INTRODUCTION AND BRIEF DESCRIPTION
This section allows for the accused to be present at the hearing of an application and can be ordered to be brought before the court if he is in custody.
SECTION WORDING
520(3) If the judge so orders or the prosecutor or the accused or his counsel so requests, the accused shall be present at the hearing of an application under this section and, where the accused is in custody, the judge may order, in writing, the person having the custody of the accused to bring him before the court.
EXPLANATION
Section 520(3) of the Criminal Code of Canada pertains to the presence of the accused during the hearing of an application. Essentially, this section grants the judge the power to order the accused to be present if deemed necessary, or if either the prosecutor or the accused or his counsel requests it. If the accused is in custody, the judge may also issue a written order to the person responsible for the accused's custody to bring them before the court. The purpose of this section is to ensure that due process is adhered to in all criminal proceedings. The presence of the accused is important as it provides them with the opportunity to challenge any evidence presented against them, to offer their own evidence and to respond to any allegations made by the prosecution. This also gives the accused the chance to speak on their own behalf and provide any relevant information that may impact the outcome of the case. Furthermore, this section of the Criminal Code of Canada underscores the importance of ensuring that the accused's rights are protected throughout the legal proceedings. It recognizes that being able to attend and participate in the proceedings is vital for the accused, and that they should have access to legal representation when required. Overall, section 520(3) is an important provision in the Criminal Code of Canada that recognizes the need to balance the accused's rights with the requirements of the legal process. It ensures that the accused is not unfairly penalized or prevented from defending themselves due to being absent from the proceedings.
COMMENTARY
Section 520(3) of the Criminal Code of Canada is a provision that mandates the presence of the accused at the hearing of an application filed under this section. The section empowers the courts to order the accused to be brought before the judge, whether or not the accused is in custody, upon the request of the prosecutor or the accused's counsel. The provision also leaves ample discretion with the judge to order the appearance of the accused, even in cases where no application for such appearance has been filed. The purpose of this provision is to maintain the integrity and fairness of the court proceedings by ensuring that the accused is present in court during the hearing of the application. The presence of the accused in the courtroom enables their lawyers to present evidence, cross-examine prosecution witnesses, and make legal arguments on their behalf. It also allows the accused to understand the allegations made against them, to appreciate the nature of the proceedings, and establish a personal connection with the court. In the Canadian criminal justice system, an accused person enjoys the presumption of innocence until and unless they are found guilty beyond a reasonable doubt. Therefore, the presence of the accused during the hearing of the application under section 520(3) is crucial because they have the opportunity to defend themselves against the charges and prove their innocence. Moreover, the presence of the accused enables the court to ensure that the proceedings are conducted in an open and transparent manner, where justice is done publicly and not behind closed doors. Section 520(3) further provides that the judge may order the person holding custody of the accused to bring them to court, where the accused is in custody. This subsection is essential as it ensures that the accused is not unlawfully deprived of their liberty. It also guarantees their rights to be present during their trial, hear the evidence against them, and make their defense. Without this subsection, situations might arise where the accused is detained in custody without the opportunity to defend themselves, which would violate their fundamental rights. In conclusion, Section 520(3) of the Criminal Code of Canada is a crucial provision that guarantees the presence of an accused at the hearing of an application under this section. It ensures that the accused is not unfairly deprived of their liberty and is given a fair hearing on the charges. The provision also serves to maintain the public's confidence in the integrity and fairness of Canada's criminal justice system. Its importance cannot be overstated, and it must be upheld by all stakeholders in the justice system to ensure that justice is done and seen to be done.
STRATEGY
Section 520(3) of the Criminal Code of Canada sets out the rules regarding the presence of the accused during an application hearing related to their detention. This section establishes that the accused must be present at the hearing, unless ordered otherwise by the judge or requested by the prosecutor or the accused. When dealing with this section of the Criminal Code, there are several strategic considerations that must be taken into account. These include the following: 1. Timing: It is important to carefully consider the timing of the application and the hearing. In some cases, it may be beneficial to apply for release at an earlier stage in the proceedings, such as during the bail hearing. Alternatively, it may be strategic to wait until later in the process when more evidence has been gathered or when the Crown's case has become weaker. 2. Evidence: In order to successfully argue for release, it is important to present strong evidence that supports the accused's case. This may include evidence regarding the accused's character, ties to the community, employment history, and family support. 3. Legal Argument: In addition to presenting strong evidence, it is also important to have a clear legal argument that supports the accused's case. This may involve interpreting and applying case law or other legal principles that support the accused's right to release. 4. Negotiation: In some cases, it may be possible to negotiate a release agreement with the Crown that satisfies both parties. This may involve agreeing to certain conditions, such as house arrest or a curfew, in exchange for early release. 5. Public Perception: Finally, it is important to consider the potential public perception of the case and the accused's release. In some cases, the Crown may argue that releasing the accused would be harmful to public safety or would undermine public confidence in the justice system. Given these strategic considerations, there are several strategies that defence counsel may employ when dealing with section 520(3) of the Criminal Code. For example: 1. Presenting Strong Evidence: Defence counsel may choose to present strong evidence that supports the accused's case, such as character references, employment records, and community involvement. This evidence can help to establish the accused's ties to the community and their likelihood of showing up for court. 2. Seeking Surveillance or Electronic Monitoring: In some cases, it may be possible to argue for electronic monitoring or surveillance as an alternative to detention. This can help to address concerns around public safety while allowing the accused to be released from custody. 3. Negotiating with the Crown: Defence counsel may choose to negotiate with the Crown in order to reach a mutually acceptable release agreement. This can be especially effective when both parties recognize that a negotiated agreement is in the best interests of everyone. 4. Challenging the Legality of Detention: In some cases, it may be possible to argue that the accused's detention is unlawful or unconstitutional. This may involve challenging the legality of the detention itself or arguing that the Crown has not met the high threshold required to justify detention. 5. Balancing Public Safety and Individual Liberty: When arguing for release, defence counsel may need to address concerns around public safety while still advocating for the accused's individual rights and liberties. This can involve presenting evidence that addresses concerns around the accused's likelihood of re-offending or their ability to comply with any proposed release conditions. Overall, the strategic considerations for section 520(3) of the Criminal Code of Canada are complex and multi-faceted. Effective defence counsel must carefully assess the evidence, legal arguments, and broader public perception of the case in order to develop a strategy that best protects their client's rights and interests.