Criminal Code of Canada - section 713(1) - Providing for presence of accused counsel

section 713(1)

INTRODUCTION AND BRIEF DESCRIPTION

An accused can be present or represented by counsel during the taking of evidence by a commissioner, but failure to do so does not prevent the admission of the evidence if it was taken in accordance with the order and part.

SECTION WORDING

713(1) A judge or provincial court judge who appoints a commissioner may make provision in the order to enable an accused to be present or represented by counsel when the evidence is taken, but failure of the accused to be present or to be represented by counsel in accordance with the order does not prevent the admission of the evidence in the proceedings if the evidence has otherwise been taken in accordance with the order and with this Part.

EXPLANATION

Section 713(1) of the Criminal Code of Canada provides for the appointment of a commissioner to take evidence in criminal proceedings. A judge or provincial court judge may appoint a commissioner and make provisions in the order to allow the accused to be present or represented by counsel during the taking of evidence. However, if the accused fails to be present or to be represented by counsel in accordance with the order, this failure does not prevent the admission of the evidence in the proceedings. This means that even if the accused was not present or represented by counsel during the taking of evidence, the evidence can still be admitted in court as long as it was taken in accordance with the order and the guidelines set out in Part XVII of the Criminal Code that govern the taking of evidence. The purpose of this provision is to provide flexibility in the taking of evidence, while still ensuring that the rules of evidence are followed. It allows for the appointment of a commissioner, who is an independent and impartial individual, to take evidence in a manner that is efficient and cost-effective. It also recognizes that the accused may not always be able to attend the taking of evidence, due to various reasons such as illness, distance, or financial constraints. However, it is important to note that the admission of evidence in criminal proceedings is subject to other requirements under the Criminal Code, such as the rules of evidence and the Charter of Rights and Freedoms. Therefore, while Section 713(1) provides for some flexibility in the taking of evidence, the ultimate decision to admit evidence in criminal proceedings lies with the judge presiding over the trial.

COMMENTARY

Section 713(1) of the Criminal Code of Canada provides guidance on the appointment of a commissioner and the admissibility of evidence in the event that an accused fails to attend or is not represented by counsel during the taking of evidence. Essentially, this provision of the Criminal Code of Canada helps to outline the circumstances under which evidence can be admitted in court, even in the absence of the accused. In practical terms, this law means that a judge or provincial court judge may appoint a commissioner to gather evidence on behalf of the court. The judge may also order that the accused be present or represented by counsel during the taking of evidence. However, if the accused fails to be present or fails to have representation during the taking of the evidence, this does not prevent the evidence from being admitted in the proceedings. This section of the Criminal Code of Canada is essential to the administration of justice in Canada. It serves to balance the rights of the accused with the need to gather evidence and conduct court proceedings in a timely and efficient manner. It recognizes that the accused has the right to be present during the taking of evidence and to be represented by a lawyer, but also acknowledges that the interests of justice may require that evidence be taken in their absence. However, it is important to note that the admissibility of evidence taken in the absence of the accused is not automatic. The evidence must have been taken in accordance with the order and with the requirements of the Criminal Code of Canada. Therefore, any evidence that was improperly obtained or violates the rights of the accused would not be admissible in court, regardless of whether the accused was present or represented by counsel during its taking. In summary, Section 713(1) of the Criminal Code of Canada is a key provision that governs the admissibility of evidence in court. It recognizes the importance of both the accused's rights and the need to efficiently conduct court proceedings. While the provision enables evidence to be taken in the absence of the accused, it does so only if the evidence was obtained in accordance with the law. This helps to ensure that justice is served, and that the rights of all parties are respected throughout the legal process.

STRATEGY

Section 713(1) of the Criminal Code of Canada pertains to the appointment of a commissioner to take evidence in criminal proceedings when the accused is unable to attend court due to certain reasons like illness, injury, being in custody, etc. The section allows judges or provincial court judges to make provisions in the appointment order to ensure that the accused is present during the taking of evidence or is represented by counsel. However, failure of the accused to comply with these provisions does not preclude the admission of the evidence if taken in accordance with the order and the Code. When dealing with this section of the Criminal Code, several strategic considerations come into play. Firstly, the prosecution must weigh the significance of the evidence in question against the potential risks of admitting it in the absence of the accused or their lawyer. This decision should be informed by the nature of the evidence, the strength of the Crown's case, and other contextual factors, such as the accused's history and the prevailing public opinion. If the prosecution decides to proceed with the evidence despite the absence of the accused or their counsel, they must take precautions to ensure that the investigation is conducted fairly and in accordance with the Code. This includes ensuring that the commissioner is appointed in accordance with the Code, is impartial, and complies with all the procedural requirements for gathering the evidence. On the other hand, the defense must strategically consider whether to waive their right to be present at the taking of the evidence or whether to be represented by counsel. Waiving such rights may signify to the Crown that the accused is not interested in the proceedings, which may give the Crown leverage to pursue more aggressive tactics in gathering evidence. Conversely, being present or represented could help the defence scrutinize the evidence being presented and raise reasonable doubts about its authenticity or validity. In any event, both the prosecution and defense must prepare robust arguments based on legal precedent, contextual factors, and the moral considerations of the particular case. They must be able to articulate their positions effectively to the court and challenge any objections or counterarguments the other side may present. In terms of strategies that could be employed when dealing with Section 713(1), the defense may consider filing an application to quash the evidence on the basis that the commissioner is not impartial or that the taking of the evidence was not in compliance with the procedural requirements of the Code. Similarly, they may challenge the admissibility of the evidence on other legal grounds, such as arguments based on Charter rights. The prosecution, on the other hand, may consider seeking other forms of evidence, such as witness testimony or expert analysis, that do not require the accused's presence or representation. They may also choose to target weaker parts of the Crown's case so as to minimize the impact of any evidence that is admitted despite the absence of the accused or their counsel. In conclusion, when dealing with Section 713(1) of the Criminal Code of Canada, both the prosecution and defense must be prepared to adapt their strategies based on the specific circumstances of the criminal proceeding. The nature of the evidence and the strategic considerations surrounding its admissibility are central factors in deciding whether the accused should be present or represented and whether the evidence should be admitted in their absence. Ultimately, sound legal reasoning, contextual considerations, and effective advocacy will play integral roles in determining the outcome of the case.