section 771(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge to grant or refuse forfeiture of a recognizance and make any necessary orders after hearing the parties.

SECTION WORDING

771(2) Where subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper.

EXPLANATION

Section 771(2) of the Criminal Code of Canada provides the judge with the discretion to grant or refuse an application for forfeiture of a recognizance and to make any order with respect to the forfeiture of the recognizance that he or she considers appropriate. A recognizance is a court-ordered obligation by which an accused person agrees to appear in court at a specified time and date or to otherwise comply with certain conditions. Failure to do so may result in a forfeiture of the recognizance. When an accused person fails to appear in court or fails to comply with any conditions imposed on them, the Crown may apply to the court for forfeiture of the recognizance. In such cases, the court must ensure that the accused person has been given proper notice of the application and has an opportunity to be heard in their defense. After giving the parties an opportunity to be heard, the judge must exercise their discretion in deciding whether to grant or refuse the application for forfeiture. The judge may also make any order they see fit with regard to the forfeiture of the recognizance. The purpose of this section is to ensure that individuals who have been released on a recognizance fulfill their court-ordered obligations. Through the forfeiture of a recognizance, the court can hold individuals accountable for their actions and ensure that they comply with their legal obligations. This section serves as a powerful tool in promoting the proper administration of justice and maintaining the integrity of the legal system in Canada.

COMMENTARY

Section 771(2) of the Criminal Code of Canada is a provision that gives judges the power to grant or refuse bail forfeiture based on an application made by the Crown or the prosecutor. The section allows judges to exercise their discretion and make any order regarding the forfeiture of the recognizance, which they feel is appropriate in the circumstances. The provision came into existence through the amendments made in the Criminal Law Amendment Act, 1974, which replaced the 1955 Bail Reform Act. The amendment aimed to grant powers to the judges concerning bail and recognizance, which were earlier held by the justices of the peace. This section applies in the case where an accused person has been released on bail or recognizance, and the Crown or prosecutor is of the view that the defendant breached this particular condition of release. The Crown may then apply to the court for the forfeiture of the recognizance. Before proceeding with the forfeiture, the judge must first ensure that subsection (1) of s. 771 has been complied with, which provides that the accused person should have received a notice of the alleged breach and a show cause hearing explaining why the recognizance should not be forfeited. It is crucial to ensure that an accused is given a fair hearing and has been notified of any perceived breach of conditions before considering bail forfeiture. This helps to ensure that a person does not lose their property arbitrarily. After determining that the necessary steps have been taken, the judge may then proceed to consider whether to grant or refuse the application for bail forfeiture. Notably, the section includes a discretionary power vested in the judge, which allows for flexibility to assess the facts and circumstances of the case. The judge may consider various factors, including the degree of violation, the severity of the crime, and the likelihood of recidivism. By taking these factors into account, the judge can evaluate whether forfeiture of bail is appropriate in a particular circumstance. In making their decision, judges must ensure that their decisions and orders are fair and are consistent with the principles of the Canadian Charter of Rights and Freedoms. They need to consider any potential impacts of their orders, such as the potential to infringe upon a person's right to liberty or to deprive them of their property. In conclusion, Section 771(2) of the Criminal Code of Canada grants the judges the power to determine whether to grant or refuse the application for the forfeiture of recognizance, which provides flexibility and discretion to the court. It ensures that the judge takes into account the relevant factors before making any decision or order, ultimately striving to maintain a fair and just legal system.

STRATEGY

Section 771(2) of the Criminal Code of Canada is a provision that deals with the forfeiture of a recognizance. Essentially, a recognizance is a type of bond that is entered into by an accused person. It requires the accused to comply with certain conditions, such as attending court or refraining from certain activities, while they are out on bail. Failure to comply with those conditions can result in forfeiture of the recognizance, meaning that the accused must pay a sum of money to the court. When dealing with this section of the Criminal Code, there are several strategic considerations to keep in mind. The first consideration is whether to apply for forfeiture of the recognizance in the first place. This decision will depend on a number of factors, including the seriousness of the breach of the recognizance and the strength of the evidence against the accused. If the breach is relatively minor and there is no real risk of the accused fleeing or committing further offences, it may not be worth pursuing forfeiture. Assuming that forfeiture is being pursued, there are several strategies that could be employed to maximize the chances of success. One key strategy is to ensure that the requirements of subsection (1) of section 771 are fully complied with. This means giving notice to the parties involved and allowing them an opportunity to be heard. Failure to comply with these requirements can result in the forfeiture order being overturned on appeal. Another strategy is to provide evidence of the accused's non-compliance with the conditions of the recognizance. This can include witness testimony, documentary evidence, and surveillance footage. It is important to demonstrate that the accused was aware of the conditions of the recognizance and deliberately chose to violate them. A third strategy is to argue for the imposition of additional conditions on any future recognizance, rather than simply seeking forfeiture of the existing recognizance. This can include conditions such as electronic monitoring, curfews, or prohibitions on contact with certain individuals. The idea behind this strategy is to provide a more effective deterrent against future breaches of the recognizance. Finally, it is important to be prepared for the possibility of an appeal. This means ensuring that all relevant evidence is properly documented and presented, and that the legal arguments are sound. It may also be helpful to consult with a criminal lawyer who has experience with forfeiture proceedings. Overall, dealing with section 771(2) of the Criminal Code requires careful consideration of the specific circumstances of each case. By following the strategies outlined above, however, it may be possible to increase the chances of a successful outcome.