Criminal Code of Canada - section 521(3)

section 521(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the accused to be present at the hearing of an application under this section and for the judge to order them to be brought before the court if they are in custody.

SECTION WORDING

521(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 521(3) of the Criminal Code of Canada outlines the requirements for the presence of the accused during the hearing of an application under this section. Essentially, if the judge, prosecutor, or the accused or their counsel requests that the accused be present, they must be present unless the judge decides otherwise. This section is particularly important in the context of applications brought under section 521 of the Criminal Code. Section 521 deals with applications for the holding of an accused in custody pending trial or the imposition of conditions on their release. These types of applications are typically brought by the Crown in situations where they are concerned that the accused may flee or be a danger to society if released. In order to determine whether an accused should be held in custody or released on conditions, a hearing is typically held. During this hearing, the Crown will present evidence and arguments in favour of holding the accused, while the accused and their counsel will argue for their release on certain conditions. Given the importance of these hearings, it is generally seen as preferable for the accused to be present, if possible. This allows them to hear the evidence and arguments presented against them and to respond to them in real-time. It also allows them to participate in their own defence and to make arguments in favour of their release. However, there may be situations where the accused's presence is not required or where it may be deemed impractical or unsafe for them to be present. For example, if the accused is in custody in another jurisdiction or is otherwise unable to attend the hearing, the judge may choose to proceed without them. Ultimately, the decision of whether the accused should be present at the hearing of an application under section 521 rests with the judge and will be determined on a case-by-case basis.

COMMENTARY

Section 521(3) of the Criminal Code of Canada is a provision that outlines the circumstances under which an accused individual must be present for hearing an application under this section. The section allows for the accused, the prosecutor, or the counsel of the accused to request the presence of the accused during the hearing of an application. The provision also provides the judge with the power to order the custody holding authority to bring the accused individual to court if he/she is in custody. The section primarily serves to balance the interests of justice with the right of the accused individual to attend proceedings that may significantly affect his/her life. It recognizes the principles of fundamental justice, which require that a person be present to defend themselves in a proceeding where their rights are at stake. The provision is also consistent with section 11(d) of the Canadian Charter of Rights and Freedoms, which guarantees the right of an accused person to be present during their trial. The section recognizes that an accused individual has the right to be present at the hearing of an application under this section, but it also recognizes that there may be situations where an accused individual cannot physically be present. Therefore, the section provides flexibility in terms of allowing the accused to be present at the hearing via video conferencing or other means. The provision also provides judges with discretion in ordering the accused's presence during the hearing. Judges are required to balance the interests of justice with other factors such as the safety and security of the accused or the courtroom, the level of risk posed to the accused, and access to technology. It is crucial to note that the ability to order the accused's presence in court may be subject to certain limitations or exceptions. For instance, an accused's presence is not required for every application under Section 521, but only in situations where there may be a significant impact. Overall, Section 521(3) recognizes the importance of balancing the interests of justice with the rights of the accused in a criminal proceeding. The provision is consistent with the principles of fundamental justice and recognizes the importance of ensuring that an accused individual can be present to defend themselves in a proceeding that may determine their guilt or innocence. It provides judges with discretion in ordering the accused's presence in court while recognizing that there may be situations where physical presence is not practical.

STRATEGY

Section 521(3) of the Criminal Code of Canada sets out the circumstances in which an accused person may be required to attend a hearing of an application under this section, and outlines the process for bringing the accused before the court if they are in custody. This provision can have significant implications for both the prosecution and defence in criminal proceedings, and raises a number of strategic considerations. One key strategic consideration when dealing with section 521(3) is whether or not to request that the accused be present at the hearing. In some cases, it may be advantageous for the defence to have the accused present, particularly if they can provide testimony or evidence in support of their case. On the other hand, the prosecution may prefer to proceed without the accused if they feel that their presence could be disruptive or if they are concerned about the accused being able to observe the proceedings and potentially influence witnesses or jurors. Another important consideration is the practicalities of bringing the accused before the court if they are in custody. This may involve coordinating with corrections officials and ensuring that the accused is transported to the courthouse in a timely manner. If there are concerns about the security or safety of transporting the accused, additional measures may need to be taken, such as providing an escort or increasing surveillance. In some cases, the judge may order the accused to be present at the hearing even if neither the prosecutor nor the defence request it. In these cases, defence counsel may need to be prepared to deal with the presence of their client and ensure that they are not at a disadvantage as a result. Finally, it is important to consider the potential impact of section 521(3) on other aspects of the trial. For example, if the accused is present at the hearing, this may affect the judge's perception of their credibility or undermine the defence's argument for a particular plea or sentence. On the other hand, if the accused is not present, this may raise questions about their ability to participate in their own defence or undermine the legitimacy of the proceedings. With these strategic considerations in mind, there are a number of strategies that counsel for both the prosecution and defence may employ when dealing with section 521(3). For example: - Defence counsel may request that the accused be present at a hearing if they believe this will bolster their case, particularly if the accused can provide testimony or evidence that is supportive of their defence. They may also argue against the accused being present if they feel it could be detrimental to their case or if they have concerns about the accused being able to observe the proceedings. - The prosecution may also request or oppose the accused being present at the hearing, depending on their assessment of the potential impact on the case. For example, they may argue that the accused's absence would be beneficial if they are concerned about the accused intimidating witnesses or influencing jurors. - Both sides may need to work together to ensure that the accused is transported to and from court in a secure manner, particularly if there are concerns about the potential for violence or other disruptions. - Defence counsel may need to be prepared to deal with the presence of their client at the hearing, particularly if this was unexpected or if they had not planned to have the accused testify or participate in other aspects of the trial. - Both sides may need to carefully consider the potential impact of section 521(3) on other aspects of the case, such as the judge's perception of the accused's credibility, or the legitimacy of the proceedings. They may need to adjust their strategy accordingly to account for these factors.