INTRODUCTION AND BRIEF DESCRIPTION
This section states that if a court approves an endorsement, both the recognizance and sureties are discharged.
SECTION WORDING
766(4) An endorsement under subsection (3) vacates the recognizance and discharges the sureties.
EXPLANATION
Section 766(4) of the Criminal Code of Canada pertains to the legal proceedings arising from a criminal offence. When a person is charged with a criminal offence, the court may release them on bail, subject to certain conditions such as the requirement to attend court appearances and refrain from certain activities or association with certain people. Furthermore, they may be required to provide a surety, who agrees to guarantee that the accused will abide by all the conditions and attend all court appearances. Subsection (3) of section 766 allows the court to endorse a recognizance, which involves the substitution of one or more sureties or the amendment of the conditions of the bail. This endorsement could be made at any time before the trial or appeal of the accused is complete. The endorsement may be done either with or without the consent of the accused or the surety. The impact of subsection (4) is that any endorsement made under subsection (3) vacates the original recognizance and results in the discharge of the original sureties. This means that the original bail conditions and surety agreement are no longer valid, and the accused and their new sureties must agree to the amended recognizance and bail conditions for the accused to remain out on bail. In practical terms, subsection (4) provides a mechanism for the court to change bail conditions or replace the surety if, for example, the original surety is no longer able to meet their obligations or the accused violates any of the conditions of their bail. The discharge of the original sureties also ensures that they are no longer responsible for the accused's compliance with the new bail conditions, and they are relieved of their obligations.
COMMENTARY
Section 766(4) of the Criminal Code of Canada is an important provision outlining the legal consequences of an endorsement made under subsection (3). This provision establishes that when the court endorses an application for the discharge of recognizance, it automatically vacates the said recognizance, and discharges the sureties. Recognizance is the legal term for an agreement made between an accused person and the court that they will comply with certain conditions for their release from custody. In a typical scenario, after an accused person is charged with an offence, the court can order their detention until their trial starts or release them upon certain conditions. These conditions set out in the recognizance can include surrendering their passport, abstaining from drugs or alcohol, reporting to the police station regularly, or attending court as ordered. Sureties, on the other hand, are individuals who agree to supervise and support the accused person in complying with their recognizance conditions. They are often close friends or family members of the accused who offer assurance or guarantee that the accused will adhere to the terms of their recognizance. Section 766(4) operates in a specific context where the accused is still awaiting their trial and has been released on bail under a recognizance that has been supported by one or more sureties. The purpose of this section is to address any concerns regarding the sureties' liabilities arising from the accused person's failure to comply with their recognizance conditions. The endorsement under subsection (3) referred to in section 766(4) refers to a court order that discharges the sureties from their obligations as a result of an application made by them or the accused. This application can be made for various reasons, including if the accused is no longer cooperating with their sureties, if the sureties' obligations have become burdensome or if the accused had initially pledged himself as a surety for another person. The automatic discharge of recognizance and the sureties' liability under section 766(4) is a pivotal provision. The provision recognizes the complex legal relationship between the accused and their sureties in the context of a criminal trial. It also acknowledges the risks that sureties often expose themselves to when agreeing to support an accused's bond release. The discharge of sureties may occur for various reasons, making it important for the provision to protect them. Moreover, the provision ensures that the sureties' discharge is not dependent on the accused complying with their recognizance conditions. In effect, the section protects the sureties from being unduly burdened by the accused's actions or inaction. In conclusion, Section 766(4) of the Criminal Code of Canada is a vital provision in criminal proceedings. The provision sets out the legal consequences of an endorsement under subsection (3), which vacates the recognizance and discharges the sureties. It recognizes the legal relationship between the accused and the sureties and, most importantly, protects the sureties from the accused's failure to comply with their recognizance conditions. It is an important provision that ensures that the interests of all parties involved in a criminal trial are protected.
STRATEGY
Section 766(4) of the Criminal Code of Canada is a crucial provision that allows for the dismissal of sureties and the consequent release of defendants from their obligation to remain compliant with their recognizance. However, this provision is not always straightforward, and strategic considerations must be taken into account when dealing with it. In this essay, I will discuss some of the strategic considerations and strategies that could be employed when dealing with section 766(4) of the Criminal Code of Canada. One of the most critical strategic considerations when dealing with section 766(4) is the timing of the endorsement. In many cases, a defendant may have breached their recognizance, and the Crown may seek to have their surety forfeited. In such instances, the defendant's legal team may consider applying for an endorsement under subsection (3) of section 766 to vacate the recognizance and discharge the sureties. Still, the timing of such an application is essential. If applied too early, the Crown may seek to have the defendant's release revoked, and they may be remanded in custody. Another significant strategic consideration is the availability of alternative forms of release when dealing with section 766(4) of the Criminal Code of Canada. An accused may be released on certain conditions, such as a recognizance that requires them to have a surety. However, if the defendant's surety is discharged, the Crown may seek to have the defendant remanded in custody. Therefore, a defendant's legal team may consider applying for alternative forms of release, such as a change in the release conditions or a release on the accused's undertaking. The defendant's legal team may also consider arguing that the surety's release is in the interests of justice. For instance, the defendant's legal team may argue that the surety's continued involvement is not in the best interests of the accused. This could be the situation, for example, where a surety is causing unreasonable restrictions on the defendant's life, leading to further complications. Presenting evidence to the court showing how a surety is causing more harm than good to an accused is a strong way to argue that the surety's release is in the interests of justice. Advocating for the surety's release is also essential in certain cases, as it could prevent the Crown from seeking forfeiture of any deposits made by the surety. Forfeiture of surety could lead to negative publicity for the surety, a loss of reputation, and financial strain. Lastly, the accused can consider finding a new surety if the previous one is discharged, which will require a re-evaluation of release conditions. Finding a new surety might also assist in the rehabilitation of the defendant and show the court progress, which could also constitute grounds for a surety's release. In conclusion, section 766(4) of the Criminal Code of Canada is vital in determining whether a defendant's release can continue or not. Strategic considerations must be considered when seeking an endorsement under subsection (3), as the Crown may seek to revoke the defendant's release when the timing is not right. Strategic defenses that can be applied include arguing for a surety's release in the interests of justice, advocating for the release of surety to prevent forfeiture of deposits, and finding a new surety if possible. These strategies can enable defendants to continue their rehabilitation while enjoying their liberty until their trial is completed.