INTRODUCTION AND BRIEF DESCRIPTION
The reasons for excluding evidence related to complainants sexual activity must be recorded.
SECTION WORDING
276.2(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.
EXPLANATION
Section 276.2(4) of the Criminal Code of Canada is a provision that requires a written record of the reasons behind the exclusion of the evidence of an accused's sexual history in court proceedings. The section is an amendment to Canada's Criminal Code, which deals with the admissibility of evidence of an accused's sexual conduct in sexual offences. This section ensures that the judge must provide written reasons for any decision made about the admissibility of evidence related to an accused's past sexual history. These written reasons must be entered into the record of proceedings or provided in writing if there is no record of the proceedings. The purpose of this section is to create a transparent system that requires judges to provide clear reasons why a particular piece of evidence has been excluded from trial. It is intended to ensure that only relevant evidence is admitted in court, and that an accused person's right to a fair trial is upheld. Overall, section 276.2(4) serves as a safeguard against the arbitrary or unjustified exclusion of evidence related to an accused's past sexual history, and ensures that justice is served in a transparent and fair manner.
COMMENTARY
Section 276.2(4) of the Criminal Code of Canada is a provision that relates to the recording of reasons provided under subsection (3) of the same section. Subsection (3) states that a judge may make an order restricting the evidence that may be adduced or the questions that may be asked of a complainant or witness in a trial involving sexual assault or other sexual offences. The reasons provided are used to support the judge's decision to impose such restrictions. The requirement under section 276.2(4) that the reasons provided be entered in the record of the proceedings or provided in writing where the proceedings are not recorded serves an important purpose. It ensures that the reasons for the judge's decision are documented and are available to parties involved in the case, including the accused, the complainant, the victim advocate, and the public. This documentation is important for several reasons. Firstly, the reasons help ensure that the judge's decision is based on the law and principles of fairness, which is critical in maintaining the integrity of the criminal justice system. The requirements under subsection (3) of section 276.2 are designed to protect complainants and witnesses from being subjected to irrelevant, humiliating, intimidating, or repetitive questions during a trial. The restrictions are intended to reduce the risk that the complainant or witness will suffer secondary trauma or re-victimization. In making an order to restrict evidence or questions, the judge must balance the needs of the complainant or witness against the right of the accused to a fair trial. The reasons for the decision should demonstrate that the judge has carefully considered the relevant legal principles and evidence before making the decision. Secondly, the reasons provide a basis for appellate review. If a party disagrees with the judge's decision, they may appeal the decision to a higher court. In order for the higher court to assess whether the trial judge erred in law or in fact, it must be able to review the reasons for the decision. Without clear reasons, it will be difficult for the appellate court to determine whether the judge erred in exercising discretion, or whether there was a miscarriage of justice. Thirdly, the reasons provide a record of the proceedings that may be used for academic or research purposes. Sexual assault trials are complex and controversial. Recording the reasons for a judge's decision may be a valuable resource for scholars and practitioners in the field. The reasons may provide insight into how legal principles are applied in practice, and how the criminal justice system responds to the needs of complainants and witnesses. In summary, section 276.2(4) of the Criminal Code of Canada is an important provision that ensures the reasons for a judge's decision to restrict evidence or questions in sexual assault trials are recorded and accessible. The provision serves to maintain the integrity of the criminal justice system, facilitates appellate review, and provides a valuable resource for academic and research purposes. Its importance cannot be overemphasized, given the ongoing debates surrounding sexual assault trials, and the need for greater transparency and accountability in the justice system.
STRATEGY
Section 276.2(4) of the Criminal Code of Canada lays down the requirements for recording or providing in writing the reasons for excluding evidence of the complainant's sexual activity. This provision is applicable when dealing with sexual assault charges, and its implementation can significantly affect the outcome of the trial. Therefore, lawyers and other legal professionals must carefully consider the following strategic considerations when dealing with this section of the Criminal Code of Canada. Firstly, the legal team should recognize the significance of the reasons provided for excluding evidence under subsection (3). The reasons must be sound and based on a careful consideration of the relevant legal principles. Furthermore, the reasons must be clearly articulated and recorded in the proceedings or provided in writing, as required by subsection (4). This is because the reasons may be a potential ground for appeal if they are not adequately supported by the evidence or legal principles. Secondly, legal professionals must be mindful of the potential impact of the exclusion of evidence on the trial outcome. Evidence of the complainant's sexual activity can be crucial in establishing the credibility of the complainant or the accused. Therefore, legal teams must carefully assess the relevance and probative value of such evidence before seeking to introduce it. If the evidence is deemed relevant and admissible, legal teams must ensure that the reasons for its exclusion are compelling and supported by sound legal reasoning. Thirdly, the legal team must consider the potential impact of the reasons provided for the exclusion of evidence on the jury or the judge. The reasons provided should be framed in a way that persuades the jury or judge that the evidence is either irrelevant, prejudicial, or inadmissible. This requires a clear understanding of the relevant legal principles and how they apply to the facts of the case. Fourthly, legal teams should consider using expert testimony to support the reasons provided for the exclusion of evidence. Expert testimony can be useful in educating the jury or judge on the relevant legal principles and how they apply to the case. This can also help to address any misconceptions or biases that the jury or judge may have. Lastly, legal teams must be diligent in ensuring that the reasons provided under subsection (3) are recorded or provided in writing as required by subsection (4). Failure to do so may result in grounds for appeal, which could potentially result in a retrial or even the exclusion of evidence that could have been admissible. In conclusion, strategic considerations when dealing with Section 276.2(4) of the Criminal Code of Canada are crucial to ensure that the reasons for excluding evidence of the complainant's sexual activity are sound, supported by legal reasoning, and adequately communicated to the jury or judge. Legal teams should consider the potential impact of the exclusion of evidence on the trial outcome, the potential impact of the reasons provided on the jury or judge, and the use of expert testimony to support the reasons. They should also ensure that the requirements for recording or providing the reasons in writing are met to avoid any grounds for appeal.