Order of release
515.(1) Subject to this section, where an accused who is charged
with an offence other than an offence listed in section 469 is taken before a
justice, the justice shall, unless a plea of guilty by the accused is accepted,
order, in respect of that offence, that the accused be released on his giving
an undertaking without conditions, unless the prosecutor, having been given a
reasonable opportunity to do so, shows cause, in respect of that offence, why
the detention of the accused in custody is justified or why an order under any
other provision of this section should be made and where the justice makes an
order under any other provision of this section, the order shall refer only to
the particular offence for which the accused was taken before the justice.
Release on undertaking with conditions,
etc.
(2) Where the justice does not make an order under subsection (1), he shall,
unless the prosecutor shows cause why the detention of the accused is
justified, order that the accused be released
(a) on his giving an
undertaking with such conditions as the justice directs;
(b) on his entering
into a recognizance before the justice, without sureties, in such amount and
with such conditions, if any, as the justice directs but without deposit of
money or other valuable security;
(c) on his entering
into a recognizance before the justice with sureties in such amount and with
such conditions, if any, as the justice directs but without deposit of money or
other valuable security;
(d) with the consent
of the prosecutor, on his entering into a recognizance before the justice,
without sureties, in such amount and with such conditions, if any, as the
justice directs and on his depositing with the justice such sum of money or
other valuable security as the justice directs; or
(e) if the accused
is not ordinarily resident in the province in which the accused is in custody
or does not ordinarily reside within two hundred kilometres of the place in
which he is in custody, on his entering into a recognizance before the justice
with or without sureties in such amount and with such conditions, if any, as
the justice directs, and on his depositing with the justice such sum of money
or other valuable security as the justice directs.
Power of justice to name sureties in
order
(2.1) Where, pursuant to subsection (2) or any other provision of this Act, a
justice, judge or court orders that an accused be released on his entering into
a recognizance with sureties, the justice, judge or court may, in the order,
name particular persons as sureties.
Alternative to physical presence
(2.2) Where, by this Act, the appearance of an accused is required for the
purposes of judicial interim release, the appearance shall be by actual
physical attendance of the accused but the justice may, subject to subsection
(2.3), allow the accused to appear by means of any suitable telecommunication
device, including telephone, that is satisfactory to the justice.
Where consent required
(2.3) The consent of the prosecutor and the accused is required for the
purposes of an appearance if the evidence of a witness is to be taken at the
appearance and the accused cannot appear by closed-circuit television or any
other means that allow the court and the accused to engage in simultaneous
visual and oral communication.
Idem
(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the
prosecution shows cause why an order under the immediately preceding paragraph
should not be made.
Conditions authorized
(4) The justice may direct as conditions under subsection (2) that the
accused shall do any one or more of the following things as specified in the
order:
(a) report at times
to be stated in the order to a peace officer or other person designated in the
order;
(b) remain within a
territorial jurisdiction specified in the order;
(c) notify the peace
officer or other person designated under paragraph (a) of any change in his address or his
employment or occupation;
(d) abstain from
communicating, directly or indirectly, with any victim, witness or other person
identified in the order, or refrain from going to any place specified in the
order, except in accordance with the conditions specified in the order that the
justice considers necessary;
(e) where the
accused is the holder of a passport, deposit his passport as specified in the
order;
(e.1) comply with
any other condition specified in the order that the justice considers necessary
to ensure the safety and security of any victim of or witness to the offence;
and
(f) comply with such
other reasonable conditions specified in the order as the justice considers
desirable.
Condition prohibiting possession of
firearms, etc.
(4.1) When making an order under subsection (2), in the case of an accused
who is charged with
(a) an offence in
the commission of which violence against a person was used, threatened or
attempted,
(a.1) a terrorism
offence,
(b) an offence under
section 264 (criminal harassment),
(b.1) an offence
under section 423.1 (intimidation of a justice system participant),
(c) an offence
relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled
Drugs and Substances Act,
(d) an offence that
involves, or the subject-matter of which is, a firearm, a cross-bow, a
prohibited weapon, a restricted weapon, a prohibited device, ammunition,
prohibited ammunition or an explosive substance, or
(e) an offence under
subsection 20(1) of the Security of Information Act, or an offence under
subsection 21(1) or 22(1) or section 23 of that Act that is committed in
relation to on offence under subsection 20(1) of that Act,
the justice shall add to the order a condition prohibiting
the accused from possessing a firearm, cross-bow, prohibited weapon, restricted
weapon, prohibited device, ammunition, prohibited ammunition or explosive
substance, or all those things, until the accused is dealt with according to
law unless the justice considers that such a condition is not required in the
interests of the safety of the accused or the safety and security of a victim
of the offence or of any other person.
Surrender, etc.
(4.11) Where the justice adds a condition described in subsection (4.1) to an
order made under subsection (2), the justice shall specify in the order the
manner and method by which
(a) the things
referred to in subsection (4.1) that are in the possession of the accused shall
be surrendered, disposed of, detained, stored or dealt with; and
(b) the
authorizations, licences and registration certificates held by the person shall
be surrendered.
Reasons
(4.12) Where the justice does not add a condition described in subsection
(4.1) to an order made under subsection (2), the justice shall include in the
record a statement of the reasons for not adding the condition.
Additional conditions
(4.2) Before making an order under subsection (2), in the case of an accused
who is charged with an offence referred to in subsection (4.3), the justice
shall consider whether it is desirable, in the interests of the safety and
security of any person, particularly a victim of or witness to the offence or a
justice system participant, to include as a condition of the order
(a) that the accused
abstain from communicating, directly or indirectly, with any victim, witness or
other person identified in the order, or refrain from going to any place
specified in the order; or
(b) that the accused
comply with any other condition specified in the order that the justice
considers necessary to ensure the safety and security of those persons.
Offences
(4.3) The offences for the purposes of subsection (4.2) are
(a) a terrorism
offence;
(b) an offence
described in section 264 or 423.1;
(c) an offence in
the commission of which violence against a person was used, threatened or
attempted; and
(d) an offence under
subsection 20(1) of the Security of Information Act, or an offence under
subsection 21(1) or 22(1) or section 23 of that Act that is committed in
relation to an offence under subsection 20(1) of that Act.
Detention in custody
(5) Where the prosecutor shows cause why the detention of the accused in
custody is justified, the justice shall order that the accused be detained in
custody until he is dealt with according to law and shall include in the record
a statement of his reasons for making the order.
Order of detention
(6) Unless the accused, having been given a reasonable opportunity to do
so, shows cause why the accused's detention in custody is not justified, the
justice shall order, despite any provision of this section, that the accused be
detained in custody until the accused is dealt with according to law, if the
accused is charged
(a) with an
indictable offence, other than an offence listed in section 469,
(i)
that is alleged to have been committed while at large after being released in
respect of another indictable offence pursuant to the provisions of this Part
or section 679 or 680,
(ii)
that is an offence under section 467.11, 467.12 or 467.13, or a serious offence
alleged to have been committed for the benefit of, at the direction of, or in
association with, a criminal organization,
(iii)
that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or
otherwise is alleged to be a terrorism offence,
(iv)
an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security
of Information Act,
(v)
an offence under subsection 21(1) or 22(1) or section 23 of the Security of
Information Act that is committed in relation to on offence referred to in
subparagraph (iv),
(vi)
that is an offence under section 99, 100 or 103,
(vii)
that is an offence under section 244, or that is an offence under section 239,
272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to
have been committed with a firearm, or
(viii)
that is alleged to involve, or whose subject-matter is alleged to be, a
firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited
device, any ammunition or prohibited ammunition or an explosive substance, and
that is alleged to have been committed while the accused was under a
prohibition order within the meaning of subsection 84(1);
(b) with an
indictable offence, other than an offence listed in section 469 and is not
ordinarily resident in Canada,
(c) with an offence
under any of subsections 145(2) to (5) that is alleged to have been committed
while he was at large after being released in respect of another offence
pursuant to the provisions of this Part or section 679, 680 or 816, or
(d) with having
committed an offence punishable by imprisonment for life under subsection 5(3),
6(3) or 7(2) of the Controlled Drugs and Substances Act or the offence
of conspiring to commit such an offence.
Reasons
(6.1) If the justice orders that an accused to whom subsection (6) applies be
released, the justice shall include in the record a statement of the justice's
reasons for making the order.
Order of release
(7) Where an accused to whom paragraph 6(a), (c) or (d) 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) or, where the accused was at large on an undertaking
or recognizance with conditions, the additional conditions described in
subsections (4) to (4.2), that the justice considers desirable, unless the
accused, having been given a reasonable opportunity to do so, shows cause why
the conditions or additional conditions should not be imposed.
Idem
(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.
Sufficiency
of record
(9) For the purposes of subsections (5) and (6), it is sufficient if a
record is made of the reasons in accordance with the provisions of Part XVIII
relating to the taking of evidence at preliminary inquiries.
Justification
for detention in custody
(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, 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.
Detention
in custody for offence listed in section 469
(11) Where an accused who is charged with an offence mentioned in section
469 is taken before a justice, the justice shall order that the accused be
detained in custody until he is dealt with according to law and shall issue a warrant
in Form 8 for the committal of the accused.
Order
re no communication
(12) A justice who orders that an accused be detained in custody under this
section may include in the order a direction that the accused abstain from
communicating, directly or indirectly, with any victim, witness or other person
identified in the order, except in accordance with such conditions specified in
the order as the justice considers necessary.
R.S., 1985, c. C-46, s. 515; R.S., 1985, c. 27 (1st Supp.), ss. 83, 186;
1991, c. 40, s. 31; 1993, c. 45, s. 8; 1994, c. 44, s. 44; 1995, c. 39, s. 153;
1996, c. 19, ss. 71, 93.3; 1997, c. 18, s. 59, c. 23, s. 16; 1999, c. 5, s. 21,
c. 25, s. 8(Preamble); 2001, c. 32, s. 37, c. 41, ss. 19, 133; 2008, c. 6, s.
37.
Variation
of undertaking or recognizance
515.1An undertaking or recognizance
pursuant to which the accused was released that has been entered into under
section 499, 503 or 515 may, with the written consent of the prosecutor, be
varied, and where so varied, is deemed to have been entered into pursuant to
section 515.
1997, c. 18, s. 60.