section 808(2)

INTRODUCTION AND BRIEF DESCRIPTION

An order of dismissal certified under subsection (1) is a bar to any further proceedings against the defendant for the same cause.

SECTION WORDING

808(2) A copy of an order of dismissal, certified in accordance with subsection (1) is, without further proof, a bar to any subsequent proceedings against the defendant in respect of the same cause.

EXPLANATION

Section 808(2) of the Criminal Code of Canada is an important provision which outlines the legal consequences of an order of dismissal in a criminal proceeding. Essentially, this provision states that if a defendant has been acquitted or had a charge dismissed, the order of dismissal serves as a legal bar to any future proceedings related to the same cause. In other words, if a defendant is charged with a crime and the case is dismissed, they cannot be charged with the same crime again in the future. This provision helps to ensure that defendants are not subject to repeated prosecution for the same offense, which would be a violation of their rights and a waste of judicial and public resources. The provision also emphasizes the importance of obtaining a certified copy of the order of dismissal, which provides confirmation that the case has been dismissed and serves as proof that the defendant cannot be subjected to future proceedings related to the same cause. This certification process helps to ensure that the legal system operates efficiently and that defendants are not unfairly subjected to the criminal justice system after they have been cleared of charges. Overall, section 808(2) of the Criminal Code of Canada is a critical component of the legal framework surrounding criminal proceedings, as it protects the rights of defendants while ensuring that the justice system operates fairly and efficiently.

COMMENTARY

Section 808(2) of the Criminal Code of Canada provides for an order of dismissal, which is a formal legal order that brings an end to legal proceedings against a defendant. Once a judge has made an order of dismissal, the defendant is considered to have been acquitted of the charges that were being brought against them. The order of dismissal is a crucial part of the Canadian legal system, as it provides defendants with an important safeguard against the arbitrary use of state power. If legal proceedings are brought against an individual without proper cause, or if evidence is obtained illegally, the order of dismissal allows a judge to bring the proceedings to a close and protect the defendant's rights. Under subsection (2) of Section 808, a certified copy of an order of dismissal is considered to be a bar to subsequent proceedings against the defendant in respect of the same cause. In other words, if a defendant is acquitted of a crime and an order of dismissal is issued, they cannot be tried again for the same crime. This provision is important for several reasons. First, it ensures that defendants are protected from double jeopardy, which is the process of being tried twice for the same offence. Double jeopardy is prohibited in Canada, and the order of dismissal serves as an important safeguard against this type of abuse of state power. Second, the provision helps to ensure that the legal system operates fairly and efficiently. If a defendant is acquitted of a crime, it is unlikely that additional evidence will be uncovered at a later date that would justify another trial. Allowing defendants to be acquitted and then tried again would be an unnecessary waste of resources and would undermine the public's confidence in the legal system. Finally, the provision helps to maintain the integrity of the legal system. Once an order of dismissal has been issued, the prosecution is unable to continue pursuing the defendant for the same crime. This prevents prosecutors from engaging in abusive or frivolous prosecutions, which can damage their credibility and undermine public confidence in the legal system. In conclusion, Section 808(2) of the Criminal Code of Canada provides an important safeguard for the rights of defendants and helps to ensure that the legal system operates fairly and efficiently. The provision serves as a powerful check on the arbitrary exercise of state power and is an essential component of Canada's commitment to the rule of law.

STRATEGY

Section 808(2) of the Criminal Code of Canada provides an effective legal tool for defendants to avoid being tried for the same offense twice. The section essentially stipulates that when an order of dismissal is made in favor of the defendant, it becomes an absolute bar to any subsequent legal proceedings in respect of the same cause. This means that the defendant cannot be re-tried for the same offense, regardless of the evidence presented. As a strategic consideration, defense counsel should consider the possibility of getting an order of dismissal for their client early in the proceedings. While this may require some negotiation with the Crown, it can be a cost-effective way of avoiding a lengthy and expensive trial. If successful, the defendant can avoid the stigma of a criminal conviction, and move on with their life without the threat of further legal action hanging over them. Another strategy that can be employed when dealing with Section 808(2) is to establish a well-documented and persuasive argument for dismissal at the outset of the legal proceedings. This may involve gathering evidence and presenting it to the judge in an effort to demonstrate that the charges are unfounded or that there are procedural issues that would lead to an order of dismissal. Defense counsel may also consider using the principles of res judicata as a strategic consideration when using Section 808(2). In general, res judicata refers to the principle that a matter that has already been decided by a court cannot be re-litigated. This principle is closely aligned with the idea behind Section 808(2), and may be an effective tool for defendants to use when arguing for dismissal. It is important to note, however, that while the provisions of Section 808(2) can provide defendants with a significant legal advantage, it is not an automatic guarantee that charges will be dismissed. Judges have considerable discretion in determining whether an order of dismissal is appropriate, and will take into account the specifics of the case before them. As such, defense counsel must carefully consider their strategy when using Section 808(2), and be prepared to present a compelling case to the judge if they wish to obtain an order of dismissal for their client.