section 817(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section does not apply to appeals taken by the Attorney General or their counsel.

SECTION WORDING

817(3) This section does not apply in respect of an appeal taken by the Attorney General or by counsel acting on behalf of the Attorney General.

EXPLANATION

Section 817(3) of the Criminal Code of Canada is a provision that exempts the Attorney General and any counsel acting on behalf of the Attorney General from the provisions of this section. This section pertains to the prevention of the commission of the offence of intimidation of justice participants or journalists. Intimidation is a concept that is often associated with interference of the delivery of justice. The intimidation of justice participants and journalists can manifest in different forms, such as threats, retaliation, or violence. Section 817 of the Criminal Code of Canada aims to deter and prevent such intimidation by criminalizing it. However, this provision has certain limitations and exemptions, as outlined in section 817(3) of the Criminal Code of Canada. This section provides that the provision outlined in section 817 will not apply to an appeal taken by the Attorney General or counsel acting on behalf of the Attorney General. The exemption of the Attorney General from the provisions of this section is significant because the Attorney General is a constitutional functionary responsible for the administration of justice. By exempting the Attorney General, the Criminal Code of Canada ensures that the Attorney General is adequately equipped to carry out their duties without fear of prosecution or intimidation. Overall, section 817(3) of the Criminal Code of Canada highlights the significance of the Attorney General in the administration of justice and emphasizes the importance of not impeding their ability to carry out their constitutional duties.

COMMENTARY

Section 817(3) of the Criminal Code of Canada exempts the Attorney General and counsel acting on behalf of the Attorney General from the provisions of section 817. The latter section pertains to the offence of instituting vexatious proceedings, which includes the filing of lawsuits or initiating criminal proceedings that are without merit or ill-intentioned. Essentially, this means that the Attorney General or their counsel cannot be held liable or penalized for instituting proceedings that may be considered vexatious or frivolous. At first glance, this exemption may seem troubling, as it could potentially open the door for the Attorney General and their counsel to abuse their power and take advantage of the legal system by instituting unwarranted legal proceedings. However, it is important to note that this exemption is not meant to provide a blanket protection for the Attorney General or their counsel. Rather, it serves a more practical purpose. The role of the Attorney General is to represent the public interest and ensure that justice is carried out in a fair and impartial manner. As such, the Attorney General has an important duty to prosecute individuals who have been accused of committing criminal offences, regardless of the strength of the case against them. If the Attorney General could be held liable for instituting vexatious proceedings, this could potentially deter them from pursuing legitimate cases, out of fear of facing legal retaliation. Additionally, the exemption in section 817(3) recognizes that the Attorney General and their counsel may have access to information or evidence that the general public does not. This privileged information may lead the Attorney General to believe that a case is meritorious, even if it does not appear so on the surface. Therefore, it is rational to exempt the Attorney General and their counsel from liability in situations where they have acted in good faith and believed that the proceedings they have initiated were not vexatious. However, it is important to ensure that the exemption given to the Attorney General and their counsel is not abused. The Crown should always act in good faith and only institute proceedings that have a legitimate basis. Furthermore, where the Crown's conduct is questionable, this should be examined and the Crown should be held accountable for any abuse of its power. In conclusion, the exemption in section 817(3) of the Criminal Code of Canada serves a practical purpose in recognizing the important duties of the Attorney General and their counsel. However, it is important to ensure that this exemption is not used to shield them from liability in situations where they have acted inappropriately or maliciously. A balance must be struck between protecting the Attorney General's ability to carry out their duties, and holding them accountable for their actions when necessary.

STRATEGY

Section 817(3) of the Criminal Code of Canada can present a challenge for defence counsel when dealing with appeals in criminal cases. This section stipulates that an appeal taken by the Attorney General or by counsel acting on behalf of the Attorney General does not fall under the purview of this section. Therefore, this section does not allow for appeals against orders for restitution, probation orders, or conditional sentences. Dealing with this section of the Criminal Code involves a number of strategic considerations for defence counsel. A significant challenge for defence counsel is that they have limited avenues for recourse after an appeal by the Attorney General. In the absence of section 817(3), defence counsel could have appealed against the aforementioned orders. However, with this section in place, such appeals are not possible. One strategic consideration for defence counsel is to try to ensure that the orders are reasonable and just. This is particularly important in cases where an appeal by the Attorney General is likely. Defence counsel should argue for the least restrictive and most rehabilitative orders possible. By doing so, they can reduce the risk of an appeal by the Attorney General. Another strategic consideration is to consider alternative routes for appeals. If an appeal is taken by the Attorney General, defence counsel can still pursue other legal options. For example, they may be able to challenge the initial ruling or order. Alternatively, they can argue that the order's constitutionality is in question. It is important for defence counsel to consult with experienced legal counsel and explore all possible avenues for recourse. Given the limited options for recourse, it is also important for defence counsel to communicate openly with their clients. They should explain the potential consequences of orders such as probation and conditional sentences. They should also educate their clients about their legal options and advise them on any actions to take in the event of an appeal by the Attorney General. One potential strategy for defence counsel is to negotiate a plea bargain that avoids the need for any of the orders mentioned above. This may be an option if the prosecution agrees to reduce the charges or penalties in exchange for a guilty plea. However, this is not always possible or practical, and it is important for defence counsel to balance any potential benefits of a plea bargain with their client's best interests. In conclusion, section 817(3) of the Criminal Code of Canada presents a significant challenge for defence counsel when dealing with appeals in criminal cases. To address this challenge, defence counsel should adopt a range of strategies, including arguing for reasonable and just orders, exploring alternative routes for appeal, communicating openly with clients, and negotiating plea bargains if possible. By employing these strategies, defence counsel can help ensure the best possible outcomes for their clients in the face of this challenging section of the Criminal Code.