INTRODUCTION AND BRIEF DESCRIPTION
This section requires the Attorney Generals consent for proceedings to be initiated under subsection (1).
SECTION WORDING
283(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.
EXPLANATION
Section 283(2) of the Criminal Code of Canada is an important provision that plays a vital role in the prosecution of sexual offenses. This section stipulates that no proceedings may be initiated under subsection (1) of the same section without the consent of the Attorney General or counsel instructed by him for that purpose. Specifically, subsection (1) provides for the prosecution of various sexual offenses including sexual assault, sexual interference, invitation to sexual touching, and bestiality. The underlying rationale for this provision is to ensure that the prosecution of these sexual offenses is carried out with the necessary levels of care, scrutiny, and deliberation. By requiring the consent of the Attorney General or his authorized agent, the provision seeks to ensure that the decision to begin criminal proceedings is based on a comprehensive review of all the available evidence and that it is not influenced by political or other extraneous considerations. Moreover, this provision recognizes that sexual offenses are particularly challenging to prosecute given the often complex and intimate nature of the alleged offenses. Sexual offenses often involve a significant power differential between the victim and the accused, and victims may be particularly vulnerable to intimidation or retaliation. As such, this provision ensures that cases involving sexual offenses are carefully vetted and that the interests of justice are served by ensuring that only the most meritorious cases are prosecuted. In conclusion, Section 283(2) of the Criminal Code of Canada is an important safeguard that ensures that the prosecution of sexual offenses is conducted in a fair, impartial, and transparent manner. It ensures that only the strongest cases are prosecuted and that the interests of all parties, including the victim, the accused, and society as a whole, are fully protected.
COMMENTARY
Section 283(2) of the Criminal Code of Canada outlines the requirements for commencing proceedings under subsection (1) relating to sexual offences. This section mandates that no proceedings can be started without the consent of the Attorney General or counsel instructed by them. This measure is designed to ensure that only cases with a reasonable likelihood of success are pursued, thereby reducing the likelihood of injustice. However, the requirement for prosecutorial consent can also have negative implications, particularly for victims and those seeking justice. The requirement for prosecutorial consent clearly intends to address concerns surrounding frivolous or vexatious complaints for sexual offences. In the past, false accusations have been used as a means of retribution or harassment, particularly in intimate partner or familial relationships. Additionally, there is a concern that some individuals may fabricate sexual offences to gain an advantage in divorce or child custody proceedings. In such cases, the accused party could suffer significant harm as a result of false accusations. By requiring consent from the Attorney General or their appointed counsel, the Crown can act as a gatekeeper, ensuring that only viable cases are pursued. However, this requirement also has several negative implications. It places a significant amount of power in the hands of the Attorney General, who may not have the interests of the victim at the forefront of their decision-making process. Prosecutorial discretion allows for the Crown to choose which cases to pursue, potentially resulting in unequal treatment for victims depending on where they live or who is in power at the time. Additionally, the requirement for prosecutorial consent can be particularly problematic in cases where the accused individual is a person in a position of power or authority. In these cases, the victim may be hesitant to come forward for fear of reprisal or being disbelieved. Requiring the consent of the Attorney General or their counsel in these cases can further discourage victims from seeking justice. Furthermore, the requirement for prosecutorial consent can also create delays in bringing charges. In cases where the Crown does not give consent, the victim may need to seek a judicial review of the decision, which can be a time-consuming and costly process. Given that sexual offences often have a significant impact on the mental and emotional well-being of victims, any delay in justice can further traumatize the victim. Overall, while Section 283(2) of the Criminal Code of Canada aims to prevent frivolous or vexatious complaints relating to sexual offences, it also has significant negative implications for victims seeking justice. The requirement for prosecutorial consent can discourage victims from coming forward, create delays in proceedings and raise the potential for unequal treatment under the law. As such, it is important to consider reforms to this section of the Criminal Code to ensure that it strikes a balance between protecting the accused from frivolous complaints and protecting the interests of victims seeking justice.
STRATEGY
Section 283(2) of the Criminal Code of Canada is a provision that mandates that no proceedings can be instituted in relation to the offence of sexual assault under section 283(1) without the prior consent of the Attorney General or counsel instructed by the Attorney General. The provision has several strategic considerations and raises important questions that must be addressed by prosecutors and other stakeholders. Firstly, prosecutors must assess whether the evidence is sufficient to support a charge of sexual assault before seeking the consent of the Attorney General or his counsel to initiate proceedings. This process often involves a review of the evidence, including the statements of the victim and any witnesses, as well as any physical evidence available. It requires prosecutors to determine whether the facts of the case meet the standard of proof required for a criminal conviction beyond a reasonable doubt. Secondly, prosecutors must consider the impact of the victim's consent or lack of consent on the case. Sexual assault cases often involve allegations of assault that may have occurred in private, without witnesses, and with no physical evidence. This means that the victim's testimony is crucial to the prosecution's case, and they must assess whether the victim is willing and able to cooperate with the investigation and testify in court. In cases where the victim is unwilling or unable to testify in court, the prosecution must assess whether there are other factors that could support a conviction, such as DNA evidence or other forensic evidence. Thirdly, prosecutors must be aware of the potential for a conflict of interest when seeking the Attorney General's consent. The Attorney General is often also responsible for providing legal advice to the government regarding matters related to sexual assault laws, which means that they may have competing interests. Prosecutors must be careful to ensure that the Attorney General does not exert any undue influence on their decision to proceed with the case. Some strategies that could be employed in dealing with Section 283(2) include the following: 1. Obtaining independent legal advice: Prosecutors could seek independent legal advice from a lawyer other than the Attorney General's counsel to help ensure that they are making impartial decisions based solely on the evidence. 2. Building a stronger case: Prosecutors could work to build a stronger case with more evidence, in cases where the victim is reluctant to testify or where the evidence is weak. This could involve gathering additional physical evidence, finding more witnesses, or seeking expert testimony. 3. Providing support to victims: Prosecutors could work to provide support to victims throughout the legal process to help them feel more comfortable and confident about cooperating with the investigation and testifying in court. This could involve referring them to victim services or providing counselling services. 4. Seeking public support: Prosecutors could seek public support for the prosecution of sexual assault cases to counteract any potential conflicts of interest that the Attorney General may have. This could involve working with advocacy groups or engaging with the media to help raise awareness about the importance of prosecuting sexual assault cases. In conclusion, Section 283(2) of the Criminal Code of Canada is a provision that has several strategic considerations for prosecutors and other stakeholders. To navigate this provision successfully, prosecutors must engage in careful reviews of the evidence, assess the impact of the victim's cooperation or lack thereof, and be aware of potential conflicts of interest. With the right strategies in place, however, it is possible to successfully prosecute sexual assault cases while respecting the requirements of Section 283(2).