Criminal Code of Canada - section 486.2(6) - Same procedure for determination

section 486.2(6)

INTRODUCTION AND BRIEF DESCRIPTION

A judge can order a witness to testify if its necessary to determine whether an order should be made to protect the witness under subsection (2) or (4).

SECTION WORDING

486.2(6) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) or (4) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.

EXPLANATION

Section 486.2(6) of the Criminal Code of Canada pertains to the protection of witnesses who appear in criminal proceedings. Specifically, it allows a judge or justice to order a witness to testify if they believe that it is necessary to determine whether an order under subsection (2) or (4) should be made in respect of that witness. Subsections (2) and (4) establish different types of protection orders that can be made for witnesses. Subsection (2) allows for the imposition of a publication ban on any information that could identify the witness, while subsection (4) enables the court to order a witness to testify from outside of the courtroom through a closed-circuit television or other similar means. Therefore, if a witness is hesitant to testify in a criminal proceeding because they fear for their safety or well-being, the judge or justice may order the witness to appear and testify. This is essential to determining whether the witness requires protection under subsections (2) and (4) of the Criminal Code. In summary, section 486.2(6) allows for a judge or justice to order a witness to testify in order to determine whether they require protection under subsections (2) and (4) of the Criminal Code. This provision serves to ensure the protection of witnesses who may feel threatened or vulnerable as a result of their involvement in a criminal proceeding.

COMMENTARY

Section 486.2(6) of the Criminal Code of Canada provides judges and justices with the power to order witnesses to testify when they believe it is necessary in order to determine whether or not an order under subsection (2) or (4) should be issued in respect of that witness. This section is an important tool for judges and justices to use in order to ensure that witnesses are protected from harm, intimidation, or retaliation, and that they are able to testify freely and without fear. It is essential that witnesses are able and willing to testify in criminal trials in order for justice to prevail. Witnesses play a critical role in helping to establish the facts of a case and to ensure that the truth is told. However, witnesses who have been victims of crime or who have information about criminal activity are often afraid to testify for fear of retaliation, harm, or intimidation. This fear can lead to the suppression of evidence, which can weaken the case against the accused and undermine the credibility of the criminal justice system. This is where section 486.2(6) comes in. By allowing judges and justices to order witnesses to testify when they believe it is necessary, this section helps to safeguard witnesses and ensure that they are able to testify freely and without fear. In doing so, it strengthens the ability of the justice system to hold criminals accountable for their actions and to provide justice to victims and their families. In addition to protecting witnesses, section 486.2(6) also helps to ensure that the rights of the accused are respected. The ability to call witnesses and cross-examine them is a fundamental aspect of the Canadian criminal justice system. However, if witnesses are too afraid to testify, or if they are threatened or intimidated, this right is effectively nullified. By providing judges and justices with the power to order witnesses to testify, section 486.2(6) helps to uphold the rights of the accused, while also protecting the integrity of the justice system. While section 486.2(6) is an important tool for judges and justices, it is important to note that it should be used sparingly and only when necessary. Judges and justices must weigh the potential harm to the witness against the need for their testimony, and only issue an order when they believe it is absolutely necessary. Additionally, witnesses who are ordered to testify may need additional protection, such as anonymity orders, in order to ensure their safety and well-being. In conclusion, section 486.2(6) of the Criminal Code of Canada is a critical tool that helps to protect witnesses and strengthen the integrity of the justice system. By allowing judges and justices to order witnesses to testify when necessary, this section helps to ensure that the truth is told, justice is served, and the rights of both witnesses and the accused are respected.

STRATEGY

Section 486.2(6) of the Criminal Code of Canada empowers the judge or justice to order a witness to testify in order to determine whether an order under subsection (2) or (4) should be made in respect of that witness. This provision has some strategic considerations which should be kept in mind while dealing with it. One strategic consideration is to assess the relevance of the testimony of the witness. The judge or justice can only order the witness to testify if it is necessary for the determination of the order. Therefore, the party that is seeking the order must show that the testimony of the witness is relevant and material to the determination of the order. Failure to establish relevance could result in the court refusing to order the witness to testify. Another strategic consideration is to determine whether the testimony of the witness is important enough to justify compelling the witness to testify. In many cases, witnesses may be reluctant to testify because they fear for their safety or reputation. Therefore, it is important to weigh the importance of the testimony against the possible harm that may result from compelling the witness to testify. This balancing act requires careful consideration of the circumstances of each case. A third strategic consideration is to plan the examination of the witness carefully. If the judge or justice orders the witness to testify, the party seeking the order must be prepared to elicit the relevant information from the witness. This requires planning and preparation of questions that are designed to elicit the relevant information without unduly harassing or intimidating the witness. Failure to do so could result in the witness refusing to testify or giving incomplete or misleading testimony. Strategies that could be employed to deal with section 486.2(6) of the Criminal Code of Canada include arguing for or against the order depending on the facts and circumstances of the case. For instance, if the witness is essential to the determination of the order, the party seeking the order should argue for the order. On the other hand, if the witness has legitimate concerns about testifying, the party opposing the order should argue against it. Another strategy is to request that the order be made subject to certain conditions. For instance, the witness may be allowed to testify via video conferencing or with a screen that obscures their face to protect their identity. Alternatively, the witness may be allowed to testify in private or under a publication ban to protect their privacy. These conditions must be tailored to the specific circumstances of the case and must balance the competing interests of the parties involved. In conclusion, section 486.2(6) of the Criminal Code of Canada can be a powerful tool for parties seeking an order under subsection (2) or (4). However, this provision also requires careful consideration of the facts and circumstances of each case and the potential harm that may result from compelling a witness to testify. As such, parties must be prepared to argue their case and plan their examinations carefully if they seek to use this provision effectively.