Bail Hearings by Police Officers

Henry Waldock
Crown Counsel, British Columbia
Last updated: 2017.06.10

Principles

Everyone in custody charged with an offence is entitled to a bail hearing. Except for those charged with the most serious crimes, all get a bail hearing promptly in a provincial court.

If you arrest someone who already has bail and violates a condition, you can apply to revoke bail, even without laying any new charges. s.524

At a bail hearing, you may seek

The reasons why you seek detention (or conditions) are:

"Primary ground"
s.515(10)(a)
  • To ensure the accused will attend court
"Secondary ground"
s.515(10)(b)
  • To prevent the accused from committing further offences or threatening witnesses
"Tertiary ground"
s.515(10)(c)
  • To maintain public confidence in the administration of justice
    • strong case
    • serious offence
    • compelling circumstances
    • long jail term likely

Section 11(e) of the Charter and section 515 of the Criminal code gives each accused the right to be released on reasonable bail, unless you can show the justice of the peace why detention is appropriate. Antic, 2017 SCC 27. Even if the accused is released on conditions, there must be a reason for each condition.

Sometimes, however, the accused faces a reverse onus, and must prove that he should be released.  If those circumstances apply, you should mention it to the Justice of the Peace.

The justice of the peace ("JP") can rely on only the evidence that you present in the bail hearing in the presence of the accused.

Orders the Justice Can Make

The Justice of the Peace can detain the accused, in which case the accused stays in custody until the conclusion of the trial.  The justice may also order a detained person to abstain from communicating from jail with any victim, witness or other person.  s.515(12).

If the JP releases the accused, the JP chooses one of the following forms s.515(3). The justice must choose the least onerous one which suffices to address the primary and secondary grounds. s.515(2)

Undertaking

An undertaking may include any number of conditions.
This form of release is not available to accuseds who reside out-of-province, or more than 200km from the place where he is in custody.  Section 515(2)(e).

Recognizance without cash or surety

A recognizance must state a cash amount, but the accused does not need to deposit any cash in order to be released.  Like an undertaking, a recognizance may have any number of conditions.

Recognizance with cash

The accused must deposit the stated amount of cash in order to be released.  The recognizance may also have conditions.

Recognizance with surety

The accused, or a person other than the accused (the "surety") puts his or her property at risk.  If the accused fails to attend court, or breaches the conditions of the recognizance, then the surety stands to lose the property, or a sum of money.
If the surety no longer trusts the accused to behave and attend court, the surety may withdraw from the recognizance ("render" the accused) and the court will issue a warrant.  Section 766


You should explain why the less onerous release terms do not suffice. R. v. Antic, 2017 SCC 27

Murder, Piracy & Treason

Justices of the Peace do not have jurisdiction to release people charged with murder, and several other rarely charged offences listed in s.469.  You must still bring the accused murderer before the justice, but the justice must simply adjourn the matter to a provincial court. s.522.  Only superior court judges can release adults charged with murder.  Youth court judges can release youths.

Psychiatric Assessments

No judge, nor any JP has authority to order prisoners to undergo psychiatric assessment for the purposes of determining what bail should be.

However, you can ask for an adjournment, for the purposes of arranging a psychological or psychiatric assessment.

What's the difference?  The JP does not order the prisoner to cooperate.  The JP does not order the doctor to assess the prisoner.  Instead, you ask the doctor to attend, and the doctor talks the prisoner into cooperating.  If the doctor is successful, then the doctor will write a report for you, which you can use at the bail hearing.

Therefore, you apply for an adjournment, and you explain to the Justice of the Peace why you think the accused's mental state may be disturbed, and how you plan to get a doctor to examine him.

The JP may order an assessment to determine if the prisoner is "fit to stand trial".  s.672.12  This applies only if mental disorder affects your prisoner so deeply that he may not understand what is going on in court.  You must explain the reasons for this belief to the JP.

Preparation

Legal Rights

[]
Tell the prisoner what position you will take at the bail hearing.
[] Give the prisoner access to counsel.  In B.C. the "Advice Counsel" service provides free lawyers for bail hearings outside business hours.  1 888 595 5677
[] Give youths access to parent / guardian; notify that person.

Obtain

[]

Record of previous convictions (CPIC, JUSTIN*)

[]

List of outstanding warrants, where, when and what they are for (CPIC)

[]

List of outstanding charges, where, when and what they are for (CPIC / JUSTIN)

[]

Copies of outstanding bail documents, probation orders, conditional sentences and parole orders, or at least the conditions on them (JUSTIN)

[]

Dates on which the accused ever failed to attend court (JUSTIN)

[]

Circumstances of current matters

[]

Circumstances of any outstanding matters, and any related recent convictions (if possible)

[]

Circumstances of any behaviour** suggesting likelihood the accused will flee, commit more crime (PRIME), or fail to comply with court orders (call probation office).

[]

Accused's address - is it out-of-province or more than 200km away?

[]
Date and time of next court appearance

* CPIC records omit many convictions. For more complete information about an offender's convictions, B.C. police officers can turn to another source, such as JUSTIN, or the Corrections system CORNET.

** According to s. 518(1)(e) Cr. C., the court must accept any evidence that is “credible or trustworthy”.  That may include incidents which were never charged, or which were stayed.  (Don't present allegations for which the suspect was acquitted.) Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21.

When alleging incidents for which the accused was not convicted, explain your sources, so that the justice can understand why the allegation is "credible or trustworthy".

Organize

[]

Copies of documents that you want the JJP to see: Criminal record, bail, probation and conditional sentence documents

[]

Chronological sequence of events

[]
A phone number and a FAX number through which you can reliably communicate with the JJP centre
[]
An interpreter (if required).  The Justice Centre may be able to provide one by phone.


List the grounds for detention or restrictive release:

[]

the accused won’t return to court ("Primary Ground")

[]

the accused will commit further offences ("Secondary Ground")

[]

the accused will intimidate or harm victims or witnesses ("Secondary Ground")

[]

the accused will tamper with evidence ("Secondary Ground")

[]

releasing the accused will shake the public's faith in the justice system ("Tertiary Ground" - rarely used)

Even if you think the accused should be released, list what risks there are that these things may occur.

Analyze whether the accused is in a reverse onus 515(6):

[] Is the accused serving a Conditional Sentence, and has he either breached a condition or committed a new offence? (s. 742.6(2))

[]

Is the accused on bail for an indictable offence, and has now committed another indictable offence? (s.515(6)(a)(i))

[]

Is the accused charged with criminal organization offences, or acting for a criminal association? (s.515(6)(a)(ii))

[]

Is the accused charged with a breach of bail (s.145(2) – (5)) (s.515(6)(c))

[]

Is the accused charged with trafficking, importing, exporting or producing a schedule I or II substance under the CDSA? (s.515(6)(d))

[]
Is the accused charged with any of these offences involving a firearm:
99 - Trafficking in weapons
100 - Possession of weapons for the purpose of trafficking
103 - Importing or exporting weapons for the purpose of trafficking
244 - Discharging a firearm with intent
239 - Attempted murder
272 - Aggravated sexual assault
279(1) - Kidnapping
279.1 - Hostage taking
344 - Robbery
346 - Extortion
Or any offence involving a firearm when the accused was prohibited from possessing a firearm

If the answer to any of these questions is yes, then the accused must show why he should be released.  This does not relieve you of the duty to present full information at the bail hearing.

Analyze whether a firearms ban is required 515(4.1)

Any one of the following requires the justice to impose a firearms ban unless the justice is satisfied that it isn't necessary.

[] Was violence used, threatened, or attempted?
[] Criminal harassment?
[] CDSA 5(3), 5(4), 6(3), 7(2)?
[] Offence involved firearm, cross-bow, prohibited or restricted weapon, prohibited device, ammunition, or explosive substance?
[] terrorism or intimidation of justice system participants s.423.1

Prepare a list of release conditions:

In case the JP releases, list the bail terms you think would be required to satisfy the Primary and Secondary ground.  Many standard conditions are listed in this form.  If you want the accused to report to a probation officer, make sure that you know the address of the local probation office.  Note: Adult and Youth probation offices are different.  If you believe these conditions would not suffice, then explain why as part of your presentation.

The conditions you seek do not have to be based on the offence, but should be related to the accused's risk: An accused who assaulted during the day may be placed on a nighttime curfew if he's likely to be even more dangerous at night.  R. v. Patko (2005 BCCA).

For offences involving violence, stalking, drugs or firearms, the court is obliged to impose a firearms prohibition. (515(4.1)) If this applies, remind the court.

For offenders serving conditional sentences, all the terms of the conditional sentence automatically apply during any release on bail for breaching it.  s.742.6(11).

Prisoners can threaten witnesses and victims from jail. However, the justice can (if you ask) prohibit the accused from communicating with victims and witnesses even after a detention order. (515(12))

Swear an Information:

Depending upon the circumstances, you may need to swear a new charge:

Accused's action

Procedure

Breached terms of bail

You can lay a new charge if you want.

You may apply for revocation or variation of bail pursuant to s.524(3), even without laying a new charge.

The accused faces a reverse onus in the bail hearing for breaching bail if:

- you lay a charge under s.145(2)-(5); or

- the accused committed a new indictable offence while on bail for an indictable offence.

Breached terms of probation

To trigger a bail hearing, you must lay a breach of probation charge.

Breached terms of Conditional Sentence

There is no no charge to lay because there is no criminal offence of breaching a term of a conditional sentence.  But you can (and should) conduct a bail hearing without laying a new charge.

If the offender committed a new criminal offence, you may (and should) lay a new charge relating to the new offence.

In either case, at the bail hearing, the offender faces a reverse onus because of the conditional sentence breach.

New criminal offence

You must lay a new charge to conduct a bail hearing.


If you must swear a new information:

  1. Choose the right form: "Information by telecommunication that produces a writing pursuant to section 508.1(2) of the Criminal Code".

  2. If the accused is a youth, then after the name of the accused, add the words "being a young person within the meaning of the Youth Criminal Justice Act".

  3. Use precedents.  In B.C., the JUSTIN database provides standard wordings.  If you have no database of standard wordings for charges, then use the precedents at the back of Martin's Criminal Code, or the the wordings found in Gibson's Canadian Criminal Code Offences.

  4. Make sure that each count names the accused, and identifies the offence, when it happened, and in which city and province.

  5. For multiple accused, prepare only one information, which names all of them.  If they committed the same offence together, you need lay only one count for that offence, but you must name each of them as the accused.

  6. Sign and date the information.

  7. Fill your name in as the informant.

  8. Prepare the front page of the Report to Crown Counsel

  9. FAX the information and the front page of the RCC to the Justice Centre.

Presentation of the Bail Hearing

Principles

Assume that the JP knows nothing about your case.  Present all of your evidence so that the accused can hear what you say to the justice.  Even if you only just told the justice all about this offence (for example, when doing the second bail hearing of a group of co-accused), you must start at the beginning and explain all the evidence relevant to the bail hearing again.

The JP cannot look anything up on the computer system for you.  It is your job to present the information that the JP requires to decide what to do.  The JP must remain impartial and uninvolved; he or she can’t help you make your presentation.

The accused's past misbehaviour helps the JP infer the risk of the accused's future offending from past conduct.  Tell the JP what you know the suspect did in the past, and how you know it.

You have an obligation of fairness.  While it is proper to urge the JP to do what you consider to be the right thing, you must also disclose any significant information which undermines your position or assists the accused.  For example, if the accused's spouse attended at the police station offering $1,000 cash bail, you should tell the JJP.  (But if she is the victim of the offence, she is not an appropriate surety.)

Practice

The Justice Centre:

If a police officer was a victim of the prisoner's offence (such as an assault), that officer ought not to conduct the bail hearing.

Procedure

  1. FAX the documents you obtained or prepared:
    1. outstanding bail documents, probation orders, and conditional sentences
    2. bail conditions that you would recommend if the JP releases the accused
    3. criminal record of the accused
    4. a cover sheet which includes phone and FAX numbers where the JP can reach you
  2. Identify yourself, and the people present in the room.

  3. Assert what you want:

    1. adjournment of the bail hearing to a later date,

    2. release on specific bail with specific conditions or

    3. detention.

  4. Mention special circumstances:

  5. Explain which grounds you will rely on: "primary", "secondary", "tertiary", or some combination of them.

  6. Tell the JP whether the prisoner wants a lawyer, and whether access to counsel has been given.

  7. Identify all documents on which you rely (warrants, criminal record, bail documents, probation orders, conditional sentence orders, etc.)

    • Allow the accused to see every document you rely on.

  8. Outline the sequence of events which brought the suspect to court.

    • Summarize the situation. Do not read everything in the RCC. This annoys the JJP and wastes time.

  9. Highlight all the information you have which relate to the primary and secondary grounds. For examples, if the accused:

    • threatened witnesses, recite the threats word-for-word.

    • was recently associated to similar offences, list the dates and circumstances in which the accused was found in suspicious circumstances.

    • has no fixed address, mention it, and point out that he may move away rather than attend court.

    • has outstanding warrants in other provinces, or has convictions for failure to attend court, or has missed court dates, list them as evidence that the accused won’t come back to court.

    • breached court orders, specifically identify the orders and the conditions involved.

  10. Recite from credible sources the most important pieces of information you have received:

    • read portions from the statements of eyewitnesses which establish the accused’s guilt of the new offence(s).

    • quote any threats the accused made which indicate a risk of future harm.
    • read the accused’s confession (if any).

  11. Conclude with a summary as to why this evidence establishes what you seek.  For examples:

    • because the accused has not attended court in the past, he won’t attend in future;

    • because of his unresolved drug addiction and lack of community support he will likely continue to offend;

    • because he has not reconciled himself to the breakdown of this relationship, he will continue to stalk the victim;

    Repeat what order you seek: detention (with or without a communication ban with certain people), or the conditions of release you recommend.

The accused has a right of reply.  If the accused raises any new points for which you have answers, you may present them when s/he is done speaking, but before the JJP makes his or her decision.

If the JJP rejects your application for detention, then you may make suggestions for appropriate conditions of release.

If the JJP releases the prisoner:

  1. the Justice Centre will prepare the document;
  2. the JJP will sign it, and FAX it back to you;
  3. the accused signs the document in your presence (this is the "original");
  4. you give a copy to the accused;
  5. you FAX a copy back to the Justice Centre;
  6. you send the original to the court registry;
  7. if there are conditions which protect witnesses or victims, complete and submit a Protection Order Registry form.

Multiple Accuseds

If you have several accused on the same offence, it may be necessary to perform their bail hearings separately.  If so, you must repeat all the information for each hearing.  If the second accused person appeals his detention order, only the transcript of his hearing will go to the appeal court.  Whatever you said at the first hearing will be ignored.

Communication Ban

When the justice orders a prisoner detained, the justice may ban the prisoner from communicating with any victim, witness or other person named in the order.  Prisoners can use telephones.  If this prisoner may threaten people from custody, consider applying for such a ban. s.515(12).

Adjournment (s.516)

If the suspect should be detained, you may want to adjourn the bail hearing so that a Crown counsel may handle the file.  Although the JPs have the power to make detention orders, they can be persuaded to adjourn the bail hearing up to 3 clear days, even against the accused's wishes.

One of the easiest reasons to request an adjournment is for the purposes of obtaining information from the accused's probation officer or bail supervisor.  These people frequently have valuable information about how the accused is performing in the community, but they rarely work at times when judges are available for bail hearings.

You must have real reasons for the adjournment.  Don’t seek adjournments without grounds.  Appropriate grounds include:

If transportation is required, find out how long it will take for the prisoner to reach the destination.  If you do pass the accused on to someone else, make sure you also pass on information to the next prosecutor about the circumstances of the prisoner's arrest.

Don't think that you will get an adjournment just because you asked.  The JP may deny your adjournment application, and you will be expected to proceed with the bail hearing immediately.  Therefore, if you seek an adjournment, you should also prepare for a bail hearing, just in case you do not get your adjournment.

"Canada-wide Warrants"

Although superior court judges can grant warrants which can be executed anywhere in Canada, most arrest warrants are issued by provincially-appointed judges and justices.  Sometimes we call these "Canada-wide" warrants even though the justice who granted it has power in only one jurisdiction.

If you arrest someone on one of these warrants, you actually make a warrantless arrest under s.495.  That section limits your power of warrantless arrest for offences you didn't witness to indictable offences.  You then ask the justice to detain the suspect for up to 6 days. 503(3)  During that time, someone brings the "foreign" warrant to a local justice, and ask the justice to "endorse" it for execution in your jurisdiction.  s.528.

Tertiary Grounds

Many people confuse the secondary and tertiary grounds for detention. Fears that the accused will commit more crime relate to the secondary ground, than the third.

The tertiary ground addresses the absurdity of releasing on bail a person who will almost certainly spend many years in jail for the offence and the reasonable outrage the public feels when a an obviously guilty defendant of a serious crime walks the streets.

For example, Mr Mordue 2006 Ont C.A. was charged with brutally murdering his ex-wife. The evidence was overwhelming - he had a motive; he left his fingerprint in her blood at the scene, and a suicide note explaining why he did it. He attempted to kill himself by throwing himself in front of a train. His clothing and car were covered in blood. However, he had roots in the community, he had virtually no prior criminal record, and his family could raise $125,000 surety.

On the primary ground there was little risk he would fail to return to court. On the secondary ground, he posed little risk of reoffence. But on the tertiary ground, the justice system would look pretty silly releasing someone who's almost certainly going to get a life sentence. It would appear to trivialize domestic violence.

Until the Supreme Court's decision in St-Cloud, 2015 SCC 27, appeal courts re-interpreted this legislation to the point it could rarely ever be used.  Don't invoke it for every domestic assault or prolific burglar. It's not for cases which will attract less than several years. Use it when you have:


References

An interactive website which guides you through the analysis described above may be found at: http://www.bailoptions.ca.  This site is password protected.  Law enforcement agencies may contact nicole.gregoire@gov.bc.ca or peter.szymczak@lawcourtsed.ca to obtain a password.


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