section 647(3)

INTRODUCTION AND BRIEF DESCRIPTION

Non-compliance with subsection (2) does not invalidate proceedings.

SECTION WORDING

647(3) Failure to comply with subsection (2) does not affect the validity of the proceedings.

EXPLANATION

Section 647(3) of the Criminal Code of Canada is a provision that deals with failure to comply with a specific requirement under subsection (2) of the section. This subsection requires that a person who is arrested and taken into custody under the section be informed of their right to counsel without delay, and that they be allowed to contact counsel as soon as practicable. Failure to comply with this requirement does not affect the validity of the proceedings against the person. This provision is significant because it recognizes that mistakes can happen in the process of arresting and taking an individual into custody. It also acknowledges that even if a person's right to counsel is not immediately communicated to them, it does not necessarily mean that the proceedings against them are automatically invalid. However, it is important to note that the right to counsel is a fundamental right protected by the Canadian Charter of Rights and Freedoms, and any violations of this right may still be the subject of legal challenges. A failure to communicate this right in a timely manner may also be taken into account when determining the admissibility of evidence obtained in the course of the investigation. In summary, Section 647(3) recognizes that procedural errors can occur in the criminal justice process, but it does not absolve law enforcement agents from their duty to respect an individual's right to counsel. The provision emphasizes that even in cases where this right is not properly communicated, the proceedings against the accused are still valid, but any violations of their rights may still be challenged in court.

COMMENTARY

Section 647(3) of the Criminal Code of Canada is an important provision that seeks to address situations where individuals fail to comply with subsection 647(2), which requires individuals to attend court when summoned. This provision has drawn the attention of legal scholars, human rights activists, and scholars interested in the intersection of law enforcement and human rights. In this commentary, we will examine the provisions of Section 647(3), its potential interpretive implications, and the critique levelled against it. Section 647(3) of the Criminal Code of Canada provides that failure to comply with subsection 647(2) does not affect the validity of the legal proceedings. It means that if a defendant fails to appear in court when summoned, their non-appearance does not invalidate the legal proceedings. For instance, if a defendant is charged with a criminal offence and fails to appear in court as required under subsection 647(2), Section 647(3) provides that the legal proceedings and eventual conviction remain valid despite the failure to appear. The practical implication of Section 647(3) is that legal proceedings will continue even when the defendant is absent from the court. It helps in ensuring that legal proceedings are not derailed by a defendant's non-appearance, which may result in a waste of judicial resources and time. Moreover, Section 647(3) ensures that the administration of justice operates smoothly by guaranteeing that justice is served, regardless of the defendant's absence. However, despite the benefits of Section 647(3), there are potential shortcomings in its interpretation and implementation. In particular, legal scholars have critiqued Section 647(3) for potentially violating a defendant's right to a fair trial. The absence of the defendant from a court proceeding raises significant questions about their ability to defend themselves, participate in the legal proceedings, and understand the case's outcome fully. Moreover, a defendant's non-appearance in court may undermine the fundamental principles of justice or, at the very least, appear to violate these principles. The inability of a defendant to present their case, provide a defence, and cross-examine witnesses may cause the sentencing judge or jury to observe the accused as guilty and convict, resulting in a miscarriage of justice. The absence of an accused person also places the judge in a challenging legal position, as they must weigh various considerations, such as the liberty interests of the defendant, when deciding the case with limited input. Furthermore, Section 647(3) may be subject to abuse by the prosecution authorities to achieve a conviction in a case where the defendant is absent. Since the failure to comply with subsection 647(2) does not affect the validity of legal proceedings, a prosecutor can rely on this provision to secure a conviction based on weak evidence or a flawed trial. This outcome may result in a fundamental breach of the defendant's fair trial rights, resulting in a potential violation of Canada's Charter of Rights and Freedoms. In conclusion, Section 647(3) of the Criminal Code of Canada plays an essential role in ensuring that the legal proceedings continue without the presence of a defendant. This provision guarantees that cases do not unnecessarily delay or result in a waste of judicial resources. However, the provision may be subject to potential misinterpretations and abuse to achieve convictions in cases where evidence is insufficient, resulting in a breach of fair trial principles and the defendant's legal and human rights. Consequently, there is a need for a proper review of this provision to address its weaknesses and ensure that the interests of justice are upheld.

STRATEGY

Section 647(3) of the Criminal Code of Canada is an important provision that outlines the legal implications of failing to comply with subsection (2) which pertains to the requirement of an accused person to attend court for trial or other proceedings. While this provision provides some level of flexibility for accused persons who may not be able to attend court for valid reasons, it also raises some strategic considerations for defence lawyers and prosecutors alike. For defence lawyers, the strategic considerations will depend on the specific circumstances of the case and the reasons why the accused person is unable to attend court. For example, if the accused person has medical or other personal reasons that prevent them from attending court, the defence lawyer may need to provide evidence to support their claim and seek an adjournment of the proceedings. In such cases, the defence may argue that the failure to comply with subsection (2) does not affect the validity of the proceedings, and that a fair trial cannot be conducted if the accused person is not present in court. Alternatively, if the accused person voluntarily fails to attend court without a valid reason, the defence lawyer may need to consider other strategies, such as negotiating a plea deal or seeking a lighter sentence for their client. For prosecutors, the strategic considerations may involve addressing the reasons why the accused person failed to attend court, and whether or not this failure was intentional or due to circumstances beyond their control. If the accused person failed to attend court intentionally, the prosecutor may argue that this shows a disregard for the authority of the court and their obligations as a citizen, and that the court should take this into account when deciding on an appropriate sentence. On the other hand, if the accused person failed to attend court due to valid reasons, the prosecutor may need to consider whether or not to seek an adjournment of the proceedings. In either case, the prosecutor will need to be mindful of the fact that the failure to comply with subsection (2) does not affect the validity of the proceedings, and that they will need to make a strong case for the accused person to be held accountable for their actions. Overall, the strategic considerations that arise from section 647(3) of the Criminal Code of Canada will depend on the specific circumstances of the case, and the reasons why the accused person failed to attend court. Defence lawyers and prosecutors will need to be strategic in their approach, considering both the legal implications of non-compliance with the section, and the practical realities of the court system. Some strategies that could be employed include seeking an adjournment of the proceedings, negotiating a plea deal, presenting evidence to support a valid reason for the accused person's absence, or arguing for a lighter sentence in cases where the accused person failed to attend court without a valid reason. Ultimately, the goal should be to ensure that justice is served, while also respecting the legal and procedural requirements of the court system.