Criminal Code of Canada - section 486.1(3)

section 486.1(3)

INTRODUCTION AND BRIEF DESCRIPTION

The judge or justice must consider various factors in determining the support and protection needed for a witness, including age, disability, relationship to the accused, and nature of the offence.

SECTION WORDING

486.1(3) In making a determination under subsection (2), the judge or justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.

EXPLANATION

Section 486.1(3) of the Criminal Code of Canada deals with the issue of testimonial aids and accommodations for witnesses in criminal proceedings. Subsection (2) of this provision authorizes the court to make an order for the use of testimonial aids (such as screens, closed-circuit televisions, and support persons) or other accommodations (such as breaks, simplified language, and ground rules) when a witness has a particular need for them. Subsection (3) of section 486.1 requires the judge or justice to consider certain factors when making a determination on whether to order the use of such aids or accommodations. These factors are the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstances that the judge or justice considers relevant. The age of the witness is an important consideration since children and young persons may require more support and protection during their testimony than adults. Witnesses with mental or physical disabilities may also need accommodations to ensure that they can provide an accurate and reliable testimony. The nature of the offence and the relationship between the witness and the accused can influence the witness's level of stress, fear, or anxiety, making it necessary to use aids or accommodations to reduce their discomfort or distress. It is important to note that the judge or justice has discretion in deciding whether to order testimonial aids or accommodations and what type of aid or accommodation to provide. The judge or justice must balance the needs of the witness with the interests of the accused in receiving a fair trial. Therefore, this provision seeks to ensure that vulnerable witnesses are given the necessary assistance to provide their testimony while ensuring that the rights of the accused are protected.

COMMENTARY

Section 486.1(3) of the Criminal Code of Canada is a crucial provision that governs the admissibility of evidence given by vulnerable witnesses, including children and individuals with mental or physical disabilities. The provision outlines the factors that a judge or justice must consider when making a determination about whether to allow a particular witness to testify and how the testimony should be presented. One of the most important factors that must be taken into account when assessing the admissibility of evidence is the age of the witness. Children, in particular, may be more vulnerable to coercion, intimidation, or other forms of influence that could compromise the reliability of their testimony. The judge or justice must, therefore, consider the child's age when determining whether the witness is capable of providing a reliable account of the events in question. Another critical factor that must be considered is whether the witness has a mental or physical disability. Individuals with disabilities may face unique challenges when providing testimony, such as difficulty with communication or memory loss. As a result, the judge or justice must take these factors into account when assessing the reliability of the witness's testimony. In addition to these factors, the nature of the offence may also be relevant when determining the admissibility of evidence. For instance, crimes involving sexual assault or abuse may require the testimony of vulnerable witnesses, such as children, who may be reluctant to testify because of fear, shame, or embarrassment. The judge or justice must take into account the nature of the crime and the potential impact on the witness when assessing the admissibility of their evidence. Furthermore, the nature of the relationship between the witness and the accused may also be relevant. Witnesses who have a close relationship with the accused, such as family members or friends, may be more likely to give testimony that is biased or influenced in some way. The judge or justice must, therefore, consider how the witness's relationship with the accused may affect the reliability of their testimony. Finally, the provision allows judges or justices to consider any other circumstances that they deem relevant to the case at hand. This provision provides flexibility to the judge or justice to consider any unique circumstances that may affect the reliability of a witness's testimony. In conclusion, Section 486.1(3) of the Criminal Code of Canada is a critical provision that ensures that evidence given by vulnerable witnesses is reliably presented to the court. This provision outlines several important factors that must be taken into account when assessing the admissibility of evidence, including the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, and the nature of any relationship between the witness and the accused. By considering these factors, judges or justices can ensure that the court receives accurate and reliable evidence, which is critical to the fair administration of justice.

STRATEGY

Section 486.1(3) of the Criminal Code of Canada provides for special accommodations for vulnerable witnesses, including children and individuals with mental or physical disabilities, to give testimony during criminal proceedings. The judge or justice must take into account various factors when determining whether these accommodations should be granted. In this paper, several strategic considerations will be examined, as well as some strategies that could be utilized when dealing with this section of the Criminal Code. One strategic consideration when dealing with this section is to ensure that the witness's needs are met and that they feel comfortable enough to provide their evidence. Often, vulnerable witnesses might feel scared, threatened, or intimidated about testifying in court and may require additional support or accommodations to feel confident and secure about the process. Therefore, one strategy would be to provide practical and emotional support for witnesses, such as offering them a safe and secure space to testify, providing them with counseling or emotional support, or allowing them to have a support person with them during their testimony. Another strategic consideration when dealing with this section of the Criminal Code is to ensure that the witness is comfortable with the process of testifying in court. Vulnerable witnesses, particularly children, may not understand the legal process and may need to be educated about what to expect. A strategy that could be employed is to use clear and simple language when explaining the legal process, allowing the witness to visit the courtroom before the trial date, or providing an explanation of the process using illustrations or other visuals. A third strategic consideration is to ensure that the witness understands that they are being heard, that their testimony is valued, and that they are not alone. This might involve providing information about the legal process, including what to expect in court, and the role of the witness in a criminal trial. Furthermore, the witness could be reassured that they are not the only one that has experienced what they have endured, and there is help available for them. Another strategy that could be employed when dealing with this section of the Criminal Code is to utilize alternative means of communication for vulnerable witnesses. For example, children and individuals with disabilities might find it easier to communicate through alternative methods such as visual aids, sign language, or interpreters. This strategy can be especially useful when dealing with witnesses who may struggle with communication due to physical or mental disabilities. In conclusion, when dealing with section 486.1(3) of the Criminal Code of Canada, it is essential to provide the best possible support for vulnerable witnesses to ensure that they feel secure, valued, and heard. It is important to consider a range of factors when determining what accommodations might be appropriate and to tailor the approach to the specific needs of the witness. The strategies discussed in this paper are just a few examples of the ways in which this could be achieved, but ultimately, the key is to prioritize the wellbeing and participation of the vulnerable witnesses in the process of criminal justice.