section 518(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the procedures for a justice to make inquiries and consider evidence during proceedings related to the release of an accused person.

SECTION WORDING

518(1) In any proceedings under section 515, (a) the justice may, subject to paragraph (b), make such inquiries, on oath or otherwise, of and concerning the accused as he considers desirable; (b) the accused shall not be examined by the justice or any other person except counsel for the accused respecting the offence with which the accused is charged, and no inquiry shall be made of the accused respecting that offence by way of cross-examination unless the accused has testified respecting the offence; (c) the prosecutor may, in addition to any other relevant evidence, lead evidence (i) to prove that the accused has previously been convicted of a criminal offence, (ii) to prove that the accused has been charged with and is awaiting trial for another criminal offence, (iii) to prove that the accused has previously committed an offence under section 145, or (iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused; (d) the justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel; (d.1) the justice may receive evidence obtained as a result of an interception of a private communication under and within the meaning of Part VI, in writing, orally or in the form of a recording and, for the purposes of this section, subsection 189(5) does not apply to that evidence; (d.2) the justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence; and (e) the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.

EXPLANATION

Section 518(1) of the Criminal Code of Canada outlines the procedures that may be followed during proceedings under section 515 of the Code. This section deals with the issue of bail, which is the temporary release of an accused person from custody while they await trial. In such proceedings, a justice may make inquiries of the accused, subject to certain conditions. The accused may not be examined by anyone except their own counsel for the offence with which they are charged. In other words, the accused has the right to remain silent and not incriminate themselves. However, the prosecutor may lead evidence to show the accused has previously been convicted of a criminal offence, has been charged with another offence, has previously committed an offence under section 145, or to show the circumstances of the alleged offence. The justice may take into consideration any relevant matters agreed on by the prosecutor and the accused or their counsel. The justice may also receive evidence obtained as a result of an interception of a private communication under Part VI, but the subsection 189(5) of the Criminal Code doesn't apply. Moreover, the justice must consider any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence. Finally, the justice may receive and base their decision on evidence that is credible or trustworthy to them in the circumstances of the case. In summary, section 518(1) sets out the procedures that may be followed during bail proceedings and the evidence that may be considered by the justice when deciding whether to grant bail.

COMMENTARY

Section 518(1) of the Criminal Code of Canada outlines the procedures that must be followed during the hearing of an accused's detention review under section 515. The section specifies the inquiries that a justice may make during the hearing, the cross-examination rules, the evidence that can be presented by a prosecutor, and the factors that can be considered by the justice. The justice is granted considerable discretion under this section to make inquiries that are deemed to be desirable, either on oath or otherwise, regarding the accused. This grants the justice the ability to ask any questions concerning the accused that can aid in the decision-making process. However, the justice is still required to be mindful of section 7 of the Canadian Charter of Rights and Freedoms, which grants the accused the right to silence and the right against self-incrimination. Subsection (b) of section 518(1) places a limit on the type and extent of questions that can be asked of the accused. The accused cannot be examined by anyone, including the justice, on the offence with which they are charged, except by their counsel. However, if the accused decides to testify, they can be cross-examined by the prosecutor on the same subject. This provision aims to protect the accused from self-incrimination and preserve their right to silence. Subsection (c) outlines the evidence that can be led by the prosecutor during the hearing. The evidence can be used to prove that the accused has previously been convicted of a criminal offence, is currently awaiting trial for another offence, has previously committed an offence under section 145 or to illustrate the circumstances of the offence alleged. The last category aims to provide a clearer picture of the offence and the accused's role in it. Subsection (d) of section 518(1) permits the justice to consider any relevant matters agreed upon by the prosecutor and the defence counsel. This allows for the possibility of a negotiated agreement between the parties, which could influence the justice's decision. Subsections (d.1) and (d.2) were added to the section in 2014 and 2019, respectively. Subsection (d.1) allows for the admission of evidence obtained from private communications interceptions under Part VI of the Criminal Code, even though the accused was not notified of the interception. Subsection (d.2) permits the justice to consider evidence related to the need to ensure the safety or security of any victim of or witness to the offence alleged. Lastly, subsection (e) of section 518(1) outlines that the justice can receive and base their decision on evidence they consider credible and trustworthy in each case's circumstances. This grants the justice considerable discretion in deciding what evidence to accept, but the justice must do so within the bounds of the law. Overall, section 518(1) ensures that the accused receives a fair hearing by outlining the procedures that must be followed in the detention review process. It also grants the justice the necessary discretion to make informed decisions based on the evidence presented and the inquiries made.

STRATEGY

Section 518(1) of the Criminal Code of Canada governs the proceedings under section 515, which deals with arrest without a warrant. This section empowers a justice to make inquiries of and concerning the accused, take into consideration any relevant matters agreed on by the prosecutor and the accused or his counsel, and receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case. Strategic considerations when dealing with this section of the Criminal Code of Canada vary depending on the nature of the case and the interests of the client. However, some general strategies that could be employed are as follows: 1. Preparation: Counsel should prepare for the section 515 hearing by reviewing the evidence and researching the law. Counsel should engage in discussions with the accused regarding the case and any previous criminal record. 2. Examination: Counsel must ensure that the justice does not exceed the scope of the inquiry authorized by this section. The justice is not allowed to cross-examine the accused unless the accused testifies respecting the offence. Counsel should object to any inappropriate questioning or comments made by the justice. 3. Evidence: The prosecutor may lead evidence to prove that the accused has previously been convicted of a criminal offence, to prove that the accused has been charged with and is awaiting trial for another criminal offence, to prove that the accused has previously committed an offence under section 145, or to show the circumstances of the alleged offence. Counsel should be vigilant and object to any evidence that is irrelevant or prejudicial. 4. Interception of Communication: The justice may receive evidence obtained as a result of an interception of a private communication under and within the meaning of Part VI. Counsel should scrutinize such evidence closely and object to any breaches of the accused's right to privacy. 5. Safety and Security: The justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence. Counsel should provide evidence to demonstrate the accused's good character or lack of previous criminal involvement, minimizing the risk of harm to victims or witnesses. 6. Credibility: The justice may receive and base his decision on evidence considered credible or trustworthy by him. Counsel should present the evidence in a clear and compelling manner and call witnesses to testify to the accused's character. In conclusion, dealing with section 518(1) of the Criminal Code of Canada requires careful and strategic considerations. Counsel must be prepared, vigilant, and effective in representing the interests of their clients. By employing the strategies outlined above, counsel can increase the likelihood of success and minimize the risks associated with arrest without a warrant.