section 803(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the options for a summary conviction court when a defendant fails to appear for trial.

SECTION WORDING

803(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court (a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or (b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant.

EXPLANATION

Section 803(2) of the Criminal Code of Canada allows for certain measures to be taken if a defendant fails to appear for their scheduled trial or for the resumption of a trial that has been adjourned. Specifically, the section empowers the summary conviction court to either proceed with the trial in the defendant's absence or to issue a warrant for their arrest and adjourn the trial until they can be brought before the court. The decision of whether to proceed with the trial in the defendant's absence or to issue a warrant for their arrest is left to the discretion of the court. If the court chooses to proceed with the trial, the defendant is essentially being tried in absentia. This means that they are not present to mount a defense or provide evidence on their own behalf. However, the court is still required to consider all the evidence presented and make a decision based on the facts of the case. Alternatively, the court may choose to issue a warrant for the defendant's arrest and adjourn the trial until they can be brought before the court. This ensures that the defendant has the opportunity to participate in the trial and defend themselves against the charges. The warrant can be executed by law enforcement officers, who will arrest the defendant and bring them before the court. Once the defendant has been arrested, the trial can resume and proceed as normal. Overall, section 803(2) of the Criminal Code of Canada is an important mechanism for ensuring that trials can proceed even if a defendant fails to appear. By allowing for trials to proceed in absentia or for the arrest of a defendant who fails to appear, the section helps to maintain the integrity of the criminal justice system and ensure that justice is served.

COMMENTARY

Section 803(2) of the Criminal Code of Canada pertains to the attendance of defendants at their trials. The section outlines the consequences that a defendant may face if they do not appear for their trial without any reasonable cause. With this provision, courts have the authority to proceed with a trial without the defendant if they do not appear. Alternatively, the court may decide to adjourn the trial and issue a warrant for the arrest of the absent defendant. The purpose of this section is to ensure that defendants attend their trials as scheduled. It is essential for the accused to be present during their trial to ensure that they can defend themselves effectively. An absent defendant means that they are unable to provide their side of the story, which can impact the trial's outcome and render it unfair. As such, Section 803(2) seeks to uphold the principles of fairness, justice, and impartiality in the Canadian legal system. The first option provided in Section 803(2)(a) involves the court proceeding with the trial without the defendant if they fail to appear. It is worth noting that this is an exceptional circumstance that only arises when a defendant does not have a reasonable cause for failing to show up to their trial. The court will take into consideration any evidence that the defendant might have to prove that they could not be present. If the court concludes that the defendant deliberately did not attend their trial without any reasonable cause, they may proceed ex parte. In doing so, the court will hear evidence and determine the proceedings in the defendant's absence. This may result in the defendant being found guilty of the offence. The second option outlined in Section 803(2)(b) concerns the issuance of a warrant for the arrest of the absent defendant. This option is particularly useful when the defendant's absence is due to a justifiable reason such as illness, transportation issues, or other unforeseen circumstances. The court may adjourn the trial and set a new date for the proceedings once the defendant is present. If, after issuing a warrant in accordance with subsection (2)(b), the defendant still fails to appear, the court may consider proceeding ex parte, as outlined in subsection (2)(a). Overall, Section 803(2) is an essential provision that ensures that the Canadian legal system functions effectively. This section aims to promote the principles of fairness, justice, and impartiality by ensuring that defendants attend their trials as and when required. The two options that the section provides enable the court to administrate justice effectively while still upholding the rights of the defendant to a fair trial. This section serves as a reminder to defendants of their obligation to attend their trials and as a warning of the consequences of failing to do so without a reasonable cause.

STRATEGY

When dealing with section 803(2) of the Criminal Code of Canada, there are several strategic considerations that must be taken into account. The most critical factors to consider will depend on the particular circumstances surrounding the case. However, some general strategic considerations that could apply to most cases include: 1. The defendant's (absentee) motive for missing the trial: Before making any decisions, defense counsel must consider why their client did not appear for trial. There could be legitimate reasons such as an emergency, illness, or other unforeseen circumstances. Alternatively, the defendant may be avoiding trial intentionally, or maybe they have had a change of heart about the charges they were facing. 2. The potential consequences of the case's outcome: Counsel must consider the possible ramifications of proceeding with the trial ex parte and the potential verdict that could be issued. In some cases, where the defendant's presence is not crucial, proceeding with an ex parte trial could result in a conviction without the defendant mounting a defense, which might result in an unfavorable judgement. Counsel should consider this factor when deciding whether proceeding with an ex parte trial or going for an adjourned trial with the warrant is the better option. 3. The availability of evidence: If the defendant fails to appear for their trial, the prosecution will need to present its evidence to establish the defendant's guilt. Counsel should examine the evidence under consideration, including witnesses, documents, and other exhibits, to determine if it is sufficient to support a verdict in the absence of the defendant. 4. The impact of an arrest warrant on the client: An arrest warrant could provoke further litigation and create additional legal problems for the client. If they are found, they may need to defend themselves against other charges that have been laid during their absence. Counsel needs to consider whether the increased legal and financial risks of an arrest warrant are in the client's best interests. Strategies that could be employed 1. Negotiating a plea bargain: This is a strategy used to minimize the client's risk of a harsh sentence, should they be found guilty. Counsel could attempt to negotiate a plea bargain with the prosecution to reduce the charges and/or the sentence. This would provide a way of resolving the case without the need for a trial, absent or not. 2. Arguing against the use of the warrant: Counsel could argue that the use of force, intimidation, and coercion in the presence of an arrest warrant would negatively impact the defendant's position and their right to a fair trial. This strategy may persuade the Crown to forgo the use of a warrant and proceed ex parte. 3. Filing a request for an adjournment: If the defendant's absence is due to unforeseen circumstances, counsel could request an adjournment to allow the client to recuperate and prepare for trial. This strategy would delay proceedings, but may be a better option than proceeding ex parte. 4. Objecting to proceeding ex parte: Counsel could object to proceeding ex parte and argue that a trial in absentia is not in their client's best interests. This could result in the judge issuing an adjournment to await the defendant's appearance under the warrant. 5. Preparing a defense statement: Even in the absence of the defendant, counsel could prepare a defense statement and submit it to the court prior to the trial. This statement would outline the defense's position and could help the judge to make a fair decision. 6. Appealing the verdict: If the verdict is found against the defendant, counsel could appeal the verdict on the grounds that their client's right to a fair trial was denied by proceeding in their absence. In conclusion, section 803(2) of the Criminal Code of Canada is a complicated area of law that requires counsel to weigh several strategic considerations before making any decisions. Depending on the particular circumstances of a case, defense counsel could employ the above strategies to either minimize the negative impact of their client's absence or enhance their client's defence.