Thursday, May 6, 2010

Changing release conditions

I have been busy with different projects and files and haven't had a chance to work on this blog.  To start this post, I note its Thursday and I am back at the barristers' lounge on a duty counsel day. 

I want to discuss a problem I have, which is unique and interesting.  A client was released on an undertaking.  The prosecutor now wants to have the undertaking reviewed under s. 503(2.3) and has proposed a number of more onerous conditions be added to the original release.  I have never seen this provision used, although I have heard that it has been done.  I have frequently applied to vary conditions that police have imposed.

The corresponding provision that allows a released person to apply for a variation is 503(2.2).  The governing principles that apply are self-evident, that the individual is entitled to a fresh hearing, not a review.  The reason is that an accused who is custody, must accept the terms in order to be released.  The acceptance of such terms is not voluntary and it is therefore fair that the accused have the option of requiring the prosecutor to establish the legitimacy of those terms.

The situation is different when the police set terms.  Presumably, they are in a proper position to judge what terms are appropriate, or whether or not terms should be set by justice of the peace.  In that situation, is a prosecutor entitled to a fresh hearing, the same way an accused has such a right?  No case authority gives guidance on the correct principles.  However, it seems to me that there must be a demonstrated change of circumstances and that it is not enough for the prosecution to say the police were in error and therefore the court should correct that error.  The police and the prosecution are arguably a single entity for these purposes.  As they say: "You made your bed..."