section 822(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section permits the appeal court to allow authenticated evidence from a witness taken before the summary conviction court to be read in certain circumstances.

SECTION WORDING

822(5) The appeal court may, for the purpose of hearing and determining an appeal under subsection (4), permit the evidence of any witness taken before the summary conviction court to be read if that evidence has been authenticated in accordance with section 540 and if (a) the appellant and respondent consent, (b) the appeal court is satisfied that the attendance of the witness cannot reasonably be obtained, or (c) by reason of the formal nature of the evidence or otherwise the court is satisfied that the opposite party will not be prejudiced, and any evidence that is read under the authority of this subsection has the same force and effect as if the witness had given the evidence before the appeal court.

EXPLANATION

Section 822(5) of the Criminal Code of Canada establishes the rules for allowing the evidence of a witness taken before a summary conviction court to be used in an appeal hearing. According to the section, the appeal court may allow the evidence of any witness taken before the summary conviction court to be read if that evidence has been authenticated in accordance with section 540. The section outlines three situations in which the appeal court can permit the evidence to be read - (a) if both the appellant and respondent consent, (b) if the court is satisfied that the attendance of the witness cannot reasonably be obtained, or (c) if the court is satisfied that the opposite party will not be prejudiced by the nature of the evidence or other reasons. This section is significant because it allows the appeal court to consider the evidence of a witness who testified before the summary conviction court but may not be available to attend the appeal hearing for various reasons. It provides the parties with the option to either consent to the use of the existing evidence or request the attendance of the witness if possible. In situations where the evidence is formal in nature or where the opposite party will not be prejudiced, it saves time and resources by allowing the testimony to be read rather than requiring the witness to appear in person. Importantly, any evidence that is used under this section has the same force and effect as if the witness had given the evidence before the appeal court, ensuring fairness and transparency in the appeals process.

COMMENTARY

Section 822(5) of the Criminal Code of Canada deals with the admissibility of evidence on appeal from summary conviction proceedings. It provides that in certain circumstances, evidence given by a witness at trial may be admitted on appeal, even if the witness is not present in court to testify. One of the key criteria for the admission of such evidence is that it must have been authenticated in accordance with section 540 of the Criminal Code. This section provides for the certification or verification of documents by a person who has custody or control of them, and is often used to authenticate police reports or other documents relied on in criminal proceedings. The other criteria for the admission of evidence under section 822(5) are more flexible. The court may permit the evidence to be read if both the appellant and respondent consent, or if the court is satisfied that the witness cannot reasonably be obtained. This could be the case, for example, if the witness has died, or if they have left the jurisdiction and cannot be located. The court may also permit the evidence to be read if it is satisfied that the opposite party will not be prejudiced by the absence of the witness. This could be the case if the evidence is of a purely formal or technical nature, such as the authentication of a document, or if the witness's evidence is largely corroborated by other evidence that is already before the court. It is important to note that any evidence that is read under the authority of section 822(5) has the same force and effect as if the witness had given the evidence before the appeal court. This means that it can be relied on as if the witness had testified in person, and can be used to support or refute the appellant's grounds of appeal. Overall, section 822(5) strikes a balance between the interests of justice and the practical realities of the criminal justice system. It recognizes that witnesses may not always be available or willing to attend an appeal hearing, but also ensures that any evidence that is admitted is reliable and properly authenticated. By doing so, it facilitates the fair and efficient resolution of appeals from summary conviction proceedings, and helps to maintain public confidence in the administration of justice.

STRATEGY

Section 822(5) of the Criminal Code of Canada provides for an appeal court to permit the evidence of any witness taken before the summary conviction court to be read if certain conditions are met. This section presents several strategic considerations for both the appellant and the respondent in a criminal appeal case. One strategic consideration for the appellant is to consider the nature of the evidence that may be read under this section. If the evidence is potentially damaging to the appellant's case, they may consider withholding their consent to its use. Alternatively, if the evidence is potentially beneficial, the appellant may choose to consent to its use. The appellant should carefully weigh the potential impact of such evidence on their case and their likelihood of success on appeal. Another strategic consideration for the appellant is to evaluate whether there are any potential witnesses whose attendance at the appeal hearing would be beneficial to their case. If the appeal court is satisfied that the attendance of the witness cannot reasonably be obtained, the appellant may consider applying to have their evidence read under this section. This could be a useful strategy if the witness is unavailable due to illness or other circumstances beyond their control. For the respondent, one strategic consideration is to carefully evaluate any evidence that may be read under this section. The respondent may wish to challenge the authenticity or reliability of the evidence, particularly if it is potentially damaging to their case. They may also consider whether there are other witnesses or evidence that could be presented to discredit the evidence being read. In cases where the appeal court is satisfied that the attendance of a witness cannot reasonably be obtained, the respondent may also consider whether there are other strategic options available to challenge the evidence being read. For example, the respondent may consider arguing that the witness's evidence is hearsay or that it is not relevant to the case. Overall, when dealing with section 822(5) of the Criminal Code of Canada, both the appellant and the respondent should carefully consider the potential impact of any evidence that may be read under this section. They should also consider whether there are any strategic options available to challenge the authenticity or reliability of the evidence. By carefully evaluating their options and developing a strategic approach, both parties can increase their chances of success on appeal.