Criminal Code of Canada - section 689(1) - Restitution or forfeiture of property

section 689(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section of the Criminal Code of Canada suspends the operation of an order for compensation or restitution of property or forfeiture of property until the appeal process is completed.

SECTION WORDING

689(1) If the trial court makes an order for compensation or for the restitution of property under section 738 or 739 or an order of forfeiture of property under subsection 164.2(1) or 462.37(1) or (2.01), the operation of the order is suspended (a) until the expiration of the period prescribed by rules of court for the giving of notice of appeal or of notice of application for leave to appeal, unless the accused waives an appeal; and (b) until the appeal or application for leave to appeal has been determined, where an appeal is taken or application for leave to appeal is made.

EXPLANATION

Section 689(1) of the Criminal Code of Canada pertains to the suspension of orders for compensation, restitution, or forfeiture of property made by the trial court under certain sections of the Code. In other words, if the trial court issues an order for compensation or restitution of property under section 738 or 739 or an order of forfeiture of property under subsection 164.2(1) or 462.37(1) or (2.01), the operation of the order is not immediate. Instead, the order is suspended until the notice of appeal or application for leave to appeal is given or until the appeal or application for leave to appeal is determined, whichever comes first. The suspension of the order allows the accused to appeal the decision of the trial court without losing the property or compensation in question. It also provides a window for the accused to waive their right to appeal and have the order come into immediate effect. If the accused chooses to appeal, the order remains suspended until the appeal process is completed. This ensures that the accused is not unfairly or prematurely subjected to the consequences of the trial court's decision before they have had the opportunity to challenge it. Overall, section 689(1) serves a protective function for accused persons, ensuring that their property and compensation are not lost as a result of a decision that may later be overturned on appeal.

COMMENTARY

Section 689(1) of the Criminal Code of Canada is an important provision that protects the rights of an accused person who has been ordered to pay compensation or restitution of property, or to forfeit property as part of their sentence. This provision ensures that the operation of such an order is suspended until the expiration of the period prescribed by the rules of court for the giving of notice of appeal or notice of application for leave to appeal, unless the accused waives their right to appeal. The order remains suspended until the appeal has been determined, where an appeal is taken or an application for leave to appeal is made. The provision is aimed at ensuring a fair and just process for the accused person by providing them with an opportunity to appeal the order. The suspension of the order serves to ensure that the accused has the opportunity to challenge the order before it is implemented. This is especially important in cases where the accused may have been wrongly convicted or where the order may be excessive or unjust. It is important to note that Section 689(1) only applies to orders for compensation or restitution of property under Section 738 or 739, or orders of forfeiture of property under subsection 164.2(1) or 462.37(1) or (2.01). This means that it does not apply to other types of orders such as fines, imprisonment, or probation. The suspension of the order is not automatic, and the accused must invoke this provision by appealing the order or filing an application for leave to appeal. However, this provision provides an important safeguard against injustice or unfairness by providing an opportunity for the accused to challenge the order. In addition, this provision recognizes the importance of due process and the right to a fair trial, which are fundamental principles of the Canadian justice system. It ensures that the accused has a meaningful opportunity to challenge the order and protects their right to equality before the law and equal protection of the law. Overall, Section 689(1) is an important provision that safeguards the rights of an accused person in the criminal justice system. By suspending the operation of an order for compensation, restitution or forfeiture of property until an appeal has been determined, this provision ensures that the accused person has a fair and just process and an opportunity to challenge the order if necessary.

STRATEGY

Section 689(1) of the Criminal Code of Canada deals with the suspension of orders for compensation, restitution, and forfeiture of property in criminal cases. This section highlights the need for strategic considerations when working through legal cases involving matters under this section of the Criminal Code. The strategic considerations that should be taken into account when dealing with Section 689(1) may be driven by two key factors: the nature of the case and the type of order in question. Different strategies may be employed in different scenarios, depending on the specifics of the case and the parties involved. One of the primary strategic considerations is the timing of the order for compensation or restitution. In some cases, this may come at the end of the criminal trial, while in others, it may happen during the trial, or even before proceedings have started. Understanding the specific timing of an order can help lawyers and their clients determine how best to deal with it. Another strategic consideration is the type of order that has been made. Different orders under this section of the Criminal Code may have different implications for a defendant, and the strategies for how to deal with them may be different as well. For instance, an order for compensation awarded to the victim of a crime may be viewed differently than an order for forfeiture of property made against a defendant. Strategies that lawyers might employ when dealing with Section 689(1) may include filing a notice of appeal or an application for leave to appeal to delay the implementation of the order. This may be particularly useful if the client plans to appeal the decision of the trial court. Additionally, lawyers may also seek a waiver of appeal from their client to allow the order to proceed. This may be an effective option if the client is not planning on appealing the order or if time is of the essence. Another strategy that could be employed when dealing with this section of the Criminal Code is to negotiate with the Crown prosecutor or opposing counsel. This may involve working out a payment plan or an alternative arrangement for the compensation or restitution order. This can be an effective way to avoid the negative consequences of a full and immediate payment, such as loss of assets, which could lead to further legal issues. In conclusion, understanding the implications of Section 689(1) of the Criminal Code, as well as the various strategies that may be employed when dealing with this section, is essential for lawyers and their clients. The timing and type of order are crucial considerations when developing a strategy, and different approaches may be required depending on the specifics of the case. By working with an experienced legal team, clients can navigate these complex legal issues and achieve the best possible outcomes.