Continued Detention After Appearing Before a Justice: Difference between revisions
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[[Fr:Poursuite_de_la_détention_Après_avoir_comparu_devant_un_juge]] | |||
{{Currency2|January|2020}} | |||
{{HeaderBail}} | {{HeaderBail}} | ||
{{LevelZero}} | {{LevelZero}} | ||
==General Principles== | ==General Principles== | ||
{{seealso|Initial Post-Charge Detention}} | {{seealso|Initial Post-Charge Detention|Detention Order|Procuring the Attendance of a Prisoner}} | ||
===Warrant of Remand=== | ===Warrant of Remand=== | ||
A person who has been held in custody to be brought before a judge and justice and there is no decision made to either grant or deny bail, s. 516 (or s. 537 if a preliminary inquiry judge) permits the accused is the held under Remand Order under Form 19 to a fixed date.<ref> | A person who has been held in custody to be brought before a judge and justice and there is no decision made to either grant or deny bail, s. 516 (or s. 537 if a preliminary inquiry judge) permits the accused is the held under Remand Order under Form 19 to a fixed date.<ref> | ||
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</ref> | </ref> | ||
;Remand to Jail or | ; Remand to Jail or Penitentiary | ||
The court has jurisdiction under s. 516(1) to order remand to a provincial jail or federal penitentiary based on the wording of section 516 which permits remounted to a “prison”.<ref> | The court has jurisdiction under s. 516(1) to order remand to a provincial jail or federal penitentiary based on the wording of section 516 which permits remounted to a “prison”.<ref> | ||
{{CanLIIRx|Melvin|hwff8|2016 NSSC 130 (CanLII)}}{{perNSSC|Duncan J}} | |||
</ref> | </ref> | ||
| Line 30: | Line 32: | ||
:(f) the accused has contravened or was about to contravene the (undertaking or recognizance) on which he was released and the detention of the accused in custody seems proper in the circumstances [525(7), 679(6)]; | :(f) the accused has contravened or was about to contravene the (undertaking or recognizance) on which he was released and the detention of the accused in custody seems proper in the circumstances [525(7), 679(6)]; | ||
:(g) there are reasonable grounds to believe that the accused has after his release from custody on (an undertaking or a recognizance) committed an indictable offence and the detention of the accused in custody seems proper in the circumstances [525(7), 679(6)]; | :(g) there are reasonable grounds to believe that the accused has after his release from custody on (an undertaking or a recognizance) committed an indictable offence and the detention of the accused in custody seems proper in the circumstances [525(7), 679(6)]; | ||
| | |{{CCCSec2|849}} CCC - Forms] | ||
}} | }} | ||
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Section 493 defines warrant: | Section 493 defines warrant: | ||
{{ | {{quotation2| | ||
493<br> | 493 In this Part {{AnnSec|Part XVI}},<br> | ||
'''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}}. <br> | {{ellipsis}} | ||
'''"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}}. <br> | |||
R.S., {{LegHistory80s|1985, c. C-46}}, s. 493; | R.S., {{LegHistory80s|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; {{LegHistory90s|1990, c. 16}}, s. 5, c. 17, s. 12; | R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (2nd Supp.), s. 10, c. 40 (4th Supp.), s. 2; | ||
{{LegHistory90s|1990, c. 16}}, s. 5, c. 17, s. 12; | |||
{{LegHistory90s|1992, c. 51}}, s. 37; | {{LegHistory90s|1992, c. 51}}, s. 37; | ||
{{LegHistory90s|1994, c. 44}}, s. 39; | {{LegHistory90s|1994, c. 44}}, s. 39; | ||
{{LegHistory90s|1999, c. 3}}, s. 30; | {{LegHistory90s|1999, c. 3}}, s. 30; | ||
{{LegHistory00s|2002, c. 7}}, s. 143; | {{LegHistory00s|2002, c. 7}}, s. 143; | ||
{{LegHistory10s|2015, c. 3}}, s. 51. | {{LegHistory10s|2015, c. 3}}, s. 51; | ||
| | {{LegHistory10s|2019, c. 25}}, s. 209. | ||
|{{CCCSec2|493}} | |||
|{{NoteUp|493}} | |||
}} | }} | ||
===Taking an Accused Before a Justice=== | ===Taking an Accused Before a Justice=== | ||
* [[Initial Post-Charge Detention#Duty to Take Detainee to a Judge]] | |||
==Adjourning Bail Hearing== | ==Adjourning Bail Hearing== | ||
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On application of the prosecutor, a judge has the discretion to delay a bail hearing by up to three days without the consent of the accused. (s. 516) | On application of the prosecutor, a judge has the discretion to delay a bail hearing by up to three days without the consent of the accused. (s. 516) | ||
{{ | {{quotation2| | ||
; Remand in custody | ; Remand in custody | ||
516 | 516 (1) A justice may, before or at any time during the course of any proceedings under section 515 {{AnnSec5|515}}, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19 {{AnnSec|Form 19}}, but no adjournment shall be for more than three clear days except with the consent of the accused.<br> | ||
<br> | {{removed|(2) and (3)}} | ||
(2) | |||
R.S., {{LegHistory80s|1985, c. C-46}}, s. 516; | R.S., {{LegHistory80s|1985, c. C-46}}, s. 516; | ||
{{LegHistory90s|1999, c. 5}}, s. 22, {{LegHistory90sA|1999|c. 25}}, s. 31(Preamble); | {{LegHistory90s|1999, c. 5}}, s. 22, {{LegHistory90sA|1999|c. 25}}, s. 31(Preamble); | ||
{{LegHistory10s|2019, c. 25}}, s. 227. | {{LegHistory10s|2019, c. 25}}, s. 227. | ||
| | {{Annotation}} | ||
|{{CCCSec2|516}} | |||
|{{NoteUp|516|1}} | |||
}} | }} | ||
When requested, a judge "is obliged to grant a reasonable opportunity" for the Crown to show cause.<ref> | When requested, a judge "is obliged to grant a reasonable opportunity" for the Crown to show cause.<ref> | ||
{{CanLIIRP|CGF|1x6b6|2003 NSCA 136 (CanLII)|[2003] NSJ No 456 (NSCA)}}{{perNSCA|Cromwell JA}}</ref> | |||
When an accused adjourns show cause, the judge must issue a Warrant of Remand under s. 516 using Form 19. | When an accused adjourns show cause, the judge must issue a Warrant of Remand under s. 516 using Form 19. | ||
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===Non-Communication Condition While Remanded=== | ===Non-Communication Condition While Remanded=== | ||
{{ | While a person is remanded they may be ordered to have on contact with named persons under s. 516(2). Note this is separate from the forms of in-custody no-contact orders consisting of no contact while serving a sentence (s. 743.21) and while bail-denied detention order (515(12)). | ||
516 | {{quotation2| | ||
516<br> | |||
{{removed|(1)}} | |||
; Detention pending bail hearing | ; Detention pending bail hearing | ||
(2) A justice who remands an accused to custody under subsection (1) {{AnnSec5|516(1)}} or subsection 515(11) {{AnnSec5|515(11)}} may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary. | (2) A justice who remands an accused to custody under subsection (1) {{AnnSec5|516(1)}} or subsection 515(11) {{AnnSec5|515(11)}} may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary. | ||
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{{LegHistory90s|1999, c. 5}}, s. 22, {{LegHistory90sA|1999|c. 25}}, s. 31(Preamble); | {{LegHistory90s|1999, c. 5}}, s. 22, {{LegHistory90sA|1999|c. 25}}, s. 31(Preamble); | ||
{{LegHistory10s|2019, c. 25}}, s. 227. | {{LegHistory10s|2019, c. 25}}, s. 227. | ||
{{Annotation}} | {{Annotation}} | ||
| | |{{CCCSec2|516}} | ||
|{{NoteUp|516|2|3}} | |||
}} | }} | ||
{{reflist|2}} | |||
==See Also== | ==See Also== | ||
* [[Out of Province Arrest Warrants]] | * [[Out of Province Arrest Warrants]] | ||
* [[Detention | * [[Continued Detention After Appearing Before a Justice (Until December 18, 2019)]] | ||
Latest revision as of 07:10, 23 July 2024
| This page was last substantively updated or reviewed January 2020. (Rev. # 95866) |
General Principles
Warrant of Remand
A person who has been held in custody to be brought before a judge and justice and there is no decision made to either grant or deny bail, s. 516 (or s. 537 if a preliminary inquiry judge) permits the accused is the held under Remand Order under Form 19 to a fixed date.[1]
- Remand to Jail or Penitentiary
The court has jurisdiction under s. 516(1) to order remand to a provincial jail or federal penitentiary based on the wording of section 516 which permits remounted to a “prison”.[2]
A person on remand should be held in a provincial jail. Only in “exceptional circumstances” should a judge remand an accused to a federal penitentiary.[3]
- ↑
See Form 19
List of Criminal Code Forms
- ↑ R v Melvin, 2016 NSSC 130 (CanLII), per Duncan J
- ↑ Melvin, ibid.
Warrant of Committal
A warrant of committal under Form 8 can be issued by a judge or justice pending disposition of outstanding charges on the basis that:
- (a) the prosecutor has shown cause why the detention of the accused in custody is justified [515(5)];
- (b) an order has been made that the accused be released on (giving an undertaking or entering into a recognizance) but the accused has not yet complied with the order [519(1), 520(9), 521(10), 524(12), 525(8)];**
- (c) the application by the prosecutor for a review of the order of a justice in respect of the interim release of the accused has been allowed and that order has been vacated, and the prosecutor has shown cause why the detention of the accused in custody is justified [521];
- (d) the accused has contravened or was about to contravene his (promise to appear or undertaking or recognizance) and the same was cancelled, and the detention of the accused in custody is justified or seems proper in the circumstances [524(4), 524(8)];
- (e) there are reasonable grounds to believe that the accused has after his release from custody on (a promise to appear or an undertaking or a recognizance) committed an indictable offence and the detention of the accused in custody is justified or seems proper in the circumstances [524(4), 524(8)];
- (f) the accused has contravened or was about to contravene the (undertaking or recognizance) on which he was released and the detention of the accused in custody seems proper in the circumstances [525(7), 679(6)];
- (g) there are reasonable grounds to believe that the accused has after his release from custody on (an undertaking or a recognizance) committed an indictable offence and the detention of the accused in custody seems proper in the circumstances [525(7), 679(6)];
The duration of the warrant of committal is described as ending once the accused is "delivered by due course of law".
Section 493 defines warrant:
493 In this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 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].
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.
Taking an Accused Before a Justice
Adjourning Bail Hearing
On application of the prosecutor, a judge has the discretion to delay a bail hearing by up to three days without the consent of the accused. (s. 516)
- Remand in custody
516 (1) A justice may, before or at any time during the course of any proceedings under section 515 [judicial interim release provisions], on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19 [forms], but no adjournment shall be for more than three clear days except with the consent of the accused.
[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s. 31(Preamble); 2019, c. 25, s. 227.
[annotation(s) added]
When requested, a judge "is obliged to grant a reasonable opportunity" for the Crown to show cause.[1]
When an accused adjourns show cause, the judge must issue a Warrant of Remand under s. 516 using Form 19.
A judge may also adjourn show cause under s. 537, which will also require a Warrant of Remand under Form 19.
"Clear days" is defined and calculated under section 27 of the Interpretation Act.
- ↑ R v CGF, 2003 NSCA 136 (CanLII), [2003] NSJ No 456 (NSCA), per Cromwell JA
Non-Communication Condition While Remanded
While a person is remanded they may be ordered to have on contact with named persons under s. 516(2). Note this is separate from the forms of in-custody no-contact orders consisting of no contact while serving a sentence (s. 743.21) and while bail-denied detention order (515(12)).
516
[omitted (1)]
- Detention pending bail hearing
(2) A justice who remands an accused to custody under subsection (1) [three-day remand on adjourning bail] or subsection 515(11) [detention in custody for offence listed in section 469] may order that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary.
- Duration of order
(3) An order made under subsection (2) [Detention pending bail hearing] remains in force,
- (a) until it is varied or revoked;
- (b) until an order in respect of the accused is made under section 515 [judicial interim release provisions];
- (c) until the accused is acquitted of the offence, if applicable; or
- (d) until the time the accused is sentenced, if applicable.
R.S., 1985, c. C-46, s. 516; 1999, c. 5, s. 22, c. 25, s. 31(Preamble); 2019, c. 25, s. 227.
[annotation(s) added]