INTRODUCTION AND BRIEF DESCRIPTION
Consent of both prosecutor and accused needed for witness evidence if accused cant appear via simultaneous visual and oral communication means.
SECTION WORDING
515(2.3) The consent of the prosecutor and the accused is required for the purposes of an appearance if the evidence of a witness is to be taken at the appearance and the accused cannot appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication.
EXPLANATION
Section 515(2.3) of the Criminal Code of Canada outlines the legal requirements for the taking of evidence from a witness during a court appearance. Specifically, this section specifies that the consent of both the prosecutor and the accused is required if the witness is going to give evidence during an appearance, and the accused cannot appear in person due to certain circumstances. In such cases, the court needs to be able to engage in simultaneous visual and oral communication with the accused, typically through closed-circuit television or other technological means. This helps to ensure that the accused has a fair trial and can fully participate in the proceedings, both in terms of communicating with their legal counsel and hearing the testimony of any witnesses. By requiring the consent of both the prosecutor and the accused, Section 515(2.3) ensures that these technological accommodations are only used in cases where they are truly necessary and appropriate. This helps to balance the needs of the accused with the requirements of criminal justice and is an essential component of ensuring fair and just legal proceedings.
COMMENTARY
Section 515(2.3) of the Criminal Code of Canada is a provision that governs the conduct of court appearances in criminal cases. The section mandates that the consent of both the prosecutor and the accused is required if the testimony of a witness is to be taken during the appearance and the accused is unable to attend in person. This consent is required because the appearance will need to be conducted using closed-circuit television or other technological means that allow visual and oral communication between the court and the accused. The section serves an important purpose in ensuring that the rights of the accused are protected while still ensuring the fair administration of justice. It recognizes that an accused person has a right to attend court in person and to confront their accuser, as provided for under section 11(d) of the Charter of Rights and Freedoms. However, it also recognizes that there are circumstances where the accused may not be able to attend court, such as if they are in custody, are ill or injured, or live in a remote location. By requiring the consent of both the prosecutor and the accused for such appearances, the section prevents the court from unilaterally deciding to conduct the appearance via closed-circuit television without the agreement of the parties. This ensures that the accused's right to attend court in person is not unduly restricted without their consent. Moreover, the requirement for simultaneous visual and oral communication between the accused and the court recognizes the importance of having a real-time exchange of information during court proceedings. This is essential for ensuring that the accused is fully informed of the proceedings and can participate meaningfully in their defense. It also ensures that the court can accurately assess the credibility of witnesses and the evidence presented. In some cases, an accused may agree to attend court by technological means, such as closed-circuit television, even if they could attend in person. This may be done for a variety of reasons, such as to avoid the stress of attending court, to save costs associated with travel or accommodations, or due to health or mobility issues. The section recognizes that such arrangements can be beneficial in appropriate circumstances and aids in resolving matters as quickly and efficiently as possible. In conclusion, section 515(2.3) of the Criminal Code of Canada is an important provision that ensures that the rights of the accused are respected and protected during court appearances. By requiring the consent of both the prosecutor and the accused for such appearances, the section promotes transparency and fairness in the administration of justice. Moreover, the requirement for simultaneous visual and oral communication between the court and the accused ensures that key aspects of the criminal justice process, such as the opportunity to confront one's accusers and to fully participate in one's defense, are respected.
STRATEGY
Section 515(2.3) of the Criminal Code of Canada is a provision that requires the consent of the prosecutor and the accused for the purposes of an appearance where the evidence of a witness is to be taken if the accused cannot appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication. When dealing with this section of the Criminal Code, there are several strategic considerations and strategies that can be employed. Strategic Considerations: One of the most critical strategic considerations when dealing with Section 515(2.3) is the possibility of losing the opportunity to cross-examine the witness or challenge their evidence. Cross-examination is one of the most powerful tools at a defense lawyer's disposal, and without it, the defense may not have enough evidence to refute the Crown's case. Another strategic consideration is the potential risks to the accused's fundamental rights and freedoms. For instance, the accused may lose their right to make full answer and defense if they are unable to cross-examine the witness personally. Therefore, it is crucial to examine the strength of the Crown's case and whether the witness's testimony is essential to the defense. Strategies: One strategy that could be employed is to negotiate with the Crown to obtain disclosure on the witness's evidence before the scheduled appearance. Preparing a comprehensive cross-examination strategy based on the disclosed evidence can help minimize the risks associated with the appearance. Another strategy is to explore alternative forms of participation, such as videoconferencing facilities or telephone conferencing. If the court can ensure that the accused and the court can engage in simultaneous visual and oral communication, then the witness evidence can be taken, and the defense can participate in the hearing. An additional strategy to consider is to make an application to the court to exclude the witness's evidence if they are unable to attend the hearing. However, this strategy should only be considered if the witness's testimony is not critical to the Crown's case or if there is insufficient evidence to support their testimony. Overall, the strategic considerations and strategies employed when dealing with Section 515(2.3) of the Criminal Code of Canada must be carefully evaluated to ensure that the best interests of the accused are protected. By negotiating with the Crown, exploring alternative means of participation, or making an application to exclude witness evidence, parties can ensure that their fundamental rights and freedoms are not compromised.