section 816(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions for an appellant to be released from custody while awaiting appeal in a summary conviction court case.

SECTION WORDING

816(1) A person who was the defendant in proceedings before a summary conviction court and by whom an appeal is taken under section 813 shall, if he is in custody, remain in custody unless the appeal court at which the appeal is to be heard orders that the appellant be released (a) on his giving an undertaking to the appeal court, without conditions or with such conditions as the appeal court directs, to surrender himself into custody in accordance with the order, (b) on his entering into a recognizance without sureties in such amount, with such conditions, if any, as the appeal court directs, but without deposit of money or other valuable security, or (c) on his entering into a recognizance with or without sureties in such amount, with such conditions, if any, as the appeal court directs, and on his depositing with that appeal court such sum of money or other valuable security as the appeal court directs, and the person having the custody of the appellant shall, where the appellant complies with the order, forthwith release the appellant.

EXPLANATION

Section 816(1) of the Criminal Code of Canada outlines the conditions under which a person who has been convicted in a summary conviction court and has initiated an appeal can remain in custody or be released pending the hearing of the appeal. The section highlights that if the appellant is in custody, they will remain there unless the appeal court orders their release in one of three ways. Firstly, the appellant can be released on their giving an undertaking to the appeal court, stating that they will surrender themselves into custody based on the order given by the court. Secondly, the appellant can enter into a recognizance without need for any sureties but with conditions if any, as ordered by the appeal court. Lastly, the appellant can enter into a recognizance with or without sureties and with such conditions as ordered while depositing the amount of money or valuable security as directed by the appeal court. The section clearly outlines that if the appellant meets the conditions ordered by the appeal court, then the person who has custody of the person should release them immediately. The purpose of this section is to set out legal requirements for the release of people who have initiated an appeal against a conviction and to ensure that the release of such individuals does not pose a risk to the safety of the public or undermines the administration of justice. Overall, this section seeks to balance the rights of the accused to a fair trial and appeal while at the same time safeguarding the interest of the public and justice system.

COMMENTARY

Section 816(1) of the Criminal Code of Canada sets out the conditions under which a person who has been found guilty of an offence in a summary conviction court can be released pending appeal. The section is intended to ensure that such persons do not abscond from justice or interfere with the administration of justice while their appeal is being heard. The section provides three options for release: (a) by giving an undertaking to surrender into custody, (b) by entering into a recognizance without sureties, or (c) by entering into a recognizance with or without sureties and depositing a sum of money or other valuable security with the appeal court. Each of these options has different conditions and requirements that must be met before the person can be released. Option (a) requires the person to give an undertaking to surrender themselves into custody in accordance with the order, with or without conditions as directed by the appeal court. This option may be suitable for individuals who are not considered a flight risk, or whose release is not likely to interfere with the administration of justice. Option (b) allows the person to enter into a recognizance without sureties, meaning that they do not need to provide people who are willing to pledge money or property on their behalf. However, this option requires that the person comply with any conditions that the appeal court imposes, such as reporting to a probation officer, refraining from contacting certain individuals, or submitting to drug testing. Option (c) allows the person to enter into a recognizance with or without sureties, and to deposit a sum of money or property with the appeal court as security. This option may be preferred in cases where the person is considered a high flight risk, or where their release is likely to interfere with the administration of justice. The deposit of money or valuable security serves as a guarantee that the person will comply with their conditions of release, and may be forfeited in the event of non-compliance. In all cases, the decision to release a person pending appeal is in the hands of the appeal court. The court must consider factors such as the seriousness of the offence, the likelihood of the person absconding, and the risk of interference with the administration of justice. The court may impose conditions on the person's release, such as reporting to a probation officer, refraining from contacting certain individuals, or surrendering their passport. Overall, Section 816(1) of the Criminal Code of Canada strikes a balance between the interests of justice and the rights of the accused. It recognizes the importance of ensuring that people who have been convicted of offences are held accountable for their actions, while also acknowledging that individuals have a right to liberty pending appeal. By providing a range of options for release, the section allows the appeal court to tailor its decision to the specific circumstances of each case, and to ensure that justice is served.

STRATEGY

Section 816(1) of the Criminal Code of Canada is a crucial provision that outlines the circumstances under which an appellant, who was the defendant in proceedings before a summary conviction court, may be released pending the determination of their appeal. This section is particularly relevant in cases where the appellant has been sentenced to imprisonment, as it sets out the conditions under which the appellant may be released from custody pending the outcome of their appeal. One strategic consideration that arises when dealing with this section is the importance of timing. An appellant must file their notice of appeal within thirty days after the date of the conviction or sentence. Failure to do so within this time frame may limit the options available to the appellant and hinder their chances of being released pending appeal. Moreover, the appeal court will typically only hear an application for release once the appellant has filed their notice of appeal and the appeal has been set down for hearing. This means that an appellant who wishes to be released from custody pending appeal must ensure that their appeal is set down for hearing as soon as possible. Another strategic consideration is the appellant's ability to meet the various conditions that may be imposed by the appeal court in order to secure their release. The appeal court may require the appellant to provide an undertaking to surrender themselves into custody at a later date. Alternatively, the court may require the appellant to enter into a recognizance with or without sureties, or require them to deposit a sum of money or other valuable security. It is important for the appellant to carefully consider which option is most viable for them given their financial circumstances and the nature of the offence for which they have been convicted. A further strategic consideration is the strength of the appellant's case on appeal. In cases where the appeal court is likely to overturn the conviction or reduce the sentence, it may be easier for the appellant to secure their release pending appeal. Conversely, where the appeal has little chance of success or where the appellant poses a risk to public safety, it may be more difficult to secure their release. In terms of strategies that could be employed when dealing with this section, a key approach is to promptly file the notice of appeal and seek an expedited hearing date. It may also be beneficial to retain an experienced criminal defence lawyer who can help the appellant articulate their case for release and navigate the appeal process more effectively. Additionally, the appellant should be prepared to provide the appeal court with any relevant information about their personal and financial circumstances that may be relevant to the decision to release them pending appeal. In conclusion, Section 816(1) of the Criminal Code of Canada is a critical provision that outlines the conditions under which an appellant may be released from custody pending an appeal. Strategic considerations when dealing with this section include timing, the ability to meet the conditions imposed by the appeal court, the strength of the appellant's case on appeal, and the importance of retaining an experienced lawyer to advocate for their release. By carefully considering these factors and developing sound strategies, an appellant may be able to improve their chances of securing their release pending appeal.