Admission of Records for Sexual Offences

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General Principles

See also: Disclosure of Third Party Records, Complainant's Sexual History, and Production of Records for Sexual Offences
Prohibition on Adducing Protected Records
Admissibility — accused in possession of records relating to complainant

278.92 (1) Except in accordance with this section, no 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 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled], 155 [incest], 160 [bestiality], 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 172 [corrupting children], 173 [Indecent acts], 210 [keeping common bawdy-house], 211 [transporting person to bawdy-house], 213 [stopping or impeding traffic], 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm], 273 [aggravated sexual assault], 279.01 [trafficking in persons], 279.011 [trafficking in persons, under 18], 279.02 [material benefit from trafficking], 279.03 [withholding or destroying docs], 286.1 [obtaining sexual services for consideration], 286.2 [material benefit from sexual services provided] or 286.3 [procuring]; 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.

[omitted (2) and (3)]
2018, c. 29, s. 25.
[annotation(s) added]

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"adduce"

The meaning of "adduce" relates to protected records being shown to the privacy holder in the course of the trial. It is not relevant whether the document is tendered as an exhibit.[1]

  1. R v MS, 2019 ONCJ 670 (CanLII), per Chapman J, at para 22 ("An order under s.278.92 is required before defence counsel may put the contents of a record in the possession of the accused in which the complainant has a reasonable expectation of privacy to a witness in the trial of a sexual offence. This is so whether the record is ultimately made an exhibit in the proceedings or not")

Admission of Protected Records

278.92
[omitted (1)]

Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 [application for hearing — sections 276 and 278.92] and 278.94 [procedure relating to s. 276 or 278.92 records],

(a) if the admissibility of the evidence is subject to section 276 [prohibition against evidence of complainant’s sexual activity], that the evidence meets the conditions set out in subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] while taking into account the factors set out in subsection (3); or
(b) in any other case, that the evidence 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.

[omitted (3)]
2018, c. 29, s. 25.
[annotation(s) added]

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278.92 [omitted (1) and (2)]

Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2) [requirements for admissibility], the judge, provincial court judge or justice shall take into account

(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 evidence 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.

2018, c. 29, s. 25.
[annotation(s) added]

CCC


Application for hearing — sections 276 [prohibition against evidence of complainant’s sexual activity] and 278.92 [screening of protected sexual offence records in possession of accused]

278.93 (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 278.94 [procedure relating to s. 276 or 278.92 records] to determine whether evidence is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility].

Form and content of application

(2) An application referred to in subsection (1) [application for hearing — sections 276 and 278.92] must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

Jury and public excluded

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

Judge may decide to hold hearing

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2) [form and content of application], that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity], the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 [procedure relating to s. 276 or 278.92 records] to determine whether the evidence is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility].

2018, c. 29, s. 25.
[annotation(s) added]

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Procedure

Hearing — jury and public excluded

278.94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility].

Complainant not compellable

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

Right to counsel

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

Judge’s determination and reasons

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) [preconditions to admit evidence of complainant’s sexual activity] or 278.92(2) [requirements for admissibility] and shall provide reasons for that determination, and

(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) [factors to admit evidence of complainant’s sexual activity] or 278.92(3) [factors that judge shall consider] that affected the determination; and
(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
Record of reasons

(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

2018, c. 29, s. 25.
[annotation(s) added]

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Publication of Hearing or Records
Publication prohibited

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93 [application for hearing — sections 276 and 278.92];
(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94 [procedure relating to s. 276 or 278.92 records];
(c) the decision of a judge or justice under subsection 278.93(4) [judge may decide to hold hearing], unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under subsection 278.94(4) [judge’s determination and reasons], unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
Offence

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

2018, c. 29, s. 25.
[annotation(s) added]

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Consequence of Admission

Judge to instruct jury — re use of evidence

278.96 If evidence is admitted at trial on the basis of a determination made under subsection 278.94(4) [judge’s determination and reasons], the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

2018, c. 29, s. 25.

Appeals

Appeal

278.97 For the purposes of sections 675 [right of appeal of person convicted] and 676 [right of Attorney General to appeal], a determination made under subsection 278.94(4) [judge’s determination and reasons] shall be deemed to be a question of law.

2018, c. 29, s. 25.

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