Reverse Onus Provisions Under Section 515 (Until December 18, 2019)

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General Principles

That is, unless the charge falls within the offences listed in s.515 (6):

515
[omitted (1), (2), (2.1), (2.2), (2.3), (3), (4), (4.1), (4.11), (4.12), (4.2), (4.3) and (5)]

Order of detention

(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged

(a) with an indictable offence, other than an offence listed in section 469 [exclusive jurisdiction offences],

(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680,

(ii) that is an offence under section 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization], or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,

(iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence,

(iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act,

(v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in subparagraph (iv),

(vi) that is an offence under section 99 [weapons trafficking], 100 [possession for purpose of weapons trafficking] or 103 [importing or exporting firearms knowing it is unauthorized],

(vii) that is an offence under section 244 [discharging firearm] or 244.2 [discharging firearm – recklessness], or an offence under section 239 [attempted murder], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault], subsection 279(1) [kidnapping] or section 279.1 [hostage taking], 344 [robbery] or 346 [extortion] that is alleged to have been committed with a firearm, or

(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1);

(b) with an indictable offence, other than an offence listed in section 469 [exclusive jurisdiction offences] and is not ordinarily resident in Canada,

(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or

(d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.

Reasons

(6.1) If the justice orders that an accused to whom subsection (6) applies be released, the justice shall include in the record a statement of the justice’s reasons for making the order.

Order of release

(7) Where an accused to whom paragraph 6(a), (c) or (d) applies shows cause why the accused’s detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions described in subsections (4) to (4.2) or, where the accused was at large on an undertaking or recognizance with conditions, the additional conditions described in subsections (4) to (4.2), that the justice considers desirable, unless the accused, having been given a reasonable opportunity to do so, shows cause why the conditions or additional conditions should not be imposed.

Idem

(8) Where an accused to whom paragraph (6)(b) applies shows cause why the accused’s detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions, described in subsections (4) to (4.2), that the justice considers desirable.

Sufficiency of record

(9) For the purposes of subsections (5) and (6), it is sufficient if a record is made of the reasons in accordance with the provisions of Part XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] relating to the taking of evidence at preliminary inquiries.

Written reasons

(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.
[omitted (10), (11), (12), (13) and (14)]
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; 2018, c. 16, s. 218.

– CCC (CanLII), (DOJ)

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For the purpose of reverse onus, "indictable offences" includes hybrid offences, but not those in which there was a summary election.

Where a person is charged with multiple offences, only some of which are reverse onus offences, the non-reverse onus offences do not change onus.

When the accused is a young person. The YCJA governs the onus on bail.

Constitutionality

The reverse onus for offences under s. 469 is constitutional.

Criminal Organization Offences

Section 515(6)(a)(ii) provides that the following offences are subject to a reverse onus:

• s. 467.11,
• s. 467.111,
• s. 467.12
• s. 467.13,
• a "serious offence" committed "for the benefit of, at the direction of, or in association with, a criminal organization".

The term "serious offence" is defined in s. 467.1:

467.1 (1) The following definitions apply in this Act.
...
"serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
[omitted (2), (3) and (4)]
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.

– CCC (CanLII), (DOJ)

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The term is expanded by the Regulations Prescribing Certain Offences to be Serious Offences, SOR/2010-161, which adds the following offences:

(a) keeping a common gaming or betting house (subsection 201(1) and paragraph 201(2)(b));

(b) betting, pool-selling and book-making (section 202); (c) committing offences in relation to lotteries and games of chance (section 206);

(d) cheating while playing a game or in holding the stakes for a game or in betting (section 209); and

(e) keeping a common bawdy-house (subsection 210(1) and paragraph 210(2)(c)).

...

(a) trafficking in any substance included in Schedule IV (paragraph 5(3)(c)); [Barbiturates ...]

(b) trafficking in any substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII (subsection 5(4)); [Cannabis...]

(c) importing or exporting any substance included in Schedule IV or V (paragraph 6(3)(c)); and [Barbiturates or Propylhexedrine (stimulant related to methamphetamine)]

(d) producing any substance included in Schedule IV (paragraph 7(2)(d)); [Barbiturates...]

– Regs