section 486.5(5)

INTRODUCTION AND BRIEF DESCRIPTION

Applicants for an order must provide grounds for the necessity of the order for proper administration of justice.

SECTION WORDING

486.5(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

EXPLANATION

Section 486.5(5) of the Criminal Code of Canada sets out a requirement for applicants seeking a court order to provide a detailed explanation of the reasons the order is necessary for the proper administration of justice. The provision applies to individuals, organizations or authorities who are applying to the court for an order, such as an order for a publication ban on a trial or an order for the victim to testify behind a screen. The purpose of this provision is to ensure that orders are not granted without justification and that the court has the information necessary to make an informed decision. The applicant must identify the specific grounds upon which they are relying to demonstrate that the order is necessary for the proper administration of justice. These grounds may include privacy concerns, protection of witnesses, or safeguarding the integrity of the legal system. The requirement to provide specific grounds for the application helps to balance the need for protection of public interests, such as the proper administration of justice, against individual rights, such as freedom of expression. It also helps to prevent frivolous or unwarranted applications for orders that may infringe on the rights of other parties. Overall, section 486.5(5) plays a crucial role in ensuring that orders are granted only when there is a clear and compelling reason to do so, thereby protecting the fairness and integrity of the criminal justice system in Canada.

COMMENTARY

Section 486.5(5) of the Criminal Code of Canada outlines the procedure that an applicant for an order must follow to establish that the order is necessary for the proper administration of justice. This provision imposes an obligation upon the applicant to justify the granting of the order by referring to the relevant grounds that support the request. The purpose of requiring an applicant to set out the grounds on which they rely is to ensure that the court makes an informed and objective decision on whether to grant the order. This provision helps to maintain the proper balance between the interests of the parties involved and the public interest in the administration of justice. The grounds presented by the applicant must be compelling enough to convince the court that the order is necessary for the proper administration of justice. The meaning of 'proper administration of justice' is not defined in the Criminal Code, but it generally refers to the fundamental principles and values that underpin the criminal justice system, such as fairness, impartiality, the protection of rights, and the promotion of public safety. The proper administration of justice is the overarching objective that guides all stages of the criminal justice process, from police investigations to sentencing. The grounds that the applicant relies on must be related to the specific order being sought, which could be, for example, a publication ban, a victim impact statement, or a search warrant. The grounds should explain why the order is necessary to promote the proper administration of justice and how the order will achieve that objective. The applicant should also consider alternative measures that would achieve the same objective, as the court may refuse to grant an order if it is not the least intrusive means available. Courts have held that the grounds presented by an applicant must be based on evidence rather than mere conjecture or speculation. The applicant should provide specific and detailed reasons that support the request for the order, and where possible, supplement the submission with corroborating evidence. If the grounds are weak or unsubstantiated, the court may deny the application. Section 486.5(5) is an important provision that reflects the Canadian values of fairness, transparency, and accountability in the administration of justice. It ensures that applicants for orders must provide a reasoned and evidence-based submission to justify their request, which helps to prevent the arbitrary use of orders and promotes the public confidence in the justice system.

STRATEGY

Section 486.5(5) of the Criminal Code of Canada states the requirement for an applicant seeking a court order to demonstrate that the order is necessary for the proper administration of justice. This provision is critical in cases where the state seeks to compel an individual to give testimony or provide evidence that might incriminate them. There are several strategic considerations when dealing with this section of the Criminal Code of Canada. One of the first considerations is to identify the specific grounds on which the order can be justified. This requires the applicant to analyze the facts of the case and determine how the order will serve the interests of justice. The applicant should also consider whether the order is necessary given the circumstances of the case and whether there are any less intrusive means of obtaining the evidence sought. Another consideration is the timing of the application for the order. The applicant must make the application at the appropriate stage of the proceedings. For instance, an application for a production order might be more appropriate during the pre-investigation stage, while an application for a search warrant might be more appropriate during the trial stage. In addition to these considerations, the applicant must also address any potential legal challenges that might be raised by the respondent. For example, the respondent might argue that the order violates their Charter rights. To address these challenges, the applicant must carefully craft the order so that it is narrowly tailored to meet the requirements of the case and does not infringe on the respondent's rights any more than necessary. Strategies that could be employed when dealing with this section of the Criminal Code of Canada include gathering as much evidence as possible to support the application, ensuring that the evidence is admissible, and presenting the evidence in a persuasive and compelling manner. The applicant might also choose to engage in plea bargaining with the respondent to obtain their cooperation. Another strategy is to involve the court in the process by requesting a pre-application conference. This conference allows the court to provide guidance and direction regarding the application, which can improve the chances of success. In conclusion, section 486.5(5) of the Criminal Code of Canada sets out strict requirements that must be met for an applicant to obtain an order for the proper administration of justice. These requirements must be carefully considered and addressed when making the application. Employing strategic considerations and strategies can improve the chances of success in obtaining the order.