Release by Police on Undertaking

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General Principles

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."

A peace officer who arrests an accused person or a peace officer who is an officer-in-charge of the detainee may release the accused under s. 497 or 498. Section 497 concerns the requirement of an arresting officer to release the accused unless it is in the public interest not to do so or there is concerns that he will not attend court. Section 498 concerns the requirement of any other peace officer, including an officer-in-charge, to release the accused on the same basis as s. 497.

In certain circumstances, an officer may simply issue an appearance notice under s. 496.

Principles of Restraint

Principle of restraint

493.1 In making a decision under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)], 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) or 515(10), as the case may be.

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This provision came into force on December 18, 2019.

Aboriginal accused or vulnerable populations

493.2 In making a decision under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)], a peace officer, justice or judge shall give particular attention to the circumstances of

(a) Aboriginal accused; and

(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

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This provision came into force on December 18, 2019.

Powers of the Arresting Peace Officer

After the officer decides to exercise their authority to arrest without warrant under s. 496 or arrest with warrant, the peace officer may, depending on the charges, be able to

1. release them with intention to serve them with a summons at a later time;
2. issue an appearance notice; or
3. detain and bring them to a justice of the peace.

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

Section 497 provides the authority to a peace officer to release an accused:

Release from custody by peace officer

497. (1) Subject to subsection (1.1) [relating to public interest detention], if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b) or (c) [listed offences eligible for appearance notice, see below], the peace officer shall, as soon as practicable,

(a) release the person from custody with the intention of compelling their appearance by way of summons; or

(b) issue an appearance notice to the person and then release them.

Exception

(1.1)...[detention for public interest]...

Where subsection (1) does not apply

(2) Subsection (1) does 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) [arrest of person out of province].
...
(3) [Consequences of non-release]
...
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).

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If the officer believes there are grounds to make a warrantless arrest under s. 495(1), after concluding that s. 495(2) does not apply, then under s. 497, the officer must release the accused "as soon as practicable" on a summons (s. 497(1)(a)) or a appearance notice (s. 497(1)(b)), if the offence for summary, hybrid or 553 offences, person, unless, under s. 497(1.1), the officer "believes, on reasonable grounds" that:

1. either:
   1. "it is necessary in the public interest that the person be detained in custody" or
   2. "that the matter of their release from custody be dealt with under another provision of this Part"
2. while having regard to all the circumstances including the need to:
   1. establish the identity of the person,
   2. secure or preserve evidence of or relating to the offence,
   3. prevent the continuation or repetition of the offence or the commission of another offence, or
   4. ensure the safety and security of any victim of or witness to the offence; or
3. "that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law."

Where the officer does not release the accused then they will be brought before a judge to determine if interim release will be granted.

Definition and Forms of Notice and Summons

An appearance notice is defined in s. 493 as "a notice in Form 9 issued by a peace officer".

A summons is defined in s. 493 as "a summons in Form 6 issued by a justice or judge;"

Appearance Notice Eligible Offences

Appearance notice for judicial referral hearing

496 If a peace officer has reasonable grounds to believe that a person has failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the peace officer may, without laying a charge, issue an appearance notice to the person to appear at a judicial referral hearing under section 523.1 .

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Exception to s. 497(1)

Under s. 497(2), these rules do not apply where the accused is arrested without a warrant for an offence in a different province (as referenced in s. 503(3)).

Also, the officer should not release if he believes that the person may fail to attend court or where the offence described in s.503(3) concerning offences outside of the jurisdiction.

503
...

Remand in custody for return to jurisdiction where offence alleged to have been committed

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or

(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may

(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or

(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.

...
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).

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Powers of an "Officer in Charge"

Section 498 provides the power to an officer in charge (OIC) to decide on several manners of release.

An OIC may be able to do any of the following:

• release the accused with the intention of serving a summons upon him at a later date;
• release the accused with a promise to appear; or
• release the accused on a recognizance.

The OIC recognizance is somewhat different from a recognizance from a judge. An OIC recognizance is not able to include a surety and cannot exceed $500.

Section 493 defines an "officer in charge" as "the officer for the time being in command of the police force responsible for the lock-up or other place to which an accused is taken after arrest or a peace officer designated by him for the purposes of this Part who is in charge of that place at the time an accused is taken to that place to be detained in custody;"

Release from custody by officer in charge

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c) , or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception

(1.1)...[detention for public interest]...

Where subsection (1) does not apply

(2) Subsection (1) does 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).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).

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Where police policy regarding domestic violence does not permit the officer from releasing the accused under s. 498, the right against arbitrary detention under s. 9 is violated.

Money or Valuable Security

Money or other valuable security to be deposited with justice

500 If a person has, under paragraph 498(1)(d) or 499(1)(c), deposited any sum of money or other valuable security with the officer in charge, the officer in charge shall, without delay after the deposit, cause the money or valuable security to be delivered to a justice for deposit with the justice.
R.S., 1985, c. C-46, s. 500; 1999, c. 5, s. 20, c. 25, s. 6(Preamble).

Public Interest Factors for Detention

The peace officer or officer in charge may detain for reasons set out in s. 497(1.1) and 498(1.1) which mirror each other:

497.
...

Exception

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

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

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

...
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).

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498.
...

Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

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

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).

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The factors set out in 487(1.1) and 498(1.1) is not a closed list. Other circumstances include an offender charged for impaired driving who can be held "until that individual is sober or can be picked up by a sober person". 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.

Deeming to Act Lawfully

495.
...

Consequences of arrest without warrant

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.

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497.
...

Consequences of non-release

(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).

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498.
...

Consequences of non-release

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).

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503
...

Consequences of non-release

(5) Notwithstanding subsection (4), a peace officer or an officer in charge having the custody of a person referred to in that subsection who does not release the person before the expiration of the time prescribed in paragraph (1)(a) or (b) for taking the person before the justice shall be deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in such proceedings it is alleged and established by the person making the allegation that the peace officer or officer in charge did not comply with the requirements of subsection (4).

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).

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Section 495(3) should be construed to deny any defence for failure to comply with 495(2).

Notably there is no similar deeming provision in relation to the obligations under s. 503 which requires the accused to be brought to a justice.

Release Persons About to Commit Indictable Offence

503 (1) ...

Release of person about to commit indictable offence

(4) A peace officer or an officer in charge having the custody of a person who has been arrested without warrant as a person about to commit an indictable offence shall release that person unconditionally as soon as practicable after he is satisfied that the continued detention of that person in custody is no longer necessary in order to prevent the commission by him of an indictable offence.
...
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).

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Promise to Appear or Recognizance Issued by an Officer in Charge

If the officer believes there is grounds to make a warrantless arrest under s. 495(1), after concluding that s. 495(2) does not apply, and, the officer does not release on an appearance notice or summons under s. 497, then, the officer in charge must release under s. 498 on a summons, a promise to appear or recognizance (without surety) once there is no further reason to detain the accused, if the offence for summary, hybrid or 553 offences, or any offence with a maximum penalty of five year jail and is not currently subject to a release process. That is, unless, under s. 498(1.1), the officer in charge "believes, on reasonable grounds" that:

1. either:
   1. "it is necessary in the public interest that the person be detained in custody" or
   2. "that the matter of their release from custody be dealt with under another provision of this Part"
2. while having regard to all the circumstances including the need to:
   1. establish the identity of the person,
   2. secure or preserve evidence of or relating to the offence,
   3. prevent the continuation or repetition of the offence or the commission of another offence, or
   4. ensure the safety and security of any victim of or witness to the offence; or
3. "that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law."

A promise to appear is defined in s. 493 as requiring Form 10. It shall include the accused's name, the substance of the offence, a demand to attend court at a stated time and place.

Section 503(2.1) concerns imposing an undertakings:

503
...

Undertaking

(2.1) In addition to the conditions referred to in subsection (2), the peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; or

(h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

...

– CCC

Under s. 503(2.1), any promise to appear or recognizance can be made to include conditions, including:

• to remain within a territorial jurisdiction,
• to notify the officer of any change of address, employment, or occupation,
• to abstain from communicating directly or indirectly with certain individuals,
• to abstain from attending certain locations,
• to deposit their passport,
• to abstain from possessing any firearm and to surrender any firearms licenses,
• to report at certain times to the police,
• to abstain from the consumption of alcohol or other intoxicating substances,
• to abstain from the consumption of drugs except in accordance with a medical prescription, and
• to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any victim or witness.

The PTA is intended to "secure the initial attendance of the accused in court". After that, the PTA becomes "largely irrelevant".

Any fault in the PTA or process does not invalidate the charges.

Conditions on an undertaking to an officer in charge are intended to "protect the public by providing some measure of control over an accused's conduct while the criminal proceedings are extant." Accordingly, the "life of the undertaking should be tied to the life of the charges".

The "life of an undertaking is tied to the life of the charges giving rise to the undertaking" but not the promise to appear or recognizance.

The conditions remain in place until conclusion of the charges associated with the undertaking.

Undertaking to an Officer in Charge

If an officer has grounds to make a warrantless arrest under s. 495 and the accused is not released under s. 497 or 498, then there is a general discretion under s. 503(2) to release the accused from custody "conditionally" by either a promise to appear or recognizance for any offences except 496 offences.

Section 503(2) states:

503
...

Conditional release

(2) If a peace officer or an officer in charge is satisfied that a person described in subsection (1) should be released from custody conditionally, the officer may, unless the person is detained in custody for an offence mentioned in section 522 , release that person on the person’s giving a promise to appear or entering into a recognizance in accordance with paragraphs 498(1)(b) to (d) and subsection (2.1).
...

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Under s. 503(2.1), the officer may further require the accused to enter into an undertaking, which can have one or more of the following conditions:

• to remain within a territorial jurisdiction,
• to notify the officer of any change of address, employment, or occupation,
• to abstain from communicating directly or indirectly with certain individuals,
• to abstain from attending certain locations,
• to deposit their passport,
• to abstain from possessing any firearm and to surrender any firearms licenses,
• to report at certain times to the police,
• to abstain from the consumption of alcohol or other intoxicating substances,
• to abstain from the consumption of drugs except in accordance with a medical prescription, and
• to comply with any other condition the officer in charge considers necessary to ensure the safety and security of any victim or witness.

Failure to comply with the undertaking is a criminal offence.

The form of the undertaking should conform to Form 11.1 of the Criminal Code.

Varying Conditions

Conditions in place from an undertaking to an officer in charge can be modified at any point under s. 499(3) and 497(1.1), as well as 503(2.2) for the Defence and 503(2.3) for the Crown. The variation does not need the consent of the Crown.

503.
...

Application to justice

(2.2) A person who has entered into an undertaking under subsection (2.1) may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.

Application by prosecutor

(2.3) Where a person has entered into an undertaking under subsection (2.1), the prosecutor may

(a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after three days notice has been given to that person, or

(b) at the appearance,

apply to a justice for an order under subsection 515(2) to replace the undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.

...
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).

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Timing of Release ("As soon as practicable")

See also Right Against Arbitrary Detention

Under both s. 497 and 498, a peace officer or officer in charge must release a suspect "as soon as practicable".

If the suspect is being held for court, s. 503 requires that police bring him to court "without unreasonable delay".

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.

Fsilure to comply with the duty in s. 503 to bring the accused as soon as practicable to the justice can be factor in determining voluntariness of a statement.

Timing of Laying an Information ("As soon as practicable")

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. Where

(a) an appearance notice has been issued to an accused under section 496 , or

(b) an accused has been released from custody under section 497 or 498 ,

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 him shall be laid before a justice as soon as practicable thereafter and in any event before the time stated in the appearance notice, promise to appear or recognizance issued to or given or entered into by the accused for his attendance in court.
R.S., c. 2(2nd Supp.), s. 5.

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Attendance from Release

If an accused is released by summons, appearance notice, promise to appear, recognizance, or undertaking, as discussed above, and the accused fails to attend on the date specified, the justice may issue a warrant under s. 502 for the arrest of the accused. The warrant may be "endorsed" pursuant to s. 507(6) otherwise the warrant will be considered "unendorsed".

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.

Contents of Appearance Notice, Promise to Appear or Recognizance

Contents of appearance notice, promise to appear and recognizance

501 (1) An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer shall

(a) set out the name of the accused;

(b) set out the substance of the offence that the accused is alleged to have committed; and

(c) require the accused to attend court at a time and place to be stated therein and to attend thereafter as required by the court in order to be dealt with according to law.

Idem

(2) An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer shall set out the text of subsections 145(5) and (6) and section 502.

Attendance for purposes of Identification of Criminals Act

(3) An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act, where the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act.

Signature of accused

(4) An accused shall be requested to sign in duplicate his appearance notice, promise to appear or recognizance and, whether or not he complies with that request, one of the duplicates shall be given to the accused, but if the accused fails or refuses to sign, the lack of his signature does not invalidate the appearance notice, promise to appear or recognizance, as the case may be.
(5) [Repealed, 2008, c. 18, s. 15]
R.S., 1985, c. C-46, s. 501; R.S., 1985, c. 27 (1st Supp.), s. 76; 1992, c. 47, s. 69; 1994, c. 44, ss. 41, 94; 1996, c. 7, s. 38; 2008, c. 18, s. 15.

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Duration of Conditions

Period for which appearance notice, etc., continues in force

523. (1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3) , until his trial is completed; or

(b) in any other case,

(i) until his trial is completed, and

(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

...
R.S., 1985, c. C-46, s. 523; R.S., 1985, c. 27 (1st Supp.), s. 89; 2011, c. 16, s. 2.

– CCC

Duty Upon Deciding to Detain

Section 503(1) requires that once the accused is detained without release they are to bring the accused before a justice:

Taking before justice

503. (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and

(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

...
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).

– CCC

This duty reflects the English common law duties upon arrest.

Warrantless Arrest and Release for an Offence Committed Outside of the Province

Sections 503(3) and 503(3.1) govern the process of compelling attedance where a peace officer arrests an accused without warrant for an offence that was committed in a different province.

Under s. 503(3)(b) a justice of the peace may order the remand of an accused for a period of up to 6 days, during which time the police may execute a public interest arrest warrant.

503.
...

Remand in custody for return to jurisdiction where offence alleged to have been committed

(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested

(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or

(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may

(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528 , but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or

(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.

Interim release

(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released

(a) unconditionally; or

(b) on any of the following terms to which the prosecutor consents, namely,

(i) giving an undertaking, including an undertaking to appear at a specified time before the court that has jurisdiction with respect to the indictable offence that the person is alleged to have committed, or

(ii) entering into a recognizance described in any of paragraphs 515(2)(a) to (e)

with such conditions described in subsection 515(4) as the justice considers desirable and to which the prosecutor consents.
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Non-Compliance

A failure to comply with 503(3) can result in a breach of rights under s 7 and 9.

Time Limitation

Under s. 503, the accused must be brought before a justice in normal course within the time specified in s. 503(1)(a) and (b). The justice will order the remand of the accused for 6 days until the accused can be transported to the offence's jurisdiction.

Arresting Under Section 497 or 498

497
...

Where subsection (1) does not apply

(2) Subsection (1) [Release from custody by peace officer] does 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).
...
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).
[annotation(s) added]

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498
...

Where subsection (1) does not apply

(2) Subsection (1) [Release from custody by officer in charge] does 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).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).
[annotation(s) added]

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Compelling Attendance for Identification

• Taking Photographs and Fingerprints of Accused Persons

Powers to Release on Warrant Arrest

Endorsed Arrest Warrant Under s. 507

Section 499 concerns endorsed warrants:

Release from custody by officer in charge where arrest made with warrant

499 (1) Where a person who has been arrested with a warrant by a peace officer is taken into custody for an offence other than one mentioned in section 522 , the officer in charge may, if the warrant has been endorsed by a justice under subsection 507(6),

(a) release the person on the person’s giving a promise to appear;

(b) release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs, but without deposit of money or other valuable security; or

(c) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within two hundred kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs and, if the officer in charge so directs, on depositing with the officer in charge such sum of money or other valuable security not exceeding in amount or value five hundred dollars, as the officer in charge directs.

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Under s. 499(1), where the warrant for arrest was endorsed for release pursuant to s. 507(6) and the offence is not a 469 offence, the officer may do any of the following:

1. "release the person on the person's giving a promise to appear";
2. "release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs, but without deposit of money or other valuable security"; or
3. if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within two hundred kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge without sureties in the amount not exceeding five hundred dollars that the officer in charge directs and, if the officer in charge so directs, on depositing with the officer in charge such sum of money or other valuable security not exceeding in amount or value five hundred dollars, as the officer in charge directs.

Conditions

The officer may also impose conditions specified in s. 499(2):

499
...

Additional conditions

(2) In addition to the conditions for release set out in paragraphs (1)(a), (b) and (c), the officer in charge may also require the person to enter into an undertaking in Form 11.1 in which the person, in order to be released, undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify a peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; and

(h) to comply with any other condition specified in the undertaking that the officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

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Variations

A person subject to conditions under s. 499(2) may, before appearance, may apply before a justice of the peace vary the conditions:

499
...

Application to justice

(3) A person who has entered into an undertaking under subsection (2) may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.

Application by prosecutor

(4) Where a person has entered into an undertaking under subsection (2), the prosecutor may

(a) at any time before the appearance of the person pursuant to a promise to appear or recognizance, after three days notice has been given to that person, or

(b) at the appearance,

apply to a justice for an order under subsection 515(2) to replace the undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.
R.S., 1985, c. C-46, s. 499; R.S., 1985, c. 27 (1st Supp.), s. 186; 1994, c. 44, s. 40; 1997, c. 18, s. 53; 1999, c. 25, s. 5(Preamble).

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Endorsed Arrest Warrant Under s. 519

Release of accused

519 (1) Where a justice makes an order under subsection 515(1) , (2) , (7) or (8) ,

(a) if the accused thereupon complies with the order, the justice shall direct that the accused be released

(i) forthwith, if the accused is not required to be detained in custody in respect of any other matter, or

(ii) as soon thereafter as the accused is no longer required to be detained in custody in respect of any other matter; and

(b) if the accused does not thereupon comply with the order, the justice who made the order or another justice having jurisdiction shall issue a warrant for the committal of the accused and may endorse thereon an authorization to the person having the custody of the accused to release the accused when the accused complies with the order

(i) forthwith after the compliance, if the accused is not required to be detained in custody in respect of any other matter, or

(ii) as soon thereafter as the accused is no longer required to be detained in custody in respect of any other matter

and if the justice so endorses the warrant, he shall attach to it a copy of the order.

Discharge from custody

(2) Where the accused complies with an order referred to in paragraph (1)(b) and is not required to be detained in custody in respect of any other matter, the justice who made the order or another justice having jurisdiction shall, unless the accused has been or will be released pursuant to an authorization referred to in that paragraph, issue an order for discharge in Form 39.

Warrant for committal

(3) Where the justice makes an order under subsection 515(5) or (6) for the detention of the accused, he shall issue a warrant for the committal of the accused.
R.S., 1985, c. C-46, s. 519; R.S., 1985, c. 27 (1st Supp.), s. 85.

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Unendorsed Warrant

Under s. 503, an officer arresting someone on a warrant may either detain them in custody to be brought to a justice within 24 hours or, release the person "conditionally" on a promise to appear or recognizance.

Definitions

Definitions

493 In this Part,
"accused" includes

(a) a person to whom a peace officer has issued an appearance notice under section 496, and

(b) a person arrested for a criminal offence; (prévenu)

"appearance notice" means a notice in Form 9 issued by a peace officer; (citation à comparaître)
...
"officer in charge" means the officer for the time being in command of the police force responsible for the lock-up or other place to which an accused is taken after arrest or a peace officer designated by him for the purposes of this Part who is in charge of that place at the time an accused is taken to that place to be detained in custody; (fonctionnaire responsable)
"promise to appear" means a promise in Form 10; (promesse de comparaître)
"recognizance", when used in relation to a recognizance entered into before an officer in charge, or other peace officer, means a recognizance in Form 11, and when used in relation to a recognizance entered into before a justice or judge, means a recognizance in Form 32; (engagement)
"summons" means a summons in Form 6 issued by a justice or judge; (sommation)
"undertaking" means an undertaking in Form 11.1 or 12; (promesse)
"warrant", when used in relation to a warrant for the arrest of a person, means a warrant in Form 7 and, when used in relation to a warrant for the committal of a person, means a warrant in Form 8. (mandat)
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.

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See Also

• Release by Police (Until December 18, 2019)