Police Procedures to Compel Attendance in Court PDF

Police Procedures to Compel Attendance in Court When the police determine that a person is to be charged with a criminal offence, there are different procedures to compel that person’s appearance in court, depending on the circumstances: When the person is not arrested, issuing an appearance no...

Police Procedures to Compel Attendance in Court When the police determine that a person is to be charged with a criminal offence, there are different procedures to compel that person’s appearance in court, depending on the circumstances: When the person is not arrested, issuing an appearance notice or summons for court; When the person is arrested, release by the officer on an appearance notice, summons, or undertaking; When the information is laid first, the issuance of a summons or arrest warrant for the person; or When the person is arrested and not released by the arresting officer, bringing them before a justice. REMEMBER RICE Factors: Repetition - Of the offence Identity - Of the accused Court - Likelihood of accused appearing in courts Evidence - Protetion of Evidence  Police Procedures to Compel Attendance in Court When There Is No Arrest As discussed in Chapter 3, pursuant to section 495(2) of the Criminal Code, a peace officer may not arrest a person for a summary conviction or hybrid offence when the public interest would be satisfied without the need to arrest the person. If there are no RICE concerns, the peace officer must not arrest the accused and may issue an appearance notice to the person to compel their attendance in court pursuant to section 497 of the Code. An appearance notice sets out the name of the accused, the offence, the date and time of the court appearance, the courtroom number, and the court location. For a hybrid or indictable offence, the appearance notice sets out the date, time, and location that the accused must attend for fingerprinting. The notice indicates that failing to attend court or failure to attend for fingerprinting is an offence pursuant to section 145(3) of the Code, with the penalties listed in the same section. The notice contains the date and location of issue, and it must be signed by the peace officer and the accused.  Police Procedures to Compel Attendance in Court When a Person Is Arrested Without a Warrant and Released by the Officer Without Conditions Pursuant to section 497(1)(a) or (b) of the Code, a peace officer must release a person charged with a hybrid or summary conviction offence on a summons or an appearance notice where the public interest would be satisfied without the need to continue to hold the accused in custody. Factors for the peace officer to take into account in determining whether the public interest would be met include the RICE factors or if there is a need to ensure the safety and security of any victim or witness to the offence. When the person is released on an appearance notice or a summons, no conditions are placed on the accused other than to attend court and attend for fingerprinting. Similar to the information contained in an appearance notice, a summons must set out the charge, the date and time of the court appearance, the courtroom number, and the court location. If it is a hybrid or indictable offence, the summons must include the date, time, and location where the accused needs to attend for fingerprinting. The consequences for failing to comply with a summons, along with the penalties, are also set out. A summons must be endorsed by a justice of the peace or a judge.  Police Procedures to Compel Attendance in Court When a Person Is Arrested Without a Warrant and Released by the Officer With Conditions When a person is arrested without a warrant for a hybrid or a summary conviction offence and there are no reasonable grounds to believe that the public interest would not be met by releasing them, the police have the discretion to release the person on a form of release with conditions attached. Pursuant to section 498(1)(c) of the Code, the peace officer may release the person on the person entering into an undertaking before a peace officer.  Judicial Interim Release When a Person Is Brought Before a Justice Under section 498(1.1) of the Criminal Code, where the peace officer has reasonable grounds to believe that a RICE concern exists or that the person will fail to attend court if released from custody, then the peace officer shall not release the person. When a police officer is not satisfied that the public interest may be met by releasing an accused person on a form of release, they must take the person before a justice within 24 hours of the arrest pursuant to section 503(1)(a) of the Code; when a justice is not available within 24 hours, this must occur as soon as possible, pursuant to section 503(1)(b). During this time period, if the police officer believes the person should be released, they must do so on a form of release as discussed above, either with or without conditions. Section 502.1 of the Code permits an accused to appear before a justice by way of audioconference or videoconference, as long as the arrangements are made in advance and are satisfactory to the justice. Similar sections also permit witnesses, other participants, and even the justice to appear by way of audioconference or videoconference at the justice’s discretion. The technological means must be satisfactory to the court.  Judicial Interim Release When a Person Is Brought Before a Justice Failure to bring an accused person before a justice within 24 hours of arrest (where a justice is available) constitutes arbitrary detention under sections 9 and 10(c) of the Charter. Section 10(c) of the Charter provides that an accused person has the right “to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” Section 11(e) of the Charter provides for the accused’s right not to be denied reasonable bail and is a procedural right that “entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.”  Judicial Interim Release Release with or Without Conditions Section 515 and subsequent sections of the Code deal with judicial interim release. Judicial interim release - Commonly referred to as a show cause hearing or a bail hearing, a process whereby the Crown must show cause why continued detention of the accused in custody is justified. The accused does not have to enter a plea at this stage, nor does the Crown have to make a formal election as to how to proceed on the charge. The only consideration is whether or not the accused should be released on bail. An accused person may be physically transported to the courtroom by police or sheriff’s officers for the hearing, or the justice may allow the accused to appear by any suitable telecommunications device, such as closed-circuit television or videoconference. Section 515(1) of the Code requires the accused to be released on a release order without conditions unless the Crown is able to show cause why the accused should be detained in custody or why a different order should be made. The rationale behind this section is twofold: (1) the accused person is presumed innocent until proven guilty according to law, and (2) every accused person has the right not to be denied reasonable bail without just cause. These are rights guaranteed under sections 11(d) and (e) of the Charter, and they apply to bail hearings.  Judicial Interim Release Release with or Without Conditions In the related case of R v Tunney, Justice Di Luca criticized the bail system for its overreliance on the use of sureties. Justice Di Luca pointed out that the reliance on sureties has become nearly automatic, resulting in significant delays in the bail system as well as a waste of court time and resources in approving them. The reasonableness of bail conditions imposed on the accused was considered by the Supreme Court of Canada in the case of R v Zora.  Judicial Interim Release Release with or Without Conditions Figure 4.2 outlines the forms of release that a justice may consider, from least onerous to an order of detention.  Show Cause Hearing An accused person is entitled to a show cause hearing on the first court appearance before a justice if they so desire. By way of disclosure, the accused’s legal representative will be provided with a police narrative of the details and with the accused’s criminal record. Sometimes additional disclosure is available, such as victim and witness statements or police officers’ notes. The accused may wish to adjourn the matter for further disclosure before applying for judicial interim release. Under section 516 of the Criminal Code, the justice presiding over the bail or judicial interim release hearing may grant an adjournment of no more than three days at the request of either the defence or the prosecution. The request for the adjournment may be based on: The Crown requesting the police to conduct a further investigation, The laying of additional charges, Obtaining additional particulars of the offence, Bringing forward pending charges for which the accused has already been released on bail. The accused’s counsel needing time to gather the evidence and; Witnesses needed to persuade the justice to release the accused. The justice may grant a longer adjournment, but only with the accused’s consent. During the period of the adjournment, the justice may order the accused not to contact or communicate with any victims, witnesses, or other specified persons.  Show Cause Hearing If the Crown is able to show cause why the detention of the accused is justified, the justice must order the accused to remain in custody until the matter is dealt with, either by way of a guilty plea, a trial, or at a bail review proceeding in Superior Court. If the justice makes an order of detention, it must be followed with a statement of the reasons for making such an order. This is particularly important if the accused wishes to appeal the order of detention. In R v Myers, the Supreme Court of Canada had to decide when accused persons are entitled to have their detention reviewed under section 525 of the Code. Section 525(1) states that for indictable offences an accused is entitled to a review of their detention after 90 days, and for summary conviction offences they are entitled to a review of their detention after 30 days. The issue before the Court was whether there were any other requirements that had to be met besides the passage of this time limit. The Court held that the jailer (the person in charge of a jail) must immediately apply for a detention review where 30 days (or 90 days for indictable offences) have passed since an accused in pre-trial custody first appeared before a justice. This is an automatic procedure, and the accused is not required to apply for the review. The responsibility is on the jailer to apply for the review as soon as the time limit has passed.  Show Cause Hearing Reverse Onus Situations Under certain circumstances, according to section 515(6) of the Code, the onus shifts to the accused to show cause why they ought to be released on bail. For Example: When the accused has already been released on bail for the commission of an indictable offence and then appears before the justice on another indictable offence, the onus shifts to the accused to show cause why detention is not justified. Or: When the accused has been released on an indictable offence and has been charged for failing to comply with a condition contained in the form of release, the onus shifts to the accused to show why they should not be detained. Again, it should be noted that indictable offences include hybrid offences until the Crown makes an election to proceed either by way of summary conviction or by indictment. Since the Crown rarely makes an election at this early stage, if the accused is charged with a hybrid offence while on release for another hybrid offence it will typically result in a reverse onus situation. Another situation in which a reverse onus will result is where the accused is charged with an offence involving threatened, attempted, or actual violence against their intimate partner and the accused has been previously convicted of an offence involving threatened, attempted, or actual violence against an intimate partner. If a justice agrees to release an accused in a reverse onus situation, the justice must include the reasons for making an order of release. In a reverse onus situation, if the justice agrees to release the accused, the former bail will typically be revoked, and the accused will be released on a new release order for all of the pending charges. This is done for simplicity, so that the accused is bound by one court order instead of multiple orders with varying or conflicting conditions. The justice may impose additional conditions on the new release order unless the accused is able to show cause why the additional conditions should not be imposed.  Show Cause Hearing Grounds for Ordering Detention PRIMARY GROUNDS The primary ground is that detention is necessary to ensure that the accused appears in court (s 515(10) (a)). The justice considers whether the accused poses a flight risk if they are released on bail. In addition, the court considers other factors. For Example: Whether the accused has family ­obligations, has stable and steady employment, or has a place of permanent ­ residence or owns a home, as well as other responsibilities in the community. It is also relevant to investigate whether the accused has a pattern of failing to attend court in the past.  Show Cause Hearing Grounds for Ordering Detention SECONDARY GROUNDS The secondary ground is that detention is necessary to protect the safety of the public, including victims and witnesses (s 515(10)(b)). The justice must consider whether the safety of the public, including any victims or witnesses, is at risk if the accused is released pending trial. The court will look to the accused’s previous criminal record, whether they are already out on bail or on probation, the nature of the offence, whether the offence is closely tied to the accused’s source of livelihood, and any mental health or addictions issues.  Show Cause Hearing Grounds for Ordering Detention TERTIARY GROUND The tertiary ground is that detention is necessary to maintain confidence in the administration of justice (s 515(10)(c)). The justice may consider a number of factors, such as the strength of the Crown’s case, the seriousness of the offence, and the circumstances surrounding how the offence was committed— including the use of a firearm and whether the accused faces the potential of a lengthy term of imprisonment, or where there is a minimum term of imprisonment of three years for a ­firearms- related offence. Essentially, the tertiary ground allows the Crown to argue for the accused’s detention in order to maintain confidence in the administration of justice. The justice must consider each ground on its own merit, and it may be the case that concerns exist on more than one ground.  Show Cause Hearing Grounds for Ordering Detention  Show Cause Hearing Evidence at the Show Cause Hearing Section 518 of the Code sets out the evidence that may be presented at a show cause hearing. As in a trial, the prosecution can present evidence at the bail hearing that tends to prove that the accused committed the offence. The rules of evidence for bail hearings are, however, much more open than they are for a trial. To prove that the accused should not be released, For Example: The Crown may present evidence that the accused has a criminal record or that the accused is, at that time, charged with other offences. At the trial, the Crown generally cannot present evidence of the accused’s criminal record since this evidence is considered too prejudicial to the accused. Other forms of evidence that may not be admissible at trial may be presented at the show cause hearing. Hearsay evidence—where one person gives evidence as to what another person said outside of court—is generally admissible at a bail hearing but not at trial. This often takes the form of “will say” evidence, where a police officer testifies at the bail hearing as to what various witnesses will say at trial. For Example: At the bail hearing, a police officer may give evidence as simple as “Raj Singh will say at trial that he saw Bob Jones stab the victim.” At trial, Raj Singh will be required to appear and give this evidence himself so that the defence lawyers can cross-­examine him and test his evidence.  Sureties The Crown may consent to releasing an accused on a release order if they can come up with one or more sureties. Even when the Crown does not consent to release, the justice may be satisfied that the Crown’s grounds for opposition may be addressed by the court by requiring that the accused be released on a release order along with one or more sureties. A person must qualify to act as a surety; they must: Provide financial information to the court Provide information about their character and; Provide personal background information Not have a criminal record A surety may be cross-­examined by the Crown about their qualifications. A surety must also be in a position to supervise the accused. Where an accused is proposing release with one or more sureties, a surety ­declaration must be filled out. Surety declarations must be filled out carefully, shared with the Crown, and filed with the court in advance of the bail hearing, unless the Crown consents to the court dispensing with the declaration, pursuant to section 515.1(2)(a).  Sureties Where a sworn or affirmed surety declaration is not provided to the court and the Crown does not consent to dispensing with the declaration, the proposed surety or sureties must attend the bail hearing and confirm the veracity of the surety declaration under oath or affirmation. A surety pledges to pay a certain amount of money to the court if the accused breaches their conditions of release, and the surety must ensure that the accused will abide by each condition on the release order, including appearances in court. The surety’s duties continue until the accused is either acquitted or found guilty and sentenced. If the accused does breach a condition of the release order, the Crown may ask the court to note default on the surety and bring an application against the ­surety—called estreatment proceedings—to collect the amount pledged. Pursuant to section 767 of the Code, if the surety is concerned that they are unable to supervise the accused or no longer wishes to act as a surety, then they must bring the accused to court and ask to be relieved of the responsibility. Alternatively, the surety may apply in writing to the court to request that they be relieved of the obligations, pursuant to section 766(1). When a surety withdraws, the accused’s release order is considered to be vacated, and the accused must apply for judicial interim release. If the surety is unable to bring the accused to court, then an arrest warrant will be issued for the accused. An exception to this is if the justice agrees to substitute one surety for another (s 767.1(1)), in which case the new surety would sign the release order.