INTRODUCTION AND BRIEF DESCRIPTION
Determinations related to making or refusing to make an order under certain subsections are deemed to be questions of law.
SECTION WORDING
278.91 For the purposes of sections 675 and 676, a determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1) is deemed to be a question of law.
EXPLANATION
Section 278.91 of the Criminal Code of Canada specifies that any decision regarding the issuance or refusal of an order under subsection 278.5(1) or 278.7(1) will be classified as a question of law for the purposes of sections 675 and 676. Section 278.5(1) pertains to the issuance of a recognizance order for the protection of other persons commonly known as a Peace Bond. This order is issued when an individual is believed to pose a risk to the safety of another person. Conditions may be imposed on the suspected offender to ensure the safety of the other person. The purpose of the Peace Bond is to protect against any potential harm or threat of violence from the accused individual. On the other hand, Section 278.7(1) relates to the issuance of an order for the protection of a victim or witness in a criminal proceeding. This type of order is issued when a witness or victim is subjected to intimidation or harassment in connection with a criminal proceeding. Conditions may be imposed to protect the victim or witness from any potential risk. A determination to make or refuse such an order is deemed a question of law, which means that the decision is made by analyzing legal principles and precedents. This designation of a question of law in this context is important because it ensures that these orders are issued in accordance with the law rather than relying on subjective considerations. Additionally, it facilitates the effectiveness of these orders as a means of protecting individuals who are vulnerable to harm or intimidation by others.
COMMENTARY
Section 278.91 of the Criminal Code of Canada pertains to the legal status of decisions regarding the issuance of orders pursuant to subsection 278.5(1) or 278.7(1). According to this section, such decisions are deemed to be a question of law for the purposes of Sections 675 and 676. This provision highlights the significant role that legal principles play in decisions related to protection for victims of domestic violence. Subsection 278.5(1) of the Criminal Code deals with the issuance of an emergency protection order to protect a victim of domestic violence. In cases where an individual fears for their safety, a peace officer or judge can issue an order that prohibits the alleged abuser from contacting or being near the victim. This emergency order can also require the alleged abuser to relocate from the victim's residence and/or prohibit them from possessing any firearms. The emergency order is only valid for a short period, usually around five days, but it can provide immediate protection to a victim in a dangerous situation. Subsection 278.7(1) is similar to the emergency protection order, but it pertains to a longer-term provision that requires an alleged abuser to refrain from contacting a victim for a specified duration. In some ways, this provision is more comprehensive than the emergency protection order, as it can provide a victim with a longer period of protection from domestic violence. The Criminal Code provides that decisions made regarding the issuance or refusal of such orders are deemed to be a question of law. This provision underlines the importance of legal principles in decisions that affect the safety and security of victims of domestic violence. At its core, this provision recognizes that the law and legal principles should play a key role in weighing the risks and benefits of issuing a protection or restraining order. The decision to issue or refuse an order will depend on the evidence presented to the judge or peace officer. The judge or peace officer must weigh various factors, such as the serious nature of the alleged abuse, the potential harm faced by the victim, and the degree of risk associated with the offender's future conduct. In making these determinations, the judge or peace officer will need to apply legal principles to the individual facts of each case. This requires a command of the law and a keen understanding of how it applies to specific circumstances. Ultimately, section 278.91 of the Criminal Code emphasizes the central role that law and legal principles play in decisions related to the issuance of protection and restraining orders. This provision recognizes that decisions affecting the safety and well-being of victims of domestic violence must reflect sound legal principles and be based on careful assessments of the evidence. By deeming decisions involving orders for protection or restraining orders to be a question of law, this provision emphasizes the importance of the legal profession in the protection of vulnerable individuals.
STRATEGY
Section 278.91 of the Criminal Code of Canada creates a significant strategic consideration for lawyers dealing with cases related to the determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1). This section deems this determination to be a question of law, which shifts the focus of the case to legal arguments rather than factual disputes. This, in turn, impacts the overall litigation strategy employed by lawyers throughout the proceedings. One strategic consideration when dealing with this section is the importance of expert legal advice. Due to the determination being viewed as a question of law, lawyers must ensure that they have a thorough understanding of the relevant legal principles and precedent cases. As such, they may consider enlisting the assistance of legal experts who can provide guidance on how this section may impact their case and what strategies may be most effective. Another potential strategy for lawyers is to focus on applying legal principles in a way that is advantageous to their client's case. This may include utilizing legal arguments that highlight any weaknesses in the prosecution's case or arguing for leniency in sentencing based on unique circumstances for the defendant. In cases where the prosecution has a strong case, lawyers may need to find creative legal avenues to pursue in order to obtain a more favorable outcome for their client. A third strategy could be to focus on factual disputes related to the case. While this section deems the determination to be a question of law, it is still necessary to establish the relevant facts of the case. By emphasizing uncertainties or inconsistencies in the prosecution's evidence, lawyers may be able to change the outcome of the case or shift the focus of the dispute away from legal arguments. Finally, lawyers may also employ a more collaborative approach in cases where a determination pursuant to this section is likely to be contentious. Collaborating with prosecutors, judges, and other legal stakeholders may help to resolve disputes more quickly and efficiently, while also helping to ensure that the interests of their clients are protected. In conclusion, Section 278.91 of the Criminal Code of Canada requires lawyers to approach cases related to determinations pursuant to subsection 278.5(1) or 278.7(1) in a strategic manner. Some of the strategic considerations that should be taken into account include the importance of expert legal advice, the need to focus on legal arguments that are advantageous to the client's case, the importance of emphasizing factual disputes, and the potential benefits of a collaborative approach. It is critical that lawyers consider all of these strategies when dealing with cases impacted by this section of the Criminal Code of Canada in order to provide the best possible representation for their clients.