section 164.1(9)

INTRODUCTION AND BRIEF DESCRIPTION

No order made under subsections (5) to (7) takes effect until the time for final appeal has expired.

SECTION WORDING

164.1(9) No order made under subsections (5) to (7) takes effect until the time for final appeal has expired.

EXPLANATION

Section 164.1(9) of the Criminal Code of Canada sets out an essential rule in relation to orders made under subsections (5) to (7) of the same section. This provision stipulates that such orders do not come into effect until the time for final appeal has expired. Subsections (5) to (7) of section 164.1 of the Criminal Code deal with the court's power to issue various types of orders in cases related to the sexual exploitation of children or child pornography. For instance, subsection 164.1(5) allows the court to make an order prohibiting the accused from using the internet or other specified technologies for a specified period. Subsection 164.1(6) permits the court to order the forfeiture, destruction, or deletion of any material that was used in the commission of the offence. Given the serious nature of the offences covered under section 164.1, it is crucial to ensure that any orders made by the court are valid and enforceable. However, the law also recognizes the right of the accused to appeal the court's decision in a timely manner. Therefore, subsection 164.1(9) ensures that any orders made under subsections (5) to (7) will not take effect until the time for final appeal has elapsed, which is usually 30 days after the sentence is handed down. Overall, section 164.1(9) of the Criminal Code of Canada serves a vital purpose in the administration of justice by ensuring that any orders made under subsections (5) to (7) are given the proper consideration and respect by both the courts and the parties involved. This rule also helps to safeguard the accused's right to appeal by preventing any irreversible actions from being taken until the appeal process has played out.

COMMENTARY

Section 164.1(9) of the Criminal Code of Canada is a provision that plays an important role in the criminal justice system of the country. This provision deals with the issue of the effective date of the orders that are made under subsections (5) to (7) of section 164.1 of the Criminal Code. The orders made under these subsections relate to the protection of witnesses and victims of certain offences, namely, sexual offences, criminal harassment, and other forms of violence. The provision states that no order made under subsections (5) to (7) takes effect until the time for final appeal has expired. This means that the order is not enforceable until the appeal period for the decision has expired. The intent of this provision is to provide an opportunity for the affected parties to challenge the order in a higher court. By providing this opportunity, the law seeks to strike a balance between the protection of witnesses/victims and the rights of the accused. The protection orders that can be made under subsections (5) to (7) of section 164.1 of the Criminal Code are of various types. Some of the orders include: prohibiting the accused from communicating with the victim or witness, prohibiting the accused from going to a certain area, and prohibiting the accused from possessing a weapon. These orders are made by a judge after considering the evidence presented by the prosecution and defence. The timing of these orders is crucial, as the safety of the victims or witnesses may depend on the effectiveness of the orders. However, it is also important to ensure that the rights of the accused are not violated. Therefore, the provision in question is designed to ensure that the accused has an opportunity to appeal the decision before the order takes effect. This protection is especially important in cases where the accused has not yet been convicted of the offence. The provision also has implications for the criminal justice system as a whole. It ensures that the courts' decisions are not final until the appeal process has concluded. This means that the appeal process remains an important part of the justice system, as it provides a forum for the review of decisions made by lower courts. It also emphasizes the importance of the principle of presumptive innocence, as the accused has the right to challenge any order made against them. In conclusion, section 164.1(9) of the Criminal Code of Canada is an important provision that ensures that protection orders made under subsections (5) to (7) of section 164.1 are not enforceable until the time for final appeal has expired. This provision strikes a balance between the protection of victims/witnesses and the rights of the accused, and reinforces the importance of the appeal process in the criminal justice system.

STRATEGY

Section 164.1(9) of the Criminal Code of Canada is a critical provision that deals with the timing of the effect of an order made under subsections (5) to (7). The section stipulates that no such order takes effect until the time for final appeal has expired. This provision creates various strategic considerations for the parties involved in criminal proceedings. It also creates opportunities and challenges that can be exploited or overcome through various strategies. One strategic consideration when dealing with this provision is the timing of the appeal. Since the order made under subsections (5) to (7) does not take effect until the time for final appeal has expired, the parties can strategically time their appeals to delay the effect of the order. For instance, a party may appeal a court decision knowing that the appeal will take several weeks or months to be heard, thereby delaying the effect of the order. This strategy can be useful if the party needs time to prepare or gather evidence, or if the party is hoping for a change in circumstances that could affect the order's impact. Another strategic consideration that arises from this provision is the standard of review. Since no order takes effect until the time for final appeal has expired, the parties have an opportunity to challenge the order on appeal. However, the standard of review on appeal is different from that at trial. On appeal, the court reviews the decision for errors of law or mixed fact and law. This means that the parties must build their appeal arguments based on legal errors or flawed findings of fact. This requires a different strategy than at trial, where the focus is on presenting evidence and persuading the judge. One strategy that could be employed to overcome the challenges posed by this provision is to seek a stay of the order pending the appeal. A stay is an order that temporarily suspends the effect of a decision pending the outcome of an appeal. If a party can convince the court that the order will cause irreparable harm or that they have strong grounds for appeal, the court may grant a stay. This strategy can be useful for parties who want to avoid the effect of the order while waiting for the appeal to be heard. Finally, the parties should also consider the impact of this provision on their negotiation position. Since the order made under subsections (5) to (7) does not take effect until the time for final appeal has expired, the parties may use the appeal period to negotiate a settlement or resolution. For instance, a party may agree to drop their appeal in exchange for a modification or cancellation of the order. This strategy can be useful for parties who want to avoid the costs and uncertainty of litigation, or who want to avoid the effect of the order altogether. In conclusion, Section 164.1(9) of the Criminal Code of Canada creates various strategic considerations for the parties involved in criminal proceedings. The parties can strategically time their appeals, prepare their appeal arguments based on legal errors or flawed findings of fact, seek a stay of the order pending the appeal, and use the appeal period to negotiate a resolution. By understanding these strategic considerations, the parties can better navigate the criminal justice system and achieve their desired outcomes.