Bill C-75 came into force, or will come into force, on three different dates: July 21st, 2019, September 19th, 2019, and December 18th, 2019. In December, the latest “coming into force” will become law and this part of the Bill contains some changes for police procedures and authorities. Others will indirectly affect law enforcement. For example, as a result of amendments to the Criminal Code in force as of September 19th, 2019, the procedure known as a ”preliminary inquiry” with respect to indictable offences, will only take place if the accused is charged with an indictable offence that is punishable by 14 years or more of imprisonment, and has requested such an inquiry (s. 535 CC). But the next amendments will directly affect the way law enforcement does business, and not surprisingly, many officers have not been fully made aware by agencies and organizations. Probably the biggest of those changes come in the way of release for police, but before I can into that, let’s discuss something else.
In addition to the peace officers’ general powers of arrest without warrant under s. 495(1) of the Criminal Code, on December 18th, there is a further power of arrest under s. 495.1 of the Code (those versed in law may recognize it as closely resembling the old 524(2) of the Code. This new provision allows the peace officer to arrest without a warrant a person for the contravention or reasonably apprehended contravention of any one of the following peace officer issued documents – summons, appearance notice, undertaking – and a justice/judge issued release order. In addition, a peace officer may arrest without warrant a person who has committed an indictable (or dual procedure) offence after any one of the above-mentioned documents have been issued. This section does not create an offence but does create an arrest authority independent of s. 495(1) of the Criminal Code. A person who is arrested under this section must be taken before a justice, for a hearing, who will decide whether the accused has contravened or is about to contravene the specified form of release, or whether there are reasonable grounds to believe the person committed an indictable offence while on release. If a justice so finds, the person’s release on the initial charge shall be cancelled and the person shall be detained in custody on the original charge for which the person was released unless the person can show cause why their detention in custody is not justified. This is a reverse onus provision, opposite the initial detention burden, which is on the Crown to show cause why the person should be detained.
Administration of justice offences (AOJOs) are offences committed against the integrity of the criminal justice system. The most common AOJOs include failing to comply with bail conditions (i.e., disobeying a curfew, drinking alcohol), failing to appear in court, and breaches of probation (e.g., failing to report to a probation officer). When the failure has not caused harm to a victim, including physical, psychological or financial harm (e.g., property damage or economic loss), the police (and Crown Attorneys) could direct AOJOs to a judicial referral hearing as an alternative to charging the accused with an AOJO. At the judicial referral hearing, the judge or justice will review any existing conditions of release and could decide to take no action, release the accused on new conditions, or detain the accused, depending on the particular circumstances of the accused (e.g., mental health issues, existence of neurocognitive disorders such as FASD, addictions, homelessness) and of the offence. Under s. 496 CC, an appearance notice can be issued to the offender to appear at the hearing. This new procedure does not impact current police powers relating to deciding whether or not to lay charges. It instead enhances police (and prosecutorial) discretion by allowing us to compel an accused to appear at a judicial referral hearing as an alternative to laying charges, when it is considered appropriate under the circumstances and when it is believed that the alleged breach should still be brought to the attention of a judge or justice. It provides another tool for police, prosecutors, and courts to deal more effectively with these AOJOs (i.e., failures to comply with conditions of release, and failures to appear in court or as required) that do not involve harm to victims (including physical, emotional and financial harm).
Since a judicial referral hearing involves the review of the conditions imposed after an accused was charged with an earlier offence, as opposed to considering the guilt or innocence of the accused in relation to an alleged AOJO, the AOJO itself does not appear on a criminal record following such a hearing. No finding of guilt or innocence is made at the judicial referral hearing and any charges that may have been laid regarding that specific AOJO are dismissed by the judge or the justice once a decision is made with respect to the release status of the accused. In the case where no charges have been laid against the person and (s)he fails to appear at a judicial referral hearing under section 523.1 CC, as required in the appearance notice, charges may be laid against the person for the alleged offence. An important thing to note is that if the person does not attend their judicial referral hearing, they are not be charged with the offence of failure to appear for the hearing, but instead may be charged for the breach that was to be addressed through the judicial hearing in the first place. In the alternative, the officer also has the choice of dropping the matter or offering the accused another hearing.
I will caution you that s. 496 CC in its wording is silent on whether an arrest can or cannot be effected in such a case, so until our courts interpret this wording, we can only presume that the appearance notice could be issued for the judicial referral hearing without or following an arrest for the violation of the administration of justice offence where no harm has been caused to the victim. Since offences against the administration of justice are criminal offences, it stands to reason that an arrest is authorized under our general arrest provision in any regard, and all s. 496 attempts to do is to provide us with another avenue and discretion to allow us to compel an accused to appear at a judicial referral hearing as an alternative to laying charges and not to override our decision to lay charges, whether an arrest has occurred or not.
Okay, now on to the biggest change that will affect our work. Come December 18th, say goodbye to promise to appear, recognizance (both officer and judge issued), and undertaking documents as we now know them. Police release options will now be two only: via an appearance notice, or with the issuance of an undertaking (summons still available, but technically person is not ‘released’ on a summons since they are either released unconditionally with intention to be served later to appear in court, or served without an arrest having been effected) . A judge’s will be via a release order – no longer undertakings or recognizances (peace bond recognizances are not affected). With that, the charge sections are also affected: violation of appearance notice or summons, 145(3) CC, and violation of undertaking is 145(4) CC. Violation of the judge’s release order conditions will be 145(5) CC and failure to appear in court is 145(2) CC.
Think of the new Undertaking as a combination of the old PTA, Recog, and Undertaking. Let me explain: under the old system, we could place conditions or ‘promises’ upon the person as part of release to address the P.R.I.C.E. concerns we had, but a PTA or Recog had to be issued as well because the Undertaking did not compel them to court or ICA processes. Further, a Recog could be issued where we had court attendance issues, or person resided in a province outside the province of arrest, etc. because it allowed us the either request a deposit (up to and including $500) or have them acknowledge they would owe Her Majesty the Queen that amount should they not show up for court. These latest changes are intended to streamline our release provisions and streamline the process by increasing the types of conditions police can impose on accused, so as to divert unnecessary matters from the courts and reduce the need for a bail hearing when one is not warranted. So, the new Undertaking compels the person to court and ICA processes, lists conditions/promises that we can require of the arrestee, and it also allows the officer to require the arrested person to either enter into an acknowledgement (i.e. deposit is not taken from the person at time of release), in order to secure release, that they owe Her Majesty the Queen an amount of money not exceeding $500 if the person fails to attend court as required, fails to appear later for photographing and fingerprinting under the Identification of Criminals Act, if required, or if they fail to comply with any condition of the undertaking (i.e., s. 501(3)(i) CC), or deposit a sum of money (not to exceed $500) with the officer before release (only authorized for a non-resident of the province of the arresting agency, or for those residing more than 200 kilometres of the place of custody).
Some other changes:
- Any peace officer has the discretion to release a person arrested on an endorsed warrant (i.e. 507(6) CC endorsement) – now longer sole discretion of officer-in-charge, and where release is favoured, the person can be issued an appearance notice or undertaking.
- Of note, Bill C-75 legislated a “principle of restraint” for police and courts to ensure that release at the earliest opportunity is favoured over detention, that bail conditions are reasonable and relevant to the offence and necessary to ensure public safety, that sureties are imposed only when less onerous forms of release are inadequate, and requires that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions.
- Bill C-75 also provides that certain warrants and orders no longer require an out-of-province-endorsement to be executed. So, warrants such as wiretap authorizations, search warrants, general warrants, DNA, tracking, CDSA, and others can be executed anywhere in Canada. However, the officer executing the warrant must be empowered to act (i.e. is a peace officer in the executing province) in the province where the warrant is executed.
- The Bill has hybridized a lot of offences and has increased the default penalty for summary conviction offences from 6 months, $5000, or both, to two years less a day, $5000, or both.
- The statute of limitations for summary conviction offences has also been increased from 6 months to 12 months.
- The Identification of Criminals Act now includes an amendment to paragraph 2(1)(a) of the ICA to allow for fingerprints to be taken for hybrid offences, regardless of whether the Crown proceeds by indictment or summarily.
That’s the changes in a nutshell. I may have missed some, and I’m still trying to get my head wrapped around these changes myself in preparation for the police recruits in January, 2020, and updating all my training material. No one has explained the changes to me unfortunetly, so I have done my best to get this out to you and explain it to you as I’ve interpreted the changes, so please take some steps to ensure my interpretation is correct before you act. The new release forms should be made available to you soon (hopefully before December 18 in any regard). I have a copy of the ones for Nova Scotia as we speak, but not for the other provinces yet.