Criminal Code of Canada - section 544(3) - Accused not entitled to re-opening

section 544(3)

INTRODUCTION AND BRIEF DESCRIPTION

If the accused reappears at a preliminary inquiry that is continuing, they cannot have any absent proceedings re-opened unless there are exceptional circumstances in the interests of justice.

SECTION WORDING

544(3) Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.

EXPLANATION

Section 544(3) of the Criminal Code of Canada is a provision that relates to an accused person's right to attend their own preliminary inquiry, which is a hearing held before a trial to determine whether there is enough evidence to proceed with the case. If the accused person is not present at the preliminary inquiry, then the section allows for the inquiry to proceed in their absence, without the need for the proceedings to be re-opened when they reappear. However, if there are exceptional circumstances that warrant re-opening the inquiry, then the presiding justice may do so if they believe it is in the interests of justice. The purpose of this provision is to balance the accused's right to participate in the preliminary inquiry with the need for the inquiry to proceed in a timely and efficient manner. It also recognizes that there may be situations where an accused is unable to attend the preliminary inquiry due to circumstances beyond their control. Overall, Section 544(3) is an important aspect of the Canadian criminal justice system that ensures fairness and efficiency in the pre-trial process, while also protecting the rights of accused persons.

COMMENTARY

Section 544(3) of the Criminal Code of Canada deals with the situation where an accused reappears at a preliminary inquiry that is already in progress. It sets out the circumstances under which the accused is entitled to have some or all of the proceedings that were conducted in their absence re-opened. This provision is designed to protect the rights of the accused while also ensuring that the administration of justice is not unduly delayed or interrupted. The purpose of a preliminary inquiry is to determine whether there is sufficient evidence to justify a trial. During this process, witnesses are called and evidence is presented in front of a judge. The accused has the right to be present at the inquiry, and to cross-examine witnesses and challenge the evidence against them. However, there may be situations where the accused is unable to attend the inquiry, such as if they are in custody elsewhere or ill. If the inquiry proceeds without them, they may be at a disadvantage because they were not present to cross-examine witnesses or challenge evidence. Section 544(3) provides a mechanism for addressing this situation. Under this provision, if the accused reappears at the inquiry, they are not entitled to have any part of the proceedings that were conducted in their absence re-opened unless the justice is satisfied that there are exceptional circumstances that make it in the interests of justice to do so. This means that the justice has discretion to decide whether to re-open the inquiry, depending on the circumstances of the case. The purpose of this provision is to strike a balance between protecting the accused's right to a fair trial and ensuring that the administration of justice is not unduly delayed. If the accused is entitled to have the inquiry re-opened, this may cause significant delays, as witnesses will need to be called again and evidence must be presented anew. This could prolong the process and cause harm to the interests of the prosecution, witnesses, and victims. Therefore, the justice must carefully consider whether there are exceptional circumstances that make it in the interests of justice to re-open the inquiry. This may include situations where the accused was unable to attend due to serious illness or other compelling reasons. The justice must weigh the interests of the accused against the interests of the prosecution, witnesses, and victims, and make a decision that is fair and just. In conclusion, section 544(3) of the Criminal Code of Canada is an important provision that protects the rights of the accused while also ensuring that the administration of justice is not unduly delayed or interrupted. It provides a mechanism for addressing situations where the accused is unable to attend a preliminary inquiry and seeks to have the proceedings re-opened. However, the provision is subject to judicial discretion and must be balanced against the interests of all parties involved in the criminal justice system.

STRATEGY

Section 544(3) of the Criminal Code of Canada can have significant implications for the defence and the Crown when dealing with a preliminary inquiry where the accused has reappeared after being absent. In this situation, it is important for both parties to consider the strategic implications of this section and the possible strategies that could be employed. One of the first considerations is whether the accused's absence has resulted in any significant developments in the preliminary inquiry. For instance, if witnesses were examined in the absence of the accused, reopening the inquiry may be necessary for the accused to cross-examine these witnesses and ensure that their defence is properly presented. Additionally, if important evidence was introduced in their absence, it may be necessary to reopen the inquiry to ensure that this evidence is properly tested. However, even if there were no significant developments in the accused's absence, the defence may still seek to reopen the inquiry if they believe that they can use this opportunity to weaken the Crown's case. For instance, they may use cross-examination to challenge the credibility of witnesses or to elicit testimony that supports their defence. The Crown, on the other hand, may seek to resist reopening the inquiry, particularly if they believe that doing so would be detrimental to their case. For instance, if the Crown believes that the defence will use the opportunity to weaken their case, they may argue that the interests of justice do not require the inquiry to be reopened. Alternatively, the Crown may seek to use the opportunity to introduce additional evidence or call additional witnesses to strengthen their case. Another important consideration is the timing of the accused's reappearance. If the accused reappearance is early in the proceedings, there may be less reason to reopen the inquiry, especially if no significant developments occurred in their absence. Conversely, if the accused's reappearance is late in the proceedings, there may be more pressure on the defence to seek reopening to ensure that their case is properly presented. Finally, when considering whether to reopen the inquiry, it is essential to consider the potential costs and benefits of doing so. Reopening an inquiry can be time-consuming and involve additional costs, such as the cost of re-examining witnesses or recalling experts. Therefore, both the defence and the Crown must weigh the potential benefits of reopening the inquiry against the associated costs. In summary, when dealing with section 544(3) of the Criminal Code of Canada, it is important to carefully consider the strategic implications of reopening the inquiry for both the defence and the Crown. Depending on the circumstances, a wide range of strategies may be employed, including challenging the credibility of witnesses, introducing additional evidence, or resisting reopening altogether. By carefully considering all the factors at play and developing a comprehensive strategy, both the defence and the Crown can work towards a positive outcome for their client.