INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the methods by which a conviction or order made by an appeal court may be enforced.
SECTION WORDING
828(1) A conviction or order made by the appeal court may be enforced (a) in the same manner as if it had been made by the summary conviction court; or (b) by process of the appeal court.
EXPLANATION
Section 828(1) of the Criminal Code of Canada deals with the enforcement of convictions or orders made by the appeal court. When a person is convicted of a criminal offence, they may choose to appeal their conviction or sentence to a higher court. If the appeal court upholds the original conviction or orders a new conviction or sentence, section 828(1) allows for the enforcement of this decision in two ways. Firstly, the appeal court's decision can be enforced in the same manner as a decision made by the summary conviction court. A summary conviction court is a lower court that deals with less serious criminal offences. This means that the appeal court's decision can be enforced through the same legal processes as a summary conviction, such as fines or probation orders. Alternatively, the decision can be enforced by process of the appeal court. This means that the appeal court has the power to take further action to ensure that its decisions are enforced. The court may issue an order requiring the offender to pay restitution or complete community service, for example. Essentially, section 828(1) of the Criminal Code ensures that the appeal process does not undermine the effectiveness of criminal justice in Canada. By allowing for the enforcement of appeal court decisions, the code ensures that offenders are held accountable for their actions and that justice is served.
COMMENTARY
Section 828(1) of the Criminal Code of Canada governs the enforcement of convictions and orders made by the appeal court. This provision is crucial to the functioning of the criminal justice system, as it ensures that court decisions are enforced and that justice is served. Under this provision, a conviction or order made by the appeal court can be enforced in two ways. First, it can be enforced in the same manner as if it had been made by the summary conviction court. This means that the normal mechanisms for enforcing summary conviction court decisions, such as fines, probation, and community service orders, can be used to enforce the decision of the appeal court. Second, a conviction or order made by the appeal court can be enforced by process of the appeal court. This means that the appeal court can issue its own orders and take its own steps to ensure that its decision is enforced. This could include issuing warrants, seizing assets, or taking other steps to ensure that the convicted person complies with the court's decision. Overall, Section 828(1) is a vital provision in the criminal justice system. Without it, appeal court decisions may not be enforced, which could lead to a breakdown in the rule of law and a loss of public confidence in the justice system. By providing for both summary enforcement mechanisms and appeal court enforcement mechanisms, this provision strikes the right balance between effective enforcement and due process of law. It is important to note, however, that enforcement of court decisions is not always straightforward. In some cases, a convicted person may refuse to comply with a court order, or may not have the means to pay a fine or complete community service. In such cases, it is up to the enforcement authorities to determine the appropriate steps to take to ensure that the court decision is enforced. This may involve additional court hearings, negotiations with the convicted person, or even the use of force in extreme cases. In addition, Section 828(1) only provides for the enforcement of court decisions made by the appeal court. This means that decisions made by lower courts, such as the trial court or the summary conviction court, may not be enforceable under this provision. To ensure that all court decisions are enforceable, other sections of the Criminal Code and related laws provide for the enforcement of lower court decisions. In conclusion, Section 828(1) is an important provision of the Criminal Code of Canada that provides for the enforcement of appeal court decisions. By providing for both summary enforcement mechanisms and appeal court enforcement mechanisms, this provision helps to ensure the rule of law and public confidence in the justice system. However, it is important to remember that enforcement of court decisions is not always straightforward, and that other provisions of the Criminal Code and related laws may be necessary to ensure the enforceability of all court decisions.
STRATEGY
Section 828(1) of the Criminal Code of Canada provides an important provision for the enforcement of a conviction or order made by the appeal court. This section outlines two ways to enforce the decision of the appeal court, either by seeking enforcement in the same manner as if it had been made by the summary conviction court or through the process of the appeal court itself. This section is crucial because it ensures that the orders and convictions handed down by the court are enforced, thereby promoting a just and fair society. In this essay, we will discuss the various strategic considerations that lawyers and litigants should bear in mind when dealing with this section of the Criminal Code of Canada. The first strategic consideration relates to the choice of enforcement method. As outlined in Section 828(1), the decision can be enforced in two ways. The first option, enforcing the order or conviction through the same process as if it had been made by the summary conviction court, is the less costly option. This method would entail following the same procedures as if the decision had been made by the summary conviction court. The second option, seeking enforcement through the appeal court, is the more costly alternative but provides more control over the enforcement process. The litigant can make arguments regarding the most effective way to enforce the decision. This may be particularly relevant where there are complex legal issues at stake. Therefore, counsel should carefully consider which enforcement method is likely to be more effective in their case. Another strategic consideration is whether to employ the assistance of a third party to enforce the decision. It may be strategic to solicit the aid of an outside organization to assist in enforcing the decision. Third-party organizations may have more specialized knowledge or resources available for this purpose. They could include, but are not limited to, court-appointed officers, private investigators, or collection agencies. Counsel could also advise their clients to use online platforms such as virtual legal assistants to help them go through the process smoothly and in a timely manner. When using third-party organizations, counsel must ensure that the third party has the necessary qualifications and experience to undertake this task effectively. It is also essential to confirm that the third party is not in a conflict of interest situation with the client. Careful research into the third party's background is crucial to ensure they are reputable and that they will honour their commitments. Furthermore, counsel must ensure that the client is aware of the risks associated with engaging with third parties and has obtained informed consent before proceeding. The third strategic consideration is the timing of enforcement. It is essential to consider the timing of the enforcement decision, as it can affect the outcome of the process. There may be other legal processes that the client needs to consider, which may conflict with the timing of enforcement. Additionally, it may be strategic to consider the timing of enforcement if the litigant anticipates the other party may appeal the decision further. Counsel should discuss the benefits and drawbacks of timing of enforcement with clients to ensure their interests are being protected. In conclusion, Section 828(1) of the Criminal Code of Canada provides litigants with two methods of enforcing their orders or convictions - by the same process as if it had been made by the summary conviction court or by process of the appeal court. Strategic considerations such as selecting an appropriate enforcement method, engaging third-party help, and timing of enforcement are important factors for counsel to consider when dealing with this section of the Criminal Code of Canada. By taking a strategic approach, litigants can ensure that their orders and convictions are enforced correctly and in an efficient manner.