section 672.5(9)

INTRODUCTION AND BRIEF DESCRIPTION

The accused has the right to be present throughout the hearing, subject to certain conditions.

SECTION WORDING

672.5(9) Subject to subsection (10), the accused has the right to be present during the whole of the hearing.

EXPLANATION

Section 672.5(9) of the Criminal Code of Canada outlines a fundamental right that is granted to an accused person during a hearing. The section states that the accused has the right to be present throughout the entirety of the hearing. This means that they have the right to be physically present in the courtroom while the trial is taking place. This right is considered an essential component of the accused's fair trial rights, as it allows them to directly observe and participate in the proceedings. However, this right is not absolute and subject to some limitations. Subsection (10) of the same provision provides for some exceptional circumstances where the court may exclude the accused from attending the whole or a portion of the hearing. Such situations include cases where the accused is deemed mentally unfit to attend, where there is a concern that their presence may jeopardize the administration of justice or where the court has evidence that the accused may attempt to disrupt the proceedings. Overall, Section 672.5(9) recognizes the importance of an accused's presence in the courtroom during their trial and aims to safeguard their right to directly observe and respond to the evidence presented against them. However, this right is not absolute, and the court retains discretion to exclude the accused from the proceedings in limited circumstances.

COMMENTARY

The Canadian Criminal Code is a comprehensive piece of legislation that establishes the criminal law of the country. It outlines the principles of criminal liability, penalties of offences, and procedures for conducting criminal trials. One of the critical procedural safeguards enshrined in the Code is the accused's right to be present during the entire hearing. Section 672.5(9) of the Criminal Code of Canada guarantees accused the right to be present throughout the proceeding. It ensures their participation and involvement in their defence and protects their interests. Without this fundamental right, the accused could be denied the opportunity to make submissions on critical matters affecting their case. The right to be present applies to all stages of criminal proceedings, including arraignment, pre-trial conferences, motions, jury selection, trial, and sentencing hearings. At any point during the proceedings, if the accused is absent without a valid excuse, they forfeit their right to participate in their defence, and the trial proceeds in their absence. However, there is an exception to the right to be present, which is outlined in subsection (10) of section 672.5 of the Criminal Code of Canada. According to this provision, the trial judge may exclude the accused from the courtroom during specific parts of the proceedings where their presence may prejudice the proper administration of justice. For instance, the judge may exclude the accused from the courtroom when a witness is testifying, particularly if the witness is vulnerable, such as a child or victim of a sexual assault. Alternatively, the judge may exclude the accused if their presence may intimidate or influence a witness, or if they demonstrate disruptive behaviour that threatens the orderly conduct of the proceedings. Despite these exceptions, judges must be cautious in their use of exclusion orders, as they infringe on the accused's constitutional right to be present at their own trial. The exclusion of the accused from parts of their trial must be necessary and proportionate to the risk or harm to the administration of justice. The judge must balance the right to a fair trial with the accused's right to be present and participate in their defence. In conclusion, the right to be present throughout the proceedings is a crucial component of the right to a fair trial in Canada. It ensures that the accused has an opportunity to hear the evidence, participate in their defence, and obtain a fair and just outcome. While the judge has the discretion to exclude the accused from the courtroom in limited circumstances, they must do so carefully and only when necessary to prevent prejudice to the administration of justice.

STRATEGY

The right of the accused to be present during the whole of the hearing is a crucial component of criminal proceedings, which underscores the fundamental principles of fairness, transparency, and due process of law. Section 672.5(9) of the Criminal Code of Canada provides a broad guarantee to the accused that they can attend and participate in every stage of the trial, including the selection of the jury, the presentation of evidence, the cross-examination of witnesses, and the final verdict. However, this right may be subject to certain limitations, such as cases of disruptive behaviour or other exceptional circumstances that pose a threat to the integrity or safety of the proceedings. One strategic consideration when dealing with this section of the Criminal Code of Canada is how to balance the interests of the accused against those of the prosecution, the court, and the public. While the right to be present is generally seen as a basic entitlement that should be protected to the fullest extent possible, there may be situations where the absence or removal of the accused could be justified or even necessary. For instance, if the accused engages in overtly hostile or intimidating conduct towards the witnesses, the judge, or other parties, the court may order them to leave the courtroom or have them restrained. In such cases, the defence counsel would need to weigh the benefits and risks of challenging the order on the grounds that it violates their client's constitutional rights, or accepting it as a reasonable restriction that serves the broader interests of justice. Another strategic consideration when dealing with this section of the Criminal Code of Canada is how to leverage the right to be present to advance the defence's case and undermine the prosecution's evidence. By being present throughout the trial, the accused can monitor the testimony of the witnesses, assess the strengths and weaknesses of their statements, and provide feedback to their legal team. The accused can also challenge the validity of the evidence, raise objections to improper questioning or leading questions by the prosecution, and cross-examine the witnesses to elicit inconsistencies, contradictions, or biases. Moreover, the presence of the accused can have a psychological impact on the prosecutor and the witnesses, as it signals that the defence is fully engaged and committed to the case, and can raise doubts about the credibility or bona fides of the prosecution's case. Some strategies that could be employed to protect and enhance the right of the accused to be present throughout the hearing include: - Preparing a compelling argument for why the presence of the accused is critical to maintaining a fair and transparent trial, and why any proposed restrictions or limitations on their attendance would violate their rights under the Charter of Rights and Freedoms. This argument could include references to relevant case law, expert testimony, and other legal precedents that support the idea that the accused's presence is essential to the principle of fundamental justice. - Building a strong rapport between the accused and their legal counsel, and establishing clear communication channels to ensure that the accused is fully informed and aware of all developments in the case. This could involve regular meetings, updates on the latest evidence, and solicitation of feedback and opinions from the accused. - Conducting a thorough investigation of the prosecution's evidence, including reviewing all relevant documents, conducting fieldwork or interviews, and leveraging the expertise of forensic or technical specialists. By identifying weaknesses or gaps in the prosecution's case, the defence can effectively challenge the credibility and reliability of the evidence, and cast doubts on the veracity of the witnesses. - Employing effective cross-examination techniques to elicit favourable responses from the witnesses, such as by using leading questions, exploiting contradictions or inconsistencies in their testimony, or establishing favourable facts that support the defence's version of events. The accused can also use their presence to express empathy or remorse, or to show respect for the witnesses or the court, which can facilitate a more positive reception by the judge or the jury. Overall, the right of the accused to be present during the whole of the hearing is a critical component of criminal proceedings, and requires careful strategic consideration on the part of all parties involved. By leveraging this right effectively, the defence can enhance their chances of securing a favourable outcome for their client by weakening the prosecution's evidence and undermining the credibility of their witnesses. At the same time, the defence must be mindful of the broader interests of justice, and be prepared to accept reasonable limitations on the accused's attendance if they are necessary to protect the integrity of the trial or the safety of all participants.