section 715(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the admission of previous testimony given by a witness who is unavailable for the current trial, unless the accused can prove they did not have full opportunity to cross-examine the witness.

SECTION WORDING

715(1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person (a) is dead, (b) has since become and is insane, (c) is so ill that he is unable to travel or testify, or (d) is absent from Canada, and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.

EXPLANATION

Section 715(1) of the Criminal Code of Canada is a provision that deals with the admissibility of previous testimony given by a witness who is unavailable to testify in court at a subsequent trial. This section allows for the introduction of the previously given evidence without requiring the witness to appear in court again, provided that certain conditions are met. Under this section, previous testimony can be admitted if the witness is unavailable to testify for reasons such as death, insanity, illness or absence from the country. It is important to note that the evidence must have been taken in the presence of the accused for it to be admissible. However, the accused can challenge the admissibility of the previous testimony by proving that they did not have a full opportunity to cross-examine the witness during the previous trial or inquiry. This means that the accused can argue that they did not have the chance to question the witness thoroughly or that they were disadvantaged in some way that prevented them from fully challenging the witness's testimony. Overall, section 715(1) provides a means for courts to introduce important testimony into a trial in cases where it is not possible for the witness to testify in person. However, it also ensures that the accused is given a fair opportunity to challenge the evidence and cross-examine the witness if necessary.

COMMENTARY

Section 715(1) of the Criminal Code of Canada is an important provision that governs the admissibility of evidence given by a witness who is unavailable to testify at trial. In essence, this provision allows for the admission of such evidence under certain circumstances, provided that the accused had a fair opportunity to cross-examine the witness at a previous trial or hearing. The purpose of this provision is to ensure that prior testimony given by a witness can still be used as evidence in a subsequent trial, even if the witness is no longer available to testify. This can happen in a number of situations, such as when a witness has since passed away, become insane, or is too ill to testify. In such cases, it would be unjust to simply exclude the evidence altogether, particularly if it is relevant and material to the case at hand. However, the provision also recognizes that the accused's right to a fair trial must be safeguarded. Thus, it requires that the accused had a full opportunity to cross-examine the witness at a previous trial or hearing. This means that the accused must have had the chance to question the witness on his or her testimony, and to challenge the witness's credibility. If this opportunity was not afforded to the accused, then the prior testimony cannot be admitted as evidence in the subsequent trial. One potential issue with this provision is that it can be difficult to determine whether the accused had a full opportunity to cross-examine the witness. For example, what if the accused was represented by a different lawyer at the previous trial or hearing, and that lawyer did not cross-examine the witness effectively? Or what if the accused was not present at the previous trial or hearing, and thus did not have the opportunity to cross-examine the witness at all? These are complex questions that must be carefully considered by the judge in each case. Overall, section 715(1) of the Criminal Code of Canada strikes an important balance between the need to ensure that relevant evidence is admissible in court, and the need to protect the accused's right to a fair trial. It recognizes that in certain circumstances, prior testimony given by a witness who is now unavailable can still be used as evidence, but only if the accused had a full opportunity to cross-examine the witness. This provision helps to promote fairness and justice in the Canadian criminal justice system.

STRATEGY

Section 715(1) of the Criminal Code of Canada plays a critical role in criminal trials. This section allows for the admission of the previous testimony of a witness who has become unavailable for various reasons, as long as certain conditions are met. However, there are strategic considerations that lawyers must consider when dealing with this section. One of the most important strategic considerations is the reliability of the previous testimony. The defence must have an opportunity to cross-examine the witness during the previous trial or investigation to ensure that their testimony is accurate and credible. This cross-examination is critical in establishing the credibility and trustworthiness of the witness, and without it, the defence's ability to challenge the witness's testimony is limited. As such, the defence must ensure that they have a full opportunity to cross-examine the witness during the previous trial or investigation, ensuring that the previous testimony is reliable and credible. In addition to reliability concerns, lawyers must consider the interplay between this section and other laws and rules of court. For example, the Charter of Rights and Freedoms guarantees the right of an accused to a fair trial, which includes the right to confront and cross-examine witnesses. Section 715(1) must be read in conjunction with this right, and lawyers must ensure that an accused's right to a fair trial is protected. This may require challenging the admission of previous testimony if the accused's ability to cross-examine the witness was limited or impaired. Another strategic consideration is the timing of the application to admit the previous testimony. In some cases, the defence may choose to challenge the admissibility of the previous testimony during the trial. However, in other cases, the defence may choose to address the issue prior to the trial, during a pre-trial hearing. This strategic decision will depend on the particular facts and circumstances of the case. If the defence anticipates that the previous testimony may be used against their client, they may want to address the issue prior to trial to avoid any surprises during the trial. Finally, lawyers must consider the impact of admitting previous testimony on the outcome of the case. Depending on the strength of the previous testimony and the importance of the evidence to the case, admitting previous testimony could have a significant impact on the outcome of the trial. The defence must carefully weigh the potential benefits and risks of challenging the admissibility of the previous testimony, versus attempting to undermine the credibility of the witness during the trial. In terms of strategies that could be employed, there are several possible approaches. For example, the defence may choose to challenge the admissibility of the previous testimony based on concerns regarding the reliability of the testimony, the accused's right to a fair trial, or other related legal issues. Alternatively, the defence might choose to undermine the credibility of the witness during the trial to reduce the impact of the previous testimony. This could involve challenging the witness's character, their memory, or their reliability. Section 715(1) of the Criminal Code of Canada is a critical tool that allows for the admission of previous testimony in certain circumstances. However, lawyers must carefully consider the legal and strategic implications of this section when representing their clients. Properly navigating this section can help ensure that the accused receives a fair trial and may have a significant impact on the outcome of the case.