section 537(1.01)

INTRODUCTION AND BRIEF DESCRIPTION

This section requires the court to inform the accused that evidence taken during their absence could still be admissible.

SECTION WORDING

537(1.01) Where a justice grants a request under paragraph (1)(j.1), the Court must inform the accused that the evidence taken during his or her absence could still be admissible under section 715.

EXPLANATION

Section 537(1.01) of the Criminal Code of Canada deals with the situation where an accused person is absent during a part of their trial. Specifically, the section states that if a justice grants a request for the trial to continue in the absence of the accused (under paragraph (1)(j.1)), the Court must inform the accused that evidence taken during their absence may still be admissible under section 715. Section 715 of the Criminal Code sets out the rules for admitting evidence that was obtained improperly or in violation of an accused person's Charter rights. One of the factors that a court must consider in determining whether to admit such evidence is the importance of the evidence to the case. If the evidence is highly relevant to the case, it may be admitted even if it was obtained improperly. In the context of section 537(1.01), the message is clear: even if the accused is absent during a part of their trial, evidence that is considered important to the case may still be admitted against them. This serves as a warning to the accused that choosing to absent themselves from their own trial may have serious consequences. It is worth noting, however, that section 537(1.01) also contemplates situations where an accused person may be absent from their trial due to circumstances beyond their control, such as illness or arrest on another matter. In such cases, the court may issue a warrant for their arrest and adjourn the trial until they can be brought before the court again. Thus, while the section is intended to be a warning to the accused, it also allows for reasonable accommodations in situations where attendance is not possible.

COMMENTARY

Section 537(1.01) of the Criminal Code of Canada outlines the requirements for a court when granting a request made by an accused person to be absent from a part of their trial. In particular, it indicates that if such a request is granted, the court must inform the accused that evidence taken during their absence may still be admissible in court. The purpose of this provision is to ensure that an accused person is aware of the potential consequences of their decision to not be present during a portion of their trial. By informing the accused that evidence taken in their absence may still be used against them, the court is attempting to ensure that the accused is making an informed decision about their involvement in the trial process. This provision is particularly relevant in situations where an accused person may choose to be absent from their trial for strategic reasons. For example, an accused person may choose to not be present during the testimony of a particularly damaging witness in order to avoid the emotional impact of that testimony. However, by doing so, they may also be forfeiting their right to cross-examine that witness. Additionally, if evidence is presented during that witness' testimony that is incriminating for the accused, they may be unaware of this if they are not present. By informing the accused that evidence taken during their absence may still be admissible, the court is attempting to ensure that the accused is aware of these potential consequences. This can help to safeguard the integrity of the trial process by ensuring that a defendant is making informed decisions about their participation in the trial. However, it is important to note that this provision does not give courts carte blanche to admit evidence that would otherwise be inadmissible simply because the accused was absent. Rather, evidence must still meet the threshold for admissibility as set out in section 715 of the Criminal Code. This section outlines the various requirements for admissibility, including rules around hearsay evidence and the use of previous inconsistent statements. In practice, the application of section 537(1.01) will depend on the specific circumstances of each case. However, it is clear that the provision plays an important role in ensuring that defendants are aware of the potential consequences of their decisions to be absent from parts of their trial. By doing so, it can help to safeguard the fairness of the trial process and ensure that justice is served.

STRATEGY

Section 537(1.01) of the Criminal Code of Canada aims to clarify when evidence taken during the absence of an accused is admissible in court. This section has significant implications for strategic considerations related to criminal defense cases. Below are some strategic considerations and strategies that could be employed in dealing with this section of the Criminal Code. Understanding the Implications of Section 537(1.01) The first step towards developing an effective strategy is to thoroughly understand the implications of Section 537(1.01). The section concerns a situation where an accused person is absent from their trial or hearing, and a request is made to proceed with the proceedings in their absence. If the request is granted, Section 537(1.01) requires the court to inform the accused that evidence taken during their absence could still be admissible under Section 715. Section 715 of the Criminal Code provides that a court may admit evidence that would otherwise be inadmissible if the court finds that the admission of the evidence would not affect the fairness of the proceedings. This means that even if an accused person is absent, evidence taken during that absence could still be admitted, if the court determines that the evidence is relevant and necessary for the determination of the case's central issues. Considering the Risks and Benefits of Absence One strategic consideration for defense lawyers in dealing with Section 537(1.01) is whether it is in their client's best interest to be present at the trial or hearing. While an accused person has the right to be present during their trial, there may be situations where they may benefit from not being present. For example, if a defendant is prone to angry outbursts or uncontrollable emotions, remaining absent may be a strategic decision to avoid negative impressions in the minds of the jury. On the other hand, not being present may hurt an accused's ability to present his or her testimony, particularly if that testimony is crucial to the defense. As well, not being present could result in the accused missing important objections or missed case points. In addition, the absence could be viewed negatively by a jury, which may take it to mean that the accused is not taking the proceedings seriously. However, regardless of which is decided the court will still read the accused 537(1.01). Challenging Admissibility of Evidence Another strategic consideration is whether to challenge the admissibility of evidence that was taken during an accused's absence. While Section 715 provides circumstances under which evidence may still be admissible, there may be situations where the admission of such evidence is unfair to the defense. Challenging the admissibility of the evidence would require a defense counsel to undertake the due diligence to gather all the information they need to make the objection. To challenge the admissibility of evidence, the defense could argue that the evidence in question is not necessary for the determination of the case's central issues. This could be particularly effective if the evidence in question is hearsay or of dubious relevance. If the court deems the challenged evidence to be inadmissible, it could significantly reduce or even eliminate the prosecution's case. Developing a Well-Planned Strategy In conclusion, Section 537(1.01) of the Criminal Code has significant implications for criminal defense cases. Strategic considerations such as deciding whether to challenge the admissibility of evidence, weighing the risks and benefits of absence, and developing a well-planned strategy are critical to success. The defense must be well prepared to handle whatever situations arise and must remain flexible in their strategy.