INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the process for an accused person to apply for a hearing to determine the admissibility of certain evidence.
SECTION WORDING
276.1(1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2). Form and content of application (2) An application referred to in subsection (1) must be made in writing and set out (a) detailed particulars of the evidence that the accused seeks to adduce, and (b) the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.
EXPLANATION
Section 276.1(1) of the Criminal Code of Canada provides the accused with the right to apply for a hearing under section 276.2 in order to determine whether evidence is admissible under subsection 276(2). The application must be made in writing and include detailed particulars of the evidence that the accused seeks to adduce, as well as the relevance of that evidence to an issue at trial. The application must also be given to the prosecutor and clerk of the court. This section is designed to ensure that the accused has the opportunity to challenge the admissibility of certain evidence in a trial. Subsection 276(2) specifies that evidence relating to the sexual activity or prior sexual history of the complainant is generally inadmissible unless it meets certain criteria. This includes establishing that the evidence is relevant to an issue in the case and that its probative value outweighs its prejudicial effect. The application process under section 276.1(1) allows the accused to argue that their proposed evidence meets these criteria and should be allowed in the trial. This serves as a safeguard against unfairly prejudicing the complainant or violating their privacy rights. It also ensures that the trial process is fair for both parties and that only relevant and reliable evidence is considered by the court. In summary, section 276.1(1) is an important part of the Criminal Code of Canada that supports judicial fairness and the protection of individual rights in sexual offence cases. It empowers the accused to challenge the admissibility of evidence related to the sexual activity or history of the complainant and promotes the use of only relevant and admissible evidence in criminal proceedings.
COMMENTARY
Section 276.1(1) of the Criminal Code of Canada deals with the admissibility of certain evidence in sexual assault trials. The section provides a mechanism for accused individuals to make an application to the judge, provincial court judge or justice to determine whether disputed evidence is admissible under subsection 276(2) of the Criminal Code. The purpose of this provision is to ensure that only relevant and reliable evidence is considered in sexual assault trials, and to protect the privacy and dignity of victims. The admissibility of evidence in sexual assault trials has been a contentious issue in Canadian law for many years. In the past, sexual assault victims were often subjected to extensive cross-examination about their sexual history and behaviour, which had little or no relevance to the case at hand. This not only violated the victim's rights to privacy and dignity, but also resulted in a biased and unfair trial. In response to these concerns, section 276 of the Criminal Code was introduced in 1992, which established a new regime for dealing with evidence of sexual history or behaviour in sexual assault cases. Section 276.1(1) is part of this new regime, and provides a process for accused individuals to challenge the admissibility of evidence that is controversial or potentially prejudicial. The accused must make an application in writing, which includes detailed particulars of the evidence they seek to introduce and its relevance to the case. The prosecutor and the clerk of the court must be given a copy of the application. Once the application is made, a hearing is held under section 276.2 of the Criminal Code to determine the admissibility of the evidence. This hearing is conducted by the judge, provincial court judge or justice, and the parties are allowed to make representations and present evidence. The judge must consider several factors in determining admissibility, including the probative value of the evidence, its prejudicial effect, and whether its admission would infringe on the victim's privacy or dignity. The purpose of this regime is to strike a balance between the rights of the accused and the rights of the victim. The accused is entitled to a fair trial, which includes the right to present relevant and reliable evidence. However, this right must be balanced against the victim's right to privacy and dignity, as well as the need to ensure a fair trial for the victim. Section 276.1(1) has been a controversial provision in Canadian law since its inception. Some have argued that it places too much emphasis on the victim's rights, and makes it difficult for accused individuals to defend themselves against false allegations. Others have argued that it does not go far enough to protect victims, and that sexual history and behaviour should never be admissible in sexual assault trials. Despite the controversy, section 276.1(1) remains an important part of the Criminal Code of Canada. It is a reflection of the ongoing efforts to balance the rights of the accused and the rights of victims in sexual assault trials, and to ensure that only relevant and reliable evidence is considered. By providing a clear process for accused individuals to challenge the admissibility of evidence, it helps to promote fairness and justice in Canadian law.
STRATEGY
Section 276.1(1) of the Criminal Code of Canada deals with applications to determine the admissibility of evidence related to the past sexual history of a complainant in a trial. This section has been the subject of much debate, controversy, and criticism over the years due to concerns about the treatment of victims of sexual assault, the potential for bias, and the impact on the fairness of trials. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations that accused persons and their counsel should take into account. Some of these include: 1. The importance of careful and detailed preparation: Given the complexity and sensitivity of the issues involved, it is essential to approach applications under section 276.1(1) with care and attention to detail. This involves a thorough review of the relevant legal and factual issues, as well as a careful consideration of the best arguments and evidence that can be presented to support the application. 2. The need to balance the interests of the accused and the complainant: While the right to a fair trial is an important consideration, it must be balanced against the dignity and rights of complainants, who often suffer significant trauma and harm as a result of sexual assault. Counsel must be careful to avoid any actions or strategies that could be seen as unfairly attacking the complainant or undermining their credibility. 3. The importance of expert testimony: Applications under section 276.1(1) often involve complex legal and psychological issues related to sexual assault and victimization. It may be necessary to retain expert witnesses who can provide evidence and testimony on these issues in order to support the application. 4. The potential for negative publicity and public opinion: Given the high-profile nature of sexual assault cases and the ongoing debate surrounding section 276.1(1), there is the potential for negative publicity and public scrutiny. Counsel must be prepared to handle media inquiries and public relations concerns, while also ensuring that the interests of the accused are protected. 5. The importance of staying up-to-date with legal developments: The interpretation and application of section 276.1(1) has evolved over the years, and there have been important legal decisions that have clarified or expanded upon its provisions. Counsel should stay engaged with developments in this area of law to ensure that they are up-to-date and can make the most effective arguments for their client. In terms of specific strategies that could be employed, some of the most important include: 1. Making a strong case for the relevance of the evidence: To be admissible under section 276.1(1), evidence related to the past sexual history of a complainant must be shown to be relevant to an issue at trial. Counsel should be prepared to make a persuasive and detailed argument for why the evidence is relevant, and must be careful to avoid relying on generalizations or stereotypes about sexual assault. 2. Demonstrating the probative value of the evidence: Similarly, evidence related to the past sexual history of a complainant must also be shown to have probative value - that is, to be of some actual use in determining the facts of the case. Counsel should be prepared to demonstrate how the evidence can help to establish or refute a key issue in the trial. 3. Minimizing the potential impact on the complainant: When presenting evidence related to the past sexual history of a complainant, counsel should be careful to minimize any potential harm or distress to the complainant. This might involve presenting evidence in a sensitive and respectful manner, or seeking to limit the scope of the evidence to only the most relevant and necessary information. 4. Ensuring that the application is filed well in advance of trial: Given the complexity and potential for delay in applications under section 276.1(1), counsel should be sure to file the application well in advance of the trial date. This will allow sufficient time for the court to consider the application and make a decision, and will also give counsel adequate time to prepare their case accordingly. In conclusion, applications under section 276.1(1) of the Criminal Code of Canada require careful preparation, strategic thinking, and a thorough understanding of the legal and psychological issues involved. Counsel must balance the interests of the accused and the complainant, while also making persuasive arguments for the admissibility of evidence related to the past sexual history of the complainant. By taking a thoughtful and strategic approach, counsel can ensure that their client's rights are protected while also upholding the dignity and rights of complainants in cases of sexual assault.