INTRODUCTION AND BRIEF DESCRIPTION
If an accused is absent at the conclusion of the prosecutions evidence during a preliminary inquiry but their counsel is present, the counsel will be given the opportunity to call witnesses on behalf of the accused.
SECTION WORDING
544(5) Where, at the conclusion of the evidence on the part of the prosecution at a preliminary inquiry that has been continued pursuant to subsection (1), the accused is absent but counsel for the accused is present, he or she shall be given an opportunity to call witnesses on behalf of the accused and subsection 541(5) applies with such modifications as the circumstances require.
EXPLANATION
Section 544(5) of the Criminal Code of Canada is a procedural safeguard that protects the right of an accused person to a fair trial. This section applies in cases where a preliminary inquiry has been continued pursuant to subsection (1), which allows for a delay in the hearing if it is deemed necessary for the proper administration of justice. If, at the conclusion of the evidence presented by the prosecution at the preliminary inquiry, the accused is not present but their counsel is, this section provides that the counsel must be given an opportunity to call witnesses on behalf of their client. This ensures that the accused's perspective is also heard and considered by the court. Furthermore, subsection 541(5) applies with modifications as the circumstances require. Subsection 541(5) outlines the process for admitting certain types of evidence, such as hearsay, at the preliminary inquiry. The modifications to this subsection in the context of section 544(5) ensure that evidence presented by the accused is also considered while maintaining reliability and fairness in the process. Overall, section 544(5) aims to provide a fair and balanced preliminary inquiry process and protect the rights of the accused to due process. Its inclusion in the Criminal Code of Canada reflects the importance of fairness and impartiality within the criminal justice system.
COMMENTARY
Section 544(5) of the Criminal Code of Canada provides an important protection for an accused who may be absent from a preliminary inquiry but has legal representation present. The section allows for the accused's lawyer to call witnesses on behalf of their client at the conclusion of the prosecution's evidence during a preliminary inquiry that has been continued under subsection (1). The purpose of a preliminary inquiry is to determine whether there is enough evidence to justify a trial, and it gives the accused an opportunity to know the case against them. However, if an accused is not present at the inquiry, they may miss out on the opportunity to put forward their version of events or call witnesses to support their case. Section 544(5) ensures that an absent accused who has legal representation will not be unfairly prejudiced by their absence. The hearing of witnesses by the accused's lawyer can help to fill in gaps in the evidence, provide additional perspectives on the events in question and potentially refute the prosecution's case. The section also ensures that an accused's legal representation can work to identify any weaknesses in the prosecution's case and suggest defences or mitigating circumstances that may not have been raised otherwise. Moreover, this provision affirms the fundamental principle of justice that an accused should have a fair trial and the opportunity to fully present their case in court. It is particularly significant as an accused who fails to attend court can put themselves at risk of being found guilty in absentia, but the provision ensures that the accused still has a voice in the process. It is worth noting that there are modifications to the usual procedures that apply when an accused is present at a preliminary inquiry. These modifications can include issues such as communication with the absent accused and the types of witnesses that can be called. This ensures that the protections given to the accused are appropriate to their situation and not unfairly prejudicial to the prosecution. In conclusion, Section 544(5) of the Criminal Code of Canada is an important safeguard for an absent accused who has legal representation. It provides an opportunity for the accused's lawyer to call witnesses on their behalf and ensures that the accused still has a voice in the process. This provision reinforces the fundamental principle of justice which requires an accused to have a fair trial and the opportunity to present their case fully, regardless of their physical presence.
STRATEGY
Section 544(5) of the Criminal Code of Canada provides an opportunity for an accused individual, who is absent but whose counsel is present, to call witnesses on their own behalf during a continued preliminary inquiry. This provision is critical as it allows an accused individual to challenge the evidence presented by the prosecution and make a case for their innocence. One of the most significant strategic considerations when dealing with this section is to ensure that the accused individual's counsel is fully prepared for the preliminary inquiry. The counsel should be prepared to call witnesses who can offer evidence that may contradict or undermine the prosecution's case. Another strategic consideration is to carefully analyze the evidence presented by the prosecution before calling any witnesses. This analysis can help determine whether there are weaknesses or inconsistencies in the prosecution's case that can be exploited during the preliminary inquiry. In some cases, it may also be beneficial to retain the services of a private investigator to gather additional evidence in support of the accused individual's case. An experienced investigator can help gather information and evidence that may not be readily available to the defence team, such as witness statements, video surveillance footage, or physical evidence. It is also generally recommended that the accused individual and their counsel maintain open communication throughout the preliminary inquiry. This communication can help ensure that the accused individual is fully aware of the progress and developments of the inquiry and can provide input and feedback as needed. Overall, the strategic considerations when dealing with section 544(5) of the Criminal Code of Canada are extensive. Depending on the circumstances of the case and the evidence presented by the prosecution, various strategies can be employed, which may include retaining the services of a private investigator, analyzing evidence, maintaining open communication, and calling witnesses to contradict or undermine the prosecution's case. With thorough preparation and careful planning, an accused individual can increase their chances of achieving a favourable outcome during a preliminary inquiry.