Criminal Code of Canada - section 715(3) - Absconding accused deemed present

section 715(3)

INTRODUCTION AND BRIEF DESCRIPTION

If an accused absconds and is therefore absent from a trial or hearing, any evidence taken in their absence will be deemed as if they were present and had the opportunity to cross-examine the witness.

SECTION WORDING

715(3) For the purposes of this section, where evidence was taken at a previous trial or preliminary hearing or other proceeding in respect of an accused in the absence of the accused, who was absent by reason of having absconded, the accused is deemed to have been present during the taking of the evidence and to have had full opportunity to cross-examine the witness.

EXPLANATION

Section 715(3) of the Criminal Code of Canada is a provision that applies to the admissibility of evidence in criminal trials. The provision provides for a legal fiction aimed at ensuring that the absence of an accused person does not prevent the prosecution from introducing evidence in a trial. The section states that where evidence was taken at a previous trial or preliminary hearing or any other proceeding in respect of an accused person who was absent by reason of having absconded, the accused is deemed to have been present during the taking of the evidence. That is, the section treats the accused as though they were present during the evidence-taking process, even if they were not physically present. In practical terms, this provision means that if an accused person absconds or flees before a trial or hearing, the prosecution can still introduce evidence from the previous proceeding into the trial against the accused person. The accused person is deemed to have been present during the taking of the evidence and is therefore considered to have had full opportunity to cross-examine any witnesses. This provision can be useful in cases where the accused person is a flight risk or where there are concerns about their safety while in custody. Overall, section 715(3) of the Criminal Code of Canada is a vital tool used by prosecution teams to ensure that justice is served even when an accused is on the run.

COMMENTARY

Section 715(3) of the Criminal Code of Canada has significant implications for the criminal justice system in Canada. The section is concerned with the admissibility of evidence taken in the absence of an accused, who was absent from a trial or preliminary hearing because they absconded. The section provides that if there is evidence taken in the absence of an accused, who absconded, then that person is deemed to have been present during the taking of the evidence and to have had full opportunity to cross-examine the witness. This provision is important because it ensures that evidence is not excluded simply because a person absconded during their trial or preliminary hearing. The provision is essential for the effective functioning of the justice system because it helps to ensure that trials and preliminary hearings can still proceed smoothly, even in the absence of the accused. This is because it provides a mechanism for the evidence to be admitted and used in court, without prejudicing the outcome of the trial. However, it is important to note that this provision is not without controversy. Some critics argue that the provision violates the fundamental right of an accused person to confront their accusers and cross-examine witnesses. They contend that if a person absconds during their trial or preliminary hearing, then they have forfeited their right to cross-examine the witnesses and should not be permitted to do so later. This argument is compelling, but it overlooks the fact that the provision is necessary to ensure that trials and preliminary hearings can proceed even in the absence of the accused. If evidence taken in the absence of an accused person was not admissible, it would create a situation where a trial or preliminary hearing could not continue, even if the absent accused had previously absconded. In addition, it is important to recognize that the provision only applies in limited circumstances, namely when the accused absconds during their trial or preliminary hearing. This means that the provision does not apply in cases where the accused is present in court and has the opportunity to cross-examine the witnesses. In conclusion, Section 715(3) of the Criminal Code of Canada is an essential provision that helps to ensure the effective functioning of the justice system. While it is not without controversy, it provides a mechanism for evidence to be admitted and used in court, even in the absence of an accused person who has absconded during their trial or preliminary hearing. Ultimately, the provision strikes a balance between the right of an accused to confront their accusers and the need for trials and preliminary hearings to proceed, even in challenging circumstances.

STRATEGY

Section 715(3) of the Criminal Code of Canada provides an opportunity for the Crown to introduce evidence from a previous trial or preliminary hearing in the absence of an accused who was absent because they had absconded. It deems the accused to have had full opportunity to cross-examine the witness. However, this section of the code creates strategic considerations for both the Crown and the defense. The following are some strategic considerations when dealing with Section 715(3) of the Criminal Code of Canada and strategies that may be employed to address them. Consideration 1: Timing of Absconding If the accused absconded before the trial or preliminary hearing had begun, the Crown has a significant advantage. The Crown can introduce evidence collected from the previous trial or hearing, deeming the accused to have been present and had a full opportunity to cross-examine the witness. In this case, the defense must argue that the witness in question was not sufficiently credible or reliable, or that cross-examination would have led to the discovery of new evidence that would have affected the outcome of the trial. Strategy: If the accused knows they will face trial or a hearing soon, they may choose to abscond before the proceedings begin. In this case, the defense may request a delay in the trial or hearing to allow the accused to surrender voluntarily and be present during the evidence-gathering phase. Consideration 2: Quality of the Evidence The evidence presented in a previous trial or hearing may be of poor quality, leading the accused to abscond during the proceedings. The Crown may choose to rely on this poor quality evidence, knowing that the accused has no opportunity to contest it. In this case, the defense may argue that the evidence is unreliable, was collected improperly, or may have been tainted by external factors. Strategy: The defense may choose to use expert witnesses to challenge the quality of the evidence, producing an analysis that may undermine the weight of the evidence presented by the Crown. Consideration 3: Impact on Jury In cases where the accused absconds before the trial or hearing begins, the Crown may choose to present evidence from a previous trial or hearing. The jury may infer guilt from the accused's absence, creating an uphill battle for the defense. Strategy: The defense may choose to address the issue of the accused's absence openly, explaining why the accused felt compelled to abscond and possibly presenting a more sympathetic picture of the accused. Consideration 4: Lawyer Experience The lawyer's experience may play a significant role in dealing with Section 715(3) of the Criminal Code of Canada. A seasoned lawyer may be better equipped to handle the legal nuances and technicalities of this section of the code. Strategy: Choosing an experienced criminal defense lawyer can be a crucial factor in dealing with Section 715(3) of the Criminal Code of Canada. A lawyer with a good track record of trial performance can help alleviate the pressure related to this section of the code. Consideration 5: Case-Specific Factors Section 715(3) of the Criminal Code of Canada often plays out differently depending on the specifics of the case at hand. It is up to the lawyer to evaluate the particular circumstances and create a tailored strategy accordingly. Strategy: It is crucial for the defense to evaluate the evidence, witness testimony, and procedural issues to develop a unique strategy for confronting Section 715(3) of the Criminal Code of Canada. The lawyer should focus on the specific factors at play in the case to create persuasive arguments in court. In summary, Section 715(3) of the Criminal Code of Canada can present a significant challenge for both the Crown and the defense. There are several strategic considerations to take into account when navigating this section of the code. The right strategy will depend on various factors like the timing of the absconding, the quality of the evidence, the impact on the jury, the lawyer's experience, and the case-specific factors. Through effective legal representation, the defense can often challenge the admissibility and reliability of the evidence presented by the Crown and secure a favourable outcome for their clients.