section 111(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a provincial court judge to hear an application without the presence of the person against whom the order is sought, under certain circumstances.

SECTION WORDING

111(4) A provincial court judge may proceed ex parte to hear and determine an application made under subsection (1) in the absence of the person against whom the order is sought in the same circumstances as those in which a summary conviction court may, under Part XXVII, proceed with a trial in the absence of the defendant.

EXPLANATION

Section 111(4) of the Canadian Criminal Code pertains to the issuance of an order that prohibits an individual from communicating or approaching someone else. This order is known as a peace bond. If an individual feels that they are in danger due to the actions of another person, they can apply to a provincial court judge for a peace bond against that person. The application for a peace bond can be made ex parte, which means that the person against whom the order is sought is not present, and the judge makes a ruling based on the information presented by the applicant alone. This provision is necessary in situations where the presence of the defendant could be potentially dangerous or intimidating. The judge can proceed with the application under the same circumstances as a summary conviction court can proceed with a trial in the absence of the defendant. Under Part XXVII of the Criminal Code of Canada, a summary conviction court can conduct a trial in the absence of the accused, but only if they have wilfully failed to appear at trial. Section 111(4) recognizes the need to protect an individual who feels threatened or in danger, by allowing a judge to issue an order for a peace bond without the presence of the person against whom the order is sought. This section provides a legal framework to ensure that justice is served, while balancing the need for the safety and well-being of the applicant.

COMMENTARY

Section 111(4) of the Criminal Code of Canada grants provincial court judges the authority to issue orders in absentia on an application made under subsection (1). In other words, the judge can hear and determine the case without the presence of the accused, provided that the same conditions are met as in the scenario where a summary conviction court proceeds with a trial in the absence of the defendant. The intention of this provision is to ensure that justice is served in situations where the absence of the accused is voluntary or in violation of a court order. If the accused is aware of the scheduled hearing and chooses not to attend, the court can still issue an order in their absence if they find sufficient evidence to do so. Alternatively, if the accused fails to attend without a valid excuse or is in contempt of court, the court may proceed with the hearing and issue an order as if the accused was present. The use of ex parte proceedings is not new to Canadian law. It is provided for in Part XXVII of the Criminal Code and has been utilized in cases such as default judgments or where the accused has abandoned their case. However, it is important to note that this provision should be used sparingly and only in situations where there is no other viable option. It is essential for the court to balance the need to ensure justice is served with the accused's right to a fair trial. The accused has the right to participate fully in their trial, including the ability to challenge evidence presented against them and provide evidence in their defense. By proceeding ex parte, the accused is denied this opportunity, and the risk of a miscarriage of justice increases. To mitigate this risk, the court should ensure that all necessary steps have been taken to inform the accused of the hearing and provide them with a reasonable opportunity to attend. This may include sending notices to their last known address, attempting to contact them via phone or email, or even issuing a warrant for their arrest. Additionally, the court should only proceed ex parte if the evidence against the accused is clear and convincing. Overall, the use of ex parte proceedings in the criminal justice system should be done with caution and only in situations where it is necessary to ensure justice is served. The court must always balance the accused's right to a fair trial with the need to ensure that society is kept safe and that individuals are held accountable for their actions.

STRATEGY

Section 111(4) of the Criminal Code of Canada grants provincial court judges the authority to proceed ex parte, that is, without the presence of the accused, to hear and determine an application for an order under subsection (1) in the same circumstances as a summary conviction court may proceed with a trial in the absence of the defendant. This provision presents several strategic considerations for legal practitioners. Firstly, this provision limits an accused's right to be present during court proceedings, which is a constitutional right. Therefore, any party seeking to rely on this provision must ensure that they meet the standard set by the courts for dispensing with an accused's presence. As per the Supreme Court of Canada in R v. Rowbotham, a party seeking to proceed in the absence of an accused must show that they have made reasonable efforts to ensure the presence of the accused, that the accused has been made aware of the proceedings, and that the proceedings can proceed fairly in the absence of the accused. Secondly, the provision provides that the same circumstances in which a summary conviction court may proceed ex parte apply to this section. Therefore, legal practitioners must be familiar with the conditions under which a summary conviction court may proceed in the absence of the defendant. Under Part XXVII of the Criminal Code, such circumstances include situations where the defendant has failed to appear, where the defendant has absconded or is avoiding arrest, or where the defendant is causing disorder in court. Legal practitioners must carefully evaluate the circumstances of their case to determine if they meet the threshold for dispensing with the accused's presence. Thirdly, as an ex parte hearing, the accused will not be present to challenge or adduce evidence as to why the order should not be granted. Therefore, legal practitioners seeking such an order must ensure that their case is properly supported by evidence. They must also anticipate any arguments that the accused may make and address those arguments in their submissions. Fourthly, a provincial court judge hearing an application under this provision has discretion as to whether or not to proceed ex parte. Legal practitioners seeking such an order must be prepared to persuade the judge as to the necessity and appropriateness of proceeding without the accused. They must present compelling reasons as to why dispensing with the accused's presence is necessary and justified in the circumstances. There are several strategic considerations and strategies that legal practitioners may use when dealing with section 111(4) of the Criminal Code. Firstly, they must ensure that they meet the threshold for dispensing with the accused's presence by showing reasonable efforts to ensure the accused's presence, and that the proceedings can proceed fairly without the accused. Secondly, legal practitioners must be familiar with the circumstances under which a summary conviction court may proceed ex parte. Thirdly, they must ensure that their case is properly supported by evidence and anticipate any arguments that the accused may make. Lastly, they must be prepared to persuade the judge as to the necessity and appropriateness of proceeding ex parte. By taking these strategic considerations and employing appropriate strategies, legal practitioners can effectively deal with section 111(4) of the Criminal Code.