If the accused, other than an organization, is charged with an indictable offence, the accused must appear personally in accordance with section 650. This section provides the court with the power to permit the accused to be absent from the proceedings during various times. Except for a specific order, however, the accused is expected to be present. Provision is also made in subsection (1.1) for appearance by counsel or via closed circuit television or similar means. An accused may appoint counsel to represent the accused for any proceedings under the Code by filing a designation with the court. Provided a designation is filed the accused may appear by the designated counsel without being present for any part of the proceedings, other than:
a. a part during which oral evidence of a witness is taken,
b. a part during which jurors are being selected, and
c. an application for a writ of habeas corpus.
Subsection 800(2) of the Code permits an accused to be represented by “an agent” in summary conviction proceedings.
The Ontario Court of Appeal has considered the role of the trial Judge in screening agents that appear in their courts. In Romanowicz the court decided that, although the Code does not expressly authorize the court to disqualify agents, the power to do so exists by virtue of the court’s power to control its own process and in order to maintain the integrity of that process. And the court found that this power permits the court to deny an audience to an agent whose participation would either damage the fairness of the proceedings or otherwise undermine the integrity of the process. This power the court concluded is entirely consistent with the exercise of the court’s power to control its process. The power to refuse an audience to an agent must be invoked whenever it is necessary to protect the proper administration of Justice which requires protecting the accused’s constitutional right to a fair trial that commands the respect of the public.
It is generally recognized that an accused should not be deprived of an adjournment to obtain trial counsel unless the trial Judge is satisfied that the accused has deliberately failed to retain counsel or has discharged counsel with the intent of delaying the process of the court.
The above is the an excerpt of Patrick J Ducharme’s book, Criminal Trial Strategies, available at Amazon or in bulk through MedicaLegal Publishing.
Read or listen to the Preface and Introduction and subscribe to Patrick Ducharme’s Youtube Channel.