PRE TRIAL RELEASE
BY PAUL COOPER, BARRISTER
PRE TRIAL RELEASE
In a democracy;
 We grant power to a certain segment of the
population (i.e. Police/Justice/Judge)
 The power granted can impact on the liberty of
another segment of the population (i.e. Accused
Persons)
 During a defined period (Arrest  Trial)
CCC- PART XVI- COMPELLING APPEARANCE OF AN
ACCUSED BEFORE A JUSTICE & INTERIM RELEASE
Police Power
 s. 495 (1) – arrest without warrant…

(a) Committed/about to commit an indictable offence

(b) Finds person committing criminal offence
(c) Warrant o/s

Limitation
 s. 495 (2) Police shall not arrest without warrant…


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(a) Absolute jurisdiction (s 553)
(b) Hybrid offences
(c) Straight summary offences
IF
(d) On reasonable grounds that the public interest…may be satisfied
without so arresting the person (e.g. no concerns about ID/Loss of evidence/
repetition of offence)
AND
(e) confident that the accused will attend court
THREE TYPES OF RELEASE
1. “Roadside”
2. “Station”
3. “Show cause hearing”
“ROADSIDE” RELEASE
 If arrested/charged pursuant
to s. 495 (2), then s. 496 calls
for release by way of an
Appearance Notice
 Form 9
“ROADSIDE” RELEASE CONTINUED
Permissible release
 s. 497 (1) (a) summons (Form 6)
(1) (b) appearance notice (Form 9)
Exception – “shall not release…”
 (1.1) (a) It is necessary in the public interest that the person be
detained in custody or their release via other section of CC
having regard to circumstances and need to: Establish
Identity/Preserve Evidence/Prevention/Safety of
complainant/Witness
“STATION” RELEASE
 s. 498 (1) Release from custody by officer in charge (of
station)
(No warrant) release by



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(a) Summons (Form 6)
(b) Promise to appear (Form 10)
(c) Own recognizance (≤$500, no deposit)
(d) Own recognizance ≤$500 with deposit, If not resident of
province or ≥200km
Exception

(1.1) It is necessary in the public interest that person be
detained in custody or their release via other section of CC
having regard to circumstances and need to: Establish
Identity/Preserve Evidence/Prevention/Safety of
complainant/Witness
“STATION RELEASE” CONTINUED
 s. 499 Release from custody by Officer in Charge (of station)
where arrest made with warrant



(1)(a) Promise to appear
(1)(b) Own recognizance ≤$500
(1)(c) Own recognizance ≤$500 with deposit, If not resident of province or
≥200km
BUT can add conditions
s. 499 (2) Additional Conditions
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(a) Remain in territorial jurisdiction (Form 11.1)
(b) Notify peace officer or other person of address/employment change
(c) Non contact
(d) Deposit passport
(e) Abstain from possession of firearms
(f) Reporting
(g) Abstain (i) alcohol etc. (ii) drugs
(h) Other necessary conditions
REVIEWABLE
A s. 499 undertaking with conditions is not a judicial
order, therefore, provisions are reviewable:

s. 499 (3) & 503 (2.3) Accused – at any time prior to or at first
appearance – apply (application use Form 1) – get a bail
hearing for an order under s. 515 (1)
s. 499 (4) & 503(2.3) prosecutor at any
time before the hearing and 3
days notice or at hearing order
under s. 515 (2) to replace

ETHICS
Ethics:
Rule of Professional Conduct
 Duty to client [ex- s. 517 publication ban)
Rule 3.2-1
 Prepared
Rule 3.1-2, Commentary [3](d)
 Knowledgeable of the subject
Rule 3.1-2
 s. 503(1)(a)- a.s.a.p. w/o reasonable delay
 Zealous advocate
Rule 5.1-1, Commentary [1]
 Know your client
By-Law 7.1, Part III
 Do not be a dupe
Rule 3.2-7
 Do not assist in perjured testimony
Rule 5.1-2
 Do not overreach (s. 469)
Rule 3.1-2, Commentary [3](b)
 Retainer (cash)
By-Law 9
WHY?
 Objective- change the conversation
 Custody=Jeopardy, custody creates the greatest need
for the use of the lawyer
 Statistics show 99% plead guilty
 Bail should be highest priority – client’s highest time
of need
 Don’t take for granted
“SHOW CAUSE” RELEASE
The Hearing
Role
Justice will decide after presentation of evidence and submissions whether cause has been shown
Onus
Crown onus unless s. 515(6)
Evidence
Credible and trustworthy s 518(1)(e)
Burden
Balance of probabilities
Test s. 515(10)
 (a) Primary
 (b) Secondary
 (c) Tertiary
 (i) Strength of crown case
 (ii) Gravity of offence
 (iii) Circumstances surrounding offence
 (iv) Potential length of jail term
THE COOP’S STEP LADDER APPROACH
s. 515 (2)(e) shall release on
recognizance with deposit, with
to without surety; with or
without conditions (not resident
of province à or ≥200
s. 515(2)(d) shall release on
consent recognizance without
sureties but $ deposit with or
without conditions
s. 515(2)(c) shall release on
recognizance $ no deposit with
sureties with/without conditions
s. 515(2)(b) shall release on recognizance $ no
deposit, without sureties – with/without
conditions
s. 515(2)(a) shall release on undertaking with conditions
D
E
T
E
N
T
I
O
N
s. 515(1) Shall release on an undertaking without conditions
unless prosecutor shows cause
FACTUAL PREPARATION
Understand client
Accused Bail Checklist
 Educate and build
expectation level of the
client
 Understand sureties
Surety Checklist
 Educate and build
expectation level of
sureties
THE PLAN
 Create a plan that addresses the needs of ALL
stakeholders and learn the language of “web of
protection”
Best analogy/Question
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Who should be the jailor?
Accused? Why not?
Accused with assistance of bail program if no sureties? Why not?
Accused and sureties? Why not?
CONCLUSION
 1. Your client is # 1
 2. Court resources should not be your
concern
 3. Charter of Rights and Freedoms
s. 7 – right to life, liberty and security of person and the right not
to be deprived thereof except in accordance with principles of
fundamental justice
 s. 9 – right not to be arbitrarily detained or imprisoned
 s. 11(d) – fair trial – innocent until proven guilty
 S. 11(e) – not to be denied reasonable bail without just cause
