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| Patrick J Ducharme |
Generally all proceedings are in public. Members of the public may be excluded if it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude. If there is exclusion, reasons must be provided. Maintaining the proper administration of justice includes protection of child witnesses. Further, the trial Judge may make an order directing that the identity of a complainant not be disclosed or published. These powers are contained in section 486:
486(1): Any proceedings against an accused shall be held in open court, but the presiding Judge or Justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the Judge or Justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) Protection of witnesses under 18 and justice system participants — For the purposes of subsection (1), the “proper administration of justice” includes ensuring that
(a) the interests of witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) Reasons to be stated — If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272, 273, 279.01, 279.02 or 279.03 and the prosecutor or the accused applies for an order under subsection (1), the Judge or Justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.
486.1(1): Support person — witnesses under 18 or who have a disability — In any proceedings against an accused, the Judge or Justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who has a mental or physical disability, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the Judge or Justice is of the opinion that the order would interfere with the proper administration of justice
(2) Other witnesses — In any proceedings against an accused, the Judge or Justice may, on application of the prosecutor or a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the Judge or Justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
(2.1) Application — An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding Judge or Justice or, before the proceedings begin, to the Judge or Justice who will preside at the proceedings.
(3) Factors to be considered — In making a determination under subsection (2), the Judge or Justice shall take into account the age of the witness, whether the witness has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the Judge or Justice considers relevant.
(4) Witness not to be a support person — The Judge or Justice shall not permit a witness to be a support person unless the Judge or Justice is of the opinion that doing so is necessary for the proper administration of justice.
(5) No communication while testifying — The Judge or Justice may order that the support person and the witness not communicate with each other while the witness testifies.
(6) No adverse inference — No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
486.2(1): Testimony outside court room — witnesses under 18 or who have a disability — Despite section 650, in any proceedings against an accused, the Judge or Justice shall, on application of the prosecutor, of a witness who is under the age of eighteen years or of a witness who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the Judge or Justice is of the opinion that the order would interfere with the proper administration of justice.
(2) Other witnesses — Despite section 650, in any proceedings against an accused, the Judge or Justice may, on application of the prosecutor or a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the Judge or Justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
(2.1) Application — An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding Judge or Justice or, before the proceedings begin, to the Judge or Justice who will preside at the proceedings.
(3) Factors to be considered — In making a determination under subsection (2), the Judge or Justice shall take into account the factors referred to in subsection 486.1(3).
(4) Specific offences — Despite section 650, if an accused is charged with an offence referred to in subsection (5), the presiding Judge or Justice may order that any witness testify:
(a) outside the court room if the Judge or Justice is of the opinion that the order is necessary to protect the safety of the witness; and
(b) outside the courtroom or behind a screen or other device that would allow the witness not to see the accused if the Judge or Justice is of the opinion that the order is necessary to obtain a full and candid account from the witness of the acts complained of.
(5) Offences — The offences for the purposes of subsection (4) are
(a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(6) Same procedure for determination — If the Judge or Justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) or (4) should be made in respect of that witness, the Judge or Justice shall order that the witness testify in accordance with that subsection.
(7) Conditions of exclusion — A witness shall not testify outside the court room under subsection (1), (2), (4) or (6) unless arrangements are made for the accused, the Judge or Justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
(8) No adverse inference — No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
486.3(1): Accused not to cross-examine witness under 18 — In any proceedings against an accused, on application of the prosecutor or a witness who is under the age of eighteen years, the accused shall not personally cross-examine the witness, unless the Judge or Justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The Judge or Justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(2) Other witnesses — In any proceedings against an accused, on application of the prosecutor or a witness, the accused shall not personally cross-examine the witness if the Judge or Justice is of the opinion that, in order to obtain a full and candid account from the witness of the acts complained of, the accused should not personally cross-examine the witness. The Judge or Justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(3) Factors to be considered — In making a determination under subsection (2), the Judge or Justice shall take into account the factors referred to in subsection 486.1(3).
(4) Victim of criminal harassment — In any proceedings in respect of an offence under section 264, on application of the prosecutor or the victim of the offence, the accused shall not personally cross-examine the victim unless the Judge or Justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. The Judge or Justice shall appoint counsel to conduct the cross-examination if the accused does not personally conduct the cross-examination.
(4.1) Application — An application referred to in subsection (1), (2) or (4) may be made, during the proceedings, to the presiding Judge or Justice or, before the proceedings begin, to the Judge or Justice who will preside at the proceedings.
(5) No adverse inference — No adverse inference may be drawn from the fact that counsel is, or is not, appointed under this section.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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