INTRODUCTION AND BRIEF DESCRIPTION
This section outlines where an application must be made for a criminal trial in superior or provincial courts.
SECTION WORDING
712(1) An application that is made under paragraph 709(1)(b) shall be made (a) to a judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction before which the accused is to be tried; or (b) to a provincial court judge, where the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII.
EXPLANATION
Section 712(1) of the Criminal Code of Canada pertains to the application process for individuals seeking to receive legal aid in preparation for a criminal case. Specifically, it outlines the avenues through which an individual can apply for such aid. According to the section, an application can be made to either a judge of a superior court of criminal jurisdiction or a provincial court judge. The section also highlights the circumstances under which an application can be made to a provincial court judge. Specifically, it states that such an application can be made where the accused or defendant is to be tried by a provincial court judge acting under Part XIX or XXVII. Essentially, this section is meant to provide clarity regarding the process of accessing legal aid for individuals who might require it as they prepare for a criminal case. By providing specific guidelines on where to submit an application, the section aims to ensure that the application process is fair and accessible to all eligible persons. Overall, Section 712(1) serves as an important aspect of the Criminal Code of Canada as it helps to promote the right to legal representation for individuals who might otherwise not be able to afford it. Through this, it contributes to the overall fairness and integrity of the criminal justice system, which is vital for ensuring that justice is served for all individuals involved.
COMMENTARY
Section 712(1) of the Criminal Code of Canada outlines the process for making an application under paragraph 709(1)(b). This section is a part of Canadian criminal law that is crucial to the fair trial of accused persons. It is important to note that this application process is only relevant in cases where an accused person is facing a trial by judge alone. Paragraph 709(1)(b) allows an accused person to apply to have their trial moved to a different jurisdiction. This can be done if the accused believes that they will not receive a fair trial in the original jurisdiction. This situation can arise in cases where there is intense media scrutiny, for example. Section 712(1)(a) provides that an application should be made to a judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction before which the accused is to be tried. This means that an accused person can apply to have their case heard by a different judge in the same court where they are already scheduled to be tried. This provides an opportunity for the accused to bring forward evidence or arguments that support their assertion that they will not receive a fair trial with the judge currently presiding over the case. Section 712(1)(b) provides that an application can also be made to a provincial court judge if the accused is to be tried by a provincial court judge acting under Part XIX or XXVII. This is important because it ensures that all accused persons have equal access to the law and can pursue legal remedies regardless of the court in which they are being tried. Overall, Section 712(1) is a key part of Canadian criminal law that ensures that accused persons are able to pursue legal remedies if they believe that they will not receive a fair trial. It provides a mechanism for accused persons to apply for a change of judge or jurisdiction, and ensures that justice is served fairly for all Canadian citizens.
STRATEGY
Section 712(1) of the Criminal Code of Canada is an important provision for defendants or accused persons who wish to challenge the constitutionality of a law that they are charged under. This provision sets out the procedural requirements for making an application under paragraph 709(1)(b), which allows the accused person to argue that the law they are charged under is invalid because it violates their constitutional rights or freedoms. There are several strategic considerations that defendants or their lawyers should keep in mind when dealing with this section of the Criminal Code. Firstly, timing is crucial. The application must be made before the trial or hearing begins, which means that the defendant or their lawyer must be proactive and file the application as soon as possible. This gives the court time to consider the application and make a ruling before the trial or hearing begins. Another strategic consideration is the choice of court. The application can be made to a judge of a superior court of criminal jurisdiction, a court of criminal jurisdiction before which the accused is to be tried, or to a provincial court judge acting under Part XIX or XXVII. The choice of court may depend on a number of factors, such as the complexity of the legal issues involved, the resources and expertise of the court, and the potential for a quicker or more favorable outcome. A third strategic consideration is the strength of the constitutional argument. The application must be based on a genuine and substantial constitutional question, which means that the accused must have a reasonable argument that the law they are charged under is unconstitutional. This requires careful legal analysis and research, as well as an understanding of the relevant constitutional principles and case law. Having considered these strategic considerations, there are several strategies that defendants or their lawyers could employ when making an application under section 712(1) of the Criminal Code. One possible strategy is to challenge the constitutionality of the law on the basis of a fundamental Charter right or freedom, such as freedom of expression, religion, or equality. This may involve arguing that the law is not rationally connected to its objective, that it infringes on a core principle of justice, or that it violates the principles of overbreadth or vagueness. Another strategy could be to challenge the constitutionality of the law on the basis of international human rights law or comparative constitutional law. This may involve arguing that the law violates Canada's obligations under international human rights treaties, or that similar laws in other jurisdictions have been struck down as unconstitutional. A third strategy could be to challenge the constitutionality of the law on the basis of procedural fairness or natural justice. This may involve arguing that the law denies the accused a fair hearing, that it is arbitrary or capricious, or that it fails to respect the principles of legal certainty or transparency. In conclusion, section 712(1) of the Criminal Code of Canada provides a valuable avenue for defendants or accused persons to challenge the constitutionality of the laws they are charged under. However, success in making such an application depends on a range of strategic considerations, including timing, choice of court, and the strength of the constitutional argument. Employing the right strategies can increase the chances of a favorable outcome, and ultimately ensure that justice is served in accordance with the principles of the Canadian Constitution.