INTRODUCTION AND BRIEF DESCRIPTION
Justices must provide a record of their reasoning if they choose not to add a condition to an order made under section 515(2) of the Criminal Code of Canada.
SECTION WORDING
515(4.12) Where the justice does not add a condition described in subsection (4.1) to an order made under subsection (2), the justice shall include in the record a statement of the reasons for not adding the condition.
EXPLANATION
Section 515(4.12) of the Criminal Code of Canada is a provision that requires judges to explain why they did not add a condition to an order made under subsection (2) of section 515. This subsection pertains to the release of an accused person on bail pending trial. Normally, when granting bail, the judge can add certain conditions, such as the requirement to surrender passports or to report to a police station regularly. These conditions are intended to ensure that the accused person attends their court date and does not commit further offences while awaiting trial. However, there may be cases where the judge decides not to add any conditions to the bail order. In such cases, section 515(4.12) requires the judge to provide a statement of the reasons for not doing so. This provision is designed to ensure transparency and accountability in the bail process. It enables an accused person, or anyone else who has an interest in the case, to understand why certain conditions were not imposed and to challenge that decision if necessary. The requirement to provide reasons for not adding conditions is also intended to ensure consistency in the bail process. By explaining their decision-making process, judges can help to establish clear guidelines for when conditions should or should not be imposed. This can help to prevent arbitrary or discriminatory decisions and promote fairness in the criminal justice system. Overall, section 515(4.12) is an important provision that promotes transparency, accountability, and consistency in the bail process. It helps to ensure that decisions about bail are based on clear and rational criteria, rather than on subjective or arbitrary factors.
COMMENTARY
Section 515(4.12) of the Criminal Code of Canada is an important provision that requires justices to provide a statement of reasons when they choose not to add a condition to an order made under subsection (2) of Section 515. This section of the Criminal Code is instrumental in ensuring that the administration of justice is transparent, accountable, and fair. The subsection (4.1) of Section 515 outlines the conditions that a justice of peace may impose on an accused person who is released on bail under subsection (2) of the same code. These conditions may include the following: - Requiring the accused person to remain within a specified area, - Requiring the accused person to report to the police at stated times, - Requiring the accused person to surrender any travel documents, - Requiring the accused person to provide a surety, and - Requiring the accused person to abstain from consuming alcohol, drugs, or other intoxicating substances. While these conditions are not exhaustive, they serve the purpose of ensuring that the accused person appears for trial, does not commit any other offense, and does not interfere with the administration of justice. However, there may be circumstances where a justice may decide not to impose a condition on the accused person. For instance, the justice may determine that the accused person poses no flight risk and that the other conditions already imposed are sufficient to ensure compliance. In such instances, subsection (4.12) mandates that the justice should provide a statement of the reasons for not adding the condition to the order. This statement serves as a record of the justice's thought process and ensures that the accused person, the prosecution, and the public have an understanding of the decision-making process. The importance of ensuring that courts and tribunals record their decisions and their reasons cannot be overstated. The transparency of judicial decision-making ensures public confidence in the system and allows for effective scrutiny and accountability. In addition, the requirement for reasons ensures that accused persons are aware of the basis for their detention and can mount a meaningful challenge should they disagree. In summary, Section 515(4.12) is an essential provision in the Criminal Code of Canada that ensures transparency and accountability in the administration of justice. This provision underscores the importance of judicial decision-making and ensures that accused persons, the prosecution, and the public are aware of the reasoning behind bail decisions. It is crucial that courts and tribunals comply with this section of the code and provide clear and concise reasons for their decisions.
STRATEGY
Section 515(4.12) of the Criminal Code of Canada imposes an obligation on the Justice to provide written reasons for not including the conditions described in subsection 4.1 to an order made under subsection 2 of the same section. In essence, the section establishes the requirement for a judge to proceed deliberately when making a decision related to bail and justify why a particular decision was made. When dealing with this section, a number of strategic considerations can be taken into account, as discussed below. First, it is important to recognize that a judge's decision-making process will impact the outcome of the case, and as such, it deserves to be challenged appropriately. An unsuccessful attempt to challenge a bail decision can lead to significant consequences that affect a client's life. To minimize the risks involved, the various strategies employed in challenging the decision must include a thorough analysis of the judge's reasons for not adding the condition, which may include elements such as criminally involved behavior, past criminal record, etc. Second, lawyers should focus their attention on the specific reasons provided in the judge's written record and seek to identify any legal or factual errors made. A judge's reasoning must be clear, concise, and consistent, and any failure to meet these standards can provide the opening for an effective challenge. Lawyers could also consider engaging expert evidence in situations such as mental health assessment if relevant to the case. Third, lawyers should understand that setting priorities is key when dealing with ambiguous situations surrounding bail decisions. They should consider the type of bail that is most appropriate concerning their client's circumstance and advocate for their client accordingly. For instance, ensuring that an electronic monitor is put in place to monitor their client's behaviors. Fourth, developing a constructive relationship with the prosecution is crucial to obtaining a favorable bail outcome. Prosecutors need to be presented with the facts of the case in a manner that highlights the unique circumstances of the client, which might sway their decision when examining the particulars of the case. Fifth, recognizing that the availability of alternative forms of bail allows the defense counsel to demonstrate to the court that their client can be trusted to follow the conditions set out by the court is also crucial. The availability of programs such as electronic monitoring, house arrest, strict supervision, and community supervision can provide a final push for a judge to include conditions in an order made under section 515(2), potentially setting a tone for the court proceedings in the future. In conclusion, the strategies employed in challenging bail decisions warrant scrupulous and meticulous consideration of the specific reasons provided in the judge's written record. Beyond that, focusing on legal and factual errors, setting priorities for alternative forms of bail, establishing good working relationships, and community programs are all crucial elements when advocating for better bail outcomes for clients.