section 9

INTRODUCTION AND BRIEF DESCRIPTION

This section prohibits the conviction or discharge of a person for certain offenses under common law or other Acts prior to April 1, 1955.

SECTION WORDING

9. Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 (a) of an offence at common law, (b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or (c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada, but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

EXPLANATION

Section 9 of the Criminal Code of Canada provides a legal provision that exempts individuals from being convicted or discharged under certain circumstances. This section states that regardless of anything mentioned in the Criminal Code or any other act, no person can be convicted or discharged under section 730 for (a) an offence at common law, (b) an offence under an act of the Parliament of England, or of Great Britain, or the United Kingdom of Great Britain and Ireland or (c) an offense under an act or ordinance enforced in any province, territory, or place before that province, territory, or place became a part of Canada. This means that if an individual is charged with a crime that falls into one of these categories, they cannot be sentenced under section 730 of the Criminal Code, which deals with the sentencing options for criminal offenses. However, this section does not limit the power or authority of the court, judge, justice or provincial court judge to impose punishment for contempt of court if the offense occurred before April 1, 1955. Essentially, Section 9 is a legal provision that acknowledges historical offenses committed before Canada's formation as a nation, but it also prevents overly harsh sentencing for offenses that were not illegal under current laws. The provision recognizes that certain offenses committed in the past may not be illegal under current laws and that punishing individuals retrospectively would be unfair. Overall, Section 9 plays an important role in ensuring that individuals are not unduly punished for offenses committed in certain circumstances.

COMMENTARY

Section 9 of the Criminal Code of Canada is an important provision that can protect individuals from being convicted of certain offences. This section specifically states that no person shall be convicted or discharged under section 730 of an offence at common law, an offence under an Act of the Parliament of England, or an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada. This provision is designed to prevent individuals from being convicted of any crimes that were established before the national legal system of Canada came into existence. We can understand this section of the Criminal Code in the context of Canada's history. Prior to confederation in 1867, Canada was made up of individual British colonies. Each of these colonies had its own set of laws and legal systems. As a result, there was a patchwork of legislation and legal traditions in what would ultimately become Canada. When the country was established in 1867, new federal laws were created, and many of the existing laws were consolidated and rewritten. Section 9 of the Criminal Code of Canada recognizes that some of the old laws were not consolidated or rewritten, and that some people might still be subject to those laws. For example, an individual might be charged with an offence that was established by an old British law that never made its way into Canadian law. In such cases, section 9 would protect the individual from being convicted of the offence. The language used in section 9 is important in understanding its scope. The phrase "notwithstanding anything in this Act or any other Act" demonstrates that the section takes precedence over all other laws in the Criminal Code. This means that if there is a conflict between section 9 and another provision in the Criminal Code, section 9 will prevail. One notable exception to the protections offered by section 9 is the power of a court, judge, justice or provincial court judge to punish individuals for contempt of court. This exception recognizes that the courts have always had the power to punish individuals who act in contempt of their authority. This contempt power is not tied to any specific offence or statute, but rather is an inherent power of the courts. In conclusion, section 9 of the Criminal Code of Canada is an important provision that recognizes the patchwork of laws that existed before confederation. It protects individuals from being convicted or discharged of offences that existed before Canada became a nation. While the scope of protection offered by section 9 is broad, it is important to note that the contempt power of the courts is not affected. Overall, section 9 reflects the unique legal history of Canada and ensures that individuals are not unfairly prosecuted for crimes that have not been brought into the modern legal system.

STRATEGY

Section 9 of the Criminal Code of Canada provides protection to individuals who have been charged with an offence that was enacted prior to the establishment of Canada or under common law. In such cases, it is important to carefully consider the implications of this section and employ appropriate strategies to ensure a strong legal defense. One strategic consideration is to thoroughly research the specific Act, Ordinance, or common law offence under which the individual is charged. This involves understanding the historical context in which the offence was enacted or existed, the relevant legal precedents, and any changes or updates made to the law since its inception. This information can inform the development of a legal strategy that leverages any weaknesses or inconsistencies in the prosecution's case. Another strategy that can be employed is to challenge the constitutionality of the law under which the individual is charged. This may involve arguing that the law violates individual rights or freedoms enshrined in the Canadian Charter of Rights and Freedoms or other legislation. If successful, this approach can result in the charges being dismissed entirely. A third strategic consideration is to seek the counsel of an experienced criminal defense lawyer who has knowledge and expertise in dealing with cases involving historical legal frameworks such as common law or Acts of the Parliament of England. Such a lawyer can provide guidance on the best approaches to take in defending the individual, identify potential legal loopholes or inconsistencies in the prosecution's case, and provide expert advice on how to navigate the legal system. Finally, engaging in public advocacy or media outreach can also be a strategic approach, particularly in cases where the application of historical laws may be seen as unfair or discriminatory. By raising public awareness and rallying support, a legal defense strategy can gain momentum and exert pressure on the prosecution to reconsider their case. In conclusion, the strategic considerations when dealing with section 9 of the Criminal Code of Canada are multifaceted, requiring a carefully developed legal defense strategy that takes into account the specifics of the case, the historical legal framework under which the offence was enacted, and the expertise of experienced criminal defense lawyers. Employing these strategies can help to ensure that individuals charged under historical legal frameworks receive a fair and just legal defense.

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