Judicial Referral Hearings: A Sensible Response to Bail Breaches

Administration of justice offences are typically offences that are committed by a person against the justice system itself after another offence has already been committed or alleged. They may involve acts that are not considered criminal in themselves but are considered as such because the accused was given an order not to engage in the behaviour as a condition of their release.  Common examples are failure to comply with bail conditions, such as to abstain from consuming alcohol; failure to appear in court; or breaching a curfew.

These offences impose an enormous burden on the criminal justice system, as nearly 40% of all adult cases involve at least one of these administrative charges.

Canada Hansard, Jody Wilson-Raybould (Minister of Justice and Attorney General of Canada), May 24, 2018;

See R v Rowan, 2018 ABPC 208 (CanLII), at para. 38.

Offences involving failures to comply with conditions of judicial interim release (bail) are the most common form of offences against the administration of justice. Breaches of probation are the second most common. Police elect to lay charges and prosecution agencies pursue convictions for those offences in a remarkably high percentage of cases.

Trends in Offences Against the Administration of Justice, Statistics Canada, Juristat 85-002-x, 2015.

Parliamentary has recognized the problem created by the proliferation of administration of justice offences in criminal courts and in response enacted a new Criminal Code procedure in 2019 for managing failure to comply charges under s. 145(3).  This procedure is called a “judicial referral hearing” (s. 523.1).

The judicial referral hearing process is able to stream certain administration of justice offences out of the traditional court system where no harm has been caused to victims.

This would appear to be in line with a view held by the majority of Canadians:  administration of justice offences are better dealt with outside of the courts, and an accused person’s individual circumstances should be taken into account in tailoring responses to administration of justice offences.

Department of Justice.  Research at a Glance: Administration of Justice Offences (March 18, 2018), online https://www.justice.gc.ca/eng/rp-pr/jr/rg-rco/2018/mar03.pdf

Summary--Judicial Referral Hearings

• A peace officer may issue an appearance notice for judicial referral hearing where there are reasonable grounds to believe that the accused has failed to comply with the requirements of their release or a summons: see section 496, Code.
• A judicial referral hearing is also available where a charge has been laid against the accused for failing to comply with their conditions of release or a summons.
• Irrespective of whether a charge is laid or a peace officer issues an appearance notice for the judicial referral hearing, the prosecutor is given the position of gatekeeper (so to speak), as the prosecutor must also seek a decision through the referral hearing process:  s. 523.1 (2) (a) & (b).
• The judge or justice must be satisfied that the accused has failed to comply with the requirements of his/her release or summons, and that this failure has not caused harm to a victim, property damage, or economic loss.
• A judge or justice has the power to: 

(a) take no action; or

(b) cancel any other summons, appearance notice, undertaking or release order and

i. make a release order under s. 515, or

ii. detain the accused if the prosecutor shows cause for detention.

(c) remand the accused in custody for fingerprinting, photographing, etc. under the Identification of Criminals Act 

 

The judicial referral hearing process was recently summarized recently by the Supreme Court of Canada:

Parliament has enacted a new procedure for managing failure to comply charges under s. 145(3), called a “judicial referral hearing” (s. 523.1). If an accused has failed to comply with their conditions of release, and has not caused harm to a victim, property damage, or economic loss, the Crown can opt to direct the accused to a judicial referral hearing. If satisfied that the accused failed to comply with their court order or failed to attend court, a judicial official must review the accused’s conditions of bail while taking special note of the accused’s particular circumstances. The judicial official can then decide to take no action, release the accused on new conditions, or detain the accused. If the accused was charged with a failure to comply offence, the judicial official must dismiss the charge after making their decision.

R. v. Zora, 2020 SCC 14 (CanLII), at para. 27.

 

Written by Stuart O’Connell (Barrister/Solicitor)

 

Criminal Code

Appearance notice for judicial referral hearing

496.  If a peace officer has reasonable grounds to believe that a person has failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the peace officer may, without laying a charge, issue an appearance notice to the person to appear at a judicial referral hearing under section 523.1.

 

Proceedings Respecting Failure to Comply with Release Conditions

Judicial referral hearing

523.1 (1) When an accused appears before a justice in any of the circumstances described in subsection (2), the justice shall

(a) if the accused was released from custody under an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused appear before a judge of that court so that the judge may hear the matter; or

(b) in any other case, hear the matter.

Circumstances

(2) The circumstances referred to in subsection (1) are the following:

(a) an appearance notice has been issued to the accused for failing to comply with a summons, appearance notice, undertaking or release order or to attend court as required and the prosecutor seeks a decision under this section; or

(b) a charge has been laid against the accused for the contravention referred to in paragraph (a) and the prosecutor seeks a decision under this section.

Powers — Judge or Justice

(3) If the judge or justice who hears the matter is satisfied that the accused failed to comply with a summons, appearance notice, undertaking or release order or to attend court as required and that the failure did not cause a victim physical or emotional harm, property damage or economic loss, the judge or justice shall review any conditions of release that have been imposed on the accused and may, as the case may be,

(a) take no action;

(b) cancel any other summons, appearance notice, undertaking or release order in respect of the accused and, as the case may be,

(i) make a release order under section 515, or 

(ii) if the prosecutor shows cause why the detention of the accused in custody is justified under subsection 515(10), make an order that the accused be detained in custody until the accused is dealt with according to law and if so detained, the judge or justice shall include in the record a statement of the judge’s or justice’s reasons for making the order; or

(c) remand the accused to custody for the purposes of the Identification of Criminals Act.   

Dismissal of charge

(4) If a charge has been laid against the accused for the failure referred to in paragraph (2)(a) and the judge or justice, as the case may be, makes a decision under subsection (3), the judge or justice shall also dismiss that charge.

No information or indictment

 (5) If the judge or justice makes a decision under subsection (3), no information may be laid nor indictment be preferred against the accused for the failure referred to in paragraph (2)(a).