BY PAUL COOPER, BARRISTER PRE TRIAL RELEASE

In a democracy; We grant power to a certain segment of the population (i.e. Police/Justice/Judge) The power granted can impact on the liberty of another segment of the population (i.e. Accused Persons) During a defined period (Arrest  Trial)

CCC- PART XVI- COMPELLING APPEARANCE OF AN ACCUSED BEFORE A JUSTICE & INTERIM RELEASE Police Power s. 495 (1) – arrest without warrant…  (a) Committed/about to commit an indictable offence  (b) Finds person committing criminal offence  (c) Warrant o/s Limitation s. 495 (2) Police shall not arrest without warrant…  (a) Absolute jurisdiction (s 553)  (b) Hybrid offences  (c) Straight summary offences IF (d) On reasonable grounds that the public interest…may be satisfied without so arresting the person (e.g. no concerns about ID/Loss of evidence/ repetition of offence) AND (e) confident that the accused will attend court

THREE TYPES OF RELEASE 1. “Roadside” 2. “Station” 3. “Show cause hearing”

“ROADSIDE” RELEASE If arrested/charged pursuant to s. 495 (2), then s. 496 calls for release by way of an Appearance Notice  Form 9

“ROADSIDE” RELEASE CONTINUED Permissible release s. 497 (1) (a) summons (Form 6) (1) (b) appearance notice (Form 9) Exception – “shall not release…”  (1.1) (a) It is necessary in the public interest that the person be detained in custody or their release via other section of CC having regard to circumstances and need to: Establish Identity/Preserve Evidence/Prevention/Safety of complainant/Witness

“STATION” RELEASE s. 498 (1) Release from custody by officer in charge (of station) (No warrant) release by  (a) Summons (Form 6)  (b) Promise to appear (Form 10)  (c) Own recognizance (≤$500, no deposit)  (d) Own recognizance ≤$500 with deposit, If not resident of province or ≥200km Exception  (1.1) It is necessary in the public interest that person be detained in custody or their release via other section of CC having regard to circumstances and need to: Establish Identity/Preserve Evidence/Prevention/Safety of complainant/Witness

“STATION RELEASE” CONTINUED s. 499 Release from custody by Officer in Charge (of station) where arrest made with warrant  (1)(a) Promise to appear  (1)(b) Own recognizance ≤$500  (1)(c) Own recognizance ≤$500 with deposit, If not resident of province or ≥200km BUT can add conditions s. 499 (2) Additional Conditions  (a) Remain in territorial jurisdiction (Form 11.1)  (b) Notify peace officer or other person of address/employment change  (c) Non contact  (d) Deposit passport  (e) Abstain from possession of firearms  (f) Reporting  (g) Abstain (i) alcohol etc. (ii) drugs  (h) Other necessary conditions

REVIEWABLE A s. 499 undertaking with conditions is not a judicial order, therefore, provisions are reviewable:  s. 499 (3) & 503 (2.3) Accused – at any time prior to or at first appearance – apply (application use Form 1) – get a bail hearing for an order under s. 515 (1)  s. 499 (4) & 503(2.3) prosecutor at any time before the hearing and 3 days notice or at hearing order under s. 515 (2) to replace

ETHICS Ethics: Rule of Professional Conduct Duty to client [ex- s. 517 publication ban) Rule Prepared Rule 3.1-2, Commentary [3](d) Knowledgeable of the subject Rule  s. 503(1)(a)- a.s.a.p. w/o reasonable delay Zealous advocate Rule 5.1-1, Commentary [1] Know your client By-Law 7.1, Part III Do not be a dupe Rule Do not assist in perjured testimony Rule Do not overreach (s. 469) Rule 3.1-2, Commentary [3](b) Retainer (cash) By-Law 9

WHY? Objective- change the conversation Custody=Jeopardy, custody creates the greatest need for the use of the lawyer Statistics show 99% plead guilty Bail should be highest priority – client’s highest time of need Don’t take for granted

“SHOW CAUSE” RELEASE The Hearing Role Justice will decide after presentation of evidence and submissions whether cause has been shown Onus Crown onus unless s. 515(6) Evidence Credible and trustworthy s 518(1)(e) Burden Balance of probabilities Test s. 515(10)  (a) Primary  (b) Secondary  (c) Tertiary  (i) Strength of crown case  (ii) Gravity of offence  (iii) Circumstances surrounding offence  (iv) Potential length of jail term

THE COOP’S STEP LADDER APPROACH

FACTUAL PREPARATION  Educate and build expectation level of sureties  Understand client Accused Bail Checklist  Understand sureties Surety Checklist  Educate and build expectation level of the client

THE PLAN Create a plan that addresses the needs of ALL stakeholders and learn the language of “web of protection” Best analogy/Question  Who should be the jailor?  Accused? Why not?  Accused with assistance of bail program if no sureties? Why not?  Accused and sureties? Why not?

CONCLUSION  1. Your client is # 1  2. Court resources should not be your concern  3. Charter of Rights and Freedoms  s. 7 – right to life, liberty and security of person and the right not to be deprived thereof except in accordance with principles of fundamental justice  s. 9 – right not to be arbitrarily detained or imprisoned  s. 11(d) – fair trial – innocent until proven guilty  S. 11(e) – not to be denied reasonable bail without just cause