INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the process for endorsing a committal on a recognizance.
SECTION WORDING
766(3) Where a court, justice or provincial court judge issues an order under subsection (1) and receives from the sheriff a certificate that the person named in the order has been committed to prison pursuant to subsection (2), the court, justice or provincial court judge shall order an entry of the committal to be endorsed on the recognizance.
EXPLANATION
Section 766(3) of the Criminal Code of Canada specifies the procedure to be followed when a person who has been released on a recognizance fails to comply with the conditions attached to their release. In such cases, a court, justice, or provincial court judge may issue an order for the person's arrest and detention. This order is issued under subsection (1) of Section 766 and gives the police the power to arrest the person and bring them before a court. Subsection (2) of Section 766 provides that if the court, justice, or provincial court judge is satisfied that the person has failed to comply with their recognizance conditions, they may order the person's detention in jail until the end of their trial or until further order. In other words, if an accused person violates the conditions of their release, they could be sent to jail without bail. Section 766(3) then requires the court, justice, or provincial court judge to order that the committal of the accused be noted on the recognizance. This means that the court must ensure that there is a record of the accused's detention on their recognizance document. This becomes important in circumstances where the accused may be granted bail again in the future. If the accused is granted bail again, the new recognizance will reflect the fact that they were previously incarcerated due to a violation of their release conditions. Overall, Section 766(3) aims to ensure that there is clarity and transparency in the legal process related to an accused person's detention and release. By requiring the court to record the committal on the recognizance, it helps to facilitate efficient administration of the judicial system.
COMMENTARY
Section 766(3) of the Criminal Code of Canada lays down the procedure to be followed by the court, justice or provincial court judge when issuing an order under subsection (1) and receiving a certificate from the sheriff that the person named in the order has been committed to prison under subsection (2). The section mandates the court to order an entry of the committal to be endorsed on the recognizance. This commentary aims to provide a detailed analysis of this section and its implications for the justice system. To understand the significance of Section 766(3), it is important to first understand the context in which it operates. Section 766 deals with the offence of breach of recognizance. Recognizance is a legal term that refers to a binding promise made by an accused person to do or not to do something as a condition of release from custody or bail. Breaching a recognizance order is a criminal offence that can result in imprisonment, fines or both. When an accused person is found guilty of breaching a recognizance order, Section 766(1) allows the court, justice or provincial court judge to order the accused to enter into a new recognizance with different or additional conditions or to be imprisoned for a term not exceeding two years. Section 766(2) further elaborates on the procedure to be followed if the court, justice or provincial court judge decides to order imprisonment. It states that the accused person shall be committed to the custody of the sheriff, who shall forthwith convey the accused to prison. The sheriff is also required to issue a certificate of committal to the court, justice or provincial court judge who issued the order. This brings us to Section 766(3), which requires the court, justice or provincial court judge to order an entry of the committal to be endorsed on the recognizance. What this means is that the fact of the accused person's imprisonment must be recorded on the original recognizance document. This is an important step in the process of enforcing recognizance orders. The endorsement of the committal on the recognizance serves several purposes. Firstly, it provides a clear record of the events that led to the accused person's imprisonment. This can be useful in future proceedings, such as an appeal or a review of the recognizance conditions. Secondly, it ensures that the accused person is aware of the consequences of breaching a recognizance order. If the accused person is released from prison and subsequently breaches the new or amended conditions of the recognizance, the endorsement on the original recognizance document can be used as evidence against them in court. In addition, the endorsement of the committal on the recognizance can act as a deterrent to others who may be considering breaching a recognizance order. It sends a message that the justice system takes such breaches seriously and will take appropriate action to enforce the order. Overall, Section 766(3) is an important provision in the Criminal Code of Canada that ensures that the process of enforcing recognizance orders is clear and transparent. By requiring the court, justice or provincial court judge to endorse the committal on the recognizance, the section provides a clear record of the events and ensures that the accused person is aware of the consequences of their actions. It also acts as a deterrent to others who may be considering breaching a recognizance order.
STRATEGY
Section 766(3) of the Criminal Code of Canada deals with the committal of individuals who are unable to pay the fines imposed by the court. When dealing with this section, there are various strategic considerations that lawyers, judges, and other stakeholders need to take into account. One important consideration is the impact of imprisonment on the individual and their family. Imprisonment can have severe consequences on the individual's mental and physical health and can also affect their employment, housing, and other aspects of their life. Moreover, it can also have an impact on their family and dependents, who may suffer financial and emotional hardships as a consequence. Another consideration is the overall purpose of the fines and whether imprisonment is an appropriate response. In some cases, the purpose of the fines may be to deter the individual from engaging in criminal behaviour, and in these cases, imprisonment may not be necessary or effective. Moreover, imprisonment may not be an effective way of recovering the fine amount, as it can result in additional costs for the correctional system, which can be passed on to taxpayers. Given these considerations, there are various strategies that can be employed when dealing with Section 766(3) of the Criminal Code of Canada. One effective strategy is to explore alternative ways of collecting the fines, such as payment plans or community service. This could help to reduce the impact of imprisonment on the individual and their family, while still ensuring that the fine is paid. Another strategy is to advocate for the use of diversion programs, where appropriate. These programs aim to divert individuals away from the criminal justice system and towards community-based programs that address the underlying causes of criminal behaviour. This could help to reduce the use of imprisonment as a response to non-payment of fines and instead focus on addressing the root causes of the behaviour. Additionally, it may be appropriate to challenge the constitutionality of Section 766(3) in certain cases, particularly in situations where the fines imposed are excessive and result in disproportionate consequences. This could involve arguing that the use of imprisonment as a response to non-payment of fines is a violation of the individual's Charter rights, such as the right to life, liberty, and security of the person. In conclusion, Section 766(3) of the Criminal Code of Canada, while necessary in some cases, can have severe consequences on individuals and their families. Therefore, stakeholders need to consider alternative strategies when dealing with this section, such as alternative collection methods and diversion programs, to reduce the use of imprisonment as a response to non-payment of fines. Moreover, there may be situations where constitutional challenges are necessary to ensure that the consequences of non-payment of fines are proportionate and just.