INTRODUCTION AND BRIEF DESCRIPTION
If a deposit has been made by someone against whom an order for forfeiture of a recognizance has been made, no writ of fieri facias shall issue, but the deposit will be transferred to the person entitled to receive it.
SECTION WORDING
771(4) Where a deposit has been made by a person against whom an order for forfeiture of a recognizance has been made, no writ of fieri facias shall issue, but the amount of the deposit shall be transferred by the person who has custody of it to the person who is entitled by law to receive it.
EXPLANATION
Section 771(4) of the Canadian Criminal Code governs the forfeiture of a person's recognizance, which refers to the financial pledge that a person gives to the court as a guarantee of their good behaviour during a criminal proceeding. This deposit is meant to ensure that the accused attends all court appearances and abides by any conditions imposed by the court, such as refraining from drug or alcohol use, or staying away from certain individuals. If the accused fails to show up for court or violates any of the conditions, the court may order the forfeiture of their recognizance deposit. In such cases, the amount of the deposit is transferred to the person who is legally entitled to receive it. This may include the prosecutor's office, the victim of the crime, or the government. However, Section 771(4) states that no writ of fieri facias shall be issued in relation to the forfeiture of a recognizance deposit. A writ of fieri facias is a court order that authorizes the seizure and sale of the property of a person who owes a debt. In this case, it means that the court cannot order the seizure and sale of the accused's property to recover the forfeited deposit. Instead, the custodian of the deposit must transfer the amount to the appropriate recipient, as determined by law. Overall, Section 771(4) of the Canadian Criminal Code ensures that the forfeiture of a recognizance deposit is handled in a fair and transparent manner. It prevents the accused from being subjected to additional financial hardship by prohibiting the seizure of their property to cover the forfeited deposit. At the same time, it ensures that the appropriate parties receive the funds they are legally entitled to.
COMMENTARY
Section 771(4) of the Criminal Code of Canada addresses the issue of forfeiture of recognizance and the role of deposits made by individuals in such cases. Recognizance is essentially a promise made by a person to appear in court at a later date, often as a condition of bail. When a person fails to comply with the conditions of their recognizance, they may be subject to forfeiture, which means that they lose any money or assets that they have put up as collateral against their promise to appear. This section of the Criminal Code addresses a specific scenario where a deposit has been made by a person who is subject to forfeiture of their recognizance. If a person has put up a deposit, rather than a bail bond or other form of collateral, then this deposit will be used to satisfy any outstanding debts or fines owed by the individual. However, the section specifically prohibits the use of a writ of fieri facias in such cases, which is a legal order that allows a sheriff or other law enforcement officer to seize goods or chattels to satisfy a debt. Instead, the deposit must be transferred to the party who is entitled to receive it by law. The purpose of this section is to provide clarity and consistency in cases of recognizance forfeiture, particularly where deposits have been made. By prohibiting the use of a writ of fieri facias, the Code ensures that individuals who have made a deposit are protected from having their property or assets seized without proper legal process. It also ensures that the party entitled to receive the deposit (such as a victim of a crime or the court) receives it in a timely and efficient manner. Overall, section 771(4) of the Criminal Code is an important provision that helps to regulate the forfeiture of recognizance and protect the rights of individuals who have made deposits. By providing a clear process for the transfer of these deposits and prohibiting the use of writs of fieri facias, the section helps to ensure that the law is applied fairly and consistently in these cases. As such, it serves as an important safeguard for individuals who may be subject to recognizance forfeiture and provides a means of enforcing legal obligations without resorting to undue or excessive measures.
STRATEGY
Section 771(4) of the Criminal Code of Canada outlines an important legal provision that pertains to the forfeiture of a recognizance and the transfer of the deposit made by the person against whom the order for forfeiture has been made. This section lays out a clear legal framework that guides the process of transferring the deposit to the person who is entitled to receive it. While this provision may seem straightforward, there are several strategic considerations that lawyers, defendants, and other parties involved in the legal proceedings must keep in mind. One of the most important strategic considerations when dealing with Section 771(4) is to ensure that the deposit is made in the first place. A recognizance is a court order that requires a person to promise to attend court or comply with other conditions related to their case in exchange for release from custody. If the person violates the conditions, the court can order the forfeiture of the recognizance, and the deposit may be lost if it was not made in the first place. Therefore, it is essential to ensure that the deposit is made promptly and in the correct amount to avoid any potential complications later on. Another strategic consideration when dealing with Section 771(4) is to ensure that the correct person receives the deposit. The person entitled to receive the deposit is typically the surety who posted the deposit on behalf of the defendant. However, in some cases, the deposit may be transferred to a different person or entity, such as the Crown or a victim of the alleged crime. It is crucial to have a clear understanding of who is entitled to receive the deposit and to ensure that the transfer is made to the correct person or entity. Timing is also important when dealing with Section 771(4). The deposit must be transferred promptly after the forfeiture order is made, and failure to do so can result in legal complications. Therefore, it is essential to ensure that the transfer is made promptly and efficiently to avoid any delays or issues. There are several strategies that can be employed when dealing with Section 771(4). One strategy is to ensure that the deposit is made in the first place. This can be done by carefully reviewing the terms of the recognizance and ensuring that the deposit is made in the correct amount and to the correct person. Another strategy is to ensure that the transfer is made promptly and correctly. This can be done by working closely with the court, the surety, and other relevant parties to ensure that the transfer is made as quickly and efficiently as possible. In conclusion, Section 771(4) of the Criminal Code of Canada outlines an important legal provision that pertains to the forfeiture of a recognizance and the transfer of the deposit made by the person against whom the order for forfeiture has been made. When dealing with this section, it is important to keep several strategic considerations in mind, including ensuring that the deposit is made in the first place, determining who is entitled to receive the deposit, and ensuring that the transfer is made promptly and correctly. By employing these strategies, lawyers, defendants, and other parties involved in the legal proceedings can help to ensure that the transfer is made smoothly and efficiently, avoiding any potential legal complications or delays.