INTRODUCTION AND BRIEF DESCRIPTION
The judge must determine the admissibility of evidence regarding sexual history and provide reasons for their decision.
SECTION WORDING
276.2(3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and (a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and (c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
EXPLANATION
Section 276.2(3) of the Criminal Code of Canada pertains to the admissibility of evidence related to a complainant's sexual history in a trial. This section outlines the responsibilities of the judge, provincial court judge or justice to determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and to provide reasons for that determination. The judge must consider various factors outlined in subsection 276(3), including the relevance of the evidence to the issues at trial, the potential prejudice to the right of the accused to a fair trial, and the importance of maintaining the integrity of the administration of justice. If the judge determines that all or part of the evidence is admissible, they must provide reasons for their decision and specify the part of the evidence that is admissible. Furthermore, they must explain the manner in which that evidence is expected to be relevant to an issue at trial. The purpose of this section is to ensure that evidence related to a complainant's sexual history is not used to improperly discredit or shame them in a trial. The judge's role is to carefully weigh all relevant factors and ensure that only relevant and admissible evidence is presented in court. This provision underscores the importance of protecting the rights of the accused as well as the integrity of the criminal justice system.
COMMENTARY
Section 276.2(3) of the Criminal Code of Canada lays out the parameters for the admissibility of evidence in cases where sexual history is at issue. The section requires that, at the conclusion of a hearing, the judge or justice determining the admissibility of the evidence must provide reasons for their determination and consider certain factors in making their decision. This provision is critically important in ensuring that evidence of a person's sexual history is not unfairly used to discredit them in a trial. It recognizes the potential harm and stigma that can arise from having one's private sexual information exposed in court. It also recognizes the potential for such evidence to be used in a manipulative or exploitative way to sway a jury or judge's opinion of a complainant's credibility. Under subsection 276(2), evidence of a complainant's sexual history is generally not admissible in a trial unless it meets certain criteria, such as being relevant to an issue in the trial and being necessary to establish the truth of an essential element of the offence. Section 276.2(3) helps to ensure that only appropriate evidence is admitted and that the dignity and privacy of complainants is protected. The provision requires judges and justices to explain their reasoning for admitting or excluding evidence of sexual history. This is important in promoting transparency and accountability in the criminal justice process. It helps to ensure that decisions about the admissibility of evidence are based on sound legal reasoning and principles. Section 276.2(3) also requires the judge or justice to consider the factors referred to in subsection 276(3), which include the potential prejudice that the evidence may cause to the complainant's dignity and privacy, the potential for the evidence to be used in a discriminatory or stereotypical manner, and the potential to undermine the integrity of the trial process. By considering these factors, the judge or justice is able to make a more informed decision about the admissibility of evidence and to ensure that any evidence that is admitted is both necessary and fair. This provision thus serves as an important safeguard against the misuse of evidence and the potential for bias or discrimination in the criminal justice system. Overall, section 276.2(3) of the Criminal Code of Canada is an important provision that helps to promote fairness, dignity, and privacy in cases where sexual history is at issue. It recognizes the potential harm that can result from exposing someone's sexual history in a trial and provides a clear framework for the admissibility of evidence in such cases. By requiring judges and justices to provide reasons for their determinations and to consider certain factors, it promotes transparency and accountability in the criminal justice system and helps to ensure that decisions are based on sound legal principles and the principles of justice.
STRATEGY
Section 276.2(3) of the Criminal Code of Canada deals with the admissibility of evidence regarding the complainant's sexual activity in a sexual offence trial. This section imposes limitations on the evidence that can be introduced by the defence and provides that the judge must determine whether the evidence is admissible. It is essential to understand this section and its nuances to effectively navigate the court process in a sexual assault trial. One strategic consideration when dealing with this section is to thoroughly prepare for the hearing. The defendant's legal team must have a clear understanding of the evidence they intend to introduce and how it relates to the defence. The legal team must articulate how the evidence is relevant and necessary for a fair trial. It is essential to review all the available evidence carefully and determine which parts are admissible under section 276.2(3). Another strategic consideration is the timing of the application. It may be beneficial for the defendant to apply to admit evidence early in the process before the trial. This would give the defence more time to prepare and also allow them to evaluate the Crown's case better. If the evidence is introduced late in the trial, the judge may find it to be irrelevant or unnecessary, and it may harm the defendant's case. The defence counsel may also choose to proceed without relying on this section. They may decide to cross-examine the complainant about their sexual history without introducing the evidence formally, provided they do not exceed the limits set in section 276.2. This strategy allows the defence to challenge the credibility of the complainant without the hurdle of satisfying the judge regarding admissibility. It is also essential to consider the language used in making the application. A defence counsel should avoid making any statements that could be deemed offensive or disrespectful to the complainant. This could harm the credibility of the defence and turn the judge against the application. Finally, it is essential to continuously evaluate the application as new evidence or information becomes available. A defence counsel must be flexible and adjust their application accordingly, so they have the best opportunity to introduce the admissible evidence. In conclusion, dealing effectively with section 276.2(3) of the Criminal Code of Canada requires thorough preparation, strategic timing, appropriate language, and continuous evaluation. Defence counsel must be vigilant and flexible to navigate the complexity of a sexual offence trial successfully.