INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the three grounds on which an accused individual can be detained in custody.
SECTION WORDING
515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
EXPLANATION
Section 515(10) of the Criminal Code of Canada sets out the circumstances under which an accused person can be detained in custody. According to this section, a person can only be detained if it is necessary to ensure their attendance in court, to protect the public or any other person from harm, or to maintain confidence in the administration of justice. Under subsection (a), the accused can be detained if there is a risk that they will not show up for their court appearance. This is a common ground for detention, as it is important that accused persons attend court so that they can be dealt with according to the law. Subsection (b) provides that the accused can be detained if there is a risk that they will harm the public or interfere with the administration of justice if they are released. This could be because of the nature of the offence, their past criminal record, or other relevant factors. Subsection (c) is a more subjective test, as it requires the court to consider all the circumstances, including the strength of the prosecution's case, the gravity of the offence, and the potential sentence if the accused is convicted. The purpose of this test is to ensure that the public has confidence in the fairness and effectiveness of the criminal justice system. Overall, this section serves to balance the right to liberty of the accused with the needs of society to ensure public safety and maintain confidence in the criminal justice system.
COMMENTARY
Section 515(10) of the Criminal Code of Canada provides a framework for determining when it is appropriate to detain an accused person in custody pending trial. The section lays out three grounds for detention: to ensure the accused's attendance in court, to protect the safety of the public, and to maintain confidence in the administration of justice. The first ground, to ensure attendance in court, is fairly straightforward and self-explanatory. If there is a risk that the accused may skip bail or fail to show up for their court dates, then detention may be necessary to ensure that they appear for trial and can be dealt with according to law. This ground is particularly relevant in cases where the accused has a history of failing to appear in court or has no fixed address. The second ground, to protect the safety of the public, is based on a risk assessment of the accused. If there is reason to believe that the accused poses a threat to public safety, then detention may be necessary to prevent harm to others. This could include cases where the accused has a history of violent behaviour, has made threats against others, or is likely to reoffend if released from custody. The third ground, to maintain confidence in the administration of justice, is more complex. It takes into account a number of factors, including the strength of the prosecution's case, the gravity of the offence, the circumstances surrounding the crime, and the potential sentence the accused faces if convicted. This ground is intended to address situations where the accused's release might undermine public confidence in the justice system, such as cases involving serious crimes like murder or where there is evidence of criminal organization involvement. While these grounds provide a useful framework for assessing the need for pretrial detention, there are also concerns that the current bail system in Canada may be overly punitive and disproportionately impact marginalized communities. Research has shown that Indigenous people and racialized individuals are more likely to be denied bail, highlighting systemic issues within the justice system. In recent years, there have been calls for reform to the bail system, including the use of risk assessments that take into account factors beyond the accused's past criminal record, such as social supports and mental health status. Additionally, there have been calls for increased investment in alternatives to pretrial detention, such as community supervision programs and electronic monitoring. Overall, Section 515(10) of the Criminal Code of Canada provides a framework for assessing the need for pretrial detention, but also highlights the need for ongoing reform to ensure that the bail system is fair and just for all Canadians.
STRATEGY
Section 515(10) of the Criminal Code of Canada provides a framework for deciding whether to detain an accused in custody pending trial or release them on bail. There are several strategic considerations that defense lawyers and prosecutors must bear in mind when dealing with this section of the Criminal Code. One important consideration is the strength of the prosecution's case. If the case against the accused is weak or circumstantial, it will be easier for the defense to argue that detention is not necessary to ensure attendance in court or protect the public. On the other hand, if the prosecution's case is strong and supported by physical evidence or witness testimony, it may be more difficult for the defense to argue that detention is not necessary. Another important consideration is the circumstances surrounding the alleged offense and the accused's personal history. If the accused has a history of violence or a previous criminal record, the prosecution may argue that there is a substantial likelihood that they will commit another crime if released on bail. Similarly, if the alleged offense involved the use of a firearm or other dangerous weapon, there may be a heightened risk of harm to the public if the accused is released. In addition to these factors, there are several strategies that defense lawyers and prosecutors can employ when dealing with Section 515(10) of the Criminal Code. One strategy for the defense is to present evidence that the accused is unlikely to commit another crime or interfere with the administration of justice if released on bail. This might include evidence of the accused's ties to the community, such as employment or family obligations, or evidence of their willingness to comply with court orders. Another strategy for the defense is to argue that the accused's detention would be unfair or disproportionately harsh. This might involve presenting evidence of the accused's personal circumstances, such as health issues or family responsibilities, that would be negatively impacted by detention. For the prosecution, a common strategy is to argue that detention is necessary to protect the public, particularly in cases involving violent or sexual offenses. They may also present evidence of the accused's past criminal behavior or history of violence to support their arguments. Overall, the decision to detain an accused in custody or release them on bail is a complex and strategic one. Lawyers must carefully consider the facts of the case and the relevant legal frameworks to advocate effectively for their clients.