The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System

B. Police Release from Custody

Recommendation Three: Police Education and Use of Police Discretion

The Steering Committee recommends that police make better use of the available statutory forms of release (ss. 498 and 499 of the Criminal Code), including release with appropriate conditions on a recognizance without surety or with an undertaking as required. The Steering Committee further recommends that police education be supplemented in this regard. It recognizes that increased police training is an essential element of any plan to reduce unnecessary bail appearances.

The Federal/Provincial/Territorial Heads of Prosecutions Committee is of the view that increased use of police discretion to release arrested accused will result in a reduction in pre-trial remands. It appears that in some jurisdictions the police make limited use of their release powers. A number of commentators suggested that the violation of a release undertaking to the police should be included in s. 515(6) of the Criminal Code, thereby reversing the onus and requiring the accused to show cause why a further release order should be made. In Quebec, police officers wishing to detain an arrested person in pre-trial custody must contact a senior prosecutor. They are able to do so by telephone, 24 hours a day, 7 days a week.

Recommendation Four: Modernizing Police Powers of Release

The Steering Committee recommends that consideration be given to amending s. 498 (1)(c) of the Criminal Code to broaden police powers of release without sureties in an amount not exceeding $5,000, and without deposit of money or other valuable security.

  • The Steering Committee has identified inconsistency and under-utilization of police powers to release persons arrested by way of a release on a recognizance. This frequently results in overcrowding in bail courts with many persons subsequently being released on consent by Crown counsel.

  • While a person arrested without warrant may be released on a recognizance without surety or deposit, the Steering Committee notes that persons arrested by warrant may also be required to sign an undertaking in Form 11.1, setting out various conditions analogous to those typically set out in Court.

  • The Steering Committee recognizes the necessity and importance of police education concerning these procedures.

A number of commentators suggested that many of the bail provisions of the Criminal Code should be reviewed and modernized. There is currently a Federal/Provincial/Territorial working group conducting a comprehensive review of the bail system. Members of the defence bar consulted on this recommendation expressed the view that an increase in police releases would reduce the number of “lower end” bail proceedings taking up court time. Police officers expressed concern that the recommendation fails to reflect the realities of front-line policing. It assumes that because a person is a suitable candidate for bail at a bail hearing or first appearance, the police should have released following the arrest of the accused. As the first responders of the justice system, police confront situations at their most volatile and dangerous. The circumstances can look remarkably different even 12 hours later.

Recommendation Five: Information Sheets for Accused Persons

The Steering Committee recommends that when an accused is released by the police and given an appearance notice, that the police service provide to the accused a Legal Aid & Court Information Sheet.

  • The information sheet should outline the availability of legal aid, provide general information about what typically happens at a first appearance and explain what expectations the court will have of the accused, including the fact that the accused should have, or be actively in the process of, retaining counsel.

  • Information should also be provided about the availability of interpreters and provision for other particular needs that an accused may have.

  • In order to ensure that the information sheet is accessible and useful, its language should be plain and it should clearly state that it is an important document that should be consulted.

  • Jurisdictions may wish to consult with their local police services about the possibility of having the information sheet incorporated in documents currently provided to an accused and/or for an officer to review the salient points of the information sheet with the accused.

A consensus emerged during consultations that this recommendation warrants further consideration. Members of the police and prosecution communities expressed concern about the procedural, evidentiary and constitutional implications of the recommendation. They also indicated reluctance to see another informational function imposed on front line officers. Other commentators were enthusiastic about the recommendation and felt it would encourage accused to contact legal aid in advance of the first court appearance. Ensuring that accused who are released by police clearly understand the next step in the process may also reduce the number of fail to appear charges. In support of this recommendation, one commentator stated: “It seems to me that this may be one of the least costly and yet perhaps most effective of the recommendations in terms of early case resolution.”

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