INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the application of Part XXVII to appeals made under subsection (7) or (8) with modifications as necessary.
SECTION WORDING
117.05(9) The provisions of Part XXVII, except sections 785 to 812, 816 to 819 and 829 to 838, apply in respect of an appeal made under subsection (7) or (8) with such modifications as the circumstances require and as if each reference in that Part to the appeal court were a reference to the superior court.
EXPLANATION
Section 117.05 (9) of the Criminal Code of Canada outlines the application of Part XXVII of the Code to an appeal made under subsection (7) or (8). This section applies to appeals against orders made under the peace bond provisions of the Code. A peace bond is essentially an order that requires an individual to keep the peace and to be of good behavior for a specific period of time. This order can be issued by a judge or justice of the peace if the court is satisfied that it is necessary to prevent harm or injury to another person or damage to property. If an individual is subject to a peace bond order and wishes to appeal such an order, they may do so under subsections (7) or (8) of the Code. When making such an appeal, the provisions of Part XXVII of the Code apply, except for sections 785 to 812, 816 to 819, and 829 to 838. This means that the general appeal provisions found in Part XXVII will apply, including the grounds for appeal, the procedures for filing an appeal, and the powers of the appeal court. However, certain sections are exempted from this application because they are not relevant to peace bond appeals. In addition to the general application of Part XXVII, the section also notes that modifications may be required based on the circumstances of the appeal. The reference to the appeal court is also changed to the superior court, since peace bond appeals are typically heard at the superior court level. Overall, section 117.05 (9) ensures that individuals who wish to appeal a peace bond order have access to a fair and effective appeal process. It provides clarity on the framework for such appeals and ensures that the appeal process is consistent with other appeal procedures in the Code.
COMMENTARY
Section 117.05(9) of the Criminal Code of Canada specifies the provisions that apply with respect to an appeal made under subsections (7) or (8) of section 117.05. This section essentially sets out the rules that must be followed when appealing against an order made under section 117.05. It details the provisions of Part XXVII that apply to such an appeal, with certain exceptions noted. The Criminal Code of Canada is a piece of legislation that outlines criminal offences, their punishments, and the procedures for dealing with them. Section 117.05 specifically deals with the making of a recognizance order in relation to terrorism offences, where it is deemed necessary for public safety. This section gives law enforcement officials the power to apply for such an order, which can impose restrictions on the movements and activities of the person in question. However, an individual subject to such an order can appeal against it, and this is where section 117.05(9) comes into play. The section states that the provisions of Part XXVII of the Criminal Code apply to an appeal made under subsection (7) or (8) of section 117.05. Part XXVII deals specifically with appeals in criminal proceedings and lays out the various rules and procedures that must be followed. However, sections 785 to 812, 816 to 819, and 829 to 838 are excluded from this application, meaning that some parts of Part XXVII do not apply to appeals made under section 117.05. Furthermore, the section notes that modifications may be necessary depending on the circumstances of the case. While it is not stated what these modifications may entail, it is likely that they would be made to ensure that the appeal process is fair, just, and appropriate for the specific matter at hand. One interesting aspect of this section is that it specifies that the appeal court in Part XXVII is to be replaced by the superior court in the case of appeals made under section 117.05. The superior court in this context refers to the highest court in a given province or territory where the appeal is taking place. This means that appeals against recognizance orders made under section 117.05 must be heard in a higher court than appeals in other criminal cases, which are typically heard in the appellate court. Overall, section 117.05(9) of the Criminal Code of Canada provides important guidelines for those seeking to appeal against a recognizance order made under section 117.05. It ensures that specific provisions are applied to such appeals, while allowing for necessary modifications to be made in order to suit the particular circumstances of the case. This section therefore plays a crucial role in ensuring fairness and due process in the Canadian criminal justice system.
STRATEGY
Section 117.05(9) of the Criminal Code of Canada is a crucial provision in appeals made under subsection (7) or (8) of the code. The provision enables the Superior court to apply the provisions of Part XXVII of the Criminal Code to hear the appeals, subject to modifications as the circumstances require. This provision provides a roadmap for various strategic considerations that lawyers should take when dealing with appeals in criminal cases. One major strategic consideration when dealing with section 117.05(9) is to understand the provisions of Part XXVII of the Criminal Code. Lawyers should pay keen attention to sections 785 to 812, 816 to 819, and 829 to 838, which do not apply under the provision. Familiarity with these provisions will facilitate the modification of the applicable provisions to suit the circumstances of the appeal. Consequently, a lawyer representing a defendant should be familiar with the provisions of the criminal code relevant to the case. Another strategic consideration when dealing with section 117.05(9) is to prepare extensively for the appeal. This involves evaluating the court records of the case to identify and analyze potential errors, including errors of law or facts. The lawyer should evaluate the sufficiency and reliability of the evidence submitted in the case and determine if the evidence supports the conviction. They should also consider expert testimony and other forms of evidence that were not submitted earlier and explore their potential impact on the outcome of the appeal. Lawyers should also strategize on how to approach the Superior court and the prosecutor. The lawyer should be prepared to negotiate with the prosecutor to reduce the charges, as this can positively impact the outcome of the appeal. Lawyers could also prepare written submissions outlining the errors in the trial and explaining how these errors led to an unfair conviction. These submissions should demonstrate how the modified provisions of Part XXVII could apply to the appeal. Another strategy is to consider whether a stay of proceedings would be strategically useful. A stay of proceedings temporarily suspends the proceedings related to the case. A stay of proceedings could give the defense time to prepare better for the appeal. The lawyer could persuade the court to grant a stay of proceedings if there are significant errors that require more time to address adequately. In summary, section 117.05(9) of the Criminal Code of Canada provides a means for a defendant to appeal a conviction. Lawyers should take into account the provisions of Part XXVII of the code when formulating appeal strategies. They should also prepare extensively for the appeal, approach the Superior court and prosecutor strategically, consider seeking a stay of proceedings, and evaluate all evidence relevant to the case. Doing so would maximize the chances of success for the defendant.