Criminal Code of Canada - section 261(1.1) - Appeals to Supreme Court of Canada

section 261(1.1)

INTRODUCTION AND BRIEF DESCRIPTION

Only a judge from the court being appealed from can make a direction in the case of an appeal to the Supreme Court of Canada.

SECTION WORDING

261(1.1) In the case of an appeal to the Supreme Court of Canada, the direction referred to in subsection (1) may be made only by a judge of the court being appealed from and not by a judge of the Supreme Court of Canada.

EXPLANATION

Section 261(1.1) of the Criminal Code of Canada pertains to appeals to the Supreme Court of Canada in cases involving sexual assault. Prior to this amendment, a trial judge had the discretion to provide the jury with instructions on how to approach the evidence presented in relation to the complainant's sexual history. However, this direction was often criticized for perpetuating harmful myths and stereotypes about sexual assault victims. To address this issue, section 276 of the Criminal Code was implemented, which restricted the use of a complainant's sexual history as evidence in sexual assault proceedings. Under this provision, if the defence seeks to adduce evidence of the complainant's prior sexual activity, a formal application must be made to the court and the evidence will only be admitted in certain limited circumstances. Section 276 also requires the trial judge to provide specific directions to the jury regarding the use of this evidence. It aims to prevent the use of sexual history evidence that is irrelevant or that could be used to stereotype or prejudice the jury against the complainant. However, appellate courts have sometimes disagreed on what exactly constitutes an appropriate direction. Therefore, section 261(1.1) states that in the case of an appeal to the Supreme Court of Canada, any direction regarding section 276 can only be made by a judge of the court being appealed from and not by a judge of the Supreme Court of Canada. This limitation is intended to prevent inconsistent interpretations of section 276 and promote consistency in its implementation across Canada.

COMMENTARY

Section 261(1.1) of the Criminal Code of Canada restricts the power of the Supreme Court of Canada concerning appeals relating to criminal cases. The section provides that the direction referred to in subsection (1) can only be made by a judge of the court being appealed from and not by a judge of the Supreme Court of Canada. This section imposes certain limitations on the jurisdiction of the Supreme Court of Canada and ensures that the power to make directions regarding criminal cases remains within the appellate court that heard the original case. The purpose of this section is to establish a clear distinction between the roles of the court being appealed from and the Supreme Court of Canada in criminal cases. It seeks to avoid confusion and maintain consistency within the Canadian legal system. The section ensures that the court that heard the original case maintains its authority in directing the outcome of the appeal. This approach is important because it promotes a strong legal system based on the concept of the rule of law. It safeguards the principle of the independence of the judiciary, which functions to make rulings without outside influence or interference. This section has implications for the Canadian justice system and the manner in which appeals are resolved. It emphasizes that the appellate court that heard the original case is best positioned to exercise its discretion and expertise in making decisions about the appeal. This approach is consistent with the idea that judges who have presided over a case are best positioned to make an informed decision, as they have access to relevant facts and are familiar with the intricate details of the case. Furthermore, this section eliminates the possibility of any apprehension of bias or influence when it comes to decisions made in regard to criminal appeals. It ensures that the judge's decision is based on legal principles and the facts of the case. It also safeguards the public's confidence in the judicial system, as decisions made by a judge of the court being appealed from are perceived to be fairer and more impartial. Overall, section 261(1.1) of the Criminal Code of Canada plays a vital role in maintaining the integrity and transparency of the Canadian legal system. It ensures that judges are empowered to make unbiased and informed decisions and that the judicial system functions independently without any outside interference. This approach guarantees that the principles of natural justice, fairness, and the rule of law are adhered to, promoting public confidence and maintaining trust in the Canadian judicial system.

STRATEGY

Section 261(1.1) of the Criminal Code of Canada is a provision that specifies the procedure for making a direction regarding the treatment of a complainant in sexual assault cases. Specifically, it limits the authority of judges of the Supreme Court of Canada to issue directions in sexual assault cases that are on appeal in their court. In this essay, I will discuss the strategic considerations when dealing with this provision and the strategies that could be employed to maximize its effect. One strategic consideration when dealing with section 261(1.1) of the Criminal Code of Canada is to anticipate the possibility of an appeal and prepare accordingly. In most sexual assault cases, the accused may appeal the conviction or sentence to the appellate court. Therefore, a prosecution team should be aware of the section and consider how to present the case in a way that maximizes the chances of a direction being issued under section 261(1). For example, they may present evidence that demonstrates the complainant's vulnerability or potential harm if the case is mishandled. Another strategic consideration is to identify the appropriate judge to make the direction. According to the provision, only a judge of the court being appealed from has the authority to issue a direction in sexual assault cases. Therefore, it is important to identify the judge who will hear the appeal and determine whether they are likely to be sympathetic to the prosecution's position. Factors that may be considered in this regard include the judge's past decisions on sexual assault cases and their attitudes towards victims of sexual assault. A third strategic consideration is to identify the timing and format of the request for a direction under section 261(1). Since the provision only applies to appeals, it is crucial to ensure that the request is made at the appropriate stage of the appeal process. The request should also be made in a clear and concise manner, with supporting evidence and legal arguments. Moreover, given the sensitive nature of the issue, the request should be made in a manner that is respectful to the complainant and the court. Strategies that could be employed to maximize the effect of section 261(1.1) of the Criminal Code of Canada include the following: 1. Emphasize the importance of the provision to the court. This can be done by highlighting the impact of sexual assault on victims and the need to protect their rights and dignity. The provision is a crucial tool in ensuring that the complainant is treated fairly and respectfully throughout the trial and appeal process. 2. Present evidence of the complainant's vulnerability and the potential harm if the case is mishandled. This can include medical or psychological reports, testimony from experts, or evidence of the complainant's past experiences, such as a history of trauma. 3. Use legal arguments to support the request for a direction. This may include citing relevant case law or interpreting the provision in light of its objectives and the broader context of sexual assault law in Canada. 4. Ensure that the complainant is informed and involved in the process. It is important to ensure that the complainant is aware of their rights and is given the opportunity to participate in the proceedings. This may include providing them with legal counsel or support, or allowing them to make submissions to the court. In conclusion, section 261(1.1) of the Criminal Code of Canada is a vital provision that protects the rights and dignity of victims of sexual assault. To maximize its effect, strategic considerations and strategies must be employed to ensure that a judge of the court being appealed from issues the direction. These include anticipating the possibility of an appeal, identifying the appropriate judge, and presenting evidence and legal arguments to support the request. By employing these strategies, the prosecution team can ensure that complainants of sexual assault receive the protection and support they deserve.