section 261(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge to temporarily suspend a prohibition order related to certain offenses when an appeal is made.

SECTION WORDING

261(1) Subject to subsection (1.1), if an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220, 221, 236, 249 to 255 and 259, a judge of the court being appealed to may direct that any prohibition order under section 259 arising out of the conviction or discharge shall, on any conditions that the judge or court imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.

EXPLANATION

Section 261(1) of the Criminal Code of Canada provides for the possibility of a stay of a prohibition order in cases where an appeal is taken against a conviction or discharge from an offense committed under certain listed sections of the Code. Prohibition orders are orders that restrict or prohibit a person's behavior or activities, and can be imposed as part of a sentence for certain offenses. The listed sections of the Criminal Code that are subject to this provision include offenses such as assault, sexual assault, kidnapping, and manslaughter. If a person is convicted or discharged under any of these sections and a prohibition order is made as part of their sentence, they may be able to seek a stay of the order if they appeal their conviction or discharge. The purpose of this provision is to prevent the undue hardship that can occur when a person is subject to a prohibition order while their appeal is pending. It recognizes that if a person is ultimately successful in their appeal, the prohibition order would not have been necessary or appropriate in the first place. Therefore, by allowing for a temporary stay of the order, the provision ensures that individuals are not unduly burdened by an order that may ultimately be overturned. It is important to note that the judge hearing the appeal has discretion to impose conditions on any stay of the prohibition order. These conditions may be designed to ensure the safety of the public or the victim of the offense, and may include requirements such as reporting regularly to a probation officer or abstaining from certain activities. Ultimately, the provision seeks to balance the interests of justice with the rights of the individual, by allowing for a temporary stay of a restrictive order where appropriate.

COMMENTARY

Section 261(1) of the Criminal Code of Canada allows for the possibility of a prohibition order to be temporarily lifted if the defendant makes an appeal against their conviction or discharge under section 730 for a specific set of offenses. These offenses include sections 220, 221, 236, 249 to 255, and 259, which encompass a range of criminal actions such as murder, robbery, and sexual assault. The reason for the inclusion of this provision is to address the potential harm that a prohibition order may inflict on the defendant's life, should the appeal overturn their conviction or discharge. A prohibition order is an order made by a court that forbids the defendant from engaging in certain activities or being in certain places. For example, a prohibition order may restrict a convicted murderer from contacting the victim's family or being within a certain distance of their home. If an appeal is launched by the defendant against their conviction or discharge for one of the specified offenses, section 261(1) allows for a judge to grant a temporary stay on any prohibition orders that may have been imposed on the defendant. This stay may be subject to certain conditions, such as the posting of a bond or the imposition of a curfew, as determined by the judge or court. The stay lasts until the matter is finally resolved, either by the final disposition of the appeal or by an order of the court. While the temporary lifting of a prohibition order may seem like a relatively minor issue in the grand scheme of things, it can have a significant impact on the defendant's day-to-day life. Prohibition orders can restrict a defendant's freedom of movement, association, and communication, and having these restrictions lifted can make a real difference in the defendant's ability to live a normal life until the outcome of their appeal is determined. However, it is important to note that section 261(1) only applies to a specific set of offenses, and the judge or court still retains the discretion to impose restrictions on the defendant's activities during the stay period. Additionally, the lifting of a prohibition order does not necessarily mean that the defendant's conviction or discharge has been overturned - it simply means that the order will not apply until the outcome of the appeal is determined. In conclusion, section 261(1) of the Criminal Code of Canada offers a small measure of relief for defendants appealing their conviction or discharge for a specific set of offenses. While the stay on any prohibition orders imposed may be subject to conditions, it can still have a significant impact on the defendant's life. Overall, this provision serves as an important reminder of the potential consequences of criminal activity and the importance of seeking justice through a fair and just legal process.

STRATEGY

Section 261(1) of the Criminal Code of Canada is a provision that allows a judge to direct a stay of a prohibition order under section 259 arising out of a conviction or discharge for specific offences. This section provides a tool that can be used by counsel to mitigate the effects of a conviction or discharge pending appeal. Strategic considerations when dealing with Section 261(1) of the Criminal Code of Canada would depend on the specific circumstances of each case. However, some general considerations and strategies that could be employed are as follows: 1. Timing of the Application: A stay of a prohibition order should be applied for as soon as possible, ideally immediately following the conviction or discharge. This is because a prohibition order often takes effect immediately upon sentencing. If the application is made later, it may be difficult to convince the judge that the stay is necessary, or the judge may impose more onerous conditions. 2. Grounds for Appeal: The likelihood of success on appeal is an important consideration when seeking a stay of a prohibition order. If there are strong grounds for appeal, such as errors in law or fact, or if there is a genuine issue to be tried, a judge may be more inclined to grant the stay. Counsel should ensure that the grounds for appeal are properly articulated in the application. 3. Risk to Public Safety: When deciding whether to impose a stay, the judge will consider the risk to public safety. If there is a significant risk, the judge may be less inclined to grant the stay or may impose more stringent conditions. Counsel should address any potential public safety concerns in the application and propose conditions that will mitigate those concerns. 4. Potential for Delay: Judges may be reluctant to grant a stay if they believe that the appeal will be delayed or if they perceive that the application is simply a delay tactic. Counsel should be prepared to demonstrate that the appeal will be pursued diligently and that the stay is necessary to ensure that the appellant's rights are protected. 5. Conditions of the Stay: If a stay is granted, counsel should propose conditions that will adequately address the concerns of the court and the public while allowing the appellant to maintain some level of freedom pending appeal. These conditions could include reporting requirements, curfews, travel restrictions, or other restrictions on behavior that are tailored to the specific circumstances of the case. In conclusion, Section 261(1) of the Criminal Code of Canada can be a valuable tool for mitigating the effects of a conviction or discharge pending appeal. Counsel should carefully consider the specific circumstances of each case and propose conditions that will adequately address the concerns of the court and the public while allowing the appellant to maintain some level of freedom pending appeal.