INTRODUCTION AND BRIEF DESCRIPTION
The prosecution must justify why a release order should not be made before a justice can make an order under other paragraphs.
SECTION WORDING
515(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.
EXPLANATION
Section 515(3) of the Criminal Code of Canada outlines the criteria that a justice must consider before issuing an order for detention or release of an accused person. The section notes that the prosecution must show cause for an order, which means they must provide evidence to support their argument for detention or release. The parameters of the section apply to paragraphs (2)(b) to (e) of 515, which cover different types of detention and release orders. Paragraph 2(b) pertains to holding an accused in custody until their trial, whereas paragraph 2(c) and (d) allow for the release of an accused with conditions such as bail or an undertaking. Paragraph 2(e) allows for the release of an accused without conditions. Before a justice can issue an order under one of these paragraphs, they must consider whether there are any grounds for detention or release. The prosecution must provide evidence to support their argument for detention or explain why a release order would not be appropriate. This section serves to protect the rights of the accused and ensure that any decisions made regarding their detention or release are based on evidence and a full understanding of the circumstances. It ensures that the burden is on the prosecution to justify detention and provides a framework for the justice to make an informed decision. In summary, Section 515(3) serves a crucial role in ensuring that criminal proceedings are conducted fairly and justly. It outlines the responsibility of the prosecution to provide evidence to support their argument for detention or release, and helps to ensure that any orders issued are informed by evidence and made on grounds that are fair and just.
COMMENTARY
Section 515(3) of the Criminal Code of Canada sets forth an important requirement in the bail process. The provision essentially shifts the burden of proof from the accused to the prosecution when it comes to the issue of bail. Specifically, the provision prohibits a justice from making an order under paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made. Paragraphs (2)(b) to (2)(e) relate to different types of releases an accused person may seek. For example, paragraph (2)(b) pertains to a release on recognizance, which is essentially a promise to attend court as required. Paragraph (2)(c) deals with the issue of a surety, where a third party agrees to supervise the accused while on release. Paragraph (2)(d) is about a deposit of money or other valuable security, while paragraph (2)(e) pertains to the issue of a bail hearing where the prosecution may oppose the release. In order to understand the importance of Section 515(3), it is helpful to consider the bail process as a whole. After being charged with an offence, an accused person may be released on bail pending trial. However, bail is not an automatic right and there are a number of factors that determine whether an accused person will be released. One of the main factors is the likelihood that the accused will appear in court as required. Other factors include the seriousness of the offence, the strength of the evidence against the accused, and any prior criminal record. The bail provisions are intended to balance the right of the accused to be presumed innocent until proven guilty, with the need to protect society and ensure that the accused will attend court. Section 515(3) plays an important role in this process by requiring the prosecution to show cause as to why an order under the immediately preceding paragraph should not be made. This means that the onus is on the prosecution to demonstrate why a particular release should not be granted. This is an important safeguard in the bail process, as it ensures that an accused person is not denied bail arbitrarily. The provision also serves to ensure that if an accused person is denied bail, it is not simply because the prosecution has failed to make its case. Rather, the prosecution must provide a reasonable basis for opposing the release. This can include evidence that the accused is a flight risk, or that they pose a danger to the community. Without Section 515(3), the prosecution could simply remain silent and allow the accused to be detained without having to show any justification for their position. In conclusion, Section 515(3) of the Criminal Code of Canada is an important provision in the bail process. It ensures that the prosecution bears the burden of demonstrating why an accused person should not be released. This requirement is essential in ensuring that an accused person is not detained arbitrarily and that their right to freedom pending trial is respected.
STRATEGY
Section 515(3) of the Criminal Code of Canada is a provision that outlines the criteria for obtaining detention orders for accused persons. The section requires that the prosecution show cause as to why an order should not be made, and as such, it imposes a burden on the prosecution to demonstrate that an accused person should be detained. When dealing with this section of the Criminal Code, there are several strategic considerations that lawyers should keep in mind. Firstly, the prosecution must demonstrate that detention is necessary to secure the attendance of the accused person at court, to protect the public, or to maintain confidence in the administration of justice. Therefore, a lawyer representing an accused person could argue that detention is not necessary for any of these reasons, and that there are alternative measures that can be put in place to address any concerns that the court may have. Secondly, lawyers should be conscious of the fact that detention orders can have severe consequences for an accused person. Being detained can result in loss of employment, disruption to personal relationships, and financial hardship. Therefore, lawyers should vigorously contest any allegations made by the prosecution and argue that their client should be released pending trial. A third strategic consideration when dealing with section 515(3) is to assess the strength of the prosecution's case. If the evidence against the accused is weak, lawyers may be able to argue that there is no need for detention since the accused person does not pose a risk to the administration of justice. Conversely, if the evidence against the accused is strong, lawyers may focus on arguing that alternative forms of detention should be considered rather than detention in a jail. Several strategies can be employed when dealing with section 515(3). Firstly, lawyers may present evidence to show that their client is not a flight risk, is not a danger to the community, and is not likely to re-offend if released. This may include evidence of stable employment, housing situations, ties to the community, medical conditions, and psychological issues. Secondly, lawyers may argue that the accused person would be willing to comply with any conditions of release imposed by the court. These could include house arrest, curfew, drug or alcohol testing, and monitoring by a probation officer. Thirdly, lawyers could argue that detention would be a disproportionate response given the nature of the offence, the accused person's character, and the available evidence. This may involve highlighting deficiencies in the prosecution's evidence or presenting evidence that shows the accused person is not a threat to the administration of justice. In conclusion, section 515(3) of the Criminal Code of Canada imposes a burden on the prosecution to show cause as to why an accused person should be detained pending trial. When dealing with this section, lawyers must assess the strength of the prosecution's case, present evidence to show that their client is not a risk to the administration of justice, and argue that alternative measures should be considered. By employing these strategies, lawyers can help protect the rights of their clients and ensure that they receive a fair and just outcome.