Warrant Arrests

Issuing process refers to the initial phase of the prosecution where the charges are laid before a judicial officer and the accused is notified of the existence of the charges.

The Criminal Code gives a peace officer two options on how to commence the prosecution. They have the option under s. 507 of first laying the charges and then notifying the accused through a summons or arrest (Charge First). Alternatively, the officer can arrest or summons the accused to a court date under s. 508 and then lay the charges after the notice is given (Notify First).

Charging flow chart.png

Once Justice of the Peace has reviewed and taken oath of the allegations in the information, the information must be endorsed either confirming the release documents, if the accused is present, or issue a summons or arrest warrant if the accused is not present.

Judicial Authorization Hearing is Ex Parte and In Camera
The stage where the justice decides whether to "issue process" in order to compel the accused to attend Court is held ex parte (without notice to the accused) and in camera (closed proceedings).[1]

When a Criminal Prosecution Starts
It is only once process is issued that a "criminal prosecution" commences.[2] By contrast a "criminal proceedings" is commenced on the "laying or receipt of an information in writing and under oath".[3]

Failure to Endorse the Process
A failure to confirm the release document ("the process") results in the information has been found to produce a nullity.[4] However, the growing attitude has been that the failure to endorse the process does not eliminate jurisdiction over the matter, and rather can only be used to support a charge of failure to attend.[5]

Burden to Prove Compliance
There is an onus on the accused to establish that the justice of the peace did not comply with the requirements of s.504-508.[6] If the requirements are not met, the courts may lose jurisdiction over the accused and the charge may become a nullity.

Forms
A summons issued under s. 493, 508 or 512 should use Form 6.[7]

Constitutionality
The ex parte nature of the hearing under s. 507 violates s. 2(b) of the Charter protecting rights of expression. However, they are justified under s. 1 of the Charter and are lawful.[8]

Issuing Process an Unconstitutional Offence
Where an offence has been found by a court to be contrary to the Charter and of no force or effect, it is still within the discretion of the issuing justice or judge to issue process for that offence.[9]

  1. R v McHale, 2010 ONCA 361 (CanLII) at para 48
  2. McHale, ibid. at para 71
  3. McHale, ibid. at para 70
    c.f. R v Awad, 2015 NSCA 10 (CanLII), at para 49 ("The swearing of an information is the act that commences the prosecution of an accused")
  4. R v Gougeon, [1980] OJ No 1332 (ONCA), 1980 CanLII 2842 (ON CA)
    R v Matykubov, 2010 ONCJ 233 (CanLII)
  5. R v Haight, 2011 ONCJ 156 (CanLII)
    R v Duran, 2011 ONSC 7346(CanLII), per Trotter SCJ
  6. Romanchuk at 6
  7. see List of Criminal Code Forms
  8. Southam Inc. v Coulter (C.A.), 1990 CanLII 6963 (ON CA)
  9. Canadian Broadcasting Corporation et al v Morrison, 2017 MBCA 36 (CanLII)

Issuing Process Under s. 507 (Charge First)

Upon an information or an indictment being laid under s. 504, the informant (usually a peace officer) can apply to a justice of the peace to compel the accused to attend court either by way of a summons or arrest warrant.

Justice to hear informant and witnesses — public prosecutions
507 (1) Subject to subsection 523(1.1), a justice who receives an information laid under section 504 by a peace officer, a public officer, the Attorney General or the Attorney General’s agent, other than an information laid before the justice under section 505, shall, except if an accused has already been arrested with or without a warrant,

(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so; and
(b) where he considers that a case for so doing is made out, issue, in accordance with this section, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence.

Process compulsory
(2) No justice shall refuse to issue a summons or warrant by reason only that the alleged offence is one for which a person may be arrested without warrant.
...
No process in blank
(5) A justice shall not sign a summons or warrant in blank.
...
Issue of summons or warrant
(8) Where, on an appeal from or review of any decision or matter of jurisdiction, a new trial or hearing or a continuance or renewal of a trial or hearing is ordered, a justice may issue either a summons or a warrant for the arrest of the accused in order to compel the accused to attend at the new or continued or renewed trial or hearing.
R.S., 1985, c. C-46, s. 507; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21.
[Underline added]


CCC

The justice of the peace should issue a summons unless it is in the public interest to issue a warrant.(s. 507(4))

Implied within the phrase of s. 507, includes an exception where "detained at the time the information is laid".[1]


Definitions
"Justice" is defined in s. 2 as comprising either a justice of the peace or a provincial court judge.[2]

Procedure

507
...
Procedure when witnesses attend
(3) A justice who hears the evidence of a witness pursuant to subsection (1) shall

(a) take the evidence on oath; and
(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.


...
R.S., 1985, c. C-46, s. 507; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21.


CCC

Section 507 provides for a justice of the peace to receive an unsworn information outside of those received under s. 505. If the justice receives an information where the accused has not been arrested, the justice must hear and consider evidence setting out the allegations. If satisfied there is reasonable grounds to believe an offence has been committed, the justice may issue a summons or a warrant of arrest to compel the accused to attend before the justice of the peace or a provincial court. Note that the provision does not contemplate the issuance of a appearance notice or promise to appear.

Section 507 gives the justice of the peace the power to issue a summons or warrant where he has received (1) an application from the police or Crown for the summons or warrant and (2) the justice has received allegations or evidence making out the basis for the warrant or summons.[3]

Cancelling an Order
A provincial court judge and justice of the peace who issue process by way of an arrest warrant under s. 507 has the jurisdiction to cancel that order at their discretion.[4]

Other Similar Powers
Section 578 provides a similar authority to authorize the issuance of a summons or warrant where there has been a direct indictment.

  1. R v Ladzinski, 2012 ONCJ 205 (CanLII) at para 9
    R v Drozd, 2011 ONCJ 51 (CanLII), [2011] OJ No 616 (OCJ)
  2. see Definition of Judicial Officers and Offices
  3. R v Worme, 2014 SKQB 383 (CanLII), at para 28
  4. R v Muirhead, 1974 CanLII 274 (AB QB)

Section 507(4) Public Interest Warrant or Summons

507
...
Summons to be issued except in certain cases
(4) Where a justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant or the evidence of any witness or witnesses taken in accordance with subsection (3) discloses reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused.
...
Endorsement of warrant by justice
(6) A justice who issues a warrant under this section or section 508 or 512 may, unless the offence is one mentioned in section 522, authorize the release of the accused pursuant to section 499 by making an endorsement on the warrant in Form 29.
Promise to appear or recognizance deemed to have been confirmed
(7) Where, pursuant to subsection (6), a justice authorizes the release of an accused pursuant to section 499, a promise to appear given by the accused or a recognizance entered into by the accused pursuant to that section shall be deemed, for the purposes of subsection 145(5), to have been confirmed by a justice under section 508.
...
R.S., 1985, c. C-46, s. 507; R.S., 1985, c. 27 (1st Supp.), s. 78; 1994, c. 44, s. 43; 2002, c. 13, s. 21.


CCC

Validity of Appearance Notice
Where a non-essential component of an appearance notice has been changed from what was presented to the justice it may invalidate the information.[1]

Validity of the Warrant
If a warrant is issued then the peace officer may arrest the accused under s. 511. (see Warrant Arrests)

  1. R v Lalonde, 2009 ONCJ 369 (CanLII) at para 18 - officer sworn to serving copy of appearance notice which was changed before service

Issuing Process Under s. 508 (Notify First)

Section 508 sets out the requirement to confirm the form of the release as well as the need to consider the allegations from the informant and, where necessary, hear evidence, where an information has been laid under s. 505.

Justice to hear informant and witnesses
508. (1) A justice who receives an information laid before him under section 505 shall

(a) hear and consider, ex parte,
(i) the allegations of the informant, and
(ii) the evidence of witnesses, where he considers it desirable or necessary to do so;
(b) where he considers that a case for so doing is made out, whether the information relates to the offence alleged in the appearance notice, promise to appear or recognizance or to an included or other offence,
(i) confirm the appearance notice, promise to appear or recognizance, as the case may be, and endorse the information accordingly, or
(ii) cancel the appearance notice, promise to appear or recognizance, as the case may be, and issue, in accordance with section 507, either a summons or a warrant for the arrest of the accused to compel the accused to attend before him or some other justice for the same territorial division to answer to a charge of an offence and endorse on the summons or warrant that the appearance notice, promise to appear or recognizance, as the case may be, has been cancelled; and
(c) where he considers that a case is not made out for the purposes of paragraph (b), cancel the appearance notice, promise to appear or recognizance, as the case may be, and cause the accused to be notified forthwith of the cancellation.

Procedure when witnesses attend
(2) A justice who hears the evidence of a witness pursuant to subsection (1) shall

(a) take the evidence on oath; and
(b) cause the evidence to be taken in accordance with section 540 in so far as that section is capable of being applied.


R.S., 1985, c. C-46, s. 508; R.S., 1985, c. 27 (1st Supp.), s. 79.


CCC

Section 508(1) provides a "safeguard against people having to appear in court to answer charges where a judicial officer has not considered the case for issuing process.[1]

Where the accused is released, a justice of the peace will review the charge before ordering the accused to attend court.(s. 508) If satisfied that there is reason to compel an accused to attend court, the justice will confirm the appearance notice or cancel it and issue a summons or warrant of arrest.[2]

  1. R v Matykubov, 2010 ONCJ 233 (CanLII)
  2. R v Romanchuk, 2011 SKCA 127 (CanLII) at para 4

Release by Police

General Principles

See also: Warrantless Arrests and Warrant Arrests

Release of a detainee is governed by Part XVI of the Code. The purpose of this Part includes minimizing, to "the extent consistent with the public interest, the pre-trial incarceration of persons charged with criminal offences."[1]

A peace officer[2] who arrests an accused person or a peace officer who is an officer-in-charge of the detainee may release the accused under s. 497 or 498. Section 497 concerns the requirement of an arresting officer to release the accused unless it is in the public interest not to do so or there is concerns that he will not attend court. Section 498 concerns the requirement of any other peace officer, including an officer-in-charge, to release the accused on the same basis as s. 497.

In certain circumstances, an officer may simply issue a appearance notice under s. 496.

  1. R v Oliveira, 2009 ONCA 219 (CanLII), per Doherty JA
  2. see s. 2 for the definition of "peace officer"

Powers of the Arresting Peace Officer

After the officer decides to exercise their authority to arrest without warrant under s. 496 or arrest with warrant, the peace officer may be able to

  1. release them with intention to serve them with a summons at a later time;
  2. issue an appearance notice; or
  3. detain and bring them to a justice of the peace.

A promise to appear and an undertaking to police are two forms of "police bail" provided by Part XVI of the Code.[1]

Section 497 provides the authority to a peace officer to release an accused:

Release from custody by peace officer
497. (1) Subject to subsection (1.1) [relating to public interest detention], if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b) or (c) [listed offences eligible for appearance notice, see below], the peace officer shall, as soon as practicable,

(a) release the person from custody with the intention of compelling their appearance by way of summons; or
(b) issue an appearance notice to the person and then release them.

Exception
(1.1)...[detention for public interest]...

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3) [‘’arrest of person out of province’’].
...
(3) [Consequences of non-release]
...
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).
[annotation(s) added]


CCC

If the officer believes there is grounds to make a warrantless arrest under s. 495(1), after concluding that s. 495(2) does not apply, then under s. 497, the officer must release the accused "as soon as practicable" on a summons (s. 497(1)(a)) or a appearance notice (s. 497(1)(b)), if the offence for summary, hybrid or 553 offences, person, unless, under s. 497(1.1), the officer "believes, on reasonable grounds" that:

  1. either:
    1. "it is necessary in the public interest that the person be detained in custody" or
    2. "that the matter of their release from custody be dealt with under another provision of this Part"
  2. while having regard to all the circumstances including the need to:
    1. establish the identity of the person,
    2. secure or preserve evidence of or relating to the offence,
    3. prevent the continuation or repetition of the offence or the commission of another offence, or
    4. ensure the safety and security of any victim of or witness to the offence; or
  3. "that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law."

Where the officer does not release the accused then they will be brought before a judge to determine if interim release will be granted.

An appearance notice is defined in s. 493 as "a notice in Form 9 issued by a peace officer".

A summons is defined in s. 493 as "a summons in Form 6 issued by a justice or judge;"

  1. R v Oliveira, 2009 ONCA 219 (CanLII), at para 29

Appearance Notice Eligible Offences

Issue of appearance notice by peace officer
496 Where, by virtue of subsection 495(2) [Public Interest exception to arrest authority], a peace officer does not arrest a person, he may issue an appearance notice to the person if the offence is

(a) an indictable offence mentioned in section 553 [absolute jurisdiction offences];
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction [hybrid offences]; or
(c) an offence punishable on summary conviction [summary offences].

R.S., c. C-34, s. 451; R.S., c. 2(2nd Supp.), s. 5.
[annotation(s) added]


CCC

The offences captured by s. 496 consist of:

Exception to s. 497(1)

Under s. 497(2), these rules do not apply where the accused is arrested without a warrant for an offence in a different province (as referenced in s. 503(3)).

Also, the officer should not release if he believes that the person may fail to attend court or where the offence described in s.503(3) concerning offences outside of the jurisdiction.

503
...

Remand in custody for return to jurisdiction where offence alleged to have been committed
(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or
(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may
(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or
(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.


...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).


CCC

Powers of an "Officer in Charge"

Section 498 provides the power to an officer in charge (OIC) to decide on several manners of release.

An OIC may be able to do any of the following:

  • release the accused with the intention of serving a summons upon him at a later date;
  • release the accused with a promise to appear; or
  • release the accused on a recognizance.

The OIC recognizance is somewhat different from a recognizance from a judge. An OIC recognizance is not able to include a surety and cannot exceed $500.

Section 493 defines an "officer in charge" as "the officer for the time being in command of the police force responsible for the lock-up or other place to which an accused is taken after arrest or a peace officer designated by him for the purposes of this Part who is in charge of that place at the time an accused is taken to that place to be detained in custody;"[1]

Release from custody by officer in charge
498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception
(1.1)...[detention for public interest]...

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).


CCC

Where police policy regarding domestic violence does not permit the officer from releasing the accused under s. 498, the right against arbitrary detention under s. 9 is violated.[2]

Money or Valuable Security

Money or other valuable security to be deposited with justice
500 If a person has, under paragraph 498(1)(d) or 499(1)(c), deposited any sum of money or other valuable security with the officer in charge, the officer in charge shall, without delay after the deposit, cause the money or valuable security to be delivered to a justice for deposit with the justice.
R.S., 1985, c. C-46, s. 500; 1999, c. 5, s. 20, c. 25, s. 6(Preamble).


  1. see also R v Gendron (1985), 22 CCC (3d) 312, 1985 CanLII 3570 (ON CA), per Goodman JA
  2. R v Rashid, 2010 ONCA 591 (CanLII), per curiam - remedy was for greater custody credit (4:1 credit)

Public Interest Factors for Detention

The peace officer or officer in charge may detain for reasons set out in s. 497(1.1) and 498(1.1) which mirror each other:

497.
...
Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

...
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).


CCC

498.
...
Exception
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) 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
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).


CCC

The factors set out in 487(1.1) and 498(1.1) is not a closed list.[1] Other circumstances include an offender charged for impaired driving who can be held "until that individual is sober or can be picked up by a sober person".[2] There is no strict obligation to make an inquiry into whether a pick up is available but a failure to make any inquiry could affect the reasonableness of the decision to hold the accused. [3]

  1. R v Donald, 2010 SKPC 123 (CanLII), at para 48
  2. Donald at para 48
    R v Pashovitz (1987), 1987 CanLII 4629 (SK CA), 59 Sask.R. 165, 59 C.R. (3d) 396 (C.A.), per Sherstobitoff JA
    R v Sapusak, [1998] O.J. No. 4148 (QL) (Ont. C.A.)(*no CanLII links)
  3. R v Marcil, 2015 SKQB 79 (CanLII), per McMurtry J at para 11

Deeming to Act Lawfully

495.
...
Consequences of arrest without warrant
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.


CCC

497.
...
Consequences of non-release
(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).


CCC

498.
...
Consequences of non-release
(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).


CCC

503
...
Consequences of non-release
(5) Notwithstanding subsection (4), a peace officer or an officer in charge having the custody of a person referred to in that subsection who does not release the person before the expiration of the time prescribed in paragraph (1)(a) or (b) for taking the person before the justice shall be deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or
(b) any other proceedings, unless in such proceedings it is alleged and established by the person making the allegation that the peace officer or officer in charge did not comply with the requirements of subsection (4).


R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).


CCC

Section 495(3) should be construed to deny any defence for failure to comply with 495(2).[1]

Notably there is no similar deeming provision in relation to the obligations under s. 503 which requires the accused to be brought to a justice.

  1. R v Adams, 1972 CanLII 867 (SK CA), per Culliton CJ

Release Persons About to Commit Indictable Offence

503 (1) ...
Release of person about to commit indictable offence
(4) A peace officer or an officer in charge having the custody of a person who has been arrested without warrant as a person about to commit an indictable offence shall release that person unconditionally as soon as practicable after he is satisfied that the continued detention of that person in custody is no longer necessary in order to prevent the commission by him of an indictable offence.
...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).


CCC

Promise to Appear or Recognizance Issued by an Officer in Charge

If the officer believes there is grounds to make a warrantless arrest under s. 495(1), after concluding that s. 495(2) does not apply, and, the officer does not release on an appearance notice or summons under s. 497, then, the officer in charge must release under s. 498 on a summons, a promise to appear or recognizance (without surety) once there is no further reason to detain the accused, if the offence for summary, hybrid or 553 offences[1], or any offence with a maximum penalty of five year jail and is not currently subject to a release process. That is, unless, under s. 498(1.1), the officer in charge "believes, on reasonable grounds" that:

  1. either:
    1. "it is necessary in the public interest that the person be detained in custody" or
    2. "that the matter of their release from custody be dealt with under another provision of this Part"
  2. while having regard to all the circumstances including the need to:
    1. establish the identity of the person,
    2. secure or preserve evidence of or relating to the offence,
    3. prevent the continuation or repetition of the offence or the commission of another offence, or
    4. ensure the safety and security of any victim of or witness to the offence; or
  3. "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 promise to appear is defined in s. 493 as requiring Form 10.[2] It shall include the accused's name, the substance of the offence, a demand to attend court at a stated time and place.[3]

Section 503(2.1) concerns imposing an undertakings:

503
...
Undertaking
(2.1) In addition to the conditions referred to in subsection (2), the peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;
(b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;
(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;
(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;
(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;
(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;
(g) to abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription; or
(h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.


...


CCC

Under s. 503(2.1), any promise to appear or recognizance can be made to include conditions, including:

  • to remain within a territorial jurisdiction,
  • to notify the officer of any change of address, employment, or occupation,
  • to abstain from communicating directly or indirectly with certain individuals,
  • to abstain from attending certain locations,
  • to deposit their passport,
  • to abstain from possessing any firearm and to surrender any firearms licenses,
  • to report at certain times to the police,
  • to abstain from the consumption of alcohol or other intoxicating substances,
  • to abstain from the consumption of drugs except in accordance with a medical prescription, and
  • to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any victim or witness.

The PTA is intended to "secure the initial attendance of the accused in court". After that, the PTA becomes "largely irrelevant".[4]

Any fault in the PTA or process does not invalidate the charges.[5]

Conditions on an undertaking to an officer in charge are intended to "protect the public by providing some measure of control over an accused's conduct while the criminal proceedings are extant." Accordingly, the "life of the undertaking should be tied to the life of the charges".[6]

The "life of an undertaking is tied to the life of the charges giving rise to the undertaking" but not the promise to appear or recognizance.[7]

The conditions remain in place until conclusion of the charges associated with the undertaking.[8]

  1. for 553 offences, see Election#Absolute_and_Exclusive_Jurisdiction
  2. List of Criminal Code Forms
  3. [s. 501(1)
  4. R v Oliveira, 2009 ONCA 219 (CanLII), per Doherty JA, at para 30
  5. Oliveira, ibid. at para 30
  6. Oliveria, ibid. at para 31 and 32
  7. R v Roy, 2014 SKQB 408 (CanLII), per Zuk J, at para 24
  8. see s. 523(1)(b)
    Oliveria, supra at para 31

Undertaking to an Officer in Charge

If an officer has grounds to make a warrantless arrest under s. 495 and the accused is not released under s. 497 or 498, then there is a general discretion under s. 503(2) to release the accused from custody "conditionally" by either a promise to appear or recognizance for any offences except 496 offences.[1]

Section 503(2) states:

503
...
Conditional release
(2) If a peace officer or an officer in charge is satisfied that a person described in subsection (1) should be released from custody conditionally, the officer may, unless the person is detained in custody for an offence mentioned in section 522, release that person on the person’s giving a promise to appear or entering into a recognizance in accordance with paragraphs 498(1)(b) to (d) and subsection (2.1).
...


CCC

Under s. 503(2.1), the officer may further require the accused to enter into an undertaking, which can have one or more of the following conditions:

  • to remain within a territorial jurisdiction,
  • to notify the officer of any change of address, employment, or occupation,
  • to abstain from communicating directly or indirectly with certain individuals,
  • to abstain from attending certain locations,
  • to deposit their passport,
  • to abstain from possessing any firearm and to surrender any firearms licenses,
  • to report at certain times to the police,
  • to abstain from the consumption of alcohol or other intoxicating substances,
  • to abstain from the consumption of drugs except in accordance with a medical prescription, and
  • to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any victim or witness.

Failure to comply with the undertaking is a criminal offence.

The form of the undertaking should conform to Form 11.1 of the Criminal Code.

  1. Some ambiguity exists in the meaning of s. 503(2), see Trotter, The Law of Bail In Canada (1992), at p. 59

Varying Conditions

Conditions in place from an undertaking to an officer in charge can be modified at any point under s. 499(3) and 497(1.1), as well as 503(2.2) for the Defence and 503(2.3) for the Crown. The variation does not need the consent of the Crown.

503.
...
Application to justice
(2.2) A person who has entered into an undertaking under subsection (2.1) may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.
Application by prosecutor
(2.3) Where a person has entered into an undertaking under subsection (2.1), the prosecutor may

(a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after three days notice has been given to that person, or
(b) at the appearance,

apply to a justice for an order under subsection 515(2) to replace the undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.

...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).


CCC

Timing of Release ("As soon as practicable")

See also Right Against Arbitrary Detention

Under both s. 497 and 498, a peace officer or officer in charge must release a suspect "as soon as practicable".

If the suspect is being held for court, s. 503 requires that police bring him to court "without unreasonable delay".

Post-arrest detention is permissible under the exceptions listed in s. 497(1.1)(a) and s. 498(1.1)(a). This includes detention for the purpose of "securing" evidence including obtaining a statement from the accused.[1]

Fsilure to comply with the duty in s. 503 to bring the accused as soon as practicable to the justice can be factor in determining voluntariness of a statement.[2]

  1. R v Viszlai, 2012 BCCA 442 (CanLII) at para 61, 62
  2. R v Koszalup, (1974), 27 CRNS 226(*no CanLII links) at 236

Timing of Laying an Information ("As soon as practicable")

See also: Laying of an Information and Issuing Process

Once an accused is released, the officer is required under s. 505 to lay an information "as soon as practicable":

Time within which information to be laid in certain cases
505. Where

(a) an appearance notice has been issued to an accused under section 496, or
(b) an accused has been released from custody under section 497 or 498,

an information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.
R.S., c. 2(2nd Supp.), s. 5.


CCC

Attendance from Release

If an accused is released by summons, appearance notice, promise to appear, recognizance, or undertaking, as discussed above, and the accused fails to attend on the date specified, the justice may issue a warrant under s. 502 for the arrest of the accused. The warrant may be "endorsed" pursuant to s. 507(6) otherwise the warrant will be considered "unendorsed".

If the accused attends before the justice, at which point the information will have been laid, the judge will either confirm the "process" (that is, the release mechanism used to compel attendance) or else will cancel it under s. 508.

Contents of Appearance Notice, Promise to Appear or Recognizance

Contents of appearance notice, promise to appear and recognizance
501 (1) An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer shall

(a) set out the name of the accused;
(b) set out the substance of the offence that the accused is alleged to have committed; and
(c) require the accused to attend court at a time and place to be stated therein and to attend thereafter as required by the court in order to be dealt with according to law.


Idem
(2) An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer shall set out the text of subsections 145(5) and (6) and section 502.
Attendance for purposes of Identification of Criminals Act
(3) An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act, where the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act.
Signature of accused
(4) An accused shall be requested to sign in duplicate his appearance notice, promise to appear or recognizance and, whether or not he complies with that request, one of the duplicates shall be given to the accused, but if the accused fails or refuses to sign, the lack of his signature does not invalidate the appearance notice, promise to appear or recognizance, as the case may be.
(5) [Repealed, 2008, c. 18, s. 15]
R.S., 1985, c. C-46, s. 501; R.S., 1985, c. 27 (1st Supp.), s. 76; 1992, c. 47, s. 69; 1994, c. 44, ss. 41, 94; 1996, c. 7, s. 38; 2008, c. 18, s. 15.


CCC

Duration of Conditions

Period for which appearance notice, etc., continues in force
523. (1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or
(b) in any other case,
(i) until his trial is completed, and
(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

...
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.


CCC

Duty Upon Deciding to Detain

See also: Judicial Interim Release

Section 503(1) requires that once the accused is detained without release they are to bring the accused before a justice:

Taking before justice
503. (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).


CCC


This duty reflects the English common law duties upon arrest. [1]

  1. see John Lewis v Tims, [1952] 1 All ER 1203 (H.L.) reviewing common law

Warrantless Arrest and Release for an Offence Committed Outside of the Province

Sections 503(3) and 503(3.1) govern the process of compelling attedance where a peace officer arrests an accused without warrant for an offence that was committed in a different province.

Under s. 503(3)(b) a justice of the peace may order the remand of an accused for a period of up to 6 days, during which time the police may execute a public interest arrest warrant.

503.
...
Remand in custody for return to jurisdiction where offence alleged to have been committed
(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or
(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may
(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or
(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.

Interim release
(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released

(a) unconditionally; or
(b) on any of the following terms to which the prosecutor consents, namely,
(i) giving an undertaking, including an undertaking to appear at a specified time before the court that has jurisdiction with respect to the indictable offence that the person is alleged to have committed, or
(ii) entering into a recognizance described in any of paragraphs 515(2)(a) to (e)

with such conditions described in subsection 515(4) as the justice considers desirable and to which the prosecutor consents.
...


CCC

Non-Compliance
A failure to comply with 503(3) can result in a breach of rights under s 7 and 9.[1]

Time Limitation
Under s. 503, the accused must be brought before a justice in normal course within the time specified in s. 503(1)(a) and (b). The justice will order the remand of the accused for 6 days until the accused can be transported to the offence's jurisdiction.

Arresting Under Section 497 or 498

497
...
Where subsection (1) does not apply
(2) Subsection (1) [Release from custody by peace officer] does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
...
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).[annotation(s) added]


CCC

498
...
Where subsection (1) does not apply
(2) Subsection (1) [Release from custody by officer in charge] does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).[annotation(s) added]


CCC


  1. eg see Canada v Marshall (1984), 13 CCC (3d) 73, 1984 CanLII 3561 (ON SC) per Osborne J

Compelling Attendance for Identification

Powers to Release on Warrant Arrest

See also: Warrant Arrests

Endorsed Arrest Warrant Under s. 507

Section 499 concerns endorsed warrants:

Release from custody by officer in charge where arrest made with warrant
499 (1) Where a person who has been arrested with a warrant by a peace officer is taken into custody for an offence other than one mentioned in section 522, the officer in charge may, if the warrant has been endorsed by a justice under subsection 507(6),

(a) release the person on the person’s giving a promise to appear;
(b) release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs, but without deposit of money or other valuable security; or
(c) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within two hundred kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs and, if the officer in charge so directs, on depositing with the officer in charge such sum of money or other valuable security not exceeding in amount or value five hundred dollars, as the officer in charge directs.


...


CCC

Under s. 499(1), where the warrant for arrest was endorsed for release pursuant to s. 507(6) and the offence is not a 469 offence, the officer may do any of the following:

  1. "release the person on the person's giving a promise to appear";
  2. "release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs, but without deposit of money or other valuable security"; or
  3. if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within two hundred kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs and, if the officer in charge so directs, on depositing with the officer in charge such sum of money or other valuable security not exceeding in amount or value five hundred dollars, as the officer in charge directs.

Conditions
The officer may also impose conditions specified in s. 499(2):

499
...
Additional conditions
(2) In addition to the conditions for release set out in paragraphs (1)(a), (b) and (c), the officer in charge may also require the person to enter into an undertaking in Form 11.1 in which the person, in order to be released, undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;
(b) to notify a peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;
(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;
(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;
(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;
(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;
(g) to abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription; and
(h) to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

...


CCC


Variations
A person subject to conditions under s. 499(2) may, before appearance, may apply before a justice of the peace vary the conditions:

499
...
Application to justice
(3) A person who has entered into an undertaking under subsection (2) may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.
Application by prosecutor
(4) Where a person has entered into an undertaking under subsection (2), the prosecutor may

(a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after three days notice has been given to that person, or
(b) at the appearance,

apply to a justice for an order under subsection 515(2) to replace the undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.
R.S., 1985, c. C-46, s. 499; R.S., 1985, c. 27 (1st Supp.), s. 186; 1994, c. 44, s. 40; 1997, c. 18, s. 53; 1999, c. 25, s. 5(Preamble).


CCC

Endorsed Arrest Warrant Under s. 519

Release of accused
519 (1) Where a justice makes an order under subsection 515(1), (2), (7) or (8),

(a) if the accused thereupon complies with the order, the justice shall direct that the accused be released
(i) forthwith, if the accused is not required to be detained in custody in respect of any other matter, or
(ii) as soon thereafter as the accused is no longer required to be detained in custody in respect of any other matter; and
(b) if the accused does not thereupon comply with the order, the justice who made the order or another justice having jurisdiction shall issue a warrant for the committal of the accused and may endorse thereon an authorization to the person having the custody of the accused to release the accused when the accused complies with the order
(i) forthwith after the compliance, if the accused is not required to be detained in custody in respect of any other matter, or
(ii) as soon thereafter as the accused is no longer required to be detained in custody in respect of any other matter

and if the justice so endorses the warrant, he shall attach to it a copy of the order.
Discharge from custody
(2) Where the accused complies with an order referred to in paragraph (1)(b) and is not required to be detained in custody in respect of any other matter, the justice who made the order or another justice having jurisdiction shall, unless the accused has been or will be released pursuant to an authorization referred to in that paragraph, issue an order for discharge in Form 39.
Warrant for committal
(3) Where the justice makes an order under subsection 515(5) or (6) for the detention of the accused, he shall issue a warrant for the committal of the accused.
R.S., 1985, c. C-46, s. 519; R.S., 1985, c. 27 (1st Supp.), s. 85.


CCC

Unendorsed Warrant

Under s. 503, an officer arresting someone on a warrant may either detain them in custody to be brought to a justice within 24 hours or, release the person "conditionally" on a promise to appear or recognizance.

Definitions

Definitions
493 In this Part,
"accused" includes

(a) a person to whom a peace officer has issued an appearance notice under section 496, and
(b) a person arrested for a criminal offence; (prévenu)

"appearance notice" means a notice in Form 9 issued by a peace officer; (citation à comparaître)
...
"officer in charge" means the officer for the time being in command of the police force responsible for the lock-up or other place to which an accused is taken after arrest or a peace officer designated by him for the purposes of this Part who is in charge of that place at the time an accused is taken to that place to be detained in custody; (fonctionnaire responsable)
"promise to appear" means a promise in Form 10; (promesse de comparaître)
"recognizance", when used in relation to a recognizance entered into before an officer in charge, or other peace officer, means a recognizance in Form 11, and when used in relation to a recognizance entered into before a justice or judge, means a recognizance in Form 32; (engagement)
"summons" means a summons in Form 6 issued by a justice or judge; (sommation)
"undertaking" means an undertaking in Form 11.1 or 12; (promesse)
"warrant", when used in relation to a warrant for the arrest of a person, means a warrant in Form 7 and, when used in relation to a warrant for the committal of a person, means a warrant in Form 8. (mandat)
R.S., 1985, c. C-46, s. 493; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 5, c. 17, s. 12; 1992, c. 51, s. 37;1994, c. 44, s. 39; 1999, c. 3, s. 30; 2002, c. 7, s. 143; 2015, c. 3, s. 51.


CCC

Procuring the Attendance of a Prisoner

General Principles

A person who is in the custody of a prison may be brought to court by way of a pickup, transport or production order issued by either a provincial court or superior court judge.

Procuring attendance
527. (1) A judge of a superior court of criminal jurisdiction may order in writing that a person who is confined in a prison be brought before the court, judge, justice or provincial court judge before whom the prisoner is required to attend, from day to day as may be necessary, if

(a) the applicant for the order sets out the facts of the case in an affidavit and produces the warrant, if any; and
(b) the judge is satisfied that the ends of justice require that an order be made.

Provincial court judge’s order
(2) A provincial court judge has the same powers for the purposes of subsection (1) or (7) as a judge has under that subsection where the person whose attendance is required is within the province in which the provincial court judge has jurisdiction.
Conveyance of prisoner
(3) An order that is made under subsection (1) or (2) shall be addressed to the person who has custody of the prisoner, and on receipt thereof that person shall

(a) deliver the prisoner to any person who is named in the order to receive him; or
(b) bring the prisoner before the court, judge, justice or provincial court judge, as the case may be, on payment of his reasonable charges in respect thereof.

Detention of prisoner required as witness
(4) Where a prisoner is required as a witness, the judge or provincial court judge shall direct, in the order, the manner in which the prisoner shall be kept in custody and returned to the prison from which he is brought.
Detention in other cases
(5) Where the appearance of a prisoner is required for the purposes of paragraph (1)(a) or (b), the judge or provincial court judge shall give appropriate directions in the order with respect to the manner in which the prisoner is

(a) to be kept in custody, if he is ordered to stand trial; or
(b) to be returned, if he is discharged on a preliminary inquiry or if he is acquitted of the charge against him.

Application of sections respecting sentence
(6) Sections 718.3 and 743.1 apply where a prisoner to whom this section applies is convicted and sentenced to imprisonment by the court, judge, justice or provincial court judge.
Transfer of prisoner
(7) On application by the prosecutor, a judge of a superior court of criminal jurisdiction may, if a prisoner or a person in the custody of a peace officer consents in writing, order the transfer of the prisoner or other person to the custody of a peace officer named in the order for a period specified in the order, where the judge is satisfied that the transfer is required for the purpose of assisting a peace officer acting in the execution of his or her duties.
Conveyance of prisoner
(8) An order under subsection (7) shall be addressed to the person who has custody of the prisoner and on receipt thereof that person shall deliver the prisoner to the peace officer who is named in the order to receive him.
Return
(9) When the purposes of any order made under this section have been carried out, the prisoner shall be returned to the place where he was confined at the time the order was made.
R.S., 1985, c. C-46, s. 527; R.S., 1985, c. 27 (1st Supp.), ss. 92, 101(E), 203; 1994, c. 44, s. 50; 1995, c. 22, s. 10; 1997, c. 18, s. 62.


CCC

An accused who is in custody on other matters and is brought before a court on new charges without arrest, notice or summons, can still be ordered remanded under s. 527(5) and be denied bail after a bail hearing.[1] The accused may also be made to go to a show cause hearing under s. 515 in these circumstances.[2]

Exempt From Provisions of Part XXII of the Code
The provisions of s. 527 take precedent over any of the provisions within Part XXII (s. 697 to 715.2) of the Code.[3]

No Transport Orders Relating to Persons Serving Sentencing
Where a suspect is serving a sentence in a correctional facility, the superior court has no jurisdiction to order their transport without it relating to on-going court proceedings.[4]

  1. R v Katirtzogloy, 1989 CarswellOnt 1933, [1989] O.J. No. 1872(*no CanLII links)
    R v Goikhberg, 2014 QCCS 3891 (CanLII) at paras 21 to 41 per Cournoyer SCJ
  2. Katirtzogloy, ibid.
    R v Lalo, 2002 NSSC 157 (CanLII) at para 66
  3. see s. 697: "Except where section 527 applies, this Part applies where a person is required to attend to give evidence in a proceeding to which this Act applies. R.S., c. C-34, s. 625."
  4. R v Dechamp, 2017 NSSC 207 (CanLII), per Duncan J

Transfer of Matters to Other Provinces or Territories

General Principles

See also: Jurisdiction of the Courts

The process of "waiving jurisdiction", permitting charges to be plead to and sentenced for the offence in a province other than the original jurisdiction.[1]

Offence committed entirely in one province
478. (1) Subject to this Act, a court in a province shall not try an offence committed entirely in another province.
...
Idem
(3) An accused who is charged with an offence that is alleged to have been committed in Canada outside the province in which the accused is may, if the offence is not an offence mentioned in section 469 and

(a) in the case of proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, if the Attorney General of Canada consents, or
(b) in any other case, if the Attorney General of the province where the offence is alleged to have been committed consents,

appear before a court or judge that would have had jurisdiction to try that offence if it had been committed in the province where the accused is, and where the accused consents to plead guilty and pleads guilty to that offence, the court or judge shall determine the accused to be guilty of the offence and impose the punishment warranted by law, but where the accused does not consent to plead guilty and does not plead guilty, the accused shall, if the accused was in custody prior to appearance, be returned to custody and shall be dealt with according to law.
...
R.S., 1985, c. C-46, s. 478; R.S., 1985, c. 27 (1st Supp.), ss. 64, 101(E); 1994, c. 44, s. 33(E).


CCC

Where charges are transferred to a different jurisdiction pursuant to s. 478(3) for the purpose of entering guilty pleas, but "guilty pleas are not taken by the court of the transferee province, the charges should be transferred back to the originating province".[2]

  1. R v Graham, 2012 BCCA 376 (CanLII), per curiam at para 3
  2. R v Gallagher, 2009 MBQB 160 (CanLII), per Greenberg J at para 25

Youth Court

Transfer of charges
133 Despite subsections 478(1) and (3) of the Criminal Code, a young person charged with an offence that is alleged to have been committed in one province may, if the Attorney General of the province consents, appear before a youth justice court of any other province and

(a) if the young person pleads guilty to that offence and the youth justice court is satisfied that the facts support the charge, the court shall find the young person guilty of the offence alleged in the information or indictment; and
(b) if the young person pleads not guilty to that offence, or pleads guilty but the court is not satisfied that the facts support the charge, the young person shall, if he or she was detained in custody prior to the appearance, be returned to custody and dealt with according to law.


YCJA

Transfer of Matters to Other Territorial Divisions Within the Province

Offence outstanding in same province
479. Where an accused is charged with an offence that is alleged to have been committed in the province in which he is, he may, if the offence is not an offence mentioned in section 469 and

(a) in the case of proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government, the Attorney General of Canada consents, or
(b) in any other case, the Attorney General of the province where the offence is alleged to have been committed consents,

appear before a court or judge that would have had jurisdiction to try that offence if it had been committed in the place where the accused is, and where the accused consents to plead guilty and pleads guilty to that offence, the court or judge shall determine the accused to be guilty of the offence and impose the punishment warranted by law, but where the accused does not consent to plead guilty and does not plead guilty, the accused shall, if the accused was in custody prior to appearance, be returned to custody and shall be dealt with according to law.
R.S., 1985, c. C-46, s. 479; R.S., 1985, c. 27 (1st Supp.), s. 65; 1994, c. 44, s. 34(E).


CCC

Time Limitations

See Also

Judicial Interim Release / Bail

Introduction

Where a person is in custody and the police decide not to release them, the accused must be brought before a judge to determine if they should be released on bail.

Bail is a form of contract between the crown and the surety or accused, where the crown releases the accused in exchange for the guarantee that the accused will abide by the terms of release.[1]

Section 11(e) of the Charter of Rights and Freedoms states that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause". [2]This means that the accused cannot be denied bail without reason and only where necessary.[3]

Under s. 515(1), a judge or justice must release a person held in custody on an undertaking without conditions unless the Crown can show cause to do otherwise.

Where the court sees fit, s. 526 permits the judge to "give directions for expediting any proceedings in respect of the accused".

When a person is released on a recognizance under s. 515, the accused and his surety will continue to be bound by the terms of the recognizance after each appearance.[4]

A person who is in police custody or in the custody of a correctional facility can be ordered to attend court and ordered to be remanded into custody under s. 527.[5]

  1. Ewaschuk, Criminal Practice and Procedure in Canada at 6:0010 where the terms are violated the surety will incur a debt with the crown.
  2. Section 11(e) of The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
  3. R v Hall, [2002] SCJ No. 65 2002 SCC 64 (CanLII), per McLachlin CJ
    R v Villota, 2002 CanLII 49650 (ONSC), per Hill J
    R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711, per Lamer CJ
    R v Hall, 2000 CanLII 16867 (ON CA), per Osborne ACJ
  4. s. 763, 764(1)
  5. see Procuring the Attendance of a Prisoner for details

History

Prior to 1972 the bail system was primarily based on a cash bail.[1] It was also "highly discretionary" with a presumption of detention unless bail was applied for.[2] The only forms of release was the release (a) by recognizance with surety or sureties (b) release on cash deposit, or (c) release on entering a recognizance.[3]

The modern regime of bail arose from the 1972 Bail Reform Act, S.C. 1970-71-72, c. 37, which included the addition of s. 457 (2) (now s. 515 (2)).

The Bail Reform Act was designed to "do away with the requirement ... to deposit money unless [the accused was] not normally resident in or near the jurisdiction in which they were in custody".[4] It created a system where "[b]ail must be granted unless pre-trial detention is justified by the prosecution".[5]

In 1975, the Criminal Law Amendment Act, S.C. 1974-75-76, c. 93, added s. 515(2)(c.1) (now s. 515(2)(d)), which allows an accused to be released with consent by entering a recognizance without a surety by depositing money or property as security.

  1. R v Folkes, 2007 ABQB 624 (CanLII), per Marceau J, at para 15
    R v Rowan, 2011 ONSC 7362 (CanLII), per Ramsay J at para 9 ("One of the main purposes of the Bail Reform Act was to get away from the common law’s preoccupation with cash deposit")
    R v Antic, 2017 SCC 27 (CanLII), per Wagner J at para 26
  2. Antic, ibid. at para 23
  3. Antic, ibid. at para 24
  4. R v Folkes, at para 15
    See Gary Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) [Trotter] at 247
  5. R v Pearson, [1998] 3 SCR 620, 1998 CanLII 776 (SCC), per Lamer CJ

Method of Release

Section 515 permits a justice to release an accused who is brought to him:

Order of release
515. (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice.

...
R.S., 1985, c. C-46, s. 515; (...) 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14.


CCC

An accused may be released by any one of these release mechanisms:

  • appearance notice
  • promise to appear
  • summons
  • undertaking
  • recognizance

Part XVI of the Code on bail sets out a structure of bail known as the "ladder principle".[1] This principle dictates that "release is favoured at the earliest reasonable opportunity" and "on the least onerous grounds" in light of the "risk of flight and public protection".[2] The analysis should consider in order. First, whether to release on undertaking with conditions under s. 515(1). If this is not sufficient to "secure the aims of Part XVI" then the Crown "may seek to show cause for other, non-monetary conditions" under s. 515(2)(a). Third, as a last resort, the release should consider a "requirement for cash by deposit or recognizance" under s. 515(3).[3] A cash condition can come in different forms under s. 515(2)(b) through (e), which should be viewed in favour of the least onerous conditions.[4]

  1. R v O’Connor, 2015 ONSC 1256 (CanLII) at para 46
  2. O'Connor at para 46
    Anoussis
  3. O'Connor at para 46
    Anoussis
  4. O'Connor at para 46
    Anoussis
    R v Horvat (1972) 9 CCC (2d) 1 (B.C.S.C.), 1972 CanLII 1371 (BC SC)Template:BCSC

Duration of Release Mechanism

Period for which appearance notice, etc., continues in force
523. (1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or
(b) in any other case,
(i) until his trial is completed, and
(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

Where new information charging same offence
(1.1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, a new information, charging the same offence or an included offence, is received, section 507 or 508, as the case may be, does not apply in respect of the new information and the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the new information.
When direct indictment is preferred charging same offence
(1.2) When an accused, in respect of an offence with which the accused is charged, has not been taken into custody or is being detained or has been released from custody under or by virtue of any provision of this Part and after the order for interim release or detention has been made, or the appearance notice, promise to appear, summons, undertaking or recognizance has been issued, given or entered into, and an indictment is preferred under section 577 charging the same offence or an included offence, the order for interim release or detention of the accused and the appearance notice, promise to appear, summons, undertaking or recognizance, if any, applies in respect of the indictment.
...
Provisions applicable to proceedings under subsection (2)
(3) The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in section 469.
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.


CCC

Irregularities or Variance in Release Mechanism

Irregularity or variance not to affect validity
546. The validity of any proceeding at or subsequent to a preliminary inquiry is not affected by

(a) any irregularity or defect in the substance or form of the summons or warrant;
(b) any variance between the charge set out in the summons or warrant and the charge set out in the information; or
(c) any variance between the charge set out in the summons, warrant or information and the evidence adduced by the prosecution at the inquiry.

R.S., c. C-34, s. 473.


CCC

Adjournment if accused misled
547 Where it appears to the justice that the accused has been deceived or misled by any irregularity, defect or variance mentioned in section 546, he may adjourn the inquiry and may remand the accused or grant him interim release in accordance with Part XVI.
R.S., c. C-34, s. 474; 1974-75-76, c. 93, s. 59.1.


CCC

Release on Section 469 Offences

Under s. 522 only a superior court justice may consider the release of someone charged with an offender under s. 469.[1]

Interim release by judge only
522 (1) Where an accused is charged with an offence listed in section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.
Idem
(2) Where an accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).
Order re no communication
(2.1) A judge referred to in subsection (2) who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order except in accordance with such conditions specified in the order as the judge considers necessary.
Release of accused
(3) If the judge does not order that the accused be detained in custody under subsection (2), the judge may order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsections 515(4), (4.1) and (4.2) as the judge considers desirable.
Order not reviewable except under section 680
(4) An order made under this section is not subject to review, except as provided in section 680.
Application of sections 517, 518 and 519
(5) The provisions of sections 517, 518 except subsection (2) thereof, and 519 apply with such modifications as the circumstances require in respect of an application for an order under subsection (2).
Other offences
(6) Where an accused is charged with an offence mentioned in section 469 and with any other offence, a judge acting under this section may apply the provisions of this Part respecting judicial interim release to that other offence.
R.S., 1985, c. C-46, s. 522; R.S., 1985, c. 27 (1st Supp.), s. 88; 1991, c. 40, s. 32; 1994, c. 44, s. 48; 1999, c. 25, s. 10(Preamble).


CCC

Onus
The onus is upon the accused to show cause for release on a 469 offence.[2]

Detention by Provincial Court Judge
A person charged with an offence under s. 469 will be required to attend before a justice of the peace or provincial court judge under s. 503, however s. 515(11) requires them to detain the accused.

515
...
Detention in custody for offence listed in section 469
(11) Where an accused who is charged with an offence mentioned in section 469 is taken before a justice, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.
...


CCC

  1. 469 offences consist of treason, alarming her majesty, intimidating Parliament or legislature, inciting mutiny, sedition, piracy, piratical acts, and murder
  2. see s.522(2)

Consideration of Victim's Safety and Security

515
...
Consideration of victim’s safety and security
(13) A justice who makes an order under this section shall include in the record of the proceedings a statement that he or she considered the safety and security of every victim of the offence when making the order.
...
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; ... 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20.


CCC

Topics

See Also

Bail Hearings

General Principles

The purpose of a "show cause" hearing (or "bail hearing") is to provide an expeditious hearing that is flexible and procedurally informal while still protecting the liberty interests and security of the public.[1]

A bail hearing is not is not meant to like a trial or adopt a sort of complexity.[2]

The key elements of bail hearings are that they are done in a timely manner. This requires a "certain level of informality" including relaxed rules of evidence and expansive application of relevance.[3]

Section 493 defines a "judge" within the provisions of bail as:

493
...
“judge” means

(a) in the Province of Ontario, a judge of the superior court of criminal jurisdiction of the Province,
(b) in the Province of Quebec, a judge of the superior court of criminal jurisdiction of the province or three judges of the Court of Quebec,
(c) [Repealed, 1992, c. 51, s. 37]
(d) in the Provinces of Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta and Newfoundland and Labrador, a judge of the superior court of criminal jurisdiction of the Province,
(e) in Yukon and the Northwest Territories, a judge of the Supreme Court, and
(f) in Nunavut, a judge of the Nunavut Court of Justice;

...
R.S., 1985, c. C-46, s. 493; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; 1990, c. 16, s. 5, c. 17, s. 12; 1992, c. 51, s. 37; 1994, c. 44, s. 39; 1999, c. 3, s. 30; 2002, c. 7, s. 143; 2015, c. 3, s. 51.


CCC

A bail judge is not a "court of competent jurisdiction" for the purpose of Charter violations.[4] Thus, a bail hearing is not the forum for s. 24 Charter relief. Evidence going towards a breach is not relevant.[5] Similarly, applications for prerogative writs such as habeas corpus do not apply.[6]

  1. R v Ghany, 2006 CanLII 24454 (ON SC), per Dunro J at para 59
  2. Ghany, ibid. at para 59
  3. Ghany, ibid. at para 62 citing Law of Bail in Canada
  4. See Criminal Code and Related Definitions
  5. Ghany, supra at para 62
    R v Reimer (1987) 2 WCB (2d) 94 (MBCA)(*no CanLII links)
  6. R v Pearson, 1992 CanLII 52 (SCC), [1992] 3 SCR 665, per Lamer CJ
    R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711, per Lamer CJ

Onus

The burden of proof is presumed to be on the crown on a balance of probabilities.[1] The burden is upon the Crown to establish that one of the three grounds for denying bail has been made out unless the offence is one that engages the reverse onus.

  1. R v Julian (1972) 20 CRNS 227 (NSSC)(*no CanLII links)

Reverse Onus

Application to Adjourn Bail Hearing

See also: Detention With Charges Outstanding

On application of the prosecutor, a judge has the discretion to delay a bail hearing by up to three days without the consent of the accused. (s. 516)

Remand in custody
516. (1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.
Detention pending bail hearing
(2) A justice who remands an accused to custody under subsection (1) or subsection 515(11) may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary.
R.S., 1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s. 31(Preamble).


CCC

Where an accused has been brought before a judge within the 24 hour window and both the defence and Crown are prepared, the judge must begin the hearing "forthwith". The accused should not have to "make an appointment" to have a bail hearing.[1]

"[U]nreasonably prolonged custody awaiting a bail hearing" can be a form of unjustified detention.[2] Routine adjournments that are not at the request of Crown or defence are "unacceptable threat to constitutional rights, a denial of access to justice, and an unnecessary cost to the court system".[3] Pleading "lack of resources" is not an answer to imperilling such rights.[4]

  1. R v Villota, 2002 CanLII 49650 (ON SC), her Hill J, at para 66
  2. Villota, ibid. at para 66
  3. Villota, ibid. at para 67
  4. Villota, ibid. at para 68

Evidence

Publication Ban

See also: Public and Media Restrictions

Section 517 permits a publication ban upon all evidence presented at a bail hearing:

Order directing matters not to be published for specified period
517. (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply
(2) Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 17]
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.


CCC

This section was found to violate s. 7 of the Charter for violating the freedom of expression but was saved by s. 1 of the Charter and is therefore constitutional.[1]

  1. Toronto Star Newspapers Ltd. v Canada, 2009 ONCA 59 (CanLII), per Feldman JA (3:2)

Decision to Deny Bail

See also: Reverse Onus

515
...
Detention in custody
(5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order.
...


CCC

Release on Guilty Plea During Bail Hearing

518 (1) ...
Release pending sentence
(2) Where, before or at any time during the course of any proceedings under section 515, the accused pleads guilty and that plea is accepted, the justice may make any order provided for in this Part for the release of the accused until the accused is sentenced.
R.S., 1985, c. C-46, s. 518; R.S., 1985, c. 27 (1st Supp.), ss. 84, 185(F); 1994, c. 44, s. 45; 1999, c. 25, s. 9(Preamble).


CCC

See Also

Grounds for Release

General Principles

Section 515(10) of the Criminal Code provides that bail may be denied in three situations:

  1. where it is "necessary to ensure his or her attendance in court";
  2. where it is "necessary for the protection or safety of the public" or
  3. where it is "necessary to maintain confidence in the administration of justice".

Section 515(10) states:

515.
...
Justification for detention in custody
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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 administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

...
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32.


CCC

Burden and Standard of Proof
The burden is upon the Crown to justify detention on the balance of probabilities unless the offence is subject to a reverse onus.[1]

Due to the use of the term "including" in reference to the suggested factors. No listed factors are dispositive of any determination on bail.[2]

Prohibited Purpose
There is an accepted prohibition against using remand as a means to punish accused persons prior to a fair trial.[3]

History
Prior to the Bail Reform Act, the criteria for bail were a matter of the common law.

At common law, bail was not intended to be punitive.[4] The primary consideration was to secure attendance at trial.[5]

Factors considered would include the flight risk posed by the accused.[6]

  1. see Judicial Interim Release#Reverse Onus
  2. R v Manasseri, 2017 ONCA 226 (CanLII), per Watt JA at para 91
    R v St Cloud, 2015 SCC 27 (CanLII), per Wagner J at para 68
  3. R v James, 2010 ONSC 3160 (CanLII), per Hill J, at para 22
  4. R v Lagus, 1964 CanLII 391 (SK QB), per MacPherson J at para 9
  5. Lagus, supra at para 9
  6. R v Gottfriedson (1906), 10 CCC 239 (B.C. Co. Ct.), 1906 CanLII 96 (BC SC), per Bole J
    R v Fortier (1902), 6 CCC 191 (Que. K.B.), 1902 CanLII 119 (QC CA), per Wurtele JA

Primary Grounds

Under s. 515(10)(a) bail can be denied "where the detention is necessary to ensure [the accused’s] attendance in court". This ground addresses whether the accused is a flight risk.

Anyone charged with a serious criminal offence has some likelihood of choosing to flee. This alone is not enough to justify detention.[1]

  1. R. v. Falls [2004] O.J. No. 5870(*no CanLII links) , per Nordheimer J

Factors

This can include factors such as:[1]

  • Accused's Local Connections vs Connections to Another Jurisdiction
    • family or community roots in the jurisdiction
    • citizenship / ownership of a passport
    • current residence, history of residences
    • living arrangement (partner or roommate), marital status
    • current connection with the community
    • employment history and ability to work if released
    • amount of assets and connection with the community (ie. property ownership such as house and car)
  • Accused's Character
    • age and maturity
    • history of substance abuse
    • education
    • history of flight
    • history of untrustworthiness
    • criminal record for breaching court orders
    • association with persons with criminal record
  • Level of Potential Supervision
  • Motives to Flee
    • outstanding criminal charges
    • possibility of lengthy sentence
    • links to criminal organization
  • Plans for release
  • Availability of sureties
  • Potential sureties / ability to supervise / character witnesses
    • their criminal record
    • employment
    • money or property that can be pledged to the court
    • familiarity with the accused
    • familiarity with criminal record of accused
    • familiarity of accusations against accused
    • ability and willingness to monitor the accused

The Court should compare the accused's connection with the local community as well as those with another country or province.[2]

Factors "employment, links with community or with family, quality of the evidence against him, severity of the consequences of the accusation and links with other countries, along with links with a criminal organization".[3]

The accused's trustworthiness is of importance as it indicates his likelihood of appearing.[4]

A history of breaching Court Orders can be used to infer a likelihood of breaching orders in the future.[5] Breach of any type of court order is relevant, particularly in light of their recency and frequency. However, breaches alone should not be determinative.[6]

  1. R v Powers (1972), 20 C.R.N.S. 23 (Ont. S.C.), 1972 CanLII 1411 (ON SC), per Lerner J at para 26 ("detention for the purpose of ensuring attendance in court for the trial includes consideration of such things as residence, fixed place of abode, employment or occupation, marital and family status, and if applicable, previous criminal record, proximity of close friends and relatives, character witnesses, facts relating to the allegations of the offences, personal history or vitae, would appear to become pertinent.")
  2. R v Ellahib, 2005 ABQB 565 (CanLII), per Wittmann J
  3. Bulaman c United States of America, 2013 QCCS 2383 (CanLII), per Cohen J at para 35
  4. e.g. Jackson v United States of America, 2012 ONSC 2796 (CanLII), per Thorburn J at para 32
  5. see R v Parsons, 1997 CanLII 14679 (NL CA), (1997), 161 Nfld. & P.E.I.R. 145 (N.L.C.A.), per Green JA, at para 54, ("the fact that an accused has breached an order in the past may well be predictive of a predisposition to flouting any future court order")
    R v General, [2007] O.J. No. 5448 (C.J.), 2007 ONCJ 693 (CanLII), per Bourque J, at para 53
    R v Cox, 2009 NSCA 15 (CanLII), (2009), 274 N.S.R. (2d) 364 (C.A.), per Fichaud JA, at paras 13 and 14
    R v Barton, 2010 BCCA 163 (CanLII), [2010] BCJ No. 576 (C.A.), per Kirkpatrick JA
  6. See Trotter, The Law of Bail in Canada, at pp.131-132
    R v Noftall, 2001 CanLII 37611 (NL SCTD), per Rowe J at para 21

Prohibited Factors

The seriousness of the offence is not a valid consideration for the primary grounds.[1]

  1. R v Prince, [1998] OJ No 3727 (ONSC)(*no CanLII links)

Specific Offences and Cases

Drug Trafficking
It is recognized that in cases of drug trafficking there is a greater risk of absconding.[1]

Extradition Cases
When applying s. 515 in an extradition hearing, "the court must look at the risk of non-appearance even more cautiously than might be the case in domestic proceedings".[2]

  1. R v Pearson, 1992 CanLII 52 (SCC), (1992), 77 CCC (3d) 124 (S.C.C.), per Lamer CJ
    Jackson v United States of America, 2012 ONSC 2796 (CanLII), per Thorburn J
  2. United States of America v Edwards, 2010 BCCA 149 (CanLII), per Low JA, at para 18
    Jackson v USA, ibid. at para 14

Secondary Grounds

Under s. 515(10)(b), bail can be denied "for the protection or safety of the public ... including any substantial likelihood that the accused will...commit a criminal offence or interfere with the administration of justice".[1]

  1. See also R v Morales, 1992 CanLII 53 (SCC), (1992), 77 CCC (3d) 91, per Lamer CJ
    R v Pearson, 1992 CanLII 52 (SCC), per Lamer CJ
    R v Samuelson (1953), 109 CCC 253 (Nfld. T.D.), 1953 CanLII 454 (NL SC), per Winter J
    R v Groulx (1974), 17 CCC (2d) 351 (Que. S.C.), 1974 CanLII 1620 (QC CS), per Chevalier J

"Substantial Likelihood"

The Court must consider the risk of the accused committing another crime "in the context of the circumstances of the offence with which he is charged and his personality".[1]

Substantial likelihood means "substantial risk". It is not the same as proof beyond a reasonable doubt or probability.[2]

A tendency or proclivity to commit offences short of it being a "substantial likelihood" is not sufficient to deny bail.[3]

  1. See Re Keenan and The Queen, 1979 ABCA 278 (CanLII), (1979), 57 CCC (2d) 267 , per McGillivray JA
  2. R v Link 1990 ABCA 55 (CanLII), per Harradence JA
    c.f. R v Walsh [2000] PEIJ No 63 (PEISC)(*no CanLII links)
  3. R v Noftall, 2001 CanLII 37611 (NL SCTD), per Rowe J at paras 23 to 24

Factors

Denial of bail can include factors such as:

  • the circumstances of the offence:
    • seriousness and nature of the offence
    • duration of the offence, number of offences
    • surrounding circumstances of the offence and offender
    • accused's potential culpability
    • involvement of firearms
    • degree of planning and deliberation
  • mental health issues (observable by witnesses or in video statement)
  • addiction issues
  • any other issues that suggest dangerousness
  • suicidal tendencies
  • consciousness of guilt
  • physical and emotional impact of the incident upon the victim
  • likelihood of lengthy sentence
  • strength of the Crown's case[1]
  • risk or harm to victim
  • accused's criminal record
  • previous outstanding release conditions
  • history of abiding by court orders and conditions

Where there is a risk the court must consider whether it can be nullified by imposing conditions. [2]

Where it is reasonably foreseeable that the accused will not comply with the conditions without monitoring, then a surety should be required.[3] If it is likely that the accused will not comply then bail should not be granted.[4]

  1. R v Baltovich, 1991 CanLII 7308 (ON CA), (1991) 68 CCC (3d) 362 (ONCA), per Doherty JA
  2. R v Peddle, [2001] O.J. No. 2116 (S.C.)(*no CanLII links) at paras 11 to 12
  3. Peddle, ibid. at para 11
  4. Peddle, ibid. at para 11

Types of Offences

The drug trade "occurs systematically, usually within a highly sophisticated commercial setting", it is lucrative and a way of life for many and as such creates strong incentives to continue in the criminal conduct while on bail.[1]

  1. Pearson per Lamer CJ. at p. 144
    Morales per Lamer CJ. at p. 107

Tertiary Grounds

Under 515(10)(c), bail can be revoked "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."[1]

The key consideration is the effect of release on the confidence in the administration of justice.[2]

This ground should be considered in all circumstances of bail not simply when the offence is particularly serious.[3] Nevertheless, situations where this ground is relied upon "may not arise frequently"[4] and only in "limited circumstances".[5]

The tertiary ground is not a "residual ground" to be considered after the first two grounds have rejected.[6]

This ground "must not be interpreted narrowly or applied sparingly".[7]

  1. See also R v Hood (1992), 130 A.R. 135 (Q.B.)(*no CanLII links)
    R v Rondeau 1996 CanLII 6516 (QC CA), (1996)
    R v Koehn 1997 CanLII 2778 (BC CA)
    R v Farinacci 1993 CanLII 3385 (ON CA)
  2. R v Mordue 2006 CanLII 31720 (ON CA), (2006), 41 C.R. (6th) 259 (Ont. C.A.) at para 25
  3. R v B.S., 2007 ONCA 560 (CanLII) at paras 9 to 10
    R v LaFromboise 2005 CanLII 63758 (ON CA), (2005), 203 CCC (3d) 492 (Ont. C.A.) at para 31 ("the nature of the offence charged, by itself, cannot justify the denial of bail.")
  4. R v Hall, 2002 SCC 64 (CanLII) at p. 463
  5. see R v Heyden, 2009 ONCA 494 (CanLII), (2009), 252 CCC (3d) 167 (Ont. C.A.) at para 21
    R v LaFromboise, supra at para 23
  6. R v St-Cloud, 2015 SCC 27 (CanLII)
  7. St-Cloud, ibid., at para 87

Seriousness of the Offence

If the offence is "serious or very violent", if there is "overwhelming evidence" and the victims were vulnerable, then detention will usually be ordered.[1]

This consideration should include the maximum and minimum penalties permitted upon convicition.[2]

  1. St-Cloud, ibid., at para 88
  2. R v Manasseri, 2017 ONCA 226 (CanLII) at para 98
    St-Cloud, ibid. at para 60

Strength of the Crown case

The consideration of the strength of the crown's case includes consideration of the "quality, and to some extent, the quantity of the evidence available to the Crown to prove its case."[1] This should also include the "defence advanced by the accused".[2]

  1. Manasseri, supra at para 97
  2. Manasseri, supra at para 97
    St-Cloud, supra at para 58 to 59

Surrounding Circumstances

The factor concerning the circumstances surrounding the commission of the offence considers the "nature of the offence", including the presence of violence, the context, the involvement of others, the accused's role, and the vulnerability of the victim.[1]

The factor can also include consideration of the accused's personal circumstances.[2]

  1. Manasseri, ibid. at para 99
    St-Cloud, supra at para 61
  2. Manasseri, supra at para 99
    St-Cloud, supra at para 71

Confidence of the Public

The concern should be upon the confidence of a "reasonable, informed and dispassionate public".[1] The reasonable person consists of a "reasonable member of the community is one properly informed of the philosophy of the relevant legislative provisions, Charter values, and the actual circumstances of the case". As well, they should have an awareness of the presumption of innocence, and the prohibition against punishment through pre-trial custody before a fair trial.[2]

The perspective of an "excitable" or "irrational" citizen should not be taken into account.[3]

Who is the "Public"
The "public" perspective is the "reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case". It should be not be treated as a "legal expert" who can appreciate the "subtleties of the various defences".[4]

Public concern and fear as well as public safety are valid considerations on the tertiary grounds.[5]

Confidence can be undermined not only by a failure to detain but also "if it orders detention where detention is not justified".[6]

  1. R v Dhillon, 2002 CanLII 45048 (ON CA), [2002] O.J. No. 345 (C.A.) at para 28
  2. R v James, 2010 ONSC 3160 (CanLII) at para 22
  3. R v White, 2007 ABQB 359 (CanLII), (2007), 221 CCC (3d) 393 (Alta. C.A.) at para 18
    R v James, supra, at para 22
  4. R v St-Cloud, 2015 SCC 27 (CanLII) at para 74 and 79
    R v Hall, 2002 SCC 64 (CanLII) at para 41
  5. R v Mordue 2006 CanLII 31720 (ON CA) at paras 21 to 24
  6. St-Cloud, supra, at para 87

Enumerated Factors

In cases where the crime is heinous and the evidence overwhelming bail must be denied to preserve the public's confidence in the administration of justice.[1] The consideration of the public's confidence in the administration of justices does not take into account "excitable" or "irrational" views of the public.[2] The perspective must be "reasonable, informed and dispassionate".[3] He must also be properly informed of the philosophy of the legislative provisions, Charter and full circumstances of the case.[4] AS well as aware of the presumption of innocence and prohibition against pre-trial punishment.[5]

None of the factors are determinative in the analysis which should look at the entire context of the circumstances.[6] The court must consider all four factors and weigh their combined effect.[7]

The four circumstances listed in s. 515(10)(c) are not exhaustive.[8]

Where the four circumstances suggest detention, it is not automatic that detention will follow. No single circumstance is determinative. It must be based on the "all the circumstances of each case" and must involve a "balancing [of] all the relevant circumstances".[9]

  1. R v Hall, 2002 SCC 64 (CanLII) at para 26
    R v EWM [2006] OJ No 3654, 2006 CanLII 31720 (ON CA), at para 25
  2. R v White, 2007 ABQB 359 (CanLII), [2007] AJ No 608 at para 18
  3. R v Dhillon, 2002 CanLII 45048 (ON CA), [2002] OJ No 3451 (ONCA) at para 28
  4. Hall, supra
    White, supra at para 17,18
  5. White, supra at para 17
  6. Mordue, supra at para 13
    B.S. at para 10, 16
    R v James, 2010 ONSC 3160 (CanLII), [2010] OJ No 2262 per Hill J.
  7. James, ibid. at para 22
  8. R v St-Cloud, 2015 SCC 27 (CanLII) at para 87
  9. St-Cloud, ibid. at para 87

Constitutionality

This section was added after s. 515(10)(b) was found unconstitutional due to violating s. 11(e) of the Charter for vagueness.[1] the addede section 515(10)(c) was found to be constitutional.[2]

However, the portion of s. 515(10)(c) stating "on any other just cause being shown and without limiting the generality of the foregoing" was found to be unconstitutional and should be struck from the provision.[3]

  1. R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711
  2. R v MacDougal, 1999 BCCA 509 (CanLII)
    R v Hall, 2000 CanLII 16867 (ON CA)
  3. see R v Hall, 2002 SCC 64 (CanLII)

Types of Offences

Gun Offences
The presence of guns or weapons do not automatically satisfy the tertiary grounds on the basis of public safety.[1]

  1. R v Ouellet, [2006] OJ 1785 (ONSC) - court found it to be an error of law for the JP to infer public safety risk simply because of possession of a weapon

Inapplicable Grounds

A person should not be denied bail only on account the limit financial means of either the surety or the accused.[1]

  1. see R v Dyke, 2001 CanLII 37610 (NL SCTD), (2001), 203 Nfld. & P.E.I.R. 1 (N.L.S.C.), at para 47

See Also

Release With and Without Sureties and Deposits

General Principles

Guarantees of Section 11(e)
Section 11(e) guarantees two rights. Those are the "right not to be denied bail without just cause" and "the right to bail on reasonable terms".[1]

The right to bail is a "corollary to the presumption of innocence".[2]

  1. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII) at para 67
  2. Antic, ibid. at para 67

Ladder Principle

Bail ladder.png

The common law "ladder principle" of bail was codified in s. 515(3). It prohibits the imposition of a "more onerous form of release unless the Crown shows why a less onerous form is inappropriate".[1]

Default Release
The default position on all bail matters, with some exception, under s. 515(1) is for the "unconditional release on an undertaking".[2]

Strict Application of Ladder Principle
Where the default unconditional release does not apply, the "ladder principle" must be "strictly" followed.[3]

Must Release at Earliest Reasonable Opportunity
The ladder principle also states that "release is favoured at the earliest reasonable opportunity".[4]

Burden
Whenever the Crown seeks to impose conditions or more onerous forms of release beyond an undertaking, it must "show why this form is necessary".[5]

The burden of proof will increase where the conditions becomes more onerous upon the accused.[6]

Standard of Proof
A restrictive condition can only be imposed where "the Crown has shown it to be necessary having regard to the statutory criteria for detention".[7]

Analysis
To comply with the "ladder principle" the judge imposing conditions must reject each form of less restrictive release before they may consider any further restriction.[8] Failure to reject a lesser form of release is an error of law.[9]

Ladder Principle In Consent Releases
The principles and guidelines for bail as set out by case law "do[es] not apply strictly to consent release plans".[10]

The judge has discretion to reject a joint proposal on release, however should not "routinely second-guess" them.[11]

  1. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII), per Wagner J, at para 47 ("The ladder principle is codified in s. 515(3), which prohibits a justice or a judge from imposing a more onerous form of release unless the Crown shows why a less onerous form is inappropriate. […]")
    R v Anoussis, 2008 QCCQ 8100 (CanLII), at para 23
  2. Antic, ibid. at para 67
  3. Antic, ibid. at para 67 ("This principle must be adhered to strictly.")
  4. Antic, supra at para 67
  5. Antic, supra at para 67
  6. Antic, supra at para 67
  7. Antic, supra at para 67 - emphasis added
  8. Antic, supra at para 67
  9. Antic, supra at para 67
  10. Antic, supra at para 68
  11. Antic, supra at para 68

Enabling Release Conditions

Section 515(2) permits the judge release the accused on either an undertaking (515(2)(a)) or a recognizance with conditions (515(2)(b) to (e)).

515
...
Release on undertaking with conditions, etc.
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released

(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody*, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.

...
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186; 1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153; 1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21, c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s. 37; 2009, c. 22, s. 17, c. 29, s. 2; 2010, c. 20, s. 1; 2012, c. 1, s. 32; 2014, c. 17, s. 14; 2015, c. 13, s. 20.[annotated] [* see "Constitution", below]


CCC

An accused can be released in the following circumstances:

  • personal undertaking without conditions (515(1))
  • personal undertaking with conditions (515(2)(a))
  • recognizance with conditions and without surety or deposit (515(2)(b))
  • recognizance with conditions and with surety without deposit(515(2)(c))
  • recognizance with conditions without surety with deposit (515(2)(d))
  • recognizance with conditions with surety and deposit (515(2)(e))

These options are listed in order of escalating risk.[1]

  1. R v O’Connor, 2015 ONSC 1256 (CanLII) at para 43

Undertaking With or Without Conditions (515(2)(a),(b))

Recognizance With Conditions and Without Surety or Deposit (515(2)(b)

A recognizance is "functionally equivalent" to cash bail.[1]

  1. Antic, supra at para 67

Recognizance With Surety (515(2)(c))

A surety takes on the role of "civilian jailer of the accused". They are responsible to ensure the accused's attendance at court and ensure they abide by their conditions.[1] The public interest and its faith in the bail system requires them to act promptly and faithfully in their duties.[2]

Sureties
A recognizance with a surety is "one of the most onerous forms of release" and must be considered last after rejecting all other forms of release.[3]

A recognizance is "functionally equivalent" to cash bail.[4]

With Deposit (515(2)(d))

The purpose of 515(2)(d) has been described as adding "some flexibility into this situation by permitting an accused with some personal resources to gain his/her own release".[5]

It

Section 515(2)(d) has been read down to exclude the phrase, "with the consent of the prosecutor", allowing the judge to release the accused on cash bail.[6]

Cash Bail
Cash bail should not be imposed where the accused or their surety "have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release".[7] It should only be imposed in "exceptional circumstances" where "release on a recognizance with sureties is unavailable".[8]

It is considered one of the "most onerous" rungs of the ladder.[9]

Cash bail is considered "merely a limited alternative to a pledge" which should not be used where the accused or sureties have "reasonably recoverable assets to pledge".[10]

Amount of Cash
The amount set for cash bail must be "no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate means of hte accused nad the circumstances of the case".[11]

Obligation to Inquire into Ability to Pay
Where the court imposes cash bail, the court must inquire into the accused's ability to pay. The cash bail order cannot be "set so high that it effectively amounts to a detention order".[12]

  1. R v Jacobson, 2005 CanLII 63779 (ON SC) at para 18
    Quilling v Canada (Attorney General), 2007 BCSC 1008 (CanLII) at paras 55 to 57 - discussion on history of sureties as jailers
  2. Jacobson at para 19
  3. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII) at para 67
  4. Antic, supra at para 67
  5. Gary Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) at p. 248
  6. R v Saunders, 2001 BCSC 1363 (CanLII)
  7. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII) at para 67
  8. Antic, ibid. at para 67
  9. Antic, ibid. at para 48
  10. Antic, ibid. at para 4
  11. Antic, ibid. at para 67
  12. Antic, ibid. at para 56, 67

With Surety and Deposit (515(2)(e))

The circumstances described in s. 515(2)(e) is the only case where the accused can be released with both a surety and cash deposit.[1] This form of release is designed to be the most secure as it requires both forms of commitment.[2]

Constitution
The part of this section that reads "if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody" has been found constitutional and does not s. 11(e) of the Charter.[3]

Assignment of Funds
The funds held as cash deposit for bail cannot be assigned to legal counsel pay for fees.[4]

  1. R v Folkes, 2007 ABQB 624 (CanLII), at para 17
  2. Folkes, ibid. at para 27
  3. R v Antic, [2017] 1 SCR 509, 2017 SCC 27 (CanLII)
    c.f. Folkes, supra at para 40
  4. R v Webster, 1994 CanLII 9166 (AB QB)

Procedure

It is not always necessary to have the surety to appear in court.[1]

The surety and accused continue to be bound by the recognizance after every court appearance until the completion of the matter.[2]

Naming Surety on Order

515
...
Power of justice to name sureties in order
(2.1) Where, pursuant to subsection (2) or any other provision of this Act, a justice, judge or court orders that an accused be released on his entering into a recognizance with sureties, the justice, judge or court may, in the order, name particular persons as sureties.
...


CCC


Video Appearance Permitted

515
...
Alternative to physical presence
(2.2) Where, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the appearance shall be by actual physical attendance of the accused but the justice may, subject to subsection (2.3), allow the accused to appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the justice.
Where consent required
(2.3) The consent of the prosecutor and the accused is required for the purposes of an appearance if the evidence of a witness is to be taken at the appearance and the accused cannot appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication.
Idem
(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made.
...


CCC


  1. R v Brooks, 2001 CanLII 28401 (ON SC)
  2. see s. 763, 764

Amount of Deposit

Under s. 515(2)(d), a cash bail can be required from the accused. It may only be returned to the accused who deposited.

The "test for financial security is whether the pledge will bind the conscience of the surety and the accused".[1] This is irrespective of whether the amount would cause "mere hardship and loss" or "total financial calamity".[2]

The constitutional right to bail requires that the amount of security needed for bail should not "be set so high as to amount to a detention order".[3] The bail judge has an obligation to make inquiries "into the ability of the accused to pay".[4]

  1. R v Gaete, 2011 CanLII 28500 (ON SC) at para 32
    R v MacDonald, 2011 NSCA 46 (CanLII), at para 25
  2. Gaete, supra at para 32
  3. R v Saunter, 2006 ABQB 808 (CanLII)
    R v Brost, 2012 ABQB 696 (CanLII) at para 40
  4. R v Brost, ibid. at para 40

Surety

A surety has the obligations of a jailer in the community and is responsible for ensuring that the accused appears in court when required and abides by his conditions. [1] The surety must exercise "utmost due diligence" and take "all reasonable steps" to live up to their responsibilities.[2]

It will usually be a relative, friend, or neighbour of the accused. Generally, it should not be someone who is:

  • someone with a criminal record,
  • a co-accused in a outstanding charge, or has unrelated criminal charges
  • a person not resident in the jurisdiction,
  • underage
  • acting as a surety for someone else,
  • receiving financial compensation for being a surety

The surety is to render the accused back into the custody of the court once he has lost ability or desire to control the accused compliance with the conditions of release.

Responsibility of sureties
764 (1) Where an accused is bound by recognizance to appear for trial, his arraignment or conviction does not discharge the recognizance, but it continues to bind him and his sureties, if any, for his appearance until he is discharged or sentenced, as the case may be.
Committal or new sureties
(2) Notwithstanding subsection (1), the court, justice or provincial court judge may commit an accused to prison or may require him to furnish new or additional sureties for his appearance until he is discharged or sentenced, as the case may be.
Effect of committal
(3) The sureties of an accused who is bound by recognizance to appear for trial are discharged if he is committed to prison pursuant to subsection (2).
Endorsement on recognizance
(4) The provisions of section 763 and subsections (1) to (3) of this section shall be endorsed on any recognizance entered into pursuant to this Act.
R.S., 1985, c. C-46, s. 764; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

See R v Scosky (1955) 114 CCC 294, 1955 CanLII 463 (BC SC) per Sargent J

Rendering Surety

Where a surety no longer wishes to be responsible as a surety for the accused, he may render surety under s. 766(1) and 767 to have the accused rendered into custody thus relieving him of his obligations.

The surety ceases to be bound once the accused in committed into custody by s. 764(2).[3]

Render of accused by sureties
766. (1) A surety for a person who is bound by recognizance to appear may, by an application in writing to a court, justice or provincial court judge, apply to be relieved of his obligation under the recognizance, and the court, justice or provincial court judge shall thereupon issue an order in writing for committal of that person to the prison nearest to the place where he was, under the recognizance, bound to appear.
Arrest
(2) An order under subsection (1) shall be given to the surety and on receipt thereof he or any peace officer may arrest the person named in the order and deliver that person with the order to the keeper of the prison named therein, and the keeper shall receive and imprison that person until he is discharged according to law.
Certificate and entry of render
(3) Where a court, justice or provincial court judge issues an order under subsection (1) and receives from the sheriff a certificate that the person named in the order has been committed to prison pursuant to subsection (2), the court, justice or provincial court judge shall order an entry of the committal to be endorsed on the recognizance.
Discharge of sureties
(4) An endorsement under subsection (3) vacates the recognizance and discharges the sureties.
R.S., 1985, c. C-46, s. 766; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Render of accused in court by sureties
767. A surety for a person who is bound by recognizance to appear may bring that person into the court at which he is required to appear at any time during the sittings thereof and before his trial and the surety may discharge his obligation under the recognizance by giving that person into the custody of the court, and the court shall thereupon commit that person to prison until he is discharged according to law.
R.S., c. C-34, s. 701.


CCC

When a surety renders under s. 766 or 767 and the accused is then committed to prison under s. 767(2), only then is the recognizance vacated and the surety completely discharged.[4] In this circumstance, s. 767.1 does not apply and would not permit re-release with a new surety under the same terms.[5]

Rights of surety preserved
768 Nothing in this Part limits or restricts any right that a surety has of taking and giving into custody any person for whom, under a recognizance, he is a surety.
R.S., c. C-34, s. 702.


CCC

Application of judicial interim release provisions
769. Where a surety for a person has rendered him into custody and that person has been committed to prison, the provisions of Parts XVI, XXI and XXVII relating to judicial interim release apply, with such modifications as the circumstances require, in respect of him and he shall forthwith be taken before a justice or judge as an accused charged with an offence or as an appellant, as the case may be, for the purposes of those provisions.
R.S., c. C-34, s. 703; R.S., c. 2(2nd Supp.), s. 14.


CCC

After the surety has rendered and the accused is taken back into custody, s. 769 requires a new bail hearing for any future release.[6]


  1. R v Jacobson (2005), 2005 CanLII 63779 (ON SC) at para 18
    R v Tymchyshyn, 2015 MBQB 23 (CanLII) at para 34
  2. Jacobson, supra at para 18
    Tymchyshyn at para 34
  3. s. 764(3)
  4. R v Mott, 2013 ONSC 1768 (CanLII) at para 46
  5. Mott at para 46
  6. Mott at para 46

Change of Surety

Where a surety no longer wishes to be responsible as a surety for the accused and there is a suitable substitution available, the surety will render surety under s. 766(1) and 767, but rather than render the accused into custody, the court may substitute the previous surety with a new one under s. 767.1. The new surety is in place once he has signed the recognizance.

Substitution of surety
767.1 (1) Notwithstanding subsection 766(1) and section 767, where a surety for a person who is bound by a recognizance has rendered the person into the custody of a court pursuant to section 767 or applies to be relieved of his obligation under the recognizance pursuant to subsection 766(1), the court, justice or provincial court judge, as the case may be, may, instead of committing or issuing an order for the committal of the person to prison, substitute any other suitable person for the surety under the recognizance.
Signing of recognizance by new sureties
(2) Where a person substituted for a surety under a recognizance pursuant to subsection (1) signs the recognizance, the original surety is discharged, but the recognizance and the order for judicial interim release pursuant to which the recognizance was entered into are not otherwise affected.
R.S., 1985, c. 27 (1st Supp.), s. 167.


CCC

Continuation of Recognizance

Recognizance binding
763 Where a person is bound by recognizance to appear before a court, justice or provincial court judge for any purpose and the session or sittings of that court or the proceedings are adjourned or an order is made changing the place of trial, that person and his sureties continue to be bound by the recognizance in like manner as if it had been entered into with relation to the resumed proceedings or the trial at the time and place at which the proceedings are ordered to be resumed or the trial is ordered to be held.
R.S., 1985, c. C-46, s. 763; R.S., 1985, c. 27 (1st Supp.), s. 203.


CCC

Effect of Arrest on New Charges

An arrest on new charges does not affect the recognizance, including the obligations of the surety:

Effect of subsequent arrest
765 Where an accused is bound by recognizance to appear for trial, his arrest on another charge does not vacate the recognizance, but it continues to bind him and his sureties, if any, for his appearance until he is discharged or sentenced, as the case may be, in respect of the of