Interim release

In criminal law, the accused enjoys the presumption of innocence. Thus, no one can be sentenced to imprisonment until they have pleaded guilty or been sentenced at trial. However, sometimes an accused is pre-trial detention. What are the rules for interim release?

Procedure

When the police arrest a person, they have different means to ensure that the person appears in court to answer for the offence with which they are charged. The police can first proceed by summons, which is a document that tells the accused when they must appear in court. The police may also issue the accused with a summons to appear, ordering the person to appear on a specific date. The police may also prefer the promise to appear. In this case, it indicates a date of appearance and the accused undertakes to appear. A promise to appear allows conditions to be imposed, such as staying in a specific jurisdiction or refraining from communicating with a person.

In certain cases and/or in connection with certain offences, the police have the power to detain the accused. In this case, the Criminal Code provides that the person must be brought before a justice of the peace within 24 hours of arrest or as soon as possible to determine whether or not to be released. A release hearing may take place if an agreement has not been reached between the prosecution and the defence on the release of the accused.

Grounds for detention

In accordance with the provisions of the Criminal Code, with a few exceptions, an accused who pleads not guilty must be released pending trial, unless there are grounds justifying detention. This is a right protected by the Canadian Charter of Rights and Freedoms.

The Charter guarantees the right not to be deprived without just cause of release on reasonable bail. This right is intimately linked to the protection of the presumption of innocence.

It is the prosecution that has the burden of showing that detention is necessary. However, proof does not have to be made beyond a reasonable doubt, as is the case with the guilt of the accused, but only on the balance of probabilities.

The grounds for detention are set out in the Criminal Code :

• Detention is necessary to ensure the presence of the accused in court since there is a risk of absconding.
• Detention is necessary for the protection or safety of the public, especially victims and witnesses and juveniles. Detention is considered necessary if there is a substantial likelihood of recidivism and recidivism compromises the protection or safety of the public. In this regard, the following factors are relevant to assess: nature of the offence, circumstances of the offence, likelihood of conviction, degree of involvement in the offence, relationship with the victim, profile of the accused, post-offence conduct, danger to the community posed by provisional release, etc.
• Detention is necessary so as not to undermine public confidence in the administration of justice. In assessing this, all the circumstances must be considered, including: whether the charge appears to be well-founded, the seriousness of the offence, the circumstances of the offence, including the use of a firearm, whether the accused is facing a long term of imprisonment or, in the case of an offence involving a firearm, a minimum term of imprisonment of at least three years

It is sufficient that one of these grounds is present for the detention to be justified.

Conditions of release

The accused may be released with or without conditions. The Criminal Code provides that the accused must be released without conditions, unless the prosecution succeeds in bringing forward grounds to impose them. These grounds are the same as those justifying the detention explained above.

That being said, the case law says that the conditions imposed must be reasonable. To be reasonable, the conditions must be as onerous as possible and must be enforceable by the accused. It is therefore necessary to keep the conditions to a minimum and to assess, before adding more severe conditions, whether this is necessary to meet the risks posed by the accused. Your criminal lawyer will make sure you have the least severe conditions possible.

Release may be accompanied in some cases by financial conditions. These types of conditions are usually imposed when there is a concern that the accused will not appear in court to be tried, commonly referred to as “lack of agency“. Financial terms may take the form of an undertaking by the accused to pay a sum of money in the event of non-compliance with a condition. This undertaking may or may not be accompanied by a deposit. However, the amount of the deposit must not be higher than necessary to remedy the risk and must be proportionate to the circumstances of the case and the means of the accused.

Special rules applicable to certain infringements

While the general rule is that the accused be released, unless the prosecution succeeds in providing grounds for detention, the situation is different in some cases. For certain offences considered particularly serious, such as murder, the judge must, in all cases, order detention.

In some cases, the accused may be released, but the onus is on him or her to prove that detention is not necessary. This is the case, for example, where a firearm is presumed to have been used in the commission of the offence or where the person has committed a criminal offence and does not reside in Canada.

Practical considerations

In reality, whether the onus is on the prosecution or defence to prove that detention is necessary or, conversely, that it is not, both the prosecution and the defence generally present evidence to support the conclusions they seek. The prosecution and defence may also reach an agreement on release and the conditions to be associated with it.

In the event that you are detained, it is therefore important to use the services of a competent defence lawyer who can help you obtain provisional release on the least restrictive conditions possible. Contact us now to protect your rights.