section 486.1(4)

INTRODUCTION AND BRIEF DESCRIPTION

A witness can only have a support person if the judge deems it necessary for the proper administration of justice.

SECTION WORDING

486.1(4) The judge or justice shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice.

EXPLANATION

Section 486.1(4) of the Criminal Code of Canada relates to the use of support persons in criminal proceedings. In some cases, a witness may require emotional or psychological support during their testimony. In such cases, the witness may request to have a support person present in the courtroom to assist them during their testimony. However, this section highlights that the decision to allow a support person is at the discretion of the judge or justice presiding over the case. The judge or justice must determine whether allowing a support person is necessary for the proper administration of justice. This means that the judge must consider the impact of the support person's presence on the fairness of the trial, the integrity of the evidence, and other relevant factors. Allowing a support person may be necessary in situations where the witness is particularly vulnerable, such as in cases of sexual assault or child abuse. The support person may help the witness to feel more comfortable and secure, which can improve the quality of their testimony. However, if the support person's presence is likely to be disruptive or prejudicial, the judge may decide that it is not necessary for the proper administration of justice. By providing this provision in the Criminal Code of Canada, the legal system acknowledges the importance of addressing the emotional and psychological needs of witnesses in criminal proceedings. It emphasizes that the focus of the justice system is not solely on the evidence but also on the well-being of the individual involved in the case. Overall, Section 486.1(4) seeks to ensure that the trial is conducted fairly and justly, while also recognizing the importance of providing adequate support to vulnerable witnesses.

COMMENTARY

Section 486.1(4) of the Criminal Code of Canada lays out the procedure for allowing a witness in a criminal trial to be accompanied by a support person. This provision offers an important opportunity to protect vulnerable witnesses from emotional distress and trauma caused by the judicial process. The presence of a support person can offer a number of benefits to vulnerable witnesses, such as children or those who have experienced trauma. For example, a support person can offer emotional support during a trial, which can help reduce anxiety and stress. In addition, a support person can offer practical assistance, such as taking notes or reminding the witness to answer questions truthfully and accurately. This can help ensure that the witness's testimony is reliable and credible. However, the decision to allow a support person for a witness is not automatic. The Criminal Code of Canada clearly states that the judge or justice must be of the opinion that such support is necessary for the proper administration of justice. This requirement ensures that the right to a fair trial of the accused is protected. The law recognizes that the presence of a support person may influence the testimony of the witness or disrupt the proceedings. Therefore, the judge or justice must carefully weigh the potential benefits against the potential risks and make a decision that is in the best interest of the administration of justice. There are some concerns, however, that the requirements of section 486.1(4) may be too restrictive. Some critics argue that the provision creates a high threshold for allowing support persons, which may lead to some witnesses not receiving the emotional support they need. Furthermore, some argue that the requirement for a judge or justice to decide if a support person is necessary puts too much trust and discretion in the hands of one individual. Finally, these critics argue that the provision may not go far enough to address the particular needs and experiences of vulnerable witnesses. To address these concerns, some have suggested that the provision be revised to allow for greater flexibility in the decision-making process. For example, some have suggested that the requirement for the judge or justice's opinion could be replaced with a more general standard of whether the witness would benefit from the presence of a support person. This would allow for a more individualized and nuanced consideration of the benefits and risks associated with each case. In conclusion, section 486.1(4) of the Criminal Code of Canada is an important provision that recognizes the role of a support person in protecting vulnerable witnesses during criminal trials. However, the requirements for allowing such a person must be carefully balanced with the rights of the accused and the proper administration of justice. To ensure that vulnerable witnesses receive the support they need, it may be necessary to revisit this provision and consider changes that allow for greater flexibility and consideration of individual circumstances.

STRATEGY

Section 486.1(4) of the Criminal Code of Canada can present a challenging situation for all parties involved in a criminal trial. It is essential for lawyers to carefully consider different strategies to balance their clients' need for emotional support and the proper administration of justice. One strategic approach may be for lawyers to establish the necessity of having a support person present during the witness testimony. Lawyers may employ various tactics to demonstrate the importance of having the support person, including providing evidence about the emotional state of the witness, the nature of the crime, and the potential impact of testifying on the victim. The lawyer may also highlight the importance of considering the support person's role in protecting the witness from intimidation or retaliation. Another strategy may be to engage in negotiations with the prosecutor, the court, and the witness to develop a formal agreement on the role of the support person. The agreement may outline the conditions under which the support person may provide emotional support, such as being present in the courtroom during testimony, sitting close to the witness, and restrictions on communication with the witness during the trial. The agreement may also specify the types of emotional support that the support person can provide to the witness, such as holding their hand, providing tissues, or speaking to them when needed. In some cases, lawyers may choose to challenge the judge's decision to limit or exclude the support person, arguing that it would deprive their client of a fair trial. In such instances, lawyers can present evidence to the court about the positive impact of having a support person present during testimony, including improved witness credibility, reduced stress, and improved emotional well-being of the witness. When dealing with Section 486.1(4), lawyers may also consider the potential impact of the support person on the jury. Many courts are cautious about allowing support persons in the courtroom, as they may unduly influence the jury's perceptions or reactions. Lawyers can address this concern by requesting that the support person sit in a designated area, such as a separate witness box, or by limiting the support person's presence in the courtroom to specific times during the trial. In addition, lawyers may request that the judge provide instructions to the jury about the presence of the support person and the reason for their presence. In conclusion, when dealing with Section 486.1(4), lawyers must carefully consider various factors, including the emotional state of the witness, the nature of the crime, and potential impact on the criminal trial. Employingstrategic approachesfor detailing an agreement between the prosecutor, court, and witness or establishing the need for a support person in court, or, if necessary, challenging the judge's decision to limit or exclude the support person, can help balance the need for support with the proper administration of justice.