Obligation of Accused to be Present During Proceedings

From Criminal Law Notebook
This page was last substantively updated or reviewed November 2022. (Rev. # 96151)

General Principles

See also: Accused in Court and Remote Attendance of Accused

Appearance Other Than Trial

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]

Under Part XVI, Compelling Appearance of an Accused Before a Justice and Interim Release, s. 502.1 reads:

Appearance of the accused

502.1 (1) Except as otherwise provided in this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)], an accused who is required to appear in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] shall appear in person but may appear by audioconference or videoconference, if arrangements are made with the court in advance and those arrangements are satisfactory to the justice.

Witness in Canada

(2) Despite section 714.1 [audioconference and videoconference – witness in Canada], a witness in Canada who is required to give evidence in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] may do so by audioconference or videoconference, if it is satisfactory to the justice.

Witness outside Canada

(3) For greater certainty, sections 714.2 to 714.8 [video and audio evidence] apply when a witness outside Canada gives evidence in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)].

Participants

(4) A participant, as defined in subsection 715.25(1) [definition of participant], who is to participate in a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] shall participate in person but may participate by audioconference or videoconference, if it is satisfactory to the justice.

Justice

(5) The justice who is to preside at a proceeding under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] shall preside in person but may preside by audioconference or videoconference, if the justice considers it necessary in the circumstances.
2019, c. 25, s. 216; 2022, c. 17, s. 30(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 502.1(1), (2), (3), (4), and (5)

This provision came into force on December 18, 2019.

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

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.

Section 650 sets out the base requirement that the accused be present for their trial on an indictable matter as well as exceptions and other permitted accommodations. The section states:

Accused to be present

650 (1) Subject to subsections (1.1) and (2) [exceptions to requirement of accused being personally present] and section 650.01 [designation of counsel], an accused, other than an organization, shall be present in court during the whole of their trial, either in person or, if authorized under any of sections 715.231 to 715.241 , by audioconference or videoconference.

Appearance by counsel

(1.1) The court may, with the consent of the prosecutor and the accused, allow the accused to appear by counsel for any part of the trial, other than a part in which the evidence of a witness is taken. [omitted (2)]

To make defence

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.

R.S., 1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77; 2002, c. 13, s. 60; 2003, c. 21, s. 12; 2019, c. 25, s. 274; 2022, c. 17, s. 39.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 650(1) and (3)

Section 650 protects the "fundamental right" and "duty" to be present at trial.[1] Violation of the section will generally render the trial void irrespective of whether any prejudice was caused.[2] Counsel are not permitted to waive this requirement.[3]

The prohibition is more lenient in certain circumstances. Non-presence of the accused during counsel submissions on an admissibility issue, absent prejudice, can be treated as a procedural irregularity and may not require a new trial.[4]

Purpose of s. 650

There are two purposes for the requirement of personal attendance for trial. First, it permits the accused to hear the evidence so as "to put forward a defence". Second, the accused is able to see "that the correct procedure is followed and that the trial is fair."[5]

It further respects the "right of the accused to fully participate in the proceedings."[6]

Meaning of "presence"

Presence includes presence during sentencing.[7]

Presence includes having sufficient "mental capacity to participate in the proceedings in a meaningful way"[8]

A proceeding against an accused who is not "mentally present" is equivalent to proceeding in absentia.[9]

Charter and section 650

Where there is a violation of s. 650, it may also amount to a violation of s. 7 and 11(d) of the Charter of Rights and Freedoms. A Charter violation cannot be treated as a procedural irregularity.[10]

History

The statutory requirement was first found in the Criminal Code 1954.[11]

  1. ↑ R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA (3:0), at para 9 ("...the right of the accused to be present at trial is a fundamental right protected by s. 650 of the Criminal Code, R.S.C. 1985, c. C-46.")
    R v D, 1982 CanLII 3324 (ON CA), 68 CCC (2d) 13, per Martin JA, at para 23 ("Mr. Doherty for the Crown in a most able argument did not dispute the general proposition that, subject to certain exceptions, an accused has not only an absolute right, but a duty, to be present at his trial.") R v Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694, per Dickson CJ, at para 38
  2. ↑ R v Meunier, 1966 CanLII 50 (CSC), [1966] RCS 399
  3. ↑ R v Dumont, Bellegarde and Yuzicappi, 1984 CanLII 2432 (SK CA), 35 Sask R 112, per Hall JA, at para 5 ("The provisions of s. 577(1) cannot be waived by counsel. Under these circumstances the convictions must be set aside and a new trial ordered.")
  4. ↑ R v Mohebtash, 2007 BCCA 307 (CanLII), 220 CCC (3d) 244, per Hall JA, at para 14 ("In my opinion, the short absences of the appellant from the courtroom while legal argument occurred in his absence were of no particular moment in these trial proceedings. I cannot think that a fair‑minded and knowledgeable observer would have any belief that what occurred here had any capacity to work an injustice upon this appellant. I entirely agree with the comment of trial counsel for the appellant that there was no prejudice caused by the events to the appellant. What occurred here was within the terms of s. 686(1)(b)(iv), a procedural irregularity at trial that occasioned no prejudice to the appellant. In those circumstances, I would invoke the provisions of that section.")
  5. ↑ R v Chan, 2002 ABQB 866 (CanLII), 169 CCC (3d) 419, per Sulyma J, at para 35
  6. ↑ R v Reale, 1973 CanLII 55 (ON CA), [1973] 3 OR 905, 13 CCC (2d) 345 (Ont CA), per curiam
  7. ↑ R v Hertrich, 1982 CanLII 3307 (ON CA), 67 CCC (2d) 510, per Martin JA
  8. ↑ jv8d9, per Campbell J
    R v Taylor, 1992 CanLII 7412 (ON CA), [1992] O.J. No. 2394, per Lacourciere J, at para 50
  9. ↑ CWW, supra, at para 53 R v Walker, 2019 ONCA 765 (CanLII), per Fairburn J, at para 44
  10. ↑ R v Dedam, 2018 NBCA 52 (CanLII), 364 CCC (3d) 360, per Quigg JA
  11. ↑ R v Pazder, 2015 ABQB 493 (CanLII), 21 Alta LR (6th) 130, per Germain J, at para 243

What Constitutes "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 accused's "vital interests."[2]

Vital Interests

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]

This can include any "normal part of the trial process" of "determining guilt."[4]

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.

Examples

The following are examples that are "part of the trial process":[5]

  • arraignment and plea,
  • the empanelling of the jury,
  • the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence),
  • rulings on evidence,
  • arguments of counsel,
  • addresses of counsel to the jury,
  • the judge's charge, including requests by the jury for further instructions,
  • the reception of the verdict and
  • imposition of sentence if the accused is found guilty.
Contact with Jurors

The judge may not interview jurors outside of the presence of the accused.[6]

Discussions between the judge and prospective jurors are part of trial and must be in presence of accused.[7]

As a general practice, any communications between prospective jurors and the judge should be recorded. Any reasons for excluding a prospective juror should also be on the record.[8]

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.[9]

The judge talking with the jury constables and reporter after trial when she heard that members of the jury were pressured in their verdict.[10]

Trial Includes Voir Dires

Any voir dire is considered part of the trial and therefore is subject to the requirements of s. 650 the same the actual trial.[11]

  1. ↑ R v Sinclair, 2013 ONCA 64 (CanLII), 300 CCC (3d) 69, per Rouleau JA, at para 15 : cites many examples
  2. ↑ Sinclair, ibid., at para 15
    R v Vezina; R v Cote, 1986 CanLII 93 (SCC), [1986] 1 SCR 2, per Lamer J
  3. ↑ Sinclair, supra, at para 17 (discussions occurred without accused present, however, discussions were summarized to accused in court and only finalized in accused presence.)
    R v Dunbar, 1982 CanLII 3324 (ON CA), 68 CCC (2d) 13, per Martin JA
  4. ↑ R v Hertrich, 1982 CanLII 3307 (ON CA), [1982] OJ No 496, 67 CCC (2d) 510 (CA), at para 50
  5. ↑ Hertrich, supra
  6. ↑ Vezina, supra
    R v Fenton, 1984 CanLII 633 (BCCA), 11 CCC (3d) 109, per Taggart JA
  7. ↑ Sinclair, supra
  8. ↑ Sinclair, supra
  9. ↑ R v James, 2009 ONCA 366 (CanLII), 244 CCC (3d) 330, per Rosenberg JA
  10. ↑ R v Phillips, 2008 ONCA 726 (CanLII), 242 OAC 63, per MacPherson JA
  11. ↑ R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA (3:0), at para 9 ("... a voir dire is part of the trial. For the purposes of s. 650 of the Code, there is no distinction between receiving evidence on a voir dire and receiving evidence at the trial proper. Mr. Edwardsen had the same right to be present for the evidence led on the voir dire as he had for any part of the trial.")
    R v Ali, Boparai, Khan & Malonga-Massamba, 2020 BCSC 996 (CanLII), per Ehrcke J, at para 10 ("For the purposes of s. 650, a voir dire is considered part of the trial")

Exception

650

[omitted (1) and (1.1)]

Exceptions

(2) The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;
(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or
(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.

[omitted (3)]
R.S., 1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77; 2002, c. 13, s. 60; 2003, c. 21, s. 12; 2019, c. 25, s. 274; 2022, c. 17, s. 39.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 650(2)

Whether to excuse an accused from attending is a matter of judicial discretion and should be considered on its own merits.[1]

Considerations should include:[2]

  • whether the accused was "fully aware of the consequences of his decision";
  • whether the court is content the counsel will represent the interests of the accused;
  • not acting under compulsions to avoid delay.

Historically, the exceptions listed in s. 650(2)(b) are applied with restraint.[3]

An accused can waive his right to be present at trial, and be permitted to be excluded under s. 650(2)(b), where the court is satisfied that the wavier is "informed, clear, and unequivocal."[4]

  1. ↑ R v Drabinsky, 2008 CanLII 40225 (ON SC), 235 CCC (3d) 350, per Benotto J, at para 12
  2. ↑ Drabinsky, ibid., at para 12
  3. ↑ R v Ali, Boparai, Khan & Malonga-Massamba, 2020 BCSC 996 (CanLII), per Ehrcke J, at para 13 ("Although the plain wording of s. 650(2)(b) would appear to create an open-ended discretion, historically, the section has been applied with restraint.")
    R v Pazder, 2015 ABQB 493 (CanLII), 21 Alta LR (6th) 130, per Germain J, at para 241 ("As is obvious from this survey, the first fundamental principle is that Criminal Code, s 650(2)(b) should only be used sparingly, and with caution. An accused’s absence should only occur where there is a valid and legitimate reason that does not offend public policy, and that is beneficial to the accused without prejudicing the fair trial rights of the accused and other trial participants.")
  4. ↑ Ali, supra

Remedy

Where there is a part of the trial without the presence of the accused as a procedural irregularity, it may be cured under s. 686(1)(b)(iv), particularly where there is no prejudice or unfairness against the accused.[1]

  1. ↑ Sinclair, supra

Summary Offences

See also: Accused Arrest Warrants for Failing to Attend Court#Bench Warrant for Failing to Attend Trial for Summary Offence

In Part XXVII concerning summary convictions, s. 800 reads:

When both parties appear

800 (1) Where the prosecutor and defendant appear for the trial, the summary conviction court shall proceed to hold the trial.

Counsel or agent

(2) A defendant may appear personally or by counsel or agent, but the summary conviction court may require the defendant to appear personally and may, if it thinks fit, issue a warrant in Form 7 for the arrest of the defendant and adjourn the trial to await his appearance pursuant thereto.

(2.1) [Repealed, 2022, c. 17, s. 53]

[omitted (3)]
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21; 2019, c. 25, s. 317; 2022, c. 17, s. 53.

– CCC (CanLII), (DOJ)

Note up: 800(1) and (2)

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