INTRODUCTION AND BRIEF DESCRIPTION
This section specifies that certain sections of the Criminal Code apply when a record is in the possession of any person, unless the complainant or witness has waived the application of those sections in the case of a record in the possession of the prosecutor.
SECTION WORDING
278.2(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
EXPLANATION
Section 278.2(2) of the Criminal Code of Canada deals with the protection of the privacy and security of complainants and witnesses in sexual offence cases. This section applies to all records related to the sexual offence in the possession or control of any person, including the prosecutor in the proceedings. These records could be medical records, counseling records, educational records, or any other record that is related to the offence. The section outlines the circumstances under which these records can be used in court and who has access to them. It provides that the records can only be accessed if the complainant or witness expressly waives the application of sections 278.1, 278.2, 278.3, and 278.4 of the Criminal Code. These sections are designed to protect the privacy and security of complainants and witnesses and prevent the unnecessary use of their personal information in court. The purpose of this section is to strike a balance between the accused's right to a fair trial and the complainant or witness's right to privacy and security. It ensures that records related to the sexual offence are only used when necessary and that they are not used in a manner that could harm the complainant or witness. This section also helps to prevent secondary victimization of the complainant or witness by ensuring that their personal information is not used inappropriately during proceedings. In summary, Section 278.2(2) of the Criminal Code of Canada provides important protections to complainants and witnesses in sexual offence cases by limiting access to their personal records and ensuring that they are only used when necessary. It is an important provision for protecting the privacy and security of those who come forward to report sexual offences.
COMMENTARY
Canada's Criminal Code has several provisions that deal with sexual assault and the protection of victims and their information. Section 278.2(2) is part of this legal framework. This section specifically addresses the possession and control of records that relate to an individual who has experienced sexual violence, including complainants and witnesses. The section acknowledges that such records can be sensitive and personal, containing medical, psychological, or other private information. It ensures that such records are protected and can only be accessed by authorized individuals in certain situations. The law also strikes a balance between protecting the victims' privacy and ensuring a fair trial for the accused. In practice, this means that any person who has possession or control of the records, including the prosecutor, must comply with certain provisions. Section 278.1 outlines these provisions, and they include measures such as sealing and safeguarding the records, only disclosing them when necessary, and ensuring that they are not used for improper purposes. Sections 278.3 to 278.91 further clarify the situations in which such records may be accessed, by whom, and for what purposes. However, there is an exception to this rule. If the prosecutor has possession or control of the records, they may waive the application of these sections if the complainant or witness to whom the record relates expressly agrees. The waiver must be voluntary and informed, and the complainant or witness must have a clear understanding of the potential consequences of waiving their rights. This exception was included to ensure that a complainant or witness maintains control over their own information and can make decisions that best serve their needs and interests. Overall, section 278.2(2) is an important provision of Canada's sexual assault laws. By establishing clear protocols for the possession and control of records related to sexual violence, the law ensures that victims' privacy is respected and their information is not misused. The exception allows for flexibility and recognizes the agency of the complainant or witness in determining how their information is used. It is a crucial component of Canada's ongoing efforts to address and prevent sexual violence, promote fairness in the criminal justice system, and ensure that victim rights are upheld.
STRATEGY
Section 278.2(2) of the Criminal Code of Canada is a provision that outlines the application of certain sections of the Criminal Code that relate to the production and use of records in cases involving sexual assault and other serious sexual offences. This provision raises a number of strategic considerations for parties involved in such cases, including defence counsel, prosecutors, and complainants. In this essay, we will examine some of the key strategic considerations associated with Section 278.2(2) and suggest some strategies that could be employed in light of these considerations. One of the most important strategic considerations when dealing with Section 278.2(2) is the impact that this provision can have on the admissibility of evidence in sexual assault cases. Under this provision, certain sections of the Criminal Code that relate to the production and use of records are made applicable to cases involving sexual assault and other serious sexual offences. These sections can have a significant impact on the admissibility of evidence, as they provide for a range of rules and procedures that must be followed when seeking to introduce a record into evidence. One strategy that could be employed in light of this consideration is to carefully review and analyze any records that are in the possession or control of the parties to the case. This will require a thorough understanding of the relevant sections of the Criminal Code, as well as any applicable case law and legal principles. Defence counsel should be particularly attentive to the possibility that certain records may be excluded from evidence on the basis of the rules set out in Sections 278.1, 278.2, and 278.3 of the Criminal Code. Prosecutors, on the other hand, may seek to exploit the restrictions placed on records in order to build a stronger case. Another strategic consideration when dealing with Section 278.2(2) is the role of the complainant or witness in decisions about the use of records. Under this provision, the complainant or witness to whom a record relates has the power to waive the application of Sections 278.1-278.91, even if the record is in the possession or control of the prosecutor. This can be a powerful tool for complainants or witnesses who wish to limit the use of sensitive or personal information. One strategy that could be employed in light of this consideration is to establish a strong relationship with the complainant or witness early on in the case. This will require building trust and establishing lines of communication that will enable you to understand their concerns and interests. It will also require an appreciation of the power dynamics at play in sexual assault cases, as well as an understanding of the broader societal context in which these cases are litigated. By developing a strong relationship with the complainant or witness, defence counsel or prosecutors may be better able to negotiate the use of records in a way that is mutually beneficial. A third strategic consideration when dealing with Section 278.2(2) is the potential impact on the trial process. This provision is intended to ensure that sexual assault complainants are not re-victimized through the use of irrelevant or unnecessary personal information. At the same time, it can also be seen as a barrier to effective defence strategies, as it limits the amount of information that can be used to challenge the credibility of the complainant or to provide context for the alleged offence. One strategy that could be employed in light of this consideration is to be proactive in seeking out alternative sources of information that can be used to support the defence case. This may involve interviewing witnesses, conducting background research, or using alternative forms of evidence such as expert testimony or forensics. It may also involve being creative in how evidence is presented, such as through the use of demonstrative exhibits or multimedia presentations. In conclusion, Section 278.2(2) of the Criminal Code of Canada raises a number of strategic considerations for parties involved in sexual assault cases. These considerations relate to the admissibility of evidence, the role of the complainant or witness, and the potential impact on the trial process. Defence counsel, prosecutors, and complainants must carefully consider these factors when approaching the use of records in sexual assault cases, and must be prepared to employ a range of strategies to achieve their objectives. Ultimately, the successful management of records in sexual assault cases requires a deep understanding of the legal and ethical principles that underlie the criminal justice system.