Criminal Code of Canada - section 810.01(4) - Refusal to enter into recognizance

section 810.01(4)

INTRODUCTION AND BRIEF DESCRIPTION

A defendant may be imprisoned for up to 12 months if they refuse to enter into a recognizance.

SECTION WORDING

810.01(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.

EXPLANATION

Section 810.01(4) of the Criminal Code of Canada is a provision that deals with the consequences of failing or refusing to enter into a recognizance ordered by a judge under section 810.01 of the Code. Section 810.01 allows a person who has reasonable grounds to fear that another person will commit certain criminal offences against them to apply to court for a recognizance order. The order would require the person against whom the application was made (the defendant) to enter into a recognizance to keep the peace and be of good behaviour for a specified period. Failure or refusal to enter into the recognizance can result in imprisonment for a term of up to 12 months. This provision is intended to ensure that defendants comply with the orders of the court and take the necessary steps to protect the safety of the applicant. If a defendant refuses to comply with the court's order, they may be seen as a risk to the public and their safety. Imprisonment may therefore serve as a deterrent for future behaviour that may harm others or violate the conditions of a recognizance order. It is important to note that the power to imprison under section 810.01(4) is discretionary. A judge may decide to use imprisonment as a last resort if other measures, such as fines or community service, have not been effective. Judges are also expected to consider the circumstances of the defendant, including their prior criminal record and ability to comply with the order. The overarching aim is to protect the safety of the applicant while also ensuring that defendants are held accountable for their actions.

COMMENTARY

Section 810.01(4) of the Criminal Code of Canada gives the provincial court judge the power to commit a defendant to prison if they refuse to enter into a recognizance order. This section was introduced in 1997 as part of the Safe Streets and Communities Act, which aimed to strengthen laws relating to public safety and crime prevention. The purpose of the recognizance order is to prevent the defendant from committing further crimes or to ensure that they attend court. A recognizance is a legal agreement between the defendant and the court, whereby the defendant promises to comply with a set of conditions, such as staying away from certain individuals or places. If the defendant breaches these conditions, they may be subject to penalties, including imprisonment. If the defendant fails or refuses to enter into the recognizance, the judge has the power to commit them to prison for a term not exceeding twelve months. This is a significant power, as it allows the court to impose a custodial sentence without a trial or conviction. However, it is important to note that the judge can only use this power if they believe that the defendant presents a risk to public safety or is likely to fail to attend court. Section 810.01(4) is controversial, as it raises questions about the presumption of innocence and due process. By allowing the court to impose a custodial sentence without a trial or conviction, it may be seen as arbitrary and disproportionate. It also raises concerns about the potential for abuse, as judges may be more likely to use this power against certain groups, such as low-income or racialized individuals. Furthermore, the use of imprisonment as a penalty for non-compliance with a recognizance order goes against the objective of the order itself. The purpose of a recognizance is to prevent further crime and ensure court attendance, but a custodial sentence may have counterproductive effects, such as disrupting employment or family ties and increasing resentment towards the justice system. Ultimately, the use of Section 810.01(4) should be balanced against the principles of fairness and proportionality. While recognizance orders can be effective tools for crime prevention, the use of imprisonment as a penalty should be limited to cases where the defendant poses a significant risk to public safety or is likely to abscond. Furthermore, judges should be required to provide clear and reasoned justifications for their decisions in order to ensure accountability and transparency.

STRATEGY

Section 810.01(4) of the Criminal Code of Canada empowers a provincial court judge to commit a defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance. This section is often used in cases where there is a fear that the defendant may cause harm to a particular person or group, and the court wishes to impose restrictive measures to prevent such harm. Dealing with this section of the Criminal Code requires strategic considerations on the part of the defendant and their legal counsel. Some of these considerations are outlined below. Firstly, it is important for the defendant to carefully assess the evidence against them and the likelihood of their conviction. If there is a strong likelihood of conviction, it may be in the defendant's best interest to negotiate a plea bargain or enter into a guilty plea in exchange for a lesser sentence. This would avoid the need for a recognizance and the risk of imprisonment. Secondly, if the defendant decides to fight the charges, it is crucial to present a strong defence. This may involve challenging the admissibility of evidence, questioning the credibility of witnesses, or calling expert testimony to refute any claims made by the prosecution. A robust and well-prepared defence may persuade the court to avoid imposing restrictive measures such as a recognizance. Thirdly, it is important to carefully consider the terms of the recognizance that is being proposed. The defendant may wish to negotiate with the prosecution to ensure that the terms are as minimally restrictive as possible while still addressing the court's concerns about public safety. This may involve seeking modifications such as reducing the frequency of check-ins with a probation officer or reducing the distance the defendant is required to stay away from the complainant. Fourthly, it may be helpful to enlist the support of a psychologist or other mental health professional who can provide evidence supporting the defendant's case. For example, if the defendant has a history of mental health issues, a psychologist may be able to provide evidence that the defendant is unlikely to pose a threat to others. Finally, it is important to present the defendant in the most sympathetic light possible. This may involve highlighting any positive aspects of the defendant's character, such as their contributions to their community or their role as a caregiver to family members. By presenting the defendant as a responsible and caring person, the court may be more inclined to impose a less severe sentence or to avoid imposing a recognizance. In summary, dealing with Section 810.01(4) of the Criminal Code requires careful consideration of the evidence, the terms of any proposed recognizance, and the defendant's personal circumstances. By presenting a strong and well-prepared defence, negotiating with the prosecution, and enlisting the support of mental health professionals, defendants may be able to avoid the need for a recognizance or to have the terms of any recognizance that is imposed made less onerous. Showing the defendant in the most positive light possible may also help to persuade the court to be more lenient in its sentence.