Criminal Code of Canada - section 278.3(2) - No application in other proceedings

section 278.3(2)

INTRODUCTION AND BRIEF DESCRIPTION

An application for a publication ban cannot be made to a judge in any other proceedings, including a preliminary inquiry.

SECTION WORDING

278.3(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

EXPLANATION

Section 278.3(2) of the Criminal Code of Canada lays down a restriction on the application under subsection (1) of the same Section. It states that this application cannot be made before a judge or justice who is presiding over any other proceeding, including a preliminary inquiry. Subsection (1) provides the process for a victim or witness of a sexual offence to make an application to the court seeking a publication ban on their identity. The publication ban is intended to protect the privacy and dignity of the victim or witness, especially when their identity is likely to become public knowledge due to media reporting or other reasons. The restriction under subsection (2) is crucial because it ensures that the application for a publication ban is heard by a judge who has the jurisdiction and authority to deal with such matters. This is essential to avoid any inconsistencies or confusion regarding the application process and ensure that the application is dealt with expeditiously and efficiently. Moreover, the restriction on applying before a judge or justice presiding at any other proceedings is necessary to prevent any conflict of interest that may arise. A judge or justice presiding over another proceeding may have access to information that is relevant to the sexual offence case, which may influence their decision on the application for a publication ban. Overall, Section 278.3(2) of the Criminal Code of Canada is a critical provision that ensures that applications for a publication ban on the identity of a victim or witness of a sexual offence are heard by judges who are qualified and authorized to deal with these matters, without any risk of bias or conflict of interest.

COMMENTARY

Section 278.3(2) of the Criminal Code of Canada is a provision that restricts the ability of a victim of a sexual offence from making an application for a publication ban. Specifically, it prohibits the victim from making such an application to a judge or justice presiding at any other proceedings, including a preliminary inquiry. The purpose of this provision is to ensure that the proceedings related to the application for the publication ban are separate from those that concern the prosecution of the accused or the trial itself. The rationale behind this provision is that the application for a publication ban can potentially create a conflict of interest for the judge or justice who is presiding over the criminal proceedings. This is because the judge or justice may have to consider both the interests of the victim in protecting their identity and the interests of the accused in ensuring a fair trial. By separating the proceedings, the judge or justice can focus on each set of proceedings independently and make the appropriate decision in each case. Moreover, this provision ensures that the victim has access to a fair and impartial hearing when applying for a publication ban. By allowing the victim to make the application to a judge or justice who is not presiding over the criminal proceedings, the victim can seek the protection they need without potentially compromising the fairness of the trial. However, it is worth noting that this provision does not restrict the ability of the victim to make an application for a publication ban altogether. The victim can still make the application to the appropriate judge or justice, but it must be done separately from the criminal proceedings. In summary, section 278.3(2) of the Criminal Code of Canada is an important provision that ensures the fairness of both criminal proceedings and applications for publication bans. It establishes a clear separation between the two and allows for the victim to seek the protection they need without interfering with the prosecution of the accused. As such, it is a vital component of Canada's criminal justice system and helps to ensure that victims of sexual offences are treated fairly and with respect.

STRATEGY

Section 278.3(2) of the Criminal Code of Canada restricts the ability of one party to bring an application under section 278.3(1) to a judge or justice who is presiding at any other proceedings, including a preliminary inquiry. This section is aimed at providing clarity as to which court or judge has the authority to hear the application and avoid confusion or duplication. When dealing with this section of the Criminal Code, strategic considerations must be taken into account to ensure that the application is made to the appropriate judge or court. Some of the strategies that could be employed include: 1. Plan ahead: It is essential to assess the underlying issues before making an application. Consideration must be given to the current stage of the proceedings and the level of urgency involved in making the application. 2. Review the Criminal Code: This section of the Criminal Code must be carefully studied to ensure that the application is made to the appropriate judge or court. This will prevent a waste of time and resources in making an application that will be later dismissed. 3. Identify the relevant judge: Once it has been determined that an application is necessary, it is essential to identify the appropriate judge. This requires knowledge of the judicial system, court schedules, and the judge's area of expertise. 4. Coordinate with the prosecutor: Coordination with the prosecutor is crucial to avoid any duplication of effort or confusion. The prosecutor may have insights into the judge handling the case, which may be beneficial in making the application. 5. Prepare strong arguments: The application must be supported by strong arguments and evidence. The arguments must be based on the facts of the case and the relevant legal principles. 6. Ensure timeliness: The application must be filed within the appropriate timelines set out in the Criminal Code. Late applications may be dismissed, causing delay and a waste of resources. 7. Be mindful of the potential for appeals: Adverse decisions may be appealed, and all relevant court rules must be considered when filing an appeal. In conclusion, section 278.3(2) of the Criminal Code of Canada outlines the restrictions on bringing an application under section 278.3(1) to the appropriate judge or court. Strategic considerations must be taken into account when making an application to ensure that the application is made to the suitable judge or court and supported by strong legal arguments. Failure to comply with these considerations may result in dismissed applications, delays, and wasted resources.