INTRODUCTION AND BRIEF DESCRIPTION
The court cannot hear an application under Part XXIV unless the Attorney General gives consent, the offender is given notice, and a copy is filed with the court.
SECTION WORDING
754(1) With the exception of an application for remand for assessment, the court may not hear an application made under this Part unless (a) the Attorney General of the province in which the offender was tried has, either before or after the making of the application, consented to the application; (b) at least seven days notice has been given to the offender by the prosecutor, following the making of the application, outlining the basis on which it is intended to found the application; and (c) a copy of the notice has been filed with the clerk of the court or the provincial court judge, as the case may be.
EXPLANATION
Section 754(1) of the Criminal Code of Canada places certain requirements on the court before it can hear an application made under Part XXIV of the Code. Part XXIV pertains to dangerous offenders, long-term offenders, and certain violent offenders, and thus such applications seek to impose significant restrictions on the liberty of the offender. The first requirement is that the Attorney General of the province in which the offender was tried must give consent to the application. This ensures that the decision to apply for dangerous offender status or long-term offender status is not taken lightly and has been vetted by the provincial authorities. The Attorney General, as a representative of the government, has a responsibility to ensure the proper administration of justice, which includes balancing the rights of the offender with the safety of the public. The second requirement is that the offender must be given at least seven days' notice of the application and the basis on which it is intended to be made. This enables the offender to prepare a response and to have representation at the hearing. It also ensures that the offender is not taken by surprise by the application and that their right to a fair hearing is respected. Finally, the prosecutor must file a copy of the notice with the clerk of the court or the provincial court judge, which ensures that there is a record of the application and that it is properly administered. Overall, Section 754(1) aims to balance the rights of the offender with the safety of the public and ensures that the application process is fair, transparent, and properly administered.
COMMENTARY
Section 754(1) of the Criminal Code of Canada outlines the requirements for an application made under Part XXIV of the Code, which deals with dangerous offender and long-term offender designations. This section is designed to ensure that the process for declaring someone a dangerous offender or a long-term offender is fair and transparent. The first requirement in this section is that the Attorney General of the province in which the offender was tried must consent to the application. This requirement is significant because the designation of a dangerous or long-term offender has serious implications for the offender's future. A dangerous offender designation may result in an indefinite sentence, while a long-term offender designation may lead to up to ten years of supervision upon release from prison. As such, it is important that the Attorney General carefully consider the evidence and the potential consequences before consenting to an application. The second requirement is that the prosecutor must give the offender at least seven days' notice of the application and outline the basis on which it is intended to be founded. This requirement is essential to ensuring that the offender has a fair opportunity to respond to the allegations being made against them. It also allows the offender to prepare a defence and to gather any evidence that may be relevant to the application. The final requirement is that a copy of the notice must be filed with the court clerk or the provincial court judge, as the case may be. This requirement ensures that the court is aware of the application and has a record of the notice that was provided to the offender. It also allows the court to verify that the prosecutor has complied with the notice requirement before proceeding with the application. Taken together, these requirements serve to safeguard the rights of offenders in the dangerous and long-term offender designation process. They ensure that the process is fair, transparent, and based on evidence. They are also consistent with the principles of fundamental justice, which require that legal proceedings be conducted fairly and in a manner that respects the rights of individuals. In summary, Section 754(1) of the Criminal Code of Canada is an important provision that ensures that the process for declaring someone a dangerous or long-term offender is fair and transparent. By requiring the consent of the Attorney General, seven days' notice to the offender, and a copy of the notice to be filed with the court clerk, this section protects the rights of offenders and upholds the principles of fundamental justice.
STRATEGY
Section 754(1) of the Criminal Code of Canada creates several strategic considerations for lawyers and prosecutors when dealing with applications made under this Part. This provision essentially restricts the court's ability to hear an application under Part XXIV of the Criminal Code, unless certain requirements are met, as outlined in subsection (a), (b), and (c) of this provision. One key strategic consideration when dealing with this provision is the potential for delays in the processing of applications. The requirement for the Attorney General to give consent, as well as the need to provide notice to the offender before the application is made, can result in significant delays in the proceedings. Given the potential for delays, it may be important for lawyers and prosecutors to plan accordingly and ensure that applications are made well in advance of any important deadlines or court dates. Another strategic consideration when dealing with this provision is the potential for the Attorney General to refuse to consent to an application. In some cases, the Attorney General may have a policy of not consenting to certain types of applications, which can create significant challenges for lawyers and prosecutors. For example, if the Attorney General has a policy of not consenting to applications for specific types of sentences, such as community service orders or fines, lawyers and prosecutors may need to be creative in order to find alternative sentencing options. One strategy that can be employed in dealing with this provision is to build strong relationships with the relevant authorities. This can include establishing close working relationships with members of the Attorney General's office, as well as developing good working relationships with judges and court clerks. By building these relationships, lawyers and prosecutors may be able to streamline the process for obtaining consent and ensure that applications are processed as quickly and efficiently as possible. Another strategy that can be employed is to be proactive in addressing potential issues related to this provision. For example, lawyers and prosecutors may want to ensure that they have a good understanding of the various policies and procedures that are in place in the Attorney General's office, as well as the relevant courts. By being proactive, they can identify potential obstacles or issues early on, which can help to mitigate any potential delays or challenges. In conclusion, Section 754(1) of the Criminal Code of Canada creates several important strategic considerations for lawyers and prosecutors when dealing with applications made under this Part. By being proactive and building strong relationships with relevant authorities, lawyers and prosecutors can increase their chances of success when making applications under this provision. Additionally, by remaining aware of potential issues and challenges, they can ensure that applications are processed as quickly and efficiently as possible.