Crash Course on Bill C-75 and Duty to Release for New Officers

Nov 23, 2021

In January 2022, special constable training requirements will be expanded under the Comprehensive Ontario Police Services Act, 2019. A review of the proposed level of training required to be a police officer or university special constable appears to indicate that there will be higher expectations for those fulfilling the role of a special constable. These expectations include expanded training in certain areas of the Criminal Code, Human Rights Law, and various provincial offences acts. The natural evolution of this training would follow the expectations as set by the courts for special constables set by statute and case law.

When the Canadian Parliament passed Bill C-75 in 2018, it was apparent that this legislation meant that the police, which includes peace officers, and the Crown, would follow the Ladder Principle. This means ensuring that arrested parties are released at the earliest opportunity and with the least onerous conditions. With this in mind, peace officers, including those employed by universities, are obligated to release arrested parties as stipulated in section 493.1 of the Criminal Code of Canada. Without policies which reflect current law, universities would be in contravention of the Criminal Code and the Charter of Rights and Freedoms.

Ultimately, internal policies do not override what is written in law. When peace officer agencies rely solely on their local supporting police service to release arrested parties, they will likely end up in jeopardy of breaching their duty to release accused persons as soon as practicable. Police services are often overwhelmed with calls and understaffed, resulting in delayed responses to lower priority calls (i.e. when a university peace officer or loss prevention officer has someone in custody).

As with all new laws, it takes time for defence counsel to figure out their angle for attack on the Crown’s case, such as Charter breaches. One only has to look at the volumes of case law where impaired driving charges were stayed because either the breath test was not administered forthwith, or the accused was not released forthwith after being tested. It is only a matter of time until it will be commonplace to file a Charter argument for a stay of charges because an accused party was not released forthwith once release condition were met. Possible civil action could follow if there was a breach of the Charter or Criminal Code.

The relevant Criminal Code sections pertaining to the release of an accused person by a peace officer are as follows:

  • Section 495(2) C.C. states that a person shall not be arrested for dual procedure offences or summary conviction offences if R.I.C.E. (Repetition of offence, Identity of the accused, Court likelihood reappearance, Evidence protection) is satisfied.
  • Section 497(1) C.C. states that a peace officer must release an accused person as soon as practicable when that peace officer has made the decision to release an accused on an appearance notice or summons (once R.I.C.E. has been satisfied).
  • Section 493.1 C.C. states the principles of restraint and that an accused person must be released at the earliest opportunity with the least restrictive conditions.
  • Section 2 C.C. further states that Indigenous persons and vulnerable persons should be considered in the principles of restraint.

Applicable section of the Charter are as follows:

  • Section 9 (arbitrary detention): This section stipulates that once an accused’s detention is no longer necessary then the detention becomes arbitrary. The remedy is often a stay of proceedings and/or the exclusion of evidence. There are several analogous impaired driving cases that discuss what the term “as soon as practicable” means. Two guiding cases are R v. Vanderbruggen 2006 ONCA and R v. Lorenzo 2016 ONCJ. In these cases, “as soon as practicable” is further defined as “within a reasonably prompt time under the circumstances.”

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