INTRODUCTION AND BRIEF DESCRIPTION
This section clarifies that subsection (1) does not apply to orders made under section 515 of the Criminal Code.
SECTION WORDING
115(1.1) Subsection (1) does not apply in respect of an order made under section 515.
EXPLANATION
Section 115(1.1) of the Criminal Code of Canada is a provision that that exempts an order made under section 515 of the Criminal Code from the application of subsection (1) of section 115. Section 515 deals with the release of an accused person from custody pending their trial. It sets out the various forms of pre-trial release, the factors that must be considered in determining whether to release an accused person, and the conditions that may be imposed upon their release to ensure their attendance at court and protect the safety of others. Subsection (1) of section 115 of the Criminal Code provides that anyone who knowingly contravenes a court order made under any of the following sections of the Criminal Code commits an offence: section 83.3 (terrorist activity), section 83.31 (hoax regarding terrorist activity), section 810 (recognizance), section 810.01 (peace bond), and section 810.2 (mental health treatment order). This means that a person who breaches a court order made under any of these sections may be subject to criminal prosecution and punishment. However, section 115(1.1) carves out an exception to this general rule in respect of orders made under section 515. This means that if an accused person is released from custody pending their trial pursuant to an order made under section 515, and they breach one of the conditions of their release, they cannot be prosecuted under section 115(1) for that breach. The purpose of this exception is to prevent a person who has already been released from custody from facing additional criminal liability for breaching the conditions of their release. This is a recognition that pre-trial release is a balancing act that aims to balance the need to ensure public safety and the accused person's right to liberty pending their trial. If an accused person is released but subsequently breaches one of the conditions of their release, that breach can be dealt with under the law of contempt rather than the Criminal Code. In summary, section 115(1.1) of the Criminal Code provides an exception to the application of section 115(1) in respect of orders made under section 515 of the Criminal Code. This exception recognizes the unique nature of pre-trial release and seeks to balance the interests of public safety and the accused person's right to liberty.
COMMENTARY
Section 115(1.1) of the Criminal Code of Canada is a provision that is important for the proper understanding and application of the law in criminal cases. This provision relates to the section of the Code that deals with orders for release pending trial or other proceedings, namely section 515. Section 515 provides for various types of release orders that can be made by a court, such as an undertaking with or without conditions, a recognizance, or a deposit of money or property. These orders are intended to ensure that a person who has been charged with an offence is released from custody pending trial or other proceedings but is subject to certain conditions or restrictions to ensure their appearance in court and the safety of the public. However, section 115(1.1) clarifies that subsection (1) of section 115 does not apply to orders made under section 515. The effect of this is to exempt such orders from the provisions of subsection (1), which deals with the imposition of certain conditions on a person's liberty, such as a curfew, a requirement to report to a probation officer, or a prohibition on certain activities or associations. The reason for this exemption is not entirely clear from the language of the provision itself, but it is likely related to the fact that release orders under section 515 are already subject to certain conditions or requirements that are intended to address the concerns that would justify the imposition of conditions under subsection (1) of section 115. These conditions may include requirements to live at a particular address, to surrender one's passport, to abstain from drugs or alcohol, or to stay away from certain places or people. Therefore, the rationale for section 115(1.1) may be to avoid duplication or overlap between the conditions that are already imposed on a person's liberty through a release order under section 515 and the additional conditions that could be imposed under subsection (1) of section 115. This may also help to ensure that release orders are not unduly burdensome or restrictive, and that they strike an appropriate balance between the interests of the accused person and the public. Overall, section 115(1.1) is an important provision for the understanding and application of the law in criminal cases, particularly with respect to the imposition of conditions on a person's liberty pending trial or other proceedings. By clarifying that subsection (1) of section 115 does not apply in respect of release orders under section 515, this provision ensures that release orders are subject to appropriate and proportionate conditions that address the concerns for which they are imposed, without unduly compromising the rights and freedoms of the accused person.
STRATEGY
Section 115(1.1) of the Criminal Code of Canada is a legal provision that exempts specific orders made under section 515 from the restrictions outlined in section 115(1). This section highlights the importance of strategic considerations when dealing with criminal proceedings in Canada, particularly with respect to the use of detention and release orders. One of the key strategic considerations when dealing with this section is the potential impact it could have on the case. Section 115(1.1) provides a significant advantage to the prosecution as it allows them to obtain detention orders under section 515 without the need to adhere to the explicit restrictions outlined in section 115(1). This means that persons who would have otherwise been released could be detained, increasing the possibility that they may be convicted. As such, it is crucial to understand the nuances of section 115(1.1) to determine the best strategy for defending a client's release. One of the strategies that could be employed is to challenge the order made under Section 515, arguing that it is not in compliance with the restrictions outlined in section 115(1). For instance, counsel could argue that the order was not in the best interests of justice or that there was insufficient evidence to support its issuance. Another strategy is to present evidence that demonstrates that a detention order is not necessary in the circumstances. This could be done by showing that the person in question has strong ties to the community, that they have a history of attending court proceedings, or that they pose no flight risk or danger to the public. By presenting this evidence, counsel could convince the court that a release order is more appropriate than a detention order, thereby taking advantage of the restrictions outlined in section 115(1). Moreover, because section 115(1.1) is a narrow exception to the restrictions contained in section 115(1), lawyers could employ a creative approach to achieve their client's release. They could argue that the exception to section 115(1) was not applicable or that the specific order does not qualify for the exception under 115(1.1). This approach could be useful for cases with unique circumstances that fall outside the purview of standard criminal cases. In conclusion, section 115(1.1) of the Criminal Code of Canada is an essential legal provision that has significant implications for the criminal justice system. Given the weight it carries, it is essential to employ effective strategies when dealing with this section of the Criminal Code. The strategies mentioned above are just a few of the many possible solutions that could be employed to achieve a successful outcome in such cases.