INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the criteria that must be considered in determining the likelihood of success for an application for a new trial.
SECTION WORDING
745.61(2) In determining whether the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice or judge shall consider the criteria set out in paragraphs 745.63(1)(a) to (e), with any modifications that the circumstances require.
EXPLANATION
Section 745.61(2) of the Criminal Code of Canada outlines the factors that must be considered when determining whether an applicant has demonstrated a substantial likelihood of success in their application for a faint sentence. This section is part of the overall framework for faint sentence applications, which allows individuals who have been convicted of serious crimes to apply for a reduction in their sentence if they meet certain criteria. The threshold for a successful faint sentence application is high, and applicants must demonstrate that there is a substantial likelihood that their application will succeed before a judge will consider granting them a reduced sentence. This means that they must show that they meet the criteria set out in other sections of the Criminal Code. Section 745.63(1)(a) to (e) outlines these criteria, which include factors such as the seriousness of the offence, the individual's level of responsibility for the crime, and any evidence of remorse or rehabilitation. In considering these criteria, judges may also take into account other factors that they deem relevant to the case, including the individual's personal circumstances, the impact of the crime on the victim, and the potential risk to society if the sentence is reduced. Overall, Section 745.61(2) is an important part of the framework for faint sentence applications in Canada, as it ensures that judges consider a comprehensive set of criteria when deciding whether to grant relief to convicted individuals. By requiring applicants to demonstrate a substantial likelihood of success, the provision helps to maintain the integrity of the criminal justice system while also allowing for compassionate and just outcomes in certain cases.
COMMENTARY
Section 745.61(2) of the Criminal Code of Canada is an important provision in the Canadian criminal justice system, as it outlines the criteria that must be considered by the Chief Justice or judge when determining whether an applicant has shown a substantial likelihood of success in their application for judicial review of a parole ineligibility period. This section of the Criminal Code recognizes that parole ineligibility can have a significant impact on the lives of convicted individuals and their families. When an individual is sentenced to a term of imprisonment, they may be eligible for parole after serving a certain portion of their sentence. However, for some crimes, the Criminal Code provides for a mandatory period of parole ineligibility, meaning that the convicted individual cannot apply for parole until they have served a minimum amount of their sentence. Under Section 745.6 of the Criminal Code, individuals who have been subject to a mandatory period of parole ineligibility can apply for judicial review of that period after serving one-third of their sentence. The purpose of this provision is to provide a mechanism for individuals to challenge the fairness and proportionality of their parole ineligibility period. To succeed in their application for judicial review, the applicant must show that there is a substantial likelihood of success. This essentially means that the applicant must provide evidence or argument that suggests that they have a strong case. Section 745.61(2) sets out the criteria that must be considered by the Chief Justice or judge in determining whether the applicant has met this threshold. The criteria set out in paragraphs 745.63(1)(a) to (e) relate to various factors that can impact the appropriateness of a parole ineligibility period. These factors include the nature and circumstances of the offence, the offender's culpability, the offender's previous behaviour, the offender's chances of rehabilitation, and any other relevant factors. Importantly, Section 745.61(2) provides for modifications to be made to these criteria as required by the circumstances. This recognizes that every case is unique, and that the criteria may need to be applied differently depending on the specific circumstances of the case. Overall, Section 745.61(2) is an important provision that ensures that individuals who are subject to a mandatory period of parole ineligibility have access to a fair and transparent process for challenging the appropriateness of that period. By setting out clear criteria for determining whether an application is likely to succeed, this section promotes consistency and fairness in the application of the law.
STRATEGY
Section 745.61(2) of the Criminal Code of Canada outlines the criteria that must be considered when determining whether an applicant has shown that there is a substantial likelihood that their application for an order for a new trial based on fresh evidence will succeed. This section of the Code is of particular importance to criminal defense lawyers who are considering bringing a fresh evidence application on behalf of a client. There are several strategic considerations to keep in mind when dealing with this section of the Code. The first strategic consideration is to carefully analyze the criteria set out in paragraphs 745.63(1)(a) to (e). These criteria include whether the evidence could not have been obtained with reasonable diligence at trial, whether the evidence is credible, whether the evidence is relevant, whether the evidence would have been admissible at trial, and whether the new evidence could reasonably be expected to have affected the verdict. A thorough understanding of these criteria is critical to determining whether an application for a new trial is likely to succeed. The second strategic consideration is to assess the strength of the new evidence. In order for an application for a new trial to be successful, the applicant must present evidence that is both credible and relevant. Defense counsel should carefully evaluate the new evidence to determine whether it meets these criteria. If the evidence is weak or unreliable, it may not be worth pursuing an application for a new trial. Another strategic consideration is to consider any modifications that may be required to the criteria in light of the specific circumstances of the case. For example, if the new evidence was obtained after the trial due to a change in technology, it may be necessary to modify the criteria related to the reasonable diligence requirement. A skilled defense lawyer will carefully analyze the circumstances of the case to determine whether modifications to the criteria are necessary. It is also important to consider the potential impact of the new evidence on the verdict. In order for an application for a new trial to be successful, the new evidence must be significant enough to reasonably be expected to have affected the verdict. Defense counsel should carefully evaluate the potential impact of the new evidence on the case and determine whether it is worth pursuing an application for a new trial. In terms of strategies that could be employed, defense counsel may choose to gather additional evidence to strengthen the case for a new trial. This may involve interviewing witnesses or conducting further investigations. Counsel may also seek to negotiate with the Crown to reach a resolution that avoids the need for a new trial. Overall, section 745.61(2) of the Criminal Code of Canada is a complex and nuanced provision that requires careful consideration and analysis. By understanding the criteria set out in the Code and carefully evaluating the strength of the new evidence, defense counsel can make informed strategic decisions when considering an application for a new trial.