Arresting and releasing Flashcards
Arrest without Warrant
The addition of s. 495.1 - authorizes arrest without a warrant for the purpose of taking them before a judge or justice to be dealt with under newly amended section 524
Release from Custody Arrest with Warrant
When dealing with an accused arrested by endorsed warrant, an officer can release by Appearance Notice or Undertaking.
- Exception are the more serious offences listed in S. 469.
Considerations for conditions
C75 has introduced a “ladder principle” it’s a step process from lest burdensome release conditions to more restrictive conditions – more in slides to come.
Consider the circumstances of the accused, is it possible they did not know an arrest warrant existed? – Release w/o conditions.
Evidence they knew of warrant or were hiding out? Release with appropriate conditions or hold for a JIR.
Was the warrant a bench warrant? Failing to appear for trial – conditions or JIR.
Release from Custody - Arrested Without Warrant
Section 498 details that an accused should be release from custody ASAP in the least burdensome manner.
- Exception serious offences in S. 469
Release from custody - ways
PTA: no longer exists.
An accused can be released from custody any time the conditions in S. 495(2) are satisfied.
- Think “PRICE” - PUBLIC Interest, REPETITION of offence, IDENTIFY established, no reason to believe accused fail to attend COURT, and no risk to loss of EVIDENCE.
Appearance Notice can be used to release and compel accused to a future court date, or compel to a Judicial Referral Hearing.
An Undertaking is used when releasing an accused with conditions.
Summon is unchanged – lay an information and request summons, later served on an accused.
Changes to Conditions on Undertaking
Abstain from drugs or alcohol removed and there is a $500 limit on cash security when accused resides more then 200km away.
Curfew condition that requires an accused show them selves at the door when police do a curfew check.
Police can add their own condition to ensure safety and security of a victim or witness, if required.
All conditions must be reasonable and related to the offence.
Ladder principle.
Sections 493.1 and 515(2.1) adopt “Restraint and Ladder” principles from the R vs Antic SCC case.
Directs the police / justice to Release at earliest reasonable opportunity with the least burdensome conditions.
An unconditional release on an undertaking is the default position when granting release. 1st rung.
Crown / police in bail hearings must show why more restricted forms of release are necessary. To advance to next rung.
Recognizance with sureties or Cash bails should only be relied on in exceptional circumstances.
As an example, requesting a condition for “house arrest” in a JIR, it must be demonstrated why a less restrictive condition like a curfew or ‘reside at’ condition would not be more appropriate.
- Would have to speak to the purpose of the bail hearing, ensuring the accused showing up for trial and public safety.
Ladder Principle Section 515(2) Steps
These are the progressive “steps” of the ladder principle.
From least to more burdensome.
- Release no conditions,
- Release with conditions,
- Release with conditions and “promise to pay”,
- Release with conditions and a surety, may add a promise to pay
- Curfew condition, surety on residence, Promise to pay $5000 if fail to appear.
- Release with conditions, deposit, may add promise to appear.
- Curfew, $500 cash deposit, Promise to pay $5000 if fail to appear. - Accused lives 200km away, deposit, may do promise to pay.
- $500 cash deposit, may do promise to pay.
Aboriginal and Vulnerable persons
The courts have acknowledge that the circumstances of aboriginal offenders can be unique, and different from those of non-aboriginal offenders.
Pay particular attention to Aboriginal and vulnerable accused persons to ensure to be fair across all ethnic and socially economic backgrounds.
When setting release conditions, think about the circumstances of the individual
I think the courts want officers to be more cognizant of an offenders life circumstances and strive to avoid setting an accused up for failure, via overly restrictive conditions or conditions bound to fail.
Things to ConsiderConditions
Going back to the ladder principle:
Ask yourself.
What is the least burdensome conditions appropriate to the situations circumstances?
House arrest VS curfew.
Can an accused likely comply?
- Homeless, how are they able to comply with condition ties to a particular address?
