INTRODUCTION AND BRIEF DESCRIPTION
The hearing can be conducted informally as appropriate.
SECTION WORDING
672.5(2) The hearing may be conducted in as informal a manner as is appropriate in the circumstances.
EXPLANATION
Section 672.5(2) of the Criminal Code of Canada provides guidance on the conduct of hearings related to the application of conditional release or detention decisions. This section affirms the principle of proportionality by allowing the hearing to be conducted in as informal a manner as is appropriate for the circumstances. This provision acknowledges that rules of evidence and procedure should not be slavishly applied in this context, as the primary goal of the hearing is to ensure that the decision is made in a fair and just manner. The use of informal procedures can help facilitate a more effective and efficient hearing process. For example, a less formal setting can allow for more open and direct communication between the parties involved, which can promote transparency and understanding. Additionally, a more relaxed atmosphere can also help put the applicant or detainee at ease, allowing for a clearer articulation of their position. However, it is important to note that this provision is not a carte blanche to ignore legal principles and procedures. The level of informality must be appropriate for the specific circumstances of the case, and the presiding officials still have a duty to ensure that the hearing is conducted in a manner that upholds the principles of natural justice and procedural fairness. Overall, the goal of this section is to create an environment that balances the need for procedural safeguards with the importance of an efficient and effective hearing process. By allowing for more informal procedures where appropriate, this section helps to ensure that the conditional release and detention decisions under the Criminal Code are made in a manner that is fair and just.
COMMENTARY
The Canadian justice system is founded on the idea that every person accused of committing a crime has the right to a fair trial. Therefore, the Criminal Code of Canada outlines the procedures that must be followed during legal proceedings. Section 672.5(2) of the Criminal Code is a provision that speaks to the manner in which hearings can be conducted. The provision states that hearings may be conducted in as informal a manner as is appropriate in the circumstances. This provision seeks to ensure that in criminal proceedings, procedures are not overly formal or technical, which could lead to the exclusion of important evidence that could aid in a fair determination of the case. The provision, therefore, encourages the use of common sense in the conduct of legal proceedings, which would promote greater access to justice and aid in the timely resolution of cases. The Criminal Code has been designed to balance the rights of the accused and the needs of victims and society. Throughout the legal process, the accused is presumed innocent until proven guilty, and the burden of proof rests on the prosecution. Therefore, criminal hearings need to be conducted in a way that preserves the dignity, respect, and rights of the accused and ensures the impartiality and competence of the decision-makers. The use of informality in court proceedings is not a radical concept. Legal systems around the world have been moving towards greater informality in recent decades. In Canada, some provinces have enacted reforms to expedite court proceedings, which includes allowing for more informal hearings. The use of informal hearings can provide some benefits, such as reducing the amount of time spent on procedural issues, reducing costs associated with the trial, and providing a less intimidating environment. However, some critics argue that the use of informality in court proceedings could negatively impact the quality of justice. Under formal procedures, lawyers can present their arguments to the judge and make sure all relevant information is entered into the record. In informal hearings, there is a possibility of reliance on informal communication between parties or the judge, which can be subjective. Additionally, evidence may be overlooked or improperly considered if presented in an informal manner. To balance the benefits of informality with the potential impact on the quality of justice, courts must use discretion and consider the specific nature of the case and the context in which the hearing is being conducted. Judges must also be experienced and aware of how to handle informal hearings effectively to ensure that the fairness of the hearing is not compromised. In conclusion, Section 672.5(2) of the Criminal Code recognizes the importance of adopting an appropriate level of informality in criminal proceedings. The use of informality can be beneficial, but it is crucial to balance this with the need to maintain the impartiality and integrity of the judicial process. Consequently, judges and lawyers must conduct themselves with professionalism, competence, and respect for due process to ensure that justice is delivered fairly.
STRATEGY
Before going into the strategic considerations when dealing with section 672.5(2) of the Criminal Code of Canada, it is important to first understand what it means. Essentially, this section of the Criminal Code gives the presiding judge some discretion when conducting a hearing regarding the determinations of mental fitness, which means that the hearing may be conducted in a way that is deemed appropriate under the circumstances. Now, in order to deal with this section of the Criminal Code strategically, there are a number of considerations and strategies that can be employed. These include the following: 1. Understand the context in which the hearing is taking place Strategic consideration: In order to know how to proceed and what strategies to employ, it is important to first understand the context in which the hearing is taking place. This means considering things like the severity of the crime in question, the nature of the mental illness or impairment being assessed, and the resources available for the hearing. Strategies: Depending on the context of the hearing, different strategies may be employed. For example, if the crime in question is very serious, it may be important to take a more formal approach, even within the parameters of section 672.5(2). 2. Know the strengths and weaknesses of your case Strategic consideration: When preparing for a hearing, it is important to have a clear understanding of the strengths and weaknesses of your case. This means knowing what evidence you have to support your case, as well as any potential pitfalls or weaknesses in your argument. Strategies: Depending on the strengths and weaknesses of your case, different strategies may be employed. For example, if you have a strong case with little room for rebuttal, you may take a more aggressive approach in the hearing. 3. Be aware of the role and expectations of the presiding judge Strategic consideration: When dealing with any section of the Criminal Code, it is important to be aware of the role and expectations of the presiding judge. In the case of section 672.5(2), this means understanding that the judge has discretion to conduct the hearing in a way that is appropriate under the circumstances. Strategies: Depending on the judge's expectations and the circumstances of the hearing, different strategies may be employed. For example, if the judge is likely to take a more informal approach, it may be beneficial to focus on building a strong rapport with the judge in order to increase the chances of a positive ruling. 4. Stay focused on the legal issues at hand Strategic consideration: In any legal proceeding, it is important to stay focused on the legal issues at hand. This means sticking to the relevant evidence and arguments, and avoiding getting sidetracked by extraneous issues. Strategies: Depending on the facts and evidence of the case, different strategies may be employed. For example, if there are certain legal precedents or statutes that are particularly relevant to the case, it may be beneficial to focus on those in order to make a strong argument. Overall, when dealing with section 672.5(2) of the Criminal Code of Canada, it is important to consider the context of the hearing, know the strengths and weaknesses of your case, be aware of the role and expectations of the presiding judge, and stay focused on the legal issues at hand. With these considerations in mind, a number of different strategic approaches can be taken in order to make the strongest case possible.