Criminal Code of Canada - section 550(5) - Discharge

section 550(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a court or justice to release a witness from prison after the trial has ended.

SECTION WORDING

550(5) Where a witness has been committed to prison pursuant to subsection (4), the court before which the witness appears or a justice having jurisdiction in the territorial division where the prison is situated may, by order in Form 39, discharge the witness from custody when the trial is concluded.

EXPLANATION

Section 550(5) of the Criminal Code of Canada outlines the circumstances under which a witness who has been committed to prison can be discharged from custody after a trial. Subsection (4) states that a witness can be committed to prison if they fail to appear in court, refuse to give evidence, or refuse to give security for their appearance. In such cases, the witness can be kept in prison until the trial is concluded. However, once the trial is over, the court before which the witness appeared or a justice having jurisdiction in the territorial division where the prison is located can order the discharge of the witness from custody, using Form 39. This form is an official document used by the courts to order the release of a witness from prison. The purpose of this section is to ensure that witnesses who are committed to prison are not held in custody indefinitely. It recognizes that witnesses may have reasons for failing to appear or refusing to give evidence, and that they should not be penalized by being kept in prison after the trial is over. By providing a legal mechanism for their release, witnesses can be encouraged to come forward and provide evidence without fear of being punished. Overall, Section 550(5) of the Criminal Code of Canada is an important provision that helps protect the rights of witnesses, and ensures that they are not unduly punished for their failure to appear or refusal to testify. It is an essential component of the legal process, and helps to ensure that justice is served in an equitable and fair manner.

COMMENTARY

Section 550(5) of the Criminal Code of Canada provides for the discharge of a witness from prison after their appearance in court. This section of the code is counterintuitive and has become a topic of debate among legal scholars and experts. The provision allows for the release of a witness from prison after the trial is concluded. The court that heard the trial or a justice having jurisdiction in the territorial division where the prison is situated has the power to issue an order in Form 39 to discharge the witness from custody. The purpose of this provision is to ensure that witnesses are not unjustly detained in prison after their usefulness as witnesses has been served. This provision of the Criminal Code of Canada has been subject to criticism by some legal scholars and experts. They argue that the provision has the potential to intimidate witnesses into providing false testimony or failing to testify altogether. Witnesses may fear going to prison, even if only for a short duration, if they testify in a way that displeases the prosecution or defence. Another argument against this provision is that it undermines the rule of law. Witnesses who have been convicted of a crime and are serving their sentence in prison may be released early if they agree to testify in a trial. This is a departure from the principle that all individuals should be treated equally before the law. These individuals may receive preferential treatment because of their willingness to testify, which may not be in the interest of justice. Despite these criticisms, the provision is a necessary tool in the administration of justice. Witnesses who have been imprisoned because of their refusal to testify or their failure to appear in court can be released once their usefulness as witnesses has been served. The power to order the discharge of a witness from custody after their appearance in court is a crucial safeguard against the arbitrary detention of witnesses. It also helps to protect the rights of witnesses who have been unable to testify due to unjustifiable detention. In light of the above, the provision needs to be balanced against the need to ensure the proper administration of justice. The provision should be used sparingly and only in situations where it is necessary to secure testimony that is likely to be undeclared. The courts should also take into account the potential costs of releasing witnesses from custody, such as the possible danger this may pose to public order and security. In conclusion, the provision contained in Section 550(5) of the Criminal Code of Canada is a necessary tool in the administration of justice. While it has been criticized by some experts and scholars, it provides for the release of witnesses from prison after their testimony in a trial is concluded. The provision needs to be used sparingly, with consideration given to the potential costs of such releases. It is crucial to balance the policy objectives of the provision with the need to preserve the rule of law.

STRATEGY

Section 550(5) of the Criminal Code of Canada provides a means for a witness who has been committed to prison to be discharged from custody once the trial is concluded. This provision is designed to protect the rights of witnesses who have been detained as part of the legal process, but it also presents some strategic considerations for legal practitioners. One of the primary considerations is whether or not the witness should be committed to prison in the first place. This decision will depend on a variety of factors, such as the nature of the witness's testimony and the level of risk they pose to themselves or others. It is important for legal practitioners to carefully consider these factors before deciding to seek a commitment order. Once a commitment order has been obtained, legal practitioners must be mindful of the potential impact on the witness's testimony. Being held in custody can be a stressful and traumatic experience, and this can affect a witness's ability to testify effectively. Strategies to mitigate this include working with the witness to prepare them for their testimony, providing emotional support throughout the process, and seeking to minimize the time spent in custody. Another consideration is the potential impact on the case if the witness is discharged from custody. If the witness's testimony is critical to the case, then their absence could be a significant blow to the defense or prosecution. Legal practitioners must be prepared to adjust their strategy if a witness is discharged from custody, and may need to seek alternative evidence or witnesses to support their case. In some cases, it may be possible to negotiate with the prosecution or defense to avoid the need for a commitment order altogether. This could involve agreeing to certain conditions that would allow the witness to testify without being held in custody, or seeking to have the witness testify remotely or from a less restrictive location. Overall, there are a number of strategic considerations when dealing with section 550(5) of the Criminal Code of Canada. Legal practitioners must carefully weigh the risks and benefits of seeking a commitment order, and must be prepared to adjust their strategy if a witness is discharged from custody. By working closely with the witness and taking a client-focused approach, legal practitioners can ensure that their clients' rights are protected while also building a strong case.