ARREST AND RELEASE Douglas G. Curliss Department of Justice (Canada) 10 th Floor, 123 2 nd Avenue South Saskatoon, SK S7K 7E6 Revised 2003 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.
Saskatchewan: Bar Admission Program ACKNOWLEDGEMENT This paper was prepared by Douglas G. Curliss, Department of Justice (Canada); Prairie Region, Saskatoon Office, for the Saskatchewan Bar Admission Program. The views expressed are those of the author and not necessarily those of the Department of Justice (Canada). Revised May 2004 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.
Saskatchewan: Bar Admission Program i TABLE OF CONTENTS I. ARREST... 1 A. DEFINITION... 1 B. AUTHORITY TO ARREST... 1 C. ARREST WITHOUT WARRANT... 1 D. LIMITATIONS ON ARREST WITHOUT WARRANT... 3 E. ARREST WITH WARRANT... 4 1. Public Interest Warrants... 4 2. Bench Warrants... 4 3. Witness Warrants... 4 F. PLACE OF ARREST... 5 G. PHOTOGRAPHS AND FINGERPRINTS... 7 II. RELEASE... 8 A. RELEASE BY THE POLICE... 8 B. RELEASE BY A JUSTICE...10 1. Jurisdiction, Powers and Duties of the Justice...10 2. The Show Cause Hearing...11 3. Factors of Bail...14 C. BAIL DURATION...15 D. BAIL REVIEW...16 REFERENCES...17 Revised May 2004 Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.
Saskatchewan: Bar Admission Program 1 I. ARREST A. DEFINITION An arrest is the taking charge of a person through personal contact and clear implication by words or actions that the individual is under arrest and no longer free to leave or the submission either expressly or implied to the custody of the officer. (R. v. Whitfield (1971), C.C.C. 129 S.C.C.) B. AUTHORITY TO ARREST Generally speaking there is no power of arrest in anyone without lawful authority (statutory or common-law) and reasonable grounds. The authority to arrest comes from specific statutes (e.g., sections 31, 494, 495 and 524(2) of the Criminal Code, sections 15, 20 and 52 of The Summary Offences Procedure Act, 1990; section 143 of The Alcohol and Gaming Regulation Act, 1997; section 48 of The Wildlife Act, 1998 or the common law (e.g., to prevent a breach of the peace). The common law in this area continues to develop with the recognition of an authority to detain briefly for investigative purposes on grounds less than could justify an arrest. (R. v. Simpson (1993), 79 C.C.C. 3(d) 482, Ont. C.A., Brown v. Durham (1998), 131 C.C.C. (3d) 1, Ont. C.A., R. v. Jacques (1996), 110 C.C.C. (3d) 1, (S.C.C.), R. v. Mann (2004), S.C.C. 52.) C. ARREST WITHOUT WARRANT The authority to arrest without warrant in the vast majority of cases will be found in sections 494, 495 and 524(2) of the Criminal Code. There is a significant distinction between the authority conferred upon a peace officer and the authority conferred upon a peace officer and the authority conferred upon every citizen (including peace officers) to arrest. Section 494 of the Criminal Code authorizes what is commonly known as a citizen s arrest. It provides: Not to be used or reproduced without permission - Saskatchewan Legal Education Society Inc.
2 Saskatchewan: Bar Admission Program 494. (1) Anyone may arrest without warrant (a) a person whom he finds committing an indictable offence, or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person. (2) Anyone who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. (3) Anyone other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer. R.S. C.C-34, s. 449; R.S. c. 2 (2nd Supp.), s. 5. A peace officer has much broader powers of arrest without warrant. Section 495(1) of the Criminal Code provides as follows: 495. (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the the person is found. Section 524(2) of the Criminal Code provides as follows: 524. (2) Notwithstanding anything in this Act, a peace officer who believe on reasonable grounds that an accused (a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or (b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, may arrest the accused without warrant. Revised 2003
Saskatchewan: Bar Admission Program 3 For purposes of arrest by a citizen or a peace officer, indictable offences include offences punishable by indictment or on summary conviction at the election of the Crown (section 34(1)(a) of The Interpretation Act, R. v. Huff (1979), 50 C.C.C. (2d) 324 Alta. C.A.). D. LIMITATIONS ON ARREST WITHOUT WARRANT Notwithstanding a peace officer s specific powers of arrest, he has a duty not to arrest without warrant as provided in sections 495(2) and 496 of the Criminal Code. They are as follows: 495 (2) A peace officer shall not arrest a person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, 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, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend in court in order to be dealt with according to law. 496. Where, by virtue of subsection 495(2), a peace officer does not arrest a person, he may issue an appearance notice to the person if the offence is (a) an indictable offence mentioned in section 553; (b) an offence for which the person my be prosecuted by indictment or for which he is punishable on summary conviction; or (c) an offence punishable on summary conviction. R.S., c. C-34, s. 451; R.S. c.2 (2nd Supp.), s.5. It should be kept in mind that the public interest is not limited to those items listed and may also include others, e.g., the welfare of the suspect.
4 Saskatchewan: Bar Admission Program Notwithstanding this limitation on arrest, a peace officer is deemed to continue to act lawfully and in the execution of his duties even though he ought not to have arrested a suspect (section 495(3) of the Criminal Code, R. v. Adams (1973), 21 C.R.N.S. 257 Sask. C.A.). Although these provisions justify the vast majority of cases there is other federal and provincial legislation which provide powers of arrest. E. ARREST WITH WARRANT Warrants to arrest may be issued under a variety of provisions in the Criminal Code or The Summary Offences Procedure Act, 1990, section 63.1 and for a variety of reasons. A quick reference to both the section and the reason can be found in form 7 located in Part XXVIII of the Criminal Code. The most common warrants are: 1. Public Interest Warrants Public interest warrants or warrants to apprehend issued by a justice of the peace pursuant to section 507 of the Criminal Code or the Court of Queen s Bench pursuant to section 578 of the Criminal Code. 2. Bench Warrants Bench warrants for failure of the accused to appear in court issued by the Provincial Court pursuant to sections 512 or 524(1) of the Criminal Code or the Court of Queen s Bench pursuant to section 597(1) of the Criminal Code or a justice of the peace pursuant to sections 15(1) or 20(1) of The Summary Offences Procedure Act, 1990. 3. Witness Warrants Witness warrants issued pursuant to section 698(2) of the Criminal Code for a witness who is evading service of a subpoena or who will not attend in response to a subpoena or section 705(1) of the Criminal Code for a witness who has failed to appear in response to service of a subpoena.
Saskatchewan: Bar Admission Program 5 Warrants issued by justices of the peace or provincial court judges are only valid within the territorial jurisdiction of the judicial officer. There are two particularly noteworthy exceptions and that is a Queen s Bench warrant issued under section 597 of the Criminal Code and a youth court warrant issued under section 145 of the Youth Criminal Justice Act. Section 528 of the Criminal Code provides the procedure for having a warrant that is limited to one territorial jurisdiction endorsed by a justice having jurisdiction in the area where the accused is present and thereby extending the warrant. From a practical point of view, warrants are generally not extended until the accused has been arrested in the other territorial jurisdiction and the requesting authorities are prepared to pay the transportation and escort the accused back into their jurisdiction. In that case the initial arrest is pursuant to section 495(1)(a) of the Criminal Code (being an arrest without warrant) and the person arrested is detained in that jurisdiction pursuant to section 503(2) of the Criminal Code until the warrant can be extended in accordance with section 528. A justice of the peace has authority to remand the suspect into custody for up to six days to facilitate extension of the warrant and arrival of the escort from the other jurisdiction. Bail for such a person is not possible without the consent of the prosecutor. Generally speaking all warrants for arrest are entered on CPIC (Canadian Police Information Centre) where they are available to any police force inquiring as to whether there are any outstanding warrants for that particular person. The concept of a warrant being Canada-wide or limited to the Western provinces is based upon the willingness of the requesting authorities to incur the expenses of transporting the suspect back to their territory rather than any legal limitation on the warrant. F. PLACE OF ARREST Generally, no person can enter upon private property without the consent express or implied of the occupants. However, a peace officer can always enter onto private property with implied consent to the same extent as any other person (e.g., visitor, letter carrier, fire fighter) to make
6 Saskatchewan: Bar Admission Program inquiries until asked to leave by the occupant. This is subject to certain limitations where the purpose is to collect physical evidence to further a criminal investigation against the residents. (R. v. Kohesch (1990), 61 C.C.C. (3d) 207 (S.C.C.), R. v. Evans (1994) 104 C.C.C. (3d) 23 (S.C.C.). On May 22, 1997 the Supreme Court of Canada in R. v. Feeney [1997] 2 S.C.R. 13 profoundly changed the common law as it affected the power of arrest in relation to private property. Prior to that decision, the law in this area was governed by the Supreme Court of Canada cases in (Eccles v. Bourque (1974), 19 C.C.C. (2d) 128 S.C.C., R. v. Landry (1986), 50 C.R. (3d) 55 S.C.C., R. v. Miller (1986), 25 C.C.C. (3d) 554 (Sask. C.A.) aff d 39 C.C.C. (3d) 288n.). These cases permitted police officers to enter onto private property against the wishes of the occupier with or without warrant in order to effect the arrest of a person who was liable to arrest and for which there were reasonable grounds to believe they were in the private property. By a 5-4 majority the Supreme Court of Canada in Feeney found that in light of section 8 of the Charter, entries into and searches for the purpose of an arrest of persons in dwelling houses were prohibited without warrant in all but exceptional circumstances. (Interestingly enough there were no such warrants given the state of the law as set out by the Supreme Court of Canada ten years earlier). On December 19, 1997 Bill C-16 was proclaimed into force which amended the Criminal Code and in particular modified and added sections 529, 529.1 through 529.5 and a new form 7.1. The provisions are particularly technical and reference should be had to legislation itself, but in general the new provisions authorize a justice of the peace to issue a warrant to enter a dwelling house where the Justice of the Peace is satisfied by information on oath that there are reasonable grounds to believe that the suspect is or will be present in the dwelling house and either that there already exists a warrant to arrest the suspect or that reasonable grounds exist to arrest the suspect without warrant (section 495 of the Criminal Code). In addition, there is provision for the Revised May 2004
Saskatchewan: Bar Admission Program 7 justice of the peace to authorize the entry of the dwelling house without prior announcement provided that the justice of the peace is satisfied by information on oath that there are reasonable grounds to believe that the announcement would either expose anyone (including the officer) to imminent bodily harm or death or result in the imminent loss or destruction of evidence, however this latter authorization is subject to a requirement that this belief must also be present immediately before entry into the dwelling. The legislation continues to recognize that there may be circumstances in which a police officer may enter a dwelling without warrant. The legislation specifically sets out that this may be done in exigent circumstances which include situations where the officer has reasonable grounds to believe that first obtaining the warrant would expose anyone including himself or herself to imminent bodily harm or death or would result in the imminent loss or destruction of evidence relating to an indictable offence. In addition, both the legislation and Supreme Court of Canada in Feeney recognize a continued authority to enter private premises including a dwelling house to arrest without warrant for an offence where the officer is in hot pursuit of the suspect (see Feeney, supra, and R. v. Macooh (1993), 22 C.R. (4th) 70 (S.C.C)) and in 9-1-1 situations. (R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Klingbell, 2002 SKQB 69, appeal dismissal (Sask. C.A.).) G. PHOTOGRAPHS AND FINGERPRINTS The Identification of Criminals Act provides that law enforcement officials may photograph and fingerprint any person charged with an indictable offence. This includes dual offences (section 34(1)(a) of the Interpretation Act). Generally, fingerprinting and photographing occurs as part of the initial arrest procedure or the accused is obliged pursuant to the provisions of their release Revised May 2004
8 Saskatchewan: Bar Admission Program document and section 501(3) of the Criminal Code to return at a later date in order to be fingerprinted and photographed. This occurs prior to the charge being first presented in the court and the prosecutor electing to proceed by other than indictment. II. RELEASE An accused that has been arrested is going to want their counsel to be very familiar with the most important item on their mind at the time, which is release. You may be very confident that you will be able to ultimately resolve your client s conflict with the law in his or her favour but he or she may have to sit in custody for some weeks or months until that occurs unless he or she is released from custody. A. RELEASE BY THE POLICE The powers and duties of police officers in connection with releasing suspects and compelling their appearance in court are generally found in sections 496 to 498, inclusive, of the Criminal Code and section 49.1 of The Summary Offences Procedure Act, 1990. Where, pursuant to section 495(2) of the Criminal Code, a peace officer does not arrest a person who but for that section could have been arrested, he or she may compel the attendance of that person in court and for the purposes of the Identification of Criminals Act by issuing an appearance notice. In most cases there is an arrest for a short period of time while the peace officer satisfies himself or herself in respect to section 495(2). In such a case the peace officer is obliged by section 497 to, as soon as practicable, release the person either with the intention of compelling the person s appearance at a later date by way of summons or issuing an appearance notice unless further detention is justified for any of the reasons which justified the initial arrest. If terms and conditions are necessary the arresting officer may also release on a promise to appear or a recognizance.
Saskatchewan: Bar Admission Program 9 If the arrested person is not released at the scene, the peace officer will proceed to take him or her to the local lock-up and turn him or her over to the officer in charge. The officer in charge of the lock-up has additional powers and obligations with respect to arrested persons. In addition to the three categories of offences for which the arresting officer could have released the person (an indictable offence set out in section 553 - absolute jurisdiction offences, dual offences and summary conviction offences) section 498 obliges the officer in charge to release those persons plus persons arrested for any exclusively indictable offence that is punishable by up to five years imprisonment. Again the officer in charge considers the same factors in determining whether to release the person. The officer in charge is not limited to issuing an appearance notice or compelling attendance by way of summons but may release a person on their promise to appear or recognizance without sureties in an amount not exceeding $500 without deposit of money or valuable security. However, if the person is not ordinarily a resident of the province or does not ordinarily reside within 200 kilometers of the place in which he or she is in custody the officer in charge may require the deposit of cash or valuable security up to $500. Section 503(2) permits both a peace officer and an officer in charge to impose terms and conditions of release to deal with issues such as a continuation of the offence, or failing to appear in court, addresses, contact with other people, or attendance at certain places (see form 11.1) and section 503(2.2 and 2.3) allows a justice of the peace to amend the terms at or prior to the first appearance in court. At first blush, the obligations on police officers to release the persons they have arrested appear quite broad but it is important to note that they do not oblige the police to release persons arrested without warrant for many common offences such as break enter, theft, fraud, false pretenses over $5,000 or assault causing bodily harm, or trafficking greater than 3 kilograms, because they do not fall within either of the four categories. In such cases the person will be held to appear in provincial court the next morning or if the arrest occurred on the weekend or an evening the police or defence counsel arrange for a lay justice of the peace to attend at the police station to consider release.
10 Saskatchewan: Bar Admission Program B. RELEASE BY A JUSTICE Section 503(1) of the Criminal Code requires that a person arrested with or without warrant be brought before a justice without unreasonable delay and in any event within 24 hours or, if a justice is not available within that time, as soon as possible thereafter. This section has been interpreted to mean that the authorities can detain a person for up to 24 hours before bringing them before a justice for investigative purposes such as line-ups or interrogation. (R. v. Precourt (1977), 36 C.R.N.S. 150 Ont. C.A.) Defence counsel and the Crown prosecutor will usually discuss terms and conditions of release and bail with a view to arriving at some sort of agreement at the accused s first appearance in court. In most cases detention is not required and it is simply a matter of discussing terms such as amounts of bail, residency clauses, no contact clauses or curfew in order to ensure the accused s attendance in court and good behavior before trial. Any agreement reached between counsel is, of course, subject to approval or rejection by the justice who will ultimately decide the issue. From a practical point of view reasonable agreements are generally approved. If, however, an agreement cannot be reached and approved it will be necessary to hold a show cause hearing. 1. Jurisdiction, Powers and Duties of the Justice Section 515 of the Criminal Code deals with release of an arrested person by a justice of the peace. The section requires the justice to release the person on an undertaking without conditions unless any of the following exist: (a) The prosecutor asks for an opportunity to show cause why the accused should not be released in which case they are entitled to an adjournment with the accused being remanded into custody for a period not exceeding three clear days. (section 516). (b) The accused is in what is commonly called a reverse onus situation. This usually occurs in one of the situations set out in section 515(6) which includes persons charged with indictable offences alleged to have been committed while they were at large awaiting trial for other
Saskatchewan: Bar Admission Program 11 indictable offences; persons charged with an indictable offence when they are not ordinarily resident within Canada; persons charged with offences under section 145(2) to 145(5) while out on bail or persons charged with life imprisonment offences of trafficking, possession for the purpose of trafficking, exporting or importing under the Controlled Drugs and Substances Act. In these cases the justice of the peace is required to detain the person unless the accused shows cause why their detention is not justified. (c) The person is charged with an offence mentioned in section 469 of the Criminal Code (most commonly murder). In this case the justice is required to remand the person in custody and if the accused wishes to be released they must apply to a Court of Queen s Bench and show cause why they should not be detained in custody. The provisions of the Criminal Code establishing the reverse onus procedure have been challenged with mixed success. (R. v. Bray (1983), 2 C.C.C. (3d) 325 (Ont. C.A.) - valid; R. v. Pugsley (1983), 2 C.C.C. (3d) 266 N.S.C.A. - invalid; s. 515(6)(d) in R. v. Pearson (1992), 97 C.C.C. (3d) 124 (S.C.C.) - valid; and s. 515(6) (a) & (d) in R. v. Morales (1992), 77 C.C.C. (3d) 91 (S.C.C.) - valid.) 2. The Show Cause Hearing Section 515(2) of the Criminal Code sets out the various requirements for release with each successive subsection containing more onerous requirements than the previous. In theory the Crown in seeking any particular order or ultimately detention must show cause why a less onerous release should not apply (section 515(3)). However, as already indicated, many of the conditions that are commonly requested are agreed upon by counsel and routinely included as a term of release. It is usually only in cases where the Crown is opposed to release on any terms or conditions and seeks detention of a person pending trial that a show cause hearing is ultimately held. At the show cause hearing, the accused is entitled as of right to an order banning publication of the evidence, information or representations of counsel pending final disposition (section 517).
12 Saskatchewan: Bar Admission Program The rules of evidence are greatly relaxed for a show cause hearing and the justice will generally consider any relevant matters agreed upon by the prosecutor and the accused s counsel or any other evidence considered credible or trustworthy (section 518). Typically in this jurisdiction the prosecutor makes representations to the justice based upon the information contained in the investigation report describing the circumstances of the offence and outlining the various pieces of evidence and testimony linking the accused to the offence. The accused or their counsel could withhold consent for this type of procedure and the justice would be precluded from considering this type of evidence. (R. v. Bell (1982), 14 Sask. R. 355 Sask. C.A.) It is important to note, however, that by consenting to the procedure the defence is not acknowledging that the allegations against the accused are true but rather that the contents of the investigation reports as outlined by the prosecutor is the evidence which, in fact, exists. One must also keep in mind that the effect of refusing consent to the procedure will not force the Crown to actually present the case at that time. The likely result will be a further day or two of remand for the accused so that the investigating police officer can attend and give evidence under oath as to the result of the investigation. The justice is entitled to receive this evidence on the basis that it is considered credible or trustworthy and therefore admissible (even though hearsay) at this stage. In addition to the representations as to the circumstances of the offence and the evidence available the prosecutor will also file with the court a copy of the accused s criminal record. Again this is generally done by consent with the accused, of course, first acknowledging that the information on the record is indeed their criminal record. This is almost always done as police summaries of criminal records (CPIC) are very accurate and the effect of disputing them is again generally a further remand so that the Crown has an opportunity to call the police to prove it again by evidence considered credible or trustworthy by the justice. The defence case on bail hearings is also almost invariably presented through the representations of counsel which are again subject to the consent of the Crown counsel. Generally defence counsel will advise the court of the history and personal circumstances of the accused with a view to demonstrating that there is no need to either detain the accused or impose onerous
Saskatchewan: Bar Admission Program 13 conditions upon them to ensure their attendance in court or good behaviour including abiding by the law and not interfering with the administration of justice. It is important that defence counsel discuss the terms and conditions of bail with their client including money available for cash deposit and potential sureties so that they are in a position to suggest to the justice conditions which they feel will be appropriate release conditions but which their clients are also prepared to meet. At the conclusion of the hearing or before any agreement of counsel the justice may order a bail verification report. This option is available in the major cities in Saskatchewan under the Bail Verification and Supervision Program which has been established in order to assist the justice in determining the appropriate terms and conditions of release. This option is usually turned to in cases where the accused is just under or over the borderline for detention. Once a bail supervision report has been requested the show cause hearing will be adjourned for two days while the bail supervision officer assesses the suitability of the accused for release and prepares a report for the justice. The report will include a final recommendation with respect to release with or without conditions or detention. At the conclusion of the bail hearing the justice will decide whether to detain the accused pending trial or release them with or without conditions. The options available are: (a) (b) an undertaking with or without conditions; and a recognizance with or without conditions, cash deposit or sureties (this latter only where the Crown and defence agree). The conditions are set out in sections 515(2), (4), (4.1), (4.2) and (12). The latter permits the justice to impose certain terms even where bail is denied. This covers items such as prohibiting the accused from contacting the complainant or witnesses. Of note is that section 4.1 requires certain prohibition orders be made a term of bail for charges concerning violence, harassment and drug trafficking unless the justice is satisfied otherwise. Revised May 2004
14 Saskatchewan: Bar Admission Program A recognizance is an acknowledgment of indebtedness to the Crown which indebtedness becomes due and payable upon the failure of the accused to perform any of the conditions in the recognizance including failure to appear in court or keep the peace. A surety is a person who is prepared to guarantee that the accused will abide by all of the conditions of the recognizance and is liable to an indebtedness or loss of property posted should the accused not abide by all of the conditions. The party who carries the obligation to show cause is obliged to do so on a balance of probabilities. (R. v. Julian (1972), C.R.N.S. 227 N.S.S.C.) 3. Factors of Bail Section 515(10) sets out the three grounds which justify the ultimate detention of the accused or successively more onerous terms of release. The first ground is that detention is necessary in order to ensure that the accused will attend court. This will involve a consideration of factors such as whether the accused has a fixed place of residence and if so for what length of time, employment status, marital and family status, previous convictions for failing to appear or breach of court orders and the cogency of the Crown s case. (R. v. Powers (1972), 20 C.R.N.S. 23 Ont. H.C.) The second ground justifying detention is that it is necessary for the protection and safety of the public having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice. For this ground the prosecution generally relies upon the accused s criminal record or any conduct by the accused which could interfere with the administration of justice. With respect to the criminal record the justice of the peace will consider the number of convictions, how recent they are, their frequency, the type of offences including breach of court orders and any revocation of parole or mandatory supervision. Note that the public interest component has been struck down as a Charter violation. (R. v. Morales, supra) Revised May 2004
Saskatchewan: Bar Admission Program 15 The third ground is any other just cause and includes but is not limited to maintenance of confidence in the administration of justice having regard to all of the circumstances including the apparent strength of the prosecution case, the gravity of the offence and the circumstances surrounding its commission and the potential for a lengthy term of imprisonment. It remains to be seen, the exact impact of this last and additional ground of bail, but it is at least arguable that the accused has to either meet or respond to this particular ground and bail is made somewhat more difficult. (See R. v. Hall, 2002 S.C.C. 64.) C. BAIL DURATION Section 523(1) provides that the appearance notice, promise to appear, summons, undertaking or recognizance continues in force until completion of the trial. If the trial ends in conviction and sentencing is to take place at a later date, they also continue in force until that time. Once bail has been set the prosecutor may wish to lay new charges in addition to or in substitution for the initial charge. Section 523(1.1) of the Criminal Code provides that where the new information charges the same or an included offence, the original order or process applies to it. However, if the accused is not in custody when the new information is presented and it charges something other than the same or included offence, the court has no jurisdiction to make a bail order on the substituted information. (R. v. Villebrun (1985), 36 Sask. R. 149 Sask. Q.B.) Keep in mind that once terms and conditions of bail have been set they cannot automatically be changed (section 523(2)). Prior to the conclusion of the prosecution, bail may be cancelled or terminated either by a surety applying to court to be relieved of that responsibility under section 766 of the Criminal Code or by an accused breaking his recognizance either by committing a further offence or failing to comply with one of the terms and conditions of the release document under section 145(3) or 524 of the Criminal Code. Keep in mind that once bail has been breached, the original cash deposit may not be available for a second bail (see R. v. Cattleman, [1995] A.J. No. 845 (Alta. Q.B.)).
16 Saskatchewan: Bar Admission Program D. BAIL REVIEW If the defence counsel or Crown counsel are dissatisfied with the order made by the justice they are entitled to apply for a bail review. Sections 520 and 521 of the Criminal Code set out the procedure for a bail review in Queen s Bench. The exact nature of the review remains controversial with some authorities holding that the hearing is in the nature of a hearing de novo and others holding that it is strictly appellate in nature and the onus rests upon the applicant to demonstrate a reversible error. In practice this uncertainty seldom presents a problem because the reviewing judge may consider additional evidence or exhibits and most Queen s Bench judges appear willing to exercise their discretion on the evidence before them without pointing to any specific errors in the court below. For a good review of the law of bail review see R. v. Smith, 2003 SKCA 8. An application for bail review pursuant to these sections is made in Queen s Bench chambers by notice of motion with supporting material. The supporting material should include the original charge upon which the order was made and a transcript of the show cause hearing before the justice. The transcript can be obtained by requesting the Clerk of the Court to forward the tape recording to the Transcript Co-ordinator for transcription. There is no limit to the number of review applications that can be made but a new one can only be made upon the expiration of 30 days from the date of the previous decision without leave. From a practical point of view successive applications are probably pointless unless there is a material change in the circumstances. There are additional avenues of review under section 523(2) of the Criminal Code. An application may be made to the Court or judge before whom the accused is being tried or is to be tried or the justice presiding at the preliminary inquiry in relation to the offence (other than an offence set out in section 469 of the Criminal Code). For the vacating of any order previously
Saskatchewan: Bar Admission Program 17 made, the applicant will, of course, have to show cause why the original order should be vacated. In addition, section 523(2)(c) provides that where the prosecutor and the accused consent the matter of the bail may be reopened before any Provincial Court judge or where the matter is covered by section 469, any superior court judge. In addition to review upon application there is a provision for an automatic review of detention where the person s trial has not commenced in the case of an indictable offence within 90 days from the date of the first appearance before a justice or in the case of an offence prosecuted by summary conviction within 30 days of that date. (section 525). This automatic review does not apply to persons charges with offences listed in section 469 of the Criminal Code or who are required to be detained in custody on other matters (e.g., serving prisoners). In accordance with this particular provision the authorities at remand centres in the province will notify the nearest Local Registrar of prisoners that they hold that fall within these provisions. A Queen s Bench judge will fix a date for the hearing of the review and the prosecutor and the defence counsel and the accused are notified of the particulars. REFERENCES: 1. Martin s Annual Criminal Code - Part XVI - Compelling the Appearance of the Accused before a Justice and Interim Release. 2. Criminal Pleadings and Practice in Canada (2d) by Ewaschuk - Chapter 5 Arrest, and Chapter 6 - Release from Custody.