INTRODUCTION AND BRIEF DESCRIPTION
This section allows for substitutional service of a notice of appeal or application for leave to appeal if the respondent cannot be found after reasonable efforts have been made.
SECTION WORDING
678.1 Where a respondent cannot be found after reasonable efforts have been made to serve the respondent with a notice of appeal or notice of an application for leave to appeal, service of the notice of appeal or the notice of the application for leave to appeal may be effected substitutionally in the manner and within the period directed by a judge of the court of appeal.
EXPLANATION
Section 678.1 of the Criminal Code of Canada pertains to situations where a respondent, i.e., the person against whom an appeal is being filed, cannot be located despite reasonable efforts to serve them with a notice of appeal or an application for leave to appeal. In such cases, the notice of appeal or the notice of the application for leave to appeal may be served in a substitutional manner as directed by a judge of the court of appeal. This provision is significant as it ensures that the appeals process can move forward even when the respondent is unresponsive or cannot be found. It is important to note that the decision to serve the notice of appeal substitutionally is at the discretion of the judge, and they may direct a particular manner and period within which the service should be effected. Overall, section 678.1 aims to facilitate the appeals process in cases where the respondent is absent or cannot be served by traditional means. By providing a mechanism for substitutional service, this provision ensures that justice can be served even in challenging circumstances.
COMMENTARY
Section 678.1 of the Criminal Code of Canada allows for substitutional service of notices of appeal or applications for leave to appeal when a respondent cannot be located despite reasonable efforts. This provision is intended to ensure that parties who are interested in the outcome of an appeal are properly informed of its progress and have the opportunity to participate effectively in the process. The purpose of the notice of appeal is to inform the respondent of the decision that is being appealed and the grounds on which the appeal is being brought. This allows the respondent to respond to the appeal and to make submissions to the court. If the respondent cannot be located, the appeal may not proceed as intended, which could result in an unjust outcome. Substitutional service allows for the delivery of the notice of appeal or application for leave to appeal to a person expressly authorized by the court to receive it on the respondent's behalf. The court may direct that the notice be sent to a particular address, or it may authorize service in a more flexible manner, such as by email or by leaving a copy of the notice at the respondent's last known place of residence or employment. The decision to allow substitutional service is made by a judge of the court of appeal. The judge will consider the efforts that have been made to locate the respondent, the nature of the appeal, and any other relevant factors. The judge must be satisfied that the proposed method of service is likely to bring the notice to the respondent's attention. Substitutional service is not intended to replace traditional methods of service, such as personal service or service by registered mail. These methods should be attempted first, and substitutional service should only be used when they are unsuccessful. The reasonableness of the efforts to locate the respondent will depend on the circumstances of each case, but may include attempts to contact the respondent by phone or email, inquiries with family members or co-workers, and searches of public records or social media accounts. While substitutional service is a useful tool, it is important that it be used fairly and appropriately. It is essential that respondents be given a reasonable opportunity to participate in the appeal process and to make their case before the court. At the same time, however, it is important to recognize that there may be situations where a respondent cannot be located despite diligent efforts, and that in these circumstances, substitute service may be the only practical means of ensuring that the appeal process is carried out fairly and efficiently. In conclusion, Section 678.1 of the Criminal Code of Canada provides for the use of substitutional service in cases where a respondent cannot be located despite reasonable efforts. This provision is an important safeguard that helps to ensure that the appeal process is fair and effective. However, it should be used carefully and in a manner that respects the rights of all parties, and efforts to locate a respondent using traditional methods should be pursued before resorting to substitute service.
STRATEGY
When dealing with Section 678.1 of the Criminal Code of Canada, there are several strategic considerations that should be taken into account. If a respondent cannot be located after reasonable efforts have been made to serve them with a notice of appeal or application for leave to appeal, service may be affected by substitution with the permission of a court of appeal judge. There are several strategies that may be employed to ensure that this process is carried out effectively and efficiently. One important consideration is the need to ensure that all reasonable efforts have been made to locate the respondent before applying for substitutional service. This will generally involve a thorough search of all available public and private records, as well as efforts to contact the respondent's friends and family members. In order to ensure that this search is as comprehensive as possible, it may be helpful to engage the services of a private investigator or other professional who specializes in locating individuals. Another important consideration is the need to comply with all of the procedural requirements set out in the Criminal Code and the rules of the court of appeal. These requirements may vary depending on the jurisdiction in which the appeal is being heard, so it is essential to consult with a lawyer or other legal professional who is familiar with the specific jurisdiction in question. Once all reasonable efforts have been made to locate the respondent and all procedural requirements have been met, the next step is to apply to a court of appeal judge for permission to effect service by substitution. This will typically involve submitting an affidavit outlining the efforts that have been made to locate the respondent and explaining why it is necessary to effect service by substitution. The affidavit may also include any supporting documentation or witness statements that can help to establish the grounds for substitutional service. If the court of appeal judge grants permission to effect service by substitution, it will be necessary to determine the most appropriate method of doing so. This may involve placing a notice in a local newspaper, sending a registered letter to the respondent's last known address, or delivering the notice by hand to a trusted third party who can ensure that the respondent receives it. Ultimately, the goal of any strategy employed to comply with Section 678.1 of the Criminal Code of Canada is to ensure that the respondent is notified of the appeal or application for leave to appeal in a timely and effective manner. By taking a thorough and strategic approach to this process, it is possible to achieve this goal and ensure that the appeal or leave to appeal proceeds as smoothly as possible.