Criminal Code of Canada - section 679(5)

section 679(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions for an appellants release upon application approval by the judge of the court of appeal.

SECTION WORDING

679(5) Where the judge of the court of appeal does not refuse the application of the appellant, he shall order that the appellant be released (a) on his giving an undertaking to the judge, without conditions or with such conditions as the judge directs, to surrender himself into custody in accordance with the order, or (b) on his entering into a recognizance (i) with one or more sureties, (ii) with deposit of money or other valuable security, (iii) with both sureties and deposit, or (iv) with neither sureties nor deposit, in such amount, subject to such conditions, if any, and before such justice as the judge directs, and the person having the custody of the appellant shall, where the appellant complies with the order, forthwith release the appellant.

EXPLANATION

Section 679(5) of the Criminal Code of Canada outlines the rules for releasing an appellant who has applied for an appeal in a court of appeal. Under this section, if the judge of the court of appeal does not refuse the appellant's application, they shall order that the appellant be released on certain conditions. These conditions include the appellant giving an undertaking to the judge to surrender themselves into custody in accordance with the order, or entering into a recognizance with one or more sureties, deposit of money or other valuable security, or both, in such amount and subject to such conditions as the judge directs. The purpose of this section is to ensure that individuals who have been granted an appeal will comply with the conditions set by the court and show up in court when required. It provides a way for the court to allow the appellant to be released from custody while still ensuring that they will not abscond and avoid facing the consequences of their alleged criminal actions. In summary, Section 679(5) of the Criminal Code of Canada is an essential provision that safeguards the appeal process in criminal cases. It helps to strike a balance between the rights of the accused and the need to maintain public safety and ensure that justice is served.

COMMENTARY

Section 679(5) of the Criminal Code of Canada lays out the conditions under which an appellant may be released by the judge of the court of appeal pending the outcome of their appeal. This provision is an essential safeguard of the fundamental rights of an accused person, and it balances the interests of the accused with those of society. The section provides two options for the release of the appellant, either through an undertaking or through a recognizance. An undertaking is a promise made by the appellant to the judge that they will surrender themselves into custody in accordance with the order. This option is open to the appellant without any conditions or with such conditions as the judge directs. This undertaking is a vital mechanism as it ensures that the appellant will be present for the appeal proceedings, as well as being available to serve any sentence if the appeal is unsuccessful. A breach of such an undertaking is a criminal offense and may attract severe consequences, including revocation of the appellant's release. The second option available to the court is to allow the appellant to enter into a recognizance. This recognizance could be with one or more sureties, with deposit of money or other valuable security, or both sertuies and deposit; the appellant may also be allowed to enter into a recognizance with neither sureties nor deposit. The amount and conditions of the recognizance are set and governed by the judge directing the recognizance. The justice before whom the appellant enters into the recognizance has the power to enforce the recognizance and may call upon the sureties to pay the specified amount should the appellant fail to adhere to the conditions of the recognizance. This provision constitutes a powerful assurance of the presence of the appellant for their appeal, as well as ensuring that they will submit to any sentence in the case that the appeal fails. This provision in the Criminal Code of Canada provides for the release of the appellant on conditions that ensure the adherence of the appellant to the decision of the court of appeal. It aims to strike a balance between protecting society's interests while also protecting the rights of the accused. The provision acknowledges the need for the appellant to participate in the appeal process while providing safeguards against any potential abscondment. Furthermore, this provision indirectly serves to reduce the number of individuals in custody, thus reducing the burden on the criminal justice system and reducing the potential for overcrowding of correctional facilities. In conclusion, Section 679(5) of the Criminal Code of Canada is a necessary element in the criminal justice system, providing vital protection for the rights of the accused while also ensuring that society's interests are safeguarded. The provision balances these interests and promotes public trust in the criminal justice system.

STRATEGY

Section 679(5) of the Criminal Code of Canada pertains to the release of an appellant from custody pending the disposal of their appeal by the court of appeal. This section provides for two methods of release: (a) the appellant being released on an undertaking to surrender themselves in custody in accordance with the order, or (b) the appellant entering into a recognizance with one or more sureties, with deposit of money or other valuable security, with both sureties and deposit, or with neither sureties nor deposit. When dealing with this section of the Criminal Code of Canada, there are various strategic considerations that need to be taken into account, and strategies that could be employed. The first strategic consideration is whether to seek release under an undertaking or a recognizance. The decision will depend on various factors, including the seriousness of the offence, the appellant's criminal record, their ties to the community, and the likelihood of them attending court and complying with any conditions of release. If the appellant has a prior criminal record or poses a flight risk, the court may require a more onerous form of release, such as a recognizance with sureties and/or a deposit. The second strategic consideration is the conditions of release that should be sought. The conditions of release will depend on the particular circumstances of the case and the concerns of the court, but may include a curfew, a prohibition on contact with certain individuals, a requirement to surrender a passport, or a ban on leaving the jurisdiction. The conditions should be tailored to the appellant's specific circumstances and should be designed to minimize the risk of reoffending or failing to attend court. The third strategic consideration is the amount of the recognizance or deposit. This will depend on various factors, including the seriousness of the offence, the appellant's financial resources, and the ability of any sureties to satisfy the recognizance in the event of a breach. The amount of the recognizance or deposit should be set at a level that is sufficient to ensure the appellant's attendance in court and compliance with any conditions, while also being realistic and commensurate with the risk. The fourth strategic consideration is the choice of sureties. Sureties should be chosen carefully and should be individuals who know the appellant well, have a good reputation in the community, and have the financial resources to satisfy the recognizance in the event of a breach. It may also be advisable to choose sureties who are willing to monitor the appellant's compliance with the conditions of release and to report any breaches to the court. The fifth strategic consideration is the timing of the application for release. It is important to make the application for release as soon as possible, as delays in the processing of the appeal can result in the appellant spending an extended period of time in custody. Additionally, if the appellant has been denied release at a lower court, it may be advisable to wait until the appeal is heard at the court of appeal before making the application for release. In conclusion, section 679(5) of the Criminal Code of Canada provides for various options and strategies for seeking release pending the disposal of an appeal. When dealing with this section, it is important to carefully consider the particular circumstances of the case and to tailor the strategy to the individual circumstances of the appellant. By doing so, counsel can increase the likelihood of a successful application for release and minimize the risk of the appellant spending an extended period of time in custody.