section 117.05(7)

INTRODUCTION AND BRIEF DESCRIPTION

Persons or things subject to an order under subsection (4) may appeal to the superior court.

SECTION WORDING

117.05(7) Where a justice makes an order under subsection (4) in respect of a person, or in respect of any thing that was seized from a person, the person may appeal to the superior court against the order.

EXPLANATION

Section 117.05(7) of the Criminal Code of Canada outlines the right of a person to appeal against the order made by a justice under subsection (4). This provision gives individuals the means to challenge the validity of an order that has been imposed upon them relating to the interception of private communications or seizure of their property. Subsection (4) of section 117.05 provides that a justice may issue an order authorizing the interception of private communications or the seizure of property if they have reasonable grounds to suspect that an offence has been committed or is about to be committed. However, it is important to note that this power should be used cautiously, as it involves invading an individual's privacy and interfering with their property rights. The right to appeal provided under subsection (7) ensures that individuals have the opportunity to challenge the legality and validity of an order that has been imposed upon them. This could be done on the basis that the justice did not have reasonable grounds to suspect that an offence had been committed or is about to be committed, or that the order was otherwise made in violation of an individual's Charter rights. The right of appeal is an important safeguard to prevent arbitrary and unjustified exercise of state power. It protects individuals against the improper invasion of their privacy and property rights, ensuring that they are subject to the rule of law and have access to an effective means of redress.

COMMENTARY

Section 117.05(7) of the Criminal Code of Canada is a critical provision that provides an avenue for persons aggrieved by an order made under subsection (4) to seek redress. Under this provision, the person concerned has the right to appeal the decision of the justice to the superior court. This provision underscores the importance of ensuring that individuals' rights are protected and respected even in situations where anti-terrorism measures are involved. Subsection (4) of Section 117.05 of the Criminal Code of Canada provides for a peace bond, which is a preventive measure aimed at preventing potential security breaches or acts of terrorism. Under subsection (4), a justice may order an individual to enter into a peace bond where there are reasonable grounds to fear that the person may commit a terrorism offence. The peace bond may also extend to any thing that was seized from the individual, such as weapons or other items that may be used in the commission of a terrorist act. The provision for an appeal under subsection (7) ensures that persons subject to a peace bond have a mechanism to challenge the decision of the justice. The right to appeal is a fundamental aspect of due process, which is a cornerstone of the Canadian justice system. An appeal provides a way for individuals to seek a review of the decision of a lower court and to ensure that the decision is fair and just. The right to appeal under subsection (7) also underscores the importance of ensuring that the anti-terrorism measures are applied in a balanced and proportionate manner. While the government has a duty to ensure the safety of its citizens, it must also respect the rights and freedoms of individuals. The provision for an appeal provides a check against the arbitrary or excessive exercise of state power and ensures that individuals subject to peace bonds are treated fairly and justly. In practice, the appeal process under subsection (7) may involve a review of the evidence presented to the justice, as well as any arguments made by the parties involved. The superior court may then either uphold the decision of the justice or set it aside and order a retrial or a new hearing. The result of the appeal will ultimately depend on the facts and circumstances of the case. In conclusion, Section 117.05(7) of the Criminal Code of Canada is a vital provision that provides an essential right for persons subject to a peace bond to appeal the decision of a justice. The right to appeal ensures that the anti-terrorism measures are applied in a balanced and proportional manner, with due regard for the rights and freedoms of individuals. Overall, this provision is an important component of the Canadian justice system and plays a critical role in upholding the rule of law.

STRATEGY

Section 117.05(7) of the Criminal Code of Canada allows a person to appeal to the superior court against an order made under subsection (4) in respect of them or any seized thing. This section affects those who are subject to a peace bond, preventative detention, or criminal harassment order. As such, if you are the subject of any of these orders, there are some strategic considerations to be aware of. The first strategic consideration is timing. An appeal under subsection (7) must be made within 30 days of the order being made. Therefore, it is important to act quickly and prepare the necessary documentation within this timeframe. Failure to do so will result in the appeal being dismissed, leaving the order in effect for its entire duration. The second strategic consideration is preparation. A successful appeal requires thorough preparation of legal arguments and evidence to support those arguments. This includes reviewing the initial order, identifying the legal errors or factual inaccuracies that led to it being granted, and gathering evidence to disprove these errors or inaccuracies. This may require the assistance of legal professionals and experts, both of which can be expensive. As such, only those with a strong case should consider filing an appeal under subsection (7). The third strategic consideration is the potential consequences of appealing. An appeal may result in the order being overturned or modified to be less restrictive. However, it may also result in the order being upheld or even being modified to be more restrictive. As such, appealing should only be done if the potential benefits outweigh the risks. In terms of strategies that could be employed, there are a few options available. The first is to reach out to legal professionals for assistance in preparing an appeal. They can provide guidance and support throughout the process, increasing the chances of a successful outcome. The second is to gather evidence to support your case. This may include obtaining witness statements, medical records, or other documentation that disproves the errors or inaccuracies that led to the initial order being granted. The third is to consider a negotiated settlement with the party that sought the order in the first place. This can be beneficial as it avoids the risk of an appeal and can lead to a more favorable outcome for both parties. However, settlements can be difficult to reach, and legal professionals should still be consulted to ensure that any settlement is fair and equitable. Overall, subsection (7) of section 117.05 of the Criminal Code of Canada provides a valuable opportunity for those subject to peace bonds, preventative detention, or criminal harassment orders to appeal against them. However, there are strategic considerations to be aware of, and careful preparation is required to increase the chances of a successful outcome. By employing the appropriate strategies and seeking out professional legal advice, those subject to these orders can take actions to protect their rights and freedoms.