Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Hearing in camera

• 278.13 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record or therapeutic record to produce it to the court for review by the judge.

• Marginal note:Persons who may appear at hearing

  (2) The person who has possession or control of the record or therapeutic record, the complainant or witness, as the case may be, and any other person to whom the record or therapeutic record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

• Marginal note:Right to counsel

  (3) The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.

• Marginal note:Costs

  (4) An order for costs must not be made against a person referred to in subsection (2) in respect of their participation in the hearing.

Marginal note:Order — production to judge

• 278.14 (1) The judge may order the person who has possession or control of the record or therapeutic record to produce it, or any part of it, to the court for review by the judge if, after the hearing referred to in section 278.13, the judge is satisfied that

  • (a) the application was made in accordance with subsections 278.12(2) to (6);

  • (b) in the case of a record, the accused has established that it is likely relevant to an issue at trial or to the competence of a witness to testify or, in case of a therapeutic record, the accused has established that it contains evidence that could raise a reasonable doubt as to the accused’s guilt; and

  • (c) the production of all or any part of the record or therapeutic record is necessary in the interests of justice.

• Marginal note:Factors to be considered

  (2) In determining whether to order the production of the record or therapeutic record, or part of it, for review, 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, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record or therapeutic record relates. In particular, the judge shall take the following factors into account:

  • (a) the extent to which the record or therapeutic record is necessary for the accused to make a full answer and defence;

  • (b) the probative value of the record or therapeutic record;

  • (c) the nature and extent of the reasonable expectation of privacy with respect to the record or therapeutic record;

  • (d) whether production of the record or therapeutic 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 or therapeutic 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.

Marginal note:Review of record by judge

• 278.15 (1) If the judge has ordered the production of the record or therapeutic record, or part of it, for review, the judge shall review it, or the part of it, in the absence of the parties in order to determine whether the record or therapeutic record, or the part, should be produced to the accused.

• Marginal note:Hearing in camera

  (2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.

• Marginal note:Provisions that apply to hearing

  (3) Subsections 278.13(2) to (4) apply in the case of a hearing under subsection (2).

Marginal note:Order — Production of record to accused

• 278.16 (1) If the judge is satisfied that the record, or part of it, is likely relevant to an issue at trial or to the competence of a witness to testify and that its production is necessary in the interests of justice, the judge may order that the record, or the part, that is likely relevant be produced to the accused, subject to any conditions that may be imposed under subsection (4).

• Marginal note:Order — Production of therapeutic record to accused

  (2) If the judge is satisfied that the therapeutic record, or part of it, contains evidence that is likely to raise a reasonable doubt as to the accused’s guilt and that is not available from any other source, the judge may order that the therapeutic record, or the part, be produced to the accused, subject to any conditions that may be imposed under subsection (4).

• Marginal note:Factors to be considered

  (3) In determining whether to order the production of the record or therapeutic record, or part of it, 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, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record or therapeutic record relates and, in particular, shall take the factors set out in paragraphs 278.14(2)(a) to (h) into account.

• Marginal note:Conditions

  (4) If the judge orders the production of the record or therapeutic record, or part of it, to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record or therapeutic record relates, including, for example, the following conditions:

  • (a) that the record or therapeutic record be edited as directed by the judge;

  • (b) that a copy of the record or therapeutic record, rather than the original, be produced;

  • (c) that the accused and counsel for the accused not disclose the contents of the record or therapeutic record to any other person, except with the approval of the court;

  • (d) that the record or therapeutic record be viewed only at the offices of the court;

  • (e) that no copies of the record or therapeutic record be made or that restrictions be imposed on the number of copies of it that may be made; and

  • (f) that information regarding any person named in the record or therapeutic record, such as their address, telephone number and place of employment, be severed from the record or therapeutic record.

• Marginal note:Copy to prosecutor

  (5) If the judge orders the production of the record or therapeutic record, or part of it, to the accused, the judge shall direct that a copy of the record or therapeutic record, or the part, be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.

• Marginal note:Restriction on use

  (6) The record or therapeutic record, or the part of it, that is produced to the accused under an order under subsection (1) must not be used in any other proceedings.

• Marginal note:Retention by court

  (7) If the judge refuses to order the production of the record or therapeutic record, or part of it, to the accused, the record or therapeutic record, or the part, must, unless a court orders otherwise, be kept in a sealed package by the court until the later of the end of the time for any appeal and the completion of any appeal in the proceedings against the accused, at which time the record or therapeutic record, or the part, must be returned to the person lawfully entitled to possession or control of it.

Marginal note:Reasons for decision

• 278.17 (1) The judge shall provide reasons for ordering or refusing to order the production of the record or therapeutic record, or part of it, under subsection 278.14(1) or 278.16(1) or (2).

• Marginal note:Record of reasons

  (2) The reasons provided under subsection (1) must be entered in the record of the proceedings or, if the proceedings are not recorded, must be provided in writing.

Marginal note:Publication prohibited

• 278.18 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

  • (a) the contents of an application made under subsection 278.12(1);

  • (b) any evidence taken, information given or submissions made at a hearing under subsection 278.13(1) or 278.15(2);

  • (c) the determination of the judge under subsection 278.14(1) or 278.16(1) or (2) and the reasons provided under section 278.17, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record or therapeutic record relates, orders that the determination and the reasons may be published, broadcast or transmitted.

• Marginal note:Exception

  (1.1) Subsection (1) does not apply if the disclosure of any information referred to in paragraphs (1)(a) to (c) is

  • (a) made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community;

  • (b) made by the complainant or any witness and about that complainant or witness and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by this section; or

  • (c) made by the complainant or any witness when the purpose of the disclosure is not one of making the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the complainant or the witness.

• Marginal note:Offence

  (2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Marginal note:Appeal

278.19 For the purposes of sections 675 and 676, a determination to make or refuse to make an order under subsection 278.14(1) or 278.16(1) or (2) is deemed to be a question of law.

Production to Accused of Records and Therapeutic Records in the Possession of the Prosecutor

Marginal note:Records and therapeutic records possessed by prosecutor

• 278.2 (1) Except in accordance with sections 278.21 to 278.28, no record or therapeutic record relating to a complainant or a witness that is in the possession or control of the prosecutor shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

  • (a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 or any other offence under this Act, or any other Act of Parliament, that is of a sexual nature or that is committed for a sexual purpose; or

  • (b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

• Marginal note:Permitted production

  (2) The prosecutor may produce to the accused

  • (a) a record or part of a record, if the prosecutor intends to adduce the record or part in court or if the record or part directly relates to the activity that forms the subject matter of the charge against the accused;

  • (b) a record or therapeutic record, or a part of one, if the complainant or witness to whom it relates agrees to its disclosure to the accused; and

  • (c) any communication between the accused and the complainant.

• Marginal note:Duty of prosecutor to give notice

  (3) Subject to subsection (2), if a record or therapeutic record in respect of which this section applies is in the possession or control of the prosecutor, the prosecutor shall notify the accused that it is in the prosecutor’s possession or control but, in doing so, the prosecutor shall not disclose its contents.

• Marginal note:Application of sections 278.29 to 278.38

  (4) Production under subsection (2) does not affect the application of sections 278.29 to 278.38.

Marginal note:Application for production

• 278.21 (1) An accused who seeks production of a record or therapeutic record referred to in subsection 278.2(1) must make an application for its production to the judge before whom the accused is to be, or is being, tried.

• Marginal note:No application in other proceedings

  (2) For greater certainty, the application referred to in subsection (1) must not be made to a judge, provincial court judge or justice presiding at any other proceedings, including a preliminary inquiry.

• Marginal note:Form and content

  (3) The application must be made in writing and must set out

  • (a) particulars identifying the record or the therapeutic record that the accused seeks to have produced;

  • (b) in the case of a record, the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

  • (c) in the case of a therapeutic record, the grounds on which the accused relies to establish that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused’s guilt.

• Marginal note:Insufficient grounds

  (4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify or that the therapeutic record contains evidence that could raise a reasonable doubt as to the accused’s guilt:

  • (a) that the record or therapeutic record exists;

  • (b) that the record or therapeutic record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

  • (c) that the record or therapeutic record relates to the incident that is the subject matter of the proceedings;

  • (d) that the record or therapeutic record may disclose a prior inconsistent statement of the complainant or witness;

  • (e) that the record or therapeutic record may relate to the credibility of the complainant or witness;

  • (f) that the record or therapeutic record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

  • (g) that the record or therapeutic record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

  • (h) that the record or therapeutic record relates to the sexual activity of the complainant with any person, including the accused;

  • (i) that the record or therapeutic record relates to the presence or absence of a recent complaint;

  • (j) that the record or therapeutic record relates to the complainant’s sexual reputation;

  • (k) that the record or therapeutic record was made close in time to a complaint or to the activity that forms the subject matter of the charge against the accused.

• Marginal note:Service of application

  (5) The accused shall serve the application on the prosecutor, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record or therapeutic record relates, at least 60 days before the hearing referred to in subsection 278.22(1) or within any shorter interval that the judge may allow in the interests of justice.

• Marginal note:Service on other persons

  (6) The judge may at any time order that the application be served on any person to whom the judge considers the record or therapeutic record may relate.

• Marginal note:Service on complainant

  (7) The service requirement on the accused in subsection (5) is not fulfilled if the accused personally serves the application the complainant.