INTRODUCTION AND BRIEF DESCRIPTION
An application can be made to the judge before or during proceedings.
SECTION WORDING
486.2(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 486.2(2.1) of the Criminal Code of Canada is part of the broader provisions dealing with the admissibility of evidence related to the sexual history of a complainant in relation to sexual assault or other sexual offenses. This subsection specifically states that an application may be made during the trial proceedings or before they begin to the presiding judge or justice, asking for certain evidence relating to the complainant's sexual history to be excluded or admitted. The purpose of this provision is to ensure that sensitive and potentially discriminatory evidence related to a complainant's sexual history is not unfairly used against them in a trial. It recognizes the potential for such evidence to be used to impugn the credibility of a complainant and perpetuate harmful myths surrounding sexual violence, such as the idea that a victim's sexual history makes them more likely to have consented to sexual assault. By allowing applications to be made to the presiding judge or justice, the provision ensures that proper procedures are in place to carefully consider such evidence and weigh its potential impact on the fairness of a trial. It also allows the defense and prosecution to present their arguments before a decision is made, in order to ensure that the evidence is either admitted or excluded on the basis of its relevance and potential impact on the outcome of the trial. Overall, section 486.2(2.1) is a crucial provision in the Criminal Code of Canada aimed at protecting the rights and dignity of survivors of sexual assault and ensuring that they receive a fair trial in accordance with principles of justice and equality.
COMMENTARY
Section 486.2(2.1) of the Criminal Code of Canada is a provision outlining the circumstances under which an application can be made to the presiding judge. Specifically, it permits an application referred to under subsections (1) or (2) to be made during the proceedings or before the proceedings begin. This provision is relevant in the context of criminal proceedings where certain types of evidence may be considered prejudicial or harmful to the accused's case. In such instances, the accused may make an application to the presiding judge to have the evidence excluded or limited in its use under subsections (1) or (2) of Section 486.2. For example, Subsection (1) of Section 486.2 of the Criminal Code allows the accused to apply to the presiding judge to have recorded evidence excluded if the evidence has been obtained in a manner that violates the accused's Charter rights or is otherwise deemed as unfair. Similarly, subsection (2) of Section 486.2 permits the accused to make an application to have the evidence of a vulnerable victim excluded if its prejudicial effects outweigh its probative value. The purpose of permitting applications under subsections (1) and (2) of Section 486.2 is to ensure that the accused is not unfairly prejudiced by the use of evidence that could compromise the outcome of the trial. This provision safeguards the accused's right to a fair trial, which is a core principle of the Canadian justice system. The inclusion of subsection (2.1) ensures that the accused can make these applications either during the proceedings or before they begin. This provision is intended to provide flexibility to the accused, who may not be aware of the prejudicial evidence until the trial has already begun. By allowing the accused to make an application to the presiding judge during the proceedings, the accused can react swiftly to new evidence that could be potentially harmful to their case. However, there may be practical limitations to the inclusion of subsection (2.1). For example, if the accused makes an application during the proceedings, it could disrupt the flow of the trial and cause delays in the administration of justice. Additionally, the inclusion of this subsection may require the presiding judge to adjourn the trial to consider the evidence and reach a decision. Overall, the inclusion of Section 486.2(2.1) of the Criminal Code of Canada serves to protect the rights of the accused by allowing them to make applications to the presiding judge for the exclusion of evidence that is prejudicial to their case. While the inclusion of subsection (2.1) provides flexibility to the accused, it is important to balance this with the need for a timely administration of justice. The presiding judge must consider the interests of all parties and ensure that the resolution of the case is fair and just.
STRATEGY
Section 486.2(2.1) of the Criminal Code of Canada allows for an application to be made during criminal proceedings or before the proceedings begin requesting a judge or justice to preside over the case. This section is important as it can have significant implications for the outcome of the case. As such, strategic considerations need to be taken into account when deciding whether to make such an application. Some key strategic considerations include the following. Firstly, it is important to consider the specific circumstances of the case. For example, if the case involves complex legal or factual issues, it may be advantageous to have a judge or justice who has expertise in the relevant area presiding over the case. Alternatively, if the case involves a controversial or politically charged issue, it may be preferable to have a judge or justice who is known for their impartiality and ability to make decisions without bias. Secondly, it is important to consider the potential biases or prejudices of the judge or justice who is currently assigned to the case. If there is any indication that the current presiding judge or justice may have a bias or prejudice that could impact their ability to make a fair decision, it may be advisable to make an application under section 486.2(2.1) to request a different judge or justice to preside over the case. Thirdly, it is important to consider the timing of the application. If the application is made before the proceedings begin, it may be possible to select a presiding judge or justice who is known to be fair and impartial. However, if the application is made during the proceedings, it may be more difficult to find another judge or justice who is available and willing to take over the case. Finally, it is important to consider the potential impact on the case if the application is granted. For example, if a new judge or justice is appointed, they may need time to become familiar with the details of the case, which could result in delays or adjournments. Additionally, if the new judge or justice has a different approach to the case than the original presiding judge or justice, this could impact the outcome of the case. Given these strategic considerations, there are a number of strategies that could be employed when dealing with section 486.2(2.1) of the Criminal Code of Canada. One strategy is to conduct thorough research and background checks to identify potential biases or prejudices of the current presiding judge or justice. If there is evidence of bias or prejudice, an application could be made to request a different judge or justice to preside over the case. Another strategy is to consult with legal experts or advisors to determine the best course of action. They may be able to provide valuable insights into the potential impact of making an application under section 486.2(2.1) and help in weighing the pros and cons of such an application. Overall, when dealing with section 486.2(2.1) of the Criminal Code of Canada, it is important to carefully consider the specific circumstances of the case, the potential biases or prejudices of the current presiding judge or justice, the timing of the application, and the potential impact on the case if the application is granted. A strategic approach that takes into account these factors, backed by sound legal advice, can help to maximize the chances of a fair and just outcome.