INTRODUCTION AND BRIEF DESCRIPTION
A provincial court judge can hear and determine an application for an order in the absence of the person against whom the order is sought, similar to a summary conviction court proceeding with a trial in the absence of the defendant.
SECTION WORDING
117.011(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 117.011(4) of the Criminal Code of Canada empowers a provincial court judge to hear and determine an application under subsection (1) of the same section in the absence of the person against whom the order is being sought. This section is applicable in the same circumstances as a summary conviction court may, under Part XXVII, proceed with a trial in the absence of the defendant. The purpose of this provision is to facilitate the granting of protection orders in urgent situations, particularly those involving domestic violence or threatened violence. It recognizes that in certain circumstances, it may not be possible or safe for the victim to attend court to give evidence against the alleged offender or respond to the allegations made against them. In such cases, the court can proceed ex parte, meaning that the hearing will take place without the presence of the accused person. However, it is important to note that the court can only proceed ex parte if certain conditions are met. Firstly, the application must be urgent, which means that a delay in hearing the application would likely result in harm to the victim. Secondly, the court must be satisfied that the victim has made reasonable efforts to inform the person against whom the order is being sought, but they cannot be located or it is unsafe to serve them with notice. Finally, the court must be satisfied that there is sufficient evidence to grant the order sought. It is crucial for the court to strike a balance between the need to protect victims of violence and the protection of the accused person's right to a fair hearing. The court must ensure that the provisions of this section are strictly followed to prevent any abuse of process and protect the fundamental rights of both parties involved in the proceedings.
COMMENTARY
Section 117.011(4) of the Criminal Code of Canada provides for an ex parte application in the context of a peace bond hearing. A peace bond is a court order used to protect someone from potential harm or violence from another individual. The order can require the person who is the subject of the order to adhere to certain conditions, such as maintaining a certain distance from the person who has sought the peace bond, or not possessing weapons of any kind. This section allows for a provincial court judge to hear and determine an application for a peace bond in the absence of the person against whom the order is sought. This means that the judge can hear the application without the person being present in court, as long as certain circumstances are met. The circumstances that allow for an ex parte hearing are the same as those that allow a summary conviction court to proceed with a trial in the absence of the defendant, as outlined in Part XXVII of the Criminal Code. This means that there must be sufficient evidence to establish a prima facie case against the person against whom the order is sought, and that all reasonable steps have been taken to notify the person of the hearing. The purpose of allowing an ex parte hearing is to provide protection to the person who has sought the peace bond. In some cases, the person who is the subject of the order may pose a risk of harm or violence, and it may not be safe for the person seeking the peace bond to be present in court. Allowing an ex parte hearing ensures that the court can still provide protection to the person seeking the peace bond, even if the person against whom the order is sought is not present in court. However, the use of ex parte hearings raises concerns about procedural fairness and due process. The person against whom the order is sought has a right to be heard and to defend themselves against the allegations being made against them. Allowing an ex parte hearing without proper notice or without strong evidence to support the application can lead to an unjust outcome and undermine the rights of the accused. To mitigate these concerns, it is important that the court carefully considers whether an ex parte hearing is necessary in the circumstances. The court should ensure that all reasonable steps have been taken to notify the person against whom the order is sought of the hearing, and that there is sufficient evidence to establish a prima facie case. Overall, while the use of ex parte hearings may be necessary to protect vulnerable individuals, it is important to balance these concerns with the need for procedural fairness and due process. The court must ensure that all parties are given a fair opportunity to be heard and to defend themselves against the allegations being made.
STRATEGY
Section 117.011(4) of the Criminal Code of Canada can be a powerful tool for law enforcement agencies seeking to obtain a restraining order against an individual in cases of serious organized crime or terrorism. This section allows provincial court judges to proceed ex parte - in other words, without the presence or knowledge of the person against whom the order is sought - in certain circumstances. However, there are a number of strategic considerations that must be taken into account when dealing with this section, both from the perspective of law enforcement agencies and the courts. The first consideration is the level of evidence required to justify an ex parte application under this section. In order to obtain a restraining order in the absence of the person against whom the order is sought, the applicant must demonstrate that there are reasonable grounds to believe that the person is involved in serious organized crime or terrorism, and that an order is necessary to prevent their participation in these activities. This can be a challenging threshold to meet, especially in cases where the person in question may not even be aware of the allegations against them. Another important consideration is the potential for abuse of this section by law enforcement agencies. Ex parte applications can be seen as a shortcut, allowing authorities to obtain restraining orders without having to confront the person in question or provide any evidence in a public forum. This can raise concerns about due process and the protection of civil liberties. To avoid these issues, it is important for law enforcement agencies to carefully consider the evidence and the necessity of obtaining an ex parte order before making an application under Section 117.011(4). From a strategic perspective, there are a number of tactics that can be employed when dealing with this section. One approach is to focus on gathering as much evidence as possible before making an application for a restraining order. By presenting a strong case with clear evidence of the individual's involvement in serious organized crime or terrorism, a law enforcement agency is more likely to convince a judge that an ex parte order is necessary. Another tactic is to be transparent about the use of this section, both with the court and the public. By explaining the rationale behind the application and the evidence that supports it, law enforcement agencies can help to address concerns about due process and civil liberties. This can also help to build trust with the community, which is important in cases where the individual in question may have significant support or influence. In conclusion, Section 117.011(4) of the Criminal Code of Canada provides a powerful tool for law enforcement agencies seeking to obtain restraining orders against individuals involved in serious organized crime or terrorism. However, this tool must be used carefully and strategically to avoid potential abuses and to ensure that due process and civil liberties are respected. By carefully considering the evidence and being transparent about their actions, law enforcement agencies can increase the effectiveness and legitimacy of this section.