Criminal Code of Canada - section 822(3) - Order of detention or release

section 822(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows an appeal court to order for the release or detention of an appellant pending a new trial, following the same procedures as section 515 of the Criminal Code.

SECTION WORDING

822(3) Where an appeal court orders a new trial, it may make such order for the release or detention of the appellant pending the trial as may be made by a justice pursuant to section 515 and the order may be enforced in the same manner as if it had been made by a justice under that section, and the provisions of Part XVI apply with such modifications as the circumstances require to the order.

EXPLANATION

Section 822(3) of the Criminal Code of Canada deals with the release or detention of appellants who have been granted a new trial by an appeal court. In cases where an appeal court has ordered a new trial, the court has the power to make an order for the release or detention of the appellant pending the trial. The order made by the appeal court can be enforced in the same manner as if it had been made by a justice under section 515 of the Criminal Code. The provisions of Part XVI apply to the order but with modifications as the circumstances require. Section 515 deals with the release of an accused person, while they await trial or sentencing, and the conditions that must be imposed if the person is released. The section also sets out the factors that must be considered when deciding whether a person should be released or detained. These factors include the nature and gravity of the offence, the strength of the case against the accused, the likelihood of the accused appearing for trial or sentencing, and the safety of the public. The purpose of section 822(3) is to ensure that appellants who have been granted a new trial are treated fairly and justly. The provisions of Part XVI, which deal with the protection of persons who are involved in the criminal justice system, apply to the order made by the appeal court. The modifications to these provisions ensure that the order takes into account the unique circumstances of the new trial and the needs of the appellant. Ultimately, section 822(3) provides a mechanism for safeguarding the rights of appellants, while also ensuring public safety and the proper administration of justice.

COMMENTARY

Section 822(3) of the Criminal Code of Canada is an important provision that deals with the release or detention of an appellant pending a new trial. Specifically, this provision empowers an appeal court to make an order for the release or detention of the appellant, and such an order can be enforced in the same manner as if it had been made by a justice under section 515 of the Criminal Code. In essence, this provision allows an appeal court to determine whether an appellant should be released or detained pending a new trial, based on the same criteria and procedures that apply to other accused persons. One of the key benefits of this provision is that it ensures consistency and fairness in the way that accused persons are treated during the appeal process. Regardless of whether someone has been convicted or acquitted, they are entitled to the same procedural rights and protections under the Canadian legal system. This means that an appeal court must consider the same factors (such as the likelihood of flight, the seriousness of the offence, and the character and background of the accused) when determining whether to release or detain an appellant as a justice would under section 515. By treating all accused persons equally, the law maintains its integrity and upholds the fundamental principles of justice, fairness, and equality before the law. Another benefit of this provision is that it allows an appeal court to make a timely and informed decision about an appellant's release or detention pending a new trial. In practice, there are often complex and nuanced factors that need to be considered when deciding whether to release or detain an accused person. These can include the length of time the appellant has been in custody, the strength of the evidence against them, and the potential harm they may pose to the public if released. By giving appeal courts the power to make these decisions, the law ensures that they are made by experienced judges who have a thorough understanding of the relevant legal principles and factual circumstances. Finally, section 822(3) also highlights the importance of protecting the rights and liberties of all Canadians. By recognizing that an accused person is entitled to the same procedural rights and protections during the appeal process as they were during the trial, this provision reinforces the principle that the Canadian legal system is fundamentally fair and just. It also underscores the fact that being accused of a crime does not diminish an individual's inherent dignity and worth as a human being, and that they have a right to be treated with respect and decency at all times. Overall, section 822(3) of the Criminal Code of Canada is an important provision that helps to safeguard the rights and freedoms of all accused persons during the appeal process. By allowing appeal courts to make informed decisions about an appellant's release or detention, and by ensuring that they are subject to the same legal principles and procedures as other accused persons, this provision helps to maintain the integrity and fairness of the Canadian legal system. As such, it is a vital part of our nation's commitment to justice, equality, and the rule of law.

STRATEGY

Section 822(3) of the Criminal Code of Canada provides for the release or detention of an appellant pending a new trial ordered by an appeal court. This provision presents some strategic considerations for the parties involved in the process. Some of these considerations include the risk of flight, the likelihood of reoffending, the severity of the offence, and the potential for public safety concerns. One of the foremost strategic considerations when dealing with this provision is the risk of flight. Appellants may represent a flight risk if they have a history of missing court dates, have no ties to the community, or face a significant risk of a long prison term. When making an order for release or detention, the court must consider the appellant's potential for absconding. In high-risk cases, the court may require that the appellant surrender their passport, reside at a specified address, or wear an electronic monitoring device to ensure their appearance at the new trial. Another strategic consideration when dealing with this provision is the likelihood of reoffending. In certain cases where appellant is charged with a serious crime, there may be a concern that they will reoffend if released. In such cases, the court may order pre-trial detention to protect public safety. Similarly, the court may order detention if the appellant has a history of violent behaviour or poses an immediate threat to others. The severity of the offence is also an important consideration. If the appellant is charged with a serious crime, such as murder or terrorism, the court may be more likely to order pre-trial detention, especially if the evidence against the accused is strong. Conversely, if the charges are relatively minor, such as a drug possession offence, the court may be more inclined to order release. Another strategic consideration when dealing with this provision is the potential for public safety concerns. In cases where the appellant may pose a threat to the community or any specific individuals, the court may order detention to protect the public. Similarly, if the appellant is charged with a crime that is likely to attract media attention, the court may be mindful of public perceptions and may make an order that is protective. To manage these strategic considerations effectively, the parties involved in the process can employ various strategies. For instance, the appellant can present evidence to demonstrate that they are not a flight risk and can be trusted to appear in court. They may also provide personal references or evidence of their ties to the community to demonstrate their commitment to remaining in the country until their new trial. If the appellant has been convicted of a crime, they can demonstrate that they have complied with the terms of probation or parole, and that they have a stable living situation. The Crown, on the other hand, can argue that the appellant is a flight risk or poses a danger to the community. They may also argue that the severity of the offence warrants detention, especially if the evidence is strong, and there is a risk of witness tampering or main witnesses being intimidated. In conclusion, section 822(3) of the Criminal Code of Canada presents several strategic considerations for the parties involved in the process. Some of these considerations include the risk of flight, the likelihood of reoffending, the severity of the offence, and the potential for public safety concerns. To manage these considerations effectively, the parties can employ various strategies, including presenting evidence, arguing their respective cases, and taking measures to restore the confidence of the court in their position. By doing so, the parties can ensure that the appropriate order is made for the release or detention of the appellant pending the new trial.