INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the factors that must be considered by the Review Board when deciding whether to make an order to protect the identity of a victim or witness.
SECTION WORDING
672.501(8) In determining whether to make an order under subsection (3), the Review Board shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim or witness would suffer significant harm if their identity were disclosed; (c) whether the victim or witness needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim or witness; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the Review Board considers relevant.
EXPLANATION
Section 672.501(8) of the Criminal Code of Canada outlines the factors that must be considered when making a decision to disclose the identity of a victim or witness during a criminal review board hearing. The primary consideration is the right to a fair and public hearing, but the safety and security of the victim or witness cannot be ignored. If there is a real and substantial risk of significant harm, an order can be made to protect their identity. The Review Board must also consider whether the victim or witness needs protection from intimidation or retaliation, as well as the societal interest in encouraging reporting of offences and the participation of victims and witnesses in the criminal justice process. Finding effective alternatives to protect the victim or witness must be considered before making the decision to disclose their identity. The salutary and deleterious effects of the proposed order must also be weighed, taking into account the impact on the freedom of expression of those affected by it. Finally, the Review Board must consider any other factors that might be relevant to its decision-making process. In essence, this section represents the criminal justice system's recognition of the need to balance the various interests at play in cases involving victims and witnesses. By considering these factors as a part of its decision-making process, the Review Board is able to come to a determination that respects the rights and safety of all involved parties.
COMMENTARY
Section 672.501(8) of the Criminal Code of Canada outlines the factors that the Review Board must consider when determining whether to make an order to protect the identity of a victim or witness in a criminal proceeding. These factors balance the rights of the accused to a fair and public hearing with the need to protect the safety and privacy of victims and witnesses. One of the key factors that the Review Board must consider is the risk of harm to the victim or witness if their identity is disclosed. This recognizes the reality that some victims and witnesses may face harassment, intimidation, or even physical harm if their identity is made public. By considering this risk, the Review Board can ensure that these individuals are able to participate in the criminal justice process without fear of retaliation. Another important factor is society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. If victims and witnesses do not feel safe reporting crimes or participating in court proceedings, it becomes more difficult to hold offenders responsible for their actions. By protecting their identities when necessary, the Review Board can help to ensure that the justice system remains accessible and accountable to all Canadians. Of course, there may be situations where protecting the identity of a victim or witness is not necessary or appropriate. For example, if the accused's right to a fair and public hearing would be compromised by an order to protect the identity of a witness, the Review Board may determine that such an order is not required. Similarly, if there are effective alternatives available to protect the identity of the victim or witness - such as testifying via closed-circuit television or using a pseudonym - these options may be preferred over a full identity protection order. Ultimately, the decision to make an order to protect the identity of a victim or witness is a complex one that requires careful consideration of a range of factors. The Review Board must balance the competing interests of the accused, the victim or witness, and society as a whole, while also ensuring that the principles of natural justice and procedural fairness are respected. By doing so, the Review Board can help to ensure that the criminal justice system serves the interests of all Canadians, both in terms of protecting individual rights and ensuring public safety.
STRATEGY
Section 672.501(8) of the Criminal Code of Canada lays out a number of factors that the Review Board must consider when deciding whether or not to make an order to protect the identity of a victim or witness in a criminal case. These factors are designed to balance the need to protect the identity and safety of the victim or witness with the importance of transparency and openness in the criminal justice process. In order to deal effectively with this section of the Code, it is important to consider a number of strategic factors. One of the main strategic considerations is the need to prioritize the safety and well-being of the victim or witness. This means that any decision about whether to make an order to protect their identity should be based primarily on the potential harm that they might suffer if their identity were to be revealed. Any other factors, such as the right to a fair and public hearing or the impact on freedom of expression, should be secondary to this primary consideration. Another important strategic consideration is the need to balance the interests of the victim or witness with the broader interests of society. While it is important to protect the identity of victims and witnesses in order to encourage their participation in the criminal justice process, it is also important to ensure that the criminal justice system is transparent and open. This means that any order to protect the identity of a victim or witness should be made only after careful consideration of all the factors involved. One strategy that could be employed in dealing with this section of the Criminal Code is to develop clear guidelines and procedures for assessing the risks to victims and witnesses and for making orders to protect their identity. Such guidelines could help to ensure that decisions are made in a consistent and transparent manner, thereby promoting the overall fairness and effectiveness of the criminal justice system. Another strategy that could be employed is to provide training and support to judges and other decision-makers who are responsible for assessing the risks to victims and witnesses and making orders to protect their identity. Such training could help to ensure that decision-makers are fully aware of their responsibilities and are able to make informed and balanced decisions based on all the available evidence. Overall, dealing with Section 672.501(8) of the Criminal Code of Canada requires a careful and strategic approach that balances the need to protect the identity and safety of victims and witnesses with the broader interests of society in a transparent and open criminal justice process. By developing clear guidelines and providing training and support to decision-makers, it is possible to ensure that these competing interests are carefully and appropriately weighed in every case.