INTRODUCTION AND BRIEF DESCRIPTION
The judge must provide reasons for not adding a condition to a recognizance.
SECTION WORDING
83.3(12) If the judge does not add the condition to a recognizance, they shall include in the record a statement of the reasons for not adding it.
EXPLANATION
Section 83.3(12) of the Criminal Code of Canada is a provision that requires judges to provide reasons for not including a condition to a recognizance. A recognizance is a legal agreement in which a person promises to abide by certain conditions in exchange for their release from custody or detention. These conditions can include things like surrendering a passport, agreeing to stay away from certain individuals or places, and agreeing to observe a curfew. In the context of national security, Section 83.3 of the Criminal Code allows a judge to impose additional conditions on a recognizance if they believe it is necessary for the protection of the public. For example, if a person is suspected of having ties to a terrorist organization, the judge may require them to undergo counseling, wear an electronic monitoring device, or report to a probation officer. However, Section 83.3(12) also recognizes that judges have the discretion to not impose these conditions. If a judge chooses not to add a condition to a recognizance, they must provide a statement of their reasoning for doing so. This ensures that the decision-making process is transparent and accountable, and that the public can have confidence that the judge has carefully considered all the relevant factors before making a final decision. In summary, Section 83.3(12) is an important provision in the Criminal Code of Canada that helps to ensure that the conditions of a recognizance are fair, reasonable, and necessary for the protection of the public. By requiring judges to provide clear and concise reasons for their decisions, this provision promotes transparency and accountability in the administration of justice.
COMMENTARY
Section 83.3(12) of the Criminal Code of Canada is an important provision that requires judges to provide a statement of the reasons for not adding a condition to a recognizance. This provision is significant because it promotes transparency and accountability in the criminal justice system and ensures that decisions made by judges are based on sound legal principles. Recognizance is an undertaking by a person to appear before a court at a later date to answer to an offence. It is a form of bail that is granted to an accused person pending trial or sentencing. One of the conditions that may be imposed on a recognizance is a requirement for the accused person to present themselves to the authorities periodically. This condition ensures that the accused person does not flee or abscond from the trial or sentencing proceedings. However, there may be instances where a judge may decide not to impose a condition on a recognizance for reasons such as the potential impact on the accused person's liberty, the seriousness of the offence, or the risk of harm to the community. In such situations, Section 83.3(12) requires the judge to provide a statement of the reasons for not adding the condition. The requirement to provide a statement of reasons has several benefits. First, it ensures that the judge's decision-making process is transparent to the accused person, the prosecution, and the public. By stating the reasons for not imposing a condition, the judge provides insight into the factors that informed their decision and enables those affected by the decision to understand the rationale behind it. Second, the provision promotes accountability in the criminal justice system. The requirement for judges to provide a statement of reasons creates a record of the decision-making process that can be reviewed by higher courts or by oversight bodies. This record can be used to evaluate the consistency and correctness of decisions made by judges, and to hold them accountable for their decisions. Third, the provision promotes the rule of law by ensuring that decisions made by judges are based on sound legal principles rather than personal biases or preferences. By requiring judges to provide a statement of reasons, the provision encourages judges to engage in a reasoning process that is transparent and justifiable, and that is consistent with the principles of fundamental justice. In conclusion, Section 83.3(12) of the Criminal Code of Canada is a provision that promotes transparency, accountability, and the rule of law in the administration of justice. By requiring judges to provide a statement of reasons for not adding a condition to a recognizance, the provision establishes a clear and transparent decision-making process that is accountable to the accused person, the prosecution, and the public. It is a provision that upholds the principles of fundamental justice, promotes public confidence in the administration of justice, and reflects the values of a fair and just society.
STRATEGY
Section 83.3(12) of the Criminal Code of Canada requires judges to include a statement of reasons in the record if they do not add a condition to a recognizance. This provision is important in ensuring that judges are held accountable for their decisions and can be used as a tool by defense counsel to challenge the judge's reasoning. One strategic consideration when dealing with this section is to carefully review the judge's reasons to determine whether they are adequate and justified. If the reasons are insufficient or unclear, this may provide a basis for challenging the judge's decision. Defense counsel may also consider requesting that the judge provide additional reasons or clarification to support their decision. Another strategy that could be employed is to use the judge's failure to provide adequate reasons as a basis for an appeal. If the record does not contain sufficient reasons for the judge's decision, an appeal court may be more likely to overturn the decision and send the matter back for reconsideration. Additionally, counsel may consider using the judge's failure to provide reasons as a basis for a Charter challenge. As recognized by the Supreme Court of Canada in R v. Grant, the failure to provide adequate reasons can constitute a violation of an accused's right to a fair trial and the right to be informed of the reasons for detention. Counsel may argue that the judge's failure to provide reasons for not adding a condition to a recognizance violated their client's Charter rights. In conclusion, strategic considerations when dealing with Section 83.3(12) of the Criminal Code of Canada include carefully reviewing the judge's reasons, seeking clarification or additional reasons if necessary, using the lack of reasons as a basis for an appeal, and potentially raising a Charter challenge. By effectively navigating this section, counsel can help ensure that their clients receive a fair and just outcome.