INTRODUCTION AND BRIEF DESCRIPTION
A justice can order an accused to be detained and prohibit communication with any victim, witness, or the like, except as specified in the order.
SECTION WORDING
515(12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary.
EXPLANATION
Section 515(12) of the Criminal Code of Canada provides a key mechanism for the courts to protect potential victims, witnesses, and other individuals identified within the context of a criminal case. This section gives the presiding justice the power to order that an accused person be detained in custody and also direct them to abide by certain conditions, including abstaining from communicating with any victim, witness, or other person specifically identified within the order. These conditions may be set out in the justice's order to ensure the safety of those individuals or the integrity of the criminal proceedings. The order may also specify the circumstances under which communication with these individuals may be allowed. This section can be especially useful in criminal cases where there are concerns about witness tampering or potential threats to the safety of individuals involved in the case. By preventing the accused from communicating with potential witnesses or victims, the court can help to ensure that the criminal proceedings are conducted fairly and without undue interference. This is an important aspect of the Canadian justice system, which is founded on the principle of protecting the rights of both the accused and the victims. In summary, section 515(12) of the Criminal Code of Canada is an important provision that gives the courts the power to order an accused person to abstain from communicating with specific individuals, including victims and witnesses, for the purpose of protecting those individuals and the integrity of the criminal proceedings. This provision is critical to maintaining the fairness and impartiality of the Canadian justice system and ensuring that all parties involved in a criminal case are protected.
COMMENTARY
Section 515(12) of the Criminal Code of Canada is a provision that allows a justice to order that an accused be detained in custody, with added directions that require the accused to abstain from communicating with any victim, witness or any other person identified in the order. The sole purpose of this provision is to protect the integrity of the judicial proceedings and ensure the safety of those who may be vulnerable during such proceedings. In criminal proceedings, the accused is often in a position of power and control. Depending on the nature of the crime, there may be victims, witnesses, and other individuals who may have suffered considerable trauma, fear, and anxiety in relation to the alleged behavior of the accused. The accused may be in a position to intimidate, harass, or threaten these individuals, thereby, undermining the fairness and transparency of the proceedings. As such, section 515(12) provides for an essential safeguard against such behavior. If the justice orders that the accused be detained in custody, they may also include a direction that the accused abstain from communicating in any way with any victim, witness or other person identified in the order. Any communication attempted or engaged in would be viewed as a breach of the order, which could lead to further charges and, in turn, a possible extension of their detention period. Moreover, the justice also has the authority to set out any conditions for communication that they consider necessary, effectively leaving no room for the accused to compromise the integrity of the proceedings. Section 515(12), therefore, allows the justice to exercise discretion and take necessary actions to ensure the protection of individuals connected to the proceedings. It is important to note that this provision is not a blanket prohibition on communication between the accused and those identified in the order. In some cases, it may be necessary for the accused to communicate with a victim, witness or other person identified in the order, for example, in cases where they need to participate in a joint conference or where communication is necessary for legal reasons. In such instances, the justice can specify the conditions of communication that consider the safety of all parties involved. Overall, section 515(12) is an essential legislative provision that seeks to ensure that the administration of justice in Canada is fair, equitable, and transparent. It provides the justice system with the necessary tools to prevent the accused from compromising the integrity of the proceedings by communicating with persons that they may influence, intimidate or harm. In this way, the provision upholds the principles of justice and fairness, ensuring that criminal proceedings are conducted in a safe and secure environment for all involved.
STRATEGY
Section 515(12) of the Criminal Code of Canada permits a justice to issue an order to an accused person that prohibits them from communicating with specific individuals identified in the order. This can include victims, witnesses, or any other parties deemed relevant by the justice. The purpose of this provision is to protect individuals from any potential harm or intimidation perpetrated by the accused. However, for a defence lawyer, this provision can be a significant obstacle to providing effective representation for their clients. In this article, I will discuss the strategic considerations that defence lawyers must take when dealing with Section 515(12) and the potential strategies that could be employed. Strategic Considerations: When dealing with the Section 515(12) provision, a defence lawyer must consider the following points: 1) the scope of the prohibition; 2) the potential impact of the prohibition on the accused's defence; 3) the implications of breaching the prohibition; and 4) any strategies to challenge or modify the prohibition. Scope of the Prohibition: The justice has the discretion to determine the scope and duration of the prohibition. The lawyer must carefully review the order and determine if the prohibition applies only to direct communication or if it also includes indirect communication, such as through a third party. The lawyer must also identify all the individuals identified in the order to ensure that the accused is aware of the specifics of the prohibition. Impact on Defence Strategy: The lawyer must consider how the prohibition impacts their client's ability to build a persuasive defence. For example, the accused may be unable to contact a potential alibi witness or a character witness who could testify on their behalf. The accused may also be deprived of the opportunity to cross-examine a witness who may have a motive to fabricate evidence against them. Breaching the Prohibition: The lawyer must inform the accused of the potential consequences of breaching the prohibition. Breach of this prohibition can result in the accused being charged with an additional criminal offence, and this can significantly affect their sentence by demonstrating a lack of respect for the justice system. Challenging or Modifying the Prohibition: The lawyer must consider the possibility of challenging or modifying the prohibition. They can seek a variation of the prohibition by going back to the court and arguing that the order is too broad or that there has been a change in circumstances that warrants a revision of the order. The lawyer can also challenge the constitutionality of the provision, arguing that it violates the accused's right to fair trial or freedom of expression. Strategies: To mitigate the impact of the Section 515(12) prohibition, the following strategies can be employed: 1) Seek a variation of the prohibition: As mentioned above, the lawyer can seek a variation of the prohibition by arguing that it is too broad or that there has been a change in circumstances that warrants a revision of the order. This can help the accused to communicate with individuals relevant to their defence. 2) Use alternative modes of communication: The lawyer can explore alternative ways to communicate with the individuals identified in the order, such as through a third party or through written correspondence. These measures must be taken with caution to ensure the prohibition is not breached. 3) Challenge the constitutionality of Section 515(12): The lawyer can challenge the constitutionality of the provision, arguing that it violates the accused's right to fair trial or freedom of expression. This strategy may be more difficult to pursue, but it has the potential to result in a favourable outcome for the accused. Conclusion: Section 515(12) of the Criminal Code of Canada has significant implications for defence lawyers who must balance their ethical obligation to represent their clients to the best of their ability with their responsibility to ensure that their clients adhere to court orders. Defence lawyers must carefully consider their strategic options when dealing with the prohibition. They must also work with the accused to ensure that their defence is not prejudiced by the order. Employing effective strategies can mitigate the impact of the prohibition and help defence lawyers to achieve the best possible outcome for their clients.