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| Patrick J Ducharme |
R. v. Garofoli1 provides an example of a circumstance where the accused voluntarily absented himself during the trial. The accused argued on appeal that the Judge erred in finding that Garofoli had absconded during the trial. On Monday, April 7, 1986, the trial Judge ruled that private communications were intercepted pursuant to authorizations that, on their face, were lawfully made, and hence were admissible.
The following morning (April 8, 1986) when the court opened at 10:15 a.m., Garofoli was not present. The court adjourned briefly to enable his counsel to make inquiries. The jury was not present at this time and remained out of court during the entire proceedings relating to his absence.
When court resumed, counsel for Garofoli informed the court that the appellant’s wife had given him a note that she had received upon returning home around 8:00 p.m. the previous evening. The note indicated that Garofoli had been “picked up by two police officers”. The note apparently referred to the Hamilton Joint Forces Unit. Counsel said he had checked with one police unit that morning and with the R.C.M.P. and that Mrs. Garofoli had checked with various police stations in Hamilton and no one had any knowledge of the whereabouts of Garofoli.
The Judge, pursuant to subsection 526(1) of theCode, issued a bench warrant for Garofoli’s arrest. Defence counsel told the court that he would continue to represent Garofoli for that day, but unless authorized by Legal Aid to continue to act notwithstanding Garofoli’s absence, he would be applying to the court for leave to withdraw as counsel. The Judge suggested that defence counsel might advise Legal Aid that the court would be reluctant to release defence counsel, even if Garofoli remained away.
The following day (April 9, 1986), the Judge commenced a hearing with respect to the reasons for the absence of Garofoli, who was still missing. Constable Wide of the Hamilton-Wentworth police department testified that the previous evening he had commenced an investigation with respect to the disappearance of Garofoli. He testified that he went to the appellant’s residence and spoke to the appellant’s wife. He checked the house and nothing appeared to have been disturbed.
The watch and ring that the appellant usually wore were on the kitchen counter. However, a necklace and bracelet that the appellant usually wore were not found. He checked with the neighbours and they had not observed anything unusual. The family car was parked in the driveway. He testified on cross-examination that the reports from the hospitals were negative with respect to an accident befalling Garofoli. He checked the roster at the central police station in Hamilton to ascertain if Garofoli was in custody and found that he was not. He also stated that he had given the appellant’s photograph to the airports and to the R.C.M.P. but had not received reports from them.
The Judge at the conclusion of the inquiry found that Garofoli had absconded.
The word “absconds” implies that the accused has voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences. Proof that the accused deliberately absented himself from the trial should be beyond a reasonable doubt.2 If the Judge decides that the accused has absconded he/she may invite the jury to draw an adverse inference as to guilt. The Code provides in section 475:
475(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 his trial,
(a) he shall be deemed to have waived his right to be present at his trial, and
(b) the court may
(i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or
(ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance,
but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of Justice to await the appearance of the accused.
(2) Adverse inference — Where a court continues a trial pursuant to subsection (1), it may draw an inference adverse to the accused from the fact that he has absconded. [Emphasis added]
(3) Accused not entitled to re-opening — Where an accused re-appears at his trial 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 court is satisfied that because of exceptional circumstances it is in the interests of Justice to re-open the proceedings.
(4) Counsel for accused may continue to act — Where an accused has absconded during the course of his trial and the court continues the trial, counsel for the accused is not thereby deprived of any authority he may have to continue to act for the accused in the proceedings.
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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