Criminal Code of Canada - section 520(2)

section 520(2)

INTRODUCTION AND BRIEF DESCRIPTION

The accused must give the prosecutor at least two clear days notice in writing before a judge can hear their application, unless the prosecutor consents otherwise.

SECTION WORDING

520(2) An application under this section shall not, unless the prosecutor otherwise consents, be heard by a judge unless the accused has given to the prosecutor at least two clear days notice in writing of the application.

EXPLANATION

Section 520(2) of the Criminal Code of Canada is a procedural provision that requires an accused person to provide at least two clear days' notice to the prosecutor before making an application to vary or rescind a judicial interim release order. Judicial interim release refers to the release of an accused person from custody before trial under certain conditions, such as bail or similar orders. This section is important as it ensures that the prosecutor has adequate time to prepare and respond to the application. The requirement for two clear days' notice is meant to provide sufficient time for the prosecutor to gather relevant evidence and consider the implications of the application. Without adequate notice, the prosecutor may be caught off guard and unable to respond effectively to the accused's request. As a result, the accused could potentially receive an unfair advantage. Furthermore, this provision allows the prosecutor the opportunity to consent to the application being heard by a judge without the necessary notice. This could occur in situations where the prosecutor recognizes the urgency of the matter or does not object to the application proceeding without additional notice. In summary, Section 520(2) of the Criminal Code of Canada aims to ensure a fair and balanced process by giving the prosecutor adequate time to respond to applications regarding judicial interim release. By providing two clear days' notice, the accused person gives the prosecutor the opportunity to prepare and respond to the application, allowing for a more effective and fair process.

COMMENTARY

Section 520(2) of the Criminal Code of Canada establishes the conditions under which an application can be made to vary or revoke a release order or detention order. This section requires that, unless the prosecutor consents otherwise, the accused must give the prosecutor at least two clear days' notice in writing of the application. It then specifies that the application shall not be heard by a judge unless these requirements have been met. The purpose of this provision is to ensure that the prosecutor has adequate time to prepare for the hearing and to respond to the application. This requirement is essential to maintain a fair and balanced criminal justice system. It allows the prosecutor to have an opportunity to bring to the judge's attention any relevant information or submissions, and to ensure that the hearing is conducted in a manner that is consistent with the principles of natural justice and procedural fairness. The two clear days' notice requirement is essential to allow the prosecutor to prepare for the hearing, gather any necessary evidence, and make any necessary submissions. This timeframe also allows the prosecutor to consider whether to oppose the application and, if so, to prepare an argument and provide any relevant evidence. This requirement ensures that both parties have had a reasonable opportunity to present their positions and that the court has the necessary information to make a fair and just decision. This requirement is also beneficial for the accused. It allows them to provide the prosecutor with a clear statement of their reasons for applying to vary or revoke the detention order or release order. This requirement ensures that the accused's submissions are properly considered by the court, and that the accused is able to present their case effectively. However, it is important to note that in some cases, the two days' notice requirement may be waived. For instance, in urgent cases where an accused needs to be released from custody immediately, it may not be practicable or possible to provide the prosecutor with two clear days' notice. In these instances, the court may waive the requirement if it is satisfied that the circumstances require that the application be heard without delay. Overall, Section 520(2) of the Criminal Code of Canada is a reasonable and necessary provision that ensures that both the prosecutor and the accused have a fair and equal opportunity to present their cases. It provides an important safeguard to ensure that the court is able to make a just and informed decision based on all the relevant information.

STRATEGY

Section 520(2) of the Criminal Code of Canada states that in order for an application to be heard by a judge, the accused must give the prosecutor at least two clear days' written notice of the application, unless the prosecutor consents otherwise. This provision places an important procedural hurdle for an accused person to obtain judicial interim release. One strategic consideration when dealing with this section of the Criminal Code is timing. If the accused waits until the last moment to make an application for judicial interim release, there may not be enough time to satisfy the two-day notice requirement, and this can result in further delays in obtaining release. Therefore, it is advisable to make a timely application as soon as the accused is able to do so. Another strategic consideration is whether the prosecutor will consent to the application being heard without the required notice. In some cases, the prosecutor may not object to the accused making a motion for release on short notice, particularly if the reasons for the request are compelling. However, in other cases, the prosecutor may insist on strict compliance with the notice requirements and object to the accused's release simply as a matter of principle or strategy. In such cases, the accused may need to employ various strategies to persuade the prosecutor to consent to an expedited hearing or to convince the court to waive or reduce the notice requirement. One strategy that an accused person could use is to engage in negotiations with the prosecutor to see if they can come to an agreement on the issue of release. For example, they could offer to comply with certain conditions, such as surrendering their passport, submitting to regular drug testing or adhering to a curfew. Alternatively, they could provide persuasive reasons to the prosecutor as to why their release is urgently needed, such as for medical reasons, to attend to important family matters or to secure employment. Another strategy that an accused person might use is to provide the prosecutor with as much information as possible when notifying them of the application for release. This might include copies of medical or employment documents, information about the accused's support network and personal circumstances, and any other relevant information that might assist the prosecutor in making an informed decision about whether to consent to the application being heard on short notice. Finally, an accused person may be able to argue before the judge that the notice requirement should be waived or reduced in the interests of justice. The court has discretion to waive or reduce the notice requirement where it is satisfied that the delay in bringing the application is justified, that the interests of justice require the application to be heard without the usual notice or that the accused will not be prejudiced by proceeding without the required notice. Nonetheless, this is not an easy test to meet, and the court will carefully balance the interests of the accused and the Crown in making its determination. In conclusion, section 520(2) of the Criminal Code of Canada can be a significant procedural hurdle for an accused person seeking judicial interim release. However, there are various strategic considerations and legal arguments that can be employed to overcome this hurdle and obtain release on an expedited basis. It is important for an accused person to work with their lawyers to carefully consider all options and to make timely and persuasive arguments in support of their application for release.