QUEEN'S BENCH BAIL PROCEEDINGS

Transcription

1 QUEEN'S BENCH BAIL PROCEEDINGS ).These materials were prepared by Jay Watson,of Cuelenaere, Kendall, Katzman, Watson & Hagen law firm Saskatoon, Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar,criminal Law Essentials; May

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3 Queen's Bench Bail Proceedings Only the Court ofqueen's Bench may release an accused pending trial for offences listed in Section 469 of the Criminal Code. In addition to murder, the most significant offences listed in 469 are piracy and alarming Her Majesty. Section 522 of the Code sets out the procedure and the onus in these circumstances is upon the accused to show cause why their remand and custody is notjustified. Queen's Bench Bail Review Where an accused has been remanded in custody for a charge other than one listed in Section 469, an application for a review ofthe remand order can be brought to the Court of Queen's Bench under Section 520 of the Code. The review application should be brought by a Notice ofmotion and the Crown must be provided with at least two clear days notice. Section 650 of the Code requires the accused be present at trial although provision is now made for video linkup. Although the wording of Section 520 seems to provide for a review in the absence of the accused generally the accused should be present. Presumably, counsel bringing the application will have some hope of success and it is much simpler to have your client present and in a position to sign the sought-after undertaking or recognizance. Thus, when bringing your review application, defence counsel should remember to make sure arrangements are made to have the accused produced for Court. Defence counsel should also arrange for a transcript of the show cause hearing to be prepared and filed for the hearing. Although Section 520(7) does not, strictly speaking, require the filing of the show cause hearing transcript, it would be quite exceptional to convince the reviewing judge to proceed in the absence ofthe show cause hearing transcript. Generally, a review under Section 520 is considered to be a process somewhere between a hearing de novo and an appeal based on the record ofproceedings before the initial justice. Due consideration must be given to the initial order ofthe justice, but it is typically conceded that the reviewing judge is entitled to substitute their own discretion. R. v. Carriere (1979) 51 c.c.c. 2d (307 Man.Ca.)

4 Counsel needs to also keep in mind that Section 520(7)(e) sets out that the onus is on the accused on a review hearing to show cause in order to vacate the initial order, allow the review application and then grant judicial interim release under Section 515 of the Code. In presenting argument on a bail review, counsel should be prepared to present argument as to why, in counsel's view, the initial remand order was in error and further, present argument as to why the judge should exercise their discretion in favour of granting judicial interim release. In practical terms, a review does provide the remanded accused with a second chance at obtaining release. To improve the applicant's chances, it is advisable to, if possible, present an improved proposal to the Court. Counsel should review the reasons ofthe initial justice and try to address any concerns reflected in those reasons. Further, ifa more stable residence, an employment opportunity, programming or other measures can be put in place to address concerns on secondary ground, you will be providing the judge on review with a better proposal and thus increasing the likelihood of convincing this judge to grant interim judicial release. Any evidence to be put before the Court should be by affidavit. The applicant should set out the facts in support oftheir application. The criminal record, if any, should be included as an exhibit. Counsel should be very reluctant to put the cogency of the Crown's case in issue through the accused's affidavit. Ifthe application for review is unsuccessful, another application cannot be launched for at least 30 days.

5 CANADA PROVlNCE OF SASKATCHEWAN Q.B.C. No. OF A.D IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JONES, AND: APPLICANT HER MAJESTY THE QUEEN, RESPONDENT NOTICE OF MOTION FOR APPLICATION FOR REVIEW OF DETENTION ORDER TAKE NOTICE that an application will be made by counsel on behalf of the Applicant, JONES, before the Presiding Judge in chambers at the Court of Queen's Bench, 520 Spadina Crescent East, Saskatoon, Saskatchewan on Tuesday, the day of,a.d at the hour of 2:000'clock in the afternoon or so soon thereafter as counsel can be heard on behalf of the Applicant for the following: (1) An Order pursuant to the provisions of Section 520 and 515 of the Criminal Code vacating the Order made at Saskatoon, Saskatchewan on the day ofaugust, A.D by His Honour Judge,pursuant to the provisions of Section 515(5) of the Criminal Code whereby the said Jones was ordered to be detained in custody until he is dealt with according to the law and respect to the informations sworn against Jones, and substituting therefore an Order of this court releasing the said Jones from custody pending his trial upon the said charges or for such further or other order as this Honourable Court deems just.

6 AND FURTHER TAKE NOTICE that in support of such application can be read this Notice ofmotion with proof of service, Information Numbers, the Affidavit of Jones with proof of service, transcript of a show cause hearing held on with proof of service, and such further and other materials as counsel may advise and this honourable court may permit. AND FURTHER TAKE NOTICE that it is the intention ofcounsel to proceed upon the previous mentioned materials, all filed, and by way of oral submissions by counsel. AND FURTHER TAKE NOTICE that the Applicant, Jones, requests that he be present at the hearing of this application. of September, A.D DATED at the City of Saskatoon, in the Province of Saskatchewan, this day CUELENAERE, KENDALL, KATZMAN, WATSON & HAGEN Per: Solicitor for the Applicant JONES This Notice of Motion was delivered by: CUELENAERE, KENDALL, KATZMAN, WATSON & HAGEN Barristers and Solicitors # , Fourth Avenue South Saskatoon SK S7K 1M8 Address for service: Lawyer in charge: Telephone Number: Facsimile Number: same as above (306) (306)