Criminal Code of Canada - section 486.3(1) - Accused not to cross-examine witness under 18

section 486.3(1)

INTRODUCTION AND BRIEF DESCRIPTION

Accused cannot personally cross-examine a witness under 18, unless deemed necessary by the judge; counsel shall be appointed if accused does not conduct cross-examination.

SECTION WORDING

486.3(1) In any proceedings against an accused, on application of the prosecutor or a witness who is under the age of eighteen years, the accused shall not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.

EXPLANATION

Section 486.3(1) of the Criminal Code of Canada is aimed at protecting child witnesses from intimidating and traumatic cross-examination by the accused. This section allows for the prosecutor or a witness under the age of eighteen to make an application for the accused to be prohibited from personally conducting the cross-examination of the witness. The purpose of this provision is to prevent the accused from directly confronting a child witness, as their intimidating behaviour may affect the child's ability to testify truthfully and accurately. However, the section also recognizes that in some exceptional cases, the proper administration of justice may require the accused to conduct the cross-examination personally. In such cases, the judge or justice may permit the accused to do so. If the accused does not personally conduct the cross-examination, the judge or justice shall appoint counsel to do so on their behalf. This provision plays a crucial role in mitigating the emotional and psychological impact on child witnesses when they testify in court. Cross-examination is often an intimidating and stressful experience, especially for children who are more vulnerable due to their age and lack of experience with legal proceedings. By preventing the accused from personally cross-examining a child witness, section 486.3(1) of the Criminal Code helps to ensure that child witnesses are treated with dignity and respect and are able to testify in a safe and secure environment.

COMMENTARY

Section 486.3(1) of the Criminal Code of Canada is a provision that seeks to protect young witnesses from being re-traumatized during criminal proceedings. The provision allows a prosecutor or a young witness to apply for an order prohibiting an accused from personally cross-examining a witness who is under the age of eighteen years. This provision is significant because cross-examination is a critical part of the criminal justice system. It enables an accused person to challenge the evidence against them and to test the credibility of the witnesses. However, when it comes to allegations of sexual assault or child abuse, cross-examination can be traumatic for the victims, especially if they are forced to face their abuser in open court. In many cases, the accused may use cross-examination to intimidate or harass the witness or to discredit their testimony. This could lead to the witness being re-traumatized, and it could undermine the integrity of the criminal justice system. The provision in question addresses this issue by setting limits on an accused's right to personally cross-examine a young witness. The judge or justice hearing the case has the power to appoint counsel to conduct the cross-examination if they believe that the proper administration of justice requires it. This provision strikes a balance between the rights of the accused and the need to protect young witnesses. It ensures that the accused can still challenge the evidence against them but in a way that does not traumatize the witness or compromise the integrity of the criminal justice system. It is important to note that the provision does not apply to all cases; it only applies to cases where a witness is under the age of eighteen years. This recognizes that young witnesses may be particularly vulnerable to the trauma of cross-examination and need special protections. Overall, Section 486.3(1) of the Criminal Code of Canada is a crucial provision that promotes both fairness and compassion in the criminal justice system. It recognizes that cross-examination is an essential part of criminal proceedings but does not allow the process to be used to intimidate or harass vulnerable witnesses. Instead, it offers a more balanced and nuanced approach to protecting the rights of the accused while also prioritizing the well-being of young witnesses.

STRATEGY

Section 486.3(1) of the Criminal Code of Canada ensures that an accused person cannot personally cross-examine a witness who is under the age of 18. The provision also allows for the appointment of counsel to conduct the cross-examination if the accused does not personally conduct it. This section of the Criminal Code raises various strategic considerations for both the prosecutor and the accused. In this essay, we will discuss some of the strategic considerations that arise when dealing with Section 486.3(1) and some strategies that could be employed. Strategic Considerations: 1. Protect the Witness: One of the main aims of Section 486.3(1) is to protect witnesses who are under the age of 18. As such, the prosecutor must ensure that the witness is not intimidated or traumatized during the cross-examination. This can be achieved by appointing a counsel to conduct the cross-examination or requesting the court to limit the scope of the cross-examination in some way. 2. Adverse Inference: If the accused fails to cross-examine a witness who is under the age of 18, it may lead the court to draw an adverse inference against the accused. This means that the court may assume that the evidence given by the witness is true since the accused did not attempt to challenge it. Thus, the accused must carefully consider whether to personally conduct the cross-examination or appoint counsel to do so. 3. Preserving the Record: The accused may wish to cross-examine the witness personally to ensure that the record accurately reflects their defence. By doing so, the accused may be able to uncover inconsistencies or lapses in the witness's testimony, which could ultimately lead to their acquittal. 4. Right to Self-Representation: Accused persons have the right to self-representation in court. Section 486.3(1) limits this right for accused persons who wish to personally cross-examine a witness under the age of 18. As such, accused persons will need to weigh up the benefits of representing themselves against the potential negative impact of being unable to cross-examine a particular witness. Strategies: 1. Negotiation: Prosecutors may wish to negotiate an agreement with the accused person to appoint counsel to conduct cross-examination. This may involve discussing the specific concerns of the witness, and the accused and finding alternative ways to address these issues, such as limiting the scope of the cross-examination. 2. Offering Assistance: Prosecutors may offer assistance to the accused person in identifying and retaining competent counsel to conduct the cross-examination. This may be particularly useful in cases where the accused is self-represented. 3. Preparing the Witness: Both the prosecutor and the defence counsel may wish to prepare the witness for cross-examination. This can involve reviewing the witness's testimony, identifying potential areas of questioning, and ensuring the witness is comfortable and feels safe during the cross-examination. 4. Balancing Interests: The judge or justice in charge of the case must balance the interests of the accused to self-representation with the need to ensure that the witness is fairly and safely cross-examined. Judges may ask the accused questions to determine their ability to conduct the cross-examination fairly and professionally. In conclusion, Section 486.3(1) of the Criminal Code of Canada impacts the conduct of cross-examination in cases where the witness is under the age of 18. Both prosecutors and accused persons will need to weigh the potential negative impact and work to preserve the rights of both the witness and the accused. Some possible strategies include negotiation, offering assistance, preparing the witness, and balancing interests to ensure that justice is done. Ultimately, the fair and respectful treatment of all parties is paramount, and the strategies applied must reflect this.