From “Least Onerous” Up the Ladder

Patrick Ducharme
Patrick Ducharme

Release of the accused is the “fallback position.” Subsection 515(1) provides that the court must order the release of the accused on his undertaking without conditions unless the prosecutor shows cause why the detention of the accused in custody is justified or why an order under any other provision of the subsection should not be made, or, unless a plea of guilty is entered by the accused. The effect of this provision is to create a presumption that the least onerous type of release should be considered first, and the court continues to consider each of the various forms of release until eventually, the final resort is to detain the accused. Detention should only occur if absolutely no form of release is appropriate. Continue reading “From “Least Onerous” Up the Ladder”

Grounds of Detention and Reverse Onus

Patrick J Ducharme
Patrick J Ducharme

The three grounds of detention have equal weight. Reference to the primary, secondary, and tertiary grounds of detention should not lead one to the mistaken impression that one is given higher priority over the other. The prosecutor generally has the onus to justify an accused’s detention in all cases, except where the Code expressly provides otherwise. In addition to the reverse onus placed upon the accused created by section 522 for offences listed in section 469, subsection 515(6) outlines the specific instances where the onus is reversed to the accused even for non-469 offences.
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R. v. St-Cloud on Proper Review Grounds

Patrick Ducharme
Patrick Ducharme

The Supreme Court of Canada’s decision in R. v. St- Cloud is best known and most often cited for its decision concerning whether the detention of an accused is necessary to maintain confidence in the administration of Justice. The decision in this regard suggests that the presiding Justice must first consider the four circumstances that are expressly referred to in subsection 515 (10). However, the decision is equally important for its commentary and directions concerning applications to review a bail decision by the defence pursuant to section 520, and the prosecution pursuant to section 521 of the Code.
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How Bail Works

Patrick J Ducharme
Patrick J Ducharme

A person charged with a criminal offence may be taken into custody upon his arrest. The circumstances of when and how the accused will be released without a formal bail hearing are generally outlined in sections 495 to 499 of the Code. If the person arrested is not released by the arresting officer or by any other officer, including, but not limited to the officer in charge since the 2019 amendments to the Code, the next step in the progression of events is for the accused to be taken before a Justice who will conduct a bail hearing.

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Disclosure Problems

Patrick J Ducharme
Patrick J Ducharme

The accused is often required to proceed with a judicial interim release hearing knowing very little about the specific allegations that form the basis of the charge(s). The reason for this is that disclosure of that information to the accused, now required as of right at or near the time when the accused will enter his plea, is often not available in any completed form at the time of the bail hearing.
The evidence provided at the bail hearing is often provided by an officer who did not participate personally in the investigation of the offence(s). The testifying officer is usually an officer who may have spoken to the investigating officers but may not even have their reports at the time the testimony is presented to the presiding Justice. This second-hand version of the evidence is often less accurate and less detailed than the evidence presented at trial.
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The Importance of Timely Disclosure

Patrick Ducharme
Patrick Ducharme

The judicial interim release hearing is the first opportunity for counsel to gather facts, assess the evidence, and examine conflicting theories of the case. This is an important part of the trial process. Mistakes made at this hearing may linger to the end of the trial and have negative impact on the trial. Counsel for the accused should not conduct a bail hearing without proper disclosure. It may be that full disclosure is not available to either the defence or the prosecution at the time of the bail hearing. However, whatever disclosure is available should be obtained and reviewed prior to beginning the hearing.
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