Author: 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”

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.
Continue reading “Grounds of Detention and Reverse Onus”

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.
Continue reading “R. v. St-Cloud on Proper Review Grounds”

Patrick Ducharme

Only in the case of section 469 offences is the accused required to make an application for bail. In all but arrests for section 469 offences, the accused will immediately and automatically be entitled to a bail hearing. Section 469 contains a list of the most serious offenses that can be committed in Canada.
Continue reading “Section 469 Offences”

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.

Continue reading “How Bail Works”

Patrick Ducharme

Apart from what can be learned about the evidence and the person charged, the prospect of detention prior to trial may change the complexion of the trial process. An accused who is in custody prior to trial is an accused that is much less available to counsel during preparation for trial.
Continue reading “Defence Often Compromised by Pre-trial Detention”

Patrick Ducharme

An order of non-publication of the evidence, protects against the premature disclosure of information. This includes the submissions of counsel and the reasons for the court’s decision. An order of non- publication is mandatory if requested by the defence.1 It is discretionary if requested by the prosecution.
Continue reading “Non-Publication Orders”

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.
Continue reading “Disclosure Problems”

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.
Continue reading “The Importance of Timely Disclosure”

Patrick Ducharme

There is one exception in the amendments to the concept of restraint in bail. Persons alleged to have committed an act or acts of domestic violence, and have also been previously convicted of an offence or offences against an “intimate partner”, must overcome a reverse onus, requiring the accused to demonstrate why he should not be detained in custody.
Continue reading “One Notable Exception to Restraint: Domestic Violence”