Criminal Code of Canada - section 709(1) - Order appointing commissioner

section 709(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a party in criminal proceedings to apply for a commissioner to take the evidence of a witness who cannot attend the trial due to physical disability or being out of Canada.

SECTION WORDING

709(1) A party to proceedings by way of indictment or summary conviction may apply for an order appointing a commissioner to take the evidence of a witness who (a) is, by reason of (i) physical disability arising out of illness, or (ii) any other good and sufficient cause, not likely to be able to attend at the time the trial is held; or (b) is out of Canada.

EXPLANATION

Section 709(1) of the Criminal Code of Canada deals with the procedure for obtaining evidence from an absent witness in criminal proceedings. Under this section, a party to proceedings by way of indictment or summary conviction can apply for an order appointing a commissioner to take the evidence of a witness who is physically unable to attend the trial, or who is out of Canada. The purpose of this section is to ensure that evidence from important witnesses is not excluded from criminal proceedings simply because they are unable to attend in person. For example, a witness who is suffering from a serious illness or who is residing in a foreign country may not be able to travel to Canada to give evidence in person, despite their willingness to do so. In such cases, the party can apply for an order appointing a commissioner to take the evidence of the witness. The commissioner is authorized to take an oath or affirmation from the witness and to conduct an examination-in-chief, cross-examination, and re-examination of the witness. The commissioner is required to sign and certify the transcript of the evidence and to return it to the court. Overall, Section 709(1) of the Criminal Code of Canada provides a flexible and efficient mechanism for obtaining the evidence of absent witnesses in criminal proceedings. It helps to ensure that the justice system is fair and effective, and that important evidence is not lost simply because a witness cannot attend in person.

COMMENTARY

Section 709(1) of the Criminal Code of Canada is an important provision that allows parties to obtain evidence from witnesses who are unable to attend the trial due to various reasons. This section empowers the courts to appoint a commissioner to take the evidence of such witnesses, ensuring that their testimony is not lost or undermined due to their absence. The first category of witnesses covered under this provision are those who are physically disabled due to illness. Such individuals are at a significant disadvantage, as they may not be able to travel to the court due to their condition. The provision recognizes the importance of their testimony and allows parties to seek an order appointing a commissioner to take their evidence. This ensures that they have an equal opportunity to participate in the trial, and their testimony is given the same weight as that of other witnesses. The second category of witnesses under this provision are those who are out of Canada. This is particularly relevant in today's globalized world, where individuals may need to travel frequently for business or other reasons. In such cases, it may not be feasible for them to attend the trial in Canada. This provision ensures that their evidence can still be obtained, even if they are unable to be physically present in court. Overall, Section 709(1) of the Criminal Code of Canada is a positive development that promotes access to justice and ensures that all relevant evidence is considered in a trial. It recognizes that physical disabilities, illness, or international travel should not prevent individuals from participating in the legal process, and it provides a mechanism to overcome these obstacles. However, it is important to note that the appointment of a commissioner to take evidence is not a perfect solution. There may be issues related to the credibility of the evidence obtained in this manner, as it may not be subjected to the same level of scrutiny as evidence given in person in court. Additionally, there may be concerns related to the cost and logistical challenges of appointing a commissioner to take evidence, particularly for witnesses who are out of the country. Despite these potential limitations, Section 709(1) remains an important tool for parties seeking to obtain evidence from witnesses who are unable to attend the trial in person. It reflects the broader legal principle that all evidence should be considered on its merits, regardless of the physical or logistical challenges faced by witnesses.

STRATEGY

When dealing with section 709(1) of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. First, it is important to assess whether the witness is a key witness or merely a peripheral witness. If the witness is a key witness and his or her testimony is critical to the defence, then it may be necessary to bring the witness to the trial in person, even if this means delaying the trial. On the other hand, if the witness is merely a peripheral witness, it may be more economical to take the witness's evidence through a commission and avoid the costs and inconvenience of bringing the witness to the trial. Second, it is important to assess the strength of the prosecution's case. If the prosecution's case is weak and the witness's evidence is not critical to the defence, then it may be more strategic to forego the use of a commission and proceed with the trial as scheduled. However, if the prosecution's case is strong and the witness's evidence is critical to the defence, then it may be necessary to seek a commission in order to ensure a fair trial. Third, it is important to assess the logistics of taking the witness's evidence through a commission. This includes determining the availability of the commissioner, scheduling the commission, and making arrangements for the witness to give evidence. If these logistics cannot be managed effectively, then it may not be practical to seek a commission. Fourth, it is important to assess the potential risks and benefits of taking the witness's evidence through a commission. There may be risks associated with not having the witness present at the trial, such as the potential for the prosecution to challenge the reliability of the evidence. On the other hand, there may be benefits to taking the witness's evidence through a commission, such as the ability to present the evidence in a more controlled environment. In terms of strategies that could be employed, one strategy would be to seek a commission as early as possible in the proceedings. This would provide sufficient time to arrange for the commission and ensure that the witness's evidence is properly recorded and authenticated. Another strategy would be to prepare the witness carefully, both for the commission and for the trial. This would include preparing the witness for cross-examination and ensuring that the witness's evidence is consistent with any other evidence that may be presented at trial. Overall, the decision to seek a commission under section 709(1) of the Criminal Code of Canada will depend on a careful assessment of the circumstances of the case and the strategic considerations involved. By carefully assessing these factors and employing effective strategies, counsel can ensure that their client's interests are protected and that they receive a fair trial.