Criminal Code of Canada - section 278.7(4) - Copy to prosecutor

section 278.7(4)

INTRODUCTION AND BRIEF DESCRIPTION

If the judge orders the production of a record to the accused, a copy of the record must also be provided to the prosecutor, unless it is not in the interests of justice to do so.

SECTION WORDING

278.7(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.

EXPLANATION

Section 278.7(4) of the Criminal Code of Canada outlines the procedures to be followed when an accused person requests access to a record or part of a record that was kept during a previous criminal proceeding involving them. This section requires that when a judge grants such a request, a copy of the record, or part of the record, must be provided to the accused person. However, the judge can withhold the record or part of the record if they determine that it is not in the interest of justice to do so. The primary intent behind Section 278.7(4) is to ensure that an accused person has access to all the necessary information that could be relevant to their case. By providing the accused person with a copy of a record or part of a record, it allows them to make informed decisions about how to proceed with their defence. However, the judge must also consider the interests of justice before providing a copy of the record to the prosecutor. This is to ensure that any confidential information or other sensitive materials are not improperly disclosed, which could compromise the fairness of the trial. Therefore, the judge has discretion in deciding whether the prosecutor should also receive a copy of the record. In summary, Section 278.7(4) is a critical provision in the Criminal Code of Canada that helps to ensure that an accused person has access to all the relevant information needed to make informed decisions and build a proper defence. However, it also puts measures in place to ensure that the interests of justice are protected, and no confidential information or other sensitive material is improperly disclosed.

COMMENTARY

Section 278.7(4) of the Criminal Code of Canada deals with the production and sharing of records in cases where an accused is subject to a hearing under the sexual assault provisions. This section establishes the process for how the accused's defence counsel and the prosecution can access and examine records held by the complainant that are relevant to the case. The section states that when a judge orders the production of a record or part of the record to the accused, the judge must direct that a copy of that record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so. This means that the accused's defence counsel will have access to records that could potentially be used to support their defense, while the prosecutor will have access to the same records to build their case against the accused. However, there are cases where the judge may decide it is not in the interests of justice for the prosecutor to have a copy of the record or part of the record. For example, if the record contains sensitive or potentially harmful information about the complainant that is not relevant to the case, the judge may decide it is not fair to share that information with the prosecution. This section of the Criminal Code is important because it seeks to balance the rights of both the accused and complainant in sexual assault cases. It recognizes the importance of protecting the privacy and dignity of the complainant while still allowing the accused to have a fair trial. Access to the complainant's records can be critical in enabling the accused to defend themselves effectively, but it is also important to ensure that the complainant's privacy and dignity are not compromised. It is worth noting that this provision is not without controversy. Some argue that it amounts to re-victimizing the complainant by allowing the defence to dig into their personal and potentially traumatic experiences. However, this section is designed to ensure a fair trial for the accused, which is a fundamental principle of our justice system. In order to strike a balance between these opposing concerns, it is crucial that judges exercise their discretion judiciously when making decisions about the production of records. In conclusion, Section 278.7(4) of the Criminal Code is an important provision that defines how the records of a complainant can be accessed in a sexual assault case. It recognizes the need to balance the rights of the accused with the need to protect the privacy and dignity of the complainant. Judges must exercise their discretion carefully to ensure that justice is served, while still protecting the rights and needs of all parties involved.

STRATEGY

Section 278.7(4) of the Criminal Code of Canada pertains to the production of records in cases involving sexual assault or other forms of violence against an intimate partner. The section allows an accused person to request the production of records that may contain personal information about the victim or any witness in the case. These records could include medical, psychological, or counseling records that are considered confidential. However, the judge may decide not to provide a copy of the record to the prosecutor if they determine that it is not in the interests of justice to do so. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations for both the accused person and the prosecutor. One of the key considerations is the potential impact that the production of records may have on the victim or witness in the case. The accused person may argue that the records contain information that could be relevant to their defense, and that their right to a fair trial requires that they be granted access to them. However, the prosecutor may argue that the production of the records could have a chilling effect on future victims or witnesses who may be reluctant to seek out the necessary support and care if they fear that their personal information may be disclosed in court. Another consideration is the potential impact that the production of records could have on the outcome of the case. The defense may argue that the records contain information that could bolster their case or discredit the victim's testimony. Conversely, the prosecutor may argue that the records are not relevant or that any potential benefits are outweighed by the harm that could be done to the victim or witness. In order to navigate these strategic considerations, there are several strategies that could be employed. For the defense, it may be advantageous to present a strong argument for why the production of the records is necessary to their case. They may need to demonstrate that the records contain information that is directly relevant to the charges against them and that this information could not be obtained through other means. They may also need to show that any potential harm to the victim or witness can be mitigated through appropriate safeguards, such as redaction of identifying information. For the prosecutor, it may be advantageous to argue that the records are not relevant to the case or that any potential benefits are outweighed by the harm that could be done to the victim or witness. They may also need to show that other evidence is available that can adequately address the issues raised by the defense. Additionally, they may want to highlight the potential impact that the production of records could have on future victims or witnesses and argue that this harm should be taken into consideration in any decision about disclosure. Overall, when dealing with section 278.7(4) of the Criminal Code of Canada, it is important to carefully consider the potential impact that the production of records could have on all parties involved. Both the accused person and the prosecutor should be prepared to present strong arguments to support their positions, and to demonstrate that any decisions made are in the interests of justice. By carefully navigating these strategic considerations, parties can work towards a fair and just outcome for all involved.