In the last special podcast episode, I discussed what is already now changed under s. 2 and now I will discuss what will change as of December 18, 2019. As you can glean from the title of this podcast, judicial interim release is “a-changin’”. The first way this change is occurring is through s. 2 of the Code. These new amendments will add a number of judicial interim release terms to define the different ways an accused person can be releasedIn the last special podcast episode, I discussed what is already now changed under s. 2 and now I will discuss what will change as of December 18, 2019. As you can glean from the title of this podcast, judicial interim release is “a-changin’”. The first way this change is occurring is through s. 2 of the Code. These new amendments will add a number of judicial interim release terms to define the different ways an accused person can be released from custody while awaiting trial.
On December 18, 2019, the terms “appearance notice,” “recognizance,” “release order,” “summons,” and “undertaking,” will be defined by connecting each term with its pertinent Form number. This might provide clarity; the Forms themselves are detailed and when reviewed provide much information on the kind of release contemplated. It can be argued that by defining these terms through their Forms, we are providing a richer definition without creating an overly verbose one. Additionally, these terms are already defined under s. 493, which is the definition section for Part XVI on Compelling Appearance of Accused Before a Justice and Interim Release. It appears that this “change” is nothing more than a move uptown, so to speak. Instead of being definitions connected to a particular Part, these definitions will apply to the entire Code.
So, on the surface these amendments do not appear to make any real substantial changes. They do, however, raise my curiosity. It is curious that the definitions for these types of release mechanisms, even before the amendments, are not defined in any substantive way. I will explain.
The new definitions do not tell us what, for instance, an appearance notice is, other than defining it by its format, which is Form 9. The Forms appear at the end of the Criminal Code. Forms are also the subject of the last section in the Code, s. 849. Not all terms expressed by a Form are defined. For example, there is no definition of “Information,” but an Information is drafted pursuant to Form 2. By the way, there is very little resemblance between the Form 2 in the Code and an actual Information. Sure, the details required in Form 2 are found in an Information, but it really doesn’t look like the Form – there’s much more to it.
So, the Forms as definitions help but they do not tell you what an “Information” really is, which is the charging document that brings the matter into court. There are definitions of “Information” found outside of the Code. In Dowson v R,  2 SCR 144, Justice Lamer referenced just such a definition from Jowitt’s The Dictionary of English Law, London, Sweet & Maxwell Ltd., 1959, at p. 968. This dictionary is still available in its 4th edition but is a tad pricey at $1, 027.00. It would be much simpler for parliament to define it. In any event Jowitt, who was William Jowitt, the 1st Earl of Jowitt, defines Information as “Proceedings before justices of the peace in matters of a criminal nature are commenced by an information, which is a statement of the facts of the case made by informant or prosecutor, sometimes verbally, sometimes in writing, and either with or without an oath; when not upon oath, the information is said to be exhibited.” That definition goes a long way to understanding what an information is and what it does in the criminal justice system. It certainly provides much more information than merely saying an “information” means the document in Form 2.
In case you were curious, there is a definition of “indictment” but there is no Form for such a document. The Crown prosecutor has a free hand to draft an Indictment, although it would be circumscribed by the common law, case authority, and any internal guidelines.
Finally, let’s look at another Form that begs to be defined - Form 16, which is the Form for a Subpeona to a Witness. There is no definition of subpoena under s. 2 but there is a section in the Code, s. 700, which does explain the contents of a subpoena and does effectively define it. Well done! But, even “curiouser”, s. 700 does not reference Form 16!
But back to the amendments at hand. Section 2 will now define the following types of judicial interim release: “appearance notice” as a “notice in Form 9 issued by a peace officer; "recognizance" as Form 32 entered into before a judge or justice; "release order" as an order in Form 11 made by a "judge" as defined in section 493 or a justice; "summons" as a summons in Form 6 issued by a judge or justice or by the "chairperson" of a Review Board as defined in subsection 672.1(1); "undertaking" that “means, unless a contrary intention appears, an undertaking in Form 10 given to a peace officer.” This definition for “undertaking” is not overly helpful, although the previous definition under s. 493 was not either. The previous definition merely defines it as Form 11.1 or 12. The new definition defines undertaking as Form 10 “unless a contrary intention appears.” I have no idea what that phrase means and in the context of statutory interpretation I do not hesitate to suggest that this definition is not well drafted. I suppose we will need to wait until the “contrary intention” does in fact “appear.” In other words, we will know an undertaking when we see one. By the way, in case you were curious, “peace officer” is also defined under s.2, although they don’t tell us this in these new definitions.
Seeing these definitions, I immediately realize that “promise to appear,” a form of release presently available in the Code, is not defined. It is not defined as that form of release will no longer be available come December 18. This means a person charged with an offence can no longer promise to attend in court to be dealt with according to law. In my view, it is rather a sad day when a person’s word is no longer enough – but there you have it. An argument could of course be made that such a promise to appear is no longer needed as an accused person can simply be given an appearance notice, that carries no conditions like a promise to appear, except for the requirement the accused to attend court and, if applicable, attend for fingerprinting.
The result may be the same but there is something about trusting the person who is engaged by the criminal justice system that resonates with me. Trusting their promise to appear goes hand in hand with the presumption of innocence; that we are presuming they are law abiding citizens and we trust them to attend as required. The judicial system is also, in the nomenclature of “promise to appear,” obtaining the accused person’s trust; the accused person by promising to attend is putting themselves into the hands of the justice system – they too are trusting the rule of law.
These s. 2 additions are just a peek into the more substantive changes to the entire judicial interim release regime. These sections come much later in the Code, starting at s. 493 of the Code and considering I am only at s. 70 in my podcast Code journey, we still have a way to go before we dig into that issue.
One last comment. There is a final December s. 2 amendment involving the definition for “intimate partner.” This is not a new definition for the Code. Like the judicial interim release definitions, the term was defined elsewhere, under s. 110.1 of the Code, having been placed there in 2015 amendments. The definition specifically referenced weapon prohibition orders under ss. 109 and 110 where the offence involved “an indictable offence in the commission of which violence was used, threatened or attempted against” (see s. 109) an offender’s intimate partner. The term is defined as “current or former spouse, common-law partner and dating partner.” It is moved to s.2 for a reason; there are now new sections relating to “intimate partner” violence such as the special sentencing provisions under s. 718.3(8). This change, at least, makes sense and also re-defines the term slightly to make it more readable and understandable.
Next special podcast episode will continue the retro journey, as we look back at the podcast sections that have now changed in the Code.