INTRODUCTION AND BRIEF DESCRIPTION
Defective appearance notices, promises to appear, or recognizances are not a lawful excuse for failing to attend court.
SECTION WORDING
145(6) For the purposes of subsection (5), it is not a lawful excuse that an appearance notice, promise to appear or recognizance states defectively the substance of the alleged offence.
EXPLANATION
Section 145 of the Criminal Code of Canada sets out an offence called "failure to comply with conditions of undertaking or recognizance". In brief, if an individual is released from custody on the condition that they comply with certain conditions (such as to attend court), and they fail to do so, they can be charged with this offence. Subsection (5) of section 145 sets out a defence to this offence. Specifically, an accused can argue that they did not intend to breach their conditions, and that there was a "lawful excuse" for their failure to comply. For example, if they were seriously ill and could not attend court, this may be a lawful excuse. However, subsection (6) of section 145 specifically states that an accused cannot rely on an error or defect in the appearance notice, promise to appear, or recognizance as a lawful excuse for failing to comply. In other words, if the paperwork relating to their release contains an error (such as an incorrect date or time), they cannot use this as a defence. Overall, section 145 of the Criminal Code is an important tool used by the justice system to ensure that individuals who have been released on conditions comply with those conditions. Subsection (6) makes it clear that even if there is an error on the paperwork, the accused is still responsible for complying with their conditions.
COMMENTARY
Section 145(6) of the Criminal Code of Canada sets out a provision that limits the possibility of an accused person avoiding prosecution or conviction on the grounds that an appearance notice, promise to appear, or recognizance contained a defect or error in its statement of the alleged offence. The purpose of this provision is to prevent the accused from relying on trivial or technical errors in the charging documents to evade prosecution and justice. This section ensures that the alleged offence itself, not the manner in which it is presented, remains the focus throughout the process of prosecution or trial. It is important to note that the substantive elements of the offence must still be made out beyond a reasonable doubt for a conviction to be made. Defects or errors in the charging documents alone cannot result in a conviction. However, by removing the possibility for the accused to use technicalities to avoid prosecution, section 145(6) is able to ensure that justice is not impeded by minor administrative errors. This provision ensures that the onus stays on the accused to prove their innocence. If the prosecution is able to prove beyond a reasonable doubt that the accused committed the offence, the accused is not able to rely on a technical error to avoid their conviction. This means that both the prosecution and defence must focus on the substance of the offence, rather than on evading responsibility on minor technicalities. Section 145(6) is a necessary provision due to the potential for such technical errors to be exploited by the accused. These errors can range from incorrect dates, to incorrect names, to incorrect details of the offence. Without this provision, an accused could potentially use minor administrative errors as a means to avoid prosecution and escape justice. However, it's worth noting that the provision could also be misused in certain situations, such as when there is a substantive error in the charging document, rather than just an administrative error. In such cases, the accused may not be able to articulate a proper defense due to an error in the documents. This could be problematic, as it could lead to wrongful convictions and miscarriages of justice. In conclusion, section 145(6) ensures that administrative errors in charging documents cannot be used to impede justice. By focusing on the substance of the offence rather than its presentation, this provision ensures a more just and effective legal system. However, caution must be taken to ensure that the provision is not misused to the detriment of the accused's rights and freedoms.
STRATEGY
Section 145(6) of the Criminal Code of Canada is a provision that effectively removes the defence of a defectively stated offence in appearance notices, promises to appear, or recognizances. This section may sound strict and unforgiving, but there are strategic considerations that can be taken into account when dealing with it. One strategic consideration would be to carefully review the document under scrutiny. This means paying attention to the language used, the details of the alleged offence, and any other pertinent information that could potentially be used as a defence. If there is any uncertainty about the document, it is recommended to seek legal advice. Another consideration is to determine the severity of the offence and the potential consequences. In some cases, the penalty for a defective appearance notice or recognizance may be less severe than the consequences of a conviction for the alleged offence. For instance, if the offence is minor, and the penalty for a conviction is significant, it may be prudent to argue for a dismissal on the basis of the defective document. In order to combat section 145(6), strategies will depend on the facts and circumstances of each individual case. Some possible strategies include: 1. Arguing that the alleged defect in the appearance notice, promise to appear, or recognizance is significant and substantive, and therefore prevents the accused from knowing the nature of the offence. 2. Arguing that the accused relied on the document and acted in good faith, and that a conviction would be unfair or unjust. 3. Arguing that there was no way to rectify the defect in the document at the time, and that the accused could not have been expected to do so. 4. Arguing that enforcing section 145(6) in this particular case would be against the public interest. 5. Arguing that the defect in the document was the result of a mistake on the part of law enforcement, and that the accused should not be punished for someone else's error. Ultimately, the best strategy will depend on the facts of the case and the legal arguments available. It is important to approach the issue carefully and to consider all possible angles in order to achieve the best outcome for the accused.