section 486.3(4)

INTRODUCTION AND BRIEF DESCRIPTION

The accused is not allowed to personally cross-examine the victim in proceedings for an offence under section 264 unless the judge deems it necessary.

SECTION WORDING

486.3(4) In any proceedings in respect of an offence under section 264, on application of the prosecutor or the victim of the offence, the accused shall not personally cross-examine the victim 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(4) of the Criminal Code of Canada imposes a restriction on the accused's ability to personally cross-examine the victim in proceedings related to an offence under section 264. This section is designed to protect the victim from potential mistreatment and reduce the likelihood of experiencing further trauma. The section enables the prosecutor or victim of the offence to make an application to the judge or justice presiding over the case, requesting that the accused not conduct their own cross-examination of the victim. The judge or justice must then assess whether allowing the accused to do so would interfere with the proper administration of justice. If the judge or justice determines that the accused's personal cross-examination would undermine the integrity of the court proceedings, they can appoint legal counsel to conduct the cross-examination on the accused's behalf. This allows for a fair trial while still providing protection to the victim. The protection of vulnerable parties in court proceedings is paramount; section 486.3(4) of the Criminal Code of Canada reflects this. It ensures that victims are not subjected to further trauma or mistreatment during cross-examination and reinforces the criminal justice system's commitment to fairness and impartiality.

COMMENTARY

Section 486.3(4) of the Criminal Code of Canada is aimed at protecting victims of domestic violence from further trauma during the court process. The section allows the prosecutor or victim of the offence to apply for an order that prevents the accused from personally cross-examining the victim in court. The judge or justice can only allow personal cross-examination by the accused if it is deemed necessary for the proper administration of justice. If the accused is not allowed to personally conduct the cross-examination, the judge or justice is obligated to appoint counsel for the accused to conduct the cross-examination. The section recognizes the potential harm that can be caused to victims of domestic violence who are subjected to cross-examination by their abusers. The experience can be traumatic and re-traumatizing, causing further emotional and psychological harm. The section is designed to ensure that victims of domestic violence are protected from such harm and are allowed to provide their testimony without fear of being re-victimized. The importance of this section is highlighted by the prevalence of domestic violence in Canada. Domestic violence is a serious problem in Canada, with one woman being killed by her spouse or partner every six days. Many more women and children experience physical, emotional, and psychological abuse on a daily basis. It is crucial that the justice system recognizes the unique needs and vulnerabilities of victims of domestic violence and provides them with the necessary protections and support. The section is not without controversy, as some argue that it violates the rights of the accused to a fair trial. The right to cross-examine witnesses is a fundamental tenet of the Canadian justice system and is an important tool for ensuring a fair trial. However, in cases of domestic violence, where the abuser may use the court process as a means to further intimidate and harm the victim, the protection of the victim's rights and safety must be given priority. The section also highlights the importance of legal representation for the accused. The judge or justice must appoint counsel for the accused if they are not allowed to personally conduct the cross-examination. This ensures that the accused is not prejudiced by the inability to cross-examine the victim and is able to make full answer and defense to the charges against them. It also provides a safeguard against the potential for miscarriages of justice. In conclusion, Section 486.3(4) of the Criminal Code of Canada is an important provision aimed at protecting victims of domestic violence during court proceedings. It recognizes the potential harm that can be caused by allowing an abuser to personally cross-examine their victim and provides necessary safeguards against this harm. While some may argue that it violates the accused's right to a fair trial, the protection of the victim's safety and rights must be given priority. The provision is an important step towards ensuring that victims of domestic violence are provided with the necessary protections and support from the justice system.

STRATEGY

Section 486.3(4) of the Criminal Code of Canada is a provision aimed at protecting victims of domestic and sexual violence from further traumatization during court proceedings. Specifically, this section limits the ability of an accused person to personally cross-examine the victim in cases where the victim is alleging an offence under section 264 of the Criminal Code. This provision is in line with the broader trend towards recognizing the impact of trauma on victims of violence and the importance of ensuring they are not re-victimized in the course of seeking justice. From a strategic perspective, there are several key considerations when dealing with section 486.3(4) of the Criminal Code. First, it is important to understand the scope and limitations of this provision. Specifically, it only applies in cases where the victim is alleging an offence under section 264 of the Criminal Code, which primarily deals with domestic violence. This means that if the offence does not fall under this section, the accused may still be able to cross-examine the victim personally. Second, it is important to understand the role of the judge or justice in determining whether the accused will be allowed to personally cross-examine the victim. The provision states that the accused shall not personally cross-examine the victim unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. This gives the judge or justice significant discretion in deciding whether to allow the accused to cross-examine the victim, which can have significant implications for the trial. Third, it is important to consider the potential impact of the provision on the accused's ability to mount a defence. The provision states that if the accused is not allowed to personally conduct the cross-examination, the judge or justice shall appoint counsel to do so. This means that the accused may be prevented from directly challenging the victim's testimony, which could make it more difficult to challenge their credibility or present an alternative narrative of events. In light of these considerations, there are several strategies that could be employed when dealing with section 486.3(4) of the Criminal Code. One strategy could be to argue that the provision does not apply in the particular case at hand, either because the offence does not fall under section 264 of the Criminal Code or because the accused has a legitimate reason for personally cross-examining the victim. For example, the accused may argue that they have evidence that contradicts the victim's testimony and that they need to personally cross-examine them in order to present this evidence. Another strategy could be to focus on persuading the judge or justice that the accused's right to a fair trial requires them to personally cross-examine the victim. This could include presenting evidence that challenges the credibility of the victim, such as prior inconsistent statements or evidence that suggests they have a motive to lie. It could also involve arguing that the accused has a fundamental right to confront their accuser and challenge their testimony directly. A third strategy could be to work with appointed counsel to ensure that they have the resources and support they need to conduct an effective cross-examination. This could include providing them with access to relevant evidence, educating them on key issues in the case, and ensuring that they have the necessary time and resources to prepare. Overall, section 486.3(4) of the Criminal Code presents both challenges and opportunities for those involved in criminal proceedings. By understanding the scope and limitations of this provision and developing effective strategies for dealing with it, advocates can work to ensure that victims of violence are protected while also protecting the accused's right to a fair trial.