Release by Police on Undertaking

From Criminal Law Notebook
Jump to navigation Jump to search

General Principles

See also: Warrantless Arrests, Warrant Arrests, Compelling Attendance by Accused Without Arrest, and Initial Post-Charge Detention

Release of a detainee is governed by Part XVI of the Code entitled "Compelling Appearance of Accused Before a Justice and Interim Release". 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 may release the accused under s. 498 or 499.

In certain circumstances, an officer may simply issue an appearance notice under s. 497 or send the matter for a judicial referral hearing under s. 496.

  1. R v Oliveira, 2009 ONCA 219 (CanLII), per Doherty JA
  2. see s. 2 for the definition of "peace officer"

Principles of Restraint

Principle of restraint

493.1 In making a decision under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)], a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) [exception to presumption of release] or 515(10) [justification for detention in custody], as the case may be.

2019, c. 25, s. 210.
[annotation(s) added]

CCC


Note up: 493.1

Aboriginal accused or vulnerable populations

493.2 In making a decision under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)], a peace officer, justice or judge shall give particular attention to the circumstances of

(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)].

2019, c. 25, s. 210.
[annotation(s) added]

CCC


Note up: 493.2

This provision came into force on December 18, 2019.

Powers of a Peace Officer

After the officer decides to exercise their authority to arrest without warrant, the peace officer may, depending on the charges, be able to

  1. release them with intention to serve them with a summons at a later time;
  2. issue an appearance notice;
  3. release on an undertaking or
  4. detain and bring them to a judge or justice.
Powers on Arrest Without Warrant
Release from custody — arrest without warrant

498 (1) Subject to subsection (1.1) [exception to presumption of release], if a person has been arrested without warrant for an offence, other than one listed in section 469 [exclusive jurisdiction offences], and has not been taken before a justice or released from custody under any other provision of this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)], a peace officer shall, as soon as practicable, release the person, if

(a) the peace officer intends to compel the person’s appearance by way of summons;
(b) the peace officer issues an appearance notice to the person; or
(c) the person gives an undertaking to the peace officer.

[omitted (1.01) and (1.1)]

When subsections (1) and (1.01) do not apply

(2) Subsections (1) [release from custody – arrest without warrant] and (1.01) [release on arrest without warrant by citizen or on Customs Act] do 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].
[omitted (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); 2019, c. 25, s. 213.
[annotation(s) added]

CCC


Note up: 498(1) and (2)

A promise to appear and an undertaking to police are two forms of "police bail" provided by Part XVI of the Code.[1]

Where the officer does not release the accused then they will be brought before a judge to determine if interim release will be granted.

Citizen's Arrest or Customs Act Arrest

498
[omitted (1)]

Person delivered or detained

(1.01) Subsection (1) [release from custody – arrest without warrant] also applies in respect of 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 and who is detained in custody for an offence other than one listed in section 469 [exclusive jurisdiction offences] and who has not been taken before a justice or released from custody under any other provision of this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)].

When subsections (1) and (1.01) do not apply

(2) Subsections (1) [release from custody – arrest without warrant] and (1.01) [release on arrest without warrant by citizen or on Customs Act] do 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].
[omitted (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); 2019, c. 25, s. 213.
[annotation(s) added]

CCC


Note up: 498(1.01) and (2)

  1. R v Oliveira, 2009 ONCA 219 (CanLII), per Doherty JA (3:0), at para 29

Exception on Out of Territory Offences

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
[omitted (1), (1.1), (2), (2.1), (2.2) and (2.3)]

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) [bring detainee to justice within or outside of 24 hours], 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 [endorsing warrant], 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.


[omitted (3.1), (4) and (5)]
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); 2019, c. 25, s. 217.
[annotation(s) added]

CCC


Note up: 503(3)

Public Interest Factors for Detention

The peace officer or officer in charge may detain for reasons set out in s. 498(1.1) which mirror each other:

498
[omitted (1) and (1.01)]

Exception

(1.1) The peace officer shall not release the person 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.

[omitted (1.1), (2) and (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); 2019, c. 25, s. 213.

CCC


Note up: 498(1.1)

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]

The factors set out in 487(1.1) and 498(1.1) is not a closed list.[2] 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".[3] 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. [4]

  1. R v Viszlai, 2012 BCCA 442 (CanLII), per Frankel JA, at para 47
    R v Sapusak, [1998] OJ No 3299(*no CanLII links)
    R v Coulter, [2000] OJ No 3452 (Ont. Ct. J.), affirmed [2001] OJ No 5608 (Sup. Ct. J.)(*no CanLII links)
    R v Padda, 2003 CanLII 52405 (ON CJ), [2003] OJ No 5502 (Ont. Ct. J.), per Duncan J
    R v Gaudette, [2005] OJ No 2399 (Ont. Ct. J.)(*no CanLII links) , reversed for other reasons, [2006] OJ No 3732 (Sup. Ct. J)(*no CanLII links)
    R v Kisil, 2009 ONCJ 424 (CanLII), [2009] OJ 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] OJ No 5972 (Ont. Ct. J.), per Robertson J
    R v Baxter, 2012 ONCJ 91 (CanLII), [2012] OJ No 796 (Ont. Ct.J), per Schwarzl J
  2. R v Donald, 2010 SKPC 123 (CanLII), per Kalmakoff J, at para 48
  3. Donald, ibid., 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] OJ No 4148 (QL) (Ont. C.A.)(*no CanLII links)
  4. R v Marcil, 2015 SKQB 79 (CanLII), per McMurtry J, at para 11

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

Release Persons About to Commit Indictable Offence

503
[omitted (1), (1.1), (2), (2.1), (2.2), (2.3), (3) and (3.1)]

Release of person about to commit indictable offence

(4) A peace officer 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 as soon as practicable after the officer is satisfied that the continued detention of that person is no longer necessary in order to prevent that person from committing an indictable offence.

[omitted (5)]
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); 2019, c. 25, s. 217.

CCC


Note up: 503(4)

This provision came into force on December 18, 2019.

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), per Frankel JA (3:0), at paras 61 to 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 If an appearance notice has been issued to an accused under section 497 [appearance notice by peace officer], or if an accused has been released from custody under section 498 [release by peace officer (warrantless arrest)] or 503 [taking person before justice after arrest], 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 them shall be laid before a justice as soon as practicable after the issuance or release, and in any event before the time stated in the appearance notice or undertaking for their attendance in court.


[annotation(s) added]

CCC


Note up: 505

This provision came into force on December 18, 2019.

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 Undertaking

See also: Compelling Attendance by Accused Without Arrest#Contents of Appearance Notice
Contents of undertaking

501 (1) An undertaking under paragraph 498(1)(c) [release from custody – arrest without warrant – undertaking to peace officer], 499(b) [x] or 503(1.1)(b) [continued re-evaluation of 24 hour detention – release on undertaking] must set out

(a) the name, date of birth and contact information of the accused;
(b) the substance of the offence that the accused is alleged to have committed; and
(c) a summary of subsections 145(4) [failure to comply with undertaking] and (6) [provisions re failure to comply – no excuse where offence wrongly described], sections 512 and 512.2 and subsection 524(4) .
Mandatory conditions

(2) The undertaking must contain a condition that the accused attend court at the time and place stated in the undertaking and to attend afterwards as required by the court.

Additional conditions

(3) The undertaking may contain one or more of the following conditions, if the condition is reasonable in the circumstances of the offence and necessary, to ensure the accused’s attendance in court or the safety and security of any victim of or witness to the offence, or to prevent the continuation or repetition of the offence or the commission of another offence:

(a) report at specified times to the peace officer or other specified person;
(b) remain within a specified territorial jurisdiction;
(c) notify the peace officer or other specified person of any change in their address, employment or occupation;
(d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, except in accordance with any specified conditions;
(e) abstain from going to any specified place or entering any geographic area related to any person referred to in paragraph (d), except in accordance with any specified conditions;
(f) deposit all their passports with the peace officer or other specified person;
(g) reside at a specified address, be at that address at specified hours and present themselves at the entrance of that residence to a peace officer or other specified person, at the officer’s or specified person’s request during those hours;
(h) abstain from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and surrender those that are in their possession to the peace officer or other specified person and also any authorization, licence or registration certificate or other document enabling them to acquire or possess them;
(i) promise to pay an amount specified in the undertaking, which shall not be more than $500, if they fail to comply with any condition of the undertaking;
(j) deposit, with the peace officer specified in the undertaking, money or other valuable security whose value does not exceed $500 if, at the time of giving the undertaking, the accused is not ordinarily resident in the province or does not ordinarily reside within 200 kilometres of the place in which they are in custody; and
(k) comply with any other specified condition for ensuring the safety and security of any victim of or witness to the offence.
Attendance for purposes of Identification of Criminals Act

(4) The undertaking may require the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act if 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.

Money or other valuable security to be deposited with justice

(5) If the accused has deposited an amount of money or other valuable security with a peace officer, the officer shall, without delay after the deposit, cause the money or valuable security to be delivered to a justice for deposit with the justice.

Signature of accused

(6) The accused shall be requested to sign in duplicate their undertaking and, whether or not they comply with that request, one of the duplicates shall be given to them. If they fail or refuse to sign, the lack of their signature does not invalidate the undertaking.

...2019, c. 25, s. 215.
[annotation(s) added]

CCC


Note up: 501(1), (2), (3), (4), (5), and (6)

This provision came into force on December 18, 2019.

Varying Conditions on Consent

Variation of undertaking on consent

502 (1) The undertaking in respect of which an accused has been released under section 498 [release by peace officer (warrantless arrest)], 499 [release by peace officer (warrant arrest)] or 503 may, with the written consent of the accused and the prosecutor, be varied and the undertaking so varied is deemed to be an undertaking given under section 498 [release by peace officer (warrantless arrest)], 499 [release by peace officer (warrant arrest)]or 503 , as the case may be.

Replacement by justice of undertaking with order

(2) The accused or the prosecutor may, in the absence of consent between them, apply to a justice for a release order under subsection 515(1) [release order without conditions] or (2) [release order with conditions] to replace an undertaking given by the accused under paragraph 498(1)(c) [release from custody – arrest without warrant – undertaking to peace officer], 499(b) [x] or 503(1.1)(b) [continued re-evaluation of 24 hour detention – release on undertaking] with the order. If the prosecutor applies for the order, the prosecutor must provide three days notice to the accused.

R.S., 1985, c. C-46, s. 502; 1992, c. 47, s. 70; 1996, c. 7, s. 38; 1997, c. 18, s. 5; 2019, c. 25, s. 215.
[annotation(s) added]

CCC


Note up: 501(1) and (2)

This provision came into force on December 18, 2019.

Duration of Conditions

Period for which appearance notice, etc., continues in force

523 (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part, the appearance notice, summons, undertaking or release order 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, summons, undertaking or release order 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) [release of accused on s. 469 offences], 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 [Pt. XXI — appeals — definitions] 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.

[omitted (1.1), (1.2), (2) and (3)]
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2; 2019, c. 25, s. 233.

CCC


Note up: 523(1)

This provision came into force on December 18, 2019.

Compelling Attendance for Identification

Powers to Release on Warrant Arrest

See also: Warrant Arrests

Endorsed Arrest Warrant Under s. 519

Release of accused

519 (1) If a justice makes a release order under section 515 [judicial interim release provisions],

(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;
(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; and
(c) any condition in the order that an accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any specified conditions, is effective from the moment it is made, whether or not the accused has been released from custody.
Discharge from custody

(2) Where the accused complies with an order referred to in paragraph (1)(b) [power to issue warrant with endorsement to release by police] 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 [forms].

Warrant for committal

(3) Where the justice makes an order under subsection 515(5) [detention in custody] or (6) [reverse onus offences] 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; 2019, c. 25, s. 228.
[annotation(s) added]

CCC


Note up: 519(1), (2) and (3)

This provision came into force on December 18, 2019.

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 [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (s. 493 to 529.5)],...
"warrant", when used in relation to a warrant for the arrest of a person, means a warrant in Form 7 [forms] and, when used in relation to a warrant for the committal of a person, means a warrant in Form 8 [forms]. (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...; 2019, c. 25, s. 209.

CCC


Note up: 493

This provision came into force on December 18, 2019.

For definition of "accused", see Accused in Court.

s. 2
... "appearance notice" means a notice in Form 9 [forms] issued by a peace officer; (citation à comparaître)

"intimate partner" with respect to a person, includes their current or former spouse, common-law partner and dating partner; (partenaire intime)

"recognizance" means a recognizance in Form 32 [forms] entered into before a judge or justice; (engagement)

"release order" means an order in Form 11 [forms] made by a judge as defined in section 493 [compelling appearance of accused before a Justice and interim release – definitions] or a justice; (ordonnance de mise en liberté)

"summons" means a summons in Form 6 [forms] issued by a judge or justice or by the chairperson of a Review Board as defined in subsection 672.1(1) [mental disorders – definitions]; (sommation)

"undertaking" means, unless a contrary intention appears, an undertaking in Form 10 [forms] given to a peace officer; (promesse)
...

CCC


Note up: 2

See Also