INTRODUCTION AND BRIEF DESCRIPTION
A court of appeal may make any additional order it deems necessary when exercising its powers under certain subsections of Section 686.
SECTION WORDING
686(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
EXPLANATION
Section 686(8) of the Criminal Code of Canada gives the court of appeal vast powers to make any necessary orders in a case where it is deemed appropriate. The provision states that where the court of appeal exercises certain powers under subsections (2), (4), (6), or (7), it may also make any other order that is just in the circumstances. The powers conferred by subsections (2), (4), (6), and (7) relate to the powers of a court to allow or dismiss appeals, to order new trials or inquiring into verdicts, and to order the quashing of convictions or forfeitures. Therefore, court of appeal can review any of these decisions made at the trial level and make any further orders as justice requires. This provision acknowledges that the court of appeal has the authority to correct any errors made in the lower courts, and it also recognizes that a court of appeal is in a better position to make an order that reflects the interest of justice. Some orders that a court of appeal may make under subsection (8) include ordering a retrial of the accused, staying the proceedings, issuing a different sentence, or ordering a new trial for a different offence. The provision, therefore, allows the court of appeal to make any necessary orders to ensure that justice is served in the case, and it demonstrates that the court of appeal has the discretion to make any order deemed appropriate to maintain the integrity of the process.
COMMENTARY
Section 686(8) of the Criminal Code of Canada is an important provision that authorizes the court of appeal to make any order that justice requires, in addition to the powers conferred under subsections (2), (4), (6), or (7). This provision allows the court of appeal to take into account various factors when rendering its decision on an appeal, beyond the immediate scope of the criminal offence and the procedural rules. One key advantage of this provision is that it enables the court of appeal to consider diverse interests beyond legal technicalities. For example, the court may order restitution for the victim, compensation for the accused or even refer the case to a specialized court. By doing so, the court can address the social, economic, and psychological impacts that may result from a criminal conviction. This approach recognizes that criminal offences often have wide-ranging effects on individuals and communities, and that remedies may not always be straightforward. Moreover, the flexibility afforded by this provision allows the court to respond to changing social circumstances. For instance, the court may have to weigh the impact of the COVID-19 pandemic on the administration of justice and the welfare of the accused or the victim. The provision grants the court of appeal wide discretion to take whatever action it deems appropriate to ensure justice is served, and allows protection for individuals against the impacts of unforeseen circumstances. However, this provision can also pose potential challenges. For instance, there could be concern that the provision may open the door to inconsistent judgments among various appellate courts. The varying perspectives of judges on what constitutes an order that "justice requires," may result in confusion and create disparities in judgments. To mitigate this potential dilemma, a clear guideline on the scope of the provision may need to be established. Similarly, the subjectivity of what constitutes an order that "justice requires" may allow for the possibility of judicial overreach. It might become tempting for the court to go beyond its authority to pursue a social or political agenda. In this scenario, the interests of the victim might be disregarded as the judge focuses on a broader consideration of justice that may not be acceptable to everyone. Overall, section 686(8) of the Criminal Code of Canada serves an essential function. It provides the court of appeal with the flexibility to consider diverse interests when rendering its judgments, which reflects the changing circumstances in society. This provision allows the court to take a more holistic approach in ensuring justice is maintained throughout criminal proceedings and beyond. However, to remain effective, there must be clear limitations and guidelines in place to ensure that the court's actions under this section remain within the scope of their jurisdiction.
STRATEGY
Section 686(8) of the Criminal Code is a crucial provision that empowers a court of appeal to make any order that justice requires when exercising the powers conferred by subsections (2), (4), (6), or (7). This section gives the appellate court broad discretionary powers to remedy any injustice that may have occurred in the lower court. However, due to the discretionary nature of this section, its use requires strategic considerations to ensure that the interests of justice are served. One of the primary strategic considerations when dealing with section 686(8) is the need to balance the interests of the parties involved. The power conferred by this section could have far-reaching implications, and the court must weigh the potential consequences of the order against the interests of the parties involved. The court must consider whether the order will serve justice or cause further harm. For example, an order that requires a retrial may cause inconvenience, expenses, and stress to the defendant or victim, and the court must determine the necessity of such an order. Another strategic consideration when dealing with section 686(8) is the need to provide clear and cogent reasons for the order. Since the power conferred by this section is discretionary, the appellate court must provide reasons for its decision. The court must explain why the order is necessary to serve the interests of justice. Failure to provide clear and cogent reasons may result in the order being overturned on appeal. In addition, when dealing with section 686(8), a strategic consideration is the need to consider the potential precedential effect of the order. The court must consider whether the order may set a precedent that could be followed by other courts. The court must ensure that the order is consistent with existing legal principles and does not create new legal precedents that may have unintended consequences. Strategies that could be employed when dealing with section 686(8) include seeking the advice of expert lawyers, analyzing the facts of the case, and understanding the legal principles involved. It is also essential to research legal precedents and case law that may be relevant to the case in question. Other strategies could include proposing alternative remedies, such as a conditional discharge, community service, or probation, which may serve the interests of justice without causing undue harm to the parties involved. This approach may also be useful in cases where a retrial is not necessary but a remedy is still required. In conclusion, section 686(8) of the Criminal Code of Canada is a powerful provision that empowers the appellate court to make any order that justice requires. However, the discretionary nature of this section requires strategic considerations to ensure that the interests of justice are served. The court must balance the interests of the parties involved, provide clear and cogent reasons for the order, consider the potential precedential effect of the order, and seek alternative remedies where possible. These strategies will ensure that the power conferred by section 686(8) is used judiciously and in the interests of justice.