Terms of Release

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General Principles

Despite the presumption of innocence the court is entitled to deprive the accused of liberty before any findings of guilt.[1]

The restrictions on liberty through bail may be made "in accordance with the principles of fundamental justice where there are reasonable grounds for doing so, rather than only after guilt has been established beyond a reasonable doubt."[2]

The release powers of a Justice is given in sections 515(1) and (2) which state:

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; 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

  1. R v Pearson 1992 CanLII 52 (SCC), (1992), 77 CCC (3d) 124 (S.C.C.)
  2. R v Pearson, ibid.

Conditions

The crown must establish the evidentiary basis that underlies the condition sought.

515
...
Conditions authorized
(4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order:

(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, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary;
(e) where the accused is the holder of a passport, deposit his passport as specified in the order;
(e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence; and
(f) comply with such other reasonable conditions specified in the order as the justice considers desirable.

...
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.


CCC


Under s. 515(4.1), the court shall order a firearm prohibition on persons released for certain charges including:

  • offences where violence is used, threatened, or attempted
  • criminal harassment
  • intimidation of a justice system participant
  • terrorism offences
  • certain firearms offences
  • certain CDSA offences
  • certain offences under Security of Information Act


Where the judge refuses to do so he must give reasons.(s. 515(4.12))

The court may order that that there be no contact with named individuals, if a person is ordered detained (s.515(12)) or remanded (s.516(2)). Note that these orders are not stand-alone orders and only last up until the next court appearance. Thus, it must be renewed at each time the matter is in court.[1]

  1. R v Brown 2000 NSCA 147 (CanLII) - re 515(12) orders
    R v Kalashnikoff, 2004 CanLII 20454 (ON SC), [2004] OJ No 113 (ONSC) - re 516(2) orders
    see also Imprisonment#No Contact Orders while in Prison

"Other Reasonable Conditions"

Section 515(4)(f) permits the court to impose “other reasonable conditions”.

The condition must relate "to a purpose which would otherwise justify the accused's pre-trial detention." which means they must relate to ensuring attendance in court, to the protection or safety of the public or to maintaining confidence in the administration of justice.[1]

Where the offence involves the use of alcohol or the accused has a history of committing offences while intoxicated and there is a risk that further offences may be committed due to substance abuse, a condition requiring the accused to abstain from alcohol or intoxicating substances should be imposed.[2]

  1. R v Keenan, 1979 ABCA 278 (CanLII), (1979), 12 C.R. (3d) 135 (Que. C.A.) per Lamer JA.
    R v Merasty, 2008 SKPC 28 (CanLII)
  2. R v Peddle, [2001] O.J. No.2116 (S.C.)(*no link) at para 12

Mandatory Conditions for Certain Offences

515
...
Condition prohibiting possession of firearms, etc.
(4.1) When making an order under subsection (2), in the case of an accused who is charged with

(a) an offence in the commission of which violence against a person was used, threatened or attempted,
(a.1) a terrorism offence,
(b) an offence under section 264 (criminal harassment),
(b.1) an offence under section 423.1 (intimidation of a justice system participant),
(c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act,
(d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, or
(e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act,

the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or the safety and security of a victim of the offence or of any other person.
Surrender, etc.
(4.11) Where the justice adds a condition described in subsection (4.1) to an order made under subsection (2), the justice shall specify in the order the manner and method by which

(a) the things referred to in subsection (4.1) that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and
(b) the authorizations, licences and registration certificates held by the person shall be surrendered.


Reasons
(4.12) Where the justice does not add a condition described in subsection (4.1) to an order made under subsection (2), the justice shall include in the record a statement of the reasons for not adding the condition.
...
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.


CCC

Variation and Review of Conditions

The terms of a release order can be varied according to s. 523 (2) of the Code:

523
...
Order vacating previous order for release or detention
(2) Notwithstanding subsections (1) and (1.1),

(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

This section has been interpreted by most courts as meaning that a provincial court judge cannot vary the conditions on demand without the consent of the crown.[1] A Superior Court judge, however, will have jurisdiction to change conditions on application.

See also 520, 521, 522, 524, 525.

  1. R v Mukpo 2012 NSSC 107 (CanLII)
    R v Arkison [1996] BCJ No. 2549(*no link)
    R v Hill 2005 NSPC 50 (CanLII)
    c.f. R v Greener 2003 NSPC 58 (CanLII)

See Also