INTRODUCTION AND BRIEF DESCRIPTION
If a trial is continued, previous evidence may be deemed admissible before the new judge unless both prosecutor and accused agree otherwise.
SECTION WORDING
669.2(5) Where a trial is continued under paragraph (4)(a), any evidence that was adduced before a judge referred to in paragraph (1)(c) is deemed to have been adduced before the judge before whom the trial is continued but, where the prosecutor and the accused so agree, any part of that evidence may be adduced again before the judge before whom the trial is continued.
EXPLANATION
Section 669.2(5) of the Criminal Code of Canada deals with the situation where a trial is adjourned and continued in front of a different judge. Specifically, it addresses the admissibility of evidence that was already presented before the initial judge. Essentially, this provision states that any evidence that was presented before the prior judge is deemed to have been presented before the new judge in the ongoing trial. The purpose of this provision is to avoid redundancy and to ensure that the trial can continue where it left off, without unnecessary delays or duplicative efforts. However, there is an exception to this rule. If both the prosecutor and the accused agree, they may choose to present certain pieces of evidence again before the new judge. This allows for flexibility and allows the parties involved to ensure that the evidence is presented in the clearest and most effective manner possible. Overall, this provision is meant to streamline the trial process and prevent unnecessary repetition. By allowing evidence presented before the prior judge to be deemed admissible before the new judge, the legal system can save time and resources while still ensuring a fair trial and due process.
COMMENTARY
Section 669.2(5) of the Criminal Code of Canada is an important provision that deals with the admissibility of evidence in a criminal trial that has been continued. Essentially, this section provides that any evidence that was adduced before a judge in a previous section of the trial is deemed to have been adduced before the new judge, but it also allows for this evidence to be re-introduced if both the prosecutor and accused parties agree to do so. The purpose of this section is to ensure that the evidence that was presented in the earlier section of the trial is preserved and available for consideration by the new judge. This is important because it can be difficult to recreate the exact circumstances in which evidence was given, particularly if there was a significant gap between the initial part of the trial and the continuation of it. By deeming the original evidence to have been adduced before the new judge, the court is able to proceed with a fuller understanding of the facts of the case and the testimony that has been given. However, the provision also recognizes that in some cases it may be appropriate for evidence to be re-introduced. This might occur, for example, if there was a significant change in circumstances between the two stages of the trial. For instance, if new witnesses or evidence came to light during the intervening period, it might be appropriate to allow this to be presented again in front of the new judge. Alternatively, if there were issues with the initial presentation of the evidence (such as technical problems with audio or video recordings) it might be more appropriate for these parts of the testimony to be re-introduced. It is important to note that the decision about whether to re-introduce any part of the evidence is one that must be made jointly by the prosecutor and the accused. This is a sensible approach because it ensures that both parties have the opportunity to weigh up the advantages and disadvantages of re-introducing the evidence in question. For example, the prosecutor may decide that it is not necessary to re-introduce a particular piece of evidence because they believe it is no longer relevant or they have alternative evidence to rely on. Similarly, an accused person may decide that they do not want certain evidence to be re-introduced because it could hurt their case. Overall, Section 669.2(5) is an important provision because it helps to ensure that the trial is conducted fairly and effectively. By providing a framework for the preservation and re-introduction of evidence, it ensures that the trial can proceed with the fullest possible understanding of the facts of the case. It also recognizes the importance of allowing the prosecutor and the accused to make joint decisions about the admissibility of evidence, which helps to promote fairness and transparency in the trial process.
STRATEGY
Section 669.2(5) of the Criminal Code of Canada outlines the rules surrounding the continuity of evidence in a criminal trial when it is continued under paragraph (4)(a). There are various strategic considerations that lawyers representing the prosecution or the defense must take into account when dealing with this section of the Criminal Code of Canada. The first strategic consideration is the weight that the evidence carries in the trial. When a trial is continued under paragraph (4)(a), any evidence that was adduced before a judge referred to in paragraph (1)(c) is deemed to have been adduced before the judge before whom the trial is continued. Therefore, if the evidence is sensitive and has a significant impact, it must be taken into consideration whether to agree to adduce the evidence again before the judge before whom the trial is continued. Second, the prosecution and the accused need to agree on which parts of the evidence will be adduced again before the judge before whom the trial is continued. In some cases, the accused may prefer to adduce the entire evidence again to challenge the prosecutor's case and decision to continue the trial, which may result in a change of strategy. Third, the prosecution and the defense lawyers need to determine whether the change of venue will have an impact on the trial. The judge before whom the trial is continued may have a different interpretation of the evidence as it relates to the accused, which may alter the outcome of the trial. In some cases, it may be beneficial to agree to adduce the entire evidence again before the judge before whom the trial is continued, especially if there are doubts about the judge's interpretation of the evidence. Fourth, the prosecution and the defense lawyers need to consider the nature of the evidence and whether it requires specialist testimony. In some cases, specialist witnesses may have testified during the first phase of the trial, but they may not be available during the second phase of the trial. If this is the case, the evidence may need to be adduced again with the help of new specialist witnesses before the judge before whom the trial is continued. Fifth, the prosecution and the defense lawyers need to assess the possibility of witness unavailability. In some cases, witnesses may be unavailable during the second phase of the trial, which may necessitate the need for the evidence to be adduced again. If the witnesses are available, it may be possible to agree to adduce only parts of the evidence before the judge before whom the trial is continued. In conclusion, Section 669.2(5) of the Criminal Code of Canada is complex and requires careful consideration and strategic planning when dealing with continuity of evidence in a criminal trial. The prosecution and defense lawyers must assess the weight of the evidence, agree on what parts to adduce again, consider the change of venue, assess the possibility of specialist testimony, and take witness unavailability into account when determining the best course of action. It is essential to be aware of all the considerations when navigating the continuity of evidence in a criminal trial.