Criminal Code of Canada - section 276.1(4) - Judge may decide to hold hearding

section 276.1(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions under which a judge must grant a hearing to determine the admissibility of evidence related to a complainants prior sexual activity in a sexual assault trial.

SECTION WORDING

276.1(4) Where the judge, provincial court judge or justice is satisfied (a) that the application was made in accordance with subsection (2), (b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and (c) that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2).

EXPLANATION

Section 276.1(4) of the Criminal Code of Canada lays out the procedural requirements for an application to adduce evidence of a complainant's sexual activity in a criminal trial. The section provides that the application must be made in accordance with subsection (2), which sets out the legal test for admissibility of such evidence. The judge must be satisfied that the application has been properly made and that the evidence sought to be adduced is capable of being admissible under subsection 276(2) before granting the application. In addition, the section requires that a copy of the application be given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge may allow where the interests of justice so require. This provides the prosecution with adequate notice and an opportunity to respond to the application. Once the judge is satisfied that the procedural requirements have been met and that the evidence is capable of being admissible under subsection 276(2), a hearing will be held under section 276.2 to determine whether the evidence is admissible. This ensures that the admissibility of evidence of a complainant's sexual activity is carefully considered and subjected to a rigorous legal test before it is introduced in a criminal trial. Overall, section 276.1(4) reflects the importance of protecting the privacy and dignity of complainants in sexual assault trials, while also ensuring that the accused has a fair trial and the opportunity to present a full defense.

COMMENTARY

The Criminal Code of Canada is the law that governs criminal justice in Canada. Among the many provisions set out in the Code is Section 276.1(4), which deals with the admissibility of evidence in criminal trials that relate to the sexual history of the victim. This provision is critically important for the administration of justice in sexual assault cases, as it aims to protect the privacy and dignity of victims by preventing irrelevant or prejudicial evidence from being introduced in court. At the same time, it ensures that evidence that is relevant and necessary for the defence can still be admitted. Section 276.1(4) outlines the requirements that must be met before such evidence can be introduced in court. First, the application must be made in accordance with subsection (2), which sets out the form and content of the application. Second, a copy of the application must be given to the prosecutor and to the clerk of the court at least seven days beforehand, or such shorter interval as the judge may allow where the interests of justice require it. Third, the evidence sought to be adduced must be capable of being admissible under subsection 276(2), which sets out the specific circumstances in which the evidence may be admissible. Once these requirements are met, the judge must grant the application and hold a hearing under section 276.2 to determine whether the evidence is admissible under subsection 276(2). This hearing is critical because it allows the judge to weigh the probative value of the evidence against its prejudicial effect and to decide whether its admission would be in the interests of justice. Overall, Section 276.1(4) strikes a balance between protecting the rights of the accused to a fair trial and protecting the privacy and dignity of victims of sexual assault. It ensures that relevant evidence can be introduced in court while preventing irrelevant and prejudicial evidence from being used to attack the credibility of the victim. This provision is a crucial safeguard against the misapplication of justice in cases that involve sexual assault, and it demonstrates Canada's commitment to upholding the rule of law and protecting the rights of all individuals involved in the criminal justice system.

STRATEGY

One of the primary strategic considerations when dealing with section 276.1(4) of the Criminal Code of Canada is to ensure that the application is made in accordance with subsection (2). This entails meeting the requirements and criteria laid out in the section regarding the admissibility of evidence relating to the complainant's sexual past or activities. Failure to meet these requirements could result in the application being dismissed or deemed inadmissible, potentially jeopardizing the case. Another key consideration is the timing of the application. Section 276.1(4)(b) requires that a copy of the application is given to the prosecutor and the court clerk at least seven days in advance. However, the judge may allow a shorter interval if the interests of justice require it. Strategically, it may be beneficial to file the application as early as possible to ensure adequate time for preparation and review by all parties involved. Another important strategy is to carefully consider the potential impact of introducing evidence related to the complainant's sexual past or activities. While such evidence may be admissible under section 276.2, it may also carry a high risk of prejudicing the case and undermining the credibility of the complainant. As such, it is essential to weigh the potential risks and benefits of introducing such evidence and to carefully consider whether it will ultimately strengthen or weaken the case. In preparing an application under section 276.1(4), it can also be useful to work closely with a qualified legal professional who can provide guidance and support in navigating the application process and ensuring that all relevant legal and procedural requirements are met. This can include ensuring that all documentation and evidence is properly authenticated and admissible, and that all relevant parties are notified and given adequate opportunity to review the application. In terms of defense strategies, it may be beneficial to challenge the admissibility of evidence under section 276.2, arguing that it does not meet the criteria established in the section or that it would unfairly prejudice the case. Alternatively, a defense strategy may focus on challenging the credibility of the evidence presented by the prosecution or the complainant, highlighting inconsistencies or discrepancies in the testimony or other evidence presented. Overall, dealing with section 276.1(4) of the Criminal Code of Canada requires careful consideration and strategic planning, taking into account the specific circumstances of each case and the potential risks and benefits of introducing evidence related to the complainant's sexual past or activities. By working closely with legal professionals, carefully preparing and presenting the application, and considering all possible defense strategies, it is possible to achieve a successful outcome in these cases.