INTRODUCTION AND BRIEF DESCRIPTION
This section allows a judge to hold a confidential hearing if it will aid in making a decision.
SECTION WORDING
278.6(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.
EXPLANATION
Section 278.6(2) of the Criminal Code of Canada allows a judge presiding over a case related to sexual assault or other serious sexual offenses to hold a hearing in camera, meaning that it is closed to the public and the media. This provision applies to certain types of hearings, such as those related to the admissibility of evidence or pre-trial motions, where the judge may need to hear sensitive information that could harm the victim's privacy, safety or dignity if made public. The decision to hold a hearing in camera is at the discretion of the judge and will depend on the circumstances of the case. The judge must consider a range of factors, including the nature of the evidence, the potential harm to the victim or other witnesses, the interests of the administration of justice, and the public interest in open and transparent court proceedings. While hearings held in camera can raise concerns about transparency and accountability, they are sometimes necessary to ensure that a fair and just outcome is reached in cases involving sexual assault and other serious sexual offenses. By allowing a judge to make such determinations while protecting the privacy and well-being of victims and witnesses, Section 278.6(2) helps to uphold the principles of justice and respect for human rights in the Canadian legal system.
COMMENTARY
Section 278.6(2) of the Criminal Code of Canada is a provision that allows a judge to hold a hearing in camera during a determination of an application under section 278. This section provides for privacy and confidentiality during legal proceedings that involve sensitive information. In this commentary, we will analyze the practical and ethical implications of this section. In order to fully understand the provision, we must first define some key terms. 'In camera' means that the hearing will be closed to the public and the press. Only the parties involved and authorized personnel are allowed to attend the hearing. 'Section 278' refers to the provisions governing the protection of persons from stalking, intimidation, and violence. This section of the Criminal Code is intended to provide protection to victims of domestic violence, especially women. When the judge considers that holding a hearing in camera will assist in determining the application under Section 278, he or she may do so. This means that the judge has the discretion to close the hearing if he or she thinks that it would be helpful to the case. The judge may believe that some evidence that will be presented is confidential or that its disclosure could harm the parties involved. One of the practical implications of this provision is that it allows for confidentiality during legal proceedings. If the judge considers that some information may harm the parties if disclosed, he or she can close the hearing, and, therefore, preserve the privacy of the parties involved. This provision can be particularly important for victims of domestic violence, who may feel threatened by the presence of the defendant and the public during legal proceedings. However, closing legal proceedings raises some ethical concerns. The principle of open justice dictates that the public should have access to legal proceedings. Public scrutiny is essential to maintain accountability and transparency in the justice system. Closing legal proceedings could undermine this principle and weaken public trust in the justice system. Furthermore, the provision could be interpreted as violating the right to a fair trial. A fair trial implies that the parties involved have the right to be heard and to present all the evidence relevant to their case. Holding a closed, in-camera, hearing could deprive the parties of their right to a fair trial. In conclusion, while section 278.6(2) of the Criminal Code of Canada provides a means to protect the privacy of parties involved in legal proceedings, it also raises some ethical concerns. On one hand, privacy should be ensured in domestic violence cases, but, on the other hand, maintaining the principle of open justice and the right to a fair trial are important considerations. Therefore, judges should exercise their discretion carefully when determining whether or not to hold an in-camera hearing.
STRATEGY
Section 278.6(2) of the Criminal Code of Canada provides the judge with the authority to hold a hearing in camera if it is deemed necessary to assist in making a determination regarding the evidence presented in a sexual assault case. This provision can raise many strategic considerations, both for the prosecution and defense, and there are several strategies that can be employed to address them. One potential strategy for the defense is to object to the use of an in camera hearing if they believe that it could be detrimental to their client's case. For example, if sensitive or potentially embarrassing information is presented during the in camera hearing, it could be damaging to the accused's reputation or credibility. To address this, the defense could request that the judge provide detailed reasons for why an in camera hearing is necessary, and argue that alternative measures such as a closed courtroom or a publication ban could be used instead. On the other hand, the prosecution may seek an in camera hearing if they have concerns that the victim may be re-victimized or traumatized by having to disclose intimate or potentially painful details of the assault in open court. In this case, the prosecution may argue that an in camera hearing is necessary to protect the integrity of the trial process and to ensure that the victim's rights are respected. To address this, the defense could argue that the prosecution has not provided sufficient evidence to justify an in camera hearing, or that alternative measures such as pre-trial interviews or testimony by video-link could be used instead. Another strategic consideration is the impact of an in camera hearing on the credibility of the witnesses. If the judge allows an in camera hearing, the evidence presented will not be available for public scrutiny, which could raise questions about the reliability of the testimony. To address this, both the prosecution and defense could take steps to ensure that the in camera hearing is conducted with the same level of rigor as an open hearing, including cross-examination of witnesses and adherence to rules of evidence. Overall, a number of strategic considerations arise when dealing with Section 278.6(2) of the Criminal Code of Canada, particularly in cases of sexual assault. Whether to request an in camera hearing or object to one, as well as how to present evidence in an effective and ethical manner, will depend on the specific circumstances of the case, the arguments presented by opposing counsel, and the judge's interpretation of the law.