INTRODUCTION AND BRIEF DESCRIPTION

Accused must make an application to the judge for the production of records.

SECTION WORDING

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

EXPLANATION

Section 278.3(1) of the Criminal Code of Canada outlines the process for an accused individual to request the production of a record that is relevant to their trial. This record might be one that is referred to in subsection 278.2(1), which pertains to the admissibility of certain statements made in the course of sexual offence trials. For example, the record could be a prior statement made by the complainant or a witness. If an accused individual seeks access to such a record, they must make an application to the judge presiding over their trial. This application must be made before the trial begins, or while it is ongoing. The judge will consider the request and determine whether or not the record should be produced. This section of the Criminal Code recognizes the importance of access to relevant information in ensuring a fair trial for all parties involved. By requiring a formal application process, it adds a layer of accountability and oversight to the production of records, ensuring that only necessary and relevant information is brought forth. The provision also aims to protect the privacy and dignity of the complainant and other individuals involved in the trial, by preventing the disclosure of unnecessary information that could cause undue harm or trauma. Overall, the inclusion of this provision serves to promote a fair and just legal process in cases involving sexual offences.

COMMENTARY

Section 278.3(1) of the Criminal Code of Canada relates to the production of records in criminal trials involving sexual offences. This section outlines the procedure that an accused person must follow if they wish to access records related to the complainant. Sexual assault trials can be challenging for both the accused and the complainant. While the accused has the right to a fair trial and to be presumed innocent until proven guilty, the complainant has the right to privacy and protection from further victimization. In recognition of these competing interests, the Criminal Code of Canada contains provisions that govern the disclosure of certain records in sexual assault cases. Section 278.2(1) of the Criminal Code of Canada identifies the records that fall under these provisions. These records include the complainant's counseling, medical, and therapy records, as well as any records related to the complainant's sexual history. The purpose of these provisions is to protect the privacy and dignity of the complainant, while also ensuring that the accused person has access to the relevant information necessary for their defense. However, the accused must follow certain procedures if they wish to access these records. Section 278.3(1) outlines the process that an accused must follow to ensure that they can access these records. From this section, it is clear that an accused person must apply to the judge before whom the accused is being tried if they seek the production of any record referred to in section 278.2(1). This application must be made in writing and must explain the nature of the record being sought and its relevance to the case. There are several reasons why an accused person may seek access to these records. For example, they may be seeking to challenge the credibility of the complainant's account of the events leading up to the alleged offence. Additionally, the accused may be seeking to establish a defense of mistake of fact or consent. However, the judge must carefully balance the interests of both the accused and the complainant when considering such an application. Specifically, the judge must consider whether the production of the record is necessary in the interests of justice and whether its probative value outweighs any potential prejudicial effect on the complainant. In conclusion, Section 278.3(1) of the Criminal Code of Canada outlines the procedure that an accused person must follow if they wish to access records related to the complainant in sexual assault trials. While ensuring that the accused person has access to the relevant information necessary for their defense, the judge must carefully balance the interests of both parties to ensure fairness and justice in these delicate cases.

STRATEGY

Section 278.3(1) of the Criminal Code of Canada pertains to an accused who seeks production of a record referred to in subsection 278.2(1). This section outlines the process an accused individual must follow in order to have access to relevant records during a trial. However, this procedure comes with its own challenges and requires strategic considerations. One strategic consideration for accused individuals seeking to produce a record is timing. According to the section, the accused must make an application to the judge before the trial begins. However, the timing of this application can also be tactical by seeking the production of the record at specific times during the trial. For example, if the record in question contradicts a witness statement, the accused may choose to present this evidence during cross-examination. Similarly, the accused may choose to produce the record at a later time in the trial, to avoid arousing the prosecution's interest in the record. Another strategic consideration when dealing with this section of the Criminal Code of Canada is the method of production. Although the judge has the discretion to grant or deny the application for the production of the record, the accused can choose the method of production. An accused may choose to produce the record by subpoena, or may simply request that the document be put into evidence through testimony from the person responsible for the document. Alternatively, negotiating a settlement with the defense may be advisable, if possible. Furthermore, another strategic consideration is the quality and specificity of the record being produced. If the record is vague or ambiguous, it may not be admitted by the court. Therefore, accused persons must ensure that the record produced is clear, concise, and supportive of their position while also being admissible in court. Lastly, the accused individual must consider the potential impact the production of a record may have on their case. It is important to weigh the potential benefits against the potential consequences (specifically, the likelihood that the prosecution might use the record to strengthen their case). If the record is both damaging and admissible and its introduction would do more harm than good, it may be better to avoid producing it entirely. To be successful in seeking the production of a record under section 278.3(1) of the Criminal Code of Canada, it is important for an accused to weigh the potential gains against the potential negatives of introducing the record. The timing, method of production, and quality of the records produced should be considered almost as importantly as the specific contents of the record. Therefore, accused individuals who seek the production of a record must be strategic in their approach to navigating these challenges.