Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Hearing in camera

• 278.22 (1) The judge shall hold a hearing in camera to determine whether to order the prosecutor to produce the record or therapeutic record to the court for review by the judge.

• Marginal note:Persons who may appear at hearing

  (2) 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

• 278.23 (1) The judge may order the prosecutor to produce the record or therapeutic record, or any part of it, to the court for review by the judge if, after the hearing referred to in section 278.22, the judge is satisfied that

  • (a) the application was made in accordance with subsections 278.21(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 the case of a therapeutic record, the accused person 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 by judge

• 278.24 (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 it, 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 278.22(2) to (4) apply in the case of a hearing under subsection (2).

Marginal note:Order — production of record to accused

• 278.25 (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 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 278.23(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:Restriction on use

  (5) 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

  (6) 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 prosecutor or the person lawfully entitled to possession or control of it.

Marginal note:Reasons for decision

• 278.26 (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 278.23(1) or 278.25(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, they must be provided in writing.

Marginal note:Publication prohibited

• 278.27 (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 278.21(1);

  • (b) any evidence taken, information given or submissions made at a hearing under subsection 278.22(1) or 278.24(2);

  • (c) the determination of the judge under subsection 278.23(1) or 278.25(1) or (2) and the reasons provided under section 278.26, 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

278.28 For the purposes of sections 675 and 676, a determination to make or refuse to make an order under subsection 278.23(1) or 278.25(1) or (2) is deemed to be a question of law.

Admissibility of Records and Therapeutic Records in the Possession of the Accused

Marginal note:Admissibility — possession by accused

• 278.29 (1) Except in accordance with this section, no record or therapeutic record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence 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:Requirements for admissibility

  (2) The record or therapeutic record is inadmissible in whole or in part unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.3, 278.31 or 278.35,

  • (a) if the admissibility of the record or therapeutic record, or part of it, is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3);

  • (b) that the record, or part of it, is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice; and

  • (c) that the therapeutic record, or part of it, is evidence that is likely to raise a reasonable doubt as to the accused’s guilt and there is no other evidence that is capable of raising a reasonable doubt as to the accused’s guilt.

• Marginal note:Factors to be considered

  (3) In determining whether the record or therapeutic record, or part of it, is admissible under subsection (2), the judge, provincial court judge or justice shall take into account the following factors:

  • (a) the interests of justice, including the right of the accused to make a full answer and defence;

  • (b) society’s interest in encouraging the reporting of sexual assault offences;

  • (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;

  • (d) whether there is a reasonable prospect that the record or therapeutic record, or part of it, will assist in arriving at a just determination in the case;

  • (e) the need to remove from the fact-finding process any discriminatory belief or bias;

  • (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

  • (g) the potential prejudice to the complainant’s personal dignity and right of privacy;

  • (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

  • (i) any other factor that the judge, provincial court judge or justice considers relevant.

Marginal note:Application for hearing

• 278.3 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.31 to determine whether the record or therapeutic record, or part of it, is admissible under subsection 278.29(2).

• Marginal note:Form and content

  (2) The application must be made in writing and must be accompanied by an affidavit setting out

  • (a) detailed particulars of the record or the therapeutic record, or the part of it, that the accused seeks to adduce;

  • (b) in the case of a record, or a part of one, the relevance of that evidence to an issue at trial; and

  • (c) in the case of a therapeutic record, or a part of one, how that evidence is likely to raise a reasonable doubt as to the accused’s guilt.

• Marginal note:Copy of the application

  (3) A copy of the application and the affidavit must be given to the prosecutor and filed with the clerk of the court.

• Marginal note:Jury and public excluded

  (4) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

• Marginal note:Hearing

  (5) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and filed with the clerk of the court at least 60 days previously or within any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice, and that the record or therapeutic record, or the part of it, sought to be adduced is capable of being admissible, the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.31 to determine whether the evidence is admissible under subsection 278.29(2).

• Marginal note:Copy to complainant

  (6) If the judge, provincial court judge or justice grants the application and agrees to hold the hearing, the accused shall cause a copy of the application to be given to the complainant by a person other than the accused.