Author: Michael Ducharme

Patrick Ducharme

The strict rules of evidence required at a trial are not in place at a bail hearing.1 The Code provisions permit the presiding Justice to make inquiries that the Justice considers desirable. The inquiries do not have to be in the form of evidence under oath. There are not many limitations to the inquiries except that an accused that testifies at a bail hearing may not be questioned about the offence he faces, unless defence counsel poses a question or questions to the accused about that offence.
Continue reading “Evidence at the Hearing”

Patrick Ducharme

For the purposes of bail accused persons are divided into two groups: those that are charged with an offence listed in section 469, and those that are charged with any other offence. Only a Judge of the Superior Court of Justice has the power to release a person charged with an offence listed in section 469 of the Code.1 Rule 20 of the Criminal Proceedings Rules apply. The accused must apply for release. The release hearing does not occur automatically. The procedure used is the same as that required for a normal bail review pursuant to sections 520 or 521 of the Code. A notice of application must be served on the prosecutor together with an affidavit from the accused. The affidavit of the accused must comply with Rule 20.05. To have the accused present at the bail hearing the applicant must obtain a Judge’s order for his attendance.
Continue reading “Two Procedures for bail”

Patrick J Ducharme

Part XVI of the Code deals with compelling the appearance of an accused and interim judicial release. It also applies to the detention and release of young persons, except to the extent that the provisions may be inconsistent with the Youth Criminal Justice Act [the “YCJA”].
The YCJA provides additional principles governing the detention of young persons. For example, the YCJA codifies the earlier case law that held that a young person must not be detained in custody as a substitute for appropriate child protection, mental health or other social measures.
Continue reading “Young Persons and Bail”

Patrick Ducharme

This principle of restraint is reflected in the new amendments of 2019. The primary consideration in deciding release and bail conditions required for the police and our courts is to provide the accused with the earliest reasonable release on the least strict conditions that are deemed possible. In addition, they are to take special consideration of vulnerable members of the population including indigenous persons. With the amendments to sections 498 and 499 of the Code all police officers now have the power to release a person in custody.
Continue reading “Principle of Restraint”

Patrick Ducharme

Subsection 11(e) of the Charter provides that any person charged with an offence has the right not to be denied reasonable bail without just cause. The denial of bail must occur only in a narrow set of circumstances and the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system.
Continue reading “The Charter: Constitutional Right to Bail”

Patrick J Ducharme

In certain circumstances the accused bears the onus of establishing, upon being given a reasonable opportunity to do so, why his detention in custody is not justified.

Subsection 515(6) provides that a Justice shall order that the accused be detained in custody until he is dealt with according to law, unless he shows cause that his detention is not justified in the following circumstances:
Continue reading “Reverse Onus Bail Hearings”

Patrick J Ducharme

continued from Part 1.

In Grant the majority of the court noted that while there is no absolute exclusionary rule against statements obtained following a Charter violation, the courts have tended to exclude such statements. But the court in Grant was establishing new rules related to the exclusion of evidence. The new framework the court said would “support a presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter”
Continue reading “The Court Must Decide (Part 2)”

Patrick Ducharme

Continued from a series on Searches and Confessions…

The Court Must Decide

Basic to all of this is the concept that before a Crown may offer evidence of a statement made by the accused to a person in authority, the Crown must have the court rule on the admissibility of that statement in accordance with the common law confessions rule. If there is any issue about the status of the recipient of the statement being “a person in authority” the burden falls to the accused to at least establish that the recipient was, in fact, a person in authority. Continue reading “The Court Must Decide”

Patrick Ducharme

FLIR imaging is not the equivalent of an entry to premises that is under surveillance. Rather, it is more accurately characterized as an external surveillance of a home or place to obtain information that may be capable of supporting an inference about what actively is going on inside. Consequently, in its present form, FLIR imaging cannot permit any inferences about the precise activity occurring inside simply by measuring the heat that emanates from a home or other place. Context is important here. Everything shown in an FLIR photograph exists on the external surfaces of the building. Thus, the technology does not infringe or intrude upon a person’s reasonable expectation of privacy.

Continue reading “J. FLIR Technology”