Criminal Code of Canada - section 276.2(2) - Complainant not compellable

section 276.2(2)

INTRODUCTION AND BRIEF DESCRIPTION

The complainant cannot be forced to testify at the hearing.

SECTION WORDING

276.2(2) The complainant is not a compellable witness at the hearing.

EXPLANATION

Section 276.2(2) of the Criminal Code of Canada is a provision that outlines the rights and protections afforded to complainants of sexual offences. This provision stipulates that the complainant is not a compellable witness at the hearing. What this means is that the prosecutor cannot force the complainant to testify as a witness against the accused. The complainant has the option to testify voluntarily, but they are not obligated to do so. This provision aims to protect complainants from being re-traumatized by the criminal justice system, which can be a daunting and stressful process. The rationale behind this provision is that complainants of sexual offences may already feel marginalized and powerless, and forcing them to testify against their will may exacerbate these feelings. Moreover, testimonies given under duress or pressure may not be entirely reliable or truthful. Furthermore, this provision helps to ensure that the focus of the trial remains on the evidence and not on the complainant. The complainant's past sexual history or reputation cannot be used to discredit their testimony or character. By not being a compellable witness, the complainant's privacy, dignity, and autonomy are respected. Overall, Section 276.2(2) is an important provision that reflects Canada's commitment to protecting the rights and well-being of complainants of sexual offences.

COMMENTARY

Section 276.2(2) of the Criminal Code of Canada affirms that a complainant in a sexual assault case is not obligated to testify at the hearing and can choose to remain silent without being penalized. This provision is a critical aspect of ensuring that victims of sexual assault are not revictimized through the criminal justice system. Sexual assault cases are often difficult to prove, partly because the majority of incidents occur within private settings, making it challenging to collect reliable evidence. As a result, the testimony of the complainant is often the central piece of evidence presented in such cases. However, the process of testifying in court can be retraumatizing for the complainant. The aggressive and adversarial nature of cross-examination, combined with the stigma and shame that often accompany the reporting of sexual assault, can lead to significant psychological harm to the complainant. The right of the complainant to refuse to testify provides a measure of protection against this harm. It also recognizes that the complainant is not just a witness, but often a survivor of a traumatic event. The complainant's right not to testify puts the onus back on the prosecution to build a case against the defendant using other evidence. Some critics argue that by not testifying, the complainant undermines the accused's right to a fair trial or that it is unfair that the defendant cannot cross-examine the complainant. However, it is important to note that the accused has the opportunity to argue his/her case vigorously, present other evidence to discredit the complainant's testimony or to make their own admissions. There have also been many successful prosecutions that did not rely on the testimony of the complainant but rather introduced forensic evidence or corroborating evidence to prove the case. It is essential to remember that a sexual assault case is not about ensuring that all victims are willing participants in the criminal justice process. Rather, it is about holding perpetrators accountable for their actions and ensuring that justice is served. The victim's well-being should not be put at risk simply to secure a conviction. In conclusion, section 276.2(2) of the Criminal Code of Canada is an important legal provision that recognizes the needs and rights of survivors of sexual assault. It is imperative that the complainant's right to refuse to testify be upheld to prevent the revictimization and traumatic experiences endured by survivors. The focus should remain on ensuring that the accused is held accountable for their actions, and justice is served without harming the complainant.

STRATEGY

Section 276.2(2) of the Criminal Code of Canada provides that the complainant in a sexual assault case is not a compellable witness at the hearing. This means that the complainant is not required to testify and can choose to remain silent. This provision is designed to protect the complainant's privacy and to prevent them from being re-victimized through cross-examination. When dealing with this section of the Criminal Code, strategic considerations for the prosecution and defense include: Prosecution 1. Prior to trial, the prosecution should ensure that they have sufficient evidence to support the charges without relying solely on the complainant's testimony. 2. It may be necessary to prepare the complainant for the trial and explain the potential consequences of not testifying. 3. The prosecution should anticipate the possibility of the defense attempting to argue that the complainant's silence is evidence of their guilt or lack of credibility. 4. Other witnesses or evidence, such as medical records or witness statements, should be used to corroborate the allegations. Defense 1. The defense may attempt to use the complainant's silence as evidence of their guilt or lack of credibility. It may be necessary to challenge this argument and present alternative explanations for the complainant's silence. 2. The defense may attempt to discredit the complainant's credibility through other means, such as highlighting inconsistencies in their statements or past behaviors. 3. The defense may also attempt to gather evidence that contradicts the complainant's allegations, such as testimony from witnesses or physical evidence. Strategies that could be employed in dealing with section 276.2(2) of the Criminal Code include: Prosecution 1. Build a strong case relying on other witnesses and evidence, such as medical records or forensic evidence. 2. Provide support to the complainant throughout the trial process, including offering counseling and ensuring their privacy is respected. 3. Anticipate and prepare for defense arguments attacking the complainant's credibility. Defense 1. Identify and challenge any inconsistencies in the complainant's statements or behaviors. 2. Look for any evidence that contradicts the complainant's allegations, such as testimony from other witnesses or physical evidence. 3. Argue that the complainant's silence is evidence of their lack of credibility or guilt. In conclusion, section 276.2(2) of the Criminal Code of Canada provides both advantages and challenges for the prosecution and defense in sexual assault cases. Strategic considerations and tactics must be carefully considered in order to effectively navigate these challenges and provide the best possible outcome for all parties involved.