INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the continuation of appearance notices, promises to appear, and recognizances for accused individuals who plead guilty or are found guilty but not convicted.
SECTION WORDING
730(2) Subject to Part XVI, where an accused who has not been taken into custody or who has been released from custody under or by virtue of any provision of Part XVI pleads guilty of or is found guilty of an offence but is not convicted, the appearance notice, promise to appear, summons, undertaking or recognizance issued to or given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.
EXPLANATION
Section 730(2) of the Criminal Code of Canada deals with the situation where an accused person who has not been taken into custody or has been released from custody is found guilty of or pleads guilty to an offense, but is not convicted. In such cases, any appearance notice, promise to appear, summons, undertaking, or recognizance issued or given to the accused will continue to be in effect, as long as the terms of the original order are still valid. This means that even if the accused has entered a guilty plea or been found guilty, they may not be immediately convicted or sentenced. The accused will instead remain subject to the original conditions of release, which may include restrictions on their movement, contact with certain individuals, or other requirements. However, the court, judge, or justice may still order the accused to be taken into custody if they believe it is necessary pending the final disposition of the case. For example, if the accused poses a flight risk or may be a danger to others, the court may order them to be detained until sentencing or another disposition is made. In summary, section 730(2) recognizes that while a guilty plea or conviction is a significant development in a criminal case, it is not necessarily the final outcome. The accused may still have rights and obligations under their original release order, and the court has discretion to order additional measures if necessary.
COMMENTARY
Section 730(2) of the Criminal Code of Canada is a provision that outlines the circumstances under which an accused who has not been taken into custody or has been released from custody may continue to be subject to the conditions of their release following the disposition of their case. The provision applies to cases where an accused pleads guilty or is found guilty of an offence but is not convicted, which can occur in a number of ways under Canadian criminal law. Some examples of non-conviction dispositions include conditional discharges, absolute discharges, and diversions, which may be granted at the discretion of the court or prosecutor depending on the facts of the case and the accused's circumstances. In these cases, the appearance notice, promise to appear, summons, undertaking, or recognizance that was issued to or given to the accused at the time of their initial release will remain in force, subject to its terms, until a disposition is made under subsection (1) of section 730. This means that the accused will continue to be bound by any conditions that were imposed as part of their release, such as reporting regularly to a probation officer, refraining from certain activities or associations, or abstaining from drug or alcohol use. However, the provision also allows for a court, judge, or justice to order that the accused be taken into custody pending disposition. This may happen if the accused is deemed to be a flight risk, a danger to the public, or if there are concerns about their compliance with the conditions of their release. In these cases, the accused will be held in custody until their case is resolved, and they may face additional charges for breach of their release conditions. Overall, section 730(2) serves an important role in allowing the justice system to balance the interests of protecting the public from potential harm with the rights of the accused to be presumed innocent until proven guilty. By providing a framework for non-conviction dispositions and setting out the conditions under which an accused may be released, the provision helps to maintain public safety while also respecting the principles of due process and the right to liberty. However, it is important that courts and judges exercise discretion in applying the provision, taking into account the unique circumstances of each case and ensuring that accused persons are not unduly penalized by prolonged detention or stringent release conditions.
STRATEGY
Section 730(2) of the Criminal Code of Canada has significant implications for the strategic considerations and options available to the defence counsel and the accused. This section outlines the options available when the accused has not been taken into custody or has been released from custody under Part XVI and subsequently pleads guilty or is found guilty of an offence but is not convicted. One strategic consideration in dealing with this section is the potential impact of the accused's current circumstances on their case. For example, if the accused is currently living outside of Canada or is facing significant personal or financial hardships, then it may be in their best interest to avoid being taken into custody pending a disposition. Therefore, the defence counsel may consider advocating for the accused to be released on an undertaking or recognizance, rather than being taken into custody. Another strategic consideration could be the nature and severity of the offence the accused is facing. In some cases, the court may determine that the accused poses a risk to public safety and order them into custody prior to their disposition. If the accused is facing a more serious offence, such as a violent crime, the court may be more likely to order the accused to be taken into custody following their plea or conviction. In such cases, the defence counsel may need to argue against detention or advocate for alternative dispositions such as house arrest or electronic monitoring. Strategies that may be employed in dealing with this section include negotiating a plea bargain or sentence agreement with the Crown prosecutor prior to the accused's guilty plea or conviction. This could include the Crown prosecutor agreeing to not seek detention pending a disposition in exchange for a guilty plea or a reduced sentence. Additionally, the defence counsel could argue mitigating factors, such as the accused's prior good behaviour, family responsibilities, or employment status, to demonstrate that they are not a flight risk or a danger to public safety. The accused may also have the option to seek a bail review or appeal if they are ordered into custody following their plea or conviction. The defence counsel may prepare a strong bail review or appeal application to challenge the court's decision to deny bail and seek the accused's release. In conclusion, Section 730(2) of the Criminal Code of Canada is a crucial aspect of the legal system that affects the strategic considerations and options available to the accused in criminal cases. Advocating for release on an undertaking or a recognizance, negotiating a plea agreement, or arguing mitigating factors are just some of the strategies that could be employed to achieve a favourable outcome for the accused. Ultimately, the defence counsel's ability to effectively navigate this section could make a significant difference in the accused's case.