INTRODUCTION AND BRIEF DESCRIPTION
The court of appeal has the authority to make any order regarding costs in relation to an appeal under this section.
SECTION WORDING
839(3) Notwithstanding subsection (2), the court of appeal may make any order with respect to costs that it considers proper in relation to an appeal under this section.
EXPLANATION
Section 839(3) of the Criminal Code of Canada outlines the power of the court of appeal to make orders regarding costs related to an appeal under this section. This section allows the court of appeal to make any order it deems appropriate with respect to the costs incurred during an appeal. In criminal cases, the accused has the right to appeal any conviction or sentence. When an appeal is made under section 839 of the Criminal Code, it is heard by the court of appeal. During the appeal, there may be costs incurred, such as legal fees, travel expenses, and filing fees. Section 839(3) gives the court of appeal the authority to make orders related to these costs, including who is responsible for paying them, how much should be paid, and when they should be paid. The purpose of section 839(3) is to ensure that the costs incurred during an appeal are fairly and justly allocated. The court of appeal considers various factors when making decisions about costs, such as the complexity of the case, the length of the trial, and the conduct of the parties involved. This section allows the court to consider the particular circumstances of each case and make appropriate orders to ensure that justice is served. Overall, section 839(3) is an important provision in the Criminal Code as it ensures that costs related to appeals are handled fairly and justly. It allows the court of appeal to make appropriate orders regarding costs, ensuring that both parties involved are held accountable for expenses incurred during the appeal process.
COMMENTARY
Section 839(3) of the Criminal Code of Canada grants the court of appeal the discretionary power to make any order with respect to costs that it considers appropriate in relation to an appeal under this section, regardless of the provisions set out in subsection (2). This section provides the court of appeal with complete discretion in determining the costs of an appeal and allows for the cost recovery mechanism to be tailored to the particular circumstances of each appeal. In Canada, legal disputes can be costly, and the ability to manage and recover costs is a critical element of the justice system. In criminal appeals, costs refer to the amount of money incurred by the parties involved in the appeal process. For instance, if an accused person appeals their conviction, they would incur legal fees for their lawyer's time, as well as various other costs, such as filing fees, administrative costs, and record preparation fees. In some cases, the successful party of an appeal may be awarded some or all of their costs by the court. Subsection (2) of section 839 sets out the general principle that the appellant, unless otherwise ordered, is responsible for paying the costs of an appeal. However, section 839(3) allows the court to deviate from this general rule and order that either the respondent, the Crown, or both, pay costs to the appellant, depending on the facts and circumstances of the appeal. This discretionary power is intended to ensure that reasonable costs are awarded to the parties involved in the appeal process, while discouraging frivolous or vexatious appeals. The broad wording used in section 839(3) of the Criminal Code favors the court of appeal to exercise its discretion, taking into account various factors such as the complexity of the case, the length of the appeal process, and any delay caused by either party. This approach acknowledges that each appeal is unique and that there are no rigid cost recovery rules that could be applied to all appeals uniformly. This discretionary power allows the court to adjust the cost allocation according to the circumstances and equities of each case. There is also an important public policy component to the court's discretionary power with respect to costs. The power to order costs is intended to serve as a financial deterrent against frivolous or meritless appeals, as a form of financial disincentive for legal tactics with no reasonable prospect of success. This 'loser pays' mentality helps to deter vexatious appeals that waste the court's resources by imposing a potential financial burden on the losing party. In conclusion, section 839(3) of the Criminal Code allows the court of appeal to use its discretion to make orders with respect to costs in the context of a criminal appeal. The court has complete discretion to determine the cost outcome of an appeal, taking into account the individual facts and circumstances of each case. This discretionary power serves as not only a useful tool to allocate costs appropriately, but also as a measure to deter frivolous appeals and support the healthy functioning of the criminal justice system.
STRATEGY
Section 839(3) of the Criminal Code of Canada gives the court of appeal the discretion to make any order with respect to costs that it considers proper in relation to an appeal under this section. This provision provides an opportunity for strategic considerations in criminal appeals. One strategy that can be employed is to carefully consider the potential costs implications of filing an appeal. The court may order the appellant to pay costs to the respondent if the appeal is unsuccessful, which could result in significant financial consequences. Therefore, it is important to weigh the strength of the appeal against the potential cost risks before proceeding with an appeal. Another strategy is to consider the impact of costs on the respondent. If the respondent is likely to face financial hardship as a result of the cost order, this could be a strategic consideration in the appeal. For example, if the respondent is a small business or an individual with limited income, the court may take this into account when determining the appropriate cost order. As a result, appealing parties may choose to take into account the respondent's financial situation in their consideration of what cost order to request. A further strategic consideration is to be aware of the potential impact of a successful appeal on a broader legal or political landscape. For example, a successful challenge to a particular provision of the Criminal Code could have far-reaching consequences for criminal law in Canada. In this situation, the appellant may be more willing to take on the financial risk associated with the cost order in order to achieve a broader legal or social objective. In considering a potential cost order, the appellate court may consider various factors such as the complexity and length of the appeal, the impact of the appeal on the parties, and the public interest in the appeal. Therefore, strategic considerations should take into account these factors, as well as the specific circumstances of the case and the parties involved. Overall, section 839(3) of the Criminal Code of Canada offers opportunities for strategic considerations and tactics in criminal appeals. Careful assessment of the potential cost risks and benefits, as well as other factors, can maximize the chances of success while minimizing the impact of costs. Additionally, it is possible to use this provision to leverage the desired outcome in terms of cost orders that would further advance the interests of the appellants.