INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the factors a judge must consider when deciding whether or not to order the production of a record to the accused in a criminal case.
SECTION WORDING
278.7(2) In determining whether to order the production of the record or part of the record to the accused, 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 and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.
EXPLANATION
Section 278.7(2) of the Criminal Code of Canada relates to the production of a record or part of a record to the accused in a case of sexual assault. The section specifies that when determining whether to order the production of the record, the judge must consider the impact on the accused's right to make a full answer and defence, as well as on the privacy and equality rights of the complainant or witness, and any other person related to the record. The factors listed in Section 278.5(2)(a) to (h) must also be taken into account when making this determination. These factors include, among other things, the importance of the evidence to the defence, whether the record contains personal or sensitive information, whether the production of the record may lead to further intimidation or harm to the complainant or witness, and the impact on the integrity of the administration of justice. This section is designed to balance the interests and rights of both the accused and the complainant or witness in a sexual assault case. It recognizes the importance of the accused's right to a fair trial and the ability to defend themselves, while also acknowledging the need to protect the privacy and equality rights of the complainant or witness. Overall, this section of the Criminal Code reinforces the importance of careful consideration and balance when determining whether to produce a record to the accused, with a focus on both the accused's rights and the rights of the complainant or witness.
COMMENTARY
Section 278.7(2) of the Criminal Code of Canada is an important piece of legislation that governs the production of records in sexual offence cases. It outlines the factors that judges must consider when making a determination about whether to order the production of records to the accused. Specifically, it requires judges to weigh the salutary and deleterious effects of the determination on the accused's right to a full answer and defense, as well as the right to privacy and equality of the complainant or witness, and any other person to whom the record relates. In addition, it requires judges to take into account a list of specific factors when making their decision. One of the most significant considerations in this section is the protection of the complainant's privacy and equality. Sexual assault cases often involve sensitive and personal information, and the complainant may be hesitant to come forward if they feel that their privacy will be compromised. The production of records could also create a power imbalance between the complainant and the accused, potentially causing the complainant to feel intimidated or threatened. It is therefore crucial that judges carefully weigh these concerns when making a determination. Another important consideration in this section is the accused's right to a full answer and defense. The production of records could potentially provide the accused with important information to support their defense. However, it is important to balance this right with the privacy and equality concerns of the complainant and any other individuals involved. To make an informed decision, judges are also required to take into account a specific list of factors outlined in paragraphs 278.5(2)(a) to (h). These factors include things like the probative value of the evidence, the potential prejudice to the other parties involved, and the potential harm to the privacy and equality of the complainant or witness. It is important to note that these factors are not exhaustive, and judges may consider other relevant factors as well. Ultimately, the decision to order the production of records is a complex one that requires careful consideration of a variety of factors. Judges must balance the accused's right to a full answer and defense with the privacy and equality concerns of the complainant and any other individuals involved. By taking into account the specific factors outlined in the legislation, judges can make a fair and informed decision that balances these competing interests.
STRATEGY
Section 278.7(2) of the Criminal Code of Canada mandates that a judge must consider several factors before ordering the production of records or parts of records to the accused. There are several strategic considerations to bear in mind when dealing with this section. Firstly, given the sensitive nature of these cases, it is important to be mindful of the complainant or witness's right to privacy and equality. This must be balanced against the accused's right to make a full answer and defense. In light of this, the court must weigh each factor carefully before deciding whether to order the production of the record or part of the record. Secondly, to make a persuasive case, the defense counsel should carefully consider the factors specified in paragraphs (a) to (h) of section 278.5(2). These include the probative value of the record, the potential prejudice to the alleged victim's privacy interests, the legitimate interests of other affected parties, and the necessity of the record for the accused's defense. The way these factors are presented will determine the success of the defense counsel's case. Thirdly, the defendant should carefully review the records before making an application for their production. This is to ensure that they understand the scope of the records they are requesting and that they can make a compelling argument for the relevance of these records to their defense. The defense counsel may wish to obtain expert testimony to support their position. Fourthly, a strategic decision must also be taken into account when deciding whether to seek production of records relating to the complainant. Failure to request records that the defense counsel considers relevant or failure to present a compelling case for production of records may be affected by the credibility of the defense. Finally, strategic considerations may also arise during related proceedings such as bail hearings and cross-examination. Counsel can use Section 278.7(2) and precedent cases related to production orders to support their case. To conclude, there are several strategic considerations to bear in mind when dealing with section 278.7(2) of the Criminal Code of Canada. Careful consideration of the factors listed in section 278.5(2) must be taken into account, and the defendant can use expert testimony for such applications. To make a persuasive case, the defense counsel must also consider the right to privacy and equality of the complainant or witness. It is advisable that the defense counsel review and understand the records before filing an application. In addition, strategic considerations relating to related proceedings such as bail hearings and cross-examination may arise.