section 486.3(2)

INTRODUCTION AND BRIEF DESCRIPTION

The accused cannot personally cross-examine a witness if it is deemed necessary for a full and candid account, and counsel will be appointed if needed.

SECTION WORDING

486.3(2) In any proceedings against an accused, on application of the prosecutor or a witness, the accused shall not personally cross-examine the witness if the judge or justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness. The judge or justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.

EXPLANATION

Section 486.3(2) of the Criminal Code of Canada is a provision that prohibits the accused from personally cross-examining a witness in criminal proceedings where the prosecution or the witness has made an application to the court. The judge or justice has the discretion to appoint counsel to conduct the cross-examination if they believe that allowing the accused to personally cross-examine the witness would prevent the witness from providing a full and honest account of the events leading to the charges against the accused. This provision is an attempt to address the issue of witness intimidation, which is a significant problem in criminal proceedings. Witness intimidation can take many forms, including physical threats, harassment, and emotional manipulation. Witnesses who are intimidated may be reluctant to testify or may provide false or incomplete information. The provision is designed to prevent such situations by ensuring that witnesses are able to give their testimony freely and without fear of retaliation. The provision also serves to protect the rights of the accused by ensuring that they have a fair trial. The right to cross-examine witnesses is an important aspect of a fair trial, as it allows the accused to challenge the evidence presented against them. However, this right must be balanced against the need to protect witnesses from intimidation and other forms of harm. By appointing counsel to conduct the cross-examination, the provision ensures that the accused's right to cross-examination is not completely eliminated, while still providing protection to witnesses. Overall, Section 486.3(2) of the Criminal Code of Canada is an important provision that balances the rights of the accused with the need to protect witnesses and ensure a fair trial. It highlights the importance of witness protection in criminal proceedings and serves as a reminder that the justice system must take measures to protect all those involved in the legal process.

COMMENTARY

Section 486.3(2) of the Criminal Code of Canada is a provision that aims to prevent the revictimization of witnesses in criminal proceedings. The provision prohibits an accused from personally cross-examining a witness if the judge or justice is of the opinion that the accused's presence would inhibit the witness from giving a full and candid account of the acts complained of. Instead, the judge or justice may appoint counsel to conduct the cross-examination on behalf of the accused. This provision is particularly relevant in cases involving sexual assault and domestic violence, where the accused is often known to the witness and may have a history of intimidation or abuse. Allowing the accused to cross-examine the witness in such cases may cause the witness to feel re-traumatized and discourage them from speaking truthfully. This is especially true in cases where the accused is representing themselves, as they may lack the legal knowledge and skills to conduct cross-examinations effectively. By appointing counsel to conduct the cross-examination, the provision ensures that the accused's right to cross-examine the witness is not unduly restricted while also safeguarding the witness's right to provide evidence without fear or intimidation. This strikes a balance between the adversarial nature of criminal proceedings and the need to protect vulnerable witnesses. Section 486.3(2) has been subject to criticism from some quarters, who argue that it may infringe on an accused's right to a fair trial. They contend that the accused should have the right to cross-examine witnesses as it is a fundamental element of the adversarial system of justice. However, it should be noted that this provision only applies in limited circumstances where there is a risk of revictimization. In cases where the accused is not known to the witness or where there is no history of abuse or intimidation, there is likely no need to restrict the accused's right to cross-examination. Furthermore, the provision does not prohibit an accused from questioning witnesses through their counsel, which ensures that the accused's right to cross-examination is not completely denied. The provision simply seeks to balance the rights of the accused with the rights of vulnerable witnesses. In conclusion, Section 486.3(2) of the Criminal Code of Canada is a necessary provision that aims to protect the rights of vulnerable witnesses in criminal proceedings. It strikes a balance between the accused's right to cross-examination and the need to prevent revictimization. As such, it should be upheld as a key pillar of the justice system.

STRATEGY

Section 486.3(2) of the Criminal Code of Canada is a unique provision that prohibits an accused from personally cross-examining a witness in certain circumstances. The provision seeks to prevent the intimidation or harassment of vulnerable witnesses, particularly those who have been victims of sexual or domestic violence, by the accused during trial. This raises a number of strategic considerations for prosecutors and defense counsel. One consideration for prosecutors is how to effectively use this provision to protect their witnesses while also ensuring a fair trial for the accused. The prosecutor must determine which witnesses, if any, are potentially vulnerable and may require protection under this provision. They must also be able to articulate to the judge or justice how the accused's personal cross-examination may undermine the witness's ability to provide truthful and accurate testimony. This requires an understanding of the dynamics of domestic violence and sexual assault cases and how they impact the behavior and credibility of witnesses. Another consideration is how to best prepare the witness for cross-examination. If the accused is not allowed to personally cross-examine the witness, it will be necessary for the prosecutor to provide alternative means of testing the witness's testimony. This may involve preparing the witness to withstand cross-examination by defense counsel, who may attempt to discredit the witness's credibility or cast doubt on their recollection of events. This requires a careful analysis of the witness's testimony, including any inconsistencies or gaps, and developing a strategy to minimize potential weaknesses. For defense counsel, the strategic considerations are different. They must determine whether it is in their client's best interest to personally cross-examine the witness or whether it would be more advantageous to have appointed counsel conduct the cross-examination. If the accused is not allowed to personally cross-examine the witness, it may be more difficult for the defense to challenge the witness's testimony. However, appointed counsel may be able to uncover inconsistencies or discrepancies that could be used to cast doubt on the witness's credibility. Another consideration for defense counsel is how to best present their case without crossing the line into intimidating or harassing the witness. Defense counsel must be aware of the potential power dynamics in cases of domestic violence or sexual assault and avoid any behavior that could further victimize the witness or undermine their ability to give truthful testimony. This requires a nuanced approach to cross-examination that takes into account the nature of the allegations and the potentially fragile state of the witness. In terms of strategies that could be employed, both prosecutors and defense counsel may choose to bring in experts or specialist witnesses to testify about the impact of domestic violence or sexual assault on witnesses. These experts may provide insight into why certain witnesses may be vulnerable to intimidation or harassment by the accused, or how the trauma of the event may affect their memory or ability to testify. This could be valuable information both for the judge or justice in making the decision to appoint counsel and for the appointed counsel, who may be more effective if they have a better understanding of the witness's experiences. Another strategy that could be employed is to use the media to publicize the fact that a witness may be vulnerable to harassment or intimidation by the accused. This could be done with the consent of the witness and would serve to put the accused on notice that their behavior will not be tolerated. The media attention may also have the effect of galvanizing public support for the witness and making it more difficult for the accused to engage in any behavior that could be perceived as crossing the line. In conclusion, section 486.3(2) of the Criminal Code of Canada raises a number of strategic considerations for prosecutors and defense counsel. The provision seeks to protect vulnerable witnesses from intimidation or harassment by the accused while maintaining the integrity of the trial process. Effective advocacy requires an understanding of the dynamics of domestic violence and sexual assault cases, as well as a range of strategies that can be employed to ensure a fair trial for all parties.