INTRODUCTION AND BRIEF DESCRIPTION
A determination made under section 276.2 is considered a question of law for sections 675 and 676.
SECTION WORDING
276.5 For the purposes of sections 675 and 676, a determination made under section 276.2 shall be deemed to be a question of law.
EXPLANATION
Section 276.5 of the Criminal Code of Canada addresses the legal determination made under section 276.2. This section pertains to the admissibility of evidence regarding a complainant's sexual activity in a sexual assault case. The section aims to strike a balance between protecting the privacy of the complainant and ensuring that the accused receives a fair trial. Section 276.2 allows for evidence of a complainant's past sexual activity to be admitted in some cases. However, such evidence can only be introduced if it pertains to a specific issue in the trial, such as consent. Additionally, the judge must first determine the admissibility of such evidence based on a set of criteria outlined in the section. The determination made under section 276.2 is crucial to the fairness of the trial and can have a significant impact on the outcome. Section 276.5 clarifies that this determination is considered to be a question of law, which means that it is a legal issue that must be decided by the judge, rather than a question of fact that would be left to a jury. This provision ensures that the judge has the authority to make a legal decision regarding the admissibility of evidence related to a complainant's sexual activity. This helps to prevent the inappropriate use of such evidence, which could be used to unfairly undermine the credibility of the complainant. At the same time, it ensures that the defendant's right to a fair trial is protected, as any relevant evidence can be introduced if it meets the legal criteria set out in the section.
COMMENTARY
Section 276.5 of the Criminal Code of Canada plays a crucial role in providing legal clarity in determining the admissibility of evidence in sexual assault cases. This section, which deems a determination made under section 276.2 to be a question of law, helps ensure that the judicial process remains fair and just for both the victim and the accused. Section 276 of the Criminal Code of Canada outlines the rules surrounding evidence in sexual assault trials. Section 276.2 specifically relates to allowing evidence of a complainant's sexual activity with persons other than the accused. The purpose of this section is to balance the interests of the complainant and the accused. On the one hand, complainants have a right to privacy and to be free from having their sexual activity scrutinized in court. On the other hand, the accused has a right to a fair trial and to present a full defense. Under section 276.2, the defense can only introduce evidence of the complainant's sexual activity with persons other than the accused if it is relevant and probative to a material issue in the case, such as establishing consent or proving that the complainant has a motive to lie. The judge must determine the admissibility of such evidence after considering several factors, such as the potential prejudice to the complainant, the probative value of the evidence, and the effect that admission or exclusion of the evidence would have on the accused's ability to make a full defense. Section 276.5 plays a critical role in ensuring that these determinations are made properly and fairly. By deeming determinations made under section 276.2 to be questions of law, the section makes it clear that the admissibility of evidence is not a matter of discretion or opinion. Instead, it must be based on legal principles and precedents. This is important because sexual assault trials often involve complex legal and evidentiary issues. The judge must consider myriad factors to ensure that the admissibility of evidence strikes the appropriate balance between the interests of the complainant and the accused. By treating these determinations as questions of law, the section helps ensure that the judge applies the correct legal standards in making these decisions. Moreover, by deeming these determinations to be questions of law, the section gives appellate courts the power to review them. This allows for consistent and uniform application of the law, which is essential to achieving justice in sexual assault cases. In conclusion, section 276.5 of the Criminal Code of Canada is an essential component of the legal framework governing sexual assault trials. By deeming determinations made under section 276.2 to be questions of law, the section ensures that the admissibility of evidence is determined based on legal principles and precedents. This is essential to achieving just outcomes for both the complainant and the accused, and to maintaining public confidence in the fairness and impartiality of the judicial system.
STRATEGY
Section 276.5 of the Criminal Code of Canada is an important provision for parties involved in Canadian criminal trials. It states that any determination made under section 276.2 will be considered a question of law and not a question of fact. This section can impact the strategies employed by both the prosecution and the defense in a criminal trial, and there are several strategic considerations to keep in mind. One of the main strategic considerations when dealing with section 276.5 is to understand the implications of section 276.2. This section of the Criminal Code deals with the admissibility of evidence in sexual assault trials, particularly evidence related to the complainant's sexual history. Section 276.2 outlines the circumstances under which such evidence may be admissible, such as when it is relevant to an issue in the trial or when it is necessary to avoid an unfair trial. It also sets out the procedure for determining the admissibility of such evidence and the factors that must be considered. Given the importance of this section in sexual assault trials, one strategy for both the prosecution and defense is to carefully analyze the evidence available and determine whether any of it is subject to section 276.2. If so, they must ensure that the appropriate procedure is followed for determining admissibility and that the relevant factors are considered. This may involve retaining experts or consulting case law to understand how section 276.2 has been applied in similar cases. Another strategic consideration is the potential impact of section 276.5 on the jury or judge. Because section 276.5 deems determinations made under section 276.2 to be questions of law, it means that the jury or judge may not have as much discretion in deciding admissibility of evidence. They must follow the procedure outlined in section 276.2 and apply the relevant factors. This can impact the strategy employed by both sides in terms of whether they choose to challenge the admissibility of evidence or focus on other aspects of the trial. For the prosecution, one strategy may be to focus on demonstrating that any evidence subject to section 276.2 is necessary for a fair trial and relevant to the issues being discussed. They may argue that the evidence supports the complainant's testimony or highlights inconsistencies in the defense's case. The defense, on the other hand, may focus on challenging the admissibility of such evidence by arguing that it is not relevant or that it would prejudice the jury or judge against the defendant. Ultimately, the strategic considerations when dealing with section 276.5 will depend on the specifics of the case and the parties involved. However, it is important for all parties to carefully consider how this section may impact their case and to ensure that they are following the appropriate procedures and guidelines.