Criminal Code of Canada - section 276.1(3) - Jury and public excluded

section 276.1(3)

INTRODUCTION AND BRIEF DESCRIPTION

The judge considers the application for exclusion of evidence with the jury and public excluded.

SECTION WORDING

276.1(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

EXPLANATION

Section 276.1(3) of the Criminal Code of Canada is a provision that outlines the process for considering an application for the admission of evidence of a complainant's sexual activity in sexual offence cases. This provision requires that the judge, provincial court judge, or justice must consider the application with the jury and the public excluded. The purpose of this provision is to protect the privacy and dignity of complainants in sexual offence cases. It recognizes that the admission of evidence of a complainant's sexual activity could be harmful and prejudicial, and could result in victim-blaming. The provision therefore limits the circumstances under which such evidence may be admitted, and ensures that the process of considering such evidence is conducted in a sensitive and confidential manner. The provision requires the application to be considered in the absence of the jury and the public, which means that the evidence presented and the discussions that take place during the application process are not made public. Only the judge, provincial court judge, or justice, along with the accused and their legal counsel, are present during the consideration of the application. Ultimately, the decision as to whether evidence of a complainant's sexual activity will be admitted rests with the judge, who must balance the probative value of the evidence against the potential harm and prejudice that could result from its admission. The process under section 276.1(3) is designed to ensure that this balancing is done in a fair and sensitive manner, without undue harm or prejudice to the complainant.

COMMENTARY

Section 276.1(3) of the Criminal Code of Canada is a provision specifically designed to protect the privacy and dignity of sexual assault victims in the courtroom. This section mandates that the judge, provincial court judge, or justice must consider applications related to a victim's sexual history with the jury and public excluded. This is a significant provision that aims to ensure that victims of sexual assault are not re-victimized in the courtroom. Sexual assault is a heinous crime that can leave a long-lasting impact on the victim's well-being, physical, emotional, and mental health. Unfortunately, the prosecution of sexual assault cases also comes with certain challenges that make it even more difficult for the victim to seek justice. One of the significant obstacles is the intrusion of the victim's privacy in the courtroom. Victims of sexual assault are already vulnerable and traumatized. Having to recount their sexual history in front of a group of strangers only adds to their trauma and stigmatizes them often by portraying them as promiscuous." The exclusion of the jury and the public from hearing evidence about the victim's sexual history is a critical provision for protecting the victim's privacy and dignity. The section specifies that the judge, provincial court judge, or justice shall consider the application for evidence to be excluded, not excluding it automatically. Still, the court must carefully weigh the balancing of interests between the accused's right to a fair trial and the victim's privacy and dignity. There may be situations where the victim's sexual history is essential to the case, such as if the past behaviour contradicts the victim's claim. However, the exclusion of the jury and public from these proceedings ensures that only the relevant and significant facts are used in court to minimize the chances of re-traumatizing the victim. Moreover, this provision is also crucial because it encourages victims to come forward with their experiences of sexual assault. As victims feel increasingly protected in the courtroom, they are more willing to report incidents and cooperate with the police during investigations. This helps the authorities to gather more evidence, prosecute the offender, and ensure justice is served. In conclusion, section 276.1(3) of the Criminal Code of Canada is a vital provision that protects victims' privacy and dignity in the courtroom. The exclusion of the jury and public when considering evidence related to sexual history ensures that only relevant and significant facts are used in court, minimizing the chances of re-traumatizing the victim. This provision is essential for encouraging victims to report incidents of sexual assault, which is fundamental in ensuring that perpetrators are held accountable for their actions. It is imperative that this provision remain intact, and that the right balance is struck between the victim's rights and the accused's right to a fair trial.

STRATEGY

Section 276.1(3) of the Criminal Code of Canada is an important provision to consider when dealing with sexual assault trials. This section requires judges, provincial court judges, and justices to consider certain applications with the jury and the public excluded. Specifically, it applies to applications related to the admissibility of evidence regarding the complainant's sexual activity or the production or discovery of records that contain such information. There are several strategic considerations to keep in mind when dealing with this provision. One of the most important is to ensure that any application made under section 276.1(3) is timely and properly framed. This means that the application should be made at the earliest opportunity and should clearly outline the specific evidence or records that are at issue, as well as the reasons why they should be excluded from the public and jury. Another key consideration is to ensure that any arguments made in support of the application are legally sound and factually supported. This may require conducting extensive research into the case law and the relevant facts of the case to ensure that the application is as persuasive as possible. One strategy that could be employed in dealing with section 276.1(3) is to work closely with the trial judge and the Crown prosecutor to ensure that the application is properly made and that all relevant arguments are considered. This may involve engaging in pre-trial discussions with these parties to identify any areas of agreement or potential disagreement, as well as to ensure that the application is made in a way that is consistent with the law and the facts of the case. Another strategy that could be employed is to seek assistance from expert witnesses, such as psychologists or social workers, who can provide testimony regarding the potential harm that may result from the disclosure of certain evidence or records. This can be particularly helpful in cases where the complainant's sexual history or other private information is at issue. Ultimately, the key to successfully navigating section 276.1(3) is to be well-prepared, well-informed, and strategic in one's approach. By working closely with the relevant parties, conducting thorough research, and using all available resources, it is possible to ensure that a fair and just trial is held, while also protecting the rights and privacy of the complainant.