Criminal Code of Canada - section 486.4(2) - Mandatory order on application

section 486.4(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section requires judges to inform witnesses under 18 and complainants of their right to apply for an order in proceedings related to certain offences, and to make the order if requested.

SECTION WORDING

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (b) on application made by the complainant, the prosecutor or any such witness, make the order.

EXPLANATION

Section 486.4(2) of the Criminal Code of Canada is a legal provision that outlines the duty of a judge or justice presiding over a criminal proceeding involving offences against a person to inform any witness under the age of eighteen years and the complainant of the right to make an application for an order to protect their identity. This provision is particularly important in cases that involve vulnerable witnesses or complainants, such as children or victims of sexual assault or domestic violence. These individuals may fear retaliation or stigma associated with their involvement in a criminal proceeding, and may be hesitant to come forward and testify. The ability to apply for an order to protect their identity can offer some measure of protection and reassurance to these individuals, allowing them to participate in the criminal justice process without fear of reprisal. Under this provision, the presiding judge or justice must inform the witness or complainant of their right to seek such an order at the first reasonable opportunity. This may occur during initial proceedings, or at any stage of the legal process. If an application for an order is made by the complainant, the prosecutor, or the witness, the judge or justice must consider the application and may issue the order accordingly. An order made under this provision may include provisions such as a publication ban on the identity of the witness or complainant, or restrictions on access to their personal information. Such orders are designed to protect the privacy and safety of these individuals, while still allowing them to participate in the criminal justice process. Overall, the purpose of Section 486.4(2) is to ensure that vulnerable witnesses and complainants are given the necessary protections to enable them to participate in criminal proceedings. By informing these individuals of their right to seek an order to protect their identity, the Criminal Code of Canada aims to promote a fair and just legal process that is accessible to all.

COMMENTARY

Section 486.4(2) of the Criminal Code of Canada is an important provision in the legal framework aimed at protecting the interests of children and other vulnerable individuals. The section requires that in proceedings related to offences involving sexual assault or abuse of an individual under the age of 18, the presiding judge or justice must inform the witness or complainant of their right to apply for an order limiting publication of their identity. The purpose of this provision is to protect the privacy and dignity of children and other vulnerable individuals who have been victimized by sexual offences. For many victims, the experience of sexual abuse or assault can be traumatic and life-changing. In some cases, public disclosure of their identities can prolong their suffering and jeopardize their safety. The order limiting publication of a victim's identity can be applied for by the complainant, the prosecutor, or any witness under the age of 18 years. This order is intended to prevent the publication of any identifying information about the victim, including their name, image, or any other identifying details that may lead to their identification. It is important to note that this provision does not prevent the use of a victim's identity in court proceedings or in the media. Rather, it restricts the publication of identifying information about the victim outside of the courtroom. This is done to protect the privacy and dignity of the victim, while at the same time ensuring that justice is served in a fair and transparent manner. The protection of the identity of victims of sexual assault or abuse is a key component of Canada's legal framework for addressing sexual offences. By limiting the publication of identifying information about victims, this provision helps to ensure that victims are not further victimized by the legal process. It also serves to encourage victims to come forward and report instances of sexual abuse or assault, knowing that they will be protected from public scrutiny and harm. In conclusion, section 486.4(2) of the Criminal Code of Canada is a vital provision that helps to protect the privacy and dignity of victims of sexual offences. By informing witnesses and complainants of their right to apply for an order limiting publication of their identity, this provision helps to ensure that Canada's legal system is fair and just for all. It is an important step in addressing the devastating impact of sexual assault and abuse on individuals and on society as a whole.

STRATEGY

Section 486.4(2) of the Criminal Code of Canada is a very important provision for those who are involved in criminal proceedings in which witnesses under the age of eighteen years are called to testify. This section requires the presiding judge or justice to inform any witness under the age of eighteen years and the complainant of their right to make an application for an order that would protect the witness's identity. There are several strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada. One of the first considerations is making sure that clients understand the importance of this provision and how it can be used to protect their interests. Clients may not always be aware of their rights or the benefits of using this provision, so legal counsel should inform them of the benefits of making an application for an order. The timing of making an application for an order under Section 486.4(2) can also be an important strategic consideration. It is best to make the application as soon as possible, ideally at the first reasonable opportunity. This will ensure that the witness's identity is protected from the outset of the proceedings, which can be particularly important in cases where there is a risk of intimidation or retaliation against the witness. Another strategic consideration is the process of making the application for an order under Section 486.4(2). This can be a complex process, and it is important to have legal counsel who can assist in this process, as well as address any issues that may arise during the application process. Counsel should also ensure that the application is made in a timely and efficient manner to avoid delays or other complications. In addition to these considerations, there are several strategies that can be employed when dealing with Section 486.4(2) of the Criminal Code of Canada. One strategy is to gather evidence to support the application for an order. This may include evidence of intimidation or retaliation, as well as evidence relating to the age or vulnerability of the witness. Another strategy is to work closely with the prosecutor when making the application for an order. Prosecutors can be an important ally in this process, as they can help to ensure that the application is made in a timely and efficient manner, and can also help to provide evidence to support the application. Finally, it is important to remain vigilant throughout the proceedings to ensure that the witness's identity is protected. This may involve taking steps to ensure that the witness is not identified in the media, as well as taking measures to prevent unauthorized disclosure of the witness's identity. In conclusion, Section 486.4(2) of the Criminal Code of Canada is a very important provision for those involved in criminal proceedings in which witnesses under the age of eighteen years are called to testify. Legal counsel and their clients should take strategic considerations into account when dealing with this provision, and employ various strategies to ensure that the witness's identity is protected throughout the proceedings.