INTRODUCTION AND BRIEF DESCRIPTION
Section 752 of the Criminal Code of Canada defines the term court in relation to offenders and applications made under this Part.
SECTION WORDING
752 In this Part, "court" means the court by which an offender in relation to whom an application under this Part is made was convicted, or a superior court of criminal jurisdiction.
EXPLANATION
Section 752 of the Criminal Code of Canada provides a specific definition of the term "court" in relation to Part XXIV of the Code. Part XXIV concerns the process of making applications for criminal record suspensions, formerly known as pardons, which allow individuals with criminal records to have their past convictions set aside for certain purposes, such as employment or travel abroad. Under this section, the term "court" is defined as the court where the offender in question was originally convicted, or a superior court of criminal jurisdiction. This means that when an application for a criminal record suspension is made, it must be filed with the court that originally convicted the offender or a higher court with jurisdiction over the matter. This definition of "court" is important in ensuring that the proper court has jurisdiction over the application and can make a decision regarding the disposition of the offender's criminal record. It also emphasizes the importance of the original court in the offender's criminal proceedings, as it serves as a reference point for future legal actions related to that person's criminal record. Therefore, Section 752 of the Criminal Code of Canada plays a critical role in defining the jurisdiction and authority of courts in Part XXIV proceedings, ensuring that the proper legal procedures are followed and that the offender's rights and interests are protected throughout the process.
COMMENTARY
Section 752 of the Criminal Code of Canada defines the term 'court' in relation to the Part of the Code that deals with making applications for a review of a conviction and sentence. Essentially, this section defines the appropriate jurisdiction for such a review. The definition of 'court' as presented in this section is fairly straightforward. It specifies that the court that handled the original conviction is the one that should hear any applications for a review of that conviction or sentence. Alternatively, a superior court with criminal jurisdiction could also hear such applications. This definition is important because it clarifies the procedural rules for seeking a review. Without a clear definition of 'court', there might be some confusion about where to file an application or which court has the authority to hear the case. This could lead to delays or other complications in the review process. Additionally, it's worth noting that this definition assumes that the offender has already been convicted. This section of the Criminal Code is not intended to be used by individuals who have not yet been found guilty of an offence. Rather, it is a tool for those who have already been convicted and are seeking a review of the verdict or sentence. The fact that the definition of 'court' includes both the convicting court and a superior court of criminal jurisdiction is also significant. In some cases, it may be appropriate for an application for review to be heard by a court with a higher level of authority or expertise. For example, if a case involves complex legal issues or questions of constitutional law, a higher court might be better equipped to handle the matter. Overall, section 752 is an important component of the Criminal Code because it defines the appropriate jurisdiction for applications for a review of conviction and sentence. By providing a clear definition of 'court', this section helps to ensure that the review process is handled efficiently and fairly.
STRATEGY
Section 752 of the Criminal Code of Canada is an essential part of the process for accused persons who have been convicted and may need to make an application for a review of their conviction and sentence. This Section provides information on the court that will handle such applications, and as such, it is crucial for lawyers and defendants to strategize carefully how they will approach this process. One of the main strategic considerations when dealing with Section 752 is the court that will handle the application and the nature of the convictions. As mentioned, the court that handles the application must be the same court where the offender was convicted. However, there might be situations where a more superior court of criminal jurisdiction is needed. For instance, if the offender was convicted on summary conviction, they may be able to make an application to the provincial court of the relevant province. However, if the conviction was for an indictable offence, they might need to make an application to a superior court of criminal jurisdiction such as the Ontario Court of Justice. Therefore, it is essential to understand the nature of the convictions and the kind of court that will handle an application before taking any steps. Another strategic consideration is to be familiar with the exact requirements of Section 752. The Section provides several different grounds for an offender to make an application for a review of conviction and sentence. These include material evidence, new evidence, and possible errors by the trial judge during the trial process. As such, it is crucial to gather and analyze all the relevant evidence that may be required for the application. Comprehensive preparation and review of the evidence that has been collected is essential before deciding to make an application under this Section. Furthermore, it is advisable from a strategic point of view to consult with a knowledgeable and experienced criminal defense lawyer. They can guide the accused person on the strength of their case, the likelihood of success for any application and also help them to prepare adequately in case of a legal battle. In terms of strategies employed when dealing with Section 752, lawyers may choose to focus more on cases with potential grounds for appeal. For instance, an appeal may successfully overturn a verdict if new evidence that could have been reasonably discovered before the trial process comes to light. Some lawyers may focus on identifying possible evidentiary issues and ensuring that the courts deal with them before the trial stage, as this may avoid potentially costly and lengthy applications under Section 752. In summary, strategic considerations when dealing with Section 752 include understanding the nature of the convictions and the court that will handle the application. Defense lawyers should be strategically proactive in gathering evidence for their clients and considering whether to proceed with the application process. It is vital to highlight that this process can often be lengthy, costly, and frustrating, and as such, it is best to have a legal professional by your side to guide you throughout the process.