section 745.61(5)

INTRODUCTION AND BRIEF DESCRIPTION

If there is a substantial likelihood of success, a superior court judge will empanel a jury to hear an applicants case.

SECTION WORDING

745.61(5) If the Chief Justice or judge determines that the applicant has shown that there is a substantial likelihood that the application will succeed, the Chief Justice shall designate a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application.

EXPLANATION

Section 745.61(5) of the Criminal Code of Canada outlines the process for a convicted individual to apply for a new trial based on fresh evidence. This provision allows the Chief Justice or judge to designate a judge from the superior court of criminal jurisdiction to empanel a jury to hear the application. The convicted individual seeking a new trial must demonstrate that there is a substantial likelihood that the application will succeed. This means that the fresh evidence must be relevant, credible, and capable of raising a reasonable doubt about the accuracy of the conviction. The judge assigned to the case will review the evidence and determine if there is a reasonable prospect of acquittal. If the judge determines that the application has a substantial likelihood of success, they will designate a judge from the superior court of criminal jurisdiction to empanel a jury to hear the case. The designated judge will then call for a jury selection and preside over the new trial. The purpose of this provision is to ensure that convicted individuals have the opportunity to present fresh evidence that could exonerate them if it was not available at the time of their original trial. It provides a mechanism for conducting a fair and impartial review of the evidence and allows for the possibility of correcting a wrongful conviction. Overall, section 745.61(5) of the Criminal Code of Canada reflects the importance of the Canadian justice system in upholding principles of fairness and justice, while protecting the rights of individuals who have been wrongfully convicted.

COMMENTARY

Section 745.61(5) of the Criminal Code of Canada deals with the process for obtaining a new trial after a conviction has already been handed down. Specifically, this section lays out the role of the Chief Justice or judge in determining whether an applicant has shown a substantial likelihood that their application will succeed, and designating a judge of the superior court of criminal jurisdiction to empanel a jury to hear the application. The purpose of this section is to provide a mechanism for individuals who believe they have been wrongfully convicted to seek redress through the courts. It recognizes that the criminal justice system, while generally effective, is not infallible, and there may be cases where mistakes are made or evidence is discovered after a conviction that could have changed the outcome of the trial. The test for whether an application will succeed is a high one - the applicant must show a "substantial likelihood" that their application will be granted. This is a deliberately stringent test, intended to ensure that the process is not abused by those who simply want to have another shot at overturning their conviction without a valid basis for doing so. Assuming the applicant meets this standard, the Chief Justice or judge is then responsible for designating a judge to empanel a jury to hear the application. The use of a jury in this context is important, as it ensures that the decision-making process is transparent, and that there is a high degree of public scrutiny applied to the process. One of the challenges with the application process outlined in section 745.61(5) is that it can be time-consuming and expensive. Applicants typically need to hire legal counsel to make their case effectively, and may need to present new or additional evidence that was not available at the original trial. This can require extensive research, expert testimony, and other resources that can be difficult for some individuals to obtain. Overall, section 745.61(5) is an important part of the Canadian criminal justice system, as it provides a mechanism for individuals who believe they have been wrongfully convicted to seek redress through the courts. However, there are some potential challenges with this process, including the high standard of proof required, the potential expense of hiring legal counsel, and the time-consuming nature of the application process. Despite these challenges, however, the existence of this section is a testament to Canada's commitment to ensuring that justice is served, even in cases where mistakes have been made in the original trial.

STRATEGY

Section 745.61(5) is a crucial provision of the Criminal Code of Canada as it outlines the procedure for convicted persons seeking to have their sentences reviewed and possibly reduced under certain conditions. The section requires the applicant to demonstrate to the Chief Justice or a judge that their application for review has a substantial likelihood of success. This requirement places a significant burden on the applicant, and thus, various strategic considerations must be taken. One of the most critical strategic considerations when dealing with section 745.61(5) is the need to present a strong and compelling case that would convince the Chief Justice or judge that the application has a substantial likelihood of success. The application must be well-prepared and clearly highlight the grounds for review, including any factual or legal errors that may have impacted the sentencing decision. In this regard, it may be beneficial to have a legal team that has experience in sentencing reviews and understands the intricacies of this provision. Another critical strategic consideration is the need to ensure that the application is filed within the prescribed timelines as failure to do so may result in the dismissal of the application. For instance, an application for review of sentence under this provision must be made within 90 days of the date of sentence or within such longer time as the Chief Justice may permit. It is also essential to consider the potential consequences of failing to satisfy the substantial likelihood test. If the court determines that the application has no substantial likelihood of success, the application will be dismissed, and the applicant will not be entitled to another review of their sentence, except in exceptional circumstances. Therefore, it is critical to ensure that the application is well-supported and meets the criteria set out in this provision. In the preparation of the application, it may be helpful to undertake extensive research on the relevant sentencing principles, case law, and guidelines. This would enable the applicant to make strong arguments in support of the application and demonstrate that the sentence imposed was inappropriate or unjust. The use of persuasive legal authorities and case law is critical in convincing the reviewing court that the sentence was flawed and should be reviewed. Another strategic consideration is the selection of the judge who will empanel the jury to hear the application. The judge must be impartial and experienced in matters of sentencing. Therefore, it is critical to undertake thorough research on the judge's profile, his or her previous rulings regarding sentencing reviews, and any other relevant information that may be beneficial to the application. In conclusion, section 745.61(5) of the Criminal Code of Canada provides a mechanism for convicted persons seeking to have their sentence reviewed and possibly reduced. However, meeting the substantial likelihood test is the key challenge. To achieve this, the applicant must present a well-prepared and persuasive case, file the application within the prescribed timelines, and undertake extensive research of the relevant sentencing principles and guidelines. Additionally, the selection of an appropriately experienced and impartial judge is critical. By employing these strategies, applicants can increase their likelihood of success in sentencing review applications.