Accused in Court

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General Principles

Generally, an accused is expected to be present during the proceedings against him. He must be present for his trial, but may have representation appear on his behalf for non-trial matters.[1]

  1. s. 650(1) requires attendance at trial
    s. 650.01 allows counsel to appear on accused behalf for non-trial matters

Accused and Offender Defined

See also: Criminal Code and Related Definitions

2.
...
“offender” means a person who has been determined by a court to be guilty of an offence, whether on acceptance of a plea of guilty or on a finding of guilt;
...


Definitions
493. In this Part,
...
“accused” includes

(a) a person to whom a peace officer has issued an appearance notice under section 496, and
(b) a person arrested for a criminal offence;

...
Definitions
672.1 (1) In this Part,
...
“accused” includes a defendant in summary conviction proceedings and an accused in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered;
...
Definitions
716. In this Part,
...
“accused” includes a defendant;
...
R.S., 1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995, c. 22, s. 6; 1999, c. 5, s. 29(E).


CCC


Right to Representation

See also: Representation at Trial

A judge must make adequate inquiries into whether the accused wants to be represented by counsel.[1] He should be "thorough" in his explanation of the importance of exercising the right.[2] Failure to do so may infringe the accused's Charter rights under s. 7.[3]

  1. R v Boone, 2003 MBQB 292 (CanLII) at para 15
    R v Hardy 1990 CanLII 5615 (AB QB), (1990), 62 CCC (3d) 28 (Alta. Q.B.)
  2. Boone at para 16
    R v H.(B.C.), (1990), 58 CCC (3d) 16(*no link) at 22
  3. R v Boone, supra, at para 15
    see also Hardy, supra

Accused's Presence at Court Other Than For Trial

On a summary conviction matter, the accused may appear in person or by counsel or agent.[1]

  1. s. 800(2)

Video-link Appearance

800.
...
Video links
(2.1) Where the court so orders and the defendant agrees, the defendant who is confined in prison may appear by closed-circuit television or any other means that allow the court and the defendant to engage in simultaneous visual and oral communication, if the defendant is given the opportunity to communicate privately with counsel, in a case in which the defendant is represented by counsel.
...
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21.


CCC

Condition for remote appearance
848. Despite anything in this Act, if an accused who is in prison does not have access to legal advice during the proceedings, the court shall, before permitting the accused to appear by a means of communication that allows the court and the accused to engage in simultaneous visual and oral communication, be satisfied that the accused will be able to understand the proceedings and that any decisions made by the accused during the proceedings will be voluntary.
2002, c. 13, s. 84.


CCC

See also: Release and Attendance#Procuring the Attendance of a Prisoner

Accused's Presence at Trial

Under s. 650(1) (indictable matters) and 800(2) (summary matters), the accused must be present for the whole of their trial.

The meaning of "trial" is broad and can refer to any proceedings that form part of the "trial process for determining the guilt or innocence of the accused" as well as penalty.[1]The key factor is whether the proceedings involved the the accused's "vital interests."[2]

In-chambers discussions without the accused on certain issues of jury selection is preliminary in nature and so does not engage the accused's "vital interests".[3]

Under s.650(1.1) and (1.2), the court may order that the accused appear by way of video link where all the parties agree. This can include parts of the trial where evidence is not being taken so long as there is a means to have defence counsel consult with their client.

The court may exclude the accused from their trial under s.650(2) for three situations: 1) where the accused "misconducts himself by interrupting the proceedings" so much so that it would be infeasible to continue; 2) where the court finds it "proper"; or 3) where the accused's presence may have an adverse effect on the accused's mental health on a hearing for fitness.

The judge may not interview jurors outside of the presence of the accused.[4]

Discussion in chambers regarding the credibility of witnesses by the trial judge in absence of accused can violate s. 650(1) right to be present.[5]

The judge talking with the jury constables and reporter after trial when she heard that members of jury were pressured in their verdict.[6]

  1. R v Sinclair, 2013 ONCA 64 (CanLII) at para 15 : cites many examples
  2. R v Sinclair at para 15
    R v Vezina; R v Cote, 1986 CanLII 93 (SCC), [1986] 1 SCR 2
  3. R v Sinclair at para 17
    R v Dunbar, (1982), 68 CCC (2d) 13
  4. Vezina
    R v Fenton, 1984 CanLII 633 (BC CA), (1984), 11 CCC (3d) 109
  5. R v James 2009 ONCA 366 (CanLII)
  6. R v Phillips, 2008 ONCA 726 (CanLII)

Right to Face Accusers

The "right to face one's accusers is not in this day and age to be taken in the literal sense...it is simply the right of an accused to be present in court, to hear the case against him and to make answer and defence to it."[1]

This is a qualified right and can be limited by the availability of witness screens, closed-circuit video testimony, video link testimony, and other statutory and common law protections of witnesses.

  1. R v R(ME) (1989), 49 CCC (3d) 475 (NSCA)(*no link)

Use of Restraints in Court

Th is a presumption that the accused should not be in restraints while in court.[1] The crown Bears the burden to establish that the use of restraint is reasonable.[2]

  1. R v McNeill, 1996 CanLII 812 (ON CA)
  2. R v Wills, 2006 CanLII 31909 (ON SC), [2006] O.J. No. 3662 (S.C.J.) at para 45

Sitting Position of Accused

Accused Absconding

Where the accused is required to attend an appearance for a summary offence and does not, the court may issue a warrant for their arrest.[1]

From Preliminary Inquiry or Trial

Accused absconding during trial
475. (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,

(a) he shall be deemed to have waived his right to be present at his trial, and
(b) the court may
(i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or
(ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance,

but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.
Adverse inference
(2) Where a court continues a trial pursuant to subsection (1), it may draw an inference adverse to the accused from the fact that he has absconded.
Accused not entitled to re-opening
(3) Where an accused reappears at his trial that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the court is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the proceedings.
Counsel for accused may continue to act
(4) Where an accused has absconded during the course of his trial and the court continues the trial, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.
R.S., 1985, c. C-46, s. 475; R.S., 1985, c. 27 (1st Supp.), s. 185(F), c. 1 (4th Supp.), s. 18(F).


CCC

For the purpose of s. 475, "abscond" refers to the avoidance of trial "for the purpose of impeding or frustrating" the trial. Merely failure to attend is not enough.[2]

Section 475 does not violate section 7[3] or section 11(d) right to a fair trial.[4]

Merely failing to attend for a trial continuation and the withdraw of defence counsel does not permit a finding that the accused "absconded" within the meaning of s. 475.[5]

Accused absconding during inquiry
544. (1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged,

(a) he shall be deemed to have waived his right to be present at the inquiry, and
(b) the justice
(i) may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with section 548, or
(ii) if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance,

but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to subparagraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.
Adverse inference
(2) Where the justice continues a preliminary inquiry pursuant to subsection (1), he may draw an inference adverse to the accused from the fact that he has absconded.
Accused not entitled to re-opening
(3) Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.
Counsel for accused may continue to act
(4) Where an accused has absconded during the course of a preliminary inquiry and the justice continues the inquiry, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.
Accused calling witnesses
(5) Where, at the conclusion of the evidence on the part of the prosecution at a preliminary inquiry that has been continued pursuant to subsection (1), the accused is absent but counsel for the accused is present, he or she shall be given an opportunity to call witnesses on behalf of the accused and subsection 541(5) applies with such modifications as the circumstances require.
R.S., 1985, c. C-46, s. 544; 1994, c. 44, s. 55.


CCC

  1. s. 800(2)
  2. R v Taylor, 2010 BCCA 58 (CanLII)
  3. Regina v Czuczman, 1986 CanLII 2714 (ON CA)
  4. R v Tzimopoulos, 1986 CanLII 152 (ON CA)
  5. R v Taylor, 2010 BCCA 58 (CanLII)

Organizations as Accused

An accused who is an organization must appear by counsel or agent.[1] Failure of counsel or agent to attend permits the court to order an ex parte trial.[2]

  1. s. 800(3)
  2. S. 800(3)

See Also