INTRODUCTION AND BRIEF DESCRIPTION
Section 764(3) of the Criminal Code of Canada states that sureties of an accused are released if the accused is sent to prison before trial.
SECTION WORDING
764(3) The sureties of an accused who is bound by recognizance to appear for trial are discharged if he is committed to prison pursuant to subsection (2).
EXPLANATION
Section 764(3) of the Criminal Code of Canada deals with the discharge of sureties of an accused who is bound by recognizance to appear for trial, in the event that the accused is committed to prison pursuant to subsection (2). Recognizance refers to a written agreement or promise made by an accused person before a judge or justice of the peace, typically requiring the accused to appear in court at a future date, to keep the peace, or to adhere to other conditions. Essentially, this section means that if an accused person is released on recognizance but ultimately fails to appear for trial and is subsequently committed to prison, the sureties who had pledged to ensure the accused's compliance with the recognizance will no longer be responsible for upholding that pledge. Commitment to prison in this context means that the accused has been taken into custody and is being held behind bars until their trial or until some other legal decision is made regarding their release. The purpose of this section is to provide some measure of protection for sureties, who are often family members or friends of the accused who offer a financial guarantee that the accused will abide by the terms of their recognizance. In the event that the accused is unable or unwilling to fulfill their obligations under the recognizance, the sureties could be held liable for any financial damages or other consequences arising from the accused's failure to comply. By discharging the sureties once the accused is committed to prison, the section is designed to prevent this potential liability from being unfairly imposed upon those who had acted in good faith to support the accused's original release on recognizance.
COMMENTARY
Section 764(3) of the Criminal Code of Canada refers to the discharge of sureties of an accused who is bound by recognizance to appear for trial if they are committed to prison pursuant to subsection (2). The purpose of this section is to ensure that the sureties of an accused are not held responsible for the accused's non-compliance with the terms of their recognizance. The provision recognizes that unforeseen incidents can occur which may result in the accused being unable to fulfill their obligations under the recognizance. This may happen, for example, if the accused is arrested and remanded in custody. The term 'recognizance' is derived from the Latin term recognoscere, which means 'to acknowledge.' In Canadian criminal law, a recognizance is a written promise made by an accused to do or refrain from doing something as a condition of their release from custody. The accused may be required to promise to attend court when required to do so, not to commit further offences, not to associate with certain people or places, and to keep the peace and be of good behaviour. Essentially, the recognizance acts as a type of security for the court, as it ensures that the accused will return to court and comply with the conditions of their release. The sureties of an accused are individuals who vouch for the accused's character and promise to forfeit a sum of money if the accused does not comply with the conditions of their recognizance. The sureties must also promise to keep the accused in custody if they fail to comply with those conditions. By agreeing to be a surety, the individuals are essentially taking on a significant level of risk and responsibility, as they are putting their own financial security on the line. Section 764(3) of the Criminal Code of Canada acts as a safeguard to ensure that the sureties are not penalized for something that is outside of their control. If the accused is arrested and remanded in custody, the sureties will not be held responsible for the accused's failure to comply with their recognizance. Instead, they will be discharged from their obligations and their financial security will be returned. It is worth noting that this provision is not applicable in all cases. Section 764(3) only applies if the accused is committed to prison pursuant to subsection 2. Subsection 2 refers to situations where the accused is arrested on a bench warrant, or where they are arrested on a warrant that is issued because they failed to appear in court as required. Therefore, if the accused is remanded in custody for any other reason, such as if they were arrested on a new charge or if they consented to a remand, the sureties will still be required to fulfill their obligations. In conclusion, Section 764(3) of the Criminal Code of Canada plays an important role in protecting the sureties of an accused who is bound by recognizance. It recognizes that unforeseen incidents can occur which may result in the accused being unable to fulfill their obligations, and ensures that the sureties are not held responsible for circumstances beyond their control. The provision serves to balance the interests of the court, the accused, and the sureties, and plays an important role in maintaining a fair and just criminal justice system.
STRATEGY
Section 764(3) of the Criminal Code of Canada is a provision that outlines the circumstances under which sureties of an accused who is bound by recognizance to appear for trial are discharged. This may occur if the accused is committed to prison pursuant to subsection (2). As such, there are strategic considerations that lawyers and defendants must take into account when dealing with this section of the Criminal Code. One of the primary strategic considerations that lawyers must take into account is the nature of the client's case. Specifically, this provision is relevant for cases where the accused is out on bail and is required to appear in court for trial. If the accused is committed to prison, this can cause significant problems for the sureties who agreed to take responsibility for the accused's appearance in court. As such, it may be useful for lawyers to urge their clients to abide by the terms of their bail agreement and take steps to ensure that they do not violate any of the conditions. Another strategic consideration involves working closely with the prosecution to negotiate a mitigation of the charges against the accused. Things like plea bargaining or admission of guilt could be used, which could lead to a lessening of the charges and a reduced sentence. This would then result in the accused spending less time in jail, which could help protect the sureties from the potential financial burden associated with defaulting on bail. Furthermore, lawyers could consider soliciting the assistance of professional bail bondsmen. Bail bondsmen can help cover a significant portion of the bail amount, thus shifting some of the financial burden from the sureties to these professionals. This can help sureties avoid the hardship that comes with defaulting on bail, especially if they are required to pay the full bail amount in the event of the accused's incarceration. Lastly, it is crucial to have a thorough understanding of the obligations imposed on sureties by the Criminal Code. In this regard, lawyers must ensure that their clients are aware of the risks involved in acting as sureties. These risks can include financial burden, reputational damage, and legal implications of the accused's actions on the part of the sureties. Clients must understand the gravity of these consequences before agreeing to act as sureties. In conclusion, it is critical to adopt appropriate strategies when dealing with section 764(3) of the Criminal Code of Canada. These strategies may include working to mitigate the charges against the accused, enlisting the assistance of professional bail bondsmen, ensuring clients fully understand their obligations, and abiding by the terms of the bail agreement. By adopting these strategies, lawyers and defendants can avoid the potential pitfalls and repercussions associated with defaulting on bail and ensure protection for the sureties.