Criminal Code of Canada - section 679(7.1) - Release or detention pending new trial or new hearing

section 679(7.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section relates to the release or detention of a person pending a new trial ordered by the court of appeal or the Supreme Court of Canada.

SECTION WORDING

679(7.1) Where, with respect to any person, the court of appeal or the Supreme Court of Canada orders a new trial, section 515 or 522, as the case may be, applies to the release or detention of that person pending the new trial or new hearing as though that person were charged with the offence for the first time, except that the powers of a justice under section 515 or of a judge under section 522 are exercised by a judge of the court of appeal.

EXPLANATION

Section 679(7.1) of the Criminal Code of Canada deals with the process of releasing or detaining a person who has been ordered a new trial by the court of appeal or Supreme Court of Canada. The section specifies that the person in question should be treated as though they were charged with the offence for the first time, even if they have already been tried and convicted for the same offence. The section also specifies that the powers of a justice under section 515 or a judge under section 522 of the Criminal Code are exercised by a judge of the court of appeal. This means that the judge of the court of appeal is responsible for determining whether the person in question should be released on bail or detained pending the new trial or new hearing. The purpose of this section is to ensure that the process of releasing or detaining a person who has been granted a new trial is fair and consistent with the principles of justice. It guarantees that the person in question is given reasonable bail and detention conditions, and that the decision is made by an experienced judge who is aware of all the relevant facts and considerations. Overall, section 679(7.1) of the Criminal Code of Canada provides important protections for individuals who have been ordered a new trial. It ensures that their rights are upheld and that they receive fair treatment under the law.

COMMENTARY

Section 679(7.1) of the Criminal Code of Canada stipulates the procedures that apply in cases where a court of appeal or the Supreme Court of Canada orders a new trial for a person. The provision is essentially concerned with the release or detention of such a person while awaiting the new trial. It provides that the relevant section on the release or detention of an accused person, section 515 or 522, applies as though the person were being charged with the offence for the first time. However, the powers of a justice or judge under these sections are exercised by a judge of the court of appeal. The purpose of this provision is to ensure that a person who has been granted a new trial is not unfairly prejudiced. The person is treated as though they are being charged with the offence for the first time, which means that they are entitled to the same protections and procedures that apply to any person who has been charged with a criminal offence. Similarly, the provision is designed to prevent a person who has been granted a new trial from being unjustly detained pending the new trial. This provision essentially ensures that the legal rights of the accused person are protected during the course of the new trial. It ensures that the procedures followed during the new trial are not prejudicial to the accused and that they are not unfairly detained prior to the new trial. Moreover, the provision ensures that the powers of a justice or judge are properly exercised in cases where a new trial has been ordered. However, it is important to note that the provision only applies to cases where a new trial has been ordered by a court of appeal or the Supreme Court of Canada. It does not apply in cases where a new trial has been ordered by a trial court. In such cases, the relevant procedural rules are set out in section 524 of the Criminal Code of Canada. In conclusion, section 679(7.1) of the Criminal Code of Canada is an important provision that aims to ensure that the legal rights of an accused person are protected in cases where a new trial has been ordered. The provision ensures that the accused person is treated fairly and that they are not prejudiced in any way during the course of the new trial. Ultimately, the provision helps to maintain the integrity and fairness of the criminal justice system in Canada.

STRATEGY

Section 679(7.1) of the Criminal Code of Canada is an important provision that outlines the conditions for release or detention of a person pending a new trial or new hearing after a court of appeal or the Supreme Court of Canada orders one. This provision has several strategic considerations that parties involved in a criminal case should keep in mind when dealing with it. One important strategic consideration is the timing of the application for release or detention. In most cases, the party seeking release or detention will want to make the application as soon as possible after the order for a new trial or hearing is made. This is because the court may be more likely to grant release or impose less restrictive conditions if the accused has already been in custody for a long period of time. Additionally, early application allows the accused to avoid spending more time in jail or pre-trial detention, which can be stressful and harmful to their case. Another strategic consideration is the strength of the evidence against the accused. If the Crown's case is weak, the accused may have a better chance of being released on bail or having less onerous conditions imposed. This is because the court is more likely to view the risk of the accused reoffending or failing to appear in court as low if the evidence against them is weak. Conversely, if the Crown's case is strong, the accused may have a more difficult time being released on bail or may face more restrictive conditions. The nature of the offences the accused is charged with is also an important strategic consideration. If the accused is charged with a serious offence, such as murder, the court may be more likely to impose stricter release conditions or deny bail altogether. This is because the risk to the public and the severity of the charge are higher in such cases. Conversely, if the accused is charged with a less serious offence, such as a minor drug offence, the court may be more likely to grant bail or impose less restrictive conditions. Another consideration is the accused's personal circumstances, such as their ties to the community, employment status, and familial relationships. These factors can influence the court's decision on whether to grant bail or impose restrictions. For example, an accused with strong ties to the community and a stable job may be seen as less of a flight risk, while an accused with no ties to the community and no job may be seen as more of a flight risk. Strategies that could be employed to increase the likelihood of a successful release or less restrictive conditions include providing strong and compelling evidence to the court, such as character references or evidence of rehabilitation efforts, and proposing suitable release conditions that address any concerns the court may have regarding flight risk or public safety. Additionally, engaging a lawyer who is experienced in bail applications and who can make persuasive arguments to the court can also increase the chances of success. In some cases, it may also be necessary to seek the assistance of a bail bondsman or to offer a cash or property bond to secure release. In conclusion, section 679(7.1) of the Criminal Code of Canada is an important provision that sets out the conditions for release or detention of an accused person pending a new trial or new hearing. Parties involved in a criminal case should carefully consider the strategic implications of this provision, including the timing of the application, the strength of the evidence against the accused, the nature of the offences charged, and the accused's personal circumstances. Employing strategic tactics such as providing strong evidence, proposing suitable release conditions, and engaging experienced legal counsel can increase the chances of a successful outcome.