INTRODUCTION AND BRIEF DESCRIPTION
If an accused person can demonstrate that their detention is not justified, a justice shall order their release with certain conditions.
SECTION WORDING
515(8) Where an accused to whom paragraph (6)(b) applies shows cause why the accused’s detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions, described in subsections (4) to (4.2), that the justice considers desirable.
EXPLANATION
Section 515(8) of the Criminal Code of Canada sets out the provisions for the release of an accused person who has been detained in custody. The section is activated when an accused person who is subject to detention under paragraph (6)(b) shows cause why the detention is not justifiable. The onus is on the accused person to demonstrate that there are no compelling reasons to justify continued detention. In such instances, the justice is required by law to order the release of the accused person, subject to giving an undertaking or entering into a recognizance as described in one of the paragraphs (2)(a) to (e). These paragraphs refer to the various forms of recognizance available, such as cash deposit, surety, or promise to appear in court. Furthermore, the conditions of release are subject to the discretion of the justice presiding over the case. The conditions are set out in subsections (4) to (4.2) and may include requirements such as remaining in a designated area, reporting to the police periodically, or not having contact with certain individuals or places. Overall, section 515(8) ensures that an accused person is not unjustly detained while they await trial. It recognizes the importance of a fair trial and the presumption of innocence, while also imposing conditions that ensure public safety and prevent the accused person from absconding or interfering with witnesses or evidence.
COMMENTARY
Section 515(8) of the Criminal Code of Canada outlines the circumstances and conditions under which an accused person can be released on bail. Bail is a crucial component of the Canadian criminal justice system, as it allows accused persons to be released from custody while awaiting trial, subject to certain conditions. The purpose of bail is to ensure that accused persons do not flee, commit further crimes, or interfere with the administration of justice. Section 515(8) pertains specifically to situations where an accused person is detained in custody and wishes to be released on bail. In order to be released, the accused must show cause why their detention in custody is not justified. This means that the accused must provide a compelling reason as to why they should be released on bail, such as having strong ties to the community, a solid employment history, or a lack of previous criminal convictions. If the accused is able to show cause why their detention is not justified, the justice must order that they be released on either an undertaking or a recognizance, as described in subsections 2(a) through 2(e) of Section 515. An undertaking is an agreement between the accused and the court, in which the accused promises to comply with certain conditions in exchange for their release. A recognizance, on the other hand, is a type of bond or security that the accused must provide in order to be released. The conditions of the accused person's release are described in subsections (4) to (4.2) of Section 515. These conditions may include things like staying away from certain people or places, agreeing to a curfew, or refraining from consuming drugs or alcohol. The specific conditions imposed will depend on the facts of the case and the perceived risk of the accused committing further crimes or fleeing. Overall, Section 515(8) of the Criminal Code of Canada is an important safeguard for accused persons who wish to be released on bail. By requiring the accused to show cause why their detention is not justified, and by imposing conditions on their release, the justice system can balance the need for public safety with the accused person's right to freedom. This section of the Criminal Code helps to ensure that accused persons are not held in custody for unnecessary lengths of time and can continue with their lives while awaiting trial.
STRATEGY
Section 515(8) of the Criminal Code of Canada governs the process of release for accused individuals who are detained in custody and have to show cause why their detention is not justified. This provision offers strategic considerations for both the accused and their counsel, as well as the Crown and the presiding justice. One key strategic consideration for the defence is establishing a strong case for bail. The accused and their counsel must address the specific factors set out in subsections 515(10) and (11), which include the risk of flight, public safety, and the likelihood of the accused appearing in court. To maximize the chances of success, the bail application should be carefully prepared and supported by evidence, such as letters of recommendation, employment or educational records, and proof of strong ties to the community. The defence may also seek the assistance of a surety to vouch for the accused and provide a financial guarantee of their appearance in court. Another strategic consideration for the defence is to argue for conditions of release that are as minimal as possible while still addressing the concerns of the Crown and the justice. This may involve proposing restrictions on the accused's movement or activities that are less onerous than those initially proposed by the Crown, such as a curfew or the surrender of a passport. The defence may also seek to negotiate a reduced bail amount or to waive other terms that are not strictly necessary, such as a requirement for electronic monitoring. For the Crown, the strategic consideration is to balance the public interest in protecting the community and ensuring that the accused appears in court with the potential harm of pretrial detention. The Crown must present evidence to support their opposition to release and demonstrate that the accused poses a risk of flight or danger to society. This may involve calling witnesses, such as police officers or victims of the alleged crime, to testify about the accused's behaviour or criminal history. The Crown must also propose conditions of release that are sufficient to address the concerns of the justice without being overly restrictive to the accused. Finally, the presiding justice must weigh the evidence presented by both sides and balance the accused's rights with the public interest. The justice must consider the specific circumstances of each case, such as the nature of the alleged crime, the accused's criminal history, and their ties to the community. The justice may impose conditions of release that are tailored to address the specific concerns presented by both sides, such as requiring the accused to undergo drug or alcohol treatment or attend counselling. The justice must also ensure that any conditions imposed are reasonable and necessary and do not unduly infringe upon the accused's rights. In summary, when dealing with Section 515(8) of the Criminal Code of Canada, strategic considerations include establishing a strong case for bail, proposing minimal conditions of release, presenting evidence to support opposition to release, and balancing the rights of the accused with the public interest. By employing effective strategies, the accused and their counsel, the Crown, and the presiding justice can work together to ensure that the bail process is fair, just, and effective.