INTRODUCTION AND BRIEF DESCRIPTION
Before submitting photographic evidence, the prosecutor must provide the accused with a copy and reasonable notice, unless ordered otherwise by the court.
SECTION WORDING
491.2(5) Unless the court orders otherwise, no photograph, certificate, affidavit or solemn declaration shall be received in evidence at a trial or other proceeding pursuant to subsection (2), (3) or (4) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy thereof and reasonable notice of intention to produce it in evidence.
EXPLANATION
Section 491.2(5) of the Criminal Code of Canada provides for the admissibility of evidence in trials and other legal proceedings that are conducted pursuant to subsections (2), (3), or (4) of the same section. The section stipulates that unless the court orders otherwise, no photograph, certificate, affidavit, or solemn declaration can be admitted as evidence unless the prosecutor has provided the accused with a copy of the evidence and given them reasonable notice of its intention to produce it. The purpose of this section is to ensure that the accused has the opportunity to review and challenge any evidence that the prosecution intends to produce against them during trial or other legal proceedings. This provision guarantees that the accused is not taken by surprise by any evidence and grants them a right to challenge what the prosecution is presenting in court. This section underscores the importance of fair trial procedures and the fundamental principles of natural justice. It fosters transparency and accountability in the criminal code system and ensures that all parties have access to the same evidence. In conclusion, Section 491.2(5) of the Criminal Code of Canada is a crucial aspect of procedural fairness in the Canadian criminal justice system. It guarantees a level playing field for both the accused and the prosecution in criminal trials and promotes the principles of natural justice. Its provisions ensure that all parties have the necessary information to conduct a fair and just trial.
COMMENTARY
Section 491.2(5) of the Criminal Code of Canada is a critical provision governing the admission of evidence in Canadian courts. The section establishes that no photograph, certificate, affidavit or solemn declaration shall be admitted as evidence in a trial or other proceeding, pursuant to subsections (2), (3) or (4) unless the prosecutor provides the accused with a copy of such evidence and reasonable notice of their intention to submit it to the court. There are several reasons why this provision is important. First, it promotes fairness and transparency in the criminal justice system. By requiring the prosecutor to disclose their evidence beforehand, the accused is not taken by surprise during the trial. This disclosure gives the accused an opportunity to review and challenge the evidence presented against them. The accused is thus better equipped to prepare a defence and have a fair trial. Additionally, this provision helps to prevent wrongful convictions. When the prosecution is required to disclose their evidence beforehand, it gives the defence an opportunity to identify inaccuracies, inconsistencies, or other issues with the prosecution's evidence. This ensures that the evidence presented in court is reliable and relevant and truthfully represents the case's facts. It is crucial to note that evidence that lacks credibility, reliability, or relevance should not be admitted in court. This is because the factors mentioned above could lead to wrongful convictions. Moreover, this section of the Criminal Code ensures that trials are conducted efficiently by preventing surprise disclosures of evidence. Any unexpected amendment or disclosure of evidence during trial can result in adjournment and delay, which can increase legal expenses and prolong the accused's time in waiting for trial. Such delays can cause significant harm to the accused, such as loss of employment, among others. Challenges to the admissibility of evidence often arise in criminal trials. If there is an argument that the prosecution did not properly disclose the evidence, the defence can move to have the evidence excluded. In such cases, the court must assess whether the prosecutor has complied with section 491.2(5). If the prosecution has not complied with the disclosure requirements, the evidence may be excluded. In conclusion, section 491.2(5) of the Criminal Code of Canada governs the admissibility of evidence in Canadian courts. It is a crucial provision that promotes fairness and transparency in the criminal justice system while protecting the accused from wrongful convictions. Its aim is to produce reliable evidence, prevent surprise disclosures in court, and ensure that trials are conducted efficiently. The prosecutor must comply with the disclosure requirements for any evidence presented for a trial to be legally admissible.
STRATEGY
Section 491.2(5) of the Criminal Code of Canada is a provision that requires prosecutors to provide the accused with copies of any photograph, certificate, affidavit, or solemn declaration that they intend to use as evidence at trial. Additionally, the prosecutor must also provide the accused with reasonable notice of their intention to use that evidence. Failure to comply with this provision can result in the evidence being excluded from the trial. There are several strategic considerations that defense counsel must take into account when dealing with this section of the Criminal Code. Here are some of them: 1. Timing of Disclosure: The prosecutor must disclose the evidence and provide notice of their intention to use it before the trial or other proceeding. This means that defense counsel must ensure that they have enough time to review the evidence and prepare a defense. It is important to review the evidence carefully to determine its credibility and identify any weaknesses that can be exploited during the trial. 2. Admissibility of Evidence: Defense counsel must also evaluate the admissibility of the evidence. If the evidence does not meet the criteria for admissibility, such as being hearsay or lacking relevance, the court could exclude it from the trial. 3. Cross-Examination: If the prosecutor presents evidence that the defense was not aware of, defense counsel may want to ask for an adjournment to prepare for cross-examination. Cross-examination is an essential tool for challenging the credibility of witnesses and exposing inconsistencies in their testimony. 4. Negotiations: If the evidence presented by the prosecutor is particularly damaging to the defense, the defense may consider negotiating a plea bargain to reduce the charges or the severity of the sentence. To counteract the prosecutor's intent to present potentially prejudicial evidence, there are several strategies that defense counsel can employ: 1. Motion to Exclude Evidence: Defense counsel can file a motion to exclude the evidence if the prosecutor did not provide notice of their intention to use it or did not provide a copy to the defense in time. 2. Pretrial Discovery: Defense counsel can use pretrial discovery to gain access to evidence that the prosecutor may use at trial. This can give the defense an opportunity to review the evidence, find weaknesses, and prepare a defense. 3. Challenge Admissibility: Defense counsel can challenge the admissibility of the evidence on the grounds that it violates the rules of evidence and is, therefore, inadmissible. 4. Impeachment: Defense counsel can use cross-examination to challenge the credibility of the evidence and the witnesses that the prosecutor presents. In summary, Section 491.2(5) of the Criminal Code of Canada is a provision that requires prosecutors to provide the accused with copies of any evidence they intend to use at trial. Defense counsel must be aware of this provision and use it to their advantage by carefully reviewing the evidence, challenging its admissibility, and presenting their client's defense in the most effective way possible.