INTRODUCTION AND BRIEF DESCRIPTION
Remission orders may include costs incurred in proceedings, but not for private prosecutors.
SECTION WORDING
748.1(2) An order for remission under subsection (1) may include the remission of costs incurred in the proceedings, but no costs to which a private prosecutor is entitled shall be remitted.
EXPLANATION
Section 748.1(2) of the Criminal Code of Canada pertains to orders of remission in criminal proceedings. Remission is defined as the reduction or cancellation of a penalty or punishment. In this section, a judge has the power to order the remission of a sentence or punishment imposed on a person who has been convicted of a criminal offence. The judge may also order the remission of any costs incurred in the criminal proceedings. However, this provision stipulates that any costs to which a private prosecutor is entitled shall not be remitted. A private prosecutor is a person who is not a government prosecutor but initiates and conducts a prosecution in a criminal proceeding based on their own interests or grievances. The private prosecutor is entitled to recover the costs expended in the prosecution process. Therefore, a judge cannot include the costs to which a private prosecutor is entitled in an order for remission. This provision ensures that the private prosecutor is adequately compensated for their time, effort, and resources expended in the prosecution process. It prevents the individual who has been convicted of a criminal offence from being relieved of their financial obligations towards the private prosecutor. In summary, section 748.1(2) of the Criminal Code of Canada aims to ensure that the remission of costs in criminal proceedings does not affect the rights of private prosecutors to recover their costs. It ensures that private prosecutors are not unfairly penalized by a judge's order for remission. Overall, this provision plays an important role in ensuring that criminal proceedings are conducted fairly and efficiently.
COMMENTARY
Section 748.1(2) of the Criminal Code of Canada imposes a limitation on the power of a court to order remission that covers the costs incurred in criminal proceedings. It specifies that the grant of remission can, in certain cases, include the remission of costs. However, this remission of costs is not applicable to costs that are the entitlement of a private prosecutor. Legal proceedings, including those that deal with criminal offenses, are often costly, protracted, and time-consuming. The cost of legal proceedings can be so exorbitant that some people may be deterred from pursuing a case to its logical conclusion. It is not unusual for individuals facing criminal charges to require financial assistance or support from relatives or institutions to be able to pay the costs. This is especially true for persons who may be wrongfully accused and who must prove their innocence. The power to order the remission of costs is an essential provision in the Criminal Code of Canada. This provision can, at times, mitigate the burden of expenses associated with legal proceedings. In some cases, it may make the difference between pursuing a case to its logical conclusion or abandoning it altogether. However, the restriction imposed by this provision on the remission of costs to be paid to a private prosecutor, raises concerns for some human rights activists and advocates. This restriction may have unintended consequences that can reduce the effectiveness of criminal proceedings and undermine the public interest. Private prosecutors often bring cases to court because they believe that certain violations of the law have occurred, and they seek redress. Private prosecutors may also bring cases concerning the same legal issues that the government is already dealing with in identical proceedings. One of the advantages of using private prosecutors is that they help to reduce the backlog of cases that can occur when there is limited access to government prosecutors. Private prosecutors can promote the proper functioning of the criminal justice system by augmenting government efforts to prosecute crime. The exclusion of the remission of costs associated with private prosecutor entitlement may have unintended consequences. For example, the prospect of paying the fees associated with a private prosecutor might deter private individuals from initiating a case. This exclusion could undermine efforts to promote access to justice and compromise fundamental principles of fairness. In addition to the impact on private prosecutors, there is a broader responsibility to consider the impact on the public interest. Because of the essential role that private prosecutors play in the efficient administration of justice, the elimination of costs associated with their involvement in the legal process could lead to unnecessary delays and backlogs in the justice system. Moreover, this restriction may have an adverse impact on the overall quality of justice in Canada, as it may discourage private prosecutors from pursuing what they perceive to be legitimate cases. In conclusion, although the provision for the remission of costs in legal proceedings is a welcome one, there is a need to consider the broader implications of section 748.1(2). The exclusion of the remission of costs pertaining to private prosecutors may have unintended and undesirable consequences, such as hindering access to justice, reducing the efficiency of the court system, and undermining the quality of justice in Canada. Therefore, it is important to re-examine this provision to ensure that it effectively promotes fairness, access, and the proper administration of justice in Canada.
STRATEGY
Section 748.1(2) of the Criminal Code of Canada sets out the rules for remission orders in criminal proceedings. This provision allows for the remission of costs incurred during the proceedings but specifically excludes any costs to which a private prosecutor is entitled. These provisions have significant implications for lawyers and litigants, particularly when considering whether to bring a private prosecution. One strategic consideration when dealing with this provision is whether to bring a private prosecution at all. As noted above, private prosecutors are excluded from any potential cost remission under this section. Therefore, a private prosecutor may be more hesitant to commence proceedings or may be less aggressive in pursuing the case if they know that they may not be able to recover their full costs. This may be particularly true if the case involves complex or lengthy proceedings, which can result in significant legal costs. Another strategic consideration when dealing with this provision is to take steps to minimize costs if a private prosecution is commenced. For example, a private prosecutor could consider seeking pro bono legal assistance or engaging a firm that offers contingency fee arrangements. By doing so, a private prosecutor may be able to reduce their legal costs and increase the likelihood of remission for the remaining costs. Additionally, if costs are awarded against the accused, a private prosecutor may be able to recover some or all of their costs if they have minimized their expenses. A related strategy that could be employed is to attempt to negotiate a settlement with the accused, which could avoid the need for a trial and result in reduced legal costs. In some cases, an accused may be willing to pay a settlement amount to avoid the risk of a lengthy and costly trial. Alternatively, a private prosecutor could attempt to negotiate a plea agreement with the Crown, which could result in a guilty plea from the accused and a reduced sentence. If successful, this could also minimize legal costs and increase the likelihood of remission. Finally, another strategy that could be employed is to seek court-ordered costs against the accused. In some cases, a private prosecutor may be able to convince a judge that the accused acted maliciously or frivolously in defending the case and should therefore pay the costs of the prosecution. If successful, this could result in full cost recovery for the private prosecutor, regardless of whether a remission order is granted under section 748.1. In conclusion, section 748.1(2) of the Criminal Code of Canada has significant implications for lawyers and litigants, particularly when considering whether to bring a private prosecution. There are various strategic considerations and strategies that could be employed in this context, including minimizing legal costs, negotiating settlements or plea agreements, and seeking court-ordered costs. By carefully considering these factors and options, lawyers and litigants can increase their chances of success in private prosecutions while minimizing the costs and risks involved.