INTRODUCTION AND BRIEF DESCRIPTION
This section provides guidelines for a detained witness to apply to be brought before a judge within 30 days and the judge shall fix a time for the hearing of the application.
SECTION WORDING
707(2) Where at any time prior to the expiration of the thirty days referred to in subsection (1), a witness being detained in custody as described in that subsection applies to be brought before a judge of a court described therein, the judge before whom the application is brought shall fix a time prior to the expiration of those thirty days for the hearing of the application and shall cause notice of the time so fixed to be given to the witness, the person having custody of the witness and such other persons as the judge may specify, and at the time so fixed for the hearing of the application the person having custody of the witness shall cause the witness to be brought before a judge of the court for that purpose.
EXPLANATION
Section 707(2) of the Criminal Code of Canada deals with the situation where a witness is being detained in custody and wishes to be brought before a judge of a court within a certain timeframe. Subsection (1) provides that a witness who is detained in custody as a material witness or for the purpose of securing his or her attendance at a trial or preliminary inquiry may apply to be brought before a judge within 30 days of his or her detention. If a witness makes such an application, subsection (2) of section 707 requires the judge to fix a time prior to the expiration of the 30-day window for the hearing of the application. The judge must also cause notice of the time to be given to the witness, the person having custody of the witness, and any other parties specified by the judge. This notice requirement is designed to ensure that all interested parties are aware of the proceedings and have an opportunity to be heard. At the hearing, the person having custody of the witness must bring the witness before the judge for the purpose of the application. The purpose of this section is to provide an avenue for a detained witness to seek judicial review of his or her detention, and to ensure that any such review is conducted in a timely and fair manner. It serves as a safeguard against arbitrary or prolonged detention of witnesses in criminal proceedings.
COMMENTARY
Section 707(2) of the Criminal Code of Canada is a provision that seeks to protect the interests of a detained witness who has been ordered to attend court proceedings. The section provides that if a witness, who has been detained by police, applies to be brought before a judge of the court where the proceedings are taking place, the judge must fix a time for the hearing of the application, and the person having custody of the witness must ensure that the witness is brought before the judge at the appointed time. One of the reasons this section is important is that it recognizes that witnesses can be crucial to the outcome of court proceedings. Witnesses provide important evidence to help establish a case. They can provide eyewitness accounts of events and can offer insights into the motives and intentions of the accused. However, witnesses may not be willing to attend court voluntarily, or they may be intimidated into not providing evidence or into retracting evidence they have already given. In some cases, witnesses may even be detained by the police because they are considered at risk or may be under threat. In these circumstances, it is essential that the criminal justice system acts to ensure that witnesses are brought before the court to testify. Section 707(2) recognizes this, and its provisions are aimed at making sure that witnesses who are detained are not lost to the court proceedings. The section requires that when a witness applies to be brought before a judge of the court, the judge must fix a time prior to the expiry of the 30 days detention period for the hearing of the application. This timeline is important because it ensures that the application is heard by the judge quickly, and the witness does not languish in custody for too long. The judge must also give notice of the hearing time to the witness, the person holding custody of the witness, and any other relevant persons, as the judge may specify. By doing so, the judge ensures that all parties to the proceedings are informed and able to prepare for the hearing of the application. Finally, the section ensures that the person having custody of the witness must bring the witness before the judge at the appointed time. This requirement is important because it ensures that the witness is not left in detention after the 30-day period has expired, and it also removes any possibility that the witness might be intentionally delayed by the police to frustrate the proceedings or to discourage the witness from testifying. In conclusion, Section 707(2) of the Criminal Code of Canada is an important provision that seeks to protect the interests of detained witnesses in criminal court proceedings. The section recognizes the value of testimony from witnesses in court proceedings and ensures that such witnesses are not lost because of their detention. The provisions of the section require that witnesses be heard quickly, notice be given to all relevant persons, and that the witness be brought before a judge at the appointed time. These provisions are essential to the workings of the criminal justice system in Canada and must be enforced to ensure that justice is done.
STRATEGY
Section 707(2) of the Criminal Code of Canada is a provision that allows a detained witness to apply to be brought before a judge of a court for a hearing before the expiration of the thirty-day period described in subsection (1). This provision raises some strategic considerations for both the prosecution and defence counsel. For the prosecution counsel, one strategic consideration is to ensure that the detained witness is not released from custody before the trial. In cases where the witness is a key witness for the prosecution, the prosecution may want to delay the hearing of the application as long as possible to prevent the witness from being released from custody. If the witness is released from custody before the trial, there is a risk that the witness may not show up to testify or may be intimidated or influenced to change their testimony. Therefore, one possible strategy for the prosecution is to ask for a delay in the hearing of the application, or to challenge the witness's application on the grounds that it lacks merit. Another strategic consideration for the prosecution is to prepare for the hearing of the application. The prosecution should be ready to present evidence and arguments as to why the witness should remain in custody. This may include evidence that the witness is a flight risk, evidence of the witness's criminal record or prior failures to appear in court, or evidence that the witness may be intimidated or influenced by the accused or their associates. The prosecution should also be prepared to rebut any arguments or evidence presented by the defence. For the defence counsel, one strategic consideration is to seek an early hearing of the application to get the detained witness released from custody as soon as possible. This may be particularly important in cases where the detained witness is a key witness for the defence, or where the witness may have exculpatory evidence that could help the accused. Therefore, one possible strategy for the defence is to push for an early hearing of the application, or to argue that the witness's continued detention is not justified. Another strategic consideration for the defence is to prepare for the hearing of the application. The defence should be ready to present evidence and arguments as to why the witness should be released from custody. This may include evidence that the witness is not a flight risk, evidence of the witness's ties to the community or family, or evidence that the witness has a strong motive to appear in court. The defence should also be prepared to challenge any arguments or evidence presented by the prosecution and to show that the detention of the witness is not necessary or proportionate. Overall, the strategic considerations for dealing with section 707(2) of the Criminal Code of Canada will depend on the specific facts and circumstances of each case. However, both prosecution and defence counsel should be prepared to present evidence and arguments at the hearing of the application and to anticipate and respond to the arguments of the opposing party.