INTRODUCTION AND BRIEF DESCRIPTION
This provision allows a court to substitute a new surety for a persons recognizance instead of sending them to prison if their current surety no longer wishes to be responsible.
SECTION WORDING
767.1(1) Notwithstanding subsection 766(1) and section 767, where a surety for a person who is bound by a recognizance has rendered the person into the custody of a court pursuant to section 767 or applies to be relieved of his obligation under the recognizance pursuant to subsection 766(1), the court, justice or provincial court judge, as the case may be, may, instead of committing or issuing an order for the committal of the person to prison, substitute any other suitable person for the surety under the recognizance.
EXPLANATION
Section 767.1(1) of the Criminal Code of Canada addresses the specific circumstances where a person has been released on a recognizance with the condition of having a surety. A surety is a person who guarantees that the accused will abide by the terms of their release, and if the accused fails to do so, the surety will be held responsible. If the accused violates the terms of their release and the surety is unable to provide a valid reason for the breach, the surety may face penalties, including having to pay a fine or go to jail. However, in some situations, a surety may find themselves unable to fulfill their obligation. This section provides an alternative to the traditional response of committing the accused to prison in such a scenario. Instead of imprisoning the accused or punishing the surety, the court has the power to replace the surety with another appropriate person who can provide the necessary guarantee. Thus, in situations where a surety is unable to fulfill their obligation, the court can appoint a new surety to take over the accused's supervision. This flexibility may be particularly helpful where the surety and accused have strained their relationship, as it allows the accused to remain free on release while fulfilling the requisite conditions. Overall, Section 767.1(1) is designed to provide courts with greater discretion in dealing with complicated situations involving sureties and accused individuals. It allows for a more tailored approach in addressing breaches of release conditions and ensures that accused individuals are not subject to unnecessary imprisonment due to their sureties' inability to fulfill their obligations.
COMMENTARY
Section 767.1(1) of the Criminal Code of Canada allows for a surety to be relieved of their obligation under a recognizance by substituting another suitable person in their place. This provision was introduced to offer some flexibility and leniency to the criminal justice system, particularly towards people who may not have an extensive network of reliable family or friends to act as sureties. Recognizances are agreements signed by individuals who have been charged with a criminal offence and released from custody. The recognizance typically includes conditions that the accused individual must comply with, such as abstaining from drugs and alcohol, staying away from certain people or places, or regularly reporting to a designated location. In addition, the recognizance usually requires the accused person to provide a surety, who agrees to take responsibility for the accused person's actions and ensure that they comply with the conditions of their release. Sometimes, the sureties may have valid reasons for seeking to be relieved of their obligation under the recognizance. For instance, they may have moved somewhere far away or lost their job, making it difficult for them to continue fulfilling their obligations. Alternatively, the accused person may have repeatedly violated the terms of their release, and the surety may lack confidence that they can ensure compliance going forward. In such cases, section 767.1(1) allows for the court to substitute another suitable person for the original surety. This provides a solution that meets the interests of justice while also being practical and fair. It ensures that accused persons who rely on sureties to secure their release are not unfairly disadvantaged by the sudden unavailability of their sureties, while also ensuring that public safety is not compromised. The use of substitute sureties is not new to the Canadian legal system. It has been widely applied in other contexts, such as in civil litigation, where a litigant may be required to provide security for costs before proceeding with a lawsuit. However, the application of substitute sureties in criminal law has been somewhat limited due to concerns about public safety and the ability of the substitute to fulfil their obligations. To ensure that the substitute surety is suitable, the court must make reasonable inquiries into their ability to supervise the accused person and ensure compliance with the conditions of the recognizance. The court may consider factors such as the substitute's relationship with the accused person, their financial stability, and their ability to monitor the accused person's behaviours and whereabouts. Moreover, the court may impose additional conditions on the recognizance to ensure that the new surety is aware of their responsibilities and equipped to discharge them. Such conditions may include requiring the substitute surety to attend court hearings, report to a designated authority, or provide regular updates on the accused person's compliance with the terms of the recognizance. In conclusion, section 767.1(1) of the Criminal Code of Canada offers a valuable alternative to the traditional mode of committal to prison in cases where the surety is unable or unwilling to continue fulfilling their obligations. It demonstrates the Canadian justice system's commitment to ensuring that justice is served fairly and practically, while also protecting public safety. It is an important provision to facilitate the smooth functioning of the criminal justice system while giving the benefit of the doubt to those who want to be sureties but cannot continue being so for valid reasons.
STRATEGY
Section 767.1(1) of the Criminal Code of Canada provides a way to substitute a surety under a recognizance with another suitable person. Recognizance is a legal obligation, especially a financial one, entered into before a court or magistrate that binds the person to do an act or to refrain from doing a particular act. A surety, therefore, is a person who agrees to guarantee that the person under recognizance would meet their obligations. In some cases, the surety may not be able to continue fulfilling their obligation for various reasons. This section of the Criminal Code provides alternative measures that may be taken instead of committing the person to prison, which can have a significant impact on an accused person's rights and freedom. Strategic considerations when dealing with section 767.1(1) of the Criminal Code of Canada may include the following: 1. Quality of Replacement Surety It is essential to ensure that a replacement surety is of good standing, has no previous criminal record, is reliable, and has the financial capacity to fulfill the obligations under the recognizance. This is because the court may hold the replacement surety liable in case the person under recognizance defaults on their obligations. Failure to replace the surety with a suitable replacement may result in the accused being committed to prison. 2. Risk Assessment Before considering replacing a surety, it is essential to assess the risk associated with the accused. Factors like the seriousness of the charges, likelihood of the accused showing up to court, and the accused's previous criminal record must be considered. If the risk is too high, the court may not allow a replacement surety. 3. Legal Representation It is important to have a legal representative in court when dealing with section 767.1(1) of the Criminal Code. A legal representative can provide legal advice, ensure that proper procedures are followed, and make representations to the court on behalf of the accused. 4. Timing The timing of the application to replace a surety is essential. Early applications are likely to be viewed favorably compared to late applications, unless there are valid reasons for the delay. Strategies that could be employed when dealing with section 767.1(1) of the Criminal Code of Canada may include: 1. Identifying Potential Replacement Sureties It is advisable to identify potential replacement sureties early to avoid rushing against time. Identifying potential sureties involves assessing the person's background, financial capacity, and willingness to fulfill the obligations under the recognizance. 2. Preparing for the Application Preparing for the application may involve gathering necessary information and documents, such as the reasons for the application, the qualifications of the replacement surety, and the likelihood of the accused complying with the obligations under the recognizance. 3. Negotiating with the Crown The accused may negotiate with the Crown to accept a suitable replacement surety instead of seeking a committal to prison. The negotiation may involve outlining the reasons for the application and providing background information on the replacement surety. 4. Presenting a Possible Alternative If the court is hesitant to accept a replacement surety, the accused may provide an alternative solution. An example is to propose a variation of the conditions of the recognizance that would make it possible for the current surety to continue fulfilling their obligations. In conclusion, section 767.1(1) of the Criminal Code of Canada provides an alternative to committing a person to prison when a surety under a recognizance is no longer able to fulfill their obligations. When dealing with this section, it is essential to strategize on identifying potential replacement sureties, assessing the risk associated with the accused, seeking legal representation, and timing the application appropriately. Strategies like negotiating with the Crown and presenting alternative solutions can also be employed.