Absconding Accused during Trial

When an Accused may be absent from his/her trial

Section 650 of the Criminal Code requires an accused to be present during his trial except in three situations:

(1) when an accused so disrupts or interferes with the proceedings he must be removed;

(2) the trial court permits the accused to be absent; or

(3) during a fitness hearing where allowing the accused to remain in the courtroom has the potential for causing an adverse affect upon the accused's mental condition.

Section 475 of the Code deals with what may be done when an accused "absconds during the course of his trial." [Code s. 475(1)].  Under this provision, the Court may be called upon to determine at the outset whether the trial has commenced.  Having found that the trial has commenced, the Court must determine whether there has been an abscondence.

Absconds

It is common ground that the meaning of Aabsconding" for the purpose of s. 475 is as defined by Martin J.A. in R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 at 141 (Ont. C.A.), affirmed on this point 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at 1469:

...the word "absconds" in s. 431.1 [now 475] means more than mere failure to appear. In my view, the word "absconds" imports 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 would of course permit the drawing of an inference as to the necessary intent.

Establishing that an accused has absconded

The onus is on the Crown to prove that the accused has absconded.

See R. v. Taylor, 2010 BCCA 58 (CanLII)], at para. 9.

It is consistent with the seriousness of the removal of the accused's rights to attend and participate in his trial that the trial judge exercise great care in ensuring that he/she has enough facts to warrant a finding that the accused has absconded.

 

 R. v. Taylor, 2010 BCCA 58 (CanLII), at para. 17.

Consider that there may be various reasons for an accused’s non-attendance at trial, eg., he may be in hospital, detained on other charges, etc.

Without properly determining that the accused has absconded, the trial judge does not have the authority to exercise his discretion to continue the trial in the accused=s absence.

A failure of the accused to appear at trial does not establish that the accused has deliberately and voluntarily absconded from the trial. The trial judge must make inquiries to determine whether the accused=s failure to appear was for the purpose of impeding or frustrating the trial or avoiding the consequences of the trial.

R v Taylor, (2010) 2010 BCCA 58 (CanLII), at para. 16.  

In most instances, establishing that the defendant has absconded will be a matter of the court inferring such from the circumstantial evidence before it.  Factors such as the following may be important:

•  loss of contact with counsel,
• timing of the accused=s absence,
•  efforts by police to locate the accused, including, for instance, checking at hospitals, men's hostels, etc.,
•  information that the accused knew he was required to be in court,
• any reason to believe that the accused may not be well and able to communicate (though, as the time since the last communication increases this belief will likely attenuate).

In the section 475 hearing in R. v. P.C., 2019 ONCJ 210 (CanLII) for instance, the Crown called the officer-in-charge who had interviewed the wife of the defendant after the defendant failed to attend court for sentencing.  The officer provided credible hearsay evidence indicating that the defendant had absconded, eg, the defendant had recently taken out a loan of approximately $30,000 and then drained his bank account, etc.  

Options for the Court

Where the court has made a finding that the defendant has absconded, it may:

• Continue with trial in the defendant=s absence.  Where a finding of guilt has been made, the judge may pass sentence in D=s absence; 
•  Issue a warrant (Form 7) for arrest and adjourn the trial to await for the defendant’s reappearance.  However, the court may at any time continue trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.

Operates as Waiver of Right to be Present

At common law, the accused was held to have waived his right to a trial conducted in his presence if he deliberately absconded after the trial began.  [FN1]

Section 475 (1)(a)  codifies the common law rule that an accused who absconds waives his right to be present at trial. 

Counsel for the Accused Continuing to Act: 475(4)

475(4) provides that where an accused has absconded during the course of his trial and the court continues, trial counsel for the accused is not thereby deprived of any authority he or she may have to continue to act for the accused in the proceedings.

It does not confer any authority on counsel to continue to act, nor does it interfere with or restrict counsel's right, in accordance with professional standards, to cease to act for the accused.

R. v. Garofoli, 1988 CanLII 3270 (ON CA), at para. 118, reversed on other grounds 1990 CanLII 52 (SCC) [considering s. 431.1(4), now 475(4)].

See R. v. P.C., 2019 ONCJ 210 (CanLII), where counsel for the defendant continued to act for the defendant. The defendant had been convicted but had absconded prior to being sentenced.  

[FN1] In the United States,  courts have reached the same conclusion and have held that a rule which permits the trial of an absconding accused to proceed is constitutional. In Taylor v. U.S. (1973), 94 S.Ct. 194:"[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present." 

Written by Stuart O’Connell, O’Connell Law Group (All rights reserved to author).

CRIMINAL CODE

Accused absconding during trial

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.

Adverse inference

(2) 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.

Accused not entitled to re‑opening

(3) Where an accused reappears 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.

Counsel for accused may continue to act

(4) 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.