D. Judicial Interim Release

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 178-184

Page 178

The general philosophical approach to judicial interim release defines the compelling appearance powers described so far in this chapter-a statutory preference for interfering with liberty as little as necessary. The provisions are structured on the general assumption that an accused should be released pending trial and with as few restrictions as possible. Indeed, the Code creates what is usually referred to as a "ladder" approach to bail. This means that an accused is presumed to be entitled to release and the Crown must justify each increasing step of intrusiveness. There are exceptions for section 469 and other offences, and they will be discussed below, but this is the general approach.

It is worth noting a rule that is slightly inconsistent with this policy. As noted above, an accused must be brought to a justice without unreasonable delay, a rule that is meant to guarantee that person a speedy consideration of release. However, the justice that the accused is taken to can adjourn the bail hearing by up to three days without the consent

Page 179

of the accused. Longer delays are also possible, though in that case the consent of the accused would be required.⁴⁸

Once the hearing is held, however, section 515 directs that the justice shall order that the accused is released on an undertaking without conditions, unless the Crown shows cause as to why something more restrictive is justified. For this reason, these are often referred to as "show cause" hearings. The Code permits these hearings to be conducted by a "justice," which includes a justice of the peace, but quite commonly they are in fact held in front of a provincial court judge.

Section 515(2) of the Code sets out the range of restrictions on liberty, short of detention, that can be imposed on an accused as conditions of release. They are

(a) an undertaking with conditions;

(b) a recognizance without sureties and without deposit-that is, the accused promises to pay a sum of money if she does not appear as required;

(c) a recognizance with sureties-that is, a third party also agrees to owe the debt if that accused does not appear;

(d) a recognizance without sureties but with a deposit of money "or other valuable security" -this condition can only be imposed with the consent of the prosecutor, and;

(e) a recognizance with or without sureties and with a deposit of money or other valuable security if the accused is not ordinarily resident in the province or within two hundred kilometres of the place in which he is in custody.

The Code specifies that a justice cannot make an order under any of paragraphs (b) to (e) unless the prosecutor shows cause as to why an order under the immediately preceding paragraph would be inadequate.⁴⁹Once again, this reflects the policy of Part XVI that, in general, restraint should be used in interfering with the liberty of an accused.

Page 180

Sections 515(4) through 515(4.3) provide the various types of conditions that may, or must, be imposed when an order for release is made under section 515(2). All of these are related to the objectives of ensuring the accused attends court or ensuring the safety of the community while she is on release. They are similar to those (mentioned above) available to an officer in charge who is authorized by the arrest warrant to release the person arrested. Release conditions should be realistic and workable, rather than "set[ting] the accused up to fail."⁵⁰

Further, there must be some type of causal relationship between the crime charged and the particular conditions imposed. However, this connection need not be so specific that, for example, a curfew cannot be imposed even though the particular offence charge occurred during the day.⁵¹The remaining possibility, beyond the various forms of release in section 515(2), is that the Crown might show cause as to why the accused should remain in custody until trial. Section 515(1) of the Code specifies that there are only three grounds on which continued detention of an accused may be ordered. The first two of these are relatively uncontroversial: (a) the detention is necessary to ensure the accused’s attendance in court; or (b) the detention is necessary for the protection or safety of the public. In this context "public" includes victims, witnesses, and any person under the age of eighteen, and the justice is directed to consider "all the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice." These are sometimes referred to as the primary and secondary grounds for detention, though that terminology is a holdover from a previous version of the section and no order of priority is actually intended today.

The third...