Release by Police on Undertaking: Difference between revisions

{{LevelZero}}{{HeaderRelease}}

{{HeaderBail}}

==General Principles==

{{seealso|Warrantless Arrests|Warrant Arrests|Compelling Attendance by Accused Without Arrest|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."<ref>

</ref>

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.

===Principles of Restraint===

; Principle of restraint

493.1 In making a decision under this Part {{AnnSec|Part XVI}}, 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) {{AnnSec4|498(1.1)}} or 515(10) {{AnnSec5|515(10)}}, as the case may be.

{{LegHistory10s|2019, c. 25}}, s. 210.

{{Annotation}}

|{{NoteUp|493.1}}

}}

; Purpose

The purpose of section 493.1 was to codify the common law.<ReF>

</ref>  

{{LegHistory10s|2019, c. 25}}, s. 210.

{{Annotation}}

|{{NoteUp|493.2}}

}}

{{LegHistory10s|2019, c. 25}}, s. 213.

{{Annotation}}

|{{NoteUp|498|1|2}}

}}

A promise to appear and an undertaking to police are two forms of "police bail" provided by Part XVI of the Code.<ref>

</ref>

; Person delivered or detained

(1.01) Subsection (1) {{AnnSec4|498(1)}} also applies in respect of a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) {{AnnSec4|494(3)}} 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 {{AnnSec4|469}} and who has not been taken before a justice or released from custody under any other provision of this Part {{AnnSec|Part XVI}}.

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

(2) Subsections (1) {{AnnSec4|498(1)}} and (1.01) {{AnnSec4|498(1.01)}} 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) {{AnnSec5|503(3)}}.

{{LegHistory10s|2019, c. 25}}, s. 213.

{{Annotation}}

|{{NoteUp|498|1.01|2}}

}}

{{LegHistory10s|2019, c. 25}}, s. 217.

{{Annotation}}

|{{NoteUp|503|3}}

}}

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

498<br>

{{removed|(1) and (1.01)}}

; Exception

(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,

::(i) establish the identity of the person,

::(ii) secure or preserve evidence of or relating to the offence,

{{LegHistory90s|1999, c. 25}}, ss. 4, 30(Preamble);

{{LegHistory10s|2019, c. 25}}, s. 213.

|{{NoteUp|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.<ref>

{{CanLIIR-N|Sapusak|, [1998] OJ No 3299}}<br>

{{CanLIIRP|Padda|1k1rw|2003 CanLII 52405 (ON CJ)|[2003] OJ No 5502 (Ont. Ct. J.)}}{{perONCJ|Duncan J}}<br>

{{CanLIIR-N|Gaudette|, [2005] OJ No 2399 (Ont. Ct. J.)}}, reversed for other reasons, [2006] OJ No 3732 (Sup. Ct. J)<br>

</ref>

The factors set out in 487(1.1) and 498(1.1) is not a closed list.<ref>

</ref>  

{{ibid1|Donald}}{{atL|2csw3|48}}<br>

</ref>

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. <ref>

</ref>

{{reflist|2}}

===Impaired Driving Investigations===

Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:<ref>

</ref>

# the accused's blood alcohol level,  

{{LegHistory90s|1999, c. 25}}, s. 7(Preamble);  

{{LegHistory10s|2019, c. 25}}, s. 217.

|{{NoteUp|503|4}}

}}

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.<ref>

</ref>

{{seealso|Laying of an Information|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 {{AnnSec4|497}}, or if an accused has been released from custody under section 498 {{AnnSec4|498}} or 503 {{AnnSec5|503}}, 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}}

|{{NoteUp|505}}

}}

{{C75-fix}}

==Attendance from Release==

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.

{{reflist|2}}

{{Seealso|Compelling Attendance by Accused Without Arrest#Contents of Appearance Notice}}

{{quotation2|

; Contents of undertaking

:(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

; Attendance for purposes of ''Identification of Criminals Act''

; Money or other valuable security to be deposited with justice

(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.

{{Annotation}}

|{{NoteUp|501|1|2|3|4|5|6}}

}}

{{quotation2|

; Variation of undertaking on consent

; Replacement by justice of undertaking with order

{{LegHistory10s|2019, c. 25}}, s. 215.

{{Annotation}}

}}

==Duration of Conditions==

{{LegHistory10s|2011, c. 16}}, s. 2;

{{LegHistory10s|2019, c. 25}}, s. 233.

|{{NoteUp|523|1}}

}}

{{LegHistory10s|2019, c. 25}}, s. 228.

{{Annotation}}

|{{NoteUp|519|1|2|3}}

}}

{{quotation2|

; Definitions

'''"warrant"''', when used in relation to a warrant for the arrest of a person, means a warrant in Form 7 {{AnnSec|Form 7}} and, when used in relation to a warrant for the committal of a person, means a warrant in Form 8 {{AnnSec|Form 8}}. (mandat)

<br>

|{{NoteUp|493}}

}}

{{quotation2|

|{{NoteUp|2}}

}}