Criminal Code of Canada - section 486.1(1) - Support person- witnesses under 18 or who have a disability

section 486.1(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for a support person chosen by a witness under 18 or with a disability to be present during their testimony unless it interferes with proper administration of justice.

SECTION WORDING

486.1(1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.

EXPLANATION

Section 486.1(1) of the Criminal Code of Canada is a provision that seeks to ensure the fair treatment of witnesses who are particularly vulnerable. Specifically, this provision permits the judge or justice to order that a support person of the witness' choice be allowed to be present and be close to the witness while they are testifying. This applies to witnesses who are under the age of 18 or who have a mental or physical disability. The purpose behind this provision is to address the fact that testifying in court can be a highly traumatic and stressful experience for witnesses, particularly those who are young or have disabilities. By permitting a support person to be present, the witness may feel more comfortable and less stressed, which can help them provide their testimony in a clear and accurate manner. It's worth noting that while this provision grants the judge or justice the discretion to order a support person to be present, the judge or justice may choose to deny the request if they believe that allowing the support person would interfere with the proper administration of justice. This exception is important to ensure that the trial process remains fair and impartial, as the presence of a support person could potentially bias the testimony of the witness. Overall, Section 486.1(1) of the Criminal Code of Canada is an important provision that recognizes the unique challenges faced by vulnerable witnesses in the courtroom. By allowing support persons to be present, the provision seeks to facilitate a fair and just trial process while also prioritizing the well-being of witnesses.

COMMENTARY

Section 486.1(1) of the Criminal Code of Canada presents an important provision that provides protections for vulnerable witnesses who may require additional support when testifying in court. The provision relates to the requirement for a support person of the witness' choice to be present and close to the witness while they are testifying. The provision applies to any proceedings against an accused, and it provides a mechanism that allows prosecutors or witnesses to apply for the order. The provision's primary objective is to ensure that vulnerable witnesses feel more comfortable and supported while testifying in court. In many cases, the witness may be under the age of eighteen years or have a mental or physical disability, which can make them more vulnerable to the stress of testifying. The presence of a support person can help to ease the anxiety and stress associated with testifying, thereby making the testimony more reliable and accurate. The use of support persons during court proceedings has been widely recognized as an essential step in enhancing the fairness and transparency of the justice system. It provides vulnerable witnesses with the necessary support to ensure that they can testify effectively without undue stress or anxiety. This provision is particularly important in cases involving child witnesses, who may require additional support to allow them to testify effectively. The provision is not without its limitations, however. The judge or justice can only order the presence of a support person if they believe that the order would not interfere with the proper administration of justice. What constitutes interference with the proper administration of justice is a matter of interpretation, and in some cases, it may be difficult to determine when the presence of a support person would interfere with justice. There is also the concern that the presence of a support person may unduly influence the witness's testimony, in cases where the support person has a vested interest in the outcome of the case. For example, if the witness is testifying against a family member, the presence of another family member as a support person could potentially compromise the integrity of the testimony. Despite these limitations, the provision is a significant step in ensuring that the justice system is fair and transparent, particularly in cases involving vulnerable witnesses. It acknowledges the reality that some individuals may require additional support when testifying in court and provides an avenue through which they can receive that support. The provision also helps to increase public confidence in the justice system, particularly among vulnerable populations, such as children and people with disabilities. In conclusion, Section 486.1(1) of the Criminal Code of Canada is an important provision that recognizes the need for vulnerable witnesses to receive additional support when testifying in court. It provides a mechanism through which a support person of the witness' choice can be present and close to the witness while they testify, thereby ensuring that they feel more comfortable and supported during the proceedings. It is a significant step in increasing public confidence in the justice system, particularly among vulnerable populations, and serves to enhance the fairness and transparency of the justice system.

STRATEGY

Section 486.1(1) of the Criminal Code of Canada is an important provision that allows for support persons to be present with witnesses who are minors or have a mental or physical disability during their testimony in criminal proceedings. However, there are several strategic considerations that need to be taken into account when dealing with this section of the Criminal Code of Canada. One of the first strategic considerations is the need to assess the situation of the witness in question. It is important to determine whether the witness is under the age of eighteen or has a mental or physical disability and as to whether they require a support person. The right support person can create a comfortable environment and instill confidence and trust in the witness, making it easier for them to testify. It is also important to ensure that the support person is well-suited to the witness's needs, as different witnesses may have different preferences for support persons and the same support person may not be suitable for every witness. Another strategic consideration is ensuring that the support person is appropriately trained. A good support person must understand the roles and responsibilities of a support person, as well as the legal process and criminal court procedures. They must also be comfortable and skilled in managing the emotional needs of the witness, including providing reassurance and comfort when necessary. The support person must also understand the nature of their role, which is to provide support, but not advocacy. It is important to ensure that the support person does not provide legal advice, but rather assists the witness in understanding what is happening in the court. Strategic considerations must also be made when selecting the support person for the witness. It may be beneficial to choose someone who has a pre-existing relationship with the witness and can provide the necessary emotional support. However, if this is not possible or practical, a professional support person with training as a social worker, counselor or therapist, such as those employed by organizations such as Victim Services or the Canadian Department of Justice, may be the appropriate choice. Finally, it is important to consider the judge or justice presiding over the proceedings. While the Criminal Code of Canada provides for the right to have a support person present, the judge or justice may have the discretion to not allow for a support person if they believe its presence would interfere with the proper administration of justice. Therefore, it is important to effectively and persuasively argue before the court as to why allowing a support person would not interfere with the administration of justice and instead would benefit the witness. In conclusion, dealing with Section 486.1(1) of the Criminal Code requires a thoughtful and strategic approach. The appropriate selection of a support person, their training, and the manner in which the argument is presented to the court may all play a significant role in determining whether or not the support person is allowed during the proceedings. Ultimately, the goal is to create a safe and supportive environment that allows the witness to give their best testimony.