INTRODUCTION AND BRIEF DESCRIPTION
This section states that no conviction or order can be removed by a certiorari if an appeal was taken or if the defendant appeared and pleaded and the merits were tried but did not appeal.
SECTION WORDING
776 No conviction or order shall be removed by certiorari (a) where an appeal was taken, whether or not the appeal has been carried to a conclusion; or (b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.
EXPLANATION
Section 776 of the Criminal Code of Canada sets out the circumstances in which a conviction or order cannot be removed by certiorari, which is a legal process that allows a higher court to review the decisions and actions of a lower court or administrative body. Under this section, if an appeal has been taken in relation to a conviction or order, regardless of whether the appeal has concluded or not, certiorari cannot be used to challenge the original decision. Similarly, if the defendant appeared in court, pleaded, and had the merits of the case tried, but did not appeal, certiorari cannot be used to challenge the decision. The purpose of this section is to uphold the finality of judgments and orders made by the courts, particularly in cases where the defendant had the opportunity to appeal but did not do so. It recognizes that the appeals process is already in place to provide an avenue for challenging decisions and determining the appropriate outcome. Overall, section 776 ensures that court decisions are not subject to constant challenges and reviews, which could undermine the integrity and efficiency of the justice system. It emphasizes the importance of timely and effective use of the appeals process to resolve disputes and appeals in the criminal justice system.
COMMENTARY
Section 776 of the Criminal Code of Canada addresses the circumstances under which a conviction or order cannot be removed by certiorari. Essentially, this section provides that in certain situations where an appeal could have been taken, certiorari is not available as a remedy. This provision is important because certiorari is a common law remedy that allows a court to review the legality of a decision made by a lower court or administrative body. It is a way of ensuring that decisions are made according to the law and that individuals are not being unfairly deprived of their rights. However, Section 776 limits the availability of certiorari in certain circumstances. Firstly, the provision states that if an appeal has been taken (regardless of whether it has been concluded), certiorari cannot be used to remove a conviction or order. This makes sense, as the appeal process is an established way of challenging a decision and seeking a different outcome. If an appeal is already underway, it would be redundant to also seek a remedy through certiorari. Additionally, allowing certiorari in such a situation could potentially undermine the appellate process and result in conflicting decisions. Secondly, Section 776 provides that if a defendant appeared and pleaded and the merits of the case were tried, but no appeal was taken, certiorari cannot be used to remove a conviction or order. This reflects the idea that a defendant has a responsibility to challenge a decision if they believe it to be unfair or incorrect. If they do not take advantage of the opportunity to appeal, they cannot subsequently seek to have the decision overturned through certiorari. This provision also serves to prevent individuals from engaging in "forum shopping" - that is, selectively choosing which avenue of legal recourse to pursue based on the likelihood of a favorable outcome. If individuals could choose between appealing and seeking certiorari as they pleased, it could lead to inconsistent and confusing results. Overall, Section 776 of the Criminal Code of Canada aims to ensure that the legal system operates efficiently and fairly. By limiting the availability of certiorari in certain situations where an appeal could have been taken, the provision helps to prevent duplication of effort and maintain consistency in decision-making. It also encourages individuals to take appropriate steps to challenge decisions they believe to be mistaken or unjust. However, it is worth noting that certiorari remains an important tool for ensuring that decisions are made according to the law and that individuals' rights are protected. While Section 776 limits its availability in certain circumstances, it does not eliminate it completely. If an individual believes that a decision has been made unlawfully or unfairly, they should always consult with a legal professional to determine what remedies are available to them.
STRATEGY
Section 776 of the Criminal Code of Canada can be a major hurdle for defendants who have been convicted of a crime and want to appeal their conviction or have their conviction reviewed by a higher court. This section provides that no conviction or order shall be removed by certiorari where an appeal was taken or where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal. This means that once a defendant has taken an appeal or failed to take an appeal, their conviction cannot be challenged again by way of certiorari. As a result, it is important for defendants and their legal counsel to carefully consider their options and strategies when dealing with this section of the Criminal Code. Some strategic considerations that may be relevant include the strength of the legal arguments for appeal, the nature of the evidence presented at trial, the potential cost and time involved in pursuing an appeal, and the likelihood of success on appeal. One strategy that may be employed is to focus on challenging the validity of the law that was used to convict the defendant rather than the facts of the case itself. This approach would involve arguing that the law was unconstitutional or that it was improperly applied in the case. This strategy may be particularly effective in cases where the legality of the law is in question or where the law is subject to interpretation or ambiguity. Another strategy that may be employed is to focus on obtaining new evidence that was not available at the time of the trial or appeal. This could involve conducting further investigations, obtaining new witness statements or expert opinions, or uncovering information that was previously unknown. This strategy may be particularly effective in cases where there is new evidence that could significantly impact the outcome of the case. A third strategy that may be employed is to seek leave to appeal to a higher court, such as the Supreme Court of Canada. This approach would involve arguing that the case raises important legal or constitutional issues that require the attention of the highest court in the land. This strategy may be particularly effective in cases where there is a significant legal or constitutional issue at stake. Overall, dealing with Section 776 of the Criminal Code of Canada requires careful consideration and strategic planning. Defendants and their legal counsel must carefully weigh the potential risks and benefits of pursuing an appeal or seeking certiorari, and they must develop a sound strategy that takes into account the strengths and weaknesses of their case. With the right approach, it may be possible to successfully challenge a conviction and obtain the relief that a defendant is seeking.