Production of Records for Sexual Offences
General Principles
Section 278.1 to 278.91 governs the procedure for the production of personal records concerning the complainant in relation to certain sexual offences. Typically this will capture records such as psychiatric records, police records, Children's Aid records, and private electronic communications.
The starting point, as governed by s. 278.2, is that certain records for which the complainant retains an expectation of privacy should not be produced.
The application process to access the records involves the same two phases to determine the release of records:
- determine whether records should be reviewed by the court; and
- determine whether the reviewed records should be disclosed.
- Purpose of "Mills" Regime
The purpose behind the "Mills" regime (ie. s. 278.1 to 278.91) is to "counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings."[1]
- Mills vs O'Connor regime
One of the significant differences between the Mills and O'Connor regimes are that Mills applies irrespective of whether the records are held by a third party or the prosecuting Crown.[2]
- ↑
R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J, at para 31
- ↑ McNeil, ibid.
Prohibition to Disclose
Section 278.2 prohibits the disclosure of certain types of records to the defence unless applied for through the process described in s. 278.3 to 278.91 where the accused is charged with one or more enumerated sexual offences. These records are protected on the basis of their expectation of privacy, regardless of whether they include content relating to the person's sexual history.
- Production of record to accused
278.2 (1) Except in accordance with sections 278.3 to 278.91 [production of records for sexual offences], no record relating to a complainant or a witness 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 [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], 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 [comm. to obtain 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.
- Application of provisions
(2) Section 278.1 [production of record to accused], this section and sections 278.3 to 278.91 [production of records for sexual offences] apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
[omitted (3)]
1997, c. 30, s. 1; 1998, c. 9, s. 3; 2014, c. 25, ss. 17, 48; 2015, c. 13, s. 5; 2019, c. 25, s. 102.
[annotation(s) added]
The complainant who is the subject of the records sought has standing to be a party to the application.[1]
- Consent Release of Records
Where there has been proper waiver by the complainant there does not appear to be any requirement for a production order.[2]
- ↑
e.g. R v GPJ, 2001 MBCA 18 (CanLII), 151 CCC (3d) 382, per Philp JA, at paras 47 to 49
- ↑
R v PB, 2019 ONCA 13 (CanLII), per curiam, at para 5 ("P.B. does not contend that the Crown should have produced those records sooner. During oral argument he agreed that because of the combined effect of Criminal Code,..., ss. 278.2(2) and 278.3(1), the Crown was not authorized to do so until A.B.’s waiver, absent a third party records disclosure order.")
R v BG, 2015 ONSC 3284 (CanLII), per Trotter J, at para 8 ("Section 278.2(2) of the Criminal Code prohibits the Crown from disclosing the DVD without a waiver.")
Test for Production
First, the judge must determine if the records meet the definition of records under s. 278.1.
The first phase of the Mills test considers whether the record is "likely relevant": s. 278.5(b).
Crown Duty to Notify Accused
Under s. 278.3(3), once the Crown is in possession of documents captured by s. 278.1, they must notify defence of the existence of the records. This obligation exists irrespective of whether the Crown intends to use them.[1]
278.3
[omitted (1) and (2)]
- Duty of prosecutor to give notice
(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents.
1997, c. 30, s. 1; 1998, c. 9, s. 3; 2014, c. 25, ss. 17, 48; 2015, c. 13, s. 5; 2019, c. 25, s. 102.
[annotation(s) added]
- Where Crown Not Wanting to Tender Records
Where the Crown does not intend to use the records the have no obligations beyond notice under s. 278.3(3).[2]
- ↑ R v PB, 2019 ONCA 13 (CanLII), per curiam
- ↑ PB, ibid., at para 6
Prohibition on Adducing Records at trial
Records prohibited by s. 278.92 may only be admitted into evidence at trial after an assessment under ss. 278.93 and 278.92(2) and (3).
- 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], 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 [comm. to obtain 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; 2019, c. 25, s. 403.
[annotation(s) added]
- "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]
Records
- Definition of "record"
278.1 For the purposes of sections 278.2 to 278.92 [provisions re production of records for sexual offences], record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
1997, c. 30, s. 1; 2018, c. 29, s. 23.
To determine whether something is a record within the meaning of s. 278.1, there are two inquiries:[2]
- whether the document contains personal information that has a reasonable expectation of privacy; and
- whether the record falls into the exemption for investigatory or prosecutorial documents.
- Existence of Reasonable Expectation of Privacy
Absence evidence to the contrary, the judge may assume that there is a reasonable expectation of privacy attached to records that fall into the enumerated categories.[3]
A reasonable expectation of privacy is "not limited to trust-like, confidential, or therapeutic relationships". Absence of such relationship is not dispositive."[4]
A loss of possession or control of a record by the privacy holder will not necessarily remove the expectation of privacy.[5]
- Considered Factors
There are suggested factors to consider whether the document is captured within the meaning of "record":[6]
- Is it a record akin to those enumerated in the section?
- Is the information in the record akin to that which one might reasonably expect to find in the records that are enumerated in the section?
- How was the information obtained? Was it voluntarily surrendered or surreptitiously recorded in the form of a permanent record?
- For what purpose was the information provided to the accused?
- Was the communication public or semi-public or between two private individuals?
- Was there an express desire that the communication remain private or can such a desire be reasonably inferred from all of the circumstances?
- How many other people were privy to the communication?
- If it is not sexual history is it something akin to sexual history?
- If it is not akin to sexual history, is it the kind of information that has historically, and improperly, been used to discredit sexual assault complainants? Such as their street-involved status or (non-sexual) mistreatment by others?
- Is it information that might be considered biographical core information as that concept is explained in Plant, Mills and all subsequent case law?
- In relation to photos/videos where were they taken? By whom were they taken? For what purpose were they taken and how did the accused end up with them?
- For social media postings, what is the nature of the social media application in question? Is it designed for public sharing of information or immediate destruction of the communication once sent?
- Is the social media posting of a child or an adult?
- What is the nature of the relationship between the parties that are communicating? For example, is it a relationship of trust or authority?
- Whose account was the information taken from and what are the privacy settings?
- Did the accused gain access to the account through fraud or deceit?
- ↑ 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")
- ↑ R v Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 SCR 390, per Karakatsanis J
- ↑ R v Clifford, [2001] OJ No 4541 (ONCA)(*no CanLII links)
- ↑ R v Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 SCR 390, per Karakatsanis J, at paras 27 and 38
- ↑
R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J, at para 92
- ↑ R v MS, 2019 ONCJ 670 (CanLII), per Chapman J, at para 50
Considered Examples
There have been findings in relation to numerous classes of records, including:
Text messages exchanged between the complainant nd accused are records under s. 278.1.[3]
- Counsellor Records
There mere fact that a complainant spoke to a professional about their abuse or matters touching on the allegations does not make the records necessarily relevant to a fact in issue or the complainant's credibility.[4]
- ↑
R v RC, 2002 CanLII 14471 (ON CA), 163 CCC (3d) 3, per Rosenberg JA
- ↑ Quesnelle, supra
- ↑ R v RMR, 2019 BCSC 1093 (CanLII), 56 CR (7th) 414, per MacNaughton J
- ↑ R v WB, 2000 CanLII 5751 (ON CA), per Doherty JA, at para 71
Procedure
The statutory procedure starts once the disclosure materials are believed to be captured by the definition of "records" under s. 278.1.
If the records are in the possession of the Crown, they must give notice to the defence that they possess the records under s. 278.2(3). The defence can apply to the trial judge for access by scheduling two hearings:
- Stage I: Determination of whether application is "likely relevant" and in the "interests of justice" (s. 278.5(1))
- Stage II: Determination of whether relevance outweighs privacy interest, ordering release as necessary (s. 278.6)
Application
- Application for production
278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) [production of records for sexual offences] must make an application to the judge before whom the accused is to be, or is being, tried.
- No application in other proceedings
(2) For greater certainty, an application under subsection (1) [application to produce for sexual offences] may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.
[omitted (3), (4), (5) and (6)]
1997, c. 30, s. 1; 2015, c. 13, s. 6; 2018, c. 29, s. 24.
Form of Application
- Application for production
278.3
[omitted (1) and (2)]
- Form and content of application
(3) An application must be made in writing and set out
- (a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and
- (b) 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.
[omitted (4), (5) and (6)]
1997, c. 30, s. 1; 2015, c. 13, s. 6; 2018, c. 29, s. 24.
Grounds for Productions
278.3
[omitted (1), (2) and (3)]
- 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:
- (a) that the record exists;
- (b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
- (c) that the record relates to the incident that is the subject-matter of the proceedings;
- (d) that the record may disclose a prior inconsistent statement of the complainant or witness;
- (e) that the record may relate to the credibility of the complainant or witness;
- (f) that the 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 may reveal allegations of sexual abuse of the complainant by a person other than the accused;
- (h) that the record relates to the sexual activity of the complainant with any person, including the accused;
- (i) that the record relates to the presence or absence of a recent complaint;
- (j) that the record relates to the complainant’s sexual reputation; or
- (k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.
[omitted (5) and (6)]
1997, c. 30, s. 1; 2015, c. 13, s. 6; 2018, c. 29, s. 24.
Bare assertions of the items listed in s. 278.3(4) without any evidence is not permitted.[1]However, the accused may rely on s. 278.3(4) "where there is an evidentiary or informational foundations to suggest that they may be related to likely relevance." The accused must only "be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify."[2]
"Likely relevance" requires that the accused "must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value."[3]
Occurrence reports made by police officers in the course of their duties that do not relate to the charges before the court may not necessarily fall into the definition of "records" under s. 278.1.[4]
- Purpose
The purpose of s. 278.3(4) is to "prevent speculative and unmeritorious requests for production."[5]
- ↑ R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ, at para 118
- ↑ Mills, supra, at para 118
- ↑ R v Batte, 2000 CanLII 5751 (ON CA), [2002] 3 SCR 33, per Doherty JA
- ↑ R v Quesnelle, 2013 ONCA 180 (CanLII), 297 CCC (3d) 414, per MacFarland JA, at paras 19 to 22
- ↑ Mills, supra at para 118
Service of Subpoenas
278.3
[omitted (1), (2), (3) and (4)]
- Service of application and subpoena
(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, 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 relates, at least 60 days before the hearing referred to in subsection 278.4(1) [in camera hearing for application to produce] or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII [Pt. XXII – Procuring Attendance (ss. 697 to 715.2)] in Form 16.1 [forms] on the person who has possession or control of the record at the same time as the application is served.
- 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 may relate.
1997, c. 30, s. 1; 2015, c. 13, s. 6; 2018, c. 29, s. 24.
[annotation(s) added]
699
[omitted (1), (2), (3), (4), (5), (5.1) and (6)]
- Form of subpoena in sexual offences
(7) In the case of an offence referred to in subsection 278.2(1) [production of records for sexual offences], a subpoena requiring a witness to bring anything to the court shall be in Form 16.1.
R.S., 1985, c. C-46, s. 699; R.S., 1985, c. 27 (1st Supp.), s. 203; 1994, c. 44, s. 69; 1997, c. 30, s. 2; 1999, c. 5, s. 28.
Protected Personal Information for Sexual Offences
Records that contain certain personal information are non-disclosable where it relates to a sex related offence. In order to allow any of these records to be disclosed it must be ordered by a judge under s.278.3 where the grounds permit.
The receipt of third party records through a s. 278.2 application is a separate issue from its admissibility, which in sexual offences must be admissible under s. 276 when it relates to prior sexual history.[1]
- ↑ e.g. see R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J
Hearing
- Hearing in camera
278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.
- Persons who may appear at hearing
(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.
- Right to counsel
(2.1) 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.
- Costs
(3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.
1997, c. 30, s. 1; 2015, c. 13, s. 7.
Review of Records
- Judge may order production of record for review
278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1) [in camera hearing for application to produce], the judge is satisfied that
- (a) the application was made in accordance with subsections 278.3(2) to (6);
- (b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
- (c) the production of the record is necessary in the interests of justice.
- Factors to be considered
(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), 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 relates. In particular, the judge shall take the following factors into account:
- (a) the extent to which the record is necessary for the accused to make a full answer and defence;
- (b) the probative value of the record;
- (c) the nature and extent of the reasonable expectation of privacy with respect to the record;
- (d) whether production of the 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 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.
1997, c. 30, s. 1; 2015, c. 13, s. 8.
- Review of record by judge
278.6 (1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused.
- Hearing in camera
(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.
- Provisions re hearing
(3) Subsections 278.4(2) to (3) apply in the case of a hearing under subsection (2) [review of hearing to produce — who appears].
1997, c. 30, s. 1; 2015, c. 13, s. 9.
Reasons for Decision
- Reasons for decision
278.8 (1) The judge shall provide reasons for ordering or refusing to order the production of the record or part of the record pursuant to subsection 278.5(1) [judge may order production of record for review] or 278.7(1) [judge may order production of record to accused].
- Record of reasons
(2) The reasons referred to in subsection (1) [reasons for decision] shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.
1997, c. 30, s. 1.
Order of Disclosure
- Judge may order production of record to accused
278.7 (1) Where the judge is satisfied that the record or part of the record 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 part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).
- Factors to be considered
(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, personal security and equality of the complainant or witness, as the case may be, and of 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.
- Conditions on production
(3) If the judge orders the production of the record or part of the record 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 relates, including, for example, the following conditions:
- (a) that the record be edited as directed by the judge;
- (b) that a copy of the record, rather than the original, be produced;
- (c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;
- (d) that the record be viewed only at the offices of the court;
- (e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and
- (f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.
- Copy to prosecutor
(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.
- Record not to be used in other proceedings
(5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings.
- Retention of record by court
(6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it.
1997, c. 30, s. 1; 2015, c. 13, s. 10.
Accidental Disclosure
Where the defence is in possession of protected records without an order, the Crown may seek an order for the return of the records.[1]
- ↑ R v Balondo, 2021 ONSC 4542(*no CanLII links)
Appellate Review
- Appeal
278.91 For the purposes of sections 675 [right of appeal of person convicted] and 676 [right of Attorney General to appeal], a determination to make or refuse to make an order pursuant to subsection 278.5(1) [judge may order production of record for review] or 278.7(1) [judge may order production of record to accused] is deemed to be a question of law.
1997, c. 30, s. 1.