INTRODUCTION AND BRIEF DESCRIPTION

Protected statements made by an accused cannot be used as evidence without their consent in any legal proceeding.

SECTION WORDING

672.21(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

EXPLANATION

Section 672.21(2) of the Criminal Code of Canada provides protection to an accused person by rendering their protected statement inadmissible in evidence without their consent, in any legal proceeding where evidence can be compelled. This section applies to any statement made by the accused that would result in self-incrimination. Protected statements can refer to any information given to law enforcement during an investigation or any confessions made. The reasoning behind this protection is to ensure that the accused's rights, particularly their right to a fair trial, are upheld. It is also to deter law enforcement officials from using coercive measures to obtain information from individuals. Protected statements also prevent the prosecution from inducing an individual into confessing to a crime they did not commit. However, it is important to note that an accused person may choose to waive their right to protect their statement, provided that the waiver is deemed to be made voluntarily by the accused. This means that the individual must be informed of their rights, and they must voluntarily consent to the waiver. In some cases, individuals may opt to provide incriminating statements, despite their right to legal protection. In summary, Section 672.21(2) is a critical aspect of Canadian criminal law that protects an accused person's right to a fair trial by ensuring that their protected statements are not admissible in evidence without their consent, unless they choose to waive their rights. This section serves as a safeguard for individuals who may be subject to coercive measures from law enforcement agents or prosecution officials.

COMMENTARY

Section 672.21(2) protects an accused person from having their protected statement used as evidence in any proceeding before a court, tribunal, body, or person who is authorized to compel the production of evidence, without their consent. A protected statement refers to any statement made by an accused person, either orally or in writing, that was made within their right to counsel or during an investigation process and cannot be used against them in court. This section of the Criminal Code of Canada is designed to safeguard the fair trial rights of an accused person, including their right to remain silent and their right to consult a lawyer. Protected statements can be made during interrogations, police questioning, or any other situation where the accused feels constrained to speak. The law ensures that the information an accused person shares during this time is not used as evidence at trial or any other stage of the proceedings, without their consent. This provision is critical in preventing coercion and intimidation tactics from being used on an accused person during the investigation process. Police officers and other investigators have an obligation to inform an accused person of their rights, including their right to remain silent. However, this does not always happen, and some accused may feel pressured to answer questions or make statements in the heat of the moment. Section 672.21(2) protects these individuals from having their statements used against them without their consent. Furthermore, the provision ensures that an accused person's legal representative can provide them with the necessary guidance and advice, without fear of their conversations being used against them. The ability to communicate freely with one's lawyer forms the cornerstone of the adversarial criminal justice system. Without this protection, an accused person may not feel comfortable in sharing their thoughts, feelings, and opinions with their legal counsel, which could impede their right to a fair trial. In conclusion, Section 672.21(2) plays a crucial role in protecting the rights of an accused person and ensuring the fairness of the criminal justice system. It safeguards against any pressure, coercion, or intimidation that may occur during the investigation process. It also protects the sanctity of the lawyer-client relationship, enabling individuals to communicate freely with their legal representatives and receive the necessary guidance. This provision is an essential aspect of Canadian criminal law and a vital safeguard against arbitrary and oppressive state action.

STRATEGY

Section 672.21(2) of the Criminal Code of Canada is an important provision that provides protection to an accused individual's statement and prevents their use in evidence without their consent. However, its application involves several strategic considerations that legal professionals need to take into account. This provision creates significant challenges for prosecutors, who must build their cases without relying on statements made by the accused. At the same time, defence attorneys must consider how to use this provision to their advantage. In this essay, we will discuss the strategic considerations when dealing with this section of the Criminal Code of Canada and evaluate some strategies that could be employed. One of the main strategic considerations when dealing with Section 672.21(2) is the impact it may have on the prosecutor's case. As this provision prevents the use of the accused's statement, the prosecutor must find other ways to prove the charge against the accused. The prosecutor must rely heavily on other evidence, such as witness statements, forensic evidence, and expert testimony. Consequently, the prosecutor must have a strong case with reliable and independent evidence to support the charges. However, this strategy could be challenging, especially when the accused's statement is the primary source of evidence. To overcome this challenge, the prosecutor could negotiate a plea agreement with the accused, offering reduced charges or sentencing in exchange for a guilty plea. Another strategic consideration involves assessing the accused's willingness to testify. With the use of this section, the accused can prevent their statement from being admitted into evidence. Therefore the accused's defence lawyers must decide whether the accused should testify in court. A compelling defence strategy is to keep the accused from testifying, as doing so would open the door for cross-examination by the prosecutor and exposing weaknesses in the case. However, the defence could strongly rely on the weakness of the prosecution's case due to the exclusion of the accused's statement. The defence attorney must also be prepared to co-operate with disclosure from the prosecutor and determine whether the strength of the prosecution is due to the reliance on the accused statement. Further, defence counsel must asses the extent of protection that the section offers to the accused. Prosecutors may argue that certain statements made by the accused are not "protected statements" within the meaning of the Code and are, therefore admissible in court. This strategy requires the prosecution to interpret the statute in the broadest possible way to include anything the accused has said. On the other hand, the defence must construe the provision more narrowly, with the aim of excluding as much as possible. This debate often involves the courts, who must determine the interpretation of terms such as "protected statement" and "admissible evidence." However, the defence can also take steps to ensure that the accused understands what a "protected statement" entails, so the accused can avoid making statements that could later be used against them. Lastly, there may be a situation where the accused may want to provide a statement voluntarily or give their consent for the use of the statement by the prosecution. This decision requires careful consideration, as the accused would be giving up their right to raise protection under Section 672.21(2). Hence a defence lawyer must advise the accused about the positive and negative repercussions of using their statement in court. The decision must also be made based on the evidence available and whether this evidence could be used against the accused and lead to a conviction. In conclusion, Section 672.21(2) of the Criminal Code of Canada creates challenges for both prosecutors and defence lawyers. The provision's application involves a range of strategic considerations that must be analysed to develop a winning strategy. The prosecutor must build a strong case based on other reliable sources of evidence, while the defence must be mindful of the limits of protection and the potential consequences of a client providing statements. Ultimately, navigating Section 672.21(2)'s requirements requires a astute legal practitioner who is well aware of the nuanced implications of this provision and is prepared to adapt their legal strategy to reflect this.