INTRODUCTION AND BRIEF DESCRIPTION
This section allows a justice to order a persons release with prosecutor consent and under certain conditions pending the execution of an arrest warrant for an indictable offence.
SECTION WORDING
503(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released (a) unconditionally; or (b) on any of the following terms to which the prosecutor consents, namely, (i) giving an undertaking, including an undertaking to appear at a specified time before the court that has jurisdiction with respect to the indictable offence that the person is alleged to have committed, or (ii) entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsection 515(4) as the justice considers desirable and to which the prosecutor consents.
EXPLANATION
Section 503(3.1) of the Criminal Code of Canada is a provision that allows a justice to order the release of a person who is subject to an arrest warrant, pending its execution. This provision is meant to balance the need to ensure that the person does not evade justice with the principle of presumption of innocence and the right to liberty. Under this provision, a justice may order the release of the person on certain conditions, such as giving an undertaking to appear in court or entering into a recognizance with conditions that the justice considers desirable. The consent of the prosecutor is required for such conditions to be imposed. The purpose of this provision is to provide an alternative to the detention of the person until the warrant is executed. This may be necessary in cases where the person poses no risk of flight or harm to others and where detention would be disproportionate to the alleged offense. This provision also applies to cases where a person has been arrested on a non-indictable offense, but a warrant has been issued for their arrest on an indictable offense. In such cases, the justice may order their release on conditions that are similar to those listed above. Overall, section 503(3.1) of the Criminal Code of Canada serves as a means to balance the principles of justice, liberty, and public safety in the context of warrant executions.
COMMENTARY
Section 503(3.1) of the Criminal Code of Canada provides for the possibility of a person being released from custody pending the execution of a warrant for their arrest. This is an important provision that helps to balance the interests of the state in apprehending alleged offenders with the rights of the accused to be free from arbitrary detention. However, the criteria set out in this provision are quite specific, and the application of this provision in practice may not always be straightforward. The provision states that a justice may order the release of a person referred to in subsection (3) (which deals with the issuance of a warrant for arrest) with the consent of the prosecutor. This means that the decision to release a person under this provision is not solely in the hands of the justice, but rather requires the agreement of both the prosecutor and the justice. This reflects the balancing of interests mentioned above - the prosecutor will want to ensure that the accused person does not flee or commit further offenses while awaiting the warrant, while the justice will want to ensure that the accused person is not unnecessarily detained and that their liberty interests are protected. If the prosecutor consents to the release of the accused person, the justice may order that the person be released either unconditionally or on certain specified terms. These terms may include giving an undertaking to appear in court at a specified time, or entering into a recognizance with certain conditions attached. The specific recognizances mentioned in the provision are those set out in section 515(2)(a) to (e) of the Criminal Code, which deal with various aspects of pre-trial release, such as the requirement to remain in a particular geographic area or to report to a particular person or agency. The provision also allows the justice to attach whatever conditions they deem desirable, as long as they have the consent of the prosecutor. This means that the justice has some discretion in deciding what conditions should be attached, but they must not be so onerous as to amount to a de facto detention of the accused person. The conditions should be tailored to the individual circumstances of the case and should be the minimum necessary to ensure the safety of the public and the accused person's attendance in court. Overall, section 503(3.1) is an important provision that helps to ensure that accused persons are not unduly deprived of their liberty while awaiting the execution of a warrant for their arrest. It strikes a balance between the interests of the state and the rights of the accused and allows for a level of discretion in deciding what conditions should be attached to a person's release. However, as with any decision-making function, the application of this provision in practice will depend on the individual circumstances of each case, and how the various actors involved exercise their discretion. It will be important for prosecutors and justices to be mindful of the reasons for this provision and to ensure that it is used in a way that is fair and just.
STRATEGY
Section 503(3.1) of the Criminal Code of Canada provides a mechanism for the release of a person who is subject to an arrest warrant on the agreement of the prosecutor and the justice. This section allows for the release of the individual on certain terms, including the giving of an undertaking or entering into a recognizance, subject to the prosecutor's consent. This provision provides an opportunity for a strategic approach to dealing with the pre-trial release of an individual facing criminal charges. One strategic consideration when dealing with section 503(3.1) is the potential use of this provision as a way to secure the release of an accused person who may otherwise be held in custody. This is particularly relevant in cases where an individual is having difficulty meeting the conditions for release set out in other provisions of the Criminal Code, such as section 515. The consent of the prosecutor is required for the use of section 503(3.1), so building a positive relationship with the prosecutor and negotiating the terms of release can be a strategic approach to securing the release of an accused person. Another strategic consideration is the importance of ensuring that any release conditions that are agreed upon are manageable for the accused person and will not result in future breaches. This means taking into account the individual's personal circumstances, such as work or family commitments, when negotiating the terms of release. By ensuring that the conditions are reasonable and manageable, the risk of future breaches can be reduced. One strategy that could be employed when negotiating the terms of release is to propose a plan for the accused person to comply with the release conditions. This can include providing details of a proposed residence, proposed sureties, and details of any employment or education commitments. By presenting a well thought out plan, the prosecutor and the justice may be more willing to agree to the release on the proposed terms, as it demonstrates that the accused person has thought through their situation and is committed to complying with the conditions of release. Another strategy that could be employed is to seek the assistance of a criminal defence lawyer who has experience in negotiating the terms of release. A lawyer can provide guidance on how to approach negotiations, including the preparation of a proposed plan and communication with the prosecutor. Having a lawyer on board can also provide assurance to the prosecutor and the justice that the accused person is committed to complying with the conditions of release. In conclusion, section 503(3.1) of the Criminal Code of Canada provides an opportunity for a strategic approach to securing the release of an accused person facing criminal charges. By building a positive relationship with the prosecutor, proposing a well thought out plan, and seeking the assistance of a criminal defence lawyer, the potential for a successful release can be maximized.