_s._495.1_arrest_session_slides-24534-20230912.pdf

www.opcva.ca Federal Law 10 Show Cause Hearing Crown/Reverse Onus Fail to Comply S. 495.1 Application Release Order Version: BCT Federal Law January 2023SL © Queen's Printer for Ontario, 2018 Release Principle of Restraint S. 493.1 Decision regarding release by a peace officer, justice or judge:...

www.opcva.ca Federal Law 10 Show Cause Hearing Crown/Reverse Onus Fail to Comply S. 495.1 Application Release Order Version: BCT Federal Law January 2023SL © Queen's Printer for Ontario, 2018 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) or 515(10) continued….. 2 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 3 Police officers release options: Methods of release Unconditional Criminal Summons • No arrest authority or no need to arrest (PRICE satisfied) • Compels for court & prints • Criminal Information sworn to first • Consider principles of restraint s. 493.1 Appearance Notice • Arrest authority exists, may arrest or limitation set out in s. 495(2) • Release/compel for court & prints • Anywhere • Consider principles of restraint s. 493.1 Undertaking • Following an arrest • Once PRICES is satisfied (s. 498(1.1)) • Release/compel for court & prints • Cond. least onerous & nexus to offence • Consider principles of restraint s. 493.1 Objectives Demonstrate the ability to define and explain the terms; ▪ Show Cause Hearing and Report, ▪ Crown and Reverse Onus ▪ Fail to Comply offences ▪ S. 495.1 arrest and a s.524 C.C hearing ▪ Release Order ▪ Review a case study 5 Bail Hearing/Judicial Interim Release R. v. Antic, 2017 SCC 27 “The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of the accused persons. The right has two aspects: a person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail” 6 Canadian Charter of Rights and Freedoms Proceedings in criminal and penal matters: s. 11(e) Any person charged with an offence has the right: e) Not to be denied reasonable bail without just cause 7 Reminder 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 8 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 9 Methods of Release Ladder Approach Detention Release order with surety/cash deposit/promise to pay Release Order - cash deposit and promise to pay Release order – surety/ promise to pay Release order with promise to pay Release Order w/o financial obligations Release Order w/o conditions or financial obligations Undertaking to a Peace Officer Appearance Notice / Summons Unconditional Release 10 Classify Authority •s. 494 • F/C Ind • Helper-R/G Crim + L/A • Owner –F/C Crim •s. 495 • R/G Ind P-P-F • F/C Crim • R/G warr/jurisd/effect •s. 495.1 •s. 31 R/G Charges (TIPP) Unconditional Limitation to arrest s. 495(2) Criminal Summons • No arrest authority or no need to arrest (PRICE satisfied) • Compels for court & prints • Criminal Information sworn to first • Consider principles of restraint s. 493.1 Prevent continuation Investigate Court If yes, 6 steps to arrest •ID as Police •Tell them they're under arrest •The reason for arrest •Physical control •RTC •Ensure they understand reason for arrest and RTC Public interest •Protect public/community •Protect accused/victim •Protect property •Prevent breach of peace Repetition Identity Limitation to release s. 498(1.1) PRICES PIC Recognize Bail Court Reason for arrest R/G or F/C? Radio call/event Methods of release R/G consider: Confession Credible witness Circumstantial PRICE R/G = subjective + objective RCA Facts in Issue Time/date Identity Place Plus elements Public interest Repetition Identity Court Evidence Safety (victim/wit) Court Evidence R/G Charges (TIPP) Appearance Notice • Arrest authority exists, may arrest or limitation set out in s. 495(2) • Release/compel for court & prints • Anywhere • Consider principles of restraint s. 493.1 R/G Charges (TIPP) Undertaking • Following an arrest • Once PRICES is satisfied (s. 498(1.1)) • Release/compel for court & prints • Cond. least onerous & nexus to offence • Consider principles of restraint s. 493.1 If PRICES cannot be satisfied? Show Cause Hearing Crown Onus 515(10) Reverse onus 515(6) R/G Charges (TIPP) Release Order Bail Hearing/Judicial Interim Release s. 503(1)(a)(b) CC • Peace officer who arrests a person with/without a warrant • Has not released under another other provision SHALL • If a justice is available, take the person before a justice within 24 hours without unreasonable delay AND • If a justice is not available within a period of 24 hours • SHALL take the person as soon as possible 12 Bail Hearing/Judicial Interim Release s. 503(1.1) CC At any time before the expiry of 24 hours or before taking to a justice if a justice is not available within 24 hours If a peace officer decides that continued detention for an offence other, then a s. 469 offence is no longer necessary, a peace officer SHALL release • On an appearance notice OR • On an undertaking 13 Show Cause Hearing Crown and Reverse Onus also known as a Bail Hearing Show Cause Hearing Crown Onus Reverse Onus 14 Bail Hearing/Judicial Interim Release s. 515 C.C. Show Cause Hearing- Crown Onus Ladder approach and Principles of Restraint (s. 493.1 and 493.2) have to be considered by the crown and courts S. 515(1) C.C. – this is the default position of the court, release with no conditions or financial obligation Reasonable opportunity given for prosecutor to show cause why detention or conditions are justified s. 515(2) – (5) As the crown/court move up the ladder the conditions become more onerous for the offender. Form 11 Release Order 15 Bail Hearing/Judicial Interim Release S. 515(10) C.C. Justification for detention (Primary, Secondary and Tertiary Grounds) a) Court attendance (Primary) b) Protection/safety of public including any victim/witness to the offence or any person under 18 years of age, having regard to all circumstances and substantial likelihood that accused, if released will commit a criminal offence or interfere with the administration of justice (Secondary) 16 Bail Hearing/Judicial Interim Release S. 515(10) C.C. Justification for detention c) Maintain confidence in administration of justice (Tertiary) i. Apparent strength of prosecutions case ii. Gravity of offence iii. Circumstances surrounding offence (including whether firearm was used) iv. Accused is liable on conviction for potentially lengthy sentence or if firearm used minimum sentence of three years or more 17 Bail Hearing/Judicial Interim Release Reverse Onus S. 515(6) C.C. What does reverse onus mean? An accused is in a reverse onus position and must “show cause” why they should be released when charged with: • An indictable offence when already on release for another indictable offence • Certain listed offences committed with a firearm • Any offence involving a firearm/prohibited/restricted weapon, crossbow, prohibited/restricted device or ammunition WHEN subject of a prohibition order s. 84(1) C.C. • An indictable offence and not ordinarily a resident Continued… 18 Bail Hearing/Judicial Interim Release Reverse Onus • an offence in the commission of which violence was allegedly used, threatened or attempted against their intimate partner, and the accused has been previously convicted of an offence in the commission of which violence was used, threatened or attempted against an intimate partner of theirs (New) • Fail to appear/fail to comply with a release order (summons, appearance notice, undertaking, release order s. 145(2) – (5) CC) 19 Fail to Comply Offences s. 145(2) – (5) CC Fail to comply offences: s. 145(2) – Fail to attend court or surrender s. 145(3) – Fail to comply with appearance notice or summons s. 145(4) – Fail to comply with undertaking s. 145(5) – Fail to comply with order These are also a ‘Reverse Onus’ situation that you may hold someone for a bail hearing. 20 What is our authority if we find someone about to breach a form of release or commits an indictable offence while currently on a previous form of release? 495.1 Arrest for 524 Hearing 21 Arrest of Accused without Warrant S. 495.1 C.C. A peace officer who believes on reasonable grounds that an accused: has contravened or is about to contravene a • summons • appearance notice • undertaking or • release order that was issued or given to the accused or entered into by the accused OR 22 Arrest of Accused without Warrant S. 495.1 C.C. has committed an indictable offence while being subject to a • summons • appearance notice • undertaking or • release order MAY arrest the accused without a warrant for the purpose of taking them before a Judge or Justice to be dealt with under Section 524 23 Arrest of Accused without a Warrant Section 524 (Reverse Onus) An arrest under s. 495.1 makes reference to a procedure under S. 524 C.C If you arrest someone under the conditions set out in s. 495.1 C.C. you may invoke procedural law under s. 524 to assist the court in dealing with the old and new charges. Rights to Counsels is a component of this procedure 24 Arrest of Accused without a Warrant Section 524 (Reverse Onus) In a section 524 hearing a Judge or Justice may cancel the original • summons, • appearance notice • undertaking or • release order and order the accused to be detained OR they may issue a new release order with all outstanding charges if the accused can show why their detention is not justified (reverse onus). 25 Show Cause/ Bail Hearing Overview 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) Background of the Accused Person Outstanding Charges (Including warrants) Previous Bail Conditions Probation / Parole / Temporary Absence (TAP) Conditional Sentence Other Court Orders Criminal Record Current Charges Weapons and Firearms Hearsay Officer Opinion/Conclusions Victim Concerns Opposition to Bail and Grounds for Detention Recommendations for Conditional Release 26 Release Order With or without conditions If the Crown fails to show cause why the accused should be detained or the accused show causes why they should be released then the Justice shall release on a Release Order following the appropriate Principle of Restraint with conditions that satisfy 498(1.1). 31 Example Knowledge check: Jim JONES assaults his ex-girlfriend. He is currently out on an undertaking for assault with a condition not to communicate with the person he assaulted. JONES breaches this condition by assaulting his ex-girlfriend again. When you run Jim JONES on CPIC you discover he has a previous releases of an undertaking and a Form 9: 1. Undertaking for a previous domestic assault. 2. Form 9 for Mischief Under $5000. 32 Example What do you do? You arrest Jim JONES for assault and fail to comply with a condition of his undertaking under s. 145(4) CC. What do you do next? If you decide to hold JONES, you will advise him that he is under arrest for the original assault charge as well as the fail to comply and that he is also being detained for a s. 524 hearing. Is this a Crown or Reverse Onus? This puts JONES in a reverse onus situation A Judge or Justice may cancel the original undertaking and order JONES to be detained, or they may issue a new release order if JONES can show why their detention is not justified (reverse onus). 33 Bail Hearing/Judicial Interim Release Remember Reasons for holding for bail – primary, secondary, tertiary s. 515(10) C.C A reverse onus does not mean a police officer cannot release (for non-469 offences) from the station. Remember s. 493.1 and 493.2, principles of restraint Remember s. 498(1.1)(a) C.C. before deciding to hold a reverse onus case for a bail hearing. You must be able to articulate your decisions. Detention is not automatic, nor will the Crown automatically seek detention 34 Homework Assignment Federal Law 10 workbook questions Federal Law 10 OPCVA quiz questions 35