How Does An Accused Person Get Released From Custody

If an accused person is arrested for an offence and taken into custody by the police, S.497(1) of the Criminal Code requires the officer to usually release the accused person as soon as practicable for certain less serious offences. However, the officer has the right to detain people in the “public interest” in order to

i) establish the identification of the accused person
ii) to secure or preserve evidence
iii) to prevent the continuation or repetition of the offence or another offence
iv) to ensure the safety of the victim or a witness

The accused person is usually housed in a “Pre-Trial centre” like Surrey Pre-Trial or the remand centre at “Fraser Pre-Trial” in Coquitlam.

Where an accused is not released from police custody, the Criminal Code requires the person be brought before a Justice/Judge within 24 hours of arrest.

The Crown has the discretion to ask a judge to release an accused person if the Crown believes that the accused person does not pose a flight risk or that they will not commit crimes if released from custody. Like most releases, the judge will impose conditions on an accused that fit the case (for example, an “area restriction” or a “no go” may be imposed).

In some cases the Crown may seek to detain the accused because the accused poses a flight risk or a concern that they may commit crimes if released. In this case, the Crown will ask a judge for a “contested bail hearing” where the Crown will ask the judge to detain the accused until their trial (or whenever the case is completed). This hearing must take place within 24 hours of the accused’s arrest.

At the contested bail hearing, the Crown usually reads to the court the circumstances of the alleged offence from the police report and any criminal record. Then the accused’s lawyer will make submissions to the court regarding the background of the accused – residence, family, job, treatment etc.

A judge will then make his/her decision. The judge must release the accused unless the accused poses a flight risk (what are known as “primary grounds”) or that the accused will commit crimes if released from custody (what are known as “secondary grounds”).

Noah Neaman, criminal lawyer, has conducted countless contested bail hearings. Call Noah at 778-881-1785 for a free consultation if you or a loved one is in custody.


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