Judicial Interim Release

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Introduction

Where a person is in custody and the police decide not to release the accused under a police-authorized mechanism, 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, 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)
    R v Villota, 2002 CanLII 49650 (ONSC)
    R v Morales, 1992 CanLII 53 (SCC), [1992] 3 SCR 711 per Lamer CJC
    R v Hall, 2000 CanLII 16867 (ON CA)
  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]

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".[2]

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), at para 15
    Rowan, 2011 ONSC 7362 (CanLII) 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")
  2. R v Folkes, at para 15
    See Gary Trotter, The Law of Bail in Canada, 2nd ed. (Toronto: Carswell, 1999) [Trotter] at 247

Taking an 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,

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).


CCC

Youths are also to be brought before a justice who are able to determine release under s. 20(1) and 33(1) of the YCJA.[1]

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

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

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.
...


  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)

Topics

See Also