INTRODUCTION AND BRIEF DESCRIPTION
A person who has entered into an undertaking may apply to replace it with an order under section 515 with modifications as required.
SECTION WORDING
503(2.2) A person who has entered into an undertaking under subsection (2.1) may, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, apply to a justice for an order under subsection 515(1) to replace his or her undertaking, and section 515 applies, with such modifications as the circumstances require, to such a person.
EXPLANATION
Section 503(2.2) of the Criminal Code of Canada is a provision that allows individuals who have entered into an undertaking to apply to the court for a modification of their conditions. The section specifies that an individual who has entered into an undertaking can file an application before or at their scheduled appearance pursuant to a promise to appear or recognizance. Such an application requests an order under subsection 515(1) to replace the undertaking with new conditions. Section 515(1) of the Criminal Code provides a framework for granting release to an accused person. It stipulates that a justice may release an individual from custody on a promise to appear or recognizance with conditions that would ensure the individual's attendance in court. When a person successfully applies for an order under subsection 503(2.2), subsection 515(1) applies with such modifications that the circumstances require to the modification of the conditions in the existing undertaking. This provision is useful for individuals who may have changed circumstances that make it hard for them to adhere to the current conditions stipulated in their undertaking. For instance, a person who may have lost a job or a home due to extenuating circumstances may no longer be able to comply with a condition that required them to maintain employment or a place of residence. By applying to the court, such an individual can request a modification of the current conditions to ones they can readily meet. In summary, this provision provides individuals with an avenue for seeking modifications of their current conditions. This option is particularly helpful when circumstances have changed, and individuals may need a different set of conditions to comply with before their court date.
COMMENTARY
One of the core principles of a criminal justice system is the presumption of innocence until proven guilty. Under this principle, an individual should not be deprived of their liberty unless there is clear evidence of their guilt or if the individual poses a threat to society. The Criminal Code of Canada recognizes this principle and provides individuals with certain rights and protections to ensure that their liberties are not unnecessarily curtailed. Section 503(2.2) of the Criminal Code of Canada is one such provision that protects the liberty of individuals who are facing criminal charges. This section allows an individual who has entered into an undertaking under subsection (2.1) to apply to a justice for an order under subsection 515(1) to replace their undertaking. It provides the individual with an avenue to request a modification of their conditions of release. Section 515 outlines the rules and procedures for conducting a bail hearing and imposing conditions on release. Thus, section 503(2.2) serves to bridge the gap between an individual's initial release and their formal bail hearing. Under subsection (2.1), an individual who is charged with a criminal offence may be released on certain conditions, such as abstaining from alcohol and drugs, reporting to a probation officer, and staying away from certain people or places. The conditions aim to ensure that the individual does not pose a flight risk or a danger to society. However, the initial conditions provided may not be suitable for the individual, or the conditions may become burdensome or impractical over time. Section 503(2.2) allows the individual to request a change to these conditions at any time before or at their appearance pursuant to a promise to appear or recognizance. This provision provides an opportunity to make the necessary changes to the conditions of release, which could improve the individual's quality of life and reduce the likelihood of breaching the conditions. Section 515 of the Criminal Code outlines the rules and procedures for conducting a bail hearing and imposing conditions on release. The section also provides guidance on the factors to consider when determining whether to release an accused on bail. These factors include the likelihood of the accused attending court, the sufficiency of the sureties, the nature and gravity of the offence, and the ability of the accused to carry out any proposed conditions. Section 503(2.2) indicates that section 515 applies to an individual who has entered into an undertaking under subsection (2.1), with suitable modifications. This provision aims to ensure that the individual's rights and liberties are protected from the initial release through to the formal bail hearing. The modifications to section 515 will depend on the circumstances of the case and the nature of the requested changes to the conditions of release. In conclusion, section 503(2.2) of the Criminal Code of Canada serves as an essential provision in protecting the liberty of individuals who are charged with criminal offences. The section provides individuals with an avenue to request changes to their conditions of release, ensuring that their rights and liberties are protected from their initial release through to the formal bail hearing. The modifications to section 515 will depend on the specific circumstances of the case and the requested changes to the conditions of release, ensuring that the balance between liberty and safety is carefully maintained.
STRATEGY
Section 503(2.2) of the Criminal Code of Canada provides an accused person with an opportunity to apply for a replacement of their undertaking before or at their appearance pursuant to a promise to appear or recognizance. This provision is important because it gives accused persons a chance to change their release conditions if they feel that their current ones are too onerous or inflexible. However, it also raises strategic considerations for lawyers representing accused persons, as they must weigh the potential benefits and risks of making such an application. One strategic consideration when dealing with this section of the Criminal Code is how likely the application is to be successful. Before making an application, lawyers should assess whether there are legitimate grounds for changing the accused person's release conditions. For example, they may argue that the accused has complied with their current undertaking and has demonstrated that they are not a flight risk or danger to the public, and therefore, should be granted less restrictive conditions. Alternatively, they may argue that the accused would benefit from more restrictive conditions, such as a curfew or electronic monitoring, to ensure they comply with their bail conditions and prevent them from committing further offences. Lawyers may also need to consider the impact of the application on the accused person's credibility and reputation, and whether they risk being seen as someone who cannot be trusted to comply with their bail conditions. Another strategic consideration is timing. Lawyers must carefully choose when to make the application, as doing so too early may be seen as an unnecessary or frivolous attempt to change the accused person's conditions, while waiting too long may jeopardize the accused person's defence. This decision should be made in consultation with the accused person and should take into account the urgency of the situation and the availability of the courts. A third strategic consideration is the potential impact of the application on the prosecutor's case. Lawyers should consider how the application will be perceived by the prosecutor and the court, and whether it will give the prosecutor ammunition to argue that the accused person is a flight risk or danger to the public. Lawyers should also consider whether making an application may force the prosecutor to disclose additional evidence or change their approach to the case. In terms of strategies that could be employed when dealing with this provision, lawyers may consider the following: 1. Conducting a thorough assessment of the accused person's circumstances, including their prior criminal record, employment status, and ties to the community, to determine whether there are legitimate grounds for changing their release conditions. 2. Engaging in early negotiations with the prosecutor to try to agree on a mutually acceptable change to the accused person's release conditions. 3. Choosing the appropriate time to make the application, based on the urgency of the situation and the availability of the courts. 4. Preparing a compelling argument that takes into account the relevant legal principles and the accused person's individual circumstances, and that addresses any potential concerns raised by the prosecutor or the court. 5. Being prepared to negotiate and make concessions, if necessary, in order to reach a resolution that is acceptable to the accused person while minimizing any negative impact on their case. Overall, section 503(2.2) of the Criminal Code of Canada provides a valuable tool for accused persons seeking to change their bail conditions. However, lawyers representing accused persons must be mindful of the potential risks and benefits involved in making such an application, and must be prepared to employ appropriate strategies to achieve their client's goals and protect their interests.