INTRODUCTION AND BRIEF DESCRIPTION
This section lists offenses that allow for preventative detention.
SECTION WORDING
515(4.3) The offences for the purposes of subsection (4.2) are (a) a terrorism offence; (b) an offence described in section 264 or 423.1; (c) an offence in the commission of which violence against a person was used, threatened or attempted; and (d) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act.
EXPLANATION
Section 515(4.3) of the Criminal Code of Canada is a provision dealing with the pre-trial detention of an accused person. This section specifies the offences that can be considered "primary designated offences" for the purposes of denying bail to an accused person. These primary designated offences include: terrorism offences, offences described in sections 264 or 423.1 (which deal with criminal harassment and participating in a criminal organization, respectively), offences involving violence against a person, and certain offences under the Security of Information Act (which deals with national security matters). The purpose of this section is to ensure that individuals accused of serious offences are not released into the community while awaiting trial, where they may pose a threat to public safety. It allows the Crown to argue that the accused should be detained in custody until their trial, rather than being released on bail. The provision is meant to strike a balance between protecting public safety and the rights of the accused. While pre-trial detention can be highly restrictive, it is necessary in cases where the accused poses a significant risk to the community or may flee before trial. Section 515(4.3) ensures that such decisions are made with careful consideration of the facts and circumstances of the case, and in accordance with the principles of fundamental justice.
COMMENTARY
Section 515(4.3) of the Criminal Code of Canada, lists the offenses that may warrant pre-trial detention under section 515(4.2) of the code. The first offense listed is a terrorism offense. This includes acts of terrorism, financing terrorism, and advocating or promoting terrorism. Given the risk that those charged with terrorism offenses pose to national security, it is unsurprising that this is one of the reasons for which pre-trial detention can be ordered under Section 515(4.2). The second offense listed is an offense described in section 264 or 423.1 of the Criminal Code. Section 264 describes offenses related to harassment, while section 423.1 describes offenses related to participating in a criminal organization. These offenses, while not necessarily as serious as terrorism, can still represent significant risks to public safety and warrant pre-trial detention under Section 515(4.2). Offenses in which violence against a person was used, threatened or attempted are the next category of offenses listed. This includes offenses such as assault or murder and represents a clear danger to individuals in society. In such cases, pre-trial detention is often necessary to ensure that the accused does not pose a risk to others. Finally, Section 515(4.3) notes that offenses under subsection 20(1) of the Security of Information Act can also warrant pre-trial detention. This section of the act deals with espionage and other offenses related to national security. Given the sensitivity of national security and the potential harm that can be caused, it is appropriate that those charged with these offenses can be detained pre-trial under Section 515(4.2). It is worth noting that the use of pre-trial detention remains a contentious issue in Canada. While it can be an effective tool in ensuring public safety, it can also be used inappropriately, leading to individuals being detained prior to trial unnecessarily. Section 515 of the Criminal Code, and specifically Section 515(4.2) and (4.3), try to balance these competing interests, but it is ultimately up to the discretion of the presiding judge to determine whether pre-trial detention is warranted in each individual case. Overall, Section 515(4.3) of the Criminal Code of Canada is an important provision that helps to ensure public safety by allowing for pre-trial detention in cases where an accused represents a significant risk to society. By outlining specific offenses for which pre-trial detention is allowed, the provision provides guidance to judges while allowing for discretion on a case-by-case basis.
STRATEGY
Section 515(4.3) of the Criminal Code of Canada outlines criteria for the detention of an accused. Specifically, it identifies four categories of offences for which an accused may be detained without bail under certain circumstances. In this essay, we explore strategic considerations when dealing with this section, and some strategies that could be employed. One strategic consideration is the importance of understanding the nuances of each subsection of the provision. For example, the term "terrorism offence" in subsection (a) is defined in section 2 of the Criminal Code. It includes several specific types of crimes, including murder, kidnapping, and hostage-taking for political or ideological reasons. In contrast, subsection (b) identifies specific offences under section 264 and 423.1, which both relate to criminal harassment and intimidation. Understanding these differences can help lawyers and judges make more informed decisions about the accused's detention. Another strategic consideration is the impact of the Crown's burden of proof. To detain an accused under section 515(4.3), the Crown must satisfy the court that detention is necessary to ensure the accused's attendance in court, protect the public, or maintain confidence in the justice system. As such, the Crown's burden is higher than in standard bail hearings, where detention is only allowed if necessary to ensure an accused's attendance or public safety. Accordingly, defence lawyers could focus on mitigating these factors, such as by arguing that the accused has strong ties in the community or is unlikely to reoffend. A third strategic consideration is the importance of engaging expert witnesses. This may be particularly relevant in cases involving terrorism offences or violence, where understanding the psychological or ideological motivations of the accused may be critical. Defence lawyers could retain experts to testify about the accused's mental state or potential for rehabilitation. Similarly, the Crown could bring in experts to explain the risk of harm posed by the accused or the potential impact of releasing them on bail. In terms of strategies that could be employed, there are several options. One strategy for defence lawyers could be to put forward a viable plan for the accused's release. For example, they could suggest house arrest, electronic monitoring, or regular check-ins with a bail supervisor. This could help address the Crown's concerns while also ensuring the accused's rights are respected. Another strategy for both Crown and defence lawyers could be to seek a publication ban on any evidence or arguments presented during the bail hearing. This could help protect the accused's right to a fair trial while also limiting the potential for publicity to impact the case. Finally, both lawyers could also consider the use of alternative dispute resolution mechanisms, such as mediation or restorative justice. While these options may not be appropriate in all cases, they may help the parties reach a mutually agreeable solution that avoids the need for detention. In conclusion, section 515(4.3) of the Criminal Code of Canada identifies specific offences for which an accused may be detained without bail under certain circumstances. Lawyers and judges should be aware of the nuances of each subsection, as well as the Crown's burden of proof. Strategies such as presenting viable release plans, seeking publication bans, and exploring alternative dispute resolution could all be useful in navigating this section of the Criminal Code.