INTRODUCTION AND BRIEF DESCRIPTION
If a new trial is ordered on appeal, it must be held before a different summary conviction court unless directed otherwise.
SECTION WORDING
822(2) Where an appeal court orders a new trial, it shall be held before a summary conviction court other than the court that tried the defendant in the first instance, unless the appeal court directs that the new trial be held before the summary conviction court that tried the accused in the first instance.
EXPLANATION
Section 822(2) of the Criminal Code of Canada pertains to a scenario where an appeal court orders a new trial. In such cases, the new trial has to be held before a summary conviction court unless the appeal court directs otherwise. However, it is worth noting that the summary conviction court cannot be the same one that previously tried the defendant. The purpose of this section is to ensure that the defendant receives a fair trial. A new trial may be ordered if there were issues with the original trial that could have affected the outcome of the case. In these instances, conducting a new trial before a different summary conviction court ensures that there is no bias or preconception. Additionally, this provision also serves to maintain the integrity of the summary conviction court system in Canada. It is essential that the courts remain independent and neutral in all cases, and conducting a new trial before the same court which tried the defendant in the first instance could create an appearance of bias. Overall, this section of the Criminal Code of Canada safeguards the rights of the accused and ensures that justice is served fairly and impartially.
COMMENTARY
Section 822(2) of the Criminal Code of Canada governs the conduct of a new trial in circumstances where an appeal court orders a new trial. The section mandates that the new trial must be conducted before a summary conviction court different from the court where the defendant was tried in the first instance, except where the appeal court directs otherwise. The provision is significant for several reasons, including the need to ensure fairness and impartiality in the administration of justice. By requiring a new trial before a different court, the law recognizes that the first trial may have been tainted by bias, error, or other factors that could compromise the integrity of the verdict. A new trial before a different court helps to eliminate any potential conflicts of interest or undue influence that may have influenced the earlier trial. Moreover, the provision also recognizes the importance of perception and public confidence in the justice system. A defendant who has been tried and convicted by one judge or court may feel that another judge or court is more likely to be impartial and fair in a new trial. The provision, therefore, allows for the perception of fairness, which is crucial in maintaining public trust in the justice system. Furthermore, Section 822(2) also recognizes the need for greater clarity and consistency in the administration of justice. By specifying that a new trial must be held before a summary conviction court different from the initial court, unless the appeal court directs otherwise, the provision reduces the likelihood of inconsistent outcomes across different cases. This is because the defendant is more likely to receive the same level of treatment and consideration in the new trial, regardless of where the trial is held. The requirement for a new trial before a different court also has practical implications. For instance, it allows for the allocation of resources based on a fair distribution of cases across different courts. It also minimizes the risks of undue workload on any particular court, which can compromise the quality of justice outcomes. In conclusion, Section 822(2) of the Criminal Code of Canada is a crucial provision for the administration of justice in Canada. The provision recognizes the need for impartiality, fairness, consistency, clarity, and public trust in the justice system. It provides clarity and guidance on the conduct of new trials and helps to ensure that the administration of justice is conducted effectively and efficiently. As such, it is a provision that deserves to be upheld and respected by all stakeholders in the criminal justice system.
STRATEGY
Section 822(2) of the Criminal Code of Canada is important because it deals with the procedure to be followed in situations where an appeal court orders a new trial. This provision is intended to ensure fairness and impartiality in the criminal justice system by preventing the same judge from presiding over both the original trial and the new trial. For practitioners dealing with this section of the Criminal Code, there are several strategic considerations to keep in mind. Some of these strategic considerations are discussed below: Firstly, it is important to understand that the decision of the appeal court regarding which summary conviction court will hear the new trial is final and binding. This means that practitioners should be aware of the appeal court's decision and ensure that they comply with it. Practitioners should also ensure that they fully understand the reason for the appeal court's decision and any specific directions given. Secondly, practitioners should consider the implications of having a new judge preside over the new trial. While a new judge may bring fresh perspective and impartiality to the proceedings, they may also be unfamiliar with the case and the evidence presented. Practitioners should therefore ensure that they provide the new judge with all relevant information and evidence to ensure a fair hearing. Thirdly, practitioners should consider whether to request that the new trial be heard in the same summary conviction court that heard the original trial. This may be advantageous in cases where the practitioner believes that the original judge was fair and impartial and that no new evidence or information has come to light that would warrant a new judge hearing the case. Fourthly, practitioners should be aware of any potential biases or conflicts of interest that the new judge may have. If a practitioner believes that the new judge may be biased or have a conflict of interest, they may consider making an application to have the judge recuse themselves from the case. Fifthly, practitioners should ensure that they are fully prepared for the new trial. This means reviewing all evidence and witness statements, preparing strong arguments, and being ready to present an effective defence. Practitioners should also be aware of any new developments or changes in legislation that may impact the case. There are several strategies that practitioners can employ when dealing with section 822(2) of the Criminal Code of Canada. Some of these strategies include: - Conducting comprehensive research and analysis of the law and the facts of the case to ensure that they fully understand all relevant issues; - Maintaining open and transparent communication with their clients to ensure that they understand the complexities of the case and their options moving forward; - Conducting pre-trial negotiations with the Crown to explore the possibility of resolving the case outside of court; - Engaging the services of an experienced criminal defence lawyer who has a proven track record of success in criminal trials; - Ensuring that they are fully prepared for the new trial, including preparing a strong defence strategy and conducting extensive legal and factual research. In conclusion, practitioners dealing with section 822(2) of the Criminal Code of Canada must take a proactive and strategic approach to ensure that their clients receive a fair and impartial hearing. By being well-prepared and thoroughly understanding all relevant issues, practitioners can increase their chances of success and help to ensure justice is served.