Criminal Code of Canada - section 486.2(1) - Testimony outside court room witnesses under 18 or who have a disability

section 486.2(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for witnesses under the age of 18 or with disabilities to testify outside the courtroom or behind a screen to protect them from potential harm or discomfort.

SECTION WORDING

486.2(1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

EXPLANATION

Section 486.2(1) of the Criminal Code of Canada allows witnesses who are vulnerable due to age or disability to testify in a manner that protects them from potential trauma or intimidation. The section gives prosecutors the ability to request that the witness gives evidence outside of the courtroom, or behind a screen or other device that prevents them from seeing the accused. This provision is crucial as vulnerable witnesses may face heightened emotional distress, anxiety, or fear while testifying, and the presence of the accused in the courtroom may further exacerbate these feelings. This can make it difficult for the witness to communicate effectively. The section acknowledges that witnesses who are under the age of eighteen years or have difficulty communicating due to mental or physical disabilities require additional support to give their testimony in the manner that best protects their mental well-being. However, the decision to allow a vulnerable witness to testify remotely must be weighed carefully against the need for a fair and impartial trial. The section legally requires judges and justices to consider the proper administration of justice before making a decision. This ensures that the accused's right to a fair trial and the administration of justice are not undermined when vulnerable witnesses testify. Overall, section 486.2(1) plays a critical role in protecting vulnerable witnesses during the criminal trial process in Canada. It recognizes the unique vulnerabilities of certain witnesses and ensures that their rights and interests are safeguarded while denying any undue advantage to the other party in the trial.

COMMENTARY

Section 486.2(1) of the Criminal Code of Canada is a significant provision that has far-reaching implications for criminal proceedings in the country. It grants judges or justices the power to order witnesses who are below the age of 18 or have a mental or physical disability to testify outside the courtroom or behind a screen or other device that will prevent them from seeing the accused. This provision seeks to protect vulnerable witnesses from trauma and intimidation that could arise from testifying in open court. The purpose of this provision is to address some of the inherent challenges that arise when a vulnerable witness testifies in an open court. Witnesses who are under the age of 18 and those with mental or physical disabilities are particularly vulnerable to the pressures of cross-examination, which could lead to inconsistencies in their testimonies or unintentional deviation from their recollections. Testifying outside the courtroom or behind a screen or other device allows vulnerable witnesses to feel safe and secure in their testimony and be more willing to share their experiences without fear of intimidation or stigmatization. This provision has been hailed as a significant milestone in the fight against intimidation and victimization of vulnerable individuals in the criminal justice system. The provision is not without its challenges. Judges or justices must balance the need to protect vulnerable witnesses with the right of the accused to a fair trial and to confront the witnesses against them. This can be a difficult balancing act to achieve, especially when it comes to ensuring that witnesses' testimonies can be effectively challenged and tested. Additionally, the provision does not apply to all witnesses. It only covers those who are under the age of 18 or have a mental or physical disability that could make it difficult for them to communicate evidence. This leaves a significant gap in the protection of other vulnerable witnesses such as those who have experienced sexual violence and other forms of trauma. The provision's effectiveness largely depends on the willingness of judges or justices to take into account the needs and vulnerabilities of witnesses when making orders. It also depends on prosecutors to identify vulnerable witnesses and make applications under the provisions where necessary. Despite its limitations, this provision is a step in the right direction towards creating an inclusive criminal justice system that adequately caters to the needs of all vulnerable witnesses. In conclusion, Section 486.2(1) of the Criminal Code of Canada is an essential provision that addresses the challenges of protecting vulnerable witnesses in criminal proceedings. It grants judges or justices the power to order that such witnesses testify outside the courtroom or behind a screen or other device that will prevent them from seeing the accused. While there are challenges in achieving a balance between protecting vulnerable witnesses and the right of the accused to a fair trial, this provision represents a significant milestone in protecting vulnerable individuals in the criminal justice system.

STRATEGY

Section 486.2(1) of the Criminal Code of Canada allows for witnesses who are under the age of 18 or who may have difficulty communicating evidence due to a mental or physical disability to testify outside the courtroom or behind a screen. This section plays an important role in ensuring the rights of vulnerable witnesses are protected and their testimony is heard effectively. When dealing with this section, there are several strategic considerations to keep in mind. The first strategic consideration is the importance of making an application to the judge or justice to utilize this section of the Criminal Code. The prosecutor needs to make this application at the earliest opportunity in order to ensure the protection of vulnerable witnesses. The judge or justice will make a decision on whether this section should be used based on several factors including the age and vulnerability of the witness and the nature of the charges. Another strategic consideration is the potential impact on the accused. In most cases, the accused has a right to face their accusers in court. Therefore, if a judge or justice grants an application to use this section, it can have a significant impact on the strategies employed by the accused and their legal team. The accused may need to adjust their strategy to account for the fact that they will not be able to visually observe the witness's testimony. This can also impact the credibility of the witness and the strength of their evidence. A third strategic consideration is whether the judge or justice agrees to the application made by the prosecutor. It is possible that the application may be denied if the judge or justice believes it would interfere with the proper administration of justice. If this happens, the prosecutor must be prepared to adjust their strategy accordingly. They may need to rely on other forms of evidence or devise other strategies to support the testimony of a vulnerable witness. One strategy that can be employed in situations where the judge or justice denies an application to use this section is to appeal the decision. The prosecutor can make an appellate review application to a higher court and argue that the decision made by the judge or justice was incorrect and that the vulnerable witness needs the protection offered by this section. In conclusion, Section 486.2(1) plays a crucial role in protecting the rights of vulnerable witnesses and ensuring their testimony is heard effectively. Strategic considerations include making the application at the earliest opportunity, considering the impact on the accused, and adjusting strategies as necessary. In situations where the application is denied, an appeal can be made to a higher court. Ultimately, the goal is to ensure that the proper administration of justice is served while protecting the rights of vulnerable witnesses.