Criminal Code of Canada - section 486.2(4) - Specific offences

section 486.2(4)

INTRODUCTION AND BRIEF DESCRIPTION

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

SECTION WORDING

486.2(4) Despite section 650, if an accused is charged with an offence referred to in subsection (5), the presiding judge or justice may order that any witness testify (a) outside the court room if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and (b) 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(4) of the Criminal Code of Canada is a provision that allows a presiding judge or justice to order the testimony of a witness to occur outside the courtroom or behind a screen if the individual's safety and/or ability to provide an accurate recount of the events in question is at risk. This section is particularly relevant for witnesses in cases involving serious offences, such as sexual assault, domestic violence, or organized crime. These crimes often involve a high level of risk and intimidation for the witnesses, who may fear for their safety or feel pressured to remain silent or alter their testimony in order to avoid potential repercussions. By allowing witnesses to testify outside of the courtroom or behind a screen, Section 486.2(4) provides an additional layer of protection and support for those who are tasked with providing evidence in high-risk situations. This provision recognizes the importance of ensuring that witnesses feel safe and comfortable when testifying, in order to obtain a full and accurate recount of the events in question. Moreover, Section 486.2(4) also highlights the importance of protecting witnesses as a cornerstone of the Canadian justice system. By ensuring that witnesses are provided with adequate protections and accommodations, the system can work towards achieving justice for all parties involved.

COMMENTARY

Section 486.2(4) of the Criminal Code of Canada allows for witnesses to testify outside the courtroom or behind a screen or other device under certain circumstances. This is a significant provision as it recognizes the importance of protecting witnesses and ensuring that they are able to provide truthful accounts without fear of retaliation or intimidation. The first circumstance under which a witness may testify outside the courtroom is if the presiding judge or justice deems it necessary to protect the safety of the witness. This is particularly relevant in cases where there is significant risk of harm to the witness if they were to testify in open court. For example, if the accused is a member of a gang or organized crime group, witnesses may be hesitant to come forward and testify in fear of retaliation from the accused or their associates. In such cases, allowing witnesses to testify outside the courtroom can be crucial in ensuring that justice is served and the safety of witnesses is protected. The second circumstance under which a witness may testify outside the courtroom is if the presiding judge or justice deems it necessary to obtain a full and candid account from the witness of the acts complained of. This recognizes the fact that witnesses may be hesitant or unwilling to provide a full and truthful account of events in the presence of the accused. This is particularly relevant in cases of sexual assault or domestic violence where the witness may have a close relationship with the accused. Testifying outside the courtroom or behind a screen can provide witnesses with the necessary level of protection to feel comfortable providing a full and candid account of events. It is important to note that this provision is not a blanket authorization for witnesses to testify outside the courtroom or behind a screen. The presiding judge or justice must make a specific order for each witness based on their assessment of the situation and the evidence presented. This ensures that each witness is assessed on a case-by-case basis to determine the level of protection necessary. In addition to this provision, there are other measures in place to protect witnesses, including the use of publication bans, witness protection programs, and transportation and accommodation assistance. These measures are aimed at ensuring that witnesses are able to come forward and testify without fear of harm or intimidation. Overall, section 486.2(4) is an important provision in the Criminal Code of Canada that recognizes the importance of protecting witnesses in criminal trials. By allowing witnesses to testify outside the courtroom or behind a screen, it ensures that witnesses are able to provide full and candid accounts of events without fear of retaliation or intimidation. This is crucial in ensuring that justice is served and that witnesses are able to play their vital role in the criminal justice system.

STRATEGY

Section 486.2(4) of the Criminal Code of Canada is a critical tool for ensuring the safety of witnesses and obtaining full and candid testimony. The provision provides for the possibility of ordering witnesses to testify outside the courtroom, or behind a screen or other device to protect their safety or to obtain a candid account of the acts complained of. As such, lawyers and criminal justice professionals must be aware of the strategic considerations involved in the use of this section. One of the first strategic considerations is the timing of the application. The order must be made before the trial, and the party seeking the order must apply to the court at least 60 days before the trial date. As such, lawyers must be aware of this timing and factor it into their trial preparation and strategy. A second strategic consideration is understanding the requirements for obtaining the order. To obtain an order under section 486.2(4), the presiding judge or justice must be satisfied that the order is necessary to protect the safety of the witness or to obtain a full and candid account. As such, lawyers need to be prepared to present a compelling case to the court, including evidence to demonstrate the potential risks to the witness or the importance of obtaining a full and candid account. A third strategic consideration is the potential impact of the order on the trial process. Ordering a witness to testify outside the courtroom or behind a screen can impact the credibility of the witness and the weight that the court may give to their testimony. As such, lawyers must be prepared to address any potential challenges to the credibility of the witness and ensure that their testimony remains admissible and persuasive. In light of these strategic considerations, there are several strategies that lawyers and criminal justice professionals could employ when dealing with section 486.2(4). To begin with, they could engage in an early assessment of the witness's safety and the potential risks that they may face. This could involve working with law enforcement agencies and social service providers to assess the risks and provide support to the witness. Secondly, lawyers could conduct a thorough investigation of the alleged acts to be able to present a compelling case for the order. This could involve interviewing potential witnesses and gathering evidence to demonstrate the need for the order. Thirdly, lawyers could work to prepare the witness for testifying outside the courtroom or behind a screen. This could involve ensuring that the witness is comfortable with the process, providing support throughout the trial, and addressing any potential challenges to their credibility. Finally, lawyers could work to address any potential challenges to the admissibility and weight of the witness's testimony. This could involve working with expert witnesses to authenticate evidence and ensure that the witness's testimony is persuasive. In conclusion, section 486.2(4) of the Criminal Code of Canada is a critical tool for ensuring witness safety and obtaining full and candid testimony in criminal trials. Lawyers and criminal justice professionals must be aware of the strategic considerations involved in the use of this section and employ effective strategies to ensure that witnesses are protected and their testimony is admissible and persuasive.