Criminal Code of Canada - section 521(1) - Review of order

section 521(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows the prosecutor to request a review of an order made by a justice or judge before the trial of the charge.

SECTION WORDING

521(1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(1), (2), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the prosecutor may, at any time before the trial of the charge, apply to a judge for a review of the order.

EXPLANATION

Section 521(1) of the Criminal Code of Canada provides for a mechanism for prosecutors to seek a review of an order made by a justice or a judge of the Nunavut Court of Justice. This is relevant in cases where the justice or judge has issued an order under subsections 515(1), (2), (7), (8) or (12) or has made or vacated an order under paragraph 523(2)(b). In general terms, these subsections provide for various types of pretrial release, detention, and bail orders that can be issued by a justice or judge in the context of a criminal proceeding. For example, subsection 515(1) allows a justice to order the release of an accused person on certain conditions, while subsection 515(10) provides for detention orders in cases where the accused person poses a danger to the public or is likely to flee. The purpose of Section 521(1) is to ensure that prosecutors have a mechanism to challenge decisions made by a justice or judge that they believe are incorrect or problematic. This could include cases where the prosecutor believes that the conditions of pretrial release are insufficient to ensure public safety, or where the prosecutor believes that the accused person poses a risk of flight or interference with the administration of justice. Overall, Section 521(1) provides an important safeguard in the criminal justice system, ensuring that prosecutors have the ability to seek a review of orders that they believe may compromise public safety or the integrity of the legal process.

COMMENTARY

Section 521(1) of the Criminal Code of Canada grants the prosecutor the right to apply to a judge for a review of an order made by a justice or judge of the Nunavut Court of Justice under subsection 515(1), (2), (7), (8) or (12), or an order made or vacated under paragraph 523(2)(b), before the trial of the charge. This provision is significant in ensuring legal procedural fairness and liberty interests of the accused. The section enables the prosecutor to seek a review of a bail order made by a justice or judge of the Nunavut Court of Justice. Subsection 515 of the Criminal Code provides for the imposition and conditions of bail. Typically, an accused person may be granted bail, which is a temporary release from custody, while awaiting trial, subject to certain conditions. These conditions may include regular reporting to the police or court, abstaining from drug or alcohol use, or complying with a curfew. In some cases, the justice or judge may order that the accused be detained in custody pending trial. The prosecutor may apply to a judge for a review of any bail order, whether it was granted or denied, if there is a concern that the conditions are inadequate or that the accused poses a risk to society. Similarly, Paragraph 523(2)(b) deals with the revocation of bail. In some instances, the justice or judge may revoke a previously granted bail order if the accused breaches the conditions of their release. The prosecutor may apply to a judge for a review of the revocation of the bail order if they believe that it is in the interest of justice and society. Additionally, the provision is integral in ensuring that an accused person is not subjected to unreasonable detention before trial as it addresses the need to review detention orders. This provision reiterates the need to ensure that the accused's rights are respected and upheld throughout the criminal justice process. The right of the prosecutor to apply for the review of an order by a justice or judge before the trial is crucial because the legal system values the principle of procedural fairness. An accused person has the right to be heard, and the prosecutor has a duty to protect society's interests and bring offenders to justice. By giving the prosecutor the ability to apply for a review of bail orders, the legal system ensures that the accused's rights do not infringe the fundamental rights and safety of the community. In conclusion, Section 521(1) of the Criminal Code of Canada provides a critical safeguard in the justice system. The provision ensures that there is a balance between the rights and interests of the accused and those of society. The prosecutor's right to apply for a review of a bail order before the trial is crucial because it upholds legal procedural fairness, protects society, and upholds the accused's liberty interests. Overall, this provision ensures that the justice system remains accountable and transparent in safeguarding the rights of all its participants.

STRATEGY

When dealing with section 521(1) of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. The prosecutor must consider how to best approach the application for review of an order made by a justice or judge under subsection 515(1), (2), (7), (8) or (12) or any order under paragraph 523(2)(b). They must also consider the timing of the application, the likelihood of success, and the potential consequences of the review. The first strategic consideration is the timing of the application. The prosecutor must decide when to make the application for review. They may choose to make the application immediately after the issuance of the order or wait until later in the process. The key is to make the application early enough to allow for proper preparation and to ensure that the review takes place before the trial. A delay in making the application may also suggest a lack of confidence in the case, which could be damaging to the prosecution. The second strategic consideration is the likelihood of success. The prosecutor must assess the strength of their case and the evidence supporting the order challenged. They must also consider the existing case law around the type of order being challenged and the grounds upon which it can be reviewed. If there is little or no case law on the specific issue, the prosecutor may need to be creative in their arguments and build their case from scratch. The third strategic consideration is the potential consequences of the review. If the review is successful, the order may be set aside, leading to the release of the accused or a change in their conditions of release. Conversely, if the review is unsuccessful, it may weaken the prosecution's case and cause embarrassment or damage to their reputation. The prosecutor must weigh these potential outcomes when considering whether to proceed with the application for review. To build a strong case for review, the prosecutor may employ several strategies. They may present new evidence that was not available at the time of the original order or argue that the original decision was based on errors in fact or law. They may also argue that there has been a change in circumstances that warrants a new decision or that the original decision has become unreasonable or unjustified. The prosecutor may also argue that the original decision was made without proper consideration of all relevant factors or that the accused poses a risk to public safety that was not properly assessed. In conclusion, section 521(1) of the Criminal Code of Canada provides prosecutors with a powerful tool to challenge orders made by justices or judges. However, the strategic considerations and potential consequences must be carefully weighed before proceeding. By assessing the strength of their case, timing their application properly, and employing effective strategies, prosecutors can increase the chances of success and ensure that justice is served.