section 688(2)

INTRODUCTION AND BRIEF DESCRIPTION

An appellant in custody with legal representation is not automatically entitled to be present for certain appeal proceedings unless granted leave by the court or rules of court provide otherwise.

SECTION WORDING

688(2) An appellant who is in custody and who is represented by counsel is not entitled to be present (a) at the hearing of the appeal, where the appeal is on a ground involving a question of law alone, (b) on an application for leave to appeal, or (c) on any proceedings that are preliminary or incidental to an appeal, unless rules of court provide that he is entitled to be present or the court of appeal or a judge thereof gives him leave to be present.

EXPLANATION

Section 688(2) of the Canadian Criminal Code outlines the circumstances under which an appellant who is in custody and represented by counsel is entitled to be present at an appeal hearing. Essentially, under this provision, an appellant who is in custody and has legal representation is not entitled to be present at the hearing of the appeal if the grounds of the appeal involve a question of law alone. The same applies to an application for leave to appeal or any proceedings that are preliminary or incidental to an appeal, unless the rules of the court provide otherwise or the court of appeal or a judge thereof grants the appellant leave to be present. The purpose of this section is to provide guidance on when an appellant who is in custody can be present at their appeal hearing. The provision recognizes that under certain circumstances, such as when the appeal is primarily focused on a question of law, the presence of the appellant may not be essential and may not impact the outcome of the appeal. This provision helps to streamline the appeal process by allowing for certain appeals to take place without requiring the physical presence of the appellant. In practice, the decision to grant or refuse a request for leave to be present during an appeal hearing will depend on the specifics of each case and will ultimately be up to the discretion of the court of appeal or the judge hearing the application. The overarching goal of the provision is to balance the need for access to justice with the practical and logistical constraints of the appellate process, while ensuring that the rights of the appellant are protected.

COMMENTARY

Section 688(2) of the Criminal Code of Canada is concerned with the entitlement of an appellant to be present during various proceedings relating to their appeal, in the context where they are in custody and represented by counsel. The provision has important implications for the rights of appellants to participate in the justice system, as well as for the efficiency and fairness of that system. The provision is split into three parts, each of which relates to a different type of proceedings. Subsection (a) relates to the hearing of an appeal on a ground involving a question of law alone; subsection (b) concerns an application for leave to appeal; and subsection (c) covers any preliminary or incidental proceedings to an appeal. In each case, the provision stipulates that an appellant who is in custody and represented by counsel is not entitled to be present, unless the rules of court provide otherwise or the court or a judge thereof grants leave. The reasoning behind this provision is to minimize the disruption caused by the physical presence of appellants in court - a concern which is particularly acute when the appellant is in custody. It is assumed that appellants who are represented by counsel will receive adequate legal representation, even if they are not physically present in court. In addition, it is thought that reducing the number of people present in court will expedite the legal process. On the surface, this provision seems relatively straightforward and logical. However, there are several important issues that arise from its implementation. One of the key concerns is the potential impact on an appellant's ability to participate in their own appeal. Being physically present in court allows an appellant to observe the proceedings, listen to legal arguments and evidence presented, and communicate with their counsel. These are all important components of the justice system, and the exclusion of appellants from these proceedings can be seen as an infringement of their rights. Another concern about this provision is the potential for unfairness in the justice system. If an appellant is not physically present in court, it can be difficult for the judicial system to ensure that their legal rights are being upheld. For example, if there are errors in the documentation provided to the court, or if there are issues with the translation of legal documents, an appellant who is not physically present may not be able to address these concerns. Lastly, it is worth considering whether this provision is still relevant in today's context. With advances in technology, it is often possible for appellants to participate in court proceedings remotely. This could potentially address the concerns around congestion in courtrooms, while still allowing appellants to participate fully in their own appeals. In conclusion, Section 688(2) of the Criminal Code of Canada is an important provision that concerns the entitlement of appellants to be present during various legal proceedings. While it seeks to address concerns around congestion in courtrooms and legal efficiency, it also raises important questions about the rights of appellants to participate in the justice system, as well as the fairness of that system. As the legal landscape continues to evolve, it is worth considering whether this provision remains relevant, or whether alternative approaches - such as remote participation - should be explored.

STRATEGY

Section 688(2) of the Criminal Code of Canada sets out the circumstances in which an appellant who is in custody and represented by counsel is entitled to be present during the appeal process. This provision is significant because it impacts the ability of the appellant to participate in their own appeal, and raises important strategic considerations for counsel representing appellants in custody. One of the first strategic considerations is to determine whether the appeal is on a ground involving a question of law alone. If this is the case, the appellant is not entitled to be present at the hearing of the appeal under section 688(2)(a). Counsel should carefully review the grounds of appeal to determine whether any involve questions of fact or mixed questions of fact and law. If there are no such grounds, the appellant may not be entitled to be present at the hearing. In this situation, counsel may need to consider whether to make an argument that one of the grounds of appeal does involve a question of fact or a mixed question of fact and law, in order to secure the appellant's presence at the hearing. Another significant factor to consider is the nature of the proceedings that are preliminary or incidental to the appeal. Section 688(2)(c) allows for the appellant to be excluded from these proceedings, unless they are entitled to be present under the rules of court or with the leave of the court of appeal or a judge thereof. This provision can impact a range of proceedings, from pre-appeal motions to the preparation of the appeal book and factum. Counsel should review the rules of court and seek the leave of the court of appeal or a judge where appropriate. This may involve a balancing of the benefits of the appellant being present against potential logistical or tactical challenges arising from their exclusion. A further strategic consideration is the impact of the appellant's absence on the appeal. If the appellant is excluded from the hearing or other proceedings, they will not be able to observe the proceedings, provide input to their counsel, or address the court directly. This may impact their ability to understand the issues being discussed, to provide informed instructions to their counsel, and to exercise their right to make full answer and defence. Counsel should carefully consider how to address these challenges, such as by seeking regular instructions from the appellant, providing thorough explanations of the proceedings and legal issues, and addressing any concerns or questions that arise from the appellant. In terms of strategies that can be employed, there are a range of options available in the context of section 688(2). Some potential strategies might include: - Seeking leave to appeal on one or more grounds involving questions of fact or mixed questions of fact and law, in order to secure the appellant's presence at the hearing. - Arguing that the appellant should be entitled to be present at any proceedings that are preliminary or incidental to the appeal, based on the specific facts and circumstances of the case. - Making use of technology, such as videoconferencing or teleconferencing, to allow the appellant to participate in the hearing or other proceedings remotely. - Ensuring that the appellant is fully informed of the proceedings and legal issues, and that their concerns and questions are addressed promptly and thoroughly. - Encouraging the court to consider the impact of the appellant's exclusion on their ability to participate fully in the appeal, and to take steps to mitigate this impact where possible. Ultimately, the strategies employed will depend on the specific circumstances of the case and the priorities of the appellant and their counsel. However, it is clear that section 688(2) of the Criminal Code of Canada sets out an important limitation on the rights of appellants in custody, and requires careful consideration and strategic planning by counsel to ensure that their client's interests are protected to the fullest extent possible.