Criminal Code of Canada - section 486.3(4.1)

section 486.3(4.1)

INTRODUCTION AND BRIEF DESCRIPTION

Applications for victim impact statements can be made before or during proceedings to the presiding judge or justice.

SECTION WORDING

486.3(4.1) An application referred to in subsection (1), (2) or (4) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.

EXPLANATION

Section 486.3(4.1) of the Criminal Code of Canada outlines the process of making an application for the exclusion of evidence related to a complainant's sexual activity or previous sexual history. This provision allows a party to make an application during the proceedings to the presiding judge or justice, or before the proceedings begin, to the judge or justice who will preside over the case. The purpose of this provision is to enable parties to exclude evidence that has the potential to harm the complainant's reputation or privacy. In particular, the section is intended to address cases where a complainant's sexual history is sought to be introduced as evidence to discredit them or to suggest that they are lying about the allegations. The provision allows either party to bring an application to the judge or justice, who will make a determination as to whether the evidence should be excluded. In making this determination, the judge or justice will consider various factors, including the relevance of the evidence to the case, the probative value of the evidence, and the potential harm to the complainant if the evidence were to be admitted. Overall, Section 486.3(4.1) serves to protect the rights and privacy of complainants in sexual assault cases, while also ensuring that evidence that is relevant and necessary to the trial is admitted. It is an important provision in Canada's Criminal Code, as it helps to ensure that the justice system is fair and equitable for all parties involved.

COMMENTARY

Section 486.3(4.1) of the Criminal Code of Canada discusses the conditions under which an application can be made, during the proceedings or before they begin, to the presiding judge or justice. This provision is important as it grants individuals the right to seek a judge's intervention if they believe that their rights may be infringed upon during a legal proceeding. The section applies to applications made under subsections (1), (2), or (4) of section 486.3 of the Criminal Code of Canada. These subsections relate to the following conditions: - Subsection (1): The victim or witness is afraid to testify in open court because they fear for their safety or that of their family members. - Subsection (2): The victim or witness is unable to testify because of a mental or physical disability. - Subsection (4): The victim or witness is a child or a vulnerable person, and their testimony may be affected by the presence of the accused or the public during the proceedings. An application made under any of these subsections may be brought forward to the presiding judge or justice either during the proceedings or before they begin. This means that the judge or justice may hear and decide on the application before or during the trial. The purpose of this provision is to provide a fair and impartial trial to all parties involved in the legal proceedings. When the victim or witness's safety is at risk, or they are unable to testifying due to a disability or vulnerability, their evidence may be lost to the court without intervention. That may compromise the outcome of a fair trial. The section aims to protect the fundamental rights of the victim or witness. Moreover, this section provides an opportunity for judges to take necessary measures to accommodate and safeguard the rights and interests of the vulnerable party. This may include changing the location of the hearing, allowing the use of alternative technologies and communicating through closed-circuit television to ensure that the proceedings are conducted in a manner that secures the fundamental rights of the vulnerable. Furthermore, Section 486.3(4.1) ensures that judicial remedies are available to victims, witnesses, and vulnerable persons who may have otherwise been denied justice. It is paramount for the efficiency and effectiveness of our justice system that the rights of all parties are preserved and upheld in line with the principles of a fair hearing. In conclusion, Section 486.3(4.1) of the Criminal Code of Canada serves to promote fairness, impartiality, and equal justice for all. The provision is significant for victims, witnesses, persons with disabilities, and the vulnerable in society. It represents a critical component of the criminal justice system, where the rights of vulnerable individuals are often the most vulnerable. By guaranteeing a just and equitable hearing for all, justice can remain the backbone of Canadian society.

STRATEGY

Section 486.3(4.1) of the Criminal Code of Canada provides an opportunity for an accused person to make an application during or before the proceedings begin. This section gives the presiding judge or justice discretionary power to allow such an application. Strategic considerations should be undertaken when making such an application to ensure its success. This essay discusses the strategic considerations that must be taken into account when dealing with this section and the strategies that could be employed. The first strategic consideration is the timing of the application. For applications to be made during the proceedings, the accused must wait until the trial has begun. However, for applications made before the trial begins, the accused must be proactive and make the application before the proceedings start. This timing consideration is important because the accused may forfeit their right to make such an application if they do not launch them before the proceedings begin, as the rules of procedure strictly limit such applications. Therefore, the accused needs to know the right timing when making applications to ensure its success. The second strategic consideration is the type of application to be made. According to Section 486.3(4.1), an application can be made under subsections (1), (2), or (4) of the criminal code. Subsection (1) allows for the exclusion of the public or disclosing information that could identify the complainant or a witness. Subsection (2) allows for a video or audio recording of the complainant's testimony on an earlier occasion. Subsection (4) allows for cross-examination in a different manner or with different safeguards to protect the accused. Depending on the situation, the accused needs to choose carefully the application that aligns with their defense strategy and will give them the best possible outcome. The third strategic consideration is the persuasive power of the accused. Making an application to the presiding judge or justice requires a strong connection between the accused and their claim. It is essential to tell their story and convince the judge or justice about the significance and validity of the application. This requires careful preparation, research, and organization on the part of the accused so that they can present a compelling and sound argument that supports their request. Fourth, the accused needs to be aware of case law that affects this section. It is useful to research previous cases where such applications have been made. Understanding how presiding judges and justices have ruled in other cases may help the accused present more effective arguments and avoid pitfalls that have led to the failure of similar applications in the past. Fifth, an important strategic consideration is cooperation with counsel. The accused should ensure that their lawyer understands their application and supports their strategic decision. A lawyer can be a valuable asset in the application because they have experience presenting applications before the court and can provide guidance on what strategies will be successful. Lastly, the accused should consider the body language and comportment during the application process. Good communication involves more than words; it incorporates all behaviors that can affect the audience's interpretation of the message. A defendant who is calm and confident and provides relevant information is more likely to convince the court than someone who is agitated or appears unsure about their application. In conclusion, Section 486.3(4.1) of the Criminal Code of Canada provides for the potential exclusion of the public, the recording of testimony, or a different form of cross-examination. When making an application, strategic considerations are essential. The timing of the application, the type of application to be made, the persuasive power of the accused, case law, cooperation with counsel, and the accused's demeanor are essential. Employing these strategies can help the accused obtain the best possible outcome.