Criminal Law Notebook

Accused in Court

This page was last substantively updated or reviewed January 2023. (Rev. # 96216)

General Principles

Right to Self-Representation

Accused's Obligation to be Present in Court

Video-link Appearance

See also: Remote Attendance in Court

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 (CanLII), (DOJ)

Note up: 475(1), (2), (3), and (4)


Defined terms: "Act" (s. 2)

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] The court must be satisfied that the accused "absented himself... for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences."[3]

The court is permitted to proceed to sentencing in the absence of the accused, where there is sufficient information to do so.[4]

The finding that the accused absconds is not permitted to be used as an aggravating factor to sentencing but can remove mitigating factors.[5]

Section 475 does not violate section 7[6] or section 11(d) right to a fair trial.[7]


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 (CanLII), (DOJ)

Note up: 544(1), (2), (3), (4), and (5)

  1. ↑ s. 800(2)
  2. ↑ R v Taylor, 2010 BCCA 58 (CanLII), 252 CCC (3d) 197, per Levine JA
  3. ↑ R v Mitsakis, 2022 ONSC 5390 (CanLII), OJ No 4224, per Schreck J, at para 14
    R v Garofoli, 1988 CanLII 3270 (ON CA), 41 CCC (3d) 97, per Martin JA at p. 141
  4. ↑ Mitsakis, supra at para 19
    R v Singh, 2015 ONSC 904 (CanLII) (working hyperlinks pending), per Pomerance J, at paras 9 to 10
  5. ↑ Singh, ibid., at para 19
  6. ↑ R v Czuczman, 1986 CanLII 2714 (ON CA), 26 CCC (3d) 43, per Brooke JA
  7. ↑ R v Tzimopoulos, 1986 CanLII 152 (ON CA), 29 CCC (3d) 304, per curiam

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 some exceptions 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 consider 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 CanLII 14680 (ON SC), [1993] OJ No 3273 (Ont. Ct. (Gen. Div.)), 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 CanLII 13411 (QC CA), , 141 CCC (3d) 52; [1999] J.Q. No 4641, per Fish JA (3:0) - first case to find discretion to continue
    R v Smith, 2004 SCC 14 (CanLII), [2004] 1 SCR 385, per Binnie J (7:0)
    cf. R v Netter, [1975] BCJ No 1191 (CA)(*no CanLII links)
    Collins v The Queen, 1973 CanLII 655 (ON CA), [1973] 3 OR 672 (CA), per curiam
    Cadeddu v The Queen, 1983 CanLII 1763 (ON CA), (1983), 41 OR (2d) 481 (CA), 3 CCC (3d) 112, per curiam
    R v Hay, [1994] OJ No 2598 (CA)(*no CanLII links)
    R v Lewis, 1997 CanLII 3584 (BC CA), (1997), 153 DLR (4th) 184 (BCCA)
  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 CanLII 7212 (NS CA), 49 CCC (3d) 475, per Macdonald JA
    R v JZS, 2008 BCCA 401 (CanLII), 238 CCC (3d) 522, 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), 108 CCC (3d) 364, per Morden ACJ
  2. ↑ R v Wills, 2006 CanLII 31909 (ON SC), [2006] OJ No 3662 (SCJ), 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), 179 Man R (2d) 227, per Darichuk J, at para 15
    R v Hardy, 1990 CanLII 5615 (AB QB), 62 CCC (3d) 28, per Mcdonald J
  2. ↑ Boone, supra, at para 16
    R v H(BC), 1990 CanLII 10964 (MB CA), 58 CCC (3d) 16, 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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