Criminal Code of Canada - section 749 - Royal prerogative

section 749

INTRODUCTION AND BRIEF DESCRIPTION

This section preserves Her Majestys royal prerogative of mercy.

SECTION WORDING

749 Nothing in this Act in any manner limits or affects Her Majesty’s royal prerogative of mercy.

EXPLANATION

Section 749 of the Criminal Code of Canada is an important provision that preserves the royal prerogative of mercy. This section states that nothing in the Criminal Code can limit or affect this royal power. Essentially, Her Majesty the Queen (or her representative) has the power to grant clemency, pardon, or reprieve to individuals who have been convicted of criminal offences. The royal prerogative of mercy is a longstanding tradition that dates back to medieval England. It is a discretionary power that allows the monarch to show mercy and compassion to those who have been convicted of crimes. In Canada, the power is exercised by the Governor General, acting on behalf of the Queen. This power is important because it allows for a degree of flexibility in the criminal justice system. There may be situations where an individual has been convicted of a crime, but there are mitigating circumstances that make them deserving of mercy. For example, an individual may have committed a crime while suffering from mental illness or while under extreme duress. In these cases, the royal prerogative of mercy may be used to grant a pardon or reduce the sentence. Moreover, the royal prerogative of mercy provides a safeguard against miscarriages of justice. If new evidence emerges that casts doubt on a conviction, the Governor General can use this power to grant a pardon or order a new trial. In conclusion, Section 749 of the Criminal Code of Canada recognizes the importance of the royal prerogative of mercy and ensures that this power is preserved in the criminal justice system. This power can be used to show compassion in appropriate cases and to safeguard against wrongful convictions.

COMMENTARY

Section 749 of the Criminal Code of Canada is an important legal provision that safeguards the centuries-old royal prerogative of mercy. This section ensures that the Crown's authority to grant pardons, commutations, reprieves, and other forms of executive clemency remains intact, irrespective of the provisions under the Criminal Code. The section provides a clear and unmistakable message - the power to grant mercy lies solely with the Crown and cannot be undermined or superseded by any statutory provisions. The royal prerogative of mercy has been a hallmark of the Canadian justice system since its inception. Essentially, it was designed to address situations where the strict application of the law would result in an injustice or disproportionate punishment. The Crown's power to grant clemency allows it to intervene in exceptional cases where the criminal justice system has failed to take circumstances into account that warrant leniency or mercy. This can include, among other things, cases where an offender is terminally ill, has shown exemplary behavior during incarceration, or where new evidence emerges which casts doubt on the offender's guilt. Despite its long history, the scope of the royal prerogative of mercy has undergone significant transformations over the years. In the past, the power of the Crown to grant pardons was virtually unlimited and, typically, reserved for crimes that carried a capital sentence. However, over time, the range of offenses for which pardons can be granted has expanded alongside the reform of the criminal justice system. Today, the Crown has the power to grant pardons for less severe offenses as well. The intervention of the Crown through the royal prerogative of mercy had been instrumental in ensuring the ability of the Canadian justice system to provide some degree of flexibility and restraint that is appropriate for individual cases, without compromising on the principles of justice. This is because the courts can be limited in their ability to tailor sentences and have to apply precedents set out in previous cases as guidelines to limit their powers. The Crown's involvement provides an option for the criminal justice system to acknowledge and address different and exceptional circumstances of specific cases. However, despite the importance of this power, the royal prerogative of mercy has been subject to some controversy over the years. Critics argue that the process can be opaque and arbitrary, with decisions often being made behind closed doors. Additionally, the process of pardon and mercy can often be influenced by other factors such as political considerations. These criticisms have led to calls for greater transparency and accountability in the clemency-granting process. Regardless of the controversy surrounding the royal prerogative of mercy, it remains an integral part of the Canadian justice system. Section 749 of the Criminal Code ensures that the Crown's authority to grant mercy remains in effect, no matter the circumstances. This provision provides a crucial check on the power of the criminal justice system, as it recognizes that justice is not always served by the strict application of the law. As such, it remains an important safeguard to ensure that the justice system can account for situations requiring exceptional treatment of specific cases. Overall, Section 749 of the Criminal Code should be viewed as an acknowledgement of the importance of mercy as part of the Canadian justice system, and a recognition of the need to balance the rights of offenders against the need to punish and protect society. Consequently, it is important that the legal provisions that govern the royal prerogative of mercy are interpreted and applied fairly and equitably in order to reflect the evolving needs of society and the principles of justice.

STRATEGY

Section 749 of the Criminal Code of Canada embodies a provision that grants the Canadian monarch or the Governor-General the power to grant clemency or mercy in criminal cases. Specifically, this section serves as a safeguard against the rigid operation of the criminal justice system and ensures that the Crown can act where the consequences of strict enforcement would be unduly harsh. This essay discusses some strategic considerations when dealing with this section of the Criminal Code of Canada, alongside some strategies that could be employed. One strategic consideration to bear in mind is the manner and timing of making an application for a pardon. Applying for clemency after the conviction could be risky for an offender. This is because the court might view such an application as a sign of the offender's lack of remorse or attempt to evade the consequences of their actions. It could also leave the offender with a criminal record that could impede future career and life opportunities. Therefore, the best time to apply is before the conviction, as this helps to improve the offender's chances of being granted a pardon and avoiding a criminal record. This also highlights the importance of seeking legal advice when considering making a pardon application. Another strategic consideration is the need for a robust and comprehensive application. A pardon is not automatically granted by the Crown. As such, the application should be adequately prepared and well-argued. The application should include information such as the nature of the offense, the challenges that the offender is facing (such as mental health), the impact on the offender's community, rehabilitation efforts, and references from reputable members of society. The application should be tailored to the unique facts of the case and focus on the circumstances that mitigate the offender's culpability. In addition, it is important to consider the political climate when making a pardon application. The Crown has a duty to balance the interest of the offender against the public interest. This means that if there is public outrage over the offender's actions, a pardon is less likely to be granted. It is therefore important to be aware of the sensitivities of the case and ensure that the application is made at an appropriate time when the political environment is favorable. An effective strategy that could be used to increase the chances of a pardon being granted is to engage a pardon lawyer. These are lawyers who specialize in assisting individuals to obtain pardons. They have the expertise and knowledge of the pardon process and can provide guidance on making a robust application. They can also represent the offender in court, which is important when the application is being contested by the Crown or other interested parties. In addition, the offender should work on their rehabilitation. Rehabilitative efforts are a critical factor that is taken into consideration when granting a pardon. The efforts should be focused and should demonstrate a genuine commitment to change. They could include attending counseling sessions, support group meetings, and participating in community service. Rehabilitation efforts that are made before the conviction, alongside seeking clemency, may demonstrate to the court that the offender is sincere, remorseful, and has taken steps to turn their life around. Finally, it is important to ensure that the pardon application is in line with the objective of the Criminal Code of Canada. The purpose of granting mercy is to create a balance between justice and compassion, ensuring that the offender is given the opportunity to rehabilitate while also protecting the public. Therefore, when making an application, it is important to demonstrate that the interests of justice are being served by granting the pardon. In conclusion, Section 749 of the Criminal Code of Canada is a critical provision that provides for mercy or clemency in criminal cases. Strategic considerations should be taken into consideration when seeking a pardon, including the timing of the application, comprehensive preparation, the political climate, engaging a pardon lawyer, rehabilitation efforts, and ensuring that the objectives of the Criminal Code are met. By adopting a strategic approach, an offender can increase their chances of being granted mercy under Section 749 of the Criminal Code of Canada.