INTRODUCTION AND BRIEF DESCRIPTION
Persons referred to in subsection (2) cannot be ordered to pay costs for their participation in the hearing.
SECTION WORDING
278.4(3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.
EXPLANATION
Section 278.4(3) of the Criminal Code of Canada states that no order for costs can be made against a person involved in a hearing under subsection (2). This provision is essential in the context of the Criminal Code of Canada as it is meant to protect victims and witnesses of certain sexual offenses from being burdened with the costs of their participation in hearings. Subsection (2) of Section 278.4 is applicable in cases where an accused person's previous sexual activity or conduct is introduced as evidence. In such cases, the court can hold a hearing to determine the admissibility of such evidence and to what extent it can be presented at trial. The hearing provides a platform for the prosecution and defense to present their arguments, and victims and witnesses may be called to testify. Without this provision, there would be a risk that victims and witnesses may be discouraged from participating in the hearing due to the fear of being ordered to pay costs associated with their involvement. This would be counterproductive to the purpose of the hearing, which is to ensure a fair trial while also protecting the privacy and dignity of victims and witnesses. By providing immunity from costs, Section 278.4(3) helps to ensure that victims and witnesses can participate in the hearing without the fear of being financially burdened. This provision promotes access to justice and helps to uphold the principles of fairness and equality under the law.
COMMENTARY
Section 278.4(3) of the Criminal Code of Canada is a provision that seeks to protect the rights and interests of individuals who participate in the hearing of a criminal case, particularly in cases involving sexual assault and other forms of sexual misconduct. This provision specifies that no order for costs can be made against a person who has been referred to in subsection (2) of the same section, in relation to their participation in the hearing. This provision is of utmost importance as it aims to mitigate the financial burden that such individuals might face as a result of their participation in the hearing of a sexual assault case. As we all know, the process of going through a criminal trial can be emotionally, mentally, and financially draining. For the individual who has been sexually assaulted, the trauma of the incident and the subsequent legal proceedings can be highly distressing. As such, the provision in section 278.4(3) ensures that they are not further burdened by the costs associated with their involvement in the case. It is worth noting that the provision applies only to individuals who fall under subsection (2) of section 278.4 of the Criminal Code of Canada. Subsection (2) specifies the types of persons who might be called upon to participate in the hearing. They include the complainant, any witness, the accused person, and any expert witness. This provision also covers any person acting as an agent of any of the aforementioned individuals. While this provision helps to address some of the challenges that those involved in criminal proceedings might face, it does come with some drawbacks. One potential drawback is that it might deter some individuals from coming forward to participate in the hearing. The fear of incurring significant legal costs might prevent some from seeking legal representation or testifying in court. The lack of participation could then lead to challenges with gathering evidence, rendering the trial process less effective. Another potential limitation of section 278.4(3) is that it does not cover the costs of any legal or other professional services incurred by the person in question. The provision may only protect individuals against costs awarded by the court. As a result, the person may still have to bear the costs of their legal representation, which could be a significant expense. Moreover, while section 278.4(3) provides some protection for individuals who participate in sexual assault trials, it doesn't go far enough in protecting them from other forms of victimization. For instance, there are cases when those who report sexual assault end up facing harassment and intimidation from their assailants. In such situations, financial protection is not enough to ensure the safety of the person involved. In conclusion, section 278.4(3) of the Criminal Code of Canada is an essential provision that addresses some of the challenges individuals might face when participating in the hearing of criminal cases. The provision helps to ensure that individuals who participate in sexual assault trials are not burdened by additional legal costs. However, it is important to recognize that this provision doesn't go far enough in protecting individuals from other forms of victimization. As such, there may be a need for further legal provisions to ensure that those who participate in criminal trials are adequately protected.
STRATEGY
Section 278.4(3) of the Criminal Code of Canada provides protection against costs orders for individuals participating in a hearing under subsection (2). This provision is intended to protect individuals from bearing the costs associated with participating in a hearing as a result of being named as a complainant or witness in these cases. When it comes to dealing with this section of the Criminal Code, there are several strategic considerations that parties should keep in mind. The following are some key considerations that can help individuals and organizations navigate these complex cases: 1. Understanding the scope of the provision - One of the most important things to keep in mind when dealing with Section 278.4(3) is that it only applies to individuals that are referred to in subsection (2). Subsection (2) outlines the individuals who can apply to a court for a hearing into whether there are reasonable grounds to believe that a person has committed an offense under section 273.3, 273.4, or 273.5 of the Criminal Code. Therefore, parties must make sure that they fall under these provisions before seeking protection from an order for costs. 2. Hiring experienced legal counsel - Given the complexities of these cases and the potential consequences involved, individuals that are referred to in subsection 2 should consider hiring experienced legal counsel. These lawyers can assist in drafting the necessary documents, advising on legal strategy, and ensuring that their client's rights are protected throughout the process. 3. Considering alternative dispute resolution - In some cases, parties may be able to avoid a hearing altogether by using alternative dispute resolution methods such as mediation or arbitration. These methods can save time and money and allow parties to come to a resolution without appearing in court. 4. Being vigilant about costs - Even though parties referred to in subsection (2) are protected against orders for costs, it is still important to be vigilant about any costs that may be incurred during a hearing. This includes seeking compensation for any expenses such as travel or lost wages, and monitoring for expenses that may arise as a result of an appeal. 5. Understanding the legal landscape - Parties must be familiar with the Criminal Code's provisions around these cases and how courts have interpreted them in the past. Understanding the legal landscape can help individuals and organizations formulate effective strategies and be prepared for any challenges that may arise. In conclusion, Section 278.4(3) of the Criminal Code of Canada provides important protection for individuals who are named as complainants or witnesses in hearings. When dealing with this section, parties must consider factors such as hiring experienced legal counsel, being vigilant about costs, and understanding the legal landscape. With these considerations in mind, individuals and organizations can navigate these challenging cases successfully.