Continued Detention After Appearing Before a Justice: Difference between revisions

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; Remand in custody
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516. (1) A justice may, before or at any time during the course of any proceedings under section 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, but no adjournment shall be for more than three clear days except with the consent of the accused.
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.
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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}}
|[{{CCCSec|516}} CCC]
|[{{CCCSec|516}} CCC]
}}
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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}}
|[{{CCCSec|516}} CCC]
|[{{CCCSec|516}} CCC]
}}
}}

Revision as of 22:12, 20 February 2020

General Principles

See also: Initial Post-Charge Detention

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 Penetentiary

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]

  1. ↑ See Form 19
    List of Criminal Code Forms
  2. ↑ R v Melvin, 2016 NSSC 130 (CanLII), per Duncan J
  3. ↑ 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
...
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.

– CCC

Taking an Accused Before a Justice

Taking before justice

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and
(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.
Re-evaluation of detention

(1.1) At any time before the expiry of the time referred to in paragraph (1)(a) or (b), a peace officer who is satisfied that the continued detention of the person in custody for an offence that is not listed in section 469 [exclusive jurisdiction offences] is no longer necessary shall release the person, if

(a) the peace officer issues an appearance notice to the person; or
(b) the person gives an undertaking to the peace officer.
Person delivered or in custody

(2) Subsections (1) [duty to take a detainee before a justice] and (1.1) [continued re-evaluation of 24 hour detention] also apply to a peace officer to whom a person is delivered under subsection 494(3) [deliver to police after citizen's arrest] or into whose custody a person is placed under subsection 163.5(3) of the Customs Act, except that the 24-hour period referred to in paragraphs (1)(a) and (b) begins after the person is delivered to the officer.

...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble); 2019, c. 25, s. 217.
[annotation(s) added]

– CCC

This provision came into force on December 18, 2019.

Youths are also to be brought before a justice who are able to determine release under s. 20(1) and 33(1) of the YCJA.[1]

  1. ↑ See Bail for Young Accused

Adjourning Bail Hearing

See also: Bail Hearings

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.

Detention pending bail hearing

(2)...
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]

– CCC

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.

  1. ↑ R v CGF, 2003 NSCA 136 (CanLII), [2003] NSJ No 456 (NSCA), per Cromwell JA

Non-Communication Condition While Remanded

516.
...

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]

– CCC

515.
...

Order re no communication

(12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary.
...
...
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; 2019, c. 25, s. 225.
[annotation(s) added]

– CCC

When relating to an offence under s. 469 a similar condition can be imposed under s. 522(2.1).

See Also

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