INTRODUCTION AND BRIEF DESCRIPTION
This section requires a private hearing to decide if someone must give up records for review by the judge.
SECTION WORDING
278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.
EXPLANATION
Section 278.4(1) of the Criminal Code of Canada grants judges the authority to conduct an in-camera hearing to determine whether or not a record should be produced for review by the court. This section applies in cases involving sexual offences, where a complainant's records or information are being sought by the accused. The purpose of this section is to balance the interests of the complainant, who has the right to privacy and confidentiality, with the rights of the accused to a fair trial. If there is information in the records that is relevant to the case, it must be disclosed to ensure that the accused has a fair trial. However, the disclosure of such records must be carefully managed by the courts to ensure that the privacy and dignity of the complainant is upheld. During the in-camera hearing, the judge will review the records in question and assess their relevance to the case. If the judge determines that the records contain information that is relevant to the case, they may order the person who has possession or control of the record to produce it to the court for review by the judge. It is important to note that the production of records in accordance with Section 278.4(1) is subject to strict conditions to protect the privacy and dignity of the complainant. The judge may make orders to restrict the use or dissemination of the record and may order that any identifying information about the complainant is redacted. Overall, Section 278.4(1) is an important provision that balances the rights of the accused with the rights of the complainant in cases involving sexual offences. It ensures that relevant information is disclosed while maintaining the privacy and dignity of the complainant.
COMMENTARY
Section 278.4(1) of the Criminal Code of Canada is an important provision that guides how Canadian judges deal with records related to a victim's sexual history in criminal trials. This section requires that judges hold an in-camera hearing to determine whether to order the person who has possession or control of the record to produce it for review. This provision has several implications for the justice system, victims of sexual violence, and the accused. First, the section's requirement for an in-camera hearing is aimed at protecting the privacy and dignity of a victim who may have shared sensitive information with medical personnel, counsellors, or other professionals. The in-camera hearing ensures that the victim's privacy is protected while the judge considers whether to allow the release of her records. The judge can review the records and determine their relevance to the case without exposing the victim's private information to the public or the accused. Moreover, Section 278.4(1) is an important tool to prevent the abuse of a victim's sexual history in court proceedings. The Criminal Code of Canada recognizes that a person's sexual history is not relevant to the question of whether they consented to sexual activity. Therefore, the courts have established that a victim's sexual history is inadmissible in court unless it is directly relevant to the case. For example, if the accused can demonstrate that the victim has a history of sexual violence fantasies, this information could become relevant in the context of the current allegations. The provision also has implications for the accused, who might argue that the victim's record could exonerate them. If the judge determines that the record is relevant, they can order that it be produced for the accused's counsel to review. At the same, judges must balance the need for the accused to have relevant evidence with the need to protect the privacy and dignity of the victim. The statute recognizes that records of a victim's sexual history are particularly sensitive and can be used to shame, intimidate, or harass them. It is crucial to understand that the in-camera hearing provisions of Section 278.4(1) are designed to strike a balance between the need for privacy and the need for justice. From a legal standpoint, the provision is meant to ensure that legal proceedings are conducted fairly and that evidence is used only where it is relevant and probative. Overall, Section 278.4(1) of the Criminal Code of Canada is an essential provision that seeks to protect the dignity and privacy of victims while also ensuring justice in criminal proceedings. By mandating an in-camera hearing to review the relevancy of a victim's sexual history records, the provision allows judges to make informed decisions that are fair and objective. At the same time, the provision recognizes the sensitive and highly personal nature of these records, and seeks to protect victims from being further victimized in court proceedings.
STRATEGY
Section 278.4(1) of the Criminal Code of Canada provides for a hearing in-camera to determine whether a record in the possession or control of a person is to be produced to the court for review. This section is a crucial provision in the context of sexual assault cases, as it allows the accused to obtain and produce evidence that may be relevant to their defense. There are several strategic considerations that one should keep in mind when dealing with this section of the Criminal Code of Canada. One of the most important considerations is the need to ensure that the request for a hearing is made at the earliest possible stage in the proceedings. This is because, in many cases, records that may be relevant to the accused's defense may be lost or destroyed over time, making it impossible to obtain them later on. Another important consideration is the need to provide the court with as much information as possible about the records that are being sought. This includes the type of record, the person who has possession or control of the record, and the relevance of the record to the accused's defense. By providing the court with this information, the accused can increase their chances of obtaining a favorable order for the production of the record. In addition to these considerations, there are several strategies that can be employed when dealing with section 278.4(1) of the Criminal Code of Canada. One strategy is to make a broad request for the production of all records that may be relevant to the accused's defense. While this approach may increase the chances of obtaining potentially useful evidence, it may also lead to the production of irrelevant or harmful evidence, which could hurt the accused's case. Another strategy is to make a more focused request for the production of specific records that are known to exist and that are likely to be relevant to the accused's defense. This approach may reduce the risk of obtaining irrelevant or harmful evidence, but it may also limit the scope of the evidence that is available for the accused's defense. A third strategy is to seek the assistance of an expert in the relevant field, such as a psychologist, psychiatrist, or forensic analyst, who can provide an opinion on the relevance of the record to the accused's defense. This can help to persuade the court that the record is indeed relevant and should be produced. In conclusion, section 278.4(1) of the Criminal Code of Canada provides an important avenue for obtaining potentially useful evidence in sexual assault cases. By being strategic and employing the right tactics, the accused can increase their chances of obtaining a favorable order for the production of the record, which can be critical to the success of their defense.