INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the factors that must be considered by a judge when determining whether evidence related to a sexual assault case is admissible.
SECTION WORDING
276(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant’s personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant.
EXPLANATION
Section 276(3) of the Criminal Code of Canada lays down the factors that the judge, provincial court judge, or justice must consider when determining the admissibility of evidence in a sexual assault case. These factors are aimed at achieving a balance between the interests of justice, the rights of the accused, and the rights of the complainant. The first factor emphasizes the right of the accused to make a full answer to the allegations brought against them. The second factor relates to the need to encourage reporting of sexual assault offenses in society. The third factor is about ensuring that the evidence presented is relevant to the case and is necessary for arriving at a just determination. The fourth factor highlights the importance of eliminating any biases or discriminatory beliefs from the fact-finding process. The fifth factor acknowledges the risk that certain evidence may prejudice the jury, leading to sympathetic or hostile sentiments. The sixth factor is about protecting the complainant's dignity and privacy rights. The seventh factor relates to the complainant's personal security and the need to ensure that they are fully protected by the law. The final factor empowers the judge, provincial court judge, or justice to take into account any other factor deemed relevant to the case. Overall, Section 276(3) ensures that any evidence presented in a sexual assault case is evaluated fairly and impartially, with the interests of both parties and society at large taken into account.
COMMENTARY
Section 276(3) of the Criminal Code of Canada is a crucial provision aimed at regulating the admissibility of evidence related to a victim's sexual history and character in sexual assault trials. The section outlines a series of factors that a judge must take into account when deciding whether to admit such evidence, with the primary objective being to balance the rights of both the accused and the complainant, and to ensure a fair trial. One important consideration outlined in subsection (a) of the provision is the right of the accused to make a full answer and defence. This means that the accused must be given the opportunity to present a defence, which could involve challenging the veracity of the victim's account or questioning their character or motivation. However, this right should not be used to unfairly degrade or undermine the victim's testimony and should be balanced against the other factors outlined in the section. Subsection (b) emphasizes the importance of encouraging the reporting of sexual assault offences and highlights society's interest in supporting victims who come forward with their experiences. This is an important acknowledgement of the challenges that victims of sexual assault often face in reporting their experiences, including fear of reprisal and societal stigma. The provision recognizes that this fear can be compounded if evidence relating to the victim's sexual history or character is admitted at trial, potentially discouraging others from coming forward. Subsections (c) and (d) emphasize the need for evidence to be relevant, reliable, and free from discriminatory biases or beliefs. The presence of irrelevant or biased evidence can significantly undermine the integrity of a trial and lead to unjust outcomes. Further, the inclusion of such evidence can perpetuate harmful stereotypes and discriminatory attitudes, particularly against women, further marginalizing them and potentially retraumatizing them. The court's duty of impartiality is paramount in this regard, and the judge must ensure that any evidence admitted is relevant, necessary, and free from bias. Subsections (e) and (f) further emphasize the need for evidence to be contextualized and sensitive to the potential impact on both the accused and the complainant. Evidence that may unduly prejudice a jury or unfairly damage the complainant's dignity should be avoided wherever possible. Judges must also consider whether the admission of such evidence is necessary in order to arrive at a just determination in the case. Subsection (g) prioritizes the security and protection of both the complainant and every individual, meaning that any evidence that may compromise their safety or security should not be admitted. This could include evidence that may reveal the identity of the complainant or put them at risk of harm. Finally, subsection (h) recognizes that there may be other relevant factors that judges should take into account when considering the admissibility of evidence. This provision affords judges the necessary flexibility to ensure that each case is evaluated on its own merits and that any evidence admitted is consistent with the objectives of the section. Overall, Section 276(3) of the Criminal Code of Canada is an essential provision aimed at ensuring that evidence in sexual assault trials is admitted in a fair and impartial manner, taking into account the needs of both the accused and the complainant. By providing a detailed framework for assessing the admissibility of evidence, the section seeks to ensure that trials are conducted in a way that is sensitive to the needs of victims, without compromising the accused's right to a fair trial.
STRATEGY
When a sexual assault case is being tried in Canada, section 276(3) of the Criminal Code of Canada comes into play. This section of the law outlines the factors that must be taken into consideration when determining whether evidence is admissible or not. There are several strategic considerations that parties involved in the case can undertake in order to ensure that this section is being used effectively and fairly. One consideration is understanding the nuances of the law and how it affects the case. Each of the factors listed in the section can significantly influence whether evidence is admissible or not. Therefore, it is important to conduct a thorough examination of the evidence and consider how it will impact each of the factors. This is particularly true for factors that may be perceived as subjective or open to interpretation, such as those regarding personal dignity, privacy, and societal interests. Another strategic consideration is preparing for the possibility of challenges from the opposing party. The interests of the complainant and the accused often differ significantly, and each party may try to argue against the admissibility of certain evidence. Therefore, it is important to be prepared to make a strong case for or against the evidence using the appropriate factors listed in the law. Further, parties in the trial may also consider strategic witnesses. An effective witness may help to make a strong case for the admissibility of certain evidence by providing testimony that supports the argument based on the factors outlined in section 276(3). Alternately, witnesses may provide testimony that argues against the admissibility of certain evidence, based on how it may negatively impact the factors listed in the law. In addition to these strategic considerations, there are various strategies that can be employed when working with section 276(3) of the Criminal Code of Canada. One strategy includes thorough preparation and coordination between lawyers. Parties to the case need to discuss any questions or concerns about the admissibility of evidence in advance of presenting it to the judge or justice. This not only helps to ensure that the presentation is well coordinated and organized but also allows all parties to address any anticipated challenges beforehand. Another strategy is to gather as much information as possible to support the case for admissibility. This can include bringing in expert witnesses to provide testimony about how certain evidence may or may not be relevant to the case and how it will positively impact the factors outlined in the law. Other strategies might include presenting evidence in the most effective way possible, and implementing tactics like visual aids to bolster arguments and make them more compelling to the judge or justice. Overall, when dealing with section 276(3) of the Criminal Code of Canada, it is essential to prepare thoroughly and develop strong arguments based on the law and the specific circumstances of the case. By implementing effective strategies and addressing the factors that will influence the admissibility of evidence, parties to the case can present a strong and compelling case to achieve the best possible outcome for their client.