section 544(2)

INTRODUCTION AND BRIEF DESCRIPTION

If an accused person absconds during a preliminary inquiry, the justice may draw an adverse inference against them.

SECTION WORDING

544(2) Where the justice continues a preliminary inquiry pursuant to subsection (1), he may draw an inference adverse to the accused from the fact that he has absconded.

EXPLANATION

Section 544(2) of the Criminal Code of Canada allows a justice to draw an inference adverse to an accused person if they have absconded from the proceeding. Absconding means that the accused person has left the place where they were supposed to be when the court requires their presence. This section is typically invoked during a preliminary inquiry, which is a trial-like process where the judge determines if there is enough evidence for the case to proceed to trial. This provision is significant because it places an additional burden on the accused. Normally, in criminal proceedings, the burden is on the prosecution to prove the case beyond a reasonable doubt. However, when an accused absconds during a preliminary inquiry, the justice is permitted to draw an inference against them. This means that the justice may use the accused's absence as evidence against them when deciding if the case should proceed to trial. The inference that can be drawn is an inference adverse to the accused, which means that the justice can assume that the accused is guilty or has something to hide. This is because the accused's absence can be seen as an attempt to evade the justice system, or an indication that the accused is aware that they have committed a crime and do not want to be brought to trial. It is important to note that this provision is not absolute; the justice cannot automatically assume guilt based on an accused's absence. The inference that can be drawn must be reasonable and supported by the evidence. This provision underscores the importance of personal accountability in the justice system. If an accused wants to avoid negative inferences being drawn against them, they must be present and cooperate with the proceedings.

COMMENTARY

Section 544(2) of the Criminal Code of Canada empowers a justice to draw an inference adverse to an accused who has absconded during a preliminary inquiry. This provision creates an evidential presumption that the accused's flight demonstrates a consciousness of guilt. The inference is not conclusive, and the accused may lead evidence to explain their absence, but the provision tilts the balance of probabilities against the accused, making it more difficult for them to challenge the prosecution's case. The provision rests on the view that a person who flees during a criminal investigation must have something to hide. It treats flight as an act of evasion that indicates a consciousness of guilt and a realization that the evidence against the accused is strong enough to lead to a conviction. However, this presumption is not always accurate. There may be reasons for an accused to flee other than guilt, such as fear of prosecution, coercion, or mental illness. Moreover, the presumption may unfairly stigmatize people who are innocent but are perceived as threats by the authorities. The provision raises several legal and policy concerns. One concern is that it reverses the burden of proof and violates the presumption of innocence. The presumption of innocence is a fundamental principle of criminal law that requires the prosecution to prove the guilt of the accused beyond a reasonable doubt. By allowing the justice to draw an inference adverse to the accused based on their flight, the provision shifts the burden of proving innocence to the accused, who may have difficulty doing so. In effect, the provision creates a form of strict liability for flight, regardless of the underlying reasons for it. Another concern is that the provision may disproportionately affect marginalized groups, such as racialized people, Indigenous people, and low-income people who may have reasons to flee due to systemic bias, discrimination, or poverty. The provision may also discourage accused persons from appearing at their hearings, which can undermine the integrity of the justice system and lead to wrongful convictions or acquittals. The provision also highlights the tension between the investigative and the adjudicative functions of the criminal justice system. On the one hand, the police and prosecutors have a duty to investigate and gather evidence to support a prosecution. On the other hand, the courts must preserve the fairness of the trial process and ensure that the accused's right to a fair trial is respected. The provision extends the coercive power of the police and prosecutors into the pre-trial process and may undermine the integrity of the trial process. Overall, section 544(2) of the Criminal Code of Canada raises important issues about the nature of flight and the evidential value of it. While there are debates about the presumptive value of flight as evidence for guilt, the provision may have unintended consequences that may undermine the fairness and impartiality of the justice system. It is therefore important to balance the investigative and adjudicative functions of the criminal justice system and to ensure that the rights of the accused are respected at all stages of the process.

STRATEGY

Section 544(2) of the Criminal Code of Canada allows a justice to draw an inference adverse to the accused when they have absconded during a preliminary inquiry. This provision can have serious consequences for an accused person, as it can be used to infer guilt and potentially lead to a conviction. As such, it is essential for defense counsel to carefully strategize when dealing with this provision and consider a range of options to protect their client's rights. One strategy that could be employed is to contest the inference and argue that there are other explanations for the accused's failure to appear. For example, if the accused was unaware of the date or time of the hearing, or if they were unable to attend due to illness or other circumstances beyond their control, the inference may not be justified. In these cases, the defense counsel could provide evidence to refute the inference, such as medical records or testimony from witnesses who can attest to the accused's whereabouts at the time of the hearing. Another strategy is to negotiate with the Crown to resolve the case without the need for a preliminary inquiry. By doing so, the accused can avoid the risk of an adverse inference and potential conviction. This approach may be appropriate in cases where the evidence against the accused is weak, or where a plea bargain may be in their best interests. Alternatively, defense counsel could seek an adjournment of the preliminary inquiry to allow the accused time to prepare their case and attend the hearing. This option may be necessary in cases where the accused has recently been arrested or detained, and has not had sufficient time to retain counsel or prepare a defense. Finally, defense counsel may choose to challenge the constitutionality of section 544(2) itself, arguing that it violates the principle of innocence until proven guilty and infringes on the accused's rights to a fair trial. This approach would require careful legal analysis and research, but could be an effective way to challenge the provision and protect the rights of the accused. In conclusion, section 544(2) of the Criminal Code of Canada is a powerful tool that can be used by the Crown to infer guilt and potentially lead to a conviction. As such, defense counsel must carefully strategize when dealing with this provision and consider a range of options to protect the rights of their clients. By doing so, they can ensure that the accused receives a fair trial and the best possible outcome.