Criminal Code of Canada - section 723(5)

section 723(5)

INTRODUCTION AND BRIEF DESCRIPTION

Hearsay evidence is admissible at sentencing, but a witness may be compelled to testify if they have personal knowledge and are reasonably available.

SECTION WORDING

723(5) Hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify where the person (a) has personal knowledge of the matter; (b) is reasonably available; and (c) is a compellable witness.

EXPLANATION

Section 723(5) of the Criminal Code of Canada deals with the admissibility of hearsay evidence in the sentencing phase of a criminal trial. Essentially, hearsay evidence is information that is being presented by a witness who did not actually witness the event in question themselves, but rather heard about it from someone else. In the context of criminal proceedings, hearsay evidence can be controversial because it may not be reliable or accurate. However, the section states that hearsay evidence is admissible at sentencing proceedings. The section continues by providing the court with the discretion to require a person to testify if that person has personal knowledge of the matter in question. This means that if there is someone who has first-hand information about the event being discussed, they may be compelled to testify, even if they are not willing to do so. To be compelled, the witness must meet three conditions: they must have personal knowledge, they must be reasonably available, and they must be a compellable witness. Overall, section 723(5) seeks to balance the need for information in the sentencing phase with the importance of ensuring that the information being presented is reliable and accurate. While hearsay evidence may be admissible, the court is given the power to ensure that first-hand witnesses are heard if it is deemed necessary for the interests of justice.

COMMENTARY

Section 723(5) of the Criminal Code of Canada deals with the admissibility of hearsay evidence at sentencing proceedings. Hearsay evidence is a type of evidence where a person relates what they heard from someone else, rather than what they personally saw or experienced. It is generally not admissible in court because it is considered unreliable, as the person reporting the information may have misheard or misunderstood what was said. However, section 723(5) recognizes that there may be situations where hearsay evidence is relevant to a sentencing proceeding. The section allows hearsay evidence to be admitted if it is considered to be in the interests of justice. This means that the court must weigh the importance and relevance of the evidence against the potential unreliability of hearsay evidence. If the court decides that the evidence is important enough to consider, it can be admitted even if it does not meet the usual standards for admissibility. However, the section also provides some safeguards to protect against the use of unreliable evidence. The court can compel a person to testify if they have personal knowledge of the matter and are reasonably available. This means that if there is someone who has firsthand knowledge of the events being discussed, the court can require them to give evidence, rather than relying on hearsay evidence. This helps to ensure that the evidence presented to the court is as accurate and reliable as possible. The requirement that the witness be a compellable witness also ensures that the person testifying cannot refuse to give evidence. Certain people, such as spouses and lawyers, have a legal right to refuse to testify in certain circumstances. However, if a person is deemed to be a compellable witness, they cannot refuse to give evidence, even if they would prefer not to do so. This helps to ensure that all the relevant information is available to the court when making its sentencing decision. Section 723(5) recognizes that sentencing proceedings are different from trial proceedings, and that different rules may apply. In a trial, the focus is on determining guilt or innocence, and it is important to ensure that the evidence presented is reliable and accurate. However, in a sentencing proceeding, the court is concerned with determining an appropriate sentence, and may need to consider a wide range of information in order to do so. This may include hearsay evidence that would not be admissible in a trial. Overall, section 723(5) provides a balancing of the need to ensure that evidence is reliable and accurate, while also recognizing that there may be situations where hearsay evidence is relevant and important to a sentencing proceeding. The requirement that a witness be compellable, and the ability of the court to require witnesses with firsthand knowledge to testify, helps to ensure that the evidence presented is as accurate and reliable as possible.

STRATEGY

Section 723(5) of the Criminal Code of Canada allows for hearsay evidence to be admissible at sentencing proceedings, provided that it is in the interests of justice. However, the court may also compel a person to testify if they have personal knowledge of the matter, are reasonably available, and are a compellable witness. Strategic considerations would need to be taken into account when dealing with this section of the Criminal Code, as this provision presents unique challenges and opportunities to both defence and prosecution. One critical consideration is whether to challenge or accept the hearsay evidence. If the hearsay evidence is damaging to the defendant's case, the defence may want to challenge it by arguing that it is not reliable or that it does not meet the criteria for admissibility under section 723(5). Alternatively, if the hearsay evidence is favourable to the defendant, the defence may want to accept it and use it to mitigate the sentence. The prosecution, on the other hand, may want to obtain hearsay evidence that supports the charges against the defendant and argue for a harsher sentence. Another strategic consideration is whether to compel a witness to testify. If the defence believes that the witness has information that could be beneficial to the defendant, they may want to compel them to testify. However, if the witness's testimony is likely to be damaging to the defendant's case, the defence may choose not to compel them to testify. The prosecution, on the other hand, would likely attempt to compel any relevant witnesses to testify, as their testimony may strengthen their case and lead to a harsher sentence. In addition to these considerations, the timing of when hearsay evidence is introduced can also impact its effectiveness. If the hearsay evidence is introduced at the start of the sentencing proceedings, it can set the tone for the entire proceeding and influence the sentence that is ultimately imposed. On the other hand, if the hearsay evidence is introduced towards the end of the proceeding, it may have less of an impact on the ultimate sentence. Once the hearsay evidence has been introduced, both the defence and prosecution must consider how to frame their arguments. The defence may argue that the hearsay evidence is unreliable, irrelevant, or outweighed by mitigating factors. The prosecution, on the other hand, might argue that the hearsay evidence is credible, relevant, and points to the defendant's guilt. Finally, it is worth noting that the admission of hearsay evidence at sentencing proceedings can have significant consequences for the defendant. Because hearsay evidence is usually second-hand and not subject to cross-examination, it may be more difficult for the defendant to refute it effectively. Therefore, it is critical that the defence be especially prepared and strategic in their approach to the use of hearsay evidence in the sentencing proceedings. In conclusion, section 723(5) of the Criminal Code of Canada provides both challenges and opportunities for the defence and prosecution in sentencing proceedings. Strategic considerations such as challenging or accepting hearsay evidence, compelling witnesses, timing the introduction of evidence, framing arguments, and being prepared in response to hearsay evidence all need to be taken into account. Ultimately, the wise use of hearings evidence can make the difference between a light and a harsh sentence.