Criminal Code of Canada - section 758(1) - Presence of accused at hearing of application

section 758(1)

INTRODUCTION AND BRIEF DESCRIPTION

The offender must attend the hearing under this Part and can be compelled to do so with a summons or warrant.

SECTION WORDING

758(1) The offender shall be present at the hearing of the application under this Part and if at the time the application is to be heard (a) he is confined in a prison, the court may order, in writing, the person having the custody of the accused to bring him before the court; or (b) he is not confined in a prison, the court shall issue a summons or a warrant to compel the accused to attend before the court and the provisions of Part XVI relating to summons and warrant are applicable with such modifications as the circumstances require.

EXPLANATION

Section 758(1) of the Criminal Code of Canada deals with the presence of the offender during the hearing of an application under Part XXIV of the Code, which deals with the suspension of a sentence. The section states that the offender must be present during the hearing, unless there are exceptional circumstances that justify their absence. If the offender is currently confined in a prison, the court may order the prison authorities to bring them before the court for the hearing. If the offender is not confined in a prison, the court must issue a summons or a warrant to compel the offender to attend the hearing. The provisions of Part XVI of the Criminal Code, which deals with summonses and warrants, will apply. However, the court may modify these provisions according to the circumstances of the case. The presence of the offender is important during a hearing for the suspension of their sentence, as the court needs to hear from the offender and their lawyer to determine whether the suspension is appropriate. The offender has the right to present evidence and arguments in their favour, and the court must consider the impact of the suspension on the community and the victim(s). In summary, Section 758(1) of the Criminal Code of Canada is an essential provision that ensures the offender's presence during the hearing of an application for suspension of their sentence. It guarantees the offender's right to a fair trial and allows the court to make an informed decision based on all the relevant facts.

COMMENTARY

Section 758(1) of the Criminal Code of Canada lays down the requirement for an offender to be present at the hearing of an application under this Part. This provision is essential as it ensures that the accused has the opportunity to appear and defend themselves in any proceeding that concerns them. It is also in line with the principles of natural justice and the Canadian Charter of Rights and Freedoms, which guarantee the right to a fair and impartial hearing. The section further provides for two scenarios: where the accused is confined in prison and where they are not. In the former situation, the court may order the person having custody of the accused to bring them before the court. This provision recognizes that the right to appear before the court in person may be restricted due to confinement. Therefore, the court can order the custodian of the accused to produce them for the hearing. In the latter scenario, where the accused is not confined in prison, the court shall issue a summons or a warrant to compel their attendance. This provision gives the court the power to ensure that the accused attends the hearing. Failure to comply with the summons or warrant may result in the court issuing an arrest warrant. The provision also makes reference to Part XVI of the Criminal Code, which deals with warrants and summonses. The provisions of Part XVI relating to warrants and summonses are applicable to the issuance of a warrant or summons to an accused person under this section. However, the circumstances may require modifications to these provisions. The provision is crucial in criminal proceedings as it ensures that the accused is given the opportunity to appear and defend themselves in any application that concerns them. It is an essential aspect of the principles of natural justice, which require that both parties be given an opportunity to be heard. It also upholds the right to a fair and impartial hearing, which is guaranteed by the Canadian Charter of Rights and Freedoms. In conclusion, section 758(1) of the Criminal Code of Canada is a crucial provision that ensures that the accused is given the opportunity to appear and defend themselves in any proceeding that concerns them. It is in line with the principles of natural justice and the Canadian Charter of Rights and Freedoms, and it is a vital aspect of the Canadian legal system. It is, therefore, important for courts, lawyers, and all stakeholders in the Canadian justice system to familiarize themselves with this provision to ensure that all accused persons are given a fair and just hearing.

STRATEGY

Section 758(1) of the Criminal Code of Canada outlines the requirement that an offender must be present at the hearing of an application under this Part. This presents several strategic considerations that must be taken into account by both the prosecution and defense in criminal proceedings. One of the primary strategic considerations relates to the location of the offender. If the offender is not confined in prison, the court must issue a summons or warrant to compel their attendance at the hearing. This means that if the offender is at large or has fled, the prosecution will need to take steps to find and apprehend the offender in order to ensure their attendance at the hearing. In some cases, this may involve working with law enforcement agencies or hiring a private investigator to locate the offender and serve them with the summons or warrant. Conversely, if the offender is in custody, the prosecution may need to work with correctional authorities to ensure their attendance at the hearing. This may involve obtaining orders from the court or negotiating with prison officials to arrange for the offender to be transported to the hearing. In some cases, the offender may be resistant to attending the hearing, which can create additional challenges for the prosecution. Another key strategic consideration relates to the timing of the hearing. If the offender is in custody, it may be necessary to schedule the hearing at a time when they are available and can be transported to the hearing location. This may involve coordinating with prison officials and court staff to ensure that all parties can attend the hearing at the designated time. Additionally, the prosecution and defense must consider the potential risks and benefits of having the offender present at the hearing. On the one hand, having the offender present can provide valuable evidence and testimony that can be used to support the case. However, there are also risks associated with having the offender in the court, such as the potential for disruptions or violent incidents. In terms of strategies that could be employed, both the prosecution and defense may consider negotiating with the other party to reach a mutually agreeable arrangement for the offender's attendance at the hearing. This could involve agreeing on a specific time and location, or making special arrangements for transportation and security. Another possible strategy is to request that the court allow the offender to participate in the hearing remotely, such as through videoconferencing. This can help to mitigate some of the risks associated with having the offender in the court, while still allowing them to provide testimony or evidence. In conclusion, section 758(1) of the Criminal Code of Canada presents several strategic considerations that must be taken into account when dealing with offenders in criminal proceedings. Through careful planning and coordination, both the prosecution and defense can work to ensure that the offender is present at the hearing while minimizing any potential risks or complications.