INTRODUCTION AND BRIEF DESCRIPTION
This section prohibits the production of records relating to complainants or witnesses in certain criminal proceedings.
SECTION WORDING
278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of (a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273, (b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988, or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.
EXPLANATION
Section 278.2(1) of the Criminal Code of Canada protects the privacy and confidentiality of complainants and witnesses in certain sexual and violent offences. It prohibits the production of any record related to a complainant or witness to an accused in any proceeding where the accused is charged with an offence under specific sections of the Criminal Code. These sections include offences such as sexual assault, sexual interference, incest, prostitution, indecent exposure, and trafficking in persons. The provision ensures that complainants and witnesses who come forward to report such offences are protected from potential harm or retaliation. It also prevents the use of personal, sensitive information of complainants and witnesses against them during trial. This is particularly important in cases of sexual offences where the victim's credibility may be called into question and they may face scrutiny and judgment for their behaviour or past experiences. However, section 278.2(1) does not completely bar the production of records related to complainants and witnesses. Such records may be produced under certain circumstances outlined in sections 278.3 to 278.91 of the Criminal Code, including situations where the production of the record is necessary for the accused's right to make full answer and defence or where it is necessary for the proper administration of justice. In summary, section 278.2(1) of the Criminal Code of Canada is an important provision that balances the rights of the accused to a fair trial with the need to protect the privacy and safety of complainants and witnesses in certain sexual and violent offences.
COMMENTARY
Section 278.2(1) of the Criminal Code of Canada is a provision in Canada's criminal law that protects the privacy and personal information of complainants and witnesses in certain types of cases. This provision prohibits the production of any record relating to a complainant or a witness to an accused person in any proceedings concerning a range of serious offenses, including sexual assault, child pornography, and human trafficking. The purpose of this provision is to prevent the disclosure of sensitive personal information, such as medical records or previous sexual history, that may be used to discredit or intimidate a complainant or witness. The provision recognizes the significant power imbalance between complainants and witnesses on one side, and accused persons on the other, and seeks to level the playing field by preserving the privacy of those who may be vulnerable to harm or harassment. The provision is applicable to offenses such as sexual assault, sexual interference, sexual exploitation, incest, and child pornography, which are among the most egregious and damaging forms of criminal behavior. These offenses often involve victims who are children, young people, or vulnerable adults and can have long-lasting impacts on the mental, physical, and emotional health of survivors. Many of these cases involve the disclosure of sensitive information that may be difficult for a complainant or witness to share, particularly if the information relates to an aspect of their personal life that they consider private. The provision recognizes that such disclosure can have a significant impact on the complainant or witness's willingness to testify, and their ability to bear the stress and trauma of reliving the experience in court. Section 278.2(1) establishes a framework for the protection of complainants and witnesses in these cases, while also seeking to ensure that accused persons are afforded the right to a fair trial. The provision contemplates that records may be disclosed in certain circumstances, but only in accordance with specific legal procedures that safeguard the privacy interests of complainants and witnesses. Overall, section 278.2(1) of the Criminal Code of Canada reflects a commitment to the protection of vulnerable individuals in society and recognizes the importance of preserving their dignity and privacy in the face of serious criminal offenses. The provision recognizes that sexual assault and other forms of violence can be traumatic and that the justice system must be sensitive to the needs of survivors. By balancing the rights of accused persons with the need to protect those who have been victimized, this provision represents an effort to create a more just and equitable criminal justice system.
STRATEGY
Section 278.2(1) of the Criminal Code of Canada is a provision that is aimed at protecting the privacy and safety of complainants and witnesses in certain types of criminal proceedings, particularly those involving sexual offenses, human trafficking, and criminal harassment. The section prohibits the production of any records relating to a complainant or witness to an accused person in these types of proceedings, except in accordance with specific procedures outlined in sections 278.3 to 278.91 of the Code. When dealing with this section of the Criminal Code of Canada, there are a number of strategic considerations that should be taken into account by prosecutors, defense counsel, and judges. These may include the following: 1. Balancing the Right to a Fair Trial with the Rights of Complainants and Witnesses: While the right to a fair trial is a fundamental tenet of the Canadian justice system, it must be balanced against the need to protect the privacy and safety of complainants and witnesses. Section 278.2(1) represents a key mechanism for achieving this balance in certain types of cases. 2. Ensuring Effective Communication: In order to prevent any misunderstandings or potential breaches of section 278.2(1), it is important for prosecutors and defense lawyers to be clear about what records can and cannot be disclosed in proceedings. Additionally, the judge must ensure that all parties fully understand the implications of this provision, and that any disclosure of records is done in accordance with the relevant procedures. 3. Addressing Potential Exceptions: Section 278.2(1) contains some exceptions to its general rule, such as circumstances where the records in question are necessary to establish an accused person's innocence, or where they can be shown to be relevant and necessary for the defense. In such cases, defense counsel may attempt to leverage these exceptions to obtain access to records that would normally fall under the prohibition. 4. Ensuring Compliance with Procedures: In order to protect the rights of complainants and witnesses, section 278.2(1) establishes a specific set of procedures that must be followed in order to disclose any relevant records. This includes the involvement of a third party (i.e. a judge or other designated person) in order to assess the relevance and necessity of any requested records. Defense counsel may push back against these procedures in order to speed up the trial, but it is important to ensure that they are properly followed in order to protect the privacy and safety of those involved. 5. Addressing Potential Prejudice: One potential downside of section 278.2(1) is that it can create an appearance of bias against accused persons, particularly in cases where significant amounts of information are kept from them. To address this, judges may need to carefully explain the rationale behind this provision and ensure that accused persons have access to all other relevant evidence that does not violate the privacy or safety of others. Ultimately, the strategies employed in dealing with section 278.2(1) will vary depending on the specific circumstances of each case. However, by carefully considering the above factors, prosecutors, defense counsel, and judges can work towards achieving a fair trial while also protecting the privacy and safety of those involved.