section 486.2(3)

INTRODUCTION AND BRIEF DESCRIPTION

A judge or justice must consider factors listed in section 486.1(3) when making a determination under subsection (2).

SECTION WORDING

486.2(3) In making a determination under subsection (2), the judge or justice shall take into account the factors referred to in subsection 486.1(3).

EXPLANATION

Section 486.2(3) of the Criminal Code of Canada is a provision that outlines the factors that a judge or justice must consider when making a determination under subsection (2), which pertains to the admissibility of evidence regarding the complainant's sexual activity. This provision essentially requires the judge or justice to take into account the context and circumstances surrounding the complainant's sexual activity, whether consensual or not, and the relevance it may have to the case at hand. The factors referred to in subsection 486.1(3) are related to the complainant's sexual history, and include their past sexual activity with the accused, with others, and any differences between that activity and the activity they are alleging occurred with the accused. Additionally, the factors include any injuries or physical evidence that may corroborate the complainant's allegations or indicate a lack thereof. The purpose of this provision is to prevent the use of irrelevant or prejudicial evidence in sexual assault cases, particularly evidence that perpetuates harmful myths and stereotypes about the complainant's sexual activity or character. It also aims to protect the privacy and dignity of the complainant by limiting the use of evidence that may cause them further harm or trauma. By requiring the judge or justice to consider these factors, section 486.2(3) ensures that any evidence regarding the complainant's sexual activity is relevant, reliable, and does not unfairly prejudice the accused or undermine the integrity of the judicial process. It upholds the principles of justice, fairness, and protection of vulnerable individuals, which are at the heart of the Canadian legal system.

COMMENTARY

Section 486.2(3) of the Criminal Code of Canada is an important provision that provides guidance to judges and justices when determining whether an accused person should testify in a sexual assault trial. The section requires judges and justices to take into account the factors outlined in subsection 486.1(3) when making their determination. Subsection 486.1(3) outlines six factors that judges and justices must consider when making a determination under subsection (2). These factors include: 1. The right of the accused to a fair trial; 2. The right of the complainant to testify without undue harassment or intimidation; 3. The right of the complainant to privacy; 4. The potential prejudice to the administration of justice; 5. The potential prejudice to the rights of the accused if they do not testify; and 6. Any other relevant factors. The importance of this section cannot be overstated. Sexual assault cases are inherently complex and require careful consideration by judges and justices. The issue of whether an accused person should testify can be particularly challenging. On the one hand, an accused person has a constitutional right to a fair trial and the right to be presumed innocent until proven guilty. On the other hand, complainants in sexual assault cases are often vulnerable and may face significant barriers to testifying. Judges and justices must balance these competing interests when making their determination. The factors outlined in subsection 486.1(3) provide helpful guidance to judges and justices when making their determination. The first factor, the right of the accused to a fair trial, is perhaps the most important. Judges and justices must ensure that the accused person's right to a fair trial is not compromised in any way. This means ensuring that the accused person has the opportunity to present evidence in their defence, including the option to testify if they choose to do so. The other factors, however, are also important. The right of the complainant to testify without undue harassment or intimidation is crucial. Complainants in sexual assault cases may feel intimidated or afraid to testify, and judges and justices must take steps to ensure that they feel safe and supported throughout the process. The right of the complainant to privacy is also essential, as sexual assault cases often involve sensitive and deeply personal information. Potential prejudice to the administration of justice and the rights of the accused if they do not testify are also important considerations. Judges and justices must be mindful of the potential impact of their decision on the overall fairness of the trial. Finally, any other relevant factors must also be taken into account. Overall, Section 486.2(3) of the Criminal Code of Canada is an essential provision that provides essential guidance to judges and justices when determining whether an accused person should testify in a sexual assault trial. By taking into account the factors outlined in subsection 486.1(3), judges and justices can ensure that their determinations are fair, just, and respect the rights of all parties involved.

STRATEGY

Section 486.2(3) of the Criminal Code of Canada is an important provision that outlines the factors that a judge or justice should consider when deciding whether to order a publication ban in a criminal proceeding. This section is crucial for protecting the privacy and reputational interests of individuals involved in criminal cases, especially victims and witnesses. When dealing with this section of the Criminal Code, there are several strategic considerations that should be taken into account. This includes understanding the nature and scope of the publication ban, the factors that the judge or justice will consider when making their determination, and the potential impact that a publication ban could have on the outcome of the trial. One key strategic consideration when dealing with section 486.2(3) is to ensure that all relevant factors are presented to the judge or justice in an effective and persuasive manner. This may involve providing evidence and arguments that highlight the potential harm to individuals' privacy and reputations if their names or other identifying information are published in the media. It may also involve demonstrating how a publication ban could help to protect the integrity of the trial, especially in cases where there is a risk of witness intimidation or jury contamination. Another important strategy for dealing with this section of the Criminal Code is to be aware of the potential impact that a publication ban could have on the public's right to access information about the case. While publication bans are intended to protect the interests of individuals involved in a trial, they can also limit transparency and accountability in the justice system. To mitigate this risk, it may be necessary to find alternative ways to provide the public with information about the case, such as through anonymized summaries of court proceedings or through a carefully crafted communications strategy. In terms of specific strategies that could be employed, one approach may be to argue that a publication ban is necessary to protect the privacy and safety of vulnerable witnesses, such as victims of sexual assault or domestic violence. This argument may be particularly persuasive if there is evidence that the witness has already been subject to harassment or threats, or if there is a reasonable fear that such harm could occur if the witness's identity were publicly disclosed. Another strategy may be to demonstrate how a publication ban could help to maintain the integrity of the trial by preventing witnesses or potential jurors from being unduly influenced by media coverage of the case. This could involve presenting evidence of past cases where media attention has led to witness intimidation or jury contamination, and arguing that a publication ban is necessary to prevent similar outcomes in the current case. Ultimately, the key to successfully navigating section 486.2(3) of the Criminal Code is to carefully consider all relevant factors and to present a strong, persuasive case to the judge or justice. By demonstrating a deep understanding of the issues at stake and by advocating for the interests of all parties involved, it is possible to achieve a fair and just outcome that respects the privacy and reputational interests of individuals while also upholding the principles of transparency and accountability in the justice system.