INTRODUCTION AND BRIEF DESCRIPTION
Prosecutor is required to notify accused of possession of record without disclosing its contents.
SECTION WORDING
278.2(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents.
EXPLANATION
Section 278.2(3) of the Criminal Code of Canada is aimed at addressing the issue of fairness and transparency in criminal proceedings related to sexual assault and other serious offences. Under this section, if the prosecutor possesses or controls a record that falls under the ambit of this section, they must notify the accused (i.e. the person who faces criminal charges) that such a record exists. However, the prosecutor is not required to disclose the contents of the record during the notification process. A record in this context refers to any written, audio, or visual material that is relevant to the case. The records captured under this section include those that are in the possession or control of third parties such as hospitals, schools, or social services agencies. Such records may contain sensitive information about the complainant, the accused, or other individuals who may be involved in the case. By notifying the accused that a record exists, the prosecutor aims to provide transparency in the criminal justice system. The accused then has the opportunity to challenge the admissibility of the record or seek access to its contents through legal means. At the same time, not disclosing the contents of the record during the notification process protects the privacy of the individuals involved and prevents any potential harm that may result from the disclosure of sensitive information. In summary, Section 278.2(3) of the Criminal Code of Canada seeks to ensure fairness, transparency, and privacy in criminal proceedings related to sexual assault and other serious offences. It strikes a balance between the accused's right to know that such records exist and the need to protect the privacy and safety of individuals involved in the case.
COMMENTARY
Section 278.2(3) of the Criminal Code of Canada is an important legal provision that establishes the rules governing the handling of records that relate to the complainant's sexual activity in the context of a sexual offence trial. In essence, this section requires the prosecutor to notify the accused of the existence of such records, and to disclose their contents only when permitted by law. The provision is intended to balance the interests of the accused in obtaining information that may be relevant to the defence, with the rights of the complainant to privacy and protection against irrelevant and prejudicial evidence. The purpose of the provision is twofold. First, it recognizes that records of the complainant's sexual activity may be relevant to the trial, either because they bear on the credibility of the complainant or because they shed light on the circumstances of the alleged offence. Second, it seeks to minimize the harms of disclosure of such records, which can be considerable for the complainant's privacy, dignity, and autonomy. The provision applies only to records that fall within the definition of sexual activity" in section 278.1 of the Criminal Code. This includes any sexual behaviour of the complainant that is not an element of the offence charged, any communication of a sexual nature between the complainant and any person, and the complainant's sexual history with any person other than the accused. The provision does not apply to records of sexual activity between the complainant and the accused, as they are subject to different rules of admissibility under sections 276 and 276.1 of the Code. When a record falls within the scope of section 278.2(3), the prosecutor is obliged to notify the accused that the record exists and that it is in the prosecutor's possession. The purpose of this notification is to alert the accused to the potential relevance of the record and to allow them to make full answer and defence to the charges. However, the prosecutor is not permitted to disclose the contents of the record at this stage, as doing so would violate the complainant's privacy and compromise their dignity and autonomy. The contents of the record may be disclosed only if the court is satisfied that the evidence is relevant and that its probative value outweighs its prejudicial effect on the complainant's privacy and dignity. This determination is made by the trial judge using a two-step test, known as the Wigmore test. The test requires the judge to assess the relevance and probative value of the evidence on the one hand, and the potential harm to the complainant on the other, and to balance these factors in determining whether the evidence should be admitted. The Wigmore test is a flexible and contextual inquiry that takes into account the particular facts and circumstances of each case. The judge must consider the nature and extent of the sexual activity at issue, the degree of similarity or dissimilarity between it and the alleged offence, the temporal and contextual proximity of the activity to the offence, the relevance of the record to the issues in the case, the probative value of the record in the circumstances, and the potential harm to the complainant's privacy and dignity. The application of section 278.2(3) of the Criminal Code involves a delicate balance between the conflicting interests of the accused and the complainant in the context of a sexual offence trial. It seeks to ensure that relevant evidence is available to the defence while protecting the complainant from unnecessary intrusions into their sexual history and from the use of irrelevant or prejudicial evidence. As such, it represents an important aspect of the legal framework governing sexual offences that aims to promote fairness, justice, and respect for the dignity and autonomy of all parties involved.
STRATEGY
Section 278.2(3) of the Criminal Code of Canada mandates that the prosecutor must notify the accused of the possession of the incriminating record but should not disclose its contents. This section of the code raises important strategic considerations for all the parties involved in the legal proceedings. Here, we shall discuss some strategic considerations when dealing with this section of the Criminal Code of Canada and some strategies that could be employed. Strategic considerations: 1. Limiting pre-trial publicity: When the prosecutor discloses the existence of the record to the accused, it is crucial to avoid media leaks or pre-trial publicity. If the contents of the record become public before the trial, it could taint the jury's decision and affect the accused's right to a fair trial. 2. Timing of disclosure: According to section 278.2(3), the prosecutor has to notify the accused of the record's possession. The timing of the disclosure is, however, left to the prosecutor's discretion. They could choose to reveal the information early on to start the process of disclosure or wait until closer to the trial's commencement. 3. Preparing strong defence: the accused's legal team must prepare a robust defence once they are notified of the record's existence. The notification could provide the defence team with an opportunity to assess the strength of the prosecutor's case and assess the potential legal issues that may arise. 4. Damage control - the accused's legal team should be prepared to deal with cases where the record is leaked to the public despite efforts to prevent it. If such leaks occur, the legal team must put in place strategies to mitigate the damage by seeking a gag order or adjournment of the trial. Strategies that can be employed: 1. Argue that the record is irrelevant or inadmissible: Even though the prosecutor possesses the record, it does not imply that the contents are admissible in court. The accused's legal team could challenge the relevance of the record or its admissibility through legal arguments. 2. Request a copy of the record: It would be important for the accused's legal team to request a copy of the record once they are notified of its existence. This request would enable the legal team to study its contents and prepare a defence. 3. Seek a severance: In some cases, the possession of the incriminating record could lead to the joinder of several cases into one. In such cases, the accused's legal team may request a severance to separate accused individual cases. 4. Challenge the legality of the record's possession: Finally, the accused's legal team may challenge the legality of the record's possession to challenge the prosecutor's case's legal grounding. Conclusion: In conclusion, section 278.2(3) of the Criminal Code of Canada raises several strategic considerations for all the parties involved in legal proceedings. Legal teams for both the prosecution and defence should be prepared to employ strategic considerations to protect their client's interests. Legal strategies such as requesting a copy of the record, challenging the record's admissibility, or seeking a severance could be employed by the accused's legal team to ensure that their client gets a fair trial despite the possession of an incriminating record by the prosecutor.