Pre-Trial Release LAW 120

Pre-Trial Release Once a person has been arrested, fingerprinted and photographed, the police will often release the accused until the trial. Release is usually automatic for people accused of a summary conviction or indictable offence that carries a fine of $5000 or less. If the police believe the accused will appear in court voluntarily and will not commit and offences while awaiting trial, the accused will sign a promise to appear. If the accused does not appear on the assigned date, the court will usually issue a bench warrant for his/her arrest.

Pre-Trial Release In some cases, the accused may be required to sign a recognizance – a guarantee to appear in court when required. A fine of up to $500 may be levied if the accused fails to appear. Unless the accused comes from another province or lives more than 200km away, a deposit is not usually required. The police may also request a surety, someone who is willing to pay a certain sum of money if the accused fails to appear at trial. The surety also has to sign the recognizance form.

Bail Usually the police will try to keep suspects accused of serious indictable offences in custody after arrest. In such cases, the accused has the right to make a bail application. Bail is the temporary release of a prisoner who posts a sum of money or other security to guarantee his/her appearances in court. A bail hearing must be held within 24 hours of an arrest, or if a magistrate is unavailable, as soon as possible thereafter.

Bail Section 11 of the Charter guarantees no one is to be denied reasonable bail without cause. If the Crown does not want the accused released before trial, a show- cause hearing is held to ‘show cause’ and convince the judge that the prisoner should stay in jail until the trial date. “Cause” includes reason to suspect the accused may flee; concern that releasing the accused may be a threat to the safety and protection of the public, or any other just cause. If the Crown is successful, the judge will issue a detention order to keep the accused in jail.

Reverse Onus Some circumstances may justify a reverse onus, which means that the burden of proofs shifts; rather than the Crown having to show cause that the accused should be imprisoned, it is up to the defense to show cause why bail should be granted. Reverse Onus applies in the following circumstances. ◦The accused is charged with committing an indictable offence while already out on bail ◦offence is indictable and the accused is not a Canadian citizen ◦The charge involves failure to appear or breach of a bail condition ◦The accused is charged with importing, trafficking, or possession for the purpose of trafficking narcotics (or conspiracy to commit any of these crimes).

Reverse Onus If the accused falls into one of these categories, bail will be denied unless the accused convinces the judge that he/she will attend court as required, not commit a crime while out on bail, and not interfere with the administration of justice in any way.

Habeas Corpus If an accused person who has been arrested and denied bail believes that he or she has been illegally detained, that person can file a writ of habeas corpus to appeal the court’s refusal to a higher court. A writ of habeas corpus requires the Crown to produce the detained person in court and then give reasons to justify keeping this person in custody after trial. It also requires the Crown to show that the prisoner is not being mistreated in any way. If the Crown cannot justify the continued detention of the prisoner to the higher court’s satisfaction, the court may order the prisoner to be released until trial.

Pre-Trial Release Assignment p P.211 R v Pandy #1-2 P.211 BYU #2-4 p.214 #1,9 p.215 #11 p.216 R v. Patrick #1-3 p.217 R v. Golden #1-3