INTRODUCTION AND BRIEF DESCRIPTION
The court can detain an accused or require additional sureties until they are sentenced.
SECTION WORDING
764(2) Notwithstanding subsection (1), the court, justice or provincial court judge may commit an accused to prison or may require him to furnish new or additional sureties for his appearance until he is discharged or sentenced, as the case may be.
EXPLANATION
Section 764(2) of the Criminal Code of Canada gives courts, justices, or provincial court judges the discretion to require an accused person to remain in prison or provide additional sureties for their appearance until their case is resolved. This provision is particularly relevant in cases where there is a concern that the accused may flee or not show up for trial. The Criminal Code of Canada is the primary legislative document that outlines criminal law across Canada. It sets out the various offences that are criminal and the penalties associated with them. It also establishes procedures for how criminal cases are processed and the rights of accused persons. Section 764 of the Criminal Code of Canada relates specifically to the release of accused persons pending trial or sentencing. Section 764(1) sets out the general rule that an accused is entitled to be released unless they pose a flight risk, pose a danger to the public, or it is necessary to maintain public confidence in the administration of justice. However, under section 764(2), even if an accused meets the criteria for release, the court, justice, or provincial court judge can still order them to remain in custody or provide additional sureties as a precautionary measure. This provision is important because it allows courts to ensure that accused persons appear for their trial or sentencing. If an accused person fails to show up for their court date, it can cause delays and complications in the legal process. Furthermore, if they are found guilty, it may become more challenging to carry out the sentence if they are not in custody. In conclusion, section 764(2) of the Criminal Code of Canada gives courts the power to take additional precautions in cases where they deem it necessary. This provision allows them to help ensure that the administration of justice proceeds smoothly and that the rights of all parties involved are respected.
COMMENTARY
Section 764(2) of the Criminal Code of Canada provides courts with the authority to issue a committal order or require additional sureties for an accused, even after they have been released on bail. This section is important for ensuring that accused persons attend their court proceedings and do not pose a threat to the community while awaiting trial. The subsection acknowledges that while an accused person has a right to be released on bail, there are circumstances where the court may need to take further action to ensure their attendance in court. For example, an accused may fail to show up for a court date, or may breach the conditions of their release. In these situations, the court may issue a committal order, which is essentially a warrant for the arrest of the accused. This is an important tool for holding individuals accountable for their actions and ensuring that they do not evade justice. The subsection also allows the court to require additional sureties for an accused's appearance in court. A surety is a person who agrees to take responsibility for an accused's release on bail and ensure that they attend their court proceedings. Requiring additional sureties can provide added security for the court and the community, particularly in cases where the accused is considered a flight risk or a danger to others. While these measures are necessary in certain circumstances, it is important to remember that they should be used sparingly. Detaining an accused person can have significant consequences, such as loss of employment, disruption to family life, and damage to their mental health. Therefore, it is important that the court only issues a committal order or requires additional sureties when there is a genuine concern about the accused's behaviour and not simply as a punitive measure. This subsection also highlights the importance of the bail process. Bail serves as an alternative to pre-trial detention, and allows accused persons to remain in the community while their criminal charges are being heard in court. By providing a means for an accused to be released on bail, the criminal justice system upholds the presumption of innocence and ensures that individuals are not unfairly punished before a verdict is reached. Section 764(2) of the Criminal Code recognizes the role of the bail process in the Canadian justice system while simultaneously providing the court with the authority to take further action when necessary. In conclusion, Section 764(2) of the Criminal Code of Canada is a valuable tool for ensuring that accused persons attend their court proceedings and that the community is kept safe. However, it is important to exercise caution when using this section, as detaining an accused can have significant consequences. The bail process remains an important part of the criminal justice system, and should continue to be utilized whenever possible.
STRATEGY
Section 764(2) of the Criminal Code of Canada provides the court, justice, or provincial court judge with the power to commit an accused person to prison or require them to furnish new or additional sureties for their appearance until they are discharged or sentenced. This section of the Code is an important strategic consideration in criminal proceedings, and there are several strategies that can be employed when dealing with it. One strategy is to avoid the need for detention or sureties altogether by requesting a release on recognizance (ROR). An ROR is a type of bail that allows an accused person to be released from custody without having to provide financial sureties or pay bail. Instead, the accused must promise to appear in court on the scheduled dates and follow certain conditions, such as not contacting certain individuals or not leaving their residence without permission. Applying for an ROR requires providing evidence to the court that the accused is not a flight risk, poses no danger to the public, and has strong ties to their community and employment. If an ROR is not granted, another strategy is to negotiate the terms of detention or sureties to make them more manageable for the accused. For example, the accused could request a reduced amount of sureties, or agree to a curfew or monitoring program in exchange for release from custody. It may also be possible to negotiate the conditions of detention to ensure that the accused has access to necessary medical treatment, education, or other support services. A third strategy is to challenge the need for detention or sureties on the basis of their proportionality. Section 764(2) of the Criminal Code states that detention or sureties should only be imposed if they are necessary for ensuring the accused's appearance in court or for protecting the public. If the Crown cannot demonstrate that the accused poses a flight risk or a danger to the public, the court may be reluctant to require detention or sureties. Similarly, if the amount of sureties required is excessive and would cause undue hardship for the accused, the court may be open to reducing the amount required. Overall, dealing with section 764(2) of the Criminal Code requires a careful balancing of several factors, including the accused's rights, the safety of the public, and the need for the accused to appear in court. By carefully considering these factors and employing the strategies outlined above, it may be possible to minimize the imposition of detention or sureties and ensure a fair and just outcome for all parties involved in the criminal proceeding.