Criminal Law Notebook

Accused in Court

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General Principles

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]

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 personally 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 personally 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 personally but may preside by audioconference or videoconference, if the justice considers it necessary in the circumstances.
2019, c. 25, s. 216.
[annotation(s) added]

– CCC

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) to (2) [various 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 his or her trial.

Video links

(1.1) Where the court so orders, and where the prosecutor and the accused so agree, the accused may 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 trial other than a part in which the evidence of a witness is taken.

Video links

(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.

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.

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.
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.
[annotation(s) added]

– CCC

Section 650 protects the "fundamental right" 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]

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.[5]

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.[6]The key factor is whether the proceedings involved the accused's "vital interests."[7]

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".[8]

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.

Contact with Jurors

The judge may not interview jurors outside of the presence of the accused.[9]

Discussions between the judge and prospective jurors are part of trial and must be in presence of accused.[10]

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.[11]

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.[12]

The judge talking with the jury constables and reporter after trial when she heard that members of the jury were pressured in their verdict.[13]

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.[14]

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.[15]

  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.")
  2. ↑ R v Meunier, 1966 CanLII 50 (CSC), [1966] RCS 399
  3. ↑ R v Dumont, Bellegarde and Yuzicappi, 1984 CanLII 2432 (SK CA), 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), 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 Dedam, 2018 NBCA 52 (CanLII), , 364 CCC (3d) 360, per Quigg JA
  6. ↑ R v Sinclair, 2013 ONCA 64 (CanLII), per Rouleau JA, at para 15 : cites many examples
  7. ↑ Sinclair, ibid., at para 15
    R v Vezina; R v Cote, 1986 CanLII 93 (SCC), [1986] 1 SCR 2, per Lamer J
  8. ↑ 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), 68 CCC (2d) 13, 1982 CanLII 3324 (ON CA), per Martin JA
  9. ↑ Vezina, supra
    R v Fenton, 1984 CanLII 633 (BC CA), (1984), 11 CCC (3d) 109, per Taggart JA
  10. ↑ Sinclair, supra
  11. ↑ Sinclair, supra
  12. ↑ R v James, 2009 ONCA 366 (CanLII), per Rosenberg JA
  13. ↑ R v Phillips, 2008 ONCA 726 (CanLII), per MacPherson JA
  14. ↑ 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.")
  15. ↑ Sinclair, supra

Video-link Appearance

See also: Remote Attendance in Court

800.
...

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.
...
R.S., 1985, c. C-46, s. 800; 1997, c. 18, s. 111; 2003, c. 21, s. 21; 2019, c. 25, s. 317.

– 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.
[Repealed 2019, c. 25, s. 329 on September 19, 2019]

– CCC

See also: Procuring the Attendance of a Prisoner


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 [forms] 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) [accused absconding during trial], 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) [accused absconding during trial], 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).
[annotation(s) added]

– 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]

Absconding Accused
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 [order to stand trial or discharge, process and consequences], 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) [consequence of accused absconding preliminary inquiry], 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) [consequence of accused absconding preliminary inquiry], 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) If, at the conclusion of the evidence on the part of the prosecution at a preliminary inquiry that has been continued under subsection (1) [consequence of accused absconding preliminary inquiry], the accused is absent but their counsel is present, the counsel shall be given an opportunity to call witnesses on behalf of the accused, subject to subsection 537(1.01) [power limit issues and witnesses], and subsection 541(5) [depositions of inquiry witnesses] applies with any modifications that the circumstances require.

R.S., 1985, c. C-46, s. 544; 1994, c. 44, s. 55; 2019, c. 25, s. 246.
[annotation(s) added]

– CCC

  1. ↑ s. 800(2)
  2. ↑ R v Taylor, 2010 BCCA 58 (CanLII), per Levine JA
  3. ↑ Regina v Czuczman, 1986 CanLII 2714 (ON CA), per Brooke JA
  4. ↑ R v Tzimopoulos, 1986 CanLII 152 (ON CA), per curiam
  5. ↑ Taylor, supra

Deceased Accused

Generally, a prosecution will terminate by the Court declaring the matter "abated" where the accused dies regardless of the stage of proceedings.[1]

There are is some exception permitted for pending appellate matters.[2]

The Court of Appeal maintains jurisdiction over an appeal where the accused has died. It is in their discretion to either declare the appeal "abated" or considering it on its merits.[3] Discretion should be exercised where the court is satisfied that:[4]

  1. there are serious grounds of appeal and the verdict being appealed carries significant consequences for the party seeking to continue the appeal; or
  2. for any reason where it is in the interests of justice to do so.

The "interests of justice" component will be the predominant consideration and should subsume the other elements.[5]

The "interests of justice" test requires consideration of "all relevant circumstances".[6]

The "overwhelming number" of appeals where the accused dies should result in abatement.[7]

"Scarce judicial resources" should rarely be a "disqualifying consideration".[8]

Fresh evidence leading to factual innocence may be sufficient to be in the interests of justice.[9]

Factors

The court should consider to varying degrees the following non-exhaustive list of factors:[10]

  1. whether the appeal will proceed in a proper adversarial context;
  2. the strength of the grounds of the appeal;
  3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:
    1. a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
    2. a systemic issue related to the administration of justice;
    3. collateral consequences to the family of the deceased or to other interested persons or to the public;
  4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;
  5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.
  1. ↑ R v Ssenyonga, [1993] O.J. No. 3273 (Ont. Ct. (Gen. Div.)), 1993 CanLII 14680 (ON SC), per McDermid J
    R v Neufeldt, 2005 ABPC 163 (CanLII), per Norheim J
    R v Douglas, 2004 BCPC 279 (CanLII), per Lenaghan J
  2. ↑ R v MacLellan, 2019 NSCA 2 (CanLII), per Beveridge JA (2:1)
    R v Jetté (1999), 141 CCC (3d) 52; [1999] J.Q. No 4641, 1999 CanLII 13411 (QC CA), per Fish JA (3:0) - first case to find discretion to continue
    R v Smith, [2004] 1 SCR 385, 2004 SCC 14 (CanLII), per Binnie J (7:0)
    cf. R v Netter, [1975] BCJ No. 1191 (C.A.)(*no CanLII links)
    Collins v The Queen, [1973] 3 O.R. 672 (C.A.), 1973 CanLII 655 (ON CA), per curiam
    Cadeddu v The Queen (1983), 41 O.R. (2d) 481 (C.A.), 3 C.C.C. (3d) 112 (Ont. C.A.), 1983 CanLII 1763 (ON CA), per curiam
    R v Hay, [1994] O.J. No. 2598 (C.A.)(*no CanLII links)
    R v Lewis (1997), 153 D.L.R. (4th) 184 (B.C.C.A.), 1997 CanLII 3584 (BC CA)
  3. ↑ Jette, supra, at para 59 Cadeddu, supra, at pp. 118-119
  4. ↑ Jette, supra, at para 60
  5. ↑ Smith, supra, at paras 41 and 42
  6. ↑ Smith, supra, at para 46
  7. ↑ Smith, supra, at para 46
    Cadeddu, supra, at p. 114
  8. ↑ Smith, supra, at para 47
  9. ↑ e.g. see Jette, supra
  10. ↑ Smith, supra, at para 51


Special Issues of Accused Appearances

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), 1989 CanLII 7212 (NS CA), per Macdonald JA
    R v JZS, 2008 BCCA 401 (CanLII), per D Smith J, at para 34

Use of Restraints in Court

There 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), per Morden ACJ
  2. ↑ R v Wills, 2006 CanLII 31909 (ON SC), [2006] OJ No 3662 (S.C.J.), per Fuerst J, at para 45


Sitting Position of Accused

Accused and Offender Defined

See also: Definitions of Parties, Persons, Places and Organizations

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), per Darichuk J, at para 15
    R v Hardy, 1990 CanLII 5615 (AB QB), (1990), 62 CCC (3d) 28 (Alta. Q.B.), per Mcdonald J
  2. ↑ Boone, supra, at para 16
    R v H(BC), (1990), 58 CCC (3d) 16, 1990 CanLII 10964 (MB CA), per Twaddle JA, at 22
  3. ↑ Boone, supra, at #par15 para 15
    see also Hardy, supra

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

Other Parties

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