INTRODUCTION AND BRIEF DESCRIPTION
A support person may be present with a witness during their testimony if deemed necessary by the judge to obtain an honest account of the alleged acts.
SECTION WORDING
486.1(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, 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 if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
EXPLANATION
Section 486.1(2) of the Criminal Code of Canada is a provision that serves to enhance the experience of witnesses who testify in criminal proceedings. It allows a support person of the witness' choice to be present and close to them while they testify, provided that the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of. The purpose of this provision is to address the potential emotional and psychological effects of testifying in court, which can be daunting, intimidating, or traumatizing to some witnesses. Witnesses who have experienced trauma or fear may struggle to give a full and accurate account of what they have witnessed or experienced, especially if they perceive or anticipate hostility from the accused or other parties. The presence of a trusted and supportive individual can help the witness feel safer, more composed, and more capable of giving their best testimony. The support person can be a family member, friend, counselor, or other individual who is not involved in the case and has no stake in the outcome. They are not allowed to interfere with or influence the witness's testimony, but they can provide emotional support, explain legal procedures, and offer practical assistance (such as tissues, water, or breaks) if needed. However, the judge or justice has discretion to decide whether allowing a support person is necessary in a particular case, based on factors such as the age, vulnerability, or health of the witness, the nature of the evidence, and the potential impact on the trial process and the rights of the accused. The order can also be subject to conditions or limitations, such as an exclusion order for the witness, or a prohibition on communicating with the accused or others during the trial. Overall, section 486.1(2) reflects the Criminal Code's recognition that the well-being and dignity of witnesses are essential ingredients of a fair and just criminal justice system, and that their participation in the process should be facilitated and respected as much as possible. By allowing support persons to assist witnesses in giving their testimony, the provision seeks to ensure that the truth can be effectively pursued and justice can be better served for all concerned.
COMMENTARY
Section 486.1(2) of the Criminal Code of Canada is a provision that is designed to enhance the ability of witnesses to provide truthful testimony in court proceedings. To achieve this goal, the provision allows for the appointment of a support person for the witness during their testimony, as long as such an appointment is deemed necessary by the judge or justice presiding over the trial. The appointment of a support person is particularly relevant in cases of sexual assault, domestic violence, and other types of crimes where the victim may have experienced significant emotional trauma or distress. In such cases, the presence of a support person can provide the witness with much-needed comfort and reassurance, making it easier for them to recount the events of the crime and providing them with the necessary emotional support to deal with the stress of the trial. The provision recognizes the importance of the testimony of witnesses in criminal proceedings. Without their testimony, it would be difficult to establish guilt or innocence and maintain the integrity of the justice system. However, the reality is that many victims of crime may experience anxiety, stress, and fear when they are required to testify in court, particularly if they are required to confront their alleged attacker. This can make it difficult for them to provide a full and candid account of the events that took place, potentially leading to an incomplete or inaccurate portrayal of the crime. By allowing for the appointment of a support person for the witness, the provision seeks to address this problem. The support person can provide the witness with much-needed emotional support, reassurance, and comfort, allowing them to focus on providing a clear and accurate account of the events that took place. They can also intervene if the witness appears to be struggling or experiencing distress, helping to maintain the integrity of the proceedings and ensuring that justice is served. At the same time, the provision recognizes the importance of ensuring that the trial is fair to the accused. As such, the appointment of a support person may be contested by the prosecutor or the defense if they believe that it could potentially compromise the trial's fairness. The judge or justice must carefully weigh these concerns against the needs of the witness, ensuring that the provision is used only where it is necessary to obtain a full and candid account of the events. In conclusion, Section 486.1(2) of the Criminal Code of Canada is an important provision that recognizes the needs of witnesses in criminal proceedings and provides them with the support they need to provide a full and accurate portrayal of the events that took place. By allowing for the appointment of a support person, the provision ensures that the trial is fair to both the accused and the witness, ultimately contributing to the administration of justice and the maintenance of a fair and equitable justice system.
STRATEGY
Section 486.1(2) of the Criminal Code of Canada allows for witnesses to have a support person present while testifying if the judge or justice believes that it will result in a full and candid account of the events in question. When dealing with this section, there are several strategic considerations that should be taken into account. Firstly, it is important to consider the potential impact of having a support person present on the credibility of the witness. While having emotional support may help a witness to feel more comfortable and confident while testifying, it could also give the impression that the witness is not capable of testifying without assistance. This could undermine their credibility and make it more difficult for the trier of fact to assess the veracity of their testimony. Secondly, it is important to consider the potential impact on the dynamics of the trial. Allowing a support person to be present could introduce an additional element of emotion and potentially distract from the main issues at hand. It is important to consider whether this potential distraction is worth the potential benefits of having a witness feel more comfortable while testifying. Given these strategic considerations, there are several strategies that could be employed when dealing with section 486.1(2). One strategy would be to carefully vet potential support persons to ensure that they are not too emotionally invested in the outcome of the trial and will not distract from the main issues at hand. Another strategy would be to consider alternative means of providing emotional support, such as allowing a witness to take breaks or providing counseling services before and after the trial. Ultimately, the decision to allow a support person to be present during testimony should be made on a case-by-case basis, taking into account the unique circumstances of each witness and trial. By carefully considering the potential impacts and employing appropriate strategies, it is possible to strike a balance between supporting witnesses and ensuring that the trial remains fair and focused on the issues at hand.