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| Patrick Ducharme |
That focus should be on what occurred (if anything) what involvement there is on the part of the accused (if any), and, if the accused did play some part in the events, was he intending to commit the crime, cause the hurt, cause the damage or effect the result.
Continue reading “The Intentional Part”
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| Patrick J Ducharme |
Described in the broadest of terms, and in a non-legalistic fashion, there are only three defences available to any accused person in Canada. They are:
1. The alleged crime(s) did not occur.
2. If the alleged crime(s) did occur, the accused did not commit it (them).
3. If the alleged crime(s) did occur, and the accused performed at least some of the actions alleged to form the basis of committing the crime(s), the accused did not intend or mean to commit it (them).
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| Patrick Ducharme |
Recently, there have been significant changes in our laws related to bail, both in case law and legislatively. The upshot of these changes emphasizes that the bail system is intended to ensure the persons charged with criminal offenses will attend court when necessary to answer to the charge(s). The emphasis is on their release from custody prior to having to answer to the charge unless it is established by the prosecution that the accused poses a risk to the public safety on bail.
Continue reading “Summary of Bail”
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| Patrick Ducharme |
In R. v. Antic1 the accused was charged with several drug and firearms offences. He was detained at his original bail hearing and sought release on a bail review. The bail review Judge declined to vacate the detention order but indicated that he would have released the accused if he could have imposed both a surety and a cash deposit as release conditions. The Judge on review felt constrained by subsection 515(2) because the subsection only applies if the accused is from out of the province or does not ordinarily reside within two hundred km of his incarceration.
Continue reading “R. v. Antic: The Right Not to be Denied Reasonable Bail”
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| Patrick J Ducharme |
Any bail order may be altered by: the trial Judge at any time or by the preliminary inquiry Judge at the completion of the preliminary inquiry; or, by any Justice at any time with the consent of the prosecutor and the accused; or, by any Judge of the Superior Court of Justice with the consent of the accused and the prosecutor, or, by any Judge of the court before which the accused is being tried with the consent of the accused and the prosecutor.
Continue reading “Alternate Ways to Review”
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| Patrick Ducharme |
A Justice presiding at a bail hearing may name a person as a surety. A surety is a person who makes a solemn promise in the form of a recognizance that he will forfeit a specific sum of money if the accused fails to abide by any of the conditions imposed by the court in the recognizance. If an accused is unable to procure a suitable surety, he may seek the consent of the prosecutor to deposit a specific amount of money instead.
Continue reading “Sureties”
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| Patrick Ducharme |
A recognizance is a form of solemn promise and an acknowledgment that a person makes to the court in support of the release of an accused that has attached to it a commitment to pay a specific amount if the accused does not abide by the conditions set out in the recognizance. A recognizance is enforceable through forfeiture proceedings. In forfeiture proceedings under section 773 of the Code, the accused or his sureties that have signed a recognizance may be ordered to pay all or part of the debt acknowledged in the recognizance.
Continue reading “Recognizances and Forfeiture Proceedings”
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| Patrick J Ducharme |
The Justice is given the power to delay any broadcast or publication of the bail proceedings until either the end of the preliminary inquiry if the accused is discharged, or the end of the trial if he is subject to an order of committal to trial. If the accused is the one who requests a non-publication order the Justice is required to make the order. If the prosecutor requests the order of non-publication the Justice has discretion as to whether to grant the order. As a matter of practice an order of non-publication of the proceedings is ordered without exception.
Continue reading “Non-Publication”
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| 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”
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| 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”
