INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the admissibility of evidence in an inquiry under the Criminal Code of Canada.
SECTION WORDING
672.33(4) In an inquiry under this section, the court shall admit as evidence (a) any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or (b) any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with which the accused is charged.
EXPLANATION
Section 672.33(4) of the Criminal Code of Canada pertains to inquiries that may occur in the context of a trial for an offence, where the accused is to undergo a fitness assessment or determination of criminal responsibility. This section outlines the evidence that can be submitted during an inquiry. The court may consider any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court. This means that a written statement made under oath can be used as evidence in the inquiry, as long as the content of the statement is admissible in court. Additionally, the court may admit any certified copy of the oral testimony given at a previous inquiry or hearing held before a court with respect to the offence for which the accused is charged. This allows previous statements made in the context of a trial to be used as evidence in the inquiry. Overall, Section 672.33(4) of the Criminal Code of Canada ensures that evidence obtained through various means, such as written statements or previous oral testimonies, can be used in an inquiry to determine the accused's fitness or criminal responsibility. This section provides clarity on the admissibility of evidence in such inquiries and facilitates a smooth legal process.
COMMENTARY
Section 672.33(4) of the Criminal Code of Canada outlines the rules of evidence that apply to inquiries under this section. The purpose of this section is to ensure that the court has access to all relevant and admissible evidence when conducting an inquiry into whether an accused person is unfit to stand trial due to mental disability. The first paragraph of this subsection allows for the admission of any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court. This means that if an affidavit is sworn by a person who has relevant evidence to give in the inquiry, but is unable to attend in person, the court can still consider that evidence as though it was given orally in court. This provision is particularly useful in cases where a witness or expert is unable to attend the inquiry due to physical or mental health reasons. The affidavit must contain the same quality and reliability of evidence that would be given in court, including the ability to cross-examine the affiant. The second paragraph of this subsection allows for the admission of any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with which the accused is charged. This provision is important where the inquiry is being held after an earlier hearing in the criminal proceedings and the evidence that was presented at that hearing is relevant to the issue of fitness to stand trial. For example, this provision may be relevant where a witness has given evidence at a preliminary hearing or a voir dire on a contested issue and it is necessary or desirable for that evidence to be before the court at the inquiry. Overall, this provision helps ensure that the court is able to make an informed decision as to whether an accused person is fit to stand trial, while also ensuring that fairness and reliability of evidence are preserved. The provision offers flexibility in the type of evidence that can be admitted, allowing for the admissibility of affidavits and certified copies of oral testimony without jeopardizing the constitutional rights of the accused.
STRATEGY
When a matter proceeds to an inquiry under section 672.33(4) of the Criminal Code, it is important to understand the strategic considerations and available strategies that can be employed. Here are some key issues to consider: 1. Planning ahead for evidence: Section 672.33(4) makes it clear that in an inquiry, certain types of evidence may be admissible, including affidavits and certified copies of previous oral testimony. You will need to consider what evidence will be necessary to support your position and be prepared to have it available in the appropriate form. This may require advance preparation, such as obtaining affidavits from potential witnesses or tracking down previous court transcripts. 2. Choosing the right witnesses: Witnesses can make or break your case, so it is important to carefully consider who you will call and how they may be perceived by the presiding judge. Affidavits can be helpful as they are a written record of someone's evidence, but if you have a witness who can testify in person, they may be able to provide more detailed and compelling evidence. Consider their credibility, how well they will hold up under cross-examination, and whether their evidence is relevant and necessary to your case. 3. Assessing the impact of hearsay evidence: Hearsay evidence is generally not admissible in criminal proceedings, but section 672.33(4) does allow for the admission of certain types of hearsay evidence, such as affidavits. However, hearsay evidence can be problematic as it is often considered less reliable than direct evidence. Be prepared to challenge hearsay evidence that is presented against you and consider whether you need to introduce additional evidence to counter it. 4. Making strategic objections: Just because evidence is admissible under section 672.33(4) does not mean that it is automatically admissible in every case. There may be specific legal objections that can be raised to exclude evidence or arguments that can be made to show that it is unreliable or insufficient. Ensure you are well-versed in the relevant legal principles and consider making strategic objections where appropriate to limit the evidence that is admitted against you. 5. Pursuing relevant procedural matters: Section 672.33(4) sets out a number of procedural requirements for inquiries, such as notice requirements and the right to cross-examination. Consider whether there are any procedural matters that can be pursued to your advantage, such as seeking additional time to prepare evidence or objecting to the admission of evidence that was not properly disclosed or served. Overall, when dealing with section 672.33(4) of the Criminal Code, it is important to approach the matter strategically, with a clear understanding of the available evidence and legal principles. By carefully considering your options and making effective use of available strategies, you can increase your chances of a successful outcome.