INTRODUCTION AND BRIEF DESCRIPTION
This section requires the custodian of an appellant in custody awaiting appeal to apply for a hearing within 30 days of notice of appeal.
SECTION WORDING
819(1) Where, in the case of an appellant who has been convicted by a summary conviction court and who is in custody pending the hearing of his appeal, the hearing of his appeal has not commenced within thirty days from the day on which notice of his appeal was given in accordance with the rules referred to in section 815, the person having the custody of the appellant shall, forthwith on the expiration of those thirty days, apply to the appeal court to fix a date for the hearing of the appeal.
EXPLANATION
Section 819(1) of the Criminal Code of Canada addresses the rights of individuals who have been convicted by a summary conviction court and are currently in custody pending the hearing of their appeal. Specifically, this section requires that if the appeal hearing has not commenced within thirty days from the day on which notice of the appeal was given in accordance with section 815, the person responsible for custody of the appellant must immediately apply to the appeal court to fix a date for the hearing of the appeal. This provision serves as a safeguard to protect the rights of individuals who have been convicted by a summary conviction court and are currently in custody pending their appeal. By requiring that the appeal hearing must commence within thirty days of the notice of appeal being given, this provision ensures that individuals do not spend an unreasonable amount of time in custody without having their appeal heard. This provision is particularly important in cases where an individual's appeal may have a strong chance of success, but delays in scheduling the hearing may result in them remaining in custody even longer. Additionally, by requiring the person responsible for custody to immediately apply to the appeal court to fix a date for the hearing, this provision helps to ensure that the appeal process moves forward in a timely and efficient manner. Overall, Section 819(1) of the Criminal Code of Canada serves as a critical protection for the rights of individuals convicted by a summary conviction court and currently in custody pending their appeal. It helps to ensure that the appeal process moves forward in a timely and efficient manner, and prevents individuals from being kept in custody for extended periods of time without having their appeal heard.
COMMENTARY
Section 819(1) of the Criminal Code of Canada is a provision that is aimed at protecting the rights of appellants who have been convicted by a summary conviction court and are in custody pending the hearing of their appeal. The section prescribes a timeline within which the hearing of an appellant's appeal must commence failure of which the person having the custody of the appellant must make an application to the appeal court to fix a date for the hearing. The reason for the existence of this provision is to ensure that appellants are not held in custody for an unreasonable amount of time without their appeal being heard. The 30-day timeline for the commencement of the appeal hearing is designed to ensure that appellants are not detained indefinitely without redress or the opportunity to have their appeal heard. The provision also seeks to prevent undue delay in the administration of justice, as delays in the hearing of appeals can clog up the court system and lead to a backlog of cases. The protection that Section 819(1) offers to appellants is particularly important in cases where a person's liberty is at stake. The right to a speedy trial and appeal is a fundamental part of the Canadian justice system, and this section helps to ensure that this right is upheld. The provision also helps to protect appellants against unjustified detention, which could occur when appeal hearings are unduly delayed. In practice, however, Section 819(1) has faced some criticism. One of the main concerns raised is that the provision may lead to rushed and hasty appeals, as appeal courts may feel pressure to fix hearing dates within the 30-day requirement. This could compromise the quality of the appeal process and lead to errors being made in the determination of appeals. There is also the risk that, in some cases, delaying the hearing of an appeal may be necessary to ensure that the appeal is conducted thoroughly and fairly. Despite these concerns, Section 819(1) remains an important safeguard for appellants who are in custody pending the hearing of their appeal. The provision strikes a balance between protecting appellants' rights to a speedy appeal process and preventing delays that could result in unjustified detention. Courts must ensure that appeals are heard promptly while also ensuring that the appeal process is conducted fairly and thoroughly. Ultimately, the objective of Section 819(1) is to uphold the principles of justice and fairness, and it is thus an integral component of the Canadian justice system.
STRATEGY
Section 819(1) of the Criminal Code of Canada provides an important remedy for appellants who have been convicted by a summary conviction court. It mandates that when an appellant is in custody pending the hearing of their appeal and the hearing has not commenced within 30 days of the notice of appeal being given, the person with custody of the appellant must apply to the appeal court to fix a date for the hearing. This section is crucial in protecting the rights of appellants and ensuring that they receive timely hearings. Strategic Considerations When dealing with this section of the Criminal Code, it is important to consider the following strategic considerations: 1. Timing: The timing of the notice of appeal is critical. The 30-day timer starts from the day notice is given in accordance with the rules referred to in section 815. It is important to ensure that the notice is served on time and in accordance with the rules, to trigger the protections offered by section 819(1). 2. Custody: The section applies only to appellants who are in custody. If an appellant is not in custody, this section will not apply to them. It is important to establish the custody status of the appellant in order to determine whether section 819(1) applies. 3. Jurisdiction: The appeal court with jurisdiction over the case must be identified and applied to for a hearing date. It is important to ensure that the application is filed with the correct court having jurisdiction over the appeal to avoid delays or errors that could jeopardize the appeal. 4. Adjourning Hearings: If the hearing of the appeal has commenced, it is possible for the appeal to be adjourned at the request of either party or at the discretion of the court. Parties must be vigilant to ensure that adjournments are not used as a delay tactic to deny the appellant their rights under section 819(1). 5. Interpreting the Rules: The rules referred to in section 815 must be interpreted carefully to ensure that the notice of appeal has been given in accordance with them. it is important to understand the rules and their application to the specifics of the case in order to trigger the protections offered by section 819(1). Strategies that could be employed There are a number of strategies that could be employed to ensure that the protections of section 819(1) are fulfilled. These include: 1. Timely Application: The person with custody of the appellant must make the application within 30 days of the notice of appeal being given. It is important to ensure that the application is filed within the correct timeframe to avoid delays. 2. Effective Communication: Communication between parties is key to ensuring that the notice of appeal is served on time and in accordance with the rules. Appellants should ensure that they understand the rules and are able to serve the notice correctly. Communication between parties will also be important in requesting adjournments or fixing hearing dates. 3. Diligence: Parties, including the appellant, must be diligent in following up on their appeals and ensuring that they are heard in a timely manner. This may include following up on applications or communicating with the appeal court and the party with custody. 4. Seeking Legal Representation: Appellants often benefit from seeking legal representation to ensure that their rights are upheld and that their appeal is heard in a timely manner. Lawyers can help appellants understand the rules and procedures and can advocate on their behalf to ensure that their rights are protected in accordance with the law. Conclusion Section 819(1) of the Criminal Code of Canada is a crucial protection for appellants who have been convicted by a summary conviction court. It ensures that they receive timely hearings of their appeals when they are in custody. Strategic considerations and careful application of the rules can help appellants access timely hearings and protect their rights. Diligence, communication, and legal representation are key to ensuring that section 819(1) is effective.