Criminal Code of Canada - section 705(2) - Warrant where witness bound by recognizance

section 705(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the arrest of a person who fails to attend or remain in attendance to give evidence in a proceeding despite being bound by a recognizance.

SECTION WORDING

705(2) Where a person who has been bound by a recognizance to attend to give evidence in any proceeding does not attend or does not remain in attendance, the court, judge, justice or provincial court judge before whom that person was bound to attend may issue or cause to be issued a warrant in Form 17 for the arrest of that person.

EXPLANATION

Section 705(2) of the Criminal Code of Canada is a provision that deals with the failure of a person to comply with a recognizance order related to giving evidence in a court proceeding. A recognizance is essentially a promise made by a person before a court or a judge to do or not do something. In this case, the recognizance requires the person to attend court and give evidence in a criminal proceeding. If the person who has given this promise fails to attend court or does not remain in attendance, the court or judge has the power to issue a warrant for their arrest. This means that the police can arrest the person and bring them before the court to answer for their failure to comply with the recognizance order. The purpose of this provision is to ensure that witnesses who are required to give evidence in criminal proceedings attend court and provide their testimony. Without this provision, witnesses could fail to attend court without any consequences, which would interfere with the administration of justice. Overall, Section 705(2) serves an important function in maintaining the integrity of the criminal justice system in Canada by ensuring that witnesses fulfill their obligations to attend court and provide evidence. This helps to ensure that criminal trials are fair and just and that those accused of crimes have the opportunity to defend themselves against the charges they face.

COMMENTARY

Section 705(2) of the Criminal Code of Canada deals with the non-compliance of witnesses who are bound by a recognizance to attend and give evidence in a legal proceeding. The section allows the court, judge, justice or provincial court judge before whom that person was bound to attend to issue or cause to be issued a warrant for the arrest of that person if they fail to attend or remain in attendance. The section primarily aims to ensure that legal proceedings are conducted without any hindrance. Witnesses play an essential role in these proceedings, as their evidence is often crucial in determining the outcome of a case. Witnesses who are bound by a recognizance to attend and give evidence are compelled to do so under the law. This enhances the effectiveness and efficiency of the criminal justice system as justice is rightly served. In many cases, witnesses may refuse to attend or give evidence due to various reasons, such as fear of reprisals, unwillingness to get involved, or even ignorance. Such non-compliance can lead to the failure of a legal proceeding and the delivery of justice being hindered. The issuance of a warrant under Section 705(2) can compel the witness to attend or give evidence in the legal proceeding they are bound to, regardless of their personal reservations or objections. This ensures that justice is served, and the court acts in the best interest of society. The use of the warrant must, however, be judiciously exercised by the issuing authority. The law aims to strike a balance between the rights of the accused and the state's interest in conducting a legitimate legal proceeding. The court, judge, justice, or provincial court judge must consider the nature of the evidence needed from the witness and the gravity of the charges in deciding whether to issue a warrant. Notably, Section 705(2) only applies where the person is bound by a recognizance to attend and give evidence. If a witness has not been bound by a recognizance, a warrant cannot be issued for their arrest. Therefore, it is crucial to ensure that witnesses are appropriately bound, and the terms of the recognizance are clear and within the constraints of the law. This prevents the harassment of potential witnesses and ensures the smooth running of the criminal justice system. In conclusion, Section 705(2) of the Criminal Code of Canada is a crucial provision that promotes the integrity of legal proceedings. It ensures that legal proceedings are conducted efficiently and effectively by compelling witnesses to attend and give evidence they are bound to. The court, judge, justice, or provincial court judge issuing the warrant must, however, do so judiciously, considering the nature of the evidence needed and the gravity of the charges involved. Ultimately, the use of this section gives the state the power to deliver justice and maintain the rule of law in society.

STRATEGY

Section 705(2) of the Criminal Code of Canada provides a legal mechanism for ensuring the attendance of witnesses in legal proceedings. Failure to comply with a recognizance can result in criminal charges and, in some cases, imprisonment. The use of this section can be a useful tool in many legal proceedings, but strategic considerations must be taken into account when deciding to employ it. One of the primary considerations when dealing with Section 705(2) is the potential impact on the witness in question. If the witness is unwilling or unable to appear in court, issuing a warrant can create further obstacles to their participation in the legal process. This can be particularly relevant in situations where the witness is vulnerable or intimidated by the circumstances surrounding the case. Strategies that may help mitigate the impact of issuing a warrant could involve providing support or resources to the witness to help them understand the importance of their participation in the legal proceedings. Another strategic consideration when dealing with this section of the Criminal Code is the potential impact on the overall legal case. In some situations, the witness in question may have critical information that is necessary for the case to proceed. If the witness is unable or unwilling to attend court, issuing a warrant for their arrest may be necessary to secure their attendance. However, it is important to weigh the potential benefits of securing their attendance against any negative impact the arrest warrant may have on the case. A third strategic consideration is the potential impact on the justice system as a whole. The use of warrants and arrest orders can have broader implications for the legal system, including the potential impact on court resources and processes. Strategies that can help mitigate this impact could include communication with the court prior to issuing a warrant or ensuring that alternative measures are explored before resorting to the use of Section 705(2). In order to effectively manage the strategic considerations involved in the use of Section 705(2), a number of different strategies can be employed. These may include: 1. Communication and consultation: Before issuing a warrant, it can be useful to engage with other parties involved in the legal proceeding, including the court, legal representatives, and law enforcement officials. This can help to ensure that all parties are aware of the situation and can provide input and advice on the best course of action. 2. Support and resources: Providing support and resources to witnesses who are reluctant to attend court can be an effective way to encourage them to participate in the legal process. This may involve providing information about the importance of their testimony, or resources like counselling or legal support. 3. Alternative measures: Exploring alternative measures before resorting to the use of a warrant can help to mitigate the impact on the witness and the justice system as a whole. This could include alternative forms of testimony, such as video or phone conferencing, or providing transportation or accommodations to help the witness attend court. 4. Clear communication: Ensuring that all parties involved in the legal proceeding are aware of the potential consequences of failing to comply with a recognizance can help to encourage attendance and compliance. This could involve providing clear instructions and information about the legal process, as well as the potential consequences of non-compliance. In conclusion, Section 705(2) of the Criminal Code of Canada can be a useful tool for ensuring the attendance of witnesses in legal proceedings. However, strategic considerations must be taken into account when deciding to employ it. Strategies that may help mitigate the impact on witnesses and the legal process include communication and consultation, support and resources, alternative measures, and clear communication about the potential consequences of non-compliance. By taking these factors into account, practitioners can ensure that their use of Section 705(2) is both effective and ethical.