Criminal Code of Canada - section 278.5(1) - Judge may order production of record for review

section 278.5(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge to order the production of a record for review if the requirements of the subsection are fulfilled.

SECTION WORDING

278.5(1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that (a) the application was made in accordance with subsections 278.3(2) to (6); (b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and (c) the production of the record is necessary in the interests of justice.

EXPLANATION

Section 278.5(1) of the Criminal Code of Canada provides the power to a judge to order the production of a record or part of a record in certain circumstances. This section is relevant to cases where there is an application to produce a record, such as medical records, for use in a criminal trial. The judge has the discretion to order the production of the record if certain criteria are met. Firstly, the judge must be satisfied that the application was made in accordance with subsections 278.3(2) to (6). This means that the application must follow the proper legal procedures, including providing notice to the person who has possession or control of the record. Secondly, the accused must have established that the record is likely relevant to an issue at trial or to the competence of a witness to testify. This means that the record must have some significance to the case and could potentially impact the outcome of the trial. Lastly, the judge must determine that the production of the record is necessary in the interests of justice. This means that the judge must weigh the interests of the accused in obtaining the record against any potential harm that may result from its disclosure, such as the invasion of privacy of the person who has possession or control of the record. Overall, Section 278.5(1) provides a legal framework to govern the production of records in criminal trials, ensuring that proper legal procedures are followed and that the interests of both the accused and potential witnesses are considered.

COMMENTARY

Section 278.5(1) of the Criminal Code of Canada deals with the production of records during a criminal trial. The section outlines the circumstances under which a judge may order the production of a record or part of a record from a person who has possession or control of it. Firstly, the judge may order the production of the record only if they are satisfied that the application for production was made in accordance with subsections 278.3(2) to (6). This means that the application must be properly filed and that the person requesting production has complied with all the necessary requirements for making the application. Secondly, the judge must be satisfied that the record is likely relevant to an issue at trial or to the competence of a witness to testify. This means that the record must have some bearing on the facts of the case or on the ability of a witness to give evidence in the trial. This requirement ensures that only records that are pertinent to the case are produced, limiting the scope of the application and ensuring that it does not become a "fishing expedition". Thirdly, the production of the record must be necessary in the interests of justice. The interests of justice is a broad and elastic term that encompasses a wide range of considerations, including the fairness of the trial, the rights of the accused, and the public interest in the administration of justice. This requirement ensures that the production of the record is not arbitrary or capricious, and that it is necessary to further the underlying goals of the criminal justice system. Overall, Section 278.5(1) serves as a safeguard against the abuse of the production of records during a criminal trial. It ensures that the proper procedures are followed, that only relevant records are produced, and that the production of the record is necessary to further the interests of justice. This provision is an example of how the Canadian criminal justice system seeks to balance the rights of the accused with the necessity of ensuring justice is done in each case. It is an important mechanism used to prevent miscarriages of justice and to protect the integrity of the trial process.

STRATEGY

Section 278.5(1) of the Criminal Code of Canada provides a powerful tool for the defense to obtain access to records that may be relevant to an issue at trial or the competence of a witness to testify. However, obtaining such access is not an automatic right and requires satisfying specific requirements laid out in subsections 278.3(2) to (6) and demonstrating that the production of the record is necessary in the interests of justice. In light of these requirements, some strategic considerations that defense counsel should take into account when seeking access to records under Section 278.5(1) include the following: 1. Establishing that the application was made in accordance with subsections 278.3(2) to (6): The defense must provide sufficient evidence to demonstrate that they have complied with the procedural requirements for making an application under Section 278.3. This involves showing that they have given prior notice to all parties and have provided reasons for the application. 2. Demonstrating that the record is likely relevant to an issue at trial: The defense must show that the record is likely to be relevant to an issue at trial, which may be challenging as they do not have direct access to the record. It may require the defense to rely on other evidence, such as witness statements or forensic reports, to establish the relevance of the record. 3. Showing that the production of the record is necessary in the interests of justice: The defense must argue that the production of the record is necessary in the interests of justice, considering factors such as the probative value of the evidence, the potential prejudice to the accused and other parties, and the impact on the administration of justice. In order to succeed in obtaining access to records under Section 278.5(1), defense counsel may employ a range of strategies, including: 1. Conducting a thorough investigation: The defense may need to conduct an extensive investigation to identify potential records that may be relevant to the case. This may involve interviewing witnesses, requesting information from third parties, or conducting forensic analysis of electronic devices. 2. Presenting a compelling argument: The defense must present a convincing argument that the record is likely relevant and that its production is necessary in the interests of justice. This may involve presenting relevant case law, expert opinions, or other evidence to support their position. 3. Negotiating with the Crown: The defense may attempt to negotiate with the Crown to reach a compromise that allows them access to the record without having to go through the formal process under Section 278.5(1). This may involve agreeing to certain conditions, such as confidentiality agreements or limited use of the record. 4. Challenging the decision: If the judge denies their application, the defense may challenge the decision by appealing to a higher court or seeking a judicial review. This will require demonstrating that the judge made an error of law or exercised their discretion unreasonably. In conclusion, Section 278.5(1) of the Criminal Code of Canada provides a valuable tool for the defense to obtain access to records that may be relevant to their case. However, it requires careful strategic considerations and persuasive arguments to satisfy the requirements and convince the judge to order the production of the record. The defense may need to adopt a creative and proactive approach to overcome the challenges and secure the best outcome for their client.