Criminal Code of Canada - section 491(1.1) - Exception

section 491(1.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines when a peace officer cannot release a person from custody based on public interest or concerns of reoffending or failing to attend court.

SECTION WORDING

491(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

EXPLANATION

Section 491(1.1) of the Criminal Code of Canada outlines the circumstances under which a peace officer can detain a person instead of releasing them after an arrest. This provision is included in part 27 of the Criminal Code, which deals with the release from custody of accused persons pending trial or appeal. Under subsection (1), a peace officer has the discretion to release a person who has been arrested on certain conditions. However, subsection (1.1) imposes limitations on this discretion to ensure public safety and the administration of justice. Firstly, a peace officer cannot release a person if they believe, on reasonable grounds, that it is necessary for the public interest that the person be detained in custody. This determination must take into account all circumstances, including the need to identify the person, preserve evidence, prevent the continuation of the offense or the commission of another offense, and ensure the safety of any victims or witnesses. Secondly, a peace officer cannot release a person if they believe, on reasonable grounds, that the person will fail to attend court if released. This is to ensure that accused persons attend their court dates to be dealt with according to the law. Overall, section 491(1.1) of the Criminal Code seeks to balance public safety with the rights of accused persons. It allows peace officers to detain individuals who pose a threat to the public or who may not comply with court orders while still maintaining due process for those accused of a crime.

COMMENTARY

Section 491(1.1) of the Criminal Code of Canada outlines the circumstances under which a peace officer is prohibited from releasing a person who has been arrested. Specifically, this section outlines the situations where a peace officer may believe it is necessary to detain the person in custody or refer the matter of their release to another provision within Part XXVII of the Criminal Code. The provision sets out a number of reasonable grounds under which a person may not be released by a peace officer. These include the necessity of establishing the identity of the person, securing or preserving evidence of or relating to the offence, preventing the continuation or repetition of the offence, and ensuring the safety and security of victims and witnesses. Section 491(1.1) operates to balance two important interests in the criminal justice system: the protection of society from further harm and the rights of individuals, including the presumption of innocence and the right to be released pending trial. It recognizes that in some circumstances, detention of the accused may be necessary for the protection of the public, the investigation of the offence, and the preservation of evidence. The provision gives discretion to peace officers when determining whether to detain or release an individual. A peace officer is required to consider all the circumstances, including the need to prevent further harm and secure evidence, as well as the person’s individual circumstances, such as their likelihood to reoffend and their connections to the community. The provision also recognizes that the failure of an accused to appear in court is a legitimate concern. If a peace officer believes that a person will fail to attend court if released, the officer may detain the individual. While the provision recognizes the importance of protecting the public and the investigation, it is important to note that it does not permit detention without limits. Detention for investigative purposes must be limited in time and scope, and the rights of the accused must be respected throughout the investigation. Overall, Section 491(1.1) provides a necessary balance between the protection of society and the rights of the accused. It recognizes that there are situations in which detention is necessary for the protection of the public and the investigation, but also respects the rights of the accused to be released pending trial. As with any provision in the Criminal Code, it is important that this section is carefully applied to ensure that the rights of all parties are respected.

STRATEGY

Section 491(1.1) of the Canadian Criminal Code outlines the conditions that must be met before a peace officer can release an individual from custody. This section specifies that a peace officer cannot release a person from custody if they believe, on reasonable grounds, that detention is necessary in the public interest or if the person is likely to fail to attend court. Some strategic considerations when dealing with this section could include balancing the public interest with individual rights, ensuring the safety and security of all those involved, and minimizing the risk of re-offending. One potential strategy is to prioritize the safety and security of victims and witnesses of a crime. If releasing an individual could put others at risk, it may be necessary to keep them in custody until after the investigation is complete. In some cases, it may be necessary to establish a witness protection program to ensure that witnesses are safe and able to testify at trial. Another strategy could be to focus on minimizing the risk of re-offending. This could involve monitoring the individual after their release from custody, providing resources for rehabilitation and treatment, or instituting conditions that the person must follow, such as attending counseling or refraining from contact with certain individuals. If the individual is likely to re-offend, it may be necessary to keep them in custody until they are deemed safe to release into the community. A key consideration when dealing with this section is balancing individual rights with the public interest. While it may be necessary to keep someone in custody to protect the public, it is important to ensure that individual rights are not violated. This could involve providing legal representation or ensuring that the individual is aware of their rights. Additionally, releasing someone from custody may be necessary if it is unlikely that they will flee or re-offend. In conclusion, there are several strategic considerations when dealing with Section 491(1.1) of the Criminal Code of Canada. Balancing public safety with individual rights, minimizing the risk of re-offending, and ensuring the safety and security of witnesses and victims are all critical factors to consider. Strategies that may be employed include monitoring the individual after their release, setting conditions for release, or prioritizing witness protection. Ultimately, the decision to release someone from custody must take into account all of the relevant circumstances and ensure that the public interest is served.