section 515(9.1)

INTRODUCTION AND BRIEF DESCRIPTION

If an accused is detained in custody primarily due to a previous conviction, the reason must be stated in writing in the record.

SECTION WORDING

515(9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.

EXPLANATION

Section 515(9.1) of the Criminal Code of Canada provides specific guidelines when an accused person is ordered to be detained in custody due to a previous conviction. The subsection requires the justice to state in writing why the accused is being detained primarily because of their past conviction. This provision is important as it ensures there is transparency and accountability in the bail decision-making process. When a person is charged with a criminal offense, they may request bail to be released from custody until their trial. The court considers various factors when deciding whether to grant bail, including the accused's criminal history, flight risk, and public safety concerns. Subsection 515(9) of the Criminal Code sets out the grounds on which a judge may deny bail, primarily when the court believes the accused will not attend trial or will pose a danger to the public if released. However, in cases where the accused is being detained primarily because of their previous conviction, their right to bail may be restricted. This may occur when the accused has a history of failing to comply with bail conditions in the past or has a criminal record that suggests they may continue to commit offenses while on bail. In such cases, the justice must state in writing that the accused is being detained because of their criminal history to ensure transparency and accountability in the decision-making process. In summary, Section 515(9.1) enhances the fairness of the Canadian criminal justice system by ensuring that bail decisions are based on a clear and transparent set of criteria. It is a vital provision in the Criminal Code of Canada that seeks to balance the accused's right to freedom with the need to protect public safety and maintain the integrity of the justice system.

COMMENTARY

Section 515 of the Criminal Code of Canada governs the conditional release of an accused person before their trial. It outlines the various factors that a justice has to consider before deciding whether to release the accused or keep them in custody until their trial. One such factor is the accused's previous criminal record. Section 515(9.1) of the Criminal Code of Canada is an important provision that deals with the detention of an accused person in custody primarily because of their previous criminal record. When the justice decides to keep the accused in custody based on their criminal history, they are required to provide a written reason for their decision. The purpose of this provision is to increase transparency and accountability in the bail process by ensuring that the reasons for detention are clear and explicit. The provision is a response to the criticisms of the bail system in Canada, which has been accused of being biased against those with a previous criminal record. In the past, people with a criminal history were more likely to be detained than those without one, even if the charges were minor or non-violent. This disparity has been attributed to the stigma and stereotypes associated with criminal records, which often paint the accused as a high risk of reoffending. As a result, many people have been detained for extended periods of time, even when bail was eventually granted. Section 515(9.1) addresses this bias by requiring that the justice provide a written reason for detention that is specifically related to the accused's criminal record. This means that the justice must explain why the accused's criminal record makes them a risk to public safety or a flight risk. The written reason must be clear and specific to the case, rather than being a general statement about the accused's criminal history. The provision has several benefits. Firstly, it ensures that the justice considers all relevant factors when making their decision, rather than relying solely on the accused's criminal record. This could result in fewer people being detained unnecessarily, which would reduce the number of people in custody and the burden on the justice system. Secondly, it helps to address the stigma and stereotypes associated with criminal records, which can lead to unfair and discriminatory treatment of the accused. Lastly, it promotes transparency and accountability in the bail system, which is important for maintaining public trust and confidence in the criminal justice system. In conclusion, Section 515(9.1) of the Criminal Code of Canada is a crucial provision that improves the transparency and accountability of the bail process. By requiring the justice to provide a written reason for detention based on the accused's criminal record, it helps to reduce bias and discrimination in the system, while promoting fairness and justice for all accused persons.

STRATEGY

Section 515(9.1) of the Criminal Code of Canada requires that if a justice orders an accused to be detained in custody primarily because of a previous conviction of the accused, the justice must state that reason in writing in the record. This provision is aimed at ensuring transparency and accountability in the justice system and preventing arbitrary detention of individuals. When dealing with this section of the Criminal Code, there are several strategic considerations that lawyers and judges need to keep in mind. One of the key considerations is the constitutional rights of the accused. Any detention of an accused must be consistent with the principles of fundamental justice and the Charter of Rights and Freedoms. This means that the detention must be necessary, proportionate, and not arbitrary. Another important consideration is the evidentiary basis for the detention. The justice must have sufficient evidence to justify the detention of the accused based on their previous conviction. This may involve a review of the accused's criminal record, including the nature and severity of the previous offence, the time elapsed since the offence, and any other relevant information. In addition, lawyers and judges must consider the impact of detention on the accused and their ability to defend themselves. Detention can have serious consequences for the accused, including loss of employment, housing, and social connections. It can also make it more difficult for the accused to work with their legal counsel to prepare a defence. Given these considerations, there are several strategies that lawyers and judges can employ when dealing with Section 515(9.1) of the Criminal Code. Some of these strategies include: 1. Challenging the evidentiary basis for the detention: Lawyers can challenge the prosecution's evidence and argue that there is not enough evidence to justify detention based on the accused's previous conviction. 2. Seeking alternative forms of release: If detention is not necessary, lawyers can advocate for alternative forms of release, such as bail or release on conditions. 3. Seeking a review of the detention order: If the justice's decision is not consistent with the Charter or the principles of fundamental justice, lawyers can seek a review of the detention order. 4. Advocating for the accused's rights: Lawyers can advocate for the accused's constitutional rights and ensure that the detention is necessary, proportionate, and not arbitrary. In conclusion, Section 515(9.1) of the Criminal Code of Canada requires transparency and accountability in the justice system by mandating that the reasons for detention based on the accused's previous conviction be stated in writing. Lawyers and judges must carefully consider the constitutional rights of the accused, the evidentiary basis for detention, and the impact of detention on the accused when dealing with this section of the Criminal Code. Strategies such as challenging evidentiary basis, seeking alternative forms of release, advocating for the accused's rights, and seeking a review of the detention order can help ensure that the accused's rights are respected and that justice is done.