section 848

INTRODUCTION AND BRIEF DESCRIPTION

Before allowing an accused in prison to appear in court through communication, the court must ensure they understand the proceedings and any decisions made will be voluntary.

SECTION WORDING

848 Despite anything in this Act, if an accused who is in prison does not have access to legal advice during the proceedings, the court shall, before permitting the accused to appear by a means of communication that allows the court and the accused to engage in simultaneous visual and oral communication, be satisfied that the accused will be able to understand the proceedings and that any decisions made by the accused during the proceedings will be voluntary.

EXPLANATION

Section 848 of the Criminal Code of Canada is an important provision that ensures that an accused person, who is incarcerated, has access to legal advice during criminal proceedings. This section recognizes that an accused person who is in prison may not have the same degree of access to legal advice that a person who is not incarcerated may have. As such, the section gives the court discretion to permit an accused who is in prison to appear in court by a means of communication that allows for simultaneous visual and oral communication with the court. However, before this is allowed, the court must be satisfied that the accused will be able to understand the proceedings and make any decisions voluntarily. This is to ensure that the accused is not disadvantaged by their incarceration and is afforded every opportunity to fully participate in the proceedings. This provision serves as a safeguard against an accused being denied access to legal advice during their trial. It recognizes that every accused person, regardless of their circumstances, has the right to a fair trial and the opportunity to present a defense. By enabling accused persons who are incarcerated to participate in court proceedings by video conferencing, this provision removes some of the barriers that may prevent them from enjoying these fundamental rights. In summary, section 848 of the Criminal Code of Canada is an essential provision that guarantees that even those who are incarcerated have access to legal advice during criminal proceedings and are afforded a fair and just trial.

COMMENTARY

Section 848 of the Criminal Code of Canada is a provision that the Canadian legal system has put in place to protect the rights of an accused individual who is in prison. It is a fundamental aspect of the justice system that every individual is granted fair and impartial treatment, regardless of their circumstances. Despite being incarcerated, an individual still has the right to legal representation and access to the justice system. This section of the Criminal Code helps ensure that an accused person receives the protection they deserve, particularly when they cannot personally access legal representation. In such situations, there is a risk of fabricating information or being coerced into making decisions that are not entirely voluntary. Therefore, this section ensures that the accused will understand the court proceedings fully before a decision is made. The primary objective of this provision is to guarantee that the accused fully comprehends the trial proceedings and can make well-informed decisions both during and after the proceedings. Due to this, they should have access to legal advice during their trial to ensure that they receive appropriate representation. This provision is particularly important for accused individuals who are incarcerated and may experience additional challenges in accessing legal advice or understanding the proceedings. Furthermore, this provision is also a vital aspect of maintaining the overall fairness and impartiality of Canada's legal system. This legislation guarantees that those who access the country's justice system are treated equitably, emphasizing that the accused individuals do not lose their fundamental rights by virtue of being detained. Ultimately, the goal is to protect the accused individual's legal rights and ensure that they are not unfairly disadvantaged by their imprisonment status. In practice, section 848 of the Criminal Code typically comes into effect when the use of video conferencing technology is required to access an incarcerated accused individual. Before any video conferencing session, the court must ensure that the accused understands the proceedings and any decisions made during them. The court must also ensure that the accused has received appropriate legal advice. In conclusion, Section 848 of the Criminal Code of Canada is a fundamental provision that forms an integral part of Canada's legal system. It guarantees that accused individuals who are detained have access to legal representation and can understand the court proceedings, ensuring that their fundamental rights are not infringed upon. Most importantly, this provision protects the fair administration of justice, emphasizing that justice must be served impartially and must be accessible to all Canadians, regardless of their situation.

STRATEGY

Section 848 of the Criminal Code of Canada serves to ensure that an accused person who is in prison and does not have access to legal advice still has the ability to understand the proceedings and make voluntary decisions. This provision offers unique strategic considerations for both the accused and the Crown in criminal proceedings. In this essay, we will explore some strategic considerations and potential strategies to address these considerations when dealing with Section 848. Strategic Considerations: When an accused person is in prison, they face multiple difficulties in accessing legal advice and protection. The Crown must be cognizant of these difficulties and ensure that the provisions of Section 848 are followed. Some possible strategic considerations in this context are: 1. Ensuring that the accused can see and hear the proceedings: When using technology to connect with an accused person in prison, the Crown must ensure that the accused can fully see and hear the proceedings. This is necessary to ensure that the accused can follow the proceedings and make informed decisions. 2. Ensuring that the accused understands the proceedings: Even if an accused person can see and hear the proceedings, they may not understand the legal jargon that is used. The Crown can help by summarizing legal concepts and answering questions from the accused. This is important to ensure that the accused can meaningfully participate in the proceedings. 3. Ensuring that the accused's decisions are voluntary: Section 848 emphasizes that the accused's decisions during the proceedings must be voluntary. The Crown must ensure that there is no coercion, intimidation, or other forms of undue influence on the accused. 4. Ensuring that the accused has access to legal advice: Access to legal advice can be difficult for an accused person in prison. The Crown must ensure that the accused has access to a lawyer to provide advice both before and during the proceedings. Potential Strategies: To address these strategic considerations, some potential strategies are: 1. Use of high-quality audio and video equipment: The Crown can use high-quality audio and video equipment to ensure that the accused can fully see and hear the proceedings. This equipment should be regularly tested and maintained to prevent technical issues. 2. Use of plain language: The Crown can use plain language to explain legal concepts and procedures to the accused. This can be accomplished through summarizing the proceedings in simpler terms, breaking down legal terms, and providing visual aids. 3. Involve counsel: Counsel can play a crucial role in ensuring that the accused understands the proceedings and is making informed decisions. Counsel can help explain legal concepts, field questions, and provide advice. 4. Document the proceedings: The Crown can document the proceedings, both audio and visual, to ensure that there is an accurate record of the communication between the accused and the court. This can be used as evidence in any future appeals or challenges. 5. Training and preparation: The Crown can provide training to court personnel and lawyers on how to address the unique challenges faced by accused persons in prison. This training can include how to use technology, plain language communication, and ensuring that the accused's decisions are voluntary. Conclusion: Section 848 of the Criminal Code of Canada emphasizes the importance of ensuring that accused persons in prison can understand the proceedings and make voluntary decisions. This section presents unique strategic considerations for the Crown and the accused. To ensure that the provision of this section achieves its intended purpose, potential strategies such as high-quality audio and video equipment, plain language communication, counsel involvement, documentation, training, and preparation can be employed. Adapting and incorporating these strategies can help ensure that the accused understands the proceedings and is making voluntary decisions, upholding the core principles of Section 848.