Remote Attendance of Accused: Difference between revisions

From Criminal Law Notebook
← Older edit
VisualWikitext
m Text replacement - "}} CCC]" to "}}"
Tags: Mobile edit Mobile web edit
m Text replacement - "\{\{Fr\|([^\}\}]+)\}\}" to "Fr:$1"
Tags: Mobile edit Mobile web edit
 
(11 intermediate revisions by the same user not shown)
Line 1: Line 1:
{{Currency|January 2020}}
[[Fr:Téléassistance_de_l%27accusé]]
{{Currency2|January|2023}}
{{HeaderRemote}}
{{HeaderRemote}}
==General Principles==
==General Principles==
{{seealso|Remote Attendance of Counsel or Other Participants}}
{{seealso|Remote Attendance of Counsel or Other Participants}}
{{quotation3|
{{quotation3|
650 (1) Subject to subsections (1.1) to (2) {{AnnSec6|650(1.1) to (2)}} and section 650.01 {{AnnSec6|650.01}}, an accused, other than an organization, shall be present in court during the whole of his or her trial.<Br>
; Accused to be present
650 (1) Subject to subsections (1.1) and (2) {{AnnSec6|650(1.1) and (2)}} and section 650.01 {{AnnSec6|650.01}}, 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 {{AnnSec7|715.231 to 715.241}}, by audioconference or videoconference.


; Video links
; Appearance by counsel
(1.1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken.
(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.
 
(1.2) [Repealed, 2022, c. 17, s. 39]


; Video links
(1.2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel.<Br>
{{removed|(2) and (3)}}
{{removed|(2) and (3)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 650;  
R.S., {{LegHistory80s|1985, c. C-46}}, s. 650;  
{{LegHistory90s|1991, c. 43}}, s. 9;  
{{LegHistory90s|1991, c. 43}}, s. 9;  
Line 19: Line 20:
{{LegHistory00s|2002, c. 13}}, s. 60;  
{{LegHistory00s|2002, c. 13}}, s. 60;  
{{LegHistory00s|2003, c. 21}}, s. 12;
{{LegHistory00s|2003, c. 21}}, s. 12;
{{LegHistory10s|2019, c. 25}}, s. 274.
{{LegHistory10s|2019, c. 25}}, s. 274;
{{LegHistory20s|2022, c. 17}}, s. 39.
|{{CCCSec2|650}}
|{{CCCSec2|650}}
|{{NoteUp|650|1|1.1|1.2}}
|{{NoteUp|650|1|1.1|1.2}}
Line 32: Line 34:
; Principles
; Principles
; Attendance
; Attendance
715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.
715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so in person.


{{LegHistory10s|2019, c. 25}}, s. 292.
{{LegHistory10s|2019, c. 25}}, s. 292;
{{LegHistory20s|2022, c. 17}}, s. 45(E).
|{{CCCSec2|715.21}}
|{{CCCSec2|715.21}}
|{{NoteUp|715.21}}
|{{NoteUp|715.21}}
|{{terms-
|{{terms-
|"Act" (s. 2)
|"Act" (s. 2)
|"person" (s. 2)
}}
}}
{{quotation2|
; Provisions providing for audioconference or videoconference
715.22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.
{{LegHistory|2019, c. 25}}, s. 292.
|{{CCCSec2|715.22}}
|{{NoteUp|715.22}}
|{{terms-
|"Act" (s. 2)
|"person" (s. 2)
}}
}}
{{quotation2|
; General
; Reasons
715.221 If the court denies a request respecting a person’s appearance or participation by audioconference or videoconference under this Part, it shall include in the record a statement of the reasons for the denial.
2022, c. 17, s. 46.
|{{CCCSec2|715.221}}
|{{NoteUp|715.221}}
|{{terms-
|"person" (s. 2)
}}
}}
{{quotation2|
; Cessation
715.222 If the court allows or requires a person’s appearance or participation by audioconference or videoconference under this Part, it may, at any time, cease the use of those technological means and take any measure that it considers appropriate in the circumstances to have the person appear at or participate in the proceedings.
2022, c. 17, s. 46.
|{{CCCSec2|715.222}}
|{{NoteUp|715.222}}
|{{terms-
|"person" (s. 2)
|"person" (s. 2)
}}
}}
Line 45: Line 87:
In Part XX.01 concerning remote attendance by certain persons, s. 715.23 reads:
In Part XX.01 concerning remote attendance by certain persons, s. 715.23 reads:
{{quotation3|
{{quotation3|
; Accused
; Accused and Offenders
; Appearance by audioconference or videoconference
; Considerations — appearance by audioconference or videoconference
715.‍23 (1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including
715.23 Before making a determination to allow or require an accused or offender to appear by audioconference or videoconference under any of sections 715.231 to 715.241, the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances, including
:(a) the location and personal circumstances of the accused;
:(a) the location and personal circumstances of the accused or offender;
:(b) the costs that would be incurred if the accused were to appear personally;
:(b) the costs that would be incurred if the accused or offender were to appear in person;
:(c) the suitability of the location from where the accused will appear;
:(c) the suitability of the location from where the accused or offender will appear;
:(d) the accused’s right to a fair and public hearing; and
:(d) the accused’s or offender’s right to a fair and public hearing; and
:(e) the nature and seriousness of the offence.
:(e) the nature and seriousness of the offence.
; Reasons
 
(2) If the court does not make an order under subsection (1) {{AnnSec7|715.23(1)}} it shall include in the record a statement of the reasons for not doing so.
2019, c. 25, s. 292;
; Cessation
2022, c. 17, s. 46.
(3) The court may, at any time, cease the use of the technological means referred to in subsection (1) {{AnnSec7|715.23(1)}} and take any measure that the court considers appropriate in the circumstances to have the accused appear at the proceeding.
|{{CCCSec2|715.23}}
|{{CCCSec2|715.23}}
|{{NoteUp|715.23|1|2|3}}
|{{NoteUp|715.23}}
|{{terms-
|"person" (s. 2)
}}
}}
 
{{quotation2|
; Preliminary inquiry
715.231 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at the preliminary inquiry.
 
2022, c. 17, s. 46
|{{CCCSec2|715.231}}
|{{NoteUp|715.231}}
|{{terms-
|"videoconference" (s. 2)
}}
}}
 
{{quotation2|
; Trial — summary conviction offence
715.232 The court may allow an accused to appear by videoconference at a trial for a summary conviction offence
:(a) if the accused is not in custody, with the consent of the accused and the prosecutor; and
:(b) if the accused is in custody, with the consent of the accused.
 
2022, c. 17, s. 46.
|{{CCCSec2|715.232}}
|{{NoteUp|715.232}}
|{{terms-
|"videoconference" (s. 2)
}}
}}
 
{{quotation2|
; Trial — indictable offence
715.233 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at a trial for an indictable offence. However, an accused must not appear by videoconference during a jury trial when evidence is being presented to the jury.
 
2022, c. 17, s. 46.
|{{CCCSec2|715.233}}
|{{NoteUp|715.233}}
|{{terms-
|"videoconference" (s. 2)
}}
}}
 
{{quotation2|
; Plea
715.234 (1) The court may, with the consent of the prosecutor and the accused, allow an accused to appear by audioconference or videoconference for the purpose of making a plea.
 
; Limitation
(2) The court may allow the accused to appear by audioconference only if it is satisfied that
:(a) videoconferencing is not readily available; and
:(b) the appearance by audioconference would permit the court to inquire into the conditions for accepting a plea of guilty under subsection 606(1.1) despite the fact that the court would not be able to see the accused.
 
2022, c. 17, s. 46.
|{{CCCSec2|715.234}}
|{{NoteUp|715.234}}
|{{terms-
|"videoconference" (s. 2)
}}
}}
 
{{quotation3|
; Sentencing
715.235 (1) The court may, with the consent of the prosecutor and the offender, allow an offender to appear by audioconference or videoconference for sentencing purposes.
 
; Limitation
(2) The court may allow the offender to appear by audioconference only if videoconferencing is not readily available.
 
2022, c. 17, s. 46.
|{{CCCSec2|715.235}}
|{{NoteUp|715.235}}
|{{terms-
|{{terms-
|"Act" (s. 2)
|"audioconference" (s. 2)
|"audioconference" (s. 2)
|"videoconference" (s. 2)
}}
}}
}}
}}
Line 76: Line 187:
}}
}}


; Audioconference and videoconference
{{quotation3|
Section 2 defines "audioconference" and videoconference".<ref>
; Accused in custody — no evidence taken
see [[Definitions of Parties, Persons, Places and Organizations]]
715.241 Despite sections 715.231 to 715.233, the court may allow or require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.
</ref>
 
2022, c. 17, s. 46.
|{{CCCSec2|715.241}}
|{{NoteUp|715.241}}
|{{terms-
|"Act" (s. 2)
|"videoconference" (s. 2)
}}
}}
 
{{quotation3|
; Conditions — no access to legal advice
715.242 Despite anything in this Act, before allowing an accused or offender who does not have access to legal advice during the proceedings to appear by audioconference or videoconference, the court must be satisfied that they will be able to understand the proceedings and that any decisions made by them during the proceedings will be voluntary.


{{reflist|2}}
2022, c. 17, s. 46.
|{{CCCSec2|715.241}}
|{{NoteUp|715.241}}
|{{terms-
|"Act" (s. 2)
|"audioconference" (s. 2)
|"videoconference" (s. 2)
}}
}}


===Summary Conviction Offences===
In Part XXVII concerning summary convictions, s. 800 reads:
{{quotation3|
{{quotation3|
800<br>
; Communication with counsel
{{removed|(1) and (2)}}
715.243 An accused or offender who appears by audioconference or videoconference must be given the opportunity to communicate privately with counsel if they are represented by counsel.
; Video links
 
(2.1) If the summary conviction court so orders and the defendant agrees, the defendant who is confined in prison may appear by closed-circuit television or videoconference, as long as the defendant is given the opportunity to communicate privately with counsel if they are represented by counsel.
2022, c. 17, s. 46
<br>
|{{CCCSec2|715.241}}
{{removed|(3)}}
|{{NoteUp|715.241}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 800;
{{LegHistory90s|1997, c. 18}}, s. 111;
{{LegHistory00s|2003, c. 21}}, s. 21;
{{LegHistory10s|2019, c. 25}}, s. 317.
|{{CCCSec2|800}}
|{{NoteUp|800|2.1}}
|{{terms-
|{{terms-
|"summary conviction court" (s. 785)
|"audioconference" (s. 2)
|"videoconference" (s. 2)
|"videoconference" (s. 2)
}}
}}
}}
}}
; Audioconference and videoconference
Section 2 defines "audioconference" and videoconference."<ref>
see [[Definitions of Parties, Persons, Places and Organizations]]
</ref>
{{reflist|2}}


===Preliminary Inquiry===
===Preliminary Inquiry===
Line 109: Line 239:
537 (1) A justice acting under this Part may
537 (1) A justice acting under this Part may
:{{removed|(a), (b), (c), (d), (e), (f), (g), (h) and (i)}}
:{{removed|(a), (b), (c), (d), (e), (f), (g), (h) and (i)}}
:(j) where the prosecutor and the accused so agree, permit the accused to appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the inquiry other than a part in which the evidence of a witness is taken;
:(j) if the prosecutor and the accused consent, allow the accused to appear by counsel for any part of the inquiry, other than a part in which the evidence of a witness is taken; and
:(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate; and
:(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate; and
:(k) for any part of the inquiry other than a part in which the evidence of a witness is taken, require an accused who is confined in prison to appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.
:(k) for any part of the inquiry other than a part in which the evidence of a witness is taken, require an accused who is confined in prison to appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.
{{removed|(1,01), (1.02), (1.1) and (2)}}
{{removed|(1,01), (1.02), (1.1) and (2)}}
(3) and (4) [Repealed, 1991, c. 43, s. 9]<Br>
(3) and (4) [Repealed, 1991, c. 43, s. 9]<Br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 537; {{LegHistory90s|1991, c. 43}}, s. 9; {{LegHistory90s|1994, c. 44}}, s. 53; {{LegHistory90s|1997, c. 18}}, s. 64; {{LegHistory00s|2002, c. 13}}, s. 28; {{LegHistory00s|2008, c. 18}}, s. 22.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 537;  
{{LegHistory90s|1991, c. 43}}, s. 9;  
{{LegHistory90s|1994, c. 44}}, s. 53;  
{{LegHistory90s|1997, c. 18}}, s. 64;  
{{LegHistory00s|2002, c. 13}}, s. 28;  
{{LegHistory00s|2008, c. 18}}, s. 22;
{{LegHistory10s|2019, c. 25}}, s. 242;
{{LegHistory20s|2022, c. 17}}, s. 35.
|{{CCCSec2|537}}
|{{CCCSec2|537}}
|{{NoteUp|537|1}}
|{{NoteUp|537|1}}

Latest revision as of 07:04, 23 July 2024

This page was last substantively updated or reviewed January 2023. (Rev. # 95687)

General Principles

See also: Remote Attendance of Counsel or Other Participants
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.

(1.2) [Repealed, 2022, c. 17, s. 39]

[omitted (2) and (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.

– CCC (CanLII), (DOJ)

Note up: 650(1), (1.1) and (1.2)


Defined terms: "videoconference" (s. 2)

PART XXII.‍01 
Remote Attendance by Certain Persons
Principles
Attendance

715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so in person.

2019, c. 25, s. 292; 2022, c. 17, s. 45(E).

– CCC (CanLII), (DOJ)

Note up: 715.21


Defined terms: "Act" (s. 2) and "person" (s. 2)

Provisions providing for audioconference or videoconference

715.22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice.

2019, c. 25, s. 292.

– CCC (CanLII), (DOJ)

Note up: 715.22

General
Reasons

715.221 If the court denies a request respecting a person’s appearance or participation by audioconference or videoconference under this Part, it shall include in the record a statement of the reasons for the denial.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.221


Cessation

715.222 If the court allows or requires a person’s appearance or participation by audioconference or videoconference under this Part, it may, at any time, cease the use of those technological means and take any measure that it considers appropriate in the circumstances to have the person appear at or participate in the proceedings.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.222

In Part XX.01 concerning remote attendance by certain persons, s. 715.23 reads:

Accused and Offenders
Considerations — appearance by audioconference or videoconference

715.23 Before making a determination to allow or require an accused or offender to appear by audioconference or videoconference under any of sections 715.231 to 715.241, the court must be of the opinion that the appearance by those means would be appropriate having regard to all the circumstances, including

(a) the location and personal circumstances of the accused or offender;
(b) the costs that would be incurred if the accused or offender were to appear in person;
(c) the suitability of the location from where the accused or offender will appear;
(d) the accused’s or offender’s right to a fair and public hearing; and
(e) the nature and seriousness of the offence.

2019, c. 25, s. 292; 2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.23


Defined terms: "person" (s. 2)

Preliminary inquiry

715.231 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at the preliminary inquiry.

2022, c. 17, s. 46

– CCC (CanLII), (DOJ)

Note up: 715.231

Trial — summary conviction offence

715.232 The court may allow an accused to appear by videoconference at a trial for a summary conviction offence

(a) if the accused is not in custody, with the consent of the accused and the prosecutor; and
(b) if the accused is in custody, with the consent of the accused.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.232

Trial — indictable offence

715.233 The court may, with the consent of the prosecutor and the accused, allow an accused to appear by videoconference at a trial for an indictable offence. However, an accused must not appear by videoconference during a jury trial when evidence is being presented to the jury.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.233

Plea

715.234 (1) The court may, with the consent of the prosecutor and the accused, allow an accused to appear by audioconference or videoconference for the purpose of making a plea.

Limitation

(2) The court may allow the accused to appear by audioconference only if it is satisfied that

(a) videoconferencing is not readily available; and
(b) the appearance by audioconference would permit the court to inquire into the conditions for accepting a plea of guilty under subsection 606(1.1) despite the fact that the court would not be able to see the accused.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.234

Sentencing

715.235 (1) The court may, with the consent of the prosecutor and the offender, allow an offender to appear by audioconference or videoconference for sentencing purposes.

Limitation

(2) The court may allow the offender to appear by audioconference only if videoconferencing is not readily available.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.235


Defined terms: "audioconference" (s. 2) and "videoconference" (s. 2)

Accused in prison

715.‍24 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 videoconference, 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.

– CCC (CanLII), (DOJ)

Note up: 715.24


Defined terms: "Act" (s. 2) and "videoconference" (s. 2)

Accused in custody — no evidence taken

715.241 Despite sections 715.231 to 715.233, the court may allow or require an accused who is in custody and who has access to legal advice to appear by videoconference in any proceeding referred to in those sections, other than a part in which the evidence of a witness is taken.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.241


Defined terms: "Act" (s. 2) and "videoconference" (s. 2)

Conditions — no access to legal advice

715.242 Despite anything in this Act, before allowing an accused or offender who does not have access to legal advice during the proceedings to appear by audioconference or videoconference, the court must be satisfied that they will be able to understand the proceedings and that any decisions made by them during the proceedings will be voluntary.

2022, c. 17, s. 46.

– CCC (CanLII), (DOJ)

Note up: 715.241


Defined terms: "Act" (s. 2), "audioconference" (s. 2), and "videoconference" (s. 2)

Communication with counsel

715.243 An accused or offender who appears by audioconference or videoconference must be given the opportunity to communicate privately with counsel if they are represented by counsel.

2022, c. 17, s. 46

– CCC (CanLII), (DOJ)

Note up: 715.241


Defined terms: "audioconference" (s. 2) and "videoconference" (s. 2)

Audioconference and videoconference

Section 2 defines "audioconference" and videoconference."[1]

  1. ↑ see Definitions of Parties, Persons, Places and Organizations

Preliminary Inquiry

Powers of justice

537 (1) A justice acting under this Part may

[omitted (a), (b), (c), (d), (e), (f), (g), (h) and (i)]
(j) if the prosecutor and the accused consent, allow the accused to appear by counsel for any part of the inquiry, other than a part in which the evidence of a witness is taken; and
(j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate; and
(k) for any part of the inquiry other than a part in which the evidence of a witness is taken, require an accused who is confined in prison to appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.

[omitted (1,01), (1.02), (1.1) and (2)]
(3) and (4) [Repealed, 1991, c. 43, s. 9]
R.S., 1985, c. C-46, s. 537; 1991, c. 43, s. 9; 1994, c. 44, s. 53; 1997, c. 18, s. 64; 2002, c. 13, s. 28; 2008, c. 18, s. 22; 2019, c. 25, s. 242; 2022, c. 17, s. 35.

– CCC (CanLII), (DOJ)

Note up: 537(1)


Defined terms: "justice" (s. 2)

See also

Retrieved from "https://criminalnotebook.ca/index.php?title=Remote_Attendance_of_Accused&oldid=95687"