section 836

INTRODUCTION AND BRIEF DESCRIPTION

If a person appeals a conviction under section 830, they automatically give up their right to appeal under section 813.

SECTION WORDING

836 Every person who appeals under section 830 from any conviction, judgment, verdict or other final order or determination in respect of which that person is entitled to an appeal under section 813 shall be taken to have abandoned all the persons rights of appeal under section 813.

EXPLANATION

Section 836 of the Criminal Code of Canada outlines the legal consequence for individuals who opt to appeal a conviction, judgment, verdict, or other final order or determination using section 830 of the Criminal Code, rather than section 813. The provision explicitly states that individuals who elect to appeal using section 830 will automatically forfeit all of their rights of appeal under section 813. Section 813 of the Criminal Code grants individuals the right to appeal a conviction, sentence, or judgment that has been made against them in a criminal proceeding. Typically, this option for appeal is available to individuals who feel that there has been a legal error or irregularity in their case that unfairly affected the outcome. Section 830, on the other hand, specifies the process of appealing to a higher court. It is generally used only after the appeal process under section 813 has been exhausted. The consequence of section 836 serves largely to simplify the appeals process by streamlining the options for appeal. By using section 836, individuals essentially forfeit their option to pursue an additional appeal through section 813. This ensures that there is no overlap or duplication of effort in the appeals process and that the process proceeds as efficiently as possible. Overall, section 836 serves as an important provision within the Criminal Code of Canada as it helps to clarify and streamline the options for appeal in criminal cases. It enables individuals to make a well-informed decision about which legal avenue to pursue when seeking to overturn a verdict or judgment, ultimately ensuring a fair and just legal process.

COMMENTARY

Section 836 of the Criminal Code of Canada is a procedural rule that governs the right to appeal in criminal trials. The section provides that a person who appeals under section 830, which pertains to appeals from summary conviction offences, abandons their right to appeal under section 813, which pertains to appeals from indictable offences. Essentially, if a person opts for a summary conviction appeal, they forego their right to appeal the same decision on indictable grounds. This section was introduced as part of the Criminal Law Amendment Act, 1968-69, which aimed to streamline the appeals process and ensure that appeals were not being used as a delaying tactic in criminal trials. At the time, there were concerns that the appeals process was being abused by those who could afford to engage in lengthy litigation, thereby delaying justice for victims and society at large. By limiting the right to appeal to one avenue, the section ensures that appeals are made efficiently and effectively. However, some critics argue that this provision unfairly restricts a defendant's right to appeal. They argue that defendants may not fully understand the implications of choosing a summary conviction appeal, which can result in a waiver of their right to appeal on more serious indictable grounds. Critics also argue that the provision disproportionately impacts marginalized communities who may not have access to legal counsel and are therefore less likely to fully understand the consequences of their appeal decisions. Nonetheless, it should be noted that section 836 does not affect a defendant's ability to appeal on constitutional or jurisdictional grounds. In these cases, a defendant can still appeal their conviction on either summary or indictable grounds. Overall, section 836 of the Criminal Code of Canada is a controversial provision that balances the need for efficient appeals processes with the right to a fair trial. While some argue that it unfairly restricts a defendant's right to appeal, others argue that it is necessary to prevent abuse of the appeals process. Ultimately, the provision highlights the complexities of navigating Canada's criminal justice system and the need for meaningful access to legal representation.

STRATEGY

Section 836 of the Criminal Code of Canada outlines a provision that the accused person must take into consideration when deciding whether to appeal a conviction or judgment. The provision establishes that any person who appeals a conviction, judgment, verdict or other final order or determination under section 830 of the Criminal Code, shall be deemed to have abandoned all of their rights of appeal under section 813. This section thus creates strategic considerations for accused persons, their counsel, and appellate courts. One key strategic consideration for accused persons and their counsel is whether to appeal under section 830 or section 813. If an accused person has a right of appeal under both sections, it is important for them to decide which section is more suitable given the facts of the case. In cases where the accused person has strong grounds for appeal that are not limited to the jurisdictional issue, it may be more beneficial to appeal under section 813 rather than section 830. This is because, while the appeal is limited to the jurisdictional issue under section 830, under section 813, they can appeal on any grounds of appeal that may exist. Further, even if an accused person chooses to appeal under section 830, an important strategic consideration for them is to consider the possibility of abandoning their rights of appeal under section 813. The appellate court would have no jurisdiction to consider issues that are not related to the jurisdictional issue before them. As such, the accused person needs to be cognizant of the potential for an adverse outcome if the court dismisses the appeal under section 830, and they are thus left with no further right of appeal. Another strategic consideration for counsel is how to structure the arguments made under section 830. It may be advantageous to include arguments that do not relate solely to the jurisdictional issue, but which could be appealed if the court decides that section 830 is not applicable. It is important to remember that if the appellate court does not agree with the jurisdictional issue, the accused person would still have their right of appeal under section 813, provided that they have not abandoned this right by appealing under section 830. Finally, and most importantly, the appellate court and trial court need to ensure that section 836 is adequately explained to the accused person before they appeals under section 830. This is because an appeal under section 830 would waive all other grounds of appeal under section 813. It is important that the accused person makes an informed decision when choosing to appeal under section 830. In conclusion, section 836 of the Criminal Code of Canada creates some strategic considerations for the accused person, their counsel, and the appellate court. The accused person must make a careful and informed decision when deciding whether to appeal under section 830, and counsel needs to ensure that the arguments made under section 830 are structured in a manner that preserves the rights of appeal under section 813. The appellate court and trial court must ensure that the accused person is adequately informed of their options and the consequences of their decision before they appeal under section 830. Ultimately, understanding the implications of section 836 is crucial for all parties involved in appeals under the Criminal Code of Canada.