section 486.3(3)

INTRODUCTION AND BRIEF DESCRIPTION

The judge or justice shall consider certain factors when making a determination under subsection (2) of section 486.3.

SECTION WORDING

486.3(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 486.3(3) of the Criminal Code of Canada pertains to the making of determinations during the course of a criminal proceeding. Specifically, it outlines the factors that a judge or justice must consider when making a determination under subsection (2) of this same section. Subsection (2) of Section 486.3 outlines the circumstances in which a judge or justice may order a witness to testify outside of court. In order to do so, they must be satisfied that the witness is in need of protection and that the witness's testimony is essential to the case. Subsection (3) indicates that in making this determination, judges and justices must take into account the factors outlined in subsection 486.1(3). Subsection 486.1(3) sets out a number of factors that may be relevant to deciding whether a witness needs protection. These include the nature of the offence, the potential harm to the witness, the relationship between the witness and the accused, and any other relevant factors. Taken together, these sections illustrate the need for careful consideration of a variety of factors when making determinations in criminal proceedings. The interests of justice must be balanced with the need to protect witnesses, and a range of factors must be taken into account in order to arrive at a just outcome. Ultimately, these provisions are designed to ensure that criminal proceedings are conducted fairly and that all parties are treated with appropriate care and consideration.

COMMENTARY

Section 486.3(3) of the Criminal Code of Canada mandates that in making a determination under subsection (2), the judge or justice must take into account the factors described in subsection 486.1(3). The provision has been included in the Code to ensure that judges and justices consider certain essential factors before making a determination regarding the testimonial competence of a witness. The objective of this provision is to make sure that the witness is competent enough to provide testimony in the courtroom. Witnesses may be deemed incompetent for various reasons, such as being a minor, being mentally ill, or suffering from a cognitive disability that impairs their ability to understand the nature of the proceedings or the obligation to speak the truth. To ensure that witnesses are treated fairly, the Criminal Code sets out a framework for evaluating witness credibility. According to subsection 486.1(3), the factors that judges and justices must consider when determining the credibility of a witness are as follows: the age of the witness, the nature of the offense, the relationship between the accused and the witness, the possible existence of any motive to fabricate testimony, the manner in which the witness communicates, and any other circumstances that may affect the witness's ability to communicate the evidence. The first factor to be considered is the age of the witness. If the witness is a minor, it may be necessary to establish if the minor has the ability to understand the nature of the proceedings, the need to speak the truth, and the consequences of giving false testimony. Similarly, if the witness is an adult but is suffering from a cognitive disability, the court may consider whether the witness has the capacity to understand the nature of the proceedings. The second factor that must be evaluated is the nature of the offense. Serious crimes, such as homicide or sexual assault, may involve issues that require more stringent evaluation of the witness' credibility. The judge may consider if there are any psychological or emotional factors that influence the testimony of the witness. The third factor relates to the relationship between the accused and the witness. Judges and justices may consider whether the witness has any connection with the accused. In cases where the accused and the witness share a relationship, such as being family members or close friends, the judge may consider whether the relationship may have influenced the testimony. The next factor relates to the possible existence of any motive to fabricate testimony. Witnesses may be motivated to provide false testimony for various reasons, such as revenge or financial gain. The judge must consider whether the witness has any motive to provide false evidence. The fifth factor is the manner in which the witness communicates. Judges may consider how a witness speaks, behaves, and answers questions. They can take into account if the witness appears nervous, is hesitant, or provides excessive detail. Judges may also consider the type and quantity of language that the witness uses and whether the witness has any difficulty expressing themselves. The final factor that judges must consider is any other circumstances that may affect the witness's ability to communicate the evidence. This broad category is meant to ensure that judges can consider any aspect that may influence the accuracy of the testimony. Such aspects might include the witness's physical condition, any medication that they are taking, or any prior experience with the justice system. In conclusion, section 486.3(3) of the Criminal Code of Canada is a crucial provision that ensures that judges and justices consider certain essential factors before determining the testimonial competence of a witness. The factors listed in subsection 486.1(3) are essential to ensure that witnesses are treated fairly and that their testimony is accurate. By mandating judges to evaluate each of these factors, Canada's Criminal Code provides a rigorous framework for evaluating witness credibility. This framework is essential to maintain the integrity of the justice system and to ensure fair trials for all accuseds.

STRATEGY

Section 486.3(3) of the Criminal Code of Canada governs the process by which a judge or justice determines the admissibility of evidence obtained through the examination of a complainant's private records. This section requires the judge or justice to take into account the factors referred to in subsection 486.1(3), which includes factors such as the relevance of the evidence, the probative value of the evidence, and the impact that the disclosure of the evidence could have on the privacy or dignity of the complainant. When dealing with this section of the Criminal Code, there are several strategic considerations that should be taken into account. These include: 1. Understanding the requirements of the law: It is crucial to have a thorough understanding of the requirements of section 486.3(3) and subsection 486.1(3) to ensure that all the relevant factors are taken into account when making a determination about the admissibility of evidence. Failure to consider all the relevant factors could result in evidence being excluded or admitted wrongly. 2. Preparing the evidence: Lawyers should carefully prepare the evidence they plan to bring before the court to ensure that it meets the requirements of section 486.3(3). This could include obtaining the necessary warrants and ensuring that the evidence is relevant and has probative value. 3. Protecting the complainant's privacy: Lawyers should take steps to protect the complainant's privacy and dignity when presenting evidence obtained from their private records. This could include redacting sensitive information or arguing for the exclusion of certain evidence that could violate the complainant's privacy or dignity. 4. Arguing for the admissibility of evidence: Lawyers should be prepared to argue for the admissibility of evidence they plan to present in court. This could involve presenting evidence that demonstrates the relevance and probative value of the evidence, as well as showing that the disclosure of the evidence is necessary in the interests of justice. 5. Challenging the admissibility of evidence: Lawyers should also be prepared to challenge the admissibility of evidence presented by the prosecution if they believe that it does not meet the requirements of section 486.3(3). This could involve arguing that the evidence is irrelevant, lacks probative value, or could violate the complainant's privacy. In terms of strategies that could be employed when dealing with this section of the Criminal Code, lawyers could consider the following: 1. Preparation: Lawyers should ensure that they thoroughly prepare for all aspects of the case, including the admissibility of evidence. This could involve conducting research and consulting with experts to ensure that they have a comprehensive understanding of the relevant laws and procedures. 2. Collaboration: Lawyers may need to collaborate with other legal professionals, such as experts in forensic analysis or digital evidence, to ensure that the evidence they present meets the requirements of section 486.3(3). 3. Diligence: Lawyers should be diligent in their efforts to collect and present evidence, as well as in their efforts to protect the rights of their clients. This could involve conducting thorough investigations and ensuring that all evidence is properly obtained and analyzed. 4. Communication: Lawyers should communicate effectively with their clients and other legal professionals involved in the case to ensure that everyone is on the same page when it comes to the admissibility of evidence. 5. Advocacy: Finally, lawyers should be strong advocates for their clients, arguing forcefully for the admissibility or exclusion of evidence depending on the facts of the case and the requirements of the law. Overall, section 486.3(3) of the Criminal Code of Canada is an important provision that governs the admissibility of evidence obtained from a complainant's private records. Lawyers must take a strategic approach to dealing with this section, carefully considering the relevant factors and preparing evidence that meets the requirements of the law. By doing so, they can help ensure that their clients receive a fair trial and that justice is served.