section 715(2.1)

INTRODUCTION AND BRIEF DESCRIPTION

Evidence from a preliminary inquiry can be used in court if the accused was absent with permission from a justice.

SECTION WORDING

715(2.1) Despite subsections (1) and (2), evidence that has been taken at a preliminary inquiry in the absence of the accused may be admitted as evidence for the purposes referred to in those subsections if the accused was absent further to the permission of a justice granted under paragraph 537(1)(j.1).

EXPLANATION

Section 715(2.1) of the Criminal Code of Canada allows evidence that was taken during a preliminary inquiry in the absence of the accused to be admitted as evidence in court if the accused was absent with the permission of a justice granted under paragraph 537(1)(j.1). This section is basically meant to provide a permissible exception to the general rule that an accused must be present during all proceedings related to their case. Preliminary inquiries are conducted to determine whether or not there is enough evidence to proceed with a trial. During these inquiries, evidence is presented by the prosecution to establish the accused's guilt. Should the accused be absent during the inquiry, section 715(2.1) allows for the evidence to still be admissible in court provided that the accused had the permission of a justice to be absent. The permission for an accused to be absent from a preliminary inquiry is granted under paragraph 537(1)(j.1) of the Criminal Code and requires that the accused has been made aware of their right to be present, and that they have waived this right voluntarily. The waiver is then recorded by the court, and the justice can then permit their absence from the inquiry. Overall, section 715(2.1) is a provision in the Criminal Code of Canada that allows evidence taken in the absence of the accused at a preliminary inquiry to be used as evidence in court, provided that the accused was absent with the permission of a justice under paragraph 537(1)(j.1). This section aims to ensure that justice is served even when the accused is not present during all the proceedings related to their case.

COMMENTARY

Section 715(2.1) of the Criminal Code of Canada pertains to the admissibility of evidence in criminal trials. This section provides that evidence taken at a preliminary inquiry in the absence of the accused may be admitted as evidence for the purposes referred to in subsections (1) and (2) if the accused was absent with the permission of a justice granted under paragraph 537(1)(j.1). The primary purpose of a preliminary inquiry is to determine if there is enough evidence to proceed with the trial. During the preliminary inquiry, the accused has the right to be present, to call witnesses, and to cross-examine witnesses presented by the prosecution. However, under certain circumstances, an accused may be absent from the preliminary inquiry with the permission of a justice. Such circumstances may include illness or injury, or where the accused waives their right to attend the inquiry. Section 715(2.1) allows for evidence presented at the preliminary inquiry in the absence of the accused to be admissible in court. This provision is important because it recognizes that there may be reasonable grounds for an accused's absence, and that evidence presented during the preliminary inquiry should not be automatically excluded simply because the accused was not present. However, it is important to note that this provision does not apply in all cases. The accused must have been absent with the permission of a justice, granted under paragraph 537(1)(j.1). This means that the justice must have determined that the accused had a reasonable excuse for their absence and that the accused's absence would not prejudice the fairness of the inquiry or the trial. Furthermore, even if the evidence is admitted, it is still subject to other admissibility requirements, such as the rules against hearsay or the exclusion of evidence obtained through a violation of Charter rights. Therefore, while section 715(2.1) widens the scope of admissible evidence, it does not allow for evidence obtained through improper or unconstitutional means to be introduced in court. In summary, section 715(2.1) of the Criminal Code of Canada balances the need for fairness and justice in criminal proceedings with the practical realities of the justice system. It recognizes that an accused's absence from a preliminary inquiry may be necessary under certain circumstances, and ensures that evidence obtained during that inquiry is not automatically excluded. However, this provision is limited to cases where the accused was absent with the permission of a justice, and the evidence must still meet other admissibility requirements.

STRATEGY

Section 715(2.1) of the Criminal Code of Canada potentially provides a valuable tool for prosecutors as it allows them to use evidence obtained at a preliminary inquiry in the absence of the accused as evidence at trial, provided that the accused was absent with the permission of a justice granted under paragraph 537(1)(j.1). While this provision can be a powerful tool, it should be approached with caution, as its use can also be highly controversial. One strategic consideration when dealing with this provision is whether the evidence obtained at the preliminary inquiry is actually necessary for the prosecution's case. For example, if the evidence is merely corroborative, then it might not be worth the potential negative impact of using it. In situations where the evidence is essential to the case, the prosecution needs to ensure that they can satisfy the threshold for admitting the evidence. In particular, the prosecution needs to ensure that they can establish that the accused was absent from the preliminary inquiry with the permission of a justice granted under paragraph 537(1)(j.1). Another strategic consideration when dealing with this provision is whether or not there may be countervailing factors that could outweigh the benefits of using the evidence. For example, if the accused was absent from the preliminary inquiry because of a lack of resources to attend, then using the evidence could be seen as unfair and might be subject to challenge. Similarly, if the absence of the accused was the result of an error by the court, then the use of the evidence could be seen as unjust and might also be subject to challenge. In both cases, a strategic decision needs to be made as to whether or not the potential benefit of using the evidence is worth the risk of a successful challenge. There are several strategies that can be employed when dealing with this provision. One approach is to carefully review the evidence obtained at the preliminary inquiry to determine its value and its potential impact on the prosecution's case. Another approach is to carefully review the reasons for the accused's absence from the preliminary inquiry and to assess whether or not those reasons are sufficiently compelling to justify the absence. In cases where there may be a risk of challenge, it may be advisable to seek out expert advice and to carefully consider the potential risks and benefits of using the evidence at trial. Additionally, it may be useful to engage in early discussions with the defence counsel to explore the possibility of reaching an agreement on the use of the evidence. In conclusion, while Section 715(2.1) of the Criminal Code of Canada can be a powerful tool for prosecutors, its use must be approached with caution. Prosecutors need to carefully consider the potential benefits and risks of using the evidence obtained at the preliminary inquiry, as well as the reasons for the accused's absence from the proceedings. A strategic approach, which involves careful analysis and discussion, can help prosecutors to make informed decisions about whether or not to use the evidence obtained at the preliminary inquiry in a given case.