Criminal Code of Canada - section 486.1(2.1)

section 486.1(2.1)

INTRODUCTION AND BRIEF DESCRIPTION

An application can be made to the presiding or future judge during or before criminal proceedings.

SECTION WORDING

486.1(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings.

EXPLANATION

Section 486.1(2.1) of the Criminal Code of Canada pertains to the application for a publication ban on information related to a sexual offense proceeding. The section allows for such an application to be made by anyone involved in the proceedings, including those charged with the offense, during or before the proceedings begin. The application is made to the presiding judge or justice, who has the discretion to grant or refuse the ban. The purpose of the publication ban is to protect the privacy and dignity of the victim and prevent their identification in public. This is particularly important in sexual offense cases where the disclosure of the victim's identity can lead to further trauma and harm. The ban also serves to safeguard the reputation of the accused until they are proven guilty, which is a fundamental principle of the Canadian justice system. However, the publication ban is not absolute, and the press and public have the right to access information related to the proceedings. The judge or justice may grant exemptions to the ban depending on the circumstances of the case, such as if the information is in the public interest or required for a fair trial. Overall, Section 486.1(2.1) upholds the principles of privacy, dignity, and fairness in sexual offense proceedings while ensuring transparency and accountability in the justice system.

COMMENTARY

Section 486.1(2.1) of the Criminal Code of Canada provides a mechanism for victims of sexual offences to make an application to the presiding judge or justice for a publication ban on their identity during the proceedings. The section allows for such applications to be made during the proceedings or before the proceedings begin. This provision is a crucial safeguard for victims of sexual offences who may wish to protect their identity from public disclosure. This is important because the disclosure of a victim's identity can lead to stigmatization, trauma, and even physical harm. The stigma can arise from the societal shame and blame surrounding sexual assault, with victims sometimes being blamed for the crime that was committed against them. Thus, the right to remain anonymous is essential for victims to feel safe and to avoid further emotional harm. The section is also important as it allows for the application to be made at any stage of the proceedings. This flexibility ensures that individuals who may have initially wanted their identity to be disclosed, but later change their minds, can still apply for a publication ban. It also helps to prevent situations where a victim's identity is disclosed unintentionally, further traumatizing the victim. Moreover, the provision grants the presiding judge or justice discretion to make decisions on publication bans. This ensures that the circumstances of each case are carefully considered before a decision is made. The presiding judge or justice can take into account a range of factors such as the nature of the sexual offence, the age of the victim, and the potential harm that could result from disclosure of the victim's identity. This discretion allows for a more nuanced approach to the issue, taking into account the unique circumstances of each case. Additionally, the provision recognizes that the right to a fair trial also extends to the accused. As such, the presiding judge or justice must balance the right of the victim to remain anonymous with the right of the accused to a fair trial. The accused has the right to know the identity of their accuser to enable them to mount a defense. Therefore, the presiding judge or justice must carefully consider how to balance these competing interests. Overall, section 486.1(2.1) of the Criminal Code of Canada is an important provision to safeguard the interests of victims of sexual offences. It enables them to apply for a publication ban on their identity to ensure privacy and security, and to mitigate any further trauma. The provision grants the presiding judge or justice the discretion to carefully consider each case's unique factors, while also balancing the interests of the accused. As such, it plays a vital role in promoting access to justice, fairness, and equity in sexual offence cases.

STRATEGY

Section 486.1(2.1) of the Criminal Code of Canada provides the opportunity for an application to be made to the presiding judge or justice before or during proceedings. The section provides an opportunity for the defense to make a request for various measures, including the exclusion of the public from the proceedings, restrictions on the publication of information, provisions for the identification of witnesses, etc. The strategic considerations for an accused or defense counsel when dealing with this section are numerous. One of the most important factors to consider is the timing of the application. While subsection (2.1) provides for an application to be made before or during the proceedings, a request made before the beginning of the proceedings would allow the court to determine how the evidence is presented and the type of hearing the witness can expect. Before the beginning of the trial, an application can be made to the judge or justice who will preside over the proceedings. Advocates suggest that an application in the earlier stages of the proceedings is the most effective as it allows the accused to prepare their defense before the trial begins. Another strategic consideration is the nature of the case and the protection of witnesses. Counsel can consider how this section can bolster their ability to protect their client and their witnesses from harassment and intimidation. They can also use this section to seek out any restrictions on the information that the media can publish about the proceedings. The defense could also try to use the section to persuade the court to take extra steps for witness identification such as having screens or closed-circuit television (CCTV) systems in place. One potential strategy is to use this section in conjunction with other measures for witness protection, such as in-camera hearings. In-camera hearings allow the court to hear evidence or testimony in the presence of the judge and counsel, so that witnesses do not have to address or testify in front of a full courtroom. In dealing with this section, counsel must also consider the overall strategy of the case and how the evidence presented and arguments made related to this section will fit into that strategy. The standard for seeking orders under Section 486.1(2.1) is different than other confidentiality orders under the Criminal Code, such as Section 517 or Section 539, so counsel must be familiar with the differing standards. In conclusion, Section 486.1(2.1) of the Criminal Code of Canada provides an opportunity for defense counsel to take steps to protect their client and witnesses from harassment, intimidation, and other external pressures that could prejudice the outcome of their case. A strategic application of this section can benefit the case, but the timing of that application and a clear understanding of the possible consequences of such an application are crucial factors to consider before proceeding.