Federal Law 9 Methods of Release - Peace Officer PDF

www.opcva.ca Federal Law 9 Methods of Release – Peace Officer Version: BCT Federal Law | January 2022SL © Queen's Printer for Ontario, 2018 S. 495(1)(a) C.C. states that a peace officer may arrest without warrant: • A person who has committed an indictable offence • A person who on reasonable...

www.opcva.ca Federal Law 9 Methods of Release – Peace Officer Version: BCT Federal Law | January 2022SL © Queen's Printer for Ontario, 2018 S. 495(1)(a) C.C. states that a peace officer may arrest without warrant: • A person who has committed an indictable offence • A person who on reasonable grounds, he believes has committed OR • is about to commit an indictable offence 2 S. 495(1)(b) C.C. states that a peace officer may arrest without warrant: A person whom he finds committing a criminal offence. 3 S. 495(2) C.C. states that a peace officer shall not arrest a person without warrant if P.R.I.C.E. is satisfied for: • S. 553 Indictable • Dual Procedure • Summary Conviction Offence 4 There are 6 steps to a lawful arrest: 1. 2. 3. 4. 5. 6. Identify yourself Tell the person they are under arrest Tell the person the reason for the arrest Take physical control Inform the person of Rights to Counsel Ensure the person understands the reason for arrest & rights 5 The purpose of a Primary Caution given to a person arrested for an offence is to: Comply with the Judges Rules regarding the admissibility of an accused’s statement; it assists in proving the voluntariness of a statement. 6 The purpose of a Secondary Caution given to a person arrested for an offence is to: Remove minor inducements 7 An officer can release a person unconditionally: At any time 8 A peace officer’s limitations to arrest state that a peace officer shall not arrest where P.R.I.C.E. has been met. P.R.I.C.E. stands for: • • • • • Public Interest Repetition of the offence Identity of accused Court attendance Evidence 9 When articulating reasons for arrest, a peace officer can follow the PIC acronym which stands for: Prevent the continuation Investigate further Court attendance 10 Objectives To demonstrate an understanding of and an ability to articulate the methods of release available to a peace officer 11 Release You’ve Made the Arrest - Now What? 12 Release S. 498(1.1) C.C. A peace officer shall not release a person 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 13 Release Section 498(1.1) C.C. Public Interest • Protect the public and community • Protect the accused and victim • Protect property • Prevent breach of the peace P.R.I.C.E.S. Repetition or continuance Identity Court Evidence Safety and Security of Victim/Witness 14 Release Principle of Restraint S. 493.1 Decision regarding release by a peace officer, justice or judge: • • • • Primary consideration to release the accused at the earliest opportunity Least onerous conditions that are appropriate in the circumstances Conditions must be reasonable for accused to comply with Peace officer must take into consideration the grounds under S.498(1.1) (PRICES) and 515(10) continued….. 15 Release Aboriginal Accused or Vulnerable Population S. 493.2 Particular attention shall be given to: • Aboriginal Accused and • Vulnerable population that is overrepresented in the criminal justice system that is disadvantaged in obtaining release 16 Methods of Release by a Peace Officer Ladder Approach Undertaking to a Peace Officer Appearance Notice / Summons Unconditional Release 17 Methods of Release S. 498(1) C.C. …if a person has been arrested without warrant for an offence, other than one listed in section 469, not taken before a justice or released from custody under other provisions the Peace Officer shall, as soon as practicable release the person, if a) intends to compel their appearance by way of a summons; b) issues an Appearance Notice to the person; OR c) person gives an undertaking to the peace officer 18 Methods of Release Compelling someone to Court - Criminal Summons - s. 498 (1) C.C. • S. 498(1) and s. 498(1.1) C.C. states that a Peace Officer who arrests a person may compel their appearance to court by way of a criminal summons once PRICES has been satisfied; • A criminal summons may also be issued to a person where there exists no authority to arrest w/o warrant i.e. Peace Officer did not find committing a summary conviction offence, • Criminal summons may also be issued after an investigation is complete and no reason for an arrest exists • A criminal information must be sworn to first to have a summons issued 19 Methods of Release Appearance Notice Form 9 S. 497 C.C. If a peace officer does not arrest due to the limitations in s. 495(2) (PRICE) then an appearance notice may be issued for: a) An indictable offence mentioned in 553 b) A dual procedure offence c) A summary conviction offence 20 Method of Release Appearance Notice Form 9 For a summary conviction offence only, it is found committing for the issuance of an appearance notice, however a peace officer can consider an undertaking after taking the principles of restraint into consideration. If not found committing, to compel court appearance use a criminal summons process – Information sworn to followed by a criminal summons 21 Form #9 Appearance Notice s. 500 C.C. Contents of an Appearance Notice • Name/DOB/Contact Information • Substance of Offence – must set out statute (i.e CC 266 Assault) • Date/Time/Place to attend court • Indicate if accused required to attend at a judicial referral hearing • Accused shall be requested to sign in duplicate, whether they sign or not one of the duplicates shall be given to them – fail/refuse to sign does not invalidate the appearance notice Cannot attach any conditions to an appearance notice 22 23 24 Judicial Referral Hearing S. 496 C.C. Appearance Notice for Judicial Referral Hearing • Reasonable Grounds • Failed to comply with Summons, Appearance Notice, Undertaking, Release Order or • Failed to attend court as required • Did not cause a victim physical/emotional harm/property damage/economic loss • MAY without laying a charge • Issue an appearance notice for a judicial referral hearing under s.523.1 CC Continued…. 25 Judicial Referral Hearing S.523.1 C.C. This allows police to refer an accused to a hearing if: A condition of release has been breached Failed to attend court or for fingerprints WHEN There has been no harm caused to the victim, property damage or economic loss Judge or Justice has various options – take no action, cancel the release(s) and issue a new one or detain the accused, or remand the accused into custody for the purposes of Identification of Criminals Act Continued…. 26 Judicial Referral Hearing S.523.1 C.C. Consider all other options before referring to a Judicial Referral Hearing Exercise discretion when investigating failures to comply and to appear Consider: • Not laying a charge • Laying a criminal charge If you decide to refer the matter for a Judicial Referral Hearing issue an appearance notice. This is not available for breaches of probation or other dispositions 27 Methods of Release Undertaking – s. 498(1)(c) C.C. Form 10 • Peace Officer • Where person has been taken into custody • 498(1.1) is satisfied (PRICES) • Release on an undertaking (Form 10) 28 Methods of Release Contents of an Undertaking – s. 501 C.C Must include: • Name, date of birth and contact information of the accused • Substance of offence alleged to have been committed – must include statute and section number • Summary of subsections 145(4) and (6), sections 512 and 512.2 and subsection 524(4) • Must have mandatory condition accused attend court at the time and place stated in undertaking 29 30 Methods of Release Contents of an Undertaking – s. 501(3) C.C Any other additional conditions : • • • • reasonable in the circumstances necessary to ensure court attendance, safety/security victim/witness prevent continuation/repetition Remember Principles of Restraint – least onerous and must justify why you set those conditions in your notes. 31 Methods of Release Contents of an Undertaking – s. 501(3)(a)-(h) C.C • Report at specified times to peace officer/specified person • Remain within specified territorial jurisdiction • Notify peace officer/specified person change in address/employment/occupation • Abstain communicating directly/indirectly with any victim/witness/other person identified, except with any specified conditions • Continued…. 32 Methods of Release Contents of an Undertaking – s. 501(3)(a)-(h) C.C • Abstain from going to any place/geographic area related to any person, except specified conditions • Deposit all their passports with peace officer/specified person • Reside at specified address/ be there at specified hours/present themselves at entrance to peace officer/specified person at their request during those hours • Firearms/weapons/authorizations/licence/registration turned in to peace officer/specified person 33 Methods of Release Undertaking s. 501(3)(i) Additional Conditions: Promise to pay an amount specified in undertaking – not more than $500 – if they fail to comply - with any condition of the undertaking 34 Methods of Release Undertaking s. 501(3)(j) Additional Conditions: Deposit with peace officer specified in undertaking • Money/valuable security • Value not to exceed $500 • If at time of undertaking – accused not ordinarily a resident in the Province • OR • Does not ordinarily reside within 200km of the place in which they are in custody 35 Methods of Release Undertaking s. 501(3)(k) Comply with any other specified conditions for ensuring the safety and security of any victim of or witness to the offence. Remember – any conditions you set must be directly related to the circumstances of the offence, justified and reasonable 36 Methods of Release Undertaking s. 501(3)(k) Cannot impose conditions such as: • • • • Keep the Peace and be of Good Behaviour Not to associate with persons with a known criminal record Not to possess cell phones Not to possess tools (B&E) Unless they are necessary to ensure the safety and security of any victim/witness AND are reasonable and necessary 37 Methods of Release Undertaking s. 501 (6) C.C. • • • • An accused shall be requested to sign in duplicate their undertaking whether or not they comply with that request one of the duplicates shall be given to them. If they fail or refuse to sign - lack of their signature does not invalidate the undertaking 38 Methods of Release Final Reminders Compelling Someone to Court • Swear to a Criminal Information before a Justice then a Criminal Summons will be issued to compel a person to court Types of Releases Available to Peace Officers • Appearance Notice – Form 9 (cannot attach conditions) • Undertaking – Form 10 39 Methods of Release Final Reminders Record why you decided to release • What principles did you consider? • What risks you perceived? • How did the conditions you impose mitigate those risks? You may be called to give evidence in court or at an inquest to explain your decisions - make sure you have good notes 40 A shoplifter has been arrested by Home Depot store security for the offence of Theft Under $5,000. You have attended and determined that P.R.I.C.E. has been satisfied. To compel this person to court, you may: Issue an appearance notice or Swear a criminal information and serve a summons 41 Homework Assignment Federal Law 9 workbook questions Federal Law 9 OPCVA quiz questions 42