section 486.2(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for witnesses to testify outside the court room or behind a screen if necessary to obtain a full and candid account of the acts complained of.

SECTION WORDING

486.2(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused 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 486.2(2) of the Criminal Code of Canada is a provision that allows a judge or a justice in any criminal proceedings against an accused to order that a witness testify outside the courtroom or behind a screen or any other device that would prevent the witness from seeing the accused. This provision is intended to ensure that witnesses are able to deliver a full and candid account of their knowledge to the court without being intimidated, threatened, or influenced by the accused. The provision allows the prosecutor or the witness to apply for the order, and it is the judge or the justice who is empowered to grant the order after considering the facts and the circumstances of the case. The decision to grant such an order is at the discretion of the judge or the justice, who has to determine whether it is necessary to obtain a full and candid account from the witness of the acts complained of. The provision aims to promote the fair administration of justice by protecting witnesses from undue influence or intimidation. Witnesses may be reluctant to testify against an accused if they fear for their safety, or they may be hesitant to provide accurate information if they are distressed or emotionally affected by the presence of the accused in the courtroom. Testimonies that are given under duress or coercion may not be reliable or truthful, and this provision protects the rights of witnesses to provide full and honest accounts of their knowledge in criminal proceedings. Overall, Section 486.2(2) of the Criminal Code of Canada is a mechanism to promote the fair administration of justice by ensuring that witnesses are able to provide full and candid accounts of their knowledge without being intimidated, threatened, or otherwise negatively influenced by the accused.

COMMENTARY

Section 486.2(2) of the Criminal Code of Canada is a provision that relates to the need to protect and support witnesses who might feel uncomfortable or intimidated to testify in court. This section allows the judge or justice to order that a witness testify outside the courtroom or behind a screen or other device that would allow the witness not to see the accused if it is necessary to obtain a full and candid account from the witness of the acts complained of. This provision recognizes that some witnesses, particularly in cases involving violence, sexual assault, or organized crime, may be hesitant or fearful to testify in open court, due to the possibility of reprisals or retaliation from the accused or their associates. In some cases, the presence of the accused in the courtroom could cause significant distress or trauma for the witness, inhibiting their ability to provide an accurate and complete testimony. By allowing for testimony to be given outside the courtroom or behind a screen, this section of the Criminal Code of Canada seeks to address these concerns and ensure that witnesses are protected and supported throughout the legal process. The provision recognizes the importance of obtaining a full and candid account of the events in question, and acknowledges that a more comfortable and secure environment may be necessary to achieve this goal. The provision is discretionary, which means that judges or justices are not required to order testimony outside the courtroom or behind a screen in every case. Rather, the decision will depend on the specific circumstances of the case and the needs and concerns of the witness. It is worthy to note that this section of the Criminal Code of Canada was amended in 2015 to include a requirement that the judge or justice consider the potential impact of the order on the accused's right to a fair trial before making a decision. This amendment seeks to ensure that the rights of the accused are not unfairly compromised by the order, while still recognizing the need to protect and support witnesses. In conclusion, Section 486.2(2) of the Criminal Code of Canada is a provision that seeks to strike a balance between the needs of witnesses and the rights of the accused. It recognizes the potential challenges that witnesses may face in providing testimony in open court, and allows for more comfortable and secure environments to be created when necessary, while also ensuring that the accused's right to a fair trial is not unfairly compromised. This provision is an important component of Canada's legal system, as it helps to promote the fair administration of justice and protect and support those who come forward to testify in court.

STRATEGY

Section 486.2(2) of the Criminal Code of Canada permits a judge or justice, upon request of the prosecutor or a witness, to order that a witness testify outside the court or behind a screen to shield him or her from seeing the accused. Such an order may be necessary to produce a full and candid account of incidents complained about. The provision also overrides Section 650 of the Criminal Code, which mandates that witnesses give their testimony in open court. When dealing with this section of the Criminal Code, several strategic considerations should be kept in mind. First and foremost, it is essential to determine whether the testimony of the witness seeking protection will be critical to the case. If the witness has a crucial role in supporting the prosecution, then an application to protect the witness may be necessary. However, if the testimony is not vital to the case, it may be better to forego making the request and avoid potential issues later. Another critical consideration is the potential that witnesses may choose not to come forward to testify if they fear retribution by the accused. In such cases, the use of section 486.2(2) may be a strategic tactic to increase the willingness of witnesses to testify, knowing that they will be shielded from the accused. Similarly, the screening of witnesses may provide some protection from witness intimidation. The third consideration is the impact of such orders on the jury. The use of section 486.2(2) may give jurors the impression that the accused is guilty if they see that the witness is being screened. This can create a challenge for the prosecutor, because it is essential to maintain the appearance of impartiality and fairness throughout the trial. Jurors must be reminded that the orders are meant to provide protection to the witnesses and should not be viewed as proof of guilt. A fourth consideration involves the preparation of witnesses for testimony. A witness who will testify behind a screen may feel more vulnerable and exposed, and may require more support from the prosecutor. Pre-trial interviews should be conducted to explain the procedure for such testimony and to ensure that witnesses understand the meaning of the order. This can help calm anxious witnesses and produce more effective testimony. Finally, the use of section 486.2(2) should be weighed against the potential impact on the defendant's Charter rights. While the courts have emphasized the need to protect witnesses, the accused is entitled to certain rights, including the right to hear and see all witnesses who testify against them. Any order under 486.2(2) must be narrowly tailored and come with clear justifications that satisfy constitutional standards. In terms of strategies when dealing with section 486.2(2), several should be considered. One strategy is to use the provision sparingly, and only in cases where it is necessary to protect the witness from physical harm or intimidation. Another is to ensure that defendants have ample opportunities to challenge the use of section 486.2(2) on constitutional grounds. This can be done by raising Charter objections in the application for the order or during the trial. Prosecutors should also consider alternatives to using section 486(2). For example, in some cases, it may be possible to offer witness protection through confidentiality orders, or by employing an escort to accompany the witness to and from the courthouse. Defense counsel may also want to consider requesting specific accommodations for the accused during testimony, such as the use of earplugs to prevent the accused from hearing portions of the testimony they might potentially react to. In conclusion, while section 486.2(2) provides an essential tool to protect witnesses from intimidation and other dangers, its use should never be taken lightly. Its application must be weighed carefully against a host of factors, including the impact on the fairness of the trial and the rights of the accused. Prosecutors and defense counsel should work to ensure that witnesses are prepared for testimony and, where appropriate, explore alternatives that may offer similar protections while respecting constitutional rights and forestalling prejudicial impact.