section 258(6)

INTRODUCTION AND BRIEF DESCRIPTION

A party can request to cross-examine a medical practitioner or analyst if a certificate is produced against them with leave from the court.

SECTION WORDING

258(6) A party against whom a certificate described in paragraph (1)(e), (f), (f.1), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

EXPLANATION

Section 258(6) of the Criminal Code of Canada pertains to cases where a certificate from a qualified medical practitioner, analyst, or technician is presented in court as evidence. This certificate can be related to a number of things such as an accused's drug or alcohol level, or their physical or mental state at the time of an offence. If such a certificate is presented to the court, the opposing party has the right to request cross-examination of the individual who authored the certificate. This means that the accused or their lawyers may question the credibility and accuracy of the certificate through examination of the author in court. However, this can only be done with the permission of the court. This section is designed to ensure that evidence presented in court is credible and reliable. It is important that the opposing party is able to contest the validity of such certificates if they feel that it is necessary for a fair trial. This section also ensures that the qualified medical practitioner, analyst, or technician who authored the certificate remains accountable for their evidence and are held to professional standards. Overall, section 258(6) of the Criminal Code of Canada ensures that the evidentiary process is transparent and fair by allowing for cross-examination of expert witnesses in court.

COMMENTARY

Section 258(6) of the Criminal Code of Canada grants the right to cross-examination to the parties against whom the certificate described in paragraph (1)(e), (f), (f.1), (g), (h), or (i) is produced. This provision is a fundamental aspect of the Canadian legal system as it pertains to the safeguarding of an individual's interests, fairness in trials and the discovery of the truth of facts. This commentary will discuss the importance of cross-examination as a vital part of the Canadian legal system and how Section 258(6) of the Criminal Code of Canada contributes to it. Cross-examination is the process by which the opposing party or their counsel addresses and challenges the testimony of a witness. It is an opportunity to test the credibility, truthfulness, and accuracy of evidence and to expose inconsistencies, biases, and weaknesses in the witness's account. Cross-examination can substantially impact the course and outcome of a trial, as it is where the parties' arguments are vigorously tested. In the context of Section 258(6), the evidence in question are the certificates produced by qualified medical practitioners, analysts, or qualified technicians. These certificates are relied upon in criminal cases to establish the presence of drugs or alcohol in an individual's body and their impairment level, among other things. These pieces of evidence can considerably influence the outcome of a trial, and it is essential that they are subjected to scrutiny to ensure their accuracy and reliability. In line with the principle of natural justice, the right of cross-examination of the evidence presented against one's interest is a fundamental right of the accused. This principle is rooted in ensuring fairness in trials, and the truth is not obscured by legal procedures. Section 258(6) gives this right to the party against whom a certificate is produced, providing an opportunity to challenge the admissibility or validity of the certificate's findings by cross-examining the person who produced the certificate. It is crucial to note that the provision does not automatically grant the accused the right to cross-examine the expert witness; it requires leave of the court. This requirement is a safeguard against abuse by an accused who may seek to challenge the certificate's validity without any valid reason. The court reviews the request for cross-examination and ensures that it is necessary and justifiable before granting the request. Section 258(6) strikes a balance between the accused's right to a fair trial and efficiency in trial proceedings. Without the provision, a certificate's findings may go unchallenged, and an accused may be unfairly prejudiced. On the other hand, allowing an accused to cross-examine every witness may lead to delay, waste of the court's resources, and impede the effective administration of justice. Moreover, the provision serves as a check to the reliability of expert evidence. Expert witnesses may make errors or have biases that may affect their findings. Cross-examination affords the accused the opportunity to investigate and challenge the expert's qualifications, methodology, and conclusions. In conclusion, Section 258(6) of the Criminal Code of Canada is an important provision that upholds the right to a fair trial, promotes the discovery of the truth, and ensures that expert evidence relied upon in criminal cases is reliable. Cross-examination acts as a check on the validity of expert evidence, and allowing the opposing party to challenge the evidence is a vital aspect of the Canadian legal system. The provision ensures a balance is achieved between the parties' right to a fair trial and efficiency in the trial process. The provision must remain intact, and its importance must be continually emphasized.

STRATEGY

Section 258(6) of the Criminal Code of Canada grants a party against whom a certificate described in paragraph (1)(e), (f), (f.1), (g), (h) or (i) is produced the right to require the attendance of the qualified medical practitioner, analyst, or qualified technician for the purposes of cross-examination with the leave of the court. While this section is essential in ensuring the fairness of criminal trials where certificates of analysis or medical reports are produced, it also requires careful strategizing by both the prosecution and defense. One of the main strategic considerations when dealing with this section is timing. The party wishing to cross-examine the qualified medical practitioner, analyst, or technician must make a request for leave of the court to do so. This request could be made at various stages of the trial, such as before or after the trial commences. The timing of the request could have an impact on the trial's overall strategy, and the party may need to consider factors such as the availability of witnesses, the impact on the trial's timeline, and the possibility of weakening the credibility of the other party's evidence. Another consideration is the practicality of cross-examining the qualified medical practitioner, analyst, or technician. There may be practical limitations to the cross-examination process, such as the cost of bringing in an expert witness and the availability of facilities to accommodate the witness. The party may also need to consider whether the testimony of the expert is essential to its case, or whether it would only be marginally useful. The party against whom the certificate was produced may also consider alternative strategies, such as challenging the admissibility of the certificate itself. This may be a more cost-effective and efficient way to challenge the evidence, especially if the other party's case is heavily reliant on the certificate. However, if the party decides to seek leave of the court to cross-examine the expert witness, there are several strategies that could be employed. For example, the party may wish to limit the scope of the cross-examination to specific areas of the report or analysis that they wish to challenge. They may also seek to undermine the credibility of the expert by establishing inconsistencies or errors in their report or credentials. The party may also consider collaboration with their own expert witness to strengthen their own case. In some instances, the party may be able to use their expert to challenge the other side's expert, or to provide alternative explanations for the results produced by the analysis or medical report. In conclusion, Section 258(6) of the Criminal Code of Canada serves an important function in ensuring the fairness of criminal trials. Parties must consider various strategic considerations when dealing with this section, including timing, practicality, and alternative strategies such as challenging admissibility. If a party wishes to seek leave of the court to cross-examine the expert witness, several strategies could be employed, such as limiting the scope of cross-examination, establishing inconsistencies or errors, and collaborating with their own expert witness.