section 694.2(2)

INTRODUCTION AND BRIEF DESCRIPTION

An appellant in custody with legal representation is not entitled to be present in certain proceedings before the Supreme Court of Canada unless granted leave or provided for by court rules.

SECTION WORDING

694.2(2) An appellant who is in custody and who is represented by counsel is not entitled to be present before the Supreme Court of Canada (a) on an application for leave to appeal, (b) on any proceedings that are preliminary or incidental to an appeal, or (c) at the hearing of the appeal, unless rules of court provide that entitlement or the Supreme Court of Canada or a judge thereof gives the appellant leave to be present.

EXPLANATION

Section 694.2(2) of the Criminal Code of Canada governs the circumstances under which an appellant who is in custody and represented by counsel is entitled to be present before the Supreme Court of Canada. This provision applies to a number of different types of proceedings, including applications for leave to appeal, preliminary or incidental proceedings, and the hearing of the appeal itself. Under this provision, an appellant who is in custody and represented by counsel does not have an automatic entitlement to be present at these proceedings. Rather, they must either have the permission of the Supreme Court of Canada or a judge thereof, or they must be covered by rules of court that provide for their entitlement. The purpose of this provision is to balance the need for fairness and equality before the courts with the practical realities of the criminal justice system. In many cases, it may not be practical or necessary for an appellant who is in custody to be physically present at every stage of the appeal process. This provision allows for greater flexibility and efficiency in the administration of justice while still ensuring that appellants have access to representation and a fair hearing. Overall, Section 694.2(2) of the Criminal Code of Canada is an important provision that governs the rights of appellants who are in custody and represented by counsel before the Supreme Court of Canada. It ensures that these individuals are treated fairly and with respect while also ensuring that the criminal justice system operates in an efficient and effective manner.

COMMENTARY

Section 694.2(2) of the Criminal Code of Canada establishes the conditions under which an appellant who is in custody and represented by counsel is entitled to be present before the Supreme Court of Canada during the proceedings of an appeal. This section highlights the importance of effective legal representation and access to justice for those who are incarcerated, particularly when it comes to defending against criminal allegations. The first condition outlined in section 694.2(2) is that the appellant must be in custody. This means that the individual in question is currently detained in a correctional facility or has been otherwise deprived of their liberty. This condition recognizes the inherent inequality that exists between incarcerated individuals and those who are not detained, as those who are in custody are often at a disadvantage when it comes to accessing legal services and participating in legal proceedings. The second condition is that the appellant must be represented by counsel. This recognizes the importance of legal representation in criminal proceedings, particularly for those who are incarcerated and may not have the resources or means to adequately defend themselves. Representation by counsel provides these individuals with a voice in court, increases the likelihood of a fair trial, and ensures that their rights are protected throughout the legal process. Under section 694.2(2), an appellant who meets these conditions is not automatically entitled to be present before the Supreme Court of Canada during an appeal. Instead, entitlement is conditional upon the type of proceeding taking place. The section specifies that an appellant is not entitled to be present on an application for leave to appeal, preliminary or incidental proceedings, or at the hearing of the appeal itself unless the rules of court provide for such entitlement or the Supreme Court of Canada or a judge thereof grants permission for the appellant to be present. This limitation on the entitlement to be present highlights the complexity of legal proceedings and the necessity of court rules and judicial discretion to ensure fairness and efficiency in the legal system. While an appellant has the right to representation and a fair trial, the nature and structure of legal proceedings must also be taken into account to ensure that they are conducted in a way that is beneficial to all parties involved. Overall, section 694.2(2) of the Criminal Code of Canada underscores the importance of effective legal representation and access to justice for those who are incarcerated. It recognizes the challenges and inequalities that incarcerated individuals face in the legal system and provides a framework for ensuring that their rights are protected and their interests represented in court. By upholding these principles, the legal system can provide a more just and equitable society for all Canadians.

STRATEGY

Section 694.2(2) of the Criminal Code of Canada poses a challenge for criminal appellants who are in custody and represented by counsel. This section limits their entitlement to be present at the Supreme Court of Canada during the hearing of an appeal, as well as on any preliminary or incidental legal proceedings without prior approval from the Supreme Court or a judge thereof. Although this section may seem to disadvantage an appellant, various strategic considerations can be employed to navigate around this obstacle. One strategy that could be employed is to seek permission from the Supreme Court or a judge to allow the appellant to be present during the hearing of the appeal or any preliminary legal proceedings. This approach may be achieved by filing a motion with the Supreme Court or a judge, requesting permission for the appellant's physical attendance at the court. The motion should be grounded in reasons why the appellant's physical presence is essential. For instance, the motion could highlight that the appellant's presence could give the court an opportunity to assess the appellant's demeanor and credibility, which can be significant in determining the outcome of an appeal. Another strategic consideration is to focus on building a strong legal case, which can stand on its own merit, without the appellant's physical attendance at the Supreme Court. Counsel should aim to prepare a comprehensive and persuasive written argument, outlining the legal issues, and their relevance to the case. This approach is particularly relevant in situations where the appellant's physical attendance may be denied, even after filing a motion requesting permission to attend. Therefore, the focus should be on presenting a comprehensive argument, so the court can assess the appellant's case based on the written submissions. Furthermore, counsel should consider the timing of the request for the appellant's physical attendance. The appellant's physical attendance request should be made as early as possible, to allow sufficient time for the court to consider the request and make a decision. This would also provide counsel with adequate time to prepare for alternative scenarios, such as the appellant not being present for the appeal. Another strategic consideration is to build a strong relationship with the judge or the Supreme Court during earlier stages of the case, where the appellant may have the opportunity to appear in person. This strategy is relevant because, during the earlier stages of the case, the court has the chance to build a relationship with the appellant and assess their credibility. This strategy can be particularly useful when requesting the appellant's presence in person, as the appellant has already established a relationship with the court. In addition, counsel should consider alternatives to physical attendance. Instead of seeking physical attendance, counsel can consider alternative ways for the appellant to participate in the appeal, such as videoconferencing or teleconferencing. Although these alternatives may not be as effective as physical presence, they can still provide the appellant with the chance to present their case to the court. In conclusion, Section 694.2(2) of the Criminal Code of Canada poses a challenge for criminal appellants who are in custody and represented by counsel. However, various strategic considerations can be employed to navigate around this obstacle. Counsel should consider building a strong legal case, filing a motion for physical attendance, timing the request appropriately, building relationships with the court, and considering alternative participation methods. These strategic considerations can increase the chances of success for the appellant in their criminal appeal, despite being in custody.