INTRODUCTION AND BRIEF DESCRIPTION
This section outlines that if an accused is charged with certain offences and a request for an order under subsection (1) is made, the judge must provide a reason if no order is made.
SECTION WORDING
486(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 212, 271, 272, 273, 279.01, 279.011, 279.02 or 279.03 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.
EXPLANATION
Section 486(3) of the Criminal Code of Canada mandates that in cases of sexual offence or domestic violence, where either the prosecutor or the accused seeks an order of non-disclosure under subsection (1), the judge or justice must provide an explanation for not granting such an order. This provision exists to ensure transparency and accountability in the Canadian criminal justice system, particularly in cases involving vulnerable individuals who may be reluctant to testify due to fear of reprisals, public exposure, or other adverse consequences. This subsection applies to a range of offences, including sexual assault, sexual exploitation, child pornography, human trafficking, and various forms of violence against women and children. The reason for this is that these offences involve a high degree of personal privacy and dignity, and the disclosure of sensitive information related to the victim or the accused can have devastating consequences for the parties involved. An order of non-disclosure may be sought by the prosecutor or the accused to protect personal information of the victim, witnesses, or accused individuals from being disclosed to the public or other third-party entities. Such an order may be granted if it is deemed necessary to protect the privacy, security or safety of the individuals involved, or if their interests outweigh the public interest in disclosure. In cases where an order of non-disclosure is not granted, the judge or justice must provide a clear and cogent reason for their decision, taking into account the unique circumstances of the case. This is intended to ensure that any decision not to grant an order of non-disclosure is made on the basis of a full and fair consideration of all relevant factors, and is not arbitrary or capricious. Overall, this provision of the Criminal Code of Canada underscores the importance of fairness, transparency, and accountability in the Canadian criminal justice system, particularly in cases of sexual offence or domestic violence.
COMMENTARY
Section 486(3) of the Criminal Code of Canada sets out a requirement for judges and justices to provide a reason for not making an order for the publication ban in certain cases involving sexual offences or child pornography. This provision recognizes the increased vulnerability of victims of these types of crimes, and the potential harm that may result from the publication of their identity. The section specifies the offences for which this provision applies, which includes sexual offences against children, such as sexual interference, sexual exploitation, and invitation to sexual touching. It also covers offences related to child pornography, as well as some offences related to the trafficking of persons. These are all serious crimes that carry significant penalties, and so it is appropriate that additional measures be put in place to protect the victims. The provision requires that either the prosecutor or the accused may apply for an order under subsection (1), which allows the judge or justice to prohibit the publication of any information that could identify the victim. This includes the victim's name, address, and any other identifying information, but may also extend to information about the victim's family members or other individuals who may be associated with them. If no order is made, the judge or justice must provide a reason for not doing so. This helps to ensure transparency in the decision-making process, and allows for proper scrutiny of the reasons for denying the publication ban. The reasons should be based on the specific circumstances of the case, and must be justifiable according to the principles of justice and fairness. Overall, section 486(3) serves an important function in protecting victims of sexual offences and child pornography from further harm. By requiring judges and justices to offer a reason for not issuing a publication ban, the provision helps to promote greater transparency and accountability in the legal system. This, in turn, may help to increase public confidence in the administration of justice, while also providing a measure of protection for the most vulnerable members of society.
STRATEGY
Section 486(3) of the Criminal Code of Canada mandates that judges or justices must provide reasons for not issuing an order for a victim/witness of an offence under specific sections to testify without being in the presence of the accused. This provision recognizes the need to protect vulnerable witnesses in certain offences, including sexual assault and exploitation, from further trauma resulting from testifying. However, before applying for an order, the prosecutor or the accused must consider several strategic considerations that could affect the outcome of their cases. One strategic consideration is the credibility of the victim/witness. Prosecutors must assess the strength of the case, particularly the complainant's testimony, to determine whether an order under subsection (1) would impact the case's credibility adversely. This consideration is especially critical when the victim's/vulnerable witness's testimony is the Crown's primary evidence, and the defendant's credibility is strong. In such cases, an order prohibiting the accused from being present during the testimony could weaken the case, leading to acquittal. Another strategic consideration is the impact of the order on defendant's Charter rights. Orders limiting the right to face accusers is viewed to infringe Charter section 7 rights of the defendant. Therefore, a judge might consider issuing a section 486(3) order, only if they are convinced that there are no alternatives that do not infringe the accused's rights. Therefore, prosecutors should consider whether issuing an order could infringe constitutional rights, and whether the gain is worth it in the prosecution's make or break components. The victim's interests and desires also must be considered when seeking an order. The Crown must determine whether the witness is willing and able to testify without the defendant's presence and check whether the order might cause them to refuse to testify or reduce the complainant's eagerness to press for the prosecution. In some cases, victims might not desire a section 486(3) order. Hence, prosecutors should consider whether a victim's interests will be best served by an order, or their testimony is better heard in the presence of the accused. The impact of an order on the expedited and effective administration of justice is another strategic consideration. The trial process is known to be relatively slow and time-consuming. Adding a section 486(3) order could further prolong the trial process, and if granted but subsequently appealed, can cause significant delays, which may be prejudicial to both parties. Prosecutors must ask themselves whether the delay and complexity that might arise from seeking such an order are worth it. In conclusion, deciding whether to apply for an order under section 486(3) of the Criminal Code of Canada requires a careful weighing of several strategic considerations. In light of these considerations, prosecutors should determine whether it is an appropriate avenue to pursue, whether it is in the interests of justice and victim safety in context, and whether it is consistent with our legal system's constitutional norms. Similarly, defendants and their lawyers may wish to assess the advisability to contest the making of the order on constitutional grounds or oppose it on the grounds of their particular case's strength and circumstances.