Criminal Code of Canada - section 810(3.2) - Idem

section 810(3.2)

INTRODUCTION AND BRIEF DESCRIPTION

Section 810(3.2) outlines conditions to be considered before making an order under subsection (3), including prohibiting the defendant from being near or communicating with the person on whose behalf the information was laid or their spouse/common-law partner/child.

SECTION WORDING

810(3.2) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the informant, of the person on whose behalf the information was laid or of that person’s spouse or common-law partner or child, as the case may be, to add either or both of the following conditions to the recognizance, namely, a condition (a) prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place specified in the recognizance where the person on whose behalf the information was laid or that person’s spouse or common-law partner or child, as the case may be, is regularly found; and (b) prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person on whose behalf the information was laid or that person’s spouse or common-law partner or child, as the case may be.

EXPLANATION

Section 810(3.2) of the Criminal Code of Canada outlines the conditions that must be considered by a justice or a summary conviction court before making an order under subsection (3). This subsection deals with "peace bonds," which are typically used as a preventative measure to address potential future harm caused by an individual who has not yet committed a crime but has been identified as a potential threat. Before issuing a peace bond, the justice or court must consider whether it is in the best interests of the people involved to add certain conditions to the bond. Specifically, they must consider the safety of the informant (the person who provided information about the potential threat), the person on whose behalf the information was laid (the person who might be at risk of harm), as well as that person's spouse, common-law partner, or child. If the justice or court determines that it is necessary, they may add one or both of the following conditions to the recognizance (a legal agreement): - Prohibiting the defendant from being at or within a specified distance from a place where the person on whose behalf the information was laid or their family members are regularly found - Prohibiting the defendant from communicating (either in whole or in part, and either directly or indirectly) with the person on whose behalf the information was laid or their family members These conditions are put in place to safeguard the safety and well-being of those who may be at risk of harm. If the defendant violates any of these conditions, they may be subject to legal consequences, such as being charged with a crime.

COMMENTARY

Section 810(3.2) of the Criminal Code of Canada is a provision that seeks to protect individuals who may have surfaced sensitive information that could lead to their lives being in danger. The provision allows for the imposition of certain conditions on a suspect when issuing a recognizance order. Such conditions may prohibit the defendant from being at, or within a distance specified in the recognizance from a place specified in the recognizance, where the informant or their families are regularly found. Additionally, the provision may prohibit defendants from having direct or indirect communication with the informant or their families. The purpose of these conditions is to safeguard the informant or their families from potential danger that may arise following the discovery of his or her identity to the accused. The implementation of this provision can lead to various positive outcomes. First and foremost, it can serve as a deterrent to intimidate an accused person from retaliating against an informant or their families. Such deterrence can be effected via the subtle threat that any form of retaliation may lead to significant penalties and/or severe consequences. Additionally, the provision can foster confidence in the justice system, which can encourage more people to come forward with information without fear of consequences. However, there are also potential negative outcomes when this provision is implemented. For instance, the imposition of these conditions can lead to the violation of an individual's fundamental rights, such as freedom of movement or communication. This possibility remains true where the accused person poses no significant danger to the informant or his or her family. Another possible negative outcome of this provision is the temptation to use it to intimidate an accused person or his or her affiliate. The misuse of this provision can taint the credibility of the justice system, and also encourage the culture of impunity, where an individual's fundamental rights become secondary to an unjust or questionable system of justice. In conclusion, Section 810(3.2) can be a valuable provision that can promote confidence in the justice system and protect informants from potential harm. However, it is essential to ensure that there is a delicate balance between the protection of informants and the fundamental rights of accused persons. Additionally, it is crucial to monitor its application to ensure that it is not misused or represents an unjust system of justice. Ultimately, a just and equitable system will focus on the rights and protection of all parties while ensuring accountability for any criminal actions committed.

STRATEGY

Section 810(3.2) of the Criminal Code of Canada provides for the imposition of specific conditions on a defendant's recognizance, such as prohibiting them from being at a specified location or communicating with a specific person. The goal of these conditions is to protect the safety of the informant or the person on whose behalf the information was laid or their family members. When dealing with this section of the Criminal Code, there are several strategic considerations that lawyers should keep in mind. Firstly, lawyers should assess whether their client poses a genuine threat to the safety of the informant or the person on whose behalf the information was laid. If there is no legitimate concern, the lawyer can argue against imposing any conditions under the section. On the other hand, if the client does pose a risk, the lawyer needs to be strategic in crafting an argument in favor of the conditions that their client can comply with. Secondly, lawyers should consider the specific conditions that can be imposed under subsection 810(3.2). Depending on the circumstances of the case, the conditions may be more or less restrictive, and some may be easier to comply with than others. Lawyers should assess which conditions could be most problematic for their client and identify any alternative conditions that would be more manageable. Thirdly, lawyers should consider whether there are any ways to mitigate the risk their client poses, such as through therapy, rehabilitation, or treatment. If the lawyer can convince the court that their client is taking positive steps to address the underlying issues that led to the concern for safety, the court may be more likely to impose less restrictive conditions. Fourthly, lawyers should be prepared to provide detailed submissions that address the specific concerns of the court and provide evidence to support their arguments. The court will need to be convinced that the conditions imposed are necessary to protect the safety of the informant or the person on whose behalf the information was laid. Some strategies that lawyers can employ when dealing with section 810(3.2) include providing a clear plan for complying with any conditions imposed, identifying alternative conditions that would be preferable, presenting evidence of a client's rehabilitation or treatment, and providing detailed submissions that address the specific concerns of the court. Ultimately, the key to success when dealing with this section of the Criminal Code is to be strategic, well-prepared, and persuasive in making a compelling argument in favor of the desired outcome.