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CCC Section 544:  Absconding Versus Illness

Legal Brief: Abscond

Timeline:  Absconding vs. Illness

In Saskatoon Provincial Court, the Crown Prosecutor Robin Ritter lied to Judge Barry Singer, claiming that no medical evidence existed for scheduling my court sessions to accommodate my physical disability. In that false light, the Court made several serious decisions:

  • Judge Singer threatened me with a bench warrant.
  • I was ill in a nursing home, yet the Court declared that I had ‘absconded.’
  • On that basis, CCC section 544 was used to exclude me from my own hearing.
  • Impact: when I was absent from court due to illness, my lawyer missed my input to prepare cross-examination questions.
  • The next court dates were still scheduled for a solid block of four full days, a schedule far too gruelling for me. In this way Ritter contrived a Trial in Absentia.

Legal Arguments

Accommodation of Physical Disability

The Supreme Court defined abscond in R. v. Garofoli 1990 SCC: Absconds means voluntarily absenting oneself from a trial for the purpose of frustrating a trial or avoiding its consequences.

Garofoli observed: The appellant did not appear for the next day of the trial. The trial was adjourned while inquiries were made as to his whereabouts. When it appeared that there was no explanation for his absence, a bench warrant was issued for his arrest.

The Supreme Court in R. v. Pearson 1992 SCC ruled: It is not an easy thing to abscond from justice. The risk is minimal. The precedent continues with a vivid paragraph on the material resources required to abscond.

According to the Supreme Court, to abscond needs these four elements: Intent, unexplained absence, unknown whereabouts, and access to wealth and high connections.

I do not meet the definition or the elements of abscond:

  • My past absences were explained: They were due to serious physical illness, substantiated by medical reports.
  • My location was always known: When not in Court, I was in my legally registered residence of the McCoshen Care Home.
  • My resources are far outside the realm of what it takes to abscond: My sole financial support is a small disability pension.
  • My intent is to be present in Court, not absent. It is in my best interests. I work in partnership with my attorney. Being physics-educated, my job is technical assistant on a legal case which has a high technical content. During the cross-examination of witnesses, I need to interact with Mr. Borden in detail and frequently. Even during direct examination, I should be present: 75% of communication is non-verbal, carried in demeanor, facial language, and tone of voice; this is useful. Finally, Mr. Borden and I plan some demonstrations (regarding my word-processor, plus an experiment with sound); for these, I need to be on-site.

My Undertaking confirms I did not abscond. With the standard wording of CCC Section 145(2), my Undertaking allows me to be absent from Court provided there is a lawful excuse. The proof of that excuse rests upon me. I met that burden of proof via the detailed medical reports of Aug/04 and Nov/04.

My election date (Feb/03) brings us under the old rules of procedure. CCC Section 537(1)(j) states: D may appear by counsel or closed-circuit television or other means, for any part of the inquiry other than when evidence of a witness is taken. It is procedural error to exclude a client during the direct-exam or cross-exam of any witness.

The Ontario precedent McLachlan v. The Queen 1984 ONHC (upheld 1986) states: The defendant's right to be present at the preliminary hearing is for the benefit of both the defence and the Crown. The defendant does not have the power to absent himself from a preliminary inquiry, nor does the Judge have the power to authorize his absence.

The Nova Scotia precedent R. v. Schneider 2003 NSSC ruled: Parliament clearly intended any curtailment necessary … of the right of an accused to be present at trial, would be more limited in the case of indictable offences than in the case of summary offences.

If a client cannot participate fully in a Court session, then that client is in an inferior position. That is subject to remedy. For example: A French-speaking client is assigned a French, not an English, judge. A deaf person is offered a sign-language interpreter. And when a client is ill, neither is that disability exploited: The Court sessions are rebooked to allow and ensure the client's presence.

R. v. Schneider advised thus: Mere administrative inconvenience is not a relevant factor. The availability of court reporters, the workload of prosecutors or judges, the additional financial costs of rescheduling are not to be considered. This precedent, which ruled favorably on language rights, can be extrapolated when other substantive barriers impede access to Court services.

Since the advent of the Charter of Rights and Freedoms, the right to make full answer and defence became a cornerstone of the justice system, and cannot lightly be eroded. The Charter in Section 15(1) guarantees: Equality before and under law and equal protection and benefit of law: Every individual has the right to equality without discrimination, and, in particular, without discrimination based on … physical disability.

The Supreme Court affirmed the extent of our workload in R. v. Skogman 1984 SCC: The purpose of a preliminary hearing is to protect the defendant from an unnecessary trial … In addition, the preliminary hearing has become a forum for the defence to discover the Crown's case. To fulfill the discovery process, I need an extended timeframe which allows me: to be adequately prepared; to be present in Court; and moreover to be physically fit enough to be an active participant at each Court session.

Beyond that, I intend to testify at my preliminary inquiry in accordance with CCC Sections 537(1)(g) and 541(1). This is to meet my burden of proof described by R. v. Arcuri 2001 SCC: Where the Crown's case consists of, or includes, circumstantial evidence, the preliminary inquiry judge must engage in a limited weighing of the whole of the evidence, including the defence evidence.

The Canada Evidence Act in Section 6(1) states: Evidence of person with physical disability: If a witness has difficulty communicating by reason of a physical disability, the Court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.

Since I suffer from cognitive exhaustion, as well as chronic pain and muscle weakness, my evidence when I testify will not be intelligible, or even possible, unless our Court dates are adjusted to meet my physician's advice.

Canadian Criminal Code
Procedure on Preliminary Inquiry

Absconding Accused

Accused Absconding During Inquiry

CCC s 544. (1)  –  Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged, (a) he shall be deemed to have waived his right to be present at the inquiry, and (b) the justice:

  1. may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with section 548, or
  2. if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance,

but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to subparagraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.

Adverse Inference

CCC s 544. (2)  –  Where the justice continues a preliminary inquiry pursuant to subsection (1), he may draw an inference adverse to the accused from the fact that he has absconded.

Accused Not Entitled to Re-Opening

CCC s 544. (3)  –  Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.

Counsel for Accused May Continue to Act

CCC s 544. (4)  –  Where an accused has absconded during the course of a preliminary inquiry and the justice continues the inquiry, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

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