section 790(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section clarifies that a justice who initiates proceedings or issues process is not required to be the same justice who presides over the trial.

SECTION WORDING

790(1) Nothing in this Act or any other law shall be deemed to require a justice before whom proceedings are commenced or who issues process before or after the trial to be the justice or one of the justices before whom the trial is held.

EXPLANATION

Section 790(1) of the Criminal Code of Canada provides immunity to justices who do not preside over the trial, from being held liable for any actions or decisions they may have taken before the trial began or after it has ended. This section of the Criminal Code emphasizes that, in the interest of justice, a justice is not required to preside over the trial, despite having commenced or issued process before or after the trial. The purpose of this provision is to provide flexibility for the justice system, as it acknowledges the reality that a justice who may have initiated or authorized the proceedings may be unavailable or incapable of continuing to oversee the case throughout the trial. For example, a justice may have begun a trial but may become ill or have to attend to other judicial duties, and therefore, be replaced by another justice. Section 790(1) ensures that the change of the presiding justice does not impact the validity of the proceedings or the outcome of the trial. This section also highlights the importance of impartiality in the justice system, as it allows for the possibility that a justice who is not involved in the trial proceedings may make decisions or issue documents before or after trial in relation to the case. This separation of duties enables the justice system to uphold the principle of fairness and to avoid any appearance of bias or favoritism. Overall, Section 790(1) of the Criminal Code of Canada plays a crucial role in promoting an efficient and fair justice system where individual justices are not overly burdened or negatively impacted by the trial process.

COMMENTARY

Section 790(1) of the Criminal Code of Canada provides a crucial aspect of the Canadian criminal justice system. It acknowledges that proceedings in the criminal justice system do not necessarily have to occur before the same justice or justices that later conduct a trial. In essence, this provision of the Criminal Code recognizes that judges have the liberty to transfer cases to other justices for any number of legitimate reasons. This provision is an essential component of ensuring that an individual receives a fair trial in a neutral and impartial courtroom. Judges often take steps to ensure that matters are transferred out of their jurisdiction to prevent any perceived biases or conflicts of interest from affecting the outcome of a case. This provision's language ensures that all parties are made aware of the possibility of transferring the case out of the hands of the originating justice, alleviating concerns that someone might try to influence the outcome of the case by selecting a particular judge. The criminal justice system in Canada aims to provide its citizens with an impartial, fair trial. It aims to ensure that individuals receive a fair hearing, free from any bias from the courts, prosecutors, or other parties. By recognizing that proceedings do not always need to occur before the same justice, this provision underscores the importance of impartiality and neutrality in the judicial system, promoting public trust and confidence in the system. Moreover, this provision reveals the flexibility of the criminal justice system, which is necessary given the many potential circumstances that might arise in individual cases. For example, suppose a justice faces a conflict of interest either in his personal or professional life. In that case, this provision allows the case to be heard fairly, rather than requiring that the justice attempts to do so impartially, even though they may have a conflict of interest. Overall, Section 790(1) of the Criminal Code of Canada showcases the flexibility and adaptability of a fair and impartial criminal justice system. The provision's language underscores the importance of impartiality and neutrality in the judicial process while recognizing that transferring cases to different justices can be vital for achieving these ideals in practice. By creating a framework that allows for flexibility and impartiality, this provision serves an important role in promoting public confidence in the Canadian justice system. It helps ensure that those who come before the system receive fair and equitable treatment, regardless of any biases or conflicts of interest that might arise along the way.

STRATEGY

Section 790(1) of the Criminal Code of Canada is an essential provision in the Canadian criminal justice system as it allows for flexibility in the allocation of judicial resources. This provision allows a justice of the peace to commence or issue processes before or after a trial without being the same justice that presides over the trial. However, there are strategic considerations and implications in dealing with this section of the code. One of the primary strategic considerations in dealing with section 790(1) is the potential for inconsistency in rulings. When different justices handle various stages of a criminal case, they may have different interpretations of the law or assessments of the facts of the case. As such, this may result in inconsistent rulings, which can create confusion and frustration for both defendants and prosecutors. Additionally, inconsistent rulings can tarnish the perception of the criminal justice system and its ability to deliver justice. To mitigate the potential for inconsistent rulings and protect the integrity of the criminal justice system, one strategy is to have a system in place for justices to communicate and share information. This can be achieved through regular meetings, training sessions, and guidelines to ensure that there is a clear understanding of the legal process and consistent application of the law. By promoting consistency, the criminal justice system can maintain its credibility and reputation for fairness. Another strategic consideration when dealing with section 790(1) is the potential for forum shopping. Forum shopping is the practice of selecting a jurisdiction or court that is perceived to be favorable to particular interests. In criminal trials, this could mean that a defendant chooses a justice more likely to rule in their favor or a prosecutor selects a justice who is known to impose harsh sentences. Such practices can undermine the fairness of the justice system, result in inconsistent judgments, and erode public trust. To avoid forum shopping, one strategy is to implement guidelines on the allocation of criminal cases to justices, ensuring a fair and impartial distribution of cases. This could involve rotating justices, ensuring that they have equal exposure to different types of cases, and providing training to ensure that each justice has a clear understanding of the law and their role in the criminal justice system. By promoting fairness and impartiality, the criminal justice system can enhance public trust and maintain confidence in its ability to deliver justice. In conclusion, section 790(1) of the Criminal Code of Canada provides for flexibility in the allocation of judicial resources. However, strategic considerations need to be taken into account to ensure that this flexibility does not compromise the fairness and integrity of the criminal justice system. Strategies such as promoting consistency and impartiality can protect the reputation of the criminal justice system and ensure that justice is delivered fairly and transparently.