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Epilogue:  Police Exploit Powers

When police lay a first set of charges, even an innocent citizen faces a day in court. The time between arrest and trial can be long, often years. The police and court want to keep track of the citizen during that interval. For this purpose the justice system created a management tool called an Undertaking (or Recognizance).

An Undertaking is a written list of conditions which the citizen must agree to, such as attend court when required, "keep the peace and be of good behavior," and other items specific to the case.

The first set of charges cannot lead to jail unless an open, public trial – presided over by a judge and a jury of your peers – furnishes sufficient evidence to convict the citizen. During the trial, our democracy allows the citizen the right to legal counsel, the right to inspect the evidence, and the right to test and cross-examine the witnesses.

Breach Charges: Harsh Consequences but Judicial Apathy

A Breach of Undertaking has different rules. No longer is there an orderly progression through the court where you can defend yourself with dignity. Instead, you are arrested and carted immediately to jail without benefit of a lawyer, without benefit of a hearing, without benefit of a trial. Bang, the bars clang shut. The next day you are brought before a judge at a "Show Cause Hearing" where the Prosecutor explains why you should be kept in jail, and where you explain why you should be given a second chance.

The actual evidence for a Breach of Undertaking charge is often not scrutinized. Instead, it rides piggy-back on the first set of charges. The Breach sits in the background, giving the judge, and even the defence attorney, the impression that this client just won't respect the law or stay out of trouble. Often that impression is flawed and erroneous – yet no-one thinks to examine the physical evidence for the Breach.

The serious consequences of a Breach of Undertaking charge, coupled with judicial apathy toward scrutinizing the evidence, means that this management tool gets exploited by police officers trying to bolster a weak case, or trying to improve their record for closing cases.

The Undertaking, as it stands now in Canadian law, places too great a temptation in front of corrupt or zealous police officers. This section of the Tuum Est website illustrates a real-life example, traumatic and chilling.

Canadian Criminal Code
Protection of Persons Administering and Enforcing the Law

Protection of Persons Acting Under Authority

CCC s 25. (1)  –  Every one who is required or authorized by law to do anything in the administration or enforcement of the law

  1. as a private person,
  2. as a peace officer or public officer,
  3. in aid of a peace officer or public officer, or
  4. by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose

Limitation

CCC s 25.1 (11)  –  Nothing in this section justifies

  1. the intentional or criminally negligent causing of death or bodily harm to another person;
  2. the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or
  3. conduct that would violate the sexual integrity of an individual.
Collection of Evidence

CCC s 25.1 (13)  –  Nothing in this section relieves a public officer of criminal liability for failing to comply with any other requirements that govern the collection of evidence.

Canadian Criminal Code
Offences Against the Administration of Law and Justice:  Corruption and Disobedience

Breach of Trust by Public Officer

CCC s 122  –  Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

Misconduct of Officers Executing Process

CCC s 128  –  Every peace officer or coroner who, being entrusted with the execution of a process, wilfully (a) misconducts himself in the execution of the process, or (b) makes a false return to the process, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Canadian Criminal Code
Offences Against the Administration of Law and Justice:  Misleading Justice

Witness Giving Contradictory Evidence

CCC s 136 (1) –  Every one who, being a witness in a judicial proceeding, gives evidence with respect to any matter of fact or knowledge and who subsequently, in a judicial proceeding, gives evidence that is contrary to his previous evidence is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, whether or not the prior or later evidence or either is true, but no person shall be convicted under this section unless the court, judge or provincial court judge, as the case may be, is satisfied beyond a reasonable doubt that the accused, in giving evidence in either of the judicial proceedings, intended to mislead.

Fabrication of Evidence

CCC s 137  –  Every one who, with intent to mislead, fabricates anything with intent that it shall be used as evidence in a judicial proceeding, existing or proposed, by any means other than perjury or incitement to perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Obstructing Justice

CCC s 139 (2) –  Every one who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Public Mischief

CCC s 140 (1) –  Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by:

  1. making a false statement that accuses some other person of having committed an offence;
  2. doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
  3. reporting that an offence has been committed when it has not been committed.
Punishment

(2) –  Every one who commits public mischief (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction.

Canadian Criminal Code
Offences Against the Person and Reputation

Forcible Confinement

CCC s 279 (2) –  Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of:

  1. an indictable offence and liable to imprisonment for a term not exceeding ten years; or
  2. an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Canadian Criminal Code
Sureties to Keep the Peace

Breach of Recognizance

CCC s 811  –  A person bound by a recognizance who commits a breach of the recognizance is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.

FURTHER READING

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

Copyright © 2008-2018 Georgena Sil. All Rights Reserved.