INTRODUCTION AND BRIEF DESCRIPTION
This section allows the Attorney General to appeal to a superior court if a provincial court judge does not make an order under subsection (5).
SECTION WORDING
111(9) Where a provincial court judge does not make an order under subsection (5), the Attorney General may appeal to the superior court against the decision not to make an order.
EXPLANATION
Section 111(9) of the Criminal Code of Canada grants the Attorney General the right to appeal to a superior court when a provincial court judge decides not to make an order under subsection (5). Subsection (5) pertains to the protection of witnesses, and it allows judges to issue orders restraining any person from communicating with or intimidating a witness in a criminal matter. These orders are designed to protect the integrity of the criminal justice process and ensure that witnesses can provide evidence without fear of reprisal. However, subsection (5) is discretionary, meaning that judges are not required to issue such orders in all cases. This discretion is necessary to ensure that the orders are not used improperly or inappropriately. Nonetheless, if a judge decides not to issue an order, and the Attorney General believes that the decision was incorrect, Section 111(9) allows them to appeal to a superior court. The purpose of Section 111(9) is to provide an avenue for the Attorney General to challenge a decision that they believe may harm the prosecution's case. This may include situations where a witness is likely to be intimidated or threatened, or their safety may be at risk. The appeal allows the Attorney General to argue that the judge was incorrect in not issuing the order and seek to have it reversed or varied. Overall, Section 111(9) is an important provision in ensuring that witnesses are protected and can provide evidence safely in criminal proceedings. It provides an additional layer of oversight to ensure that orders are issued when necessary and that the integrity of the criminal justice system is maintained.
COMMENTARY
Section 111(9) of the Criminal Code of Canada outlines the process for appealing a decision made by a provincial court judge in regards to making an order under subsection (5). This provision gives the Attorney General the right to appeal against the decision of a provincial court judge, which can be an important tool in ensuring justice is served. In cases where a provincial court judge declines to make an order under subsection (5), this may be seen as a miscarriage of justice, particularly if it is believed that such an order would be necessary for the safety and wellbeing of the community. Section 111(5) of the Criminal Code provides that a judge can order a person to enter into a recognizance if he or she believes there are reasonable grounds to fear that the individual may commit a terrorist offense or violent act that could harm other persons. Recognizance is essentially a legal bond that requires a person to comply with specific conditions, such as reporting regularly to a police station or avoiding certain individuals or locations. This order is designed to prevent potential harm to public safety by restricting the liberty of individuals suspected of engaging in violent or terroristic activities. In such cases, the Attorney General can utilize section 111(9) to seek a review of the decision made by the provincial court judge. This provision allows the Attorney General to seek a review by a higher court, the superior court. This review is designed to ensure that justice is done and that the safety of the community is protected. The superior court has the authority to uphold the decision of the lower court or to overturn it, depending on the evidence presented and other relevant factors. The use of section 111(9) can be a contentious issue, as it may be seen by some as an infringement on individual rights and liberties. However, it is important to recognize that the decision to enter into a recognizance is not taken lightly and must be based on reasonable grounds to believe that an individual may pose a threat to public safety. Furthermore, legal safeguards are in place to ensure that the rights of the individual are also protected. In addition, the use of section 111(9) highlights the importance of collaboration between the judiciary and the executive branches of government in maintaining law and order. The role of the judiciary is to impartially interpret and apply the law, while the executive branch, through the Attorney General, is responsible for ensuring that the law is enforced and that the safety of the community is protected. Section 111(9) provides a necessary mechanism for these branches to work together to ensure that justice is served and the public is protected. In conclusion, section 111(9) of the Criminal Code of Canada is an essential provision in maintaining public safety and ensuring justice is served. The ability to appeal a decision made by a provincial court judge regarding a recognizance order is an important safeguard against potential miscarriages of justice. The use of this provision must be balanced with the protection of individual rights and liberties, but it ultimately serves as an important mechanism for collaboration between the judiciary and executive branches in promoting the common good.
STRATEGY
Section 111(9) of the Criminal Code of Canada provides the Attorney General with the discretion to appeal the decision of a provincial court judge not to make an order under subsection (5). This provision is critical in ensuring that individuals who pose a risk to public safety are detained or supervised appropriately. However, the exercise of this discretion requires strategic considerations to ensure that it is employed effectively and in the best interests of justice. One of the key strategic considerations when dealing with section 111(9) is whether an appeal is warranted in the circumstances. The Attorney General must assess the strength of the case for making an order under subsection (5) and determine whether a successful appeal is likely. Factors that may influence this decision include the nature and severity of the alleged offense, the individual's criminal history, and the risk they pose to public safety. If there is a reasonable likelihood of success on appeal, it may be appropriate to pursue this option. Another strategic consideration is whether an appeal is the best use of resources, both in terms of time and cost. Pursuing an appeal can be a lengthy and expensive process, and the outcome is never guaranteed. Therefore, the Attorney General must carefully weigh the potential benefits of an appeal against its costs and determine whether other courses of action, such as pursuing alternative sentencing options, may be more beneficial. When pursuing an appeal under section 111(9), several strategies could be employed to increase the chances of success. These may include thoroughly reviewing the decision of the provincial court judge and identifying any errors in fact or law that may have been made. Additionally, presenting compelling evidence that the individual poses a risk to public safety and that an order under subsection (5) is necessary may provide persuasive grounds for an appeal. Likewise, demonstrating a clear understanding of the legal framework governing the decision to make an order under subsection (5) and the factors that must be considered may also enhance the appeal's likelihood of success. In conclusion, section 111(9) of the Criminal Code of Canada provides the Attorney General with a critical tool to ensure public safety by appealing the decision of a provincial court judge not to make an order under subsection (5). However, in exercising this discretion, strategic considerations must be taken into account to ensure that resources are used effectively, and justice is served. By carefully assessing the case's merits, considering alternative courses of action, and employing effective strategies to increase the likelihood of success, the Attorney General can ensure that this provision is used in the best interests of society.