High Risk Offender Judicial Restraint Orders

High Risk Offender Judicial Restraint Orders

DATE: May 20, 2008

SUBJECT: THE AUTHORIZATION PROCESS FOR APPLICATIONS FOR ORDERS BROUGHT PURSUANT
TO SECTIONS 810.01, 810.1 AND 810.2 OF THE CRIMINAL CODE

PURPOSE:

The purpose of this practice memorandum is to ensure that there is a consistent approach taken in the assessment of each proposed application for an order pursuant to S. 810.01, 810.1 or 810.2 of the Criminal Code.

BACKGROUND:

Sections 810.01, 810.1 and 810.2 of the Criminal Code authorize Provincial Court Judges to hear Crown applications for orders requiring Respondents to enter into recognizances. Applications intended to be brought pursuant to S. 810.01 and 810.2 require the prior consent of the Attorney General.

If the hearing Judge is satisfied that such an application ought to be allowed, he or she may require the Respondent to enter into the recognizance, with such conditions as are necessary to prevent the commission of certain offences by the Respondent and to secure the Respondent’s good conduct. The conditions imposed will normally be similar to parole conditions (e.g., no firearms, report as required, not to associate with specified persons, do not consume alcohol or drugs). Note that it is doubtful that a condition requiring a Respondent to submit to testing for the presence of alcohol and drugs can be imposed or enforced: R. v. Shoker 2006 SCC 44. Where sexual offences are reasonably feared, the conditions might also include (and must include, if the application has been brought pursuant to s. 810.1 of the Criminal Code) conditions preventing the Respondent having contact with those under the age 14 years and prohibiting the Respondent from attending parks, daycare centres, playgrounds, etc.

Generally speaking, the applications are based on a reasonable fear that the Respondent will commit one or more enumerated offences, and no such offence need actually be committed before an ordered is granted. In fact, these applications are often made in respect of persons who have been (or are about to be) released from prison after having served the entirety of a sentence that had been imposed after he or she was convicted of a sexual or other serious personal injury offence (see s. 752 of the Criminal Code). The applications are necessary because, on release, such persons will not be subject to any parole conditions.

Given that these applications are time-sensitive and often require the consent of the Attorney General, the following procedure is to be followed.

PROCEDURE:

Sections 810.01 and 810.2 of the Criminal Code
  1. Normally, a policing agency will, upon receiving a so-called Warrant Expiry Package from Corrections Services (Government of Canada) or Correctional Services Division (Alberta Solicitor General and Public Security), or upon otherwise learning of a high risk offender who is in need of community supervision pursuant to ss. 810.01 or 810.2, contact General Counsel regarding a potential application pursuant to one of these sections of the Criminal Code.
  2. If, however, a Crown prosecutor is contacted by a policing agency, by Corrections Services (Government of Canada) or by the Correctional Services Division (Alberta Solicitor General and Public Security) regarding a potential application pursuant to ss. 810.01 or 810.2 of the Criminal Code, he or she shall immediately refer the matter to General Counsel and alert his or her Chief Crown Prosecutor of the referral.
  3. If, after a preliminary review, General Counsel is of the opinion that an application may be warranted, he shall require that a police investigation be conducted and a report prepared. The report must include the following:
    1. the circumstances of the subject’s last offence;
    2. particulars of the Corrections Services (Government of Canada) or by the Correctional Services Division (Alberta Solicitor General and Public Security) files pertaining to the subject and, in particular, all psychiatric and psychological assessments;
    3. the subject’s criminal record and particulars of all of his or her prior offences; and
    4. a list of proposed recognizance conditions.
  4. The consent of the Deputy Attorney General is required before an application may be commenced. As such, if after receipt and review of the report, and after consideration of the guideline The Decision to Prosecute, General Counsel is satisfied that an application is appropriate, he shall prepare a Briefing Note and Fiat for the Deputy Attorney General’s signature and shall forward the report and his recommendation to the Assistant Deputy Minister (Criminal Justice).
  5. Upon confirmation of the Deputy Attorney General’s consent, General Counsel shall instruct the police investigator to prepare and have sworn the appropriate Information and process the necessary documents, and shall advise the responsible Chief Crown Prosecutor (whose office shall be responsible for conducting the application) of the pending application.
  6. In order to ensure maximum protection of the public, the Information should be brought before the Court as soon as possible and an early hearing date should be obtained.
  7. If, following receipt of the Deputy Minister’s consent, it appears that the evidence no longer supports the order sought, the assigned Crown prosecutor must consult with the responsible Chief Crown Prosecutor and General Counsel before a decision is made to abandon the application. If it is decided that the application ought to be abandoned, General Counsel will prepare a briefing note for the Assistant Deputy Minister (Criminal Justice) in which the basis for the abandonment is explained.
Section 810.1 of the Criminal Code
  1. Normally, a policing agency will, upon receiving a Warrant Expiry Package or upon otherwise learning of a high risk offender who is in need of community supervision pursuant to s. 810.1, conduct an investigation regarding a potential application pursuant to this section of the Criminal Code and will consult, as necessary, with General Counsel.
  2. If, however, a Crown prosecutor is contacted by a policing agency, by Corrections Services (Government of Canada) or by the Correctional Services Division (Alberta Solicitor General and Public Security) regarding a potential application pursuant to s. 810.1 of the Criminal Code, he or she shall immediately refer the matter to General Counsel and alert his or her Chief Crown Prosecutor of the referral.
  3. If the police swear an Information respecting an application pursuant to s. 810.1 of the Criminal Code, the local Crown Prosecution Office shall be responsible for conducting the application.
  4. In order to ensure maximum protection of the public, the Information should be brought before the Court as soon as possible and an early hearing date should be obtained.