Criminal Code of Canada - section 145(8) - Election of Crown under Contraventions Act

section 145(8)

INTRODUCTION AND BRIEF DESCRIPTION

Failure to comply with a condition of an undertaking or recognizance or to appear at a specified time and place is considered lawful if the Attorney General makes an election under section 50 of the Contraventions Act.

SECTION WORDING

145(8) For the purposes of subsections (3) to (5), it is a lawful excuse to fail to comply with a condition of an undertaking or recognizance or to fail to appear at a time and place stated in a summons, an appearance notice, a promise to appear or a recognizance for the purposes of the Identification of Criminals Act if before the failure the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.

EXPLANATION

Section 145(8) of the Criminal Code of Canada provides an exception to the legal consequences of failing to comply with a condition of an undertaking or recognizance, or to fail to appear at a specified time and place stated in a summons, an appearance notice, a promise to appear, or a recognizance under the Identification of Criminals Act. If the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act, failing to comply with such conditions will be deemed a lawful excuse. This exception is based on the recognition that sometimes people may be unable to comply with a condition or appear at a specified time and place due to exceptional circumstances such as illness, emergencies, or other factors outside their control. However, without this exception, failing to comply with a condition or appear at a specified time and place can have serious legal consequences, leading to the issuance of warrants for arrest, revocation of bail, and other punitive measures. This section underscores the importance of safeguards in the criminal justice system, which aim to balance the interests of the state and of the accused. By providing an exception under certain conditions, this provision aims to ensure that people are not penalized unfairly for circumstances beyond their control, while still allowing the state to enforce the law and maintain public safety. Overall, section 145(8) reflects one aspect of the complex interplay between the rights of the accused and the interests of the state in the criminal justice system.

COMMENTARY

Section 145(8) of the Criminal Code of Canada provides a lawful excuse for individuals who have failed to comply with their undertaking or recognizance or failed to appear at a time and place stated in a summons or other legal document. If the Attorney General makes an election under section 50 of the Contraventions Act, then the individual's failure to comply is considered lawful. At first glance, this provision may seem confusing or even contradictory. How can failing to comply with a legal requirement be lawful? The answer lies in the purpose of the Contraventions Act, which is to provide an alternative, less punitive way of dealing with minor offences. Under this Act, the Attorney General can choose to prosecute certain offences as contraventions rather than as criminal offences. This means that individuals who are charged with these offences will not have a criminal record and will face less severe penalties. Section 145(8) of the Criminal Code is designed to work in conjunction with the Contraventions Act. If an individual is charged with a contravention and fails to comply with their legal obligations, the Attorney General has the option to make an election under section 50 of the Contraventions Act. This effectively removes the criminal element from the individual's failure to comply, making it a lawful excuse under section 145(8) of the Criminal Code. The purpose of this provision is to support the principles of fairness and proportionality in the criminal justice system. Individuals who are charged with minor offences should not face the same harsh penalties and consequences as those charged with more serious crimes. By providing a lawful excuse for failure to comply with a legal obligation in certain circumstances, the Criminal Code of Canada acknowledges that individuals should not be overly punished for minor, non-violent offences. Section 145(8) of the Criminal Code also serves to promote efficiency in the criminal justice system. By allowing the Attorney General to make an election under the Contraventions Act, minor offences can be dealt with more quickly and efficiently than if they were prosecuted as criminal offences. This can help to reduce the workload of the courts and other parts of the justice system, freeing up resources to deal with more serious criminal cases. Overall, section 145(8) of the Criminal Code of Canada is an important provision that supports fairness, proportionality, and efficiency in the criminal justice system. By providing a lawful excuse for failure to comply with a legal obligation in certain circumstances, this provision helps to ensure that individuals are not overly punished for minor offences. It also allows for a more streamlined approach to dealing with contraventions, freeing up resources in the justice system to focus on more serious criminal cases.

STRATEGY

Section 145(8) of the Criminal Code of Canada provides individuals who are subject to an undertaking or recognizance with a lawful excuse for non-compliance with the conditions of their release or a failure to appear in court. The provision states that if the Attorney General makes an election under section 50 of the Contraventions Act, a failure to comply with an undertaking or recognizance will be excused. This section gives rise to many strategic considerations when dealing with criminal law cases. One of the strategies that could be employed in relation to section 145(8) of the Criminal Code is early communication with the Crown Attorney. Defence counsel may communicate to the Crown Attorney that their client is struggling to comply with their undertaking or recognizance and request the Attorney General to make an election under section 50 of the Contraventions Act. Early communication with the Crown and Attorney General can reduce the accused's risk of being charged with breach of their conditions of release. Another strategy that could be employed is to file a motion for an election under section 50 as soon as the defence becomes aware of the issue. This strategy can aid the defence counsel in their negotiation with the prosecutor and can minimize the risk of the client being charged with the breach. Another strategy is to negotiate a withdrawal of charges proactively and before charges are laid. This would be particularly useful where it is anticipated that the accused may breach a condition of their release and prompt an election under section 50. It may also be useful for defence counsel to take steps to ensure that they are aware of any potential issues with their client's compliance with their conditions of release. They should ensure that their client is aware of the conditions of their release and provide them with the resources necessary to comply with those conditions. If compliance with a particular condition of release is difficult, counsel can seek a variation of the condition or make an application to the court to seek a change in the conditions. In summary, section 145(8) of the Criminal Code provides a lawful excuse for a failure to comply with an undertaking or recognizance or a failure to appear in court. Strategic considerations in dealing with this section of the Criminal Code include early communication with the Crown Attorney, filing a motion for an election under section 50, negotiating a withdrawal of charges, ensuring awareness of potential compliance issues and seeking variation of the release conditions. Counsel should take a proactive approach to reduce the risk of clients being charged with a breach of their conditions of release.