A Practical Guide to Bail Hearings at the Justice Centre

Transcription

1 CRIMINAL PRACTICE PAPER 2.1 A Practical Guide to Bail Hearings at the Justice Centre These materials were prepared by Her Worship Anna Maya Brown of the Justice Center, Provincial Court of BC, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, June Her Worship Anna Maya Brown

2 2.1.1 A PRACTICAL GUIDE TO BAIL HEARINGS AT THE JUSTICE CENTRE * I. Introduction... 1 II. Jurisdiction of Judicial Justices... 2 III. Availability of Judicial Justices... 3 IV. How to Reach the Justice Centre... 4 V. Preparation for the Hearing... 4 VI. The Hearing... 5 A. Persons Present... 5 B. Format of Hearing... 6 C. Cash/Surety Bail... 6 VII. Summary... 6 I. Introduction Judicial justices preside over bail hearings at the Justice Centre in Burnaby, BC, via telephone and videoconference. The Justice Centre serves the entire province, and in 2013 alone over 19,000 bail hearings were conducted through the Justice Centre. For most of the province, Justice Centre bail hearings regularly take place by teleconference. Videobail hearings are regularly available when an accused is in police custody in Vancouver, Surrey, Fort St. John, Fort Nelson, and Dawson Creek. On occasion, videobail hearings may also be available from other locations throughout the province such as institutions, courthouses, and other detachments. While the majority of Justice Centre bail hearings occur during off hours, some bail hearings are conducted during business hours in locations or under circumstances when a local court is not available to hear the matter. During such business hours, Crown counsel/police and defence/duty counsel might appear. During off hours, most bail hearings, apart from certain Vancouver/Surrey lists, are prosecuted by police. Police officers who conduct bail hearings on behalf of the Crown range in rank as well as in level of experience. Sometimes a senior officer might be present during a bail hearing that is being spoken to by a junior officer. On other occasions, a junior officer might observe a senior officer conducting a bail hearing. * Prepared by Judicial Justice Anna-Maya Brown, Justice Centre, Provincial Court of BC, for Continuing Legal Education Criminal Practice June 7, 2014, Vancouver, BC. Any views expressed in this guide and during the oral presentation are those of the author/presenter alone and do not represent the views of the Provincial Court or Chief Judge.

3 2.1.2 Occasionally for serious or complex files a Crown counsel may appear during off hours. During off hours, duty counsel typically does not appear (except for certain Vancouver/Surrey lists). Defence counsel does appear from time to time during off hours, usually by teleconference which is facilitated by the Justice Centre. This guide is intended to provide practical information to lawyers, both Crown and defence, who wish to participate in a bail hearing via the Justice Centre. The term bail hearing is used broadly in this guide to cover the appearance of an accused before a judicial justice not only for formal contested show cause hearings, but also other aspects of a bail hearing which may occur, such as, but not limited to, a consent release on conditions or a remand under s. 516 of the Criminal Code. II. Jurisdiction of Judicial Justices Under s. 503 of the Criminal Code, a peace officer who arrests a person with or without warrant shall cause the person to be detained in custody and be taken before a justice to be dealt with according to law: (a) where a justice is available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a justice without unreasonable delay and in any event within that period, and (b) where a justice is not available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a justice as soon as possible, unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice, (c) the peace officer or officer in charge releases the person, or (d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally, or unconditionally, and so releases him. Section 515 of the Criminal Code, which deals with judicial interim release, applies to those situations where an accused is taken before a justice, who has the power to release or detain the accused. The justice also has the power to remand the accused under s. 516 (in other words, to adjourn the bail hearing in custody to another date). The distinction between a detention order (which, following a full hearing, holds the accused in custody until the charges are concluded, subject to bail review in Supreme Court) and a remand (which simply adjourns the bail hearing to a future date where the accused can seek release in Provincial Court) is an important one. Justice is defined in s. 2 of the Criminal Code as a justice of the peace or a provincial court judge. Under s. 30(3) of the Provincial Court Act, judges of the Provincial Court, Supreme Court and Court of Appeal and judicial justices are justices of the peace. Pursuant to s. 11 of the Provincial Court Act, judicial justices are assigned: Matters in which there is a judicial determination affecting the liberty of a person taken into custody other than such matters as are assigned exclusively to or are under the exclusive jurisdiction of Provincial Court Judges.

4 2.1.3 Thus, the jurisdiction of a judicial justice in a bail hearing is, in essence, equivalent to that of a Provincial Court judge; in particular, a judicial justice may: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) release an accused on an undertaking with or without conditions (ss. 515(2)(a) and 515(1) of the Code); release an accused on a recognizance, with or without sureties, and with such conditions, if any, as the justice directs (ss. 515(2)(c) and 515(2)(b) of the Code); release an accused on a recognizance, without sureties, and with such conditions, if any, as the justice directs, and on his depositing money or other valuable security as the justice directs (s. 515(2)(d) of the Code); if the accused is not ordinarily resident in BC or does not ordinarily reside within 200 km of the place he is in custody, release the accused on a recognizance with or without sureties and with conditions, if any, as the justice directs, and upon his depositing money or other valuable security as the justice directs (s. 515(2)(e) of the Code); detain an accused in custody under s.515(5) (Crown onus) or s. 515(6) (reverse onus) of the Code if the detention is justified on the primary, secondary and/or tertiary grounds (s. 515(10)(a),(b), (c) of the Code); remand an accused under s. 516 of the Code, but no adjournment may be for more than three clear days except with the consent of the accused (s. 516(1) of the Code); make a finding under s. 524(8) of the Code and thereafter detain or release an accused in accordance with the other relevant Code provisions; make an order directing matters not be published under s. 517 of the Code; make an order restricting publication in relation to sexual offences under s of the Code; make a no contact order upon remand under s. 516(2) or a no contact order upon detention under s. 515(12) of the Code; make an order for a six day remand under s. 503(3)(b) of the Code. (this is not necessarily an exhaustive list) An exception of note is that judicial justices are not assigned to make an assessment order under s of the Criminal Code. Further, as with judges, when an accused is charged with a s. 469 offence (including but not limited to murder, accessory after the fact to murder, conspiracy to commit murder (but not attempt murder or manslaughter)), the justice shall order that the accused be detained in custody (s. 515(11) of the Code). III. Availability of Judicial Justices Bail hearings will be considered from 8am to 11pm daily, 7 days a week (i.e., generally speaking they will not be heard between the hours of 11pm and 8am), 365 days a year.

5 Telephone number: IV. How to Reach the Justice Centre Information which may be requested from counsel: your name; your location (i.e., are you at the police station/detachment or elsewhere?); your phone number/fax number; the accused s name; the accused s location; other information as may be requested by Justice Centre clerk. Counsel may attend by telephone, by videoconference (or a combination of videoconference and telephone) if the bail hearing is from Vancouver or Surrey when Crown Counsel is present, or counsel might appear at a police station/detachment alongside their client. Justice Centre staff coordinate telephone conferencing for the purpose of a bail hearing. Oftentimes counsel has left his or her business number, cell number or home number with the police to pass on to the Justice Centre with a notation that defence counsel wishes to be present for the hearing. Counsel are also encouraged to call the Justice Centre ( ) to indicate their intention to participate in the hearing. Sometimes when counsel calls the Justice Centre, a file has not yet been generated at the Justice Centre (i.e., the police have not yet contacted the Justice Centre or sent their materials through). Given the volume of files at the Justice Centre, as well as the nature of shift work at the Justice Centre, it is not feasible to consistently monitor the potential receipt of a faxedin file from police to match it with counsel s message. It is good practice, therefore, to communicate with the following persons that defence counsel intends to participate, so that connection with defence counsel for the purpose of the hearing is facilitated: Police (typically the officer who will be conducting the hearing) or Crown counsel if Crown counsel will be appearing. Client If for some reason you are not present when the hearing commences, the accused can tell the judicial justice that his/her counsel intends to be present, and the matter can be stood down to connect with you). Justice Centre Matters are triaged at the Justice Centre in accordance with time of receipt as well as urgency. Volume at the Justice Centre may range from light to extremely busy. Weekends are typically busy. It may be a number of hours before the hearing actually commences. Hearings may also be delayed if the police officer prosecuting the file is called out on an emergency (this tends to occur in the smaller detachments from time to time). Further, if you are only available at a particular time, you can request a certain timeframe, and the Justice Centre strives to accommodate that. V. Preparation for the Hearing The majority of Justice Centre bail hearings occur in off hours, and thus it is understood that counsel may be in a variety of locations when the hearing is actually conducted. For example, hearings have been conducted when counsel is in his/her office, at home, or on vacation. Counsel should make efforts to ensure that their location is appropriate for the purposes of the hearing and

6 2.1.5 that any background distraction is avoided. Further, if a cell phone is being used by counsel, proper reception and decent cell battery power are essential so the hearing is not compromised by counsel cutting out during the hearing. Moreover, if counsel is requesting documents from Crown/police, access to a fax machine is probably important. The following are examples of documents which Crown/police might send to the Justice Centre: telebail details sheet, which typically contains point form information prepared by police including date and time, name of officer, department/detachment, contact numbers, file number, accused s name, accused s date of birth, male/female, date and time arrested, whether spoken to counsel, youth/adult, whether warrant, whether new charge, what Crown is seeking (release, remand, or detention); copy of warrant; copy of information new charges may be forwarded by Information by Telecommunication that Produces a Writing, pursuant to s (2) of the Code; bail documents; probation documents; criminal record; JUSTIN conviction list; other. Justice Centre clerks do not generally distribute these documents to defence counsel, except in specific circumstances. Defence counsel can request copies of documents from Crown/police. Of course, if there is an issue, it can be raised before the judicial justice at the outset of the hearing. A. Persons Present VI. The Hearing Judicial Justice (addressed as Your Worship ) Police officer(s) and/or Crown counsel Defence/duty counsel Accused Other potential participants who may be linked into the teleconference may include but are not limited to: parent or guardian of a youth youth worker (typically only during business hours) probation officer (typically only during business hours) court ordered interpreter potential surety Native Courtworker media

7 2.1.6 B. Format of Hearing Once the judicial justice ascertains that all parties are present, the matter proceeds in essence in the same manner and on the same legal foundation as a hearing in a live courtroom. Thus this is a formal court proceeding which is recorded for future transcription, if required. For videobail hearings, judicial justices preside in court attire including robe and tabbed shirt. Judicial justices record the proceedings themselves (without the assistance of a court recorder) and also complete the Record of Proceedings and document any remand, detention order or release order as well as any conditions (without the assistance of a court clerk in their virtual courtroom). Following the hearing, the documents are prepared by Justice Centre clerks and faxed to the police detachment/department where the accused is being held. During busy days, it may take several hours for the documents to be prepared and faxed. Youth files are typically typed first, then releases, then remands or detention orders. Signed releases are returned to the Justice Centre by the police department/detachment in question. The Justice Centre does not maintain a registry per se, but rather transmits the files in question to the appropriate local court registry in due course. C. Cash/Surety Bail Cash bail can generally be paid at a police detachment or department. However, oftentimes surety bail cannot be perfected in off hours because the surety needs to be assessed and formally taken through his/her obligations as a surety by a registry JP during business hours. VII. Summary Bail hearings at the Justice Centre before a judicial justice proceed in essence in the same fashion and on the same legal foundation as bail hearings before a Provincial Court judge, with the assistance of modern technology and flexibility regarding time of day and location. Consistent with their constitutional right to counsel, accused persons are well served by legal representation during appearances that are conducted via the Justice Centre. Crown counsel appear during certain Vancouver/Surrey bail hearings, as well as on bail hearings throughout the province during business hours when a local court is not available, or on serious or complex matters where the police have been able to obtain their assistance. To conclude, both defence/duty counsel and Crown counsel are valuable participants in the telebail and videobail process, and the Justice Centre strives to facilitate their presence.