section 117.011(8)

INTRODUCTION AND BRIEF DESCRIPTION

The Attorney General may appeal a provincial court judges decision not to make an order under subsection (5).

SECTION WORDING

117.011(8) 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 117.011(8) of the Criminal Code of Canada allows the Attorney General to appeal to the superior court if a provincial court judge does not make an order under subsection (5). This section is relevant in the context of peace bonds, which are court orders designed to prevent someone from committing harm to others. Subsection (5) of Section 117.011 gives the provincial court judge the authority to make an order for a peace bond if they believe that the defendant poses a threat to public safety or the safety of an individual. This order may require the defendant to keep the peace, be of good behaviour, stay away from certain people or places, or other conditions deemed necessary to protect public safety. If the provincial court judge decides not to make an order under subsection (5), the Attorney General may appeal the decision to the superior court. The appeal provides an opportunity for the Attorney General to challenge the decision and ensure that all necessary precautions are taken to ensure public safety. Overall, Section 117.011(8) helps safeguard public safety by allowing for a review of a provincial court judge's decision not to order a peace bond for an individual who poses a potential threat. It emphasizes the importance of taking proactive measures to prevent harm and maintain public safety.

COMMENTARY

Section 117.011(8) of the Criminal Code of Canada deals with the issue of appeals in cases where a provincial court judge declines to make an order under subsection 5 of section 117.011. Subsection 5 states that a judge may make an order prohibiting a person from engaging in certain activities or associating with certain individuals if the judge is satisfied that doing so is necessary to prevent the commission of a terrorism offence. If a provincial court judge declines to make such an order, the Attorney General may appeal the decision to the superior court. This provision was added to the Criminal Code in 2015 as part of the government's Anti-terrorism Act. The purpose of this provision is to provide a mechanism whereby the Attorney General can challenge a judge's decision not to make an order that the Attorney General believes is necessary to prevent a terrorism offence. The provision is intended to ensure that valuable tools are available to law enforcement and prosecutors to combat terrorism in Canada. The provision, however, has been subject to criticism. Some argue that it gives too much power to the Attorney General and undermines the independence of the judiciary. It is argued that the decision not to make an order under subsection 5 should be left to the discretion of the judge, who is in the best position to assess the evidence and make a determination as to whether an order is necessary. Others argue that the provision is unnecessary, as there are already mechanisms in place to challenge the decisions of judges. For example, a party can appeal a decision of a provincial court judge to a higher court, such as the Court of Appeal or the Supreme Court of Canada. It is argued that adding this provision to the Criminal Code is redundant and unnecessary. Despite these criticisms, the provision remains in place. It is important to note that the provision is subject to the same limitations as any other appeal. The Attorney General must demonstrate that the decision of the provincial court judge was unreasonable or incorrect in law. The appeal court must also be mindful of the importance of judicial independence and the need to respect the discretion of the trial judge. In conclusion, section 117.011(8) of the Criminal Code of Canada provides for a mechanism whereby the Attorney General can challenge a decision of a provincial court judge not to make an order under subsection 5 of the same section. While the provision has been subject to criticism, it remains an important tool in combating terrorism in Canada. The provision is subject to the same limitations as any other appeal, and the appeal court must be mindful of the importance of judicial independence in considering such appeals.

STRATEGY

Section 117.011(8) of the Criminal Code of Canada is a provision that allows the Attorney General to appeal to the superior court if a provincial court judge does not make an order under subsection (5). This section relates to provisions concerning the prohibition of terrorist activity, and the availability of peace bonds and recognizances to prevent such activity in the future. The section gives rise to some strategic considerations when dealing with it. Some of these include the following: 1. Identifying the factors that may have influenced the provincial court judge's decision: Before appealing a decision made by a provincial court judge, the Attorney General needs to understand the reasons that led to the decision. This can help in identifying the areas of weakness in the Attorney General's case and figuring out how to strengthen it. For instance, if the judge did not find sufficient evidence to show that the person posed a threat to national security, the Attorney General may need to carry out further investigations to gather more evidence. 2. Preparing a strong appellate brief: To appeal a decision successfully, the Attorney General needs to present a compelling argument to the superior court. This requires the drafting of a highly persuasive appellate brief that clearly identifies the errors made by the lower court and argues why they warrant the reversal of the decision. The brief should consider all the relevant legal and factual issues and case law. 3. Considering the prevailing political climate: Decisions to appeal are often influenced by the prevailing political climate. For instance, if there has been a recent terrorist attack in the country, and the public is calling for stricter measures to prevent further attacks, the Attorney General may be under pressure to take a more aggressive stance on terrorism-related cases. 4. Managing media relations: Terrorism-related cases tend to attract significant media attention, and the public tends to have strong opinions on them. As such, the Attorney General needs to carefully manage media relations to ensure that the public is kept informed about the reasons behind the appeal without compromising the rights of the accused person. This requires careful crafting of communication messages so that they are clear, understandable, and respectful of the rights of all parties. 5. Considering the potential implications of appealing the decision: Appealing a decision can have far-reaching implications for the accused person, particularly if the superior court reverses the lower court's decision. As such, the Attorney General needs to weigh the potential risks and benefits of pursuing an appeal critically. In cases where the decision not to make an order under subsection (5) is based on relatively weak evidence, the risk of not appealing may be too high, and pursuing an appeal may be the appropriate course of action. In conclusion, Section 117.011(8) of the Criminal Code of Canada provides the Attorney General with a strategic tool for appealing decisions made by provincial court judges in relation to terrorism-related cases. However, the Attorney General must carefully consider the implications of using this tool, taking into account factors such as the prevailing political climate, media relations, and the potential risks and benefits of an appeal. By doing so, the Attorney General can ensure that they pursue the most appropriate course of action to protect national security while remaining faithful to the principles of fairness and justice.