Procuring the Attendance of a Prisoner: Difference between revisions
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[[fr:Obtenir_la_présence_d'un_prisonnier]] | |||
{{Currency2|January|2018}} | |||
{{LevelZero}}{{HeaderRelease}} | {{LevelZero}}{{HeaderRelease}} | ||
{{HeaderBail}} | {{HeaderBail}} | ||
==General Principles== | ==General Principles== | ||
{{seealso|Order of Detention|Continued Detention After Appearing Before a Justice}} | |||
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. | 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. | ||
{{ | {{quotation2| | ||
; Procedure to Procure Attendance of a Prisoner | |||
527 | ; 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 | :(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. | :(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. | (2) A provincial court judge has the same powers for the purposes of subsection (1) {{AnnSec5|527(1)}} or (7) {{AnnSec5|527(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 | (3) An order that is made under subsection (1) {{AnnSec5|527(1)}} or (2) {{AnnSec5|527(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 | :(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. | :(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. | (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 | (5) Where the appearance of a prisoner is required for the purposes of paragraph (1)(a) {{AnnSec5|527(1)(a)}} or (b) {{AnnSec5|527(1)(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 | :(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. | :(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. | (6) Sections 718.3 {{AnnSec7|718.3}} and 743.1 {{AnnSec7|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. | (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. | (8) An order under subsection (7) {{AnnSec5|527(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. | (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. | R.S., {{LegHistory80s|1985, c. C-46}}, s. 527; | ||
| | R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, ss. 92, 101(E), 203; | ||
{{LegHistory90s|1994, c. 44}}, s. 50; | |||
{{LegHistory90s|1995, c. 22}}, s. 10; | |||
{{LegHistory90s|1997, c. 18}}, s. 62; | |||
{{LegHistory10s|2015, c. 3}}, s. 52(F). | |||
|{{CCCSec2|527}} | |||
|{{NoteUp|527|1|2|3|4|5|6|7|8|9}} | |||
}} | }} | ||
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.<ref> | 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.<ref> | ||
{{CanLIIR-N|Katirtzogloy|, 1989 CarswellOnt 1933, [1989] OJ No 1872}}<br> | |||
{{CanLIIRP|Goikhberg|g8k1s|2014 QCCS 3891 (CanLII)|QJ 8164}}{{perQCCS|Cournoyer J}}{{atsL|g8k1s|21| to 41}}<br> | |||
</ref> | </ref> | ||
The accused may also be made to go to a show cause hearing under s. 515 in these circumstances.< | The accused may also be made to go to a show cause hearing under s. 515 in these circumstances.<ref> | ||
{{ibid1|Katirtzogloy}}<br> | |||
{{CanLIIRP|Lalo|2bzd6|2002 NSSC 157 (CanLII)|645 APR 250}}{{perNSSC|Robertson J}}{{atL|2bzd6|66}}<br> | |||
</ref> | |||
; Difference from Section 515 | |||
The procedure in s. 527 is not one where the prisoner is ordered remand. Rather once the 527 order is completed, the prisoner is required to be returned to custody under s. 527(9).<ref> | |||
{{CanLIIRP|Goikhberg|g8k1s|2014 QCCS 3891 (CanLII)|QJ 8164}}{{perQCCS|Cournoyer J}}{{AtsL|g8k1s|58| to 59}} | |||
</ref> | |||
Orders under s. 527 are not part of the judicial interrim release scheme.<Ref> | |||
{{ibid1|Goikhberg}}{{atL|g8k1s|60}} | |||
</ref> | </ref> | ||
; 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.< | The provisions of s. 527 take precedent over any of the provisions within Part XXII (s. 697 to 715.2) of the Code.<ref> | ||
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." | 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." | ||
</ref> | </ref> | ||
; 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.< | 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.<ref> | ||
{{CanLIIRx|Dechamp|hpw71|2017 NSSC 207 (CanLII)}}{{perNSSC|Duncan J}}<br> | |||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 14:38, 14 July 2024
| This page was last substantively updated or reviewed January 2018. (Rev. # 95485) |
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.
- Procedure to Procure Attendance of a Prisoner
- 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) [power to procure attendance of prisoner] or (7) [transfer of prisoner by superior court] 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) [power to procure attendance of prisoner] or (2) [provincial court orders same as superior court orders] 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) [power to procure attendance of prisoner – set out facts] or (b) [power to procure attendance of prisoner – ends of justice], 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 [degrees of punishment limitations] and 743.1 [penitentiary for sentences of 2 years or more] 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) [transfer of prisoner by superior court] 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; 2015, c. 3, s. 52(F).
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]
- Difference from Section 515
The procedure in s. 527 is not one where the prisoner is ordered remand. Rather once the 527 order is completed, the prisoner is required to be returned to custody under s. 527(9).[3]
Orders under s. 527 are not part of the judicial interrim release scheme.[4]
- 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.[5]
- 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.[6]
- ↑
R v Katirtzogloy, 1989 CarswellOnt 1933, [1989] OJ No 1872(*no CanLII links)
R v Goikhberg, 2014 QCCS 3891 (CanLII), QJ 8164, per Cournoyer J, at paras 21 to 41
- ↑
Katirtzogloy, ibid.
R v Lalo, 2002 NSSC 157 (CanLII), 645 APR 250, per Robertson J, at para 66
- ↑ R v Goikhberg, 2014 QCCS 3891 (CanLII), QJ 8164, per Cournoyer J, at paras 58 to 59
- ↑ Goikhberg, ibid., at para 60
- ↑ 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."
- ↑
R v Dechamp, 2017 NSSC 207 (CanLII), per Duncan J