Criminal Code of Canada - section 278.3(5) - Service of application and subpoena

section 278.3(5)

INTRODUCTION AND BRIEF DESCRIPTION

Accused must serve application and subpoena at least seven days before hearing to relevant parties regarding records.

SECTION WORDING

278.3(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

EXPLANATION

Section 278.3(5) of the Criminal Code of Canada relates to the disclosure of records in sexual offence cases. This section outlines the process that an accused person must follow when applying for disclosure of these records. The accused must serve the application on the prosecutor, the person who has possession or control of the record, the complainant or witness, and any other person to whom the record relates. This must be done at least seven days before the hearing referred to in subsection 278.4(1), or any shorter interval that the judge may allow in the interests of justice. In addition to serving the application, the accused must also serve a subpoena on the person who has possession or control of the record at the same time. This subpoena is issued under Part XXII in Form 16.1. The purpose of this requirement is to ensure that all parties have access to the same information before the hearing. This section seeks to balance the rights of the accused with the need to protect the privacy and dignity of complainants and witnesses. It recognizes that in some cases, disclosure of certain records may be necessary for a fair trial. However, this must be balanced against the potential harm that may be caused by the disclosure of personal and sensitive information. Overall, Section 278.3(5) seeks to promote transparency and fairness in sexual offence cases, while also protecting the privacy and dignity of all parties involved. It sets out clear guidelines for the disclosure of records and ensures that all parties have access to the same information before the hearing.

COMMENTARY

Section 278.3(5) of the Criminal Code of Canada is an important provision that deals with the disclosure of records in a sexual assault trial. The section stipulates that the accused must serve an application on the prosecutor, the person who has possession or control of the record, the complainant or witness, and any other person to whom the record relates at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused must also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served. The purpose of this provision is to ensure that both the accused and the Crown have access to all relevant information in a sexual assault trial. The disclosure of records is a critical component of the trial process as it allows the parties to assess the strength and weaknesses of their respective cases. As such, this provision helps to promote fairness and impartiality in the trial process. The requirement to serve the application on various parties demonstrates the importance of transparency and accountability in the trial process. By serving the application on the prosecutor, the accused is demonstrating a willingness to cooperate with the Crown in the trial process. Similarly, by serving the application on the person who has possession or control of the record, the accused is demonstrating a willingness to work with the party who has custody of the record. Moreover, by serving the application on the complainant or witness, the accused is giving them notice that the record will be used in the trial and allowing them an opportunity to review the record prior to the hearing. This notice is crucial because it provides an opportunity for the complainant or witness to prepare themselves for the trial. The provision also emphasizes that the subpoena must be served at the same time as the application. This is important because it ensures that the person who has possession or control of the record is properly notified that the record will be used in the trial. Additionally, serving the subpoena at the same time as the application allows the person who has possession or control of the record to prepare for the trial and secure the record. One issue that could arise with this provision is the issue of timing. Seven days may not be sufficient time for the parties to review the records prior to the hearing. This may result in an unfair trial process, particularly if one party has more time than the other to review the records. As such, it is important for judges to consider whether a shorter interval would be appropriate in the interests of justice. In conclusion, Section 278.3(5) of the Criminal Code of Canada is an important provision that helps to promote fairness and transparency in the trial process in sexual assault cases. By requiring the accused to serve the application on various parties and serve the subpoena at the same time, the provision ensures that all relevant information is disclosed prior to the hearing. While there may be issues with the timing requirement, judges have the discretion to determine whether a shorter interval would be appropriate in the interests of justice.

STRATEGY

Section 278.3(5) of the Criminal Code of Canada is a critical aspect of any criminal proceeding involving the disclosure of records relating to a complainant or witness. The provision mandates that the accused serve the application and subpoenas on the various parties involved in the case, including the prosecutor, the person who has possession or control of the record, and the complainant or witness. There are numerous strategic considerations that come into play when dealing with this section of the Criminal Code of Canada. One of the most crucial is timing. The accused must serve the application and subpoenas at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. Failing to comply with this requirement could lead to significant consequences, including the exclusion of the evidence or the delay of the entire trial. Another strategic consideration when dealing with this section of the Criminal Code is the selection of the appropriate form of subpoena. Form 16.1 is required for serving the subpoena to the person who has possession or control of the record. The form should be carefully completed, ensuring all relevant details are provided to the person being subpoenaed. An improperly structured subpoena could lead to the evidence being excluded from the trial, which could undermine the entire case. The third strategic consideration is which parties should be served with the application and subpoenas. Under the relevant provisions, the accused must serve the application on the prosecutor, the witness, the person who has possession or control of the record, and any other person to whom, to the knowledge of the accused, the record relates. This means that the accused must be diligent in identifying all the individuals who may have information relevant to the case. Missing anyone could lead to gaps in the evidence that the prosecutor could exploit, leading to an acquittal. One recommended strategy is to engage a lawyer who specializes in criminal law to help with complying with this section of the Criminal Code of Canada. Professionals are best placed to provide advice on how to navigate this requirement, thereby mitigating the risks of non-compliance and enhancing the chances of success in court. In conclusion, complying with section 278.3(5) of the Criminal Code of Canada is crucial in any criminal proceeding involving the disclosure of records relating to a complainant or witness. Failure to comply could lead to significant consequences, including the exclusion of evidence and the delay of the entire trial. Therefore, the accused should be diligent in identifying all the individuals who may have information relevant to the case, select the appropriate form of subpoena, and engage the services of a professional to ensure compliance.