INTRODUCTION AND BRIEF DESCRIPTION
A judge must issue and sign a subpoena for a witness to bring a record related to a subsection 278.2(1) offence, governed by sections 278.1 to 278.91.
SECTION WORDING
699(5.1) Notwithstanding anything in subsections (1) to (5), in the case of an offence referred to in subsection 278.2(1), a subpoena requiring a witness to bring to the court a record, the production of which is governed by sections 278.1 to 278.91, must be issued and signed by a judge.
EXPLANATION
Section 699(5.1) of the Criminal Code of Canada pertains to the issuance of subpoenas in cases involving the offence of "criminal harassment" under section 278.2(1). Specifically, it requires that any subpoena requiring a witness to produce a record - where the production of that record is governed by sections 278.1 to 278.91 - must have been issued and signed by a judge. This provision is significant in the context of criminal harassment cases because these offenses often involve the use of electronic communication or other forms of documentation (such as letters or diaries) to harass and intimidate the victim. Section 278.1 of the Criminal Code outlines the procedures for obtaining a production order for such records, which includes a requirement for the court to balance the potential benefits of accessing the record against the complainant's privacy interest, the importance of the record to the case, and a number of other factors. In order to ensure that these procedures are followed in relation to the production of any records sought through a subpoena, section 699(5.1) requires that the subpoena must be issued and signed by a judge. This serves as an important check on the power of parties to obtain potentially sensitive records without proper scrutiny or oversight, and helps to ensure that the principles of fairness and privacy are respected in the investigation and prosecution of criminal harassment cases.
COMMENTARY
Section 699(5.1) of the Criminal Code of Canada is a legal provision that serves a very important purpose. It deals with the process of issuing subpoenas to witnesses in cases involving offences referred to in section 278.2(1) of the Criminal Code of Canada. Specifically, this section states that such subpoenas must be issued and signed by a judge, even if other subsections of section 699 do not require this. Subsection 278.2(1) relates to criminal offences involving sexual assault and other serious sexual offences, such as sexual exploitation, procuring, and trafficking. These offences are particularly sensitive and complex, and therefore require added procedural safeguards to ensure that the rights and interests of all parties involved are protected. Subsections 278.1 to 278.91 of the Criminal Code of Canada delineate the specific procedural rules that apply in such cases. One of the important safeguards in these cases is the requirement that a subpoena to compel a witness to produce a record related to the offence must be issued and signed by a judge. This means that the request for the record is subject to judicial review and scrutiny, and that the judge must be satisfied that the request is necessary, reasonable, and consistent with the principles of fundamental justice. This requirement helps to prevent abuses of the subpoena process and protects the privacy and confidentiality interests of witnesses and third parties. There are several reasons why this requirement is important. First, it ensures that the subpoena process is not abused by prosecutors or other parties who may seek to obtain personal, sensitive, or confidential information without a proper legal basis or without due regard for the privacy and security of the information. Second, it allows the recipient of the subpoena to challenge its validity or relevance before a judicial authority, and to seek relief or protection if necessary. Third, it recognizes the potential harm and trauma that may be caused to witnesses who are compelled to produce records or testify in cases involving sexual offences, and seeks to minimize this harm by ensuring that their rights are respected and their interests are taken into account. Overall, section 699(5.1) of the Criminal Code of Canada is an important provision that helps to protect the procedural rights and interests of parties involved in cases involving sexual offences. It reflects the recognition that such cases require special attention and safeguards, and seeks to ensure that the criminal justice system operates in a fair, transparent, and just manner. As such, it serves an important function in ensuring that the rule of law is respected and upheld in such cases, and in promoting public trust and confidence in the justice system.
STRATEGY
Section 699(5.1) of the Criminal Code of Canada is an important provision that mandates a special procedure for the production of records related to an offence under section 278.2(1). This section deals with criminal harassment and stalking. When dealing with this provision, strategic considerations become crucial for both the prosecutor and the defence counsel. One of the strategic considerations for the prosecutor is to ensure that the evidence obtained under this provision is admissible in court. The prosecutor must carefully follow the procedure prescribed by sections 278.1 to 278.91 of the Criminal Code, which regulate the production and admission of records related to criminal harassment or stalking. Failure to comply with these requirements may render the evidence inadmissible, resulting in the case's dismissal. Another strategic consideration for the prosecutor is to assess the relevance and materiality of the records sought to be produced. The prosecutor must ensure that the records are necessary and essential for the proper administration of justice. In some cases, the court may order the disclosure of the records to the defence counsel if they are relevant to the accused's defence. Therefore, the prosecutor must balance the need for the evidence against the accused's privacy interests. For the defence counsel, one of the strategic considerations is to challenge the validity of the subpoena issued under this provision. The defence counsel may argue that the subpoena was not issued and signed by a judge, as required by section 699(5.1) of the Criminal Code. If successful, the evidence obtained under the subpoena may be excluded, weakening the prosecutor's case. Another strategic consideration for the defence counsel is to challenge the relevance and materiality of the records sought to be produced. The defence counsel may argue that the records are not necessary or essential for the proper administration of justice and that their production would violate the accused's privacy rights. The defence counsel may also seek to limit the scope of the subpoena to specific records or categories of records. In conclusion, Section 699(5.1) of the Criminal Code of Canada presents strategic considerations for both the prosecutor and the defence counsel when dealing with offences related to criminal harassment or stalking. The prosecutor must ensure compliance with the procedure prescribed by sections 278.1 to 278.91 of the Criminal Code while balancing the need for the evidence against the accused's privacy rights. The defence counsel may challenge the validity, relevance, and materiality of the records sought to be produced, seeking to exclude them from evidence or limit their scope. Ultimately, the successful navigation of these strategic considerations has a significant impact on the outcome of the case.