Subsection 650(3) provides that an accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel. This section is often used in combination with applications alleging a breach of the accused’s rights under sections 7 and 11(d) of the Charter.
650(3): An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
Subsection 650(1) defines the scope of the accused’s right to be present and to advance a defence at trial. The general rule is that any accused, other than an organization, shall be present in court during the whole of the trial. While it is true that, with the consent of the accused, the court may order that the accused be allowed to be absent from the trial for part or the whole of his trial, this drastic interference with the rights of the accused may only occur with his clear and unequivocal approval. The court is not allowed to infer that it has the accused’s consent from the circumstances presented to the court.1 Nor is it acceptable based upon the apparent acquiescence of counsel to the exclusion of the accused from the courtroom by order of the trial Judge while the court determined the propriety of questions sought to be asked. The trial Judge’s direction to the accused to leave the courtroom did not constitute a waiver of his right to be present during the trial.
In one instance the Court of Appeal for Ontario ruled that the exclusion of the accused from the entire pre-charge conference conducted in the Judge’s chambers offended subsection 650(1) and the procedure adopted by the trial Judge could not be saved by subsection 686(1)(b)(iv) the provision that states notwithstanding any procedural irregularity at trial, the trial court has jurisdiction over the class of offence of which the appellant was convicted and the court of appeal, if it is of the opinion that the appellant suffered no prejudice thereby may dismiss the appeal. Similarly, all communications from jurors to the trial Judge, except those that relate to purely administrative matters, should be read in open court in the presence of the accused. Counsel should always be permitted by the court to make submissions on issues raised by the communications. This applies to communications about the lack of juror unanimity, the illness of jurors during deliberations and all manner of other communications that are more than simply administrative.
It is common, particularly in cases where the accused is not charged with a crime of violence and poses no security risk to anyone in the courtroom during his trial, that counsel on behalf of the accused requests that the accused be allowed to sit at counsel table rather than in the prisoners box. The trial Judge will customarily ask the prosecutor if she has any objection to the accused sitting at the counsel table. The general reason given for such request is that the accused is closer to counsel and therefore able to assist in instructing counsel easily from closer proximity. The discretion exercised by the Judge in relation to this request is, however, essentially unfettered. The seating and location of the accused is within the sole discretion of the trial Judge and his decision refusing to permit the accused to sit outside the prisoner’s box will not usually be interfered with on appeal unless the decision clearly prevented the accused from making full answer and defence.
Part of the right to making full answer and defence is that the accused cannot be forced to accept counsel against her wishes. In R. v. Bowles and Danylak6 the Alberta Court of Appeal stated that an accused who wishes to discharge his counsel part way through his trial must be permitted to do so. Representation of the accused by counsel is generally considered to be essential to a fair trial. Unless the accused deliberately fails to retain counsel or discharges his counsel with the sole intent of delaying the process, the court will allow the accused a reasonable opportunity to retain counsel. Where, however, the accused was given over a month and a half and two adjournments in order to obtain a new lawyer, and, on the date set for trial was still without counsel, the court was satisfied that the accused was attempting to delay the trial. The Supreme Court of Canada found that there was no error in refusing a further request for an adjournment.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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