Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Rights of surety preserved

768 Nothing in this Part limits any right that a surety has of taking and giving into custody any person for whom they are a surety under a release order or recognizance.

Marginal note:Application of judicial interim release provisions

769 Where a surety for a person has rendered him into custody and that person has been committed to prison, the provisions of Parts XVI, XXI and XXVII relating to judicial interim release apply, with such modifications as the circumstances require, in respect of him and he shall forthwith be taken before a justice or judge as an accused charged with an offence or as an appellant, as the case may be, for the purposes of those provisions.

Marginal note:Default to be endorsed

• 770 (1) If, in proceedings to which this Act applies, a person who is subject to an undertaking, release order or recognizance does not comply with any of its conditions, a court, provincial court judge or justice having knowledge of the facts shall endorse or cause to be endorsed on the undertaking, release order or recognizance a certificate in Form 33 setting out

  • (a) the nature of the default;

  • (b) the reason for the default, if it is known;

  • (c) whether the ends of justice have been defeated or delayed by reason of the default; and

  • (d) the names and addresses of the principal and sureties.

• Marginal note:Transmission to clerk of court

  (2) Once endorsed, the undertaking, release order or recognizance must be sent to the clerk of the court and shall be kept by them with the records of the court.

• Marginal note:Certificate is evidence

  (3) A certificate that has been endorsed on the undertaking, release order or recognizance is evidence of the default to which it relates.

• Marginal note:Transmission of deposit

  (4) If, in proceedings to which this section applies, the principal or surety has deposited money as security for the performance of a condition of an undertaking, release order or recognizance, that money must be sent to the clerk of the court with the defaulted undertaking, release order or recognizance, to be dealt with in accordance with this Part.

Marginal note:Proceedings in case of default

• 771 (1) If an undertaking, release order or recognizance has been endorsed with a certificate and has been received by the clerk of the court,

  • (a) a judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on the Attorney General’s or counsel’s behalf, as the case may be, fix a time and place for the hearing of an application for the forfeiture of the amount set out in the undertaking, release order or recognizance; and

  • (b) the clerk of the court shall, not less than 10 days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety, at the address set out in the certificate, a notice requiring the person to appear at the time and place fixed by the judge to show cause why the amount set out in the undertaking, release order or recognizance should not be forfeited.

• Marginal note:Order of judge

  (2) If subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in the judge’s discretion grant or refuse the application and make any order with respect to the forfeiture of the amount that the judge considers proper.

• Marginal note:Judgment debtors of the Crown

  (3) If a judge orders forfeiture of the amount set out in the undertaking, release order or recognizance, the principal and their sureties become judgment debtors of the Crown, each in the amount that the judge orders them to pay.

• Marginal note:Order may be filed

  (3.1) An order made under subsection (2) may be filed with the clerk of the superior court and if one is filed, the clerk shall issue a writ of fieri facias in Form 34 and deliver it to the sheriff of each of the territorial divisions in which the principal or any surety resides, carries on business or has property.

• Marginal note:Transfer of deposit

  (4) If a deposit has been made by a person against whom an order for forfeiture has been made, no writ of fieri facias may be issued, but the amount of the deposit must be transferred by the person who has custody of it to the person who is entitled by law to receive it.

Marginal note:Levy under writ

• 772 (1) Where a writ of fieri facias is issued pursuant to section 771, the sheriff to whom it is delivered shall execute the writ and deal with the proceeds thereof in the same manner in which he is authorized to execute and deal with the proceeds of writs of fieri facias issued out of superior courts in the province in civil proceedings.

• Marginal note:Costs

  (2) Where this section applies, the Crown is entitled to the costs of execution and of proceedings incidental thereto that are fixed, in the Province of Quebec, by any tariff applicable in the Superior Court in civil proceedings, and in any other province, by any tariff applicable in the superior court of the province in civil proceedings, as the judge may direct.

Marginal note:Committal when writ not satisfied

• 773 (1) Where a writ of fieri facias has been issued under this Part and it appears from a certificate in a return made by the sheriff that sufficient goods and chattels, lands and tenements cannot be found to satisfy the writ, or that the proceeds of the execution of the writ are not sufficient to satisfy it, a judge of the court may, upon the application of the Attorney General or counsel acting on his behalf, fix a time and place for the sureties to show cause why a warrant of committal should not be issued in respect of them.

• Marginal note:Notice

  (2) Seven clear days notice of the time and place fixed for the hearing pursuant to subsection (1) shall be given to the sureties.

• Marginal note:Hearing

  (3) The judge shall, at the hearing held pursuant to subsection (1), inquire into the circumstances of the case and may in his discretion

  • (a) order the discharge of the amount for which the surety is liable; or

  • (b) make any order with respect to the surety and to his imprisonment that he considers proper in the circumstances and issue a warrant of committal in Form 27.

• Marginal note:Warrant to committal

  (4) A warrant of committal issued pursuant to this section authorizes the sheriff to take into custody the person in respect of whom the warrant was issued and to confine him in a prison in the territorial division in which the writ was issued or in the prison nearest to the court, until satisfaction is made or until the period of imprisonment fixed by the judge has expired.

• Definition of Attorney General

  (5) In this section and in section 771, Attorney General means, where subsection 734.4(2) applies, the Attorney General of Canada.

PART XXVIExtraordinary Remedies

Marginal note:Application of Part

774 This Part applies to proceedings in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition.

Marginal note:Appearance in person — habeas corpus

774.1 Despite any other provision of this Act, the person who is the subject of a writ of habeas corpus must appear in court in person.

Marginal note:Detention on inquiry to determine legality of imprisonment

775 Where proceedings to which this Part applies have been instituted before a judge or court having jurisdiction, by or in respect of a person who is in custody by reason that he is charged with or has been convicted of an offence, to have the legality of his imprisonment determined, the judge or court may, without determining the question, make an order for the further detention of that person and direct the judge, justice or provincial court judge under whose warrant he is in custody, or any other judge, justice or provincial court judge, to take any proceedings, hear such evidence or do any other thing that, in the opinion of the judge or court, will best further the ends of justice.

Marginal note:Where conviction or order not reviewable

776 No conviction or order shall be removed by certiorari

• (a) where an appeal was taken, whether or not the appeal has been carried to a conclusion; or

• (b) where the defendant appeared and pleaded and the merits were tried, and an appeal might have been taken, but the defendant did not appeal.

Marginal note:Conviction or order remediable, when

• 777 (1) No conviction, order or warrant for enforcing a conviction or order shall, on being removed by certiorari, be held to be invalid by reason of any irregularity, informality or insufficiency therein, where the court before which or the judge before whom the question is raised, on perusal of the evidence, is satisfied

  • (a) that an offence of the nature described in the conviction, order or warrant, as the case may be, was committed,

  • (b) that there was jurisdiction to make the conviction or order or issue the warrant, as the case may be, and

  • (c) that the punishment imposed, if any, was not in excess of the punishment that might lawfully have been imposed,

  but the court or judge has the same powers to deal with the proceedings in the manner that the court or judge considers proper that are conferred on a court to which an appeal might have been taken.

• Marginal note:Correcting punishment

  (2) Where, in proceedings to which subsection (1) applies, the court or judge is satisfied that a person was properly convicted of an offence but the punishment that was imposed is greater than the punishment that might lawfully have been imposed, the court or judge

  • (a) shall correct the sentence,

    • (i) where the punishment is a fine, by imposing a fine that does not exceed the maximum fine that might lawfully have been imposed,

    • (ii) where the punishment is imprisonment, and the person has not served a term of imprisonment under the sentence that is equal to or greater than the term of imprisonment that might lawfully have been imposed, by imposing a term of imprisonment that does not exceed the maximum term of imprisonment that might lawfully have been imposed, or

    • (iii) where the punishment is a fine and imprisonment, by imposing a punishment in accordance with subparagraph (i) or (ii), as the case requires; or

  • (b) shall remit the matter to the convicting judge, justice or provincial court judge and direct him to impose a punishment that is not greater than the punishment that may be lawfully imposed.

• Marginal note:Amendment

  (3) Where an adjudication is varied pursuant to subsection (1) or (2), the conviction and warrant of committal, if any, shall be amended to conform to the adjudication as varied.

• Marginal note:Sufficiency of statement

  (4) Any statement that appears in a conviction and is sufficient for the purpose of the conviction is sufficient for the purposes of an information, summons, order or warrant in which it appears in the proceedings.

Marginal note:Irregularities within section 777

778 Without restricting the generality of section 777, that section shall be deemed to apply where

• (a) the statement of the adjudication or of any other matter or thing is in the past tense instead of in the present tense;

• (b) the punishment imposed is less than the punishment that might by law have been imposed for the offence that appears by the evidence to have been committed; or

• (c) there has been an omission to negative circumstances, the existence of which would make the act complained of lawful, whether those circumstances are stated by way of exception or otherwise in the provision under which the offence is charged or are stated in another provision.

Marginal note:General order for security by recognizance

• 779 (1) A court that has authority to quash a conviction, order or other proceeding on certiorari may prescribe by general order that no motion to quash any such conviction, order or other proceeding removed to the court by certiorari shall be heard unless the defendant has entered into a recognizance with one or more sufficient sureties, before one or more justices of the territorial division in which the conviction or order was made or before a judge or other officer, or has made a deposit to be prescribed with a condition that the defendant will prosecute the writ of certiorari at his own expense, without wilful delay, and, if ordered, will pay to the person in whose favour the conviction, order or other proceeding is affirmed his full costs and charges to be taxed according to the practice of the court where the conviction, order or proceeding is affirmed.

• Marginal note:Provisions of Part XXV

  (2) The provisions of Part XXV relating to forfeiture of an amount set out in a recognizance apply to a recognizance entered into under this section.

Marginal note:Effect of order dismissing application to quash

780 Where a motion to quash a conviction, order or other proceeding is refused, the order of the court refusing the application is sufficient authority for the clerk of the court forthwith to return the conviction, order or proceeding to the court from which or the person from whom it was removed, and for proceedings to be taken with respect thereto for the enforcement thereof.

Marginal note:Want of proof of order in council

• 781 (1) No order, conviction or other proceeding shall be quashed or set aside, and no defendant shall be discharged, by reason only that evidence has not been given

  • (a) of a proclamation or order of the Governor in Council or the lieutenant governor in council;

  • (b) of rules, regulations or by-laws made by the Governor in Council under an Act of Parliament or by the lieutenant governor in council under an Act of the legislature of the province; or

  • (c) of the publication of a proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official gazette for the province.

• Marginal note:Judicial notice

  (2) Proclamations, orders, rules, regulations and by-laws mentioned in subsection (1) and the publication thereof shall be judicially noticed.