section 475(2)

INTRODUCTION AND BRIEF DESCRIPTION

If an accused absconds after a court continues their trial, the court may draw an adverse inference against them.

SECTION WORDING

475(2) Where a court continues a trial pursuant to subsection (1), it may draw an inference adverse to the accused from the fact that he has absconded.

EXPLANATION

Section 475(2) of the Criminal Code of Canada serves as an important provision with regards to court trials in cases where the accused has absconded. The term 'absconded' refers to a situation where the accused has fled the jurisdiction to avoid prosecution or has gone into hiding to avoid arrest. Under this provision, if a court continues a trial pursuant to subsection (1), which allows for adjournment of proceedings for various reasons, it may draw an inference adverse to the accused from the fact that he or she has absconded. This means that the court may infer guilt on the accused person due to their actions of fleeing or hiding. The inference drawn by the court may be used as evidence against the accused, though it is not conclusive. However, it can be a powerful piece of evidence that could sway the outcome of a trial in favour of the prosecution. The accused may have to overcome the presumption of guilt that arises from their failure to comply with the legal process. This provision is meant to deter the accused from absconding, reflecting the seriousness of the legal process and the need for the accused to honour their obligations. It also provides a unique tool to the courts to establish an inference of guilt in the absence of direct evidence. Overall, section 475(2) of the Criminal Code of Canada is an important tool for the courts to use when dealing with cases where the accused has absconded. It serves as a deterrent against fleeing from justice and provides a mechanism for the courts to infer guilt in such cases, albeit not conclusive.

COMMENTARY

Section 475(2) of the Criminal Code of Canada empowers courts to draw an inference adverse to the accused when they abscond during trial. Absconding is defined as leaving a place without permission or without intending to return. The provision serves as a deterrent against defendants absconding during their trials and enhances the integrity of the justice system. However, this section raises several issues that warrant discussion. Firstly, the provision may lead to a miscarriage of justice. An inference adverse to the accused is not conclusive proof of guilt but a circumstantial indication of guilt. However, the inference may influence the judgment of the court, especially if there is little evidence to the contrary. Thus, an innocent defendant may be unfairly convicted or receive a harsher sentence due to absconding. Therefore, courts should exercise caution when interpreting the provision and ensure that the evidence warrants an inference of guilt. Secondly, the provision may infringe on the right of the accused to a fair trial. The right to a fair trial is enshrined in the Canadian Charter of Rights and Freedoms and international human rights treaties. Fair trial rights include the presumption of innocence, the right to be present, the right to cross-examine witnesses, and the right to a competent defense. Absconding may compromise some of these rights, such as the right to be present and the right to a competent defense. For instance, if the accused absconds during cross-examination or is not available to testify, they may be denied the opportunity to challenge the prosecution's evidence or present their version of events. Therefore, courts should balance the right of the accused to abscond with the right to a fair trial by taking into account the circumstances surrounding the absconding. Thirdly, the provision may disproportionately affect vulnerable populations such as marginalized communities, immigrants, and those with mental health issues. These populations may have limited resources, face language barriers, or lack the capacity to understand the legal proceedings fully. As a result, they may be more likely to abscond due to fear or misunderstanding. Therefore, courts should adopt a nuanced approach when dealing with these populations and provide appropriate resources and assistance to help them understand their legal rights and obligations. In conclusion, section 475(2) of the Criminal Code of Canada aims to enhance the integrity of the justice system by deterring defendants from absconding during trial. However, the provision raises several issues that require the courts to exercise caution and balance the interests of the accused and the objective of the provision. Courts should carefully consider the evidence before drawing an inference of guilt, ensure that the accused's fair trial rights are not compromised, and adopt a nuanced approach when dealing with vulnerable populations. Ultimately, criminal law should serve justice and not perpetuate injustice.

STRATEGY

In Canada, Section 475(2) of the Criminal Code allows the court to draw an inference against an accused who has absconded, that is, who has left the jurisdiction or gone into hiding during the trial proceedings. This section of the Criminal Code can have serious implications for the accused, as it can establish their guilt or at least contribute to a finding of guilt. As such, it is important for defense counsel to consider how to deal with this section of the Criminal Code in their representation of the accused. One strategy that defense counsel may employ is to challenge the validity and reliability of the inference that the court may draw from the accused's absconding. The inference may be challenged on the grounds that there may be other more plausible explanations for the accused's absence, such as illness, emergency, or other unforeseeable circumstances. Defense counsel may also argue that the evidence presented by the prosecution is insufficient to establish guilt beyond a reasonable doubt, even with the inference that may be drawn from the accused's absconding. Another strategy that may be employed by defense counsel is to address the issue of absconding at the earliest opportunity. If absconding is anticipated or likely, it may be beneficial to deal with this issue before the trial proceedings commence. Defense counsel may advise the accused to voluntarily surrender to the authorities or otherwise address the issue of absconding in a timely and transparent manner. This strategy can be effective in demonstrating that the accused is not attempting to avoid responsibility for their actions and may mitigate the impact of any inference that the court may draw from the accused's absence. Alternatively, if it is not possible to prevent the accused from absconding, defense counsel may choose to take a different approach. They may choose to limit the evidence that may be presented by the prosecution or to challenge the admissibility of evidence that may be prejudicial to the accused. Defense counsel may also choose to emphasize other aspects of the case, such as procedural or evidentiary issues, or to stress the importance of the presumption of innocence and the burden of proof on the prosecution. In conclusion, Section 475(2) of the Criminal Code of Canada can have significant implications for the accused in a trial. Defense counsel will need to carefully consider how to deal with this section of the Criminal Code, and should employ a range of strategies to mitigate the impact of any inference that may be drawn against the accused. These strategies may include challenging the validity and reliability of the inference, addressing the issue of absconding early, limiting the evidence presented by the prosecution, and emphasizing other aspects of the case. Ultimately, defense counsel will need to tailor their approach to the specific circumstances of the case and to the needs and interests of their client.