remand, diversion and net widening

Summons to Appear in Court

-Individuals who are initially charged by the police, or arrested, could be given a court date at the (1) police station, or at the (2) side of the street
-The decision to issue a summons depends on the (1) discretion of individual police officers and (2) the perceived seriousness of the offence
-Statutory or common-law rules might restrict an officer’s capacity to render such decision
-A person who fails to appear in court are charged with failure to appear, which is a hybrid offence

Appearance Notice

-The same as a summons except the offender is not charged with a crime
-The delivery of the appearance notice gives Crown counsel discretion as to whether they wish to proceed with criminal charges- Crown essential decides to approve charges
-Can only be issued for (1) summary (2) hybrid and minor indictable offences
**If the police choose to hold offenders in custody, they must bring the accused before a court either (1) in- person, or (2) via video link, within 24 hours, or as soon as reasonably possible**
**These are basically the only ways the police can compel someone to appear in court without formally arresting and holding them for a bail hearing**

Police Discretion in
Releasing Accused

When one is arrested, the police are the first CJS practitioners who decide whether to release the The CC provides some guidance and regulation over police discretion
accused
1. The police normally consider the accused’s (1) history of criminality & (2) seriousness of the offence they are being charged with when deciding whether to hold someone for a bail hearing
2. The police may choose to exercise their discretion, and release the accused individual unconditionally
3. If the police choose to release the accused on a summons or appearance impose conditions the accused individual must abide by until th
notice, the officer may unilaterally eir court date (known as an undertaking)
4. Over the last 20 years, the police have become more inclined to hold accused individuals for bail hearings
5. If the officer holds the accused for a bail hearing, the officer believes the accused individual is either a (1) flight risk, (2) danger to society, or (3) they believe they don’t have the capacity to determine these things

Discretion & Race

Studies show, when the police exercise their discretion in releasing offenders, racialized groups, and more specifically black individuals are at least twice as likely to be held for a bail hearing, when compared against non-racialized individuals accused of similar crimes under similar circumstances
-Moreover, if the police choose to release offenders, they are more likely to impose more stringent conditions on the undertaking assigned to radicalized individuals
- Bail reformers have conversely argued that the police should be better encouraged to exercise their discretionary powers, as opposed to relying more exclusively on their authority to detain individuals for a bail hearing, mitigating some of these issues

Undertaking to Police

The police (officer in charge) can impose
conditions upon releasing accused individuals
-These individuals either agree to the conditions, or they may be otherwise coerced to remain in detention for a bail hearing
-The remedy for violating the conditions of (i.e., imposition of additional charges)
Conditions can Include
an undertaking are criminal
1. Restrictions on mobility
2. Prohibitions on interacting with certain people
3. Abstain from drugs or
alcohol
4. And more.......

Bail

**Waiting for Bail a bail hearing is different and distinct from being placed on remand*

Section 11 (Canadian Charter)

-Referred to as the general legal rights section, applying
to persons charged with a crime
-The presumption of innocence until proven guilty
-To be tried within a reasonable time (b.)
-Not to be compelled to serve as a witness in criminal proceedings (c.)

Bail- Section 11(e).

of Canada’s Charter, stipulates that an accused be denied reasonable bail, without just cause”
-This charter provisions offers accused individuals with the right to reasonable individual is “not to
-Crown counsel will initially decide whether they want to (1) consent to, or (2) contest the accused’s bail
Bail Hearing
-The decision to grant bail depends on; (1) the crime the accused is before the courts for and, (2) the accused's history of criminality

Primary Grounds

-The accused is denied bail if they are deemed a flight risk, where placing the accused on remand is necessary to ensure their attendance in court
-Although people are commonly remanded on primary grounds, this provision yet to be challenged in court

Secondary Grounds

the accused is denied bail if they are considered to pose substantial likelihood to (1) reoffend upon release, (2) pose a substantial risk to public safety, or if their release would (3) interfere with the administration of justice
-Case law dictates that the person denied bail upon secondary grounds must pose a (1) substantial risk of reoffending, and that must pose a risk to the broader community
-Detention under secondary grounds must be necessary for public safety

Tertiary Grounds

Where the detention of the accused before the courts maintain the public’s confidence in the administration of justice
-The SCC ruled that the application of tertiary grounds in denying bail must only be ap in “exceptional” and “rare” circumstances involving only certain types of crimes
- The court must adapt the lens of the public, when determining whether placing a particular is necessary to plied
individual on remand would defend and reinforce perceptions and co administration of justice in Canada
-The (1) strength of the prosecution’s case, (2) time the public
sentiment are all considerations the judge must consider

Reverse Onus

In some cases, the defense party burdens the onus to prove that the accused will neither violate the (1) primary or (2) secondary grounds under which bail is normally denied
-Reverse onus is applied in cases of serious criminality (i.e., murder) or,
-When the accused is charged with another or similar offence while already on
bail

Issues with Bail

-The CC mandates very specific conditions around
the bail process, and,
-Encourages the “ladder approach” when the imposing bail conditions,
however,
1. The administrative burdens experienced by the bail system, in Ontario particularly, has resulted in the flagrant disregard for the rights of those subject to a bail hearing
2. In one event, 20
accused individuals were returned to jail after the
court simply ran out of time that day to hear the rest of the bail cases
3. The overuse of sureties in Ontario has been occurring, irrespective of the principles of the ladder approach mandated in law
4. Individuals are often denied bail in the absence of a surety,
controlling for the risk they’re perceived to pose if released into the broader community

Surety

An individual who possess a relationship of trust and responsibility with the accused would undertake an agreement with the crown in (1) supervising the accused in ensuring the adhere to their bail conditions, and (2) reporting when the accuses
-Sureties are sometimes required to put up money or assets

Issues with Bail

Race is the most significant predictor in determining whether someone would be denied bail
&
When controlling for the legalities of the bail process, i.e., (1) flight risk or (2) safety risk

1. Black individuals are more likely to be denied bail, when compared to their white counterparts when both were accused of the (1) same or similar crime(s) and possessed (2) a similar history of criminality
2. Black individuals released on bail are also more likely to receive more coercive bail conditions when
compared with their white counterparts
3. Racialized groups who are subjected to (1) over policing and (2) overrepresentation in the criminal justice system are disproportionately represented in Canada’s remand population
4. In one Toronto study, black males are 6.8x more likely to arrested and booked in jail, when contrasted against their representation in the general public, and,
5. 4.1x more likely to be booked in jail when contrasted against the booking rate of white individuals (similar crime, location & circumstances)
6. For aboriginal individuals living in remote communities, if the police decide to hold the accused for a bail hearing, they are often transported to far away detention centres
Police are statutorily required to review the special circumstances of Aboriginal offenders when deciding to
•(1) release or (2) detain for a bail hearing

Remand

Also referred to as pre-trail detention, remand is a set of circumstances under which the accused is charged with a crime, yet they are denied bail, and kept in detention pending
trial,oralternateon(afterbailhearing&beforetrial)
-Non-convicted individuals are still presumed innocent, if not concurrently serving a se whilst on remand
-Offenders on remand are normally housed in provincial and territorial (normally under maximum security conditions)
-Remand populations normally consist of those with a (1) history of violent criminality, or (2) those afflicted by addiction and/or mental health issues

Administrative Criminal Offences

(1) breach of probation, (2) failing to adhere to bail conditions, or (3) failure to appear on an appearance notice or summons
-The over policing of marginalized communities makes it more likely that racialized individuals are disproportionately charged with and placed on remand for administrative criminal offences
-Studies have also found that racialized individuals, and particularly black individuals, are more likely to be arrested for and charged with administrative criminal offences
-These studies have further found that this effect is exacerbated by the exercise of police discretion, when controlling for the (1) nature of the offence, (2) time, and (3) geographic location
-with the variable being RACE

Diversion

Can occur at almost any stage of the justice process, and is typically characterized by the accused individual doing things outside of the formalities of the CJS, with the ultimate objective of being as far removed as possible from the potential ascription of criminality
-Like many elements of the CJS, diversion is a a (1) discretionary tool for the justice practitioners, and a (2) voluntarily option for the accused

Front Door Diversion

Refers to the targeting of diversion programs to mitigate overcrowding within carceral settings

Back Door Diversion

refers to the targeting of programs to those already serving a sentence within a carceral setting, and releasing them prior to their warrant expired date, on the condition they fulfill a specific set of conditions

Pre-Charge Diversion

Normally made at the discretion of police, individuals are sometimes encouraged to participate in community-based programs, diverting individuals from being charged and facing the formalities of the judiciary (some programs administered by community organizations i.e., the John Howard society)

Post-Charge Diversion

When Crown prosecutors sometimes choose to offer accused individuals the opportunity to participate in diversion programs, upon successful completion, charges are normally withdrawn and never prosecuted, or prosecution results in a (1) finding of not-guilty, a (2) discharge (absolute or conditional), or the promise of a (3) mitigated outcome (less common)

Diversion from Incarceration

This occurs at the point of sentencing, normally offenders burden a criminal record, and are subject to high-risk intervention programs

Net-Widening

Is in reference to the unintended effect of imposing diversionary, or other extra-judicial measures upon individuals accused of, or alleged to have transgressed criminal laws

Issue with Net-Widening

1. Diversion is more used for youthful offenders in Canada, many studies examining th of diversion focus on young offenders
e effectiveness
2. Diversion programs initiated and administered by the (1) police or been shown to impose a ‘net-widening’ effect
3. Diversion initiatives that do not result in the (1) prolonged imposition of conditions, or (2) increase
(2) prosecutors, have in studies
in individuals entering the formalities of the CJS are not necessarily considered to impose a ‘net- widening’ effect

Police Exacerbating Net-Widening

The police often collect more information/evidence than necessary, enhancing their investigative capacity

Crown Exacerbating Net-Widening

Prosecutors have shown that in some instances, that they are more likely to recommend and push diversion in cases where they believe the probability of obtaining a conviction, or desired conviction is low

Forms of Net-Widening

1. Mandating the participation of individuals not a party to the initial
g as the point of entry into formalities of the criminal
criminal act initiating diversion (i.e., having families participate in diversion)
2. Diversion servin justice process
3. Demanding individuals to adhere to more restrictive conditions longer than necessary
4. Ineffective diversionary programs resulting in recidivism, and subsequent entry into the CJS