Release_Provisions

RELEASE PROVISIONS: POST CUSTODY DETENTION 1. ( level 1) Detention and mandatory release at the scene of the arrest 2. ( level 2) At the police station, OIC, or any police officer 3. ( level 3) At a bail hearing, Justice RELEASE: refers to the termination of arrest, detention, and custody. * An arrested person cannot be held in custody arbitrarily * Specific rules and procedures found in part XVI (SS.498-529) CHARGE: to make a formal allegation by laying information COMPEL: to force the person to appear in court to answer the charge by issuing a document such as: 1) A promise to appear 2) A summons 3) An appearance notice To make someone appear in court you need both an information that lays a formal allegation and a compelling document in that order. TWO STAGES OF DETENTION: section 9 of the Charter mandates that neither of the two stages can be the result of arbitrary decision. 1. The initial custody stage represents the actual moment when arrest is made. 2. The second stage is the post-custody stage (PCD) involves up to three levels of the release model decision making process Courts consider the unlawful denial of freedom, at any time during an investigation, to be the most serious Charter violation BAIL: is define as any form of release authorized by the criminal code. 1) RELEASE: is an informal phrase referring to the termination of detention or custody and the restoration of freedom. 2) JUDICIAL INTERM RELEASE: When formal charges accompanies release, refers to an accused pre-trial freedom ( the accused is free during the interim between the laying of the charge and the trial) 3) A COURT APPEAREANCE: Compelling a court appearance refers to the process of legally forcing an offender to appear in court to answer a formal allegation. * Compelling means the person has no choice * it is accomplished by serving a “release document” or a “compelling document” An “INFORMATION”: is a document that formally alleges an offence but does not compel a court appearance. Commencing criminal court proceedings requires two documents: one to charge and one to compel a court appearance. SECTION 11 (E) CHARTER: any person charged with an offence has the right not to be denied reasonable bail without just cause. REASONABLE BAIL: refers to the “terms” of bail, or the “restrictions imposed on the accused liberty while on bail” JUST CAUSE: refers to the grounds or evidence that supports granting or denying bail. PRESUMPTION OF INNOCENCE: Section 6(1)c.c ensures that a person shall be deemed not to be guilty of the offence until convicted. Described as the “golden thread woven through the web of criminal law” PRE-TRIAL DETENTION: is only justified when “necessary in the public interest” on three grounds: 1) primary grounds, the need to ensure the court appearance of the accused 2) Secondary grounds, to prevent from repeated criminal activity by the accused. 3) Third grounds, necessary in the public interest The onus of justification for denying bail in on the Prosecution UNDERTAKING: the promise or guarantee from the accused to attend court trial. The accused promise to appear in court became a fundamental release condition. OFFICER IN CHARGE (OIC): has the authority to release an accused person “conditionally or unconditionally” include offences whose maximum penalty exceed five years imprisonment CONCEPT OF RICE: factors that must be considered in determining whether an arrested person must be released or whether continued detention and custody are necessary in the public interest If the arrested person is either a public safety risk or a fail to appear risk (that means RICE is not fulfilled) 1. Repetition of the offence (for which the accused has been charged) or any other offense (is there a risk of repetition') 2. Identity of arrested person (has the accused been identified') 3. Court appearance (is the risk that the accused will not appear in court') 4. Evidence relating to the offence (is the risk of such evidence being destroyed') RICE FULFILLED: means the arrested person is not a public safety or a fail-to-appear risk. Continued detention is justified. LEVELS OF RELEASE AND DETENTION: LEVEL | DECISION-MAKING LOCATION | PERSON REPONSIBLE FOR DECISION | 1 | At the scene of the arrest | Police officer(arresting officer) | 2 | At the police station | Officer in charge (staff sergeant) or any police officer | 3 | At the Bail hearing | Justice ( provincial court judge) | UNCODITIONAL RELEASE: means that the offender will not be required to attend court in answer to a charge. DECISION TO COMPEL A COURT APPEAREANCE Two documents are necessary 1. A sworn information to formally charge the offender 2. A release or compelling document, to force the offender to appear in court. * A sworn information represents the formal charge and is a separate document that accompanies the release or compelling document * A summons (form 6) * An appearance notice ( form 9) * A recognizance, issued by the officer in charge (form 11) * A recognizance , issued by a justice (form 32) * Undertaking by a justice(form 12) * Undertaking by a police officer or the OIC (form 11.1)