INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the factors a judge must consider when determining if a record related to a sexual offence should be produced for review, with consideration given to the accuseds right to defense, the privacy and equality of the complainant or witness, and societys interest in encouraging reporting and treatment.
SECTION WORDING
278.5(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account: (a) the extent to which the record is necessary for the accused to make a full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society’s interest in encouraging the reporting of sexual offences; (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process.
EXPLANATION
Section 278.5(2) of the Criminal Code of Canada lays down the rules for determining whether to order the production of records for review. The judge must consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defense and the right to privacy and equality of the witness or complainant, as well as any other person to whom the records pertain. Moreover, the judge has to consider various factors to arrive at a fair decision. These factors include the extent to which the record is necessary for the accused to make a full answer and defense, the probative value of the record, the nature and extent of the reasonable expectation of privacy with respect to the record, whether production of the record is based on a discriminatory belief or bias, the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates, society's interest in encouraging the reporting of sexual offenses, society's interest in encouraging the obtaining of treatment by complainants of sexual offenses, and the effect of the determination on the integrity of the trial process. The provision seeks to balance the fundamental rights of the accused and the witnesses/complainants in sexual offenses. It aims to prevent any possible prejudice to the accused's right to facilitate a robust defense while also not discouraging the reporting of sexual offenses. The judge has to weigh the various interests and impacts of such a determination and arrive at a fair and just decision to ensure a fair and unbiased trial process.
COMMENTARY
Section 278.5(2) of the Criminal Code of Canada lays out the factors that a judge must consider when deciding whether to order the production of a record or part of a record for review in relation to a sexual offence trial. This is an important section of the Code as it deals with balancing the rights and interests of both the accused and the complainant or witness, while also keeping in mind the integrity of the trial process and society's interest in encouraging reporting and treatment of sexual offences. One of the key factors that the judge must consider is the accused's right to make a full answer and defence. This is a fundamental principle of our justice system and it is essential that the accused is able to access all relevant evidence in order to present a complete defence. At the same time, the judge must also consider the privacy and equality rights of the complainant or witness, as well as any other person to whom the record relates. This means considering the nature and extent of a person's reasonable expectation of privacy with respect to the record and the potential prejudice to their personal dignity and privacy. The probative value of the record is also an important factor to consider. The judge must determine whether the record is necessary for the accused to make a full answer and defence and whether it has any value in proving or disproving the allegations. This is crucial in preventing unnecessary intrusion into a person's privacy. Additionally, the judge must consider whether there is any discriminatory belief or bias underlying the production of the record. This is important as it ensures that any decisions made are not influenced by discriminatory attitudes and that all parties are treated fairly and equally. Society's interest in encouraging the reporting and treatment of sexual offences must also be taken into account. Reporting and treatment are vital for the well-being of survivors and for holding perpetrators accountable for their actions. However, this must be balanced with the need to ensure a fair and impartial trial process. Finally, the judge must consider the effect of the determination on the integrity of the trial process. Any decisions made must not compromise the fairness or integrity of the trial process and must uphold the principles of justice. In conclusion, section 278.5(2) of the Criminal Code of Canada lays out a comprehensive list of factors that must be considered when deciding to order the production of a record or part of a record for review. It aims to balance the rights and interests of both the accused and the complainant or witness, while also ensuring the integrity of the trial process and encouraging reporting and treatment of sexual offences. This section plays an important role in protecting the rights of all parties involved and ensuring a fair and just trial process.
STRATEGY
Section 278.5(2) of the Criminal Code of Canada is a crucial provision that must be properly considered when dealing with records that may relate to complainants or witnesses in sexual offence cases. As such, it is important for lawyers to be aware of the strategic considerations when dealing with this section of the code. One of the key considerations is the balance between the accused's right to make a full answer and defense and the complainant or witness's right to privacy and equality. Therefore, it is important to ensure that the record sought for production is necessary to the defense in question. Counsel for the accused should carefully consider how they will demonstrate the necessity of the record in question, including its probative value to the defense. Another strategic consideration is to protect the privacy and dignity of the complainant or witness by limiting the scope of the production order and redacting any irrelevant information. It is important to avoid a fishing expedition that could infringe on privacy rights. When considering the nature and extent of the reasonable expectation of privacy, it may be important to consider the relationship between the complainant or witness and the accused. For example, if the complainant or witness had a close personal or professional relationship with the accused, the court may be more likely to order production of records. However, if the relationship was more distant, the court may be less likely to do so. It is also important to consider potential discriminatory beliefs or biases that may be at play in seeking the production of a record. Counsel for the accused should ensure that the production order is not based on any discriminatory motive or assumptions about the complainant or witness. Another strategy that could be employed is to demonstrate that production of the record in question would not be prejudicial to the personal dignity and right to privacy of any person to whom the record relates. This can be accomplished by redacting irrelevant information and providing additional safeguards to ensure privacy protection. Finally, counsel should be prepared to argue the broader societal interests at play, such as encouraging the reporting of sexual offences and the obtaining of treatment by complainants. These considerations may be relevant to the court's decision on whether to order the production of records. In summary, strategic considerations when dealing with Section 278.5(2) of the Criminal Code of Canada include balancing the accused's right to make a full answer and defense with the complainant or witness's right to privacy and equality, demonstrating the necessity and probative value of the record, protecting privacy and dignity, avoiding discriminatory motives or bias, and considering broader societal interests. By carefully considering these factors and employing relevant strategies, counsel can work towards an outcome that is just and fair for all parties involved.