Criminal Code of Canada - section 515(2.1) - Alternative to physical presence

section 515(2.1)

INTRODUCTION AND BRIEF DESCRIPTION

Accused persons may appear for judicial interim release by telecommunication device with the approval of the justice.

SECTION WORDING

515(2.2) Where, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the appearance shall be by actual physical attendance of the accused but the justice may, subject to subsection (2.3), allow the accused to appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the justice.

EXPLANATION

Section 515(2.2) of the Criminal Code of Canada deals with the manner in which an accused person can appear for the purposes of judicial interim release. Judicial interim release is a court process where an accused person is released from custody prior to their trial, subject to certain legal conditions that ensure their attendance in court. The section specifies that when an accused person is required to appear for judicial interim release, they must physically attend the court. However, the section allows for special circumstances where the accused person may be permitted to appear via telecommunication instead of having to physically attend. Telecommunication devices such as telephones or video conferencing tools have become more and more common in recent years. These devices can allow an accused person to attend court proceedings without physically being there, which can be particularly helpful in situations where an accused person is being held in custody a considerable distance from the court, or where attendance in person may pose a risk to their safety. However, it's important to note that such appearances via telecommunication are only allowed with special permission from the court, as outlined in subsection (2.3) of the section, and there are several factors that the court considers before granting such permission. These may include the physical condition of the accused person, the location of the accused person and the availability of technology to facilitate the appearance, and any potential risks to safety or security. Overall, Section 515(2.2) allows the court to utilize modern technology to allow an accused person to appear for judicial interim release without having to physically attend, provided that the necessary conditions are met and the court approves of the telecommunication method used.

COMMENTARY

The use of modern technology in the criminal justice system has become commonplace in many jurisdictions around the world, including Canada. One example of this is Section 515(2.2) of the Canadian Criminal Code, which allows accused individuals to appear in court by means of telecommunication devices, including phones. This provision aims to reduce the costs and logistical challenges of physically transporting accused individuals to court while still ensuring that they can participate in the judicial process. In practice, telecommunication appearances are most commonly used for bail hearings, where the police or prosecutors will ask the court to detain an accused person pending trial. The accused person will then have the opportunity to argue for their release on bail, either in person or by telephone. The court will consider factors such as the seriousness of the charges, the likelihood that the accused person will flee or re-offend, and the strength of the evidence against them. Critics of telecommunication appearances argue that they can undermine important procedural safeguards, such as the right to appear in person and the right to cross-examine witnesses. It can also be more difficult to assess the credibility of a witness or the demeanour of the accused person when they are not physically present in court. Despite these concerns, telecommunication appearances may be particularly useful in certain circumstances. For example, they can be a valuable tool for individuals who are unable to travel to court due to health or other personal reasons. They can also be useful in rural or remote areas where it may be difficult to transport accused individuals to court. However, it is important to ensure that the use of telecommunication appearances does not become an excuse for cutting corners in the legal process. The accused person must still have access to legal representation and the opportunity to challenge the evidence against them. Judges must also ensure that telecommunication appearances do not unfairly disadvantage the accused person or compromise the fairness of the trial. In conclusion, Section 515(2.2) of the Canadian Criminal Code allows for accused individuals to appear in court by means of telecommunication devices, including phones, for the purposes of judicial interim release. While there are concerns about the potential limitations of such appearances, they can be a useful tool for reducing costs and logistical issues associated with physically transporting accused individuals to court. However, it is important to ensure that the use of telecommunication appearances is balanced against important procedural safeguards and does not unfairly disadvantage the accused person.

STRATEGY

When dealing with section 515(2.1) of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. This section deals with the appearance of an accused for the purpose of judicial interim release and allows for the accused to appear by means of any suitable telecommunication device that is satisfactory to the justice. Some strategies that could be employed when dealing with this section include: 1. Assessing the needs of the accused: Before considering whether to allow the accused to appear by telecommunication device, it is important to assess their needs. Factors like age, health, and the nature of the charges may all play a role in determining whether it is appropriate for the accused to appear remotely. If the accused has special needs that cannot be accommodated by a telecommunication device, then it may not be appropriate to allow them to appear remotely. 2. Evaluating the risk: The decision to allow an accused to appear by telecommunication device must also take into account the risks associated with doing so. It is important to evaluate the risk of flight, the risk of committing further offences, and any other risks that may be associated with allowing the accused to appear remotely. If the risks are deemed to be too high, then it may not be appropriate to allow the accused to appear remotely. 3. Identifying suitable telecommunication devices: Not all telecommunication devices are created equal, and some may not be appropriate for use in court. It is important to identify suitable telecommunication devices that are reliable and provide clear audio and video quality. This may require some research and testing to find the right device for the accused. 4. Preparing the accused: If the accused is going to appear remotely, it is important to ensure that they are prepared for the experience. This may involve providing them with instructions on how to use the telecommunication device, as well as ensuring that they have access to any relevant documents or materials they may need during the appearance. 5. Communicating with the court: When requesting to appear remotely, it is important to communicate clearly with the court and provide them with any information they may need to make an informed decision. This may include information about the accused's needs, the risks involved, and the telecommunication device that will be used. 6. Considering alternative options: Finally, it is important to consider alternative options if appearing remotely is not feasible or appropriate. This may include delaying the appearance until the accused can appear in person, or finding a suitable location where the accused can appear remotely with the assistance of support staff. In summary, when dealing with section 515(2.1) of the Criminal Code of Canada, it is important to carefully consider the needs of the accused, evaluate the risks involved, identify suitable telecommunication devices, prepare the accused, communicate with the court, and consider alternative options if appearing remotely is not feasible or appropriate. By taking these strategic considerations into account, lawyers and accused individuals can navigate this section of the Criminal Code effectively and ensure that they are able to appear in court in a way that is safe, fair, and respectful of their rights.