INTRODUCTION AND BRIEF DESCRIPTION

Individuals can make submissions on records related to a case, but cannot be compelled to testify at the hearing.

SECTION WORDING

278.4(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

EXPLANATION

Section 278.4(2) of the Criminal Code of Canada deals with the admissibility of complainant or witness records during a trial. The section allows individuals who are in possession of such records, as well as the complainant or witness themselves, to appear and make submissions at the hearing. However, it also stipulates that these individuals are not compellable as witnesses during the hearing. This section is designed to balance the need for relevant evidence in a trial with the privacy and security of complainants and witnesses. The fact that these individuals are not compellable as witnesses means that they cannot be forced to testify against their will, which is an important consideration in cases involving sensitive or trauma-inducing information. The section also recognizes that individuals other than complainants or witnesses may have possession or control of the records in question. This could include lawyers, police officers, medical professionals, or family members. Allowing these individuals to make submissions at the hearing ensures that the court has access to all relevant information, while also providing an opportunity for those affected by the disclosure of the records to be heard. In summary, Section 278.4(2) is an important provision of the Criminal Code of Canada that balances the need for relevant evidence in a trial with the privacy and security of complainants and witnesses. By allowing individuals in possession of relevant records to make submissions, while also protecting them from being compelled to testify, the section helps to ensure that justice is served while maintaining the dignity and safety of all individuals involved in a trial.

COMMENTARY

Section 278.4(2) of the Criminal Code of Canada deals with the admissibility of records containing information related to a complainant or witness in a sexual assault trial. The section outlines that while these records may be submitted as evidence in court, the individuals involved in the case, including the complainant and any witnesses, cannot be compelled to testify at the hearing. This provision is significant as it recognizes the sensitive and potentially traumatic nature of sexual assault cases, where a complainant or witness may be hesitant or unwilling to testify due to fears of being re-traumatized or stigmatized. By acknowledging their right to not be compelled to testify, the section seeks to protect the privacy and well-being of these individuals, while still allowing for important evidence to be presented in court. At the same time, the section balances these concerns with the need for a fair trial. The fact that those who have possession or control of the record, as well as any other person to whom the record relates, may appear and make submissions at the hearing means that the accused is not deprived of their right to a full and proper defence, and can rebut claims made in these records if necessary. Overall, section 278.4(2) recognizes the complexity and sensitivity of sexual assault cases and the need to protect the rights and well-being of those involved, while still ensuring a fair judicial process. It is a reminder of the importance of balancing competing interests when it comes to criminal justice, and of the ongoing need for reform and improvement in this area. It also speaks to larger societal issues, such as the prevalence of sexual assault and the need for greater awareness, prevention, and support for survivors.

STRATEGY

Section 278.4(2) of the Criminal Code of Canada states that a person who has possession or control over a record, complainant or witness can appear and provide submission at a hearing. But such individuals are not obliged to act as witnesses during the hearing. This section is crucial in any criminal trial as it limits the potentially damaging evidence that a prosecution may rely upon. Hence, it is imperative to consider some strategic measures when dealing with this section of the Criminal Code of Canada. One of the key considerations is how to protect the privacy and confidentiality of witnesses and complainants. For instance, if a complainant suffers from an assault or a sexual offence, their identity can be hidden from the general public and the offender. It is essential that lawyers handling the case understand the importance of protecting the privacy of the complainant to prevent further victimization and embarrassment. Therefore, they need to take measures like utilizing appropriate pseudonyms and redacting the identity of the witnesses within the courtroom. Another strategic consideration that could be employed is negotiating with the prosecutor to minimize unnecessary questioning. Defense lawyers must establish early on that the individual in question is not a witness. It is important to avoid an unnecessary cross-examination of a complainant, particularly if the advocate already is aware of the answer the complainant might render. Similarly, the submission of the statement of another complainant should be questioned due to the applicability of principles like the hearsay rule. Additionally, lawyers should employ the use of expert witnesses where necessary. Expert witnesses provide judge or review Panel with important insight into various aspects of the evidence that is not readily apparent to non-professionals. Expert witnesses can lend their knowledge to interpreting the significance of Section 278.4(2). This can be used to support various arguments and the building of a strong defense. Lastly, with the growing use of technology, lawyers handling cases involving records should be well acquainted with the challenges and opportunities brought about by technological advancements to the admissibility and weight of records in criminal proceedings. As a strategic measure, lawyers should understand the weight of various digital records and ensure they are not tampered with before presenting them before the courtroom. To conclude, the strategic considerations for dealing with Section 278.4(2) of the Criminal Code of Canada are varied. The privacy and confidentiality of witnesses should be of utmost concern, particularly if the witnesses are vulnerable. Lawyers should also know the rules of evidence to avoid making unnecessary "fishing" trips and submissions in their case. Utilizing expert witnesses can provide invaluable insight. In addition, lawyers should be well equipped to handle digital records' challenges and opportunities. It is hoped these strategies will increase the likelihood of success in a criminal trial.