INTRODUCTION AND BRIEF DESCRIPTION
The jury and public shall be excluded from a hearing to determine admissibility of evidence under subsection 276(2).
SECTION WORDING
276.2(1) At a hearing to determine whether evidence is admissible under subsection 276(2), the jury and the public shall be excluded.
EXPLANATION
Section 276.2(1) of the Criminal Code of Canada pertains to a legal proceeding that is conducted to determine whether a piece of evidence is admissible under subsection 276(2). The subsection in question relates to the use of evidence during a sexual assault trial to establish the victim's sexual history or behavior. Specifically, it prohibits the introduction of evidence about the complainant's sexual past, except under certain limited circumstances, such as if it is relevant to proving the accused's innocence. The purpose of section 276.2(1) is to protect the privacy rights of the complainant. It provides that the jury and the public must be excluded from the hearing, in order to prevent the disclosure of sensitive and potentially embarrassing information that could be used against the complainant. This is particularly important in cases of sexual assault, where the victim may have already suffered significant trauma and may feel reluctant to come forward due to fear of being further victimized or stigmatized. Overall, section 276.2(1) serves to promote the fair and just administration of justice, by ensuring that trials are conducted in a manner that is respectful of the complainant's rights and interests. By protecting the complainant's privacy, the law seeks to encourage more victims of sexual assault to come forward and seek justice, without fear of retribution or shame.
COMMENTARY
Section 276.2(1) of the Criminal Code of Canada is a provision that mandates the exclusion of jurors and the public during proceedings to determine the admissibility of evidence. Specifically, this provision pertains to evidence that may be used to impugn the credibility of the complainant in a sexual assault trial. The rationale behind the exclusionary rule is to protect the privacy and dignity of victims of sexual violence, as well as to encourage them to come forward and report the crime. The exclusionary rule was birthed as a response to the historically high rates of sexual assault and low rates of reporting. One possible explanation for this trend is the fear and shame felt by victims of sexual violence, partly caused by the public scrutiny and revictimization they experience during trials. This is depicted by the way jurors and the public (including media) may react to the evidence admission process, which can involve graphic and invasive questioning of the complainant's past behavior and sexual history. These questions are often irrelevant to the case, provide little probative value, and serve only to perpetuate gendered stereotypes, myths, and stigmas about victims of sexual violence. The exclusionary rule operates in stark contrast to traditional legal practices, which prioritize transparency and public access to court proceedings. Such openness of legal proceedings ensures accountability and keeps legal decisions transparent. However, this case's exclusion increases accountability for the impact of sexual violence on survivors of assault by safeguarding their privacy and encouraging them to testify. The exclusionary rule in section 276.2(1) reflects a balancing of interests between the utility of evidence and the dignity and privacy of the complainant. It recognizes that the cost of such evidence's probative value is too high, potentially re-victimizing the complainant. In a way, this provision provides sexual assault survivors with a kind of agency. It gives them control over their stories and who is allowed to know them. This control can be empowering, allowing the complainant to feel like they are contributing to the process of justice and not just being collected into a victim pool. In conclusion, the exclusionary rule in section 276.2(1) of the Criminal Code of Canada is a provision designed to protect sexual assault survivors from unfair questioning, invasion of privacy, and public scrutiny. It encapsulates the careful balancing of interests between evidentiary value and complainant dignity and privacy. This provision must remain an integral component of sexual assault trials, serving as a critical step to improve both the reporting and successful prosecutions of gender-based violence offenses.
STRATEGY
Section 276.2(1) of the Criminal Code of Canada provides a provision for excluding the jury and the public at a hearing to determine whether evidence is admissible under subsection 276(2). This section of the Criminal Code is important because it ensures that the accused is protected from any preconceived bias and that the evidence presented is not tainted by any extraneous factors. As such, it is critical for counsel to strategize and approach this section of the Criminal Code carefully. One possible strategic consideration is to ensure that the accused's rights to a fair trial are not compromised. This could be achieved by ensuring that the exclusion of the jury and public is only for the purpose of facilitating the admissibility determination and does not unduly interfere with the trial's fairness. Counsel must also ensure that the accused is not prejudiced by the exclusion of the jury and the public. Failure to consider these factors may result in a miscarriage of justice, and the courts may overturn a guilty verdict based on this provision. Another strategic consideration is to anticipate challenges to the admissibility of evidence and prepare accordingly. Subsection 276(2) provides specific criteria for the admissibility of evidence in cases of sexual assault. Counsel must thoroughly understand these criteria and prepare arguments to support or challenge the admissibility of the evidence. In cases where the admissibility of evidence is contentious, it may be beneficial to hire an expert witness to testify on the admissibility of the evidence. In addition, counsel must be aware of the significant impact this provision has on the trial's media attention. The exclusion of the jury and the public limits access to proceedings, which restricts the media's coverage of the trial. Counsel must carefully consider this aspect of the case and ensure that media access to the trial complies with the applicable laws and does not infringe on the accused's rights. Lastly, it is critical to remember that this provision is applicable to all parties, including the Crown. The Crown should ensure that any evidence presented does not violate the accused's rights under this section. Failure to comply with this provision could jeopardize the validity of the evidence and so the Crown must consider its implications when presenting evidence at a trial. In conclusion, section 276.2(1) of the Criminal Code of Canada provides a valuable tool for ensuring that the accused's rights to a fair trial are protected. However, it also presents significant strategic considerations for counsel to consider. Counsel must prepare arguments to support or challenge the admissibility of evidence, anticipate challenges to the admissibility of evidence, be mindful of media attention and ensure that any evidence presented complies with this section. By considering these factors fully, counsel can ensure that their client's interests are protected and their rights are respected.