Criminal Code of Canada - section 753.02 - Victim evidence

section 753.02

INTRODUCTION AND BRIEF DESCRIPTION

Any evidence given by a victim during an application for sentence reduction by offender is deemed to be given during any hearing held for the offender.

SECTION WORDING

753.02 Any evidence given during the hearing of an application made under subsection 753(1) by a victim of an offence for which the offender was convicted is deemed also to have been given during any hearing held with respect to the offender under paragraph 753(5)(a) or subsection 753.01(5) or (6).

EXPLANATION

Section 753.02 establishes a provision in the Criminal Code of Canada that governs the use of evidence provided by victims during hearings related to the sentencing of offenders who have been convicted of crimes. Specifically, this section states that any evidence given by a victim during an application made under subsection 753(1) (which relates to applications by victims for restitution, compensation, or other measures) will also be considered during any subsequent hearing relating to the offender's sentence, according to paragraph 753(5)(a) or subsection 753.01(5) or (6). The purpose of Section 753.02 is to ensure that the victim's voice is heard throughout the legal process, particularly during sentencing hearings where the offender's punishment is determined. It recognizes the important role that victims play in criminal proceedings, and aims to provide them with a significant measure of agency in the outcome of the case. It is worth noting that the section applies only to evidence given by victims during the application process - in other words, it does not apply to all evidence given by victims in relation to a case. Nevertheless, it is an important protection for victims, as it ensures that any information they provide with respect to their experiences and the impact of the crime is taken into account when sentencing decisions are made. By allowing victim testimony to be used in future hearings, Section 753.02 helps to ensure that the Canadian justice system is sensitive to the needs of victims and respectful of their rights and interests.

COMMENTARY

Section 753.02 of the Criminal Code of Canada emphasizes the importance of the victim's voice and their experiences in the overall process of justice. The section states that any evidence given by a victim during the hearing of an application made under subsection 753(1) is deemed to have been given during any hearing held with respect to the offender under paragraph 753(5)(a) or subsection 753.01(5) or (6). This section signifies the fundamental concept of victim participation in the criminal justice system. It reflects the idea that the victim's experience is valuable in sentencing and has the potential to impact the offender's rehabilitation as well. This provision not only gives a platform to the victim to express their grievances but also assists in providing additional evidence in favour of the offender's sentence. For example, a victim's perspective can help the court understand the emotional or psychological harm caused by the offender's actions and the extent to which they have affected the victim's life. Furthermore, this provision serves a practical purpose by minimizing the repetition of the victim's testimony. In criminal proceedings, the victim may have to testify in different hearings, including the offender's sentencing. The repeated retelling of their victimization can be retraumatizing and emotionally draining. Therefore, this provision ensures that the victim's testimony is considered across various proceedings, without them having to repeat their experiences. However, this provision has critics. Some argue that this provision reinforces the idea of the victim as a mere witness- rather than as a person who is entitled to rights as well. The victim's voice is often limited to giving evidence; they are not generally considered as fully participating in the trial. Critics assert that section 753.02, by deeming the evidence given during an application to have been given during any hearing, does not provide the victim with adequate space and rights in the process of justice. Still, this provision reminds us that the criminal justice system should consider the victim's experiences alongside those of the offender. It reflects the values of restorative justice, which acknowledges the offender's accountability and takes into account the harm caused to the victim in determining an appropriate sentence. It reinforces the government's commitment to recognizing the rights of victims and ensuring their adequate participation in the criminal proceedings. In conclusion, section 753.02 of the Criminal Code of Canada emphasizes the importance of the victim's testimony in criminal proceedings, ensuring that their voices are appropriately heard and considered. It is a recognition of the victim's place in the process of justice as a necessary element for the determination of the offender's sentence. However, as with any provision, the implementation of the section should be monitored, and revisions should be made as required to ensure its effectiveness.

STRATEGY

Section 753.02 of the Criminal Code of Canada pertains to the use of evidence provided during the hearing of an application made by a victim of an offence for which the offender was convicted. The section stipulates that such evidence will be deemed to be given during any hearing held with respect to the offender under paragraph 753(5)(a), subsection 753.01(5), or (6). Essentially, this means that the evidence can be used in later proceedings involving the offender. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that need to be taken into account. These include: 1. Ensuring that the evidence is admissible Before any evidence given during the hearing of an application can be used in a subsequent hearing involving the offender, it must be admissible. This means that the victim's evidence must meet the admissibility criteria set out in the Criminal Code of Canada. For example, it must be relevant to the issue at hand and not be hearsay. If the evidence is inadmissible, it cannot be used in later proceedings. 2. Protecting the interests of the victim Section 753.02 is designed to protect the interests of victims of crime. As such, any strategies employed must take into account the victim's needs. For example, victims may need support during the hearing process, and strategies must be put in place to ensure that they receive adequate support. Additionally, the victim may wish to make a victim impact statement at the later hearing, and strategies should be employed to ensure that this is possible. 3. Ensuring that the offender's rights are not violated While section 753.02 is designed to benefit victims, it must also be balanced against the offender's rights. Strategies employed must ensure that the offender's rights are not violated. For example, any evidence used in later proceedings must be relevant and must not unfairly prejudice the offender. Additionally, the offender must be given a fair opportunity to contest the evidence. 4. Considering the impact on the later hearing Any evidence given during the hearing of an application may have a significant impact on later proceedings involving the offender. Strategies employed must take into account the potential impact of the evidence and ensure that it is used appropriately. For example, the evidence may be used to support a particular sentence or to demonstrate the offender's likelihood of reoffending. Some strategies that could be employed when dealing with section 753.02 include: 1. Ensuring that the victim's evidence is well-documented To ensure that the evidence is admissible and can be used in later proceedings, it is important to ensure that it is well-documented. This could involve recording the victim's testimony, ensuring that any written evidence is properly authenticated, and collecting any relevant physical evidence. 2. Providing support to the victim Victims may need support during the hearing process. Strategies could include providing the victim with a support person, offering counselling services, and keeping the victim informed of any developments in the case. 3. Balancing the interests of the victim and the offender Strategies must be employed to balance the interests of the victim and the offender. This could involve ensuring that the offender is given a fair opportunity to contest the evidence and that any evidence used is relevant and does not unfairly prejudice the offender. 4. Preparing for the later hearing Strategies must be employed to ensure that the evidence is presented effectively during the later hearing. This could involve preparing a summary of the evidence, ensuring that any physical evidence is properly stored and documented, and preparing witnesses to testify if necessary. In conclusion, section 753.02 of the Criminal Code of Canada provides a valuable tool for prosecutors and victims seeking to hold offenders accountable for their actions. However, strategic considerations must be taken into account to ensure that the evidence is admissible and that the interests of all parties are balanced. Employing appropriate strategies can help to ensure that justice is served in a fair and effective manner.