INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the grounds for appeal of an order made under subsection (4) or (5).
SECTION WORDING
164(6) An appeal lies from an order made under subsection (4) or (5) by any person who appeared in the proceedings (a) on any ground of appeal that involves a question of law alone, (b) on any ground of appeal that involves a question of fact alone, or (c) on any ground of appeal that involves a question of mixed law and fact, as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XXI and sections 673 to 696 apply with such modifications as the circumstances require.
EXPLANATION
Section 164(6) of the Criminal Code of Canada outlines the right to appeal an order made under subsection (4) or (5) of section 164. These subsections concern the use of sexual history evidence in a trial for a sexual offence. The right to appeal is available to any person who appeared in the proceedings and may be exercised on three grounds. Firstly, a question of law alone, where there is a dispute over the interpretation of the law. Secondly, a question of fact alone, where there is a dispute over the factual findings of the trial judge. Finally, a question of mixed law and fact, where there is both a legal and factual dispute. Essentially, this section provides a mechanism for individuals to challenge the use of sexual history evidence that may have been allowed or excluded from a trial. It allows for the review of these orders on legal, factual or mixed grounds and follows the same process as an appeal against a conviction or an acquittal. Therefore, sections 673 to 696 of the Criminal Code, which outline the appeals process, apply with necessary modifications. Overall, this section aims to ensure that the use of sexual history evidence in a trial is appropriate and fair, and that individuals have the opportunity to challenge any orders made in relation to this evidence.
COMMENTARY
Section 164(6) of the Criminal Code of Canada essentially grants the right of appeal to any party who appeared in proceedings that resulted in an order made under subsection (4) or (5). This gives parties the right to appeal on questions of law alone, fact alone, and mixed fact and law. This section of the Criminal Code is important because it ensures that parties have the right to challenge orders and decisions made in legal proceedings. The ability to appeal is a critical component of due process, as it allows for errors or mistakes to be corrected and prevents unjust outcomes from being finalized. The ability to appeal a decision on grounds of fact alone is particularly important, as it recognizes that factual errors or misunderstandings can occur in legal proceedings and can have significant impacts on the outcome of a case. By granting the right to appeal on factual grounds, parties are able to correct potential errors and ensure that justice is served. Furthermore, the modifications to sections 673 to 696 that apply under this section of the Criminal Code ensure that appeals are conducted in a fair and just manner. These modifications may include changes to the procedural requirements of an appeal, as well as how evidence is presented and evaluated in the appeals process. Overall, this section of the Criminal Code of Canada is a vital component of the justice system in Canada. It ensures that parties are afforded the right to appeal where necessary, and that the appeals process is conducted in a fair and just manner. By granting the right to appeal on questions of fact alone and mixed fact and law, this section acknowledges that errors can occur in legal proceedings and that corrective action must be taken to ensure that justice is served.
STRATEGY
Section 164(6) of the Criminal Code of Canada allows a person who appeared in the proceedings to appeal an order made under subsection (4) or (5) on grounds of law, fact, or a mixture of both. Strategic considerations are critical for anyone who wishes to invoke this section of the Criminal Code. Filing an appeal is a significant move that requires a comprehensive evaluation of the case, the potential outcome, and the risks involved. Some of the strategic considerations to be considered include: 1. Timing: The timing of the appeal is critical. Appeals must be filed promptly after the order is made, or there is a risk that the appeal is considered untimely and struck out. Accordingly, parties must weigh the costs and benefits of appealing, and if they decide to appeal, they must do so in a timely manner to avoid losing their right to appeal. 2. Grounds for appeal: One of the most critical strategic considerations to be made is to determine the grounds for the appeal. Specific legal or factual errors must be identified in the proceeding to form the basis for an appeal. Identifying these errors can be challenging and requires a thorough review of the trial transcript and all evidence adduced. It is also essential to note that not all errors may be reversible on appeal. 3. Selection of counsel: Selecting the right counsel is of paramount importance. Legal counsel's experience and expertise in criminal appeals can significantly impact the success of an appeal. Counsel must have a good understanding of the Criminal Code and the relevant jurisprudence. 4. Choice of forum: Another strategic consideration is the choice of forum for the appeal. In some cases, the appeal may be brought to the Court of Appeal, while in others, the Federal Court may be the appropriate forum to appeal. Strategic considerations such as whether the appellant wants to appeal on a question of fact alone or a question of mixed law and fact can determine the best forum for filing their appeal. Strategies that could be employed to deal with this section of the Criminal Code of Canada include: 1. Careful review of the trial transcript and evidence to identify errors that form the basis of an appeal. 2. Conducting thorough legal research on the relevant legal principles and jurisprudence. 3. Drafting clear, concise, and well-reasoned grounds of appeal that are backed up by legal authority. 4. Choosing persuasive appellate arguments that will resonate with the appellate judge and support the appellant's position. 5. Leveraging on prior appellate decisions and jurisprudence to strengthen legal arguments. 6. Engaging in mediation and settlement negotiations to settle the appeal out of court, particularly in cases where there is a risk of losing on appeal. In conclusion, Section 164(6) of the Criminal Code of Canada provides a framework for appealing orders made under subsections (4) or (5). Parties must consider the strategic options available and carefully evaluate the case to determine whether an appeal is warranted. The well-considered, evidence-based approach and persuasive legal arguments are necessary for success on appeal.