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.
- R.S., c. C-34, s. 710.
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.
(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.
- R.S., 1985, c. C-46, s. 777;
- R.S., 1985, c. 27 (1st Supp.), s. 203.
- Date modified: