View source for Admission of Certain Complainant Evidence for Sexual Offences

{{Currency2|January|2020}}
{{HeaderEvidence}}
{{HeaderDisclosure}}
==General Principles==
{{seealso|Disclosure of Third Party Records|Complainant's Sexual History|Production of Records for Sexual Offences}}

There are several statutory prohibitions that prevent the Crown or defence from adducing types evidence of sexual activity in a trial for certain sexual offences. The prohibitions consist of:
* prohibition against evidence relating to complainant's prior sexual activity (276(1))
* prohibition on private records relating to complainant (278.92)
* prohibition on sexual reputation evidence of the complainant (277)

==Stage One: Application for an Admissibility Hearing (Screening Hearing)==
Section 278.93 contemplates an application process where the court must grant leave before holding a 278.94 hearing. 

{{quotation2|
; Application for hearing — sections 276 {{AnnSec2|276}} and 278.92 {{AnnSec2|278.92}}
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 {{AnnSec2|278.94}} to determine whether evidence is admissible under subsection 276(2) {{AnnSec2|276(2)}} or 278.92(2) {{AnnSec2|278.92(2)}}.

; Form and content of application
(2) An application referred to in subsection (1) {{AnnSec2|278.93(1)}} 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) {{AnnSec2|278.93(2)}}, 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) {{AnnSec2|276(2)}}, the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 {{AnnSec2|278.94}} to determine whether the evidence is admissible under subsection 276(2) {{AnnSec2|276(2)}} or 278.92(2) {{AnnSec2|278.92(2)}}.

{{LegHistory10s|2018, c. 29}}, s. 25.
{{Annotation}}
|{{CCCSec2|278.93}}
|{{NoteUp|278.93|1|2|3|4}}
}}

==Stage 2: Application to Admit Evidence==
{{quotation2|
; 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) {{AnnSec2|276(2)}} or 278.92(2) {{AnnSec2|278.92(2)}}.

; 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) {{AnnSec2|276(2)}} or 278.92(2) {{AnnSec2|278.92(2)}} 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) {{AnnSec2|276(3)}} or 278.92(3) {{AnnSec2|278.92(3)}} 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) {{AnnSec2|287.94(4)}} shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

{{LegHistory10s|2018, c. 29}}, s. 25.
{{Annotation}}
|{{CCCSec2|278.94}}
|{{NoteUp|278.94|1|2|3|4|5}}
}}


==Stage 2: Exception to Section 276(1) Prohibition==
Where the accused seeks to lead evidence of the complainant's prior sexual history for one or more valid purposes, they must apply under s. 276(2) and satisfy the necessary pre-conditions.<ref>
{{CanLIIRx|Stover|jc8m2|2020 BCCA 368 (CanLII)}}{{perBCCA|Abrioux JA}}{{AtL|jc8m2|43}} ("The legal framework which governs this ground of appeal is well known. An accused who seeks to lead evidence of the complainant’s prior sexual history for a purpose apart from the twin myths must make an application and satisfy the pre-conditions for admissibility set out in s. 276(2) of the Code.")<br>
</ref>

Section 276(2) sets out the exception to the rule permitting extrinsic evidence of sexual activity to be admitted where it:<ref>
{{CanLIIRP|MT|fs52f|2012 ONCA 511 (CanLII)|289 CCC (3d) 115}}{{perONCA-H|Watt JA}}{{atL|fs52f|33}}</ref>
* is of specific instances of sexual activity;
* 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.

Section 276(2) prohibits the admission of sexual history evidence described in s. 276(1) unless it is:
# not being used for a prohibited inference described in 276(1);
# is relevant to a trial issue;
# is of specific instances of sexual activity; and 
# has a ''significant'' probative value not substantially outweighed by the prejudice.

{{quotation2|
276<br>
{{Removed|(1)}}
; Conditions for admissibility
(2) In proceedings in respect of an offence referred to in subsection (1) {{AnnSec2|276(1)}}, evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 {{AnnSec2|278.93}} and 278.94 {{AnnSec2|278.94}}, that the evidence
:(a) is not being adduced for the purpose of supporting an inference described in subsection (1) {{AnnSec2|276(1)}};
:(b) is relevant to an issue at trial; and
:(c) is of specific instances of sexual activity; and
:(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
{{Removed|(3) and (4)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 276; 
R.S., {{LegHistory80s|1985, c. 19 (3rd Supp.)}}, s. 12 {{LegHistory90s|1992, c. 38}}, s. 2 {{LegHistory00s|2002, c. 13}}, s. 13; {{LegHistory10s|2018, c. 29}}, s. 21; {{LegHistory10s|2019, c. 25}}, s. 100.
{{Annotation}}
|{{CCCSec2|276}} 
|{{NoteUp|276|2}}
}}

; Standard of Proof
The applicant must satisfy the requirements of admission on a balance of probabilities.<ref>
{{CanLIIRP|Darrach|523t|2000 SCC 46 (CanLII)|[2000] 2 SCR 443}}{{perSCC|Gonthier J}}{{atL|523t|46}}<br>
</ref>

; Application to Defence Only
The requirements of s. 276(2) will only apply to the accused and not the Crown. The Crown-led evidence is governed by 276(1) and the rule from ''Seyboyer''.<ref>
{{CanLIIRP|Langan|j46xt|2019 BCCA 467 (CanLII)|383 CCC (3d) 516}}{{perBCCA|Bauman CJ}}{{atL|j46xt|112}} - affirmed at 2020 SCC 33 (CanLII)
</ref>

Where the Crown seeks to lead 276 evidence, they are governed by the principles from Seaboyer that "[e]vidence of consensual sexual conduct on the part of the complainant may be admissible for purposes other than [the twin myths] where it possesses probative value on an issue in the trial and where that probative value is not substantially outweighed by the danger of unfair prejudice flowing from the evidence."<Ref>
{{CanLIIRPC|R v Seaboyer; R v Gayme|1fskf|1991 CanLII 76 (SCC)|[1991] 2 SCR 577}}{{perSCC-H|McLachlin J}}{{atL|1fskf|101}}
</ref>

{{reflist|2}}

===Factors===
Section 276(3) sets out statutory factors that must be considered on defence application:
{{quotation2|
276<br>
{{Removed|(1) and (2)}}
; Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2) {{AnnSec2|276(2)}}, 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) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
:(d) the need to remove from the fact-finding process any discriminatory belief or bias;
:(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
:(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
:(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
:(h) any other factor that the judge, provincial court judge or justice considers relevant.
{{Removed|(4)}}
R.S., {{LegHistory80s|1985, c. C-46}}, s. 276; 
R.S., {{LegHistory80s|1985, c. 19 (3rd Supp.)}}, s. 12;
{{LegHistory90s|1992, c. 38}}, s. 2;
{{LegHistory00s|2002, c. 13}}, s. 13; 
{{LegHistory10s|2018, c. 29}}, s. 21; 
{{LegHistory10s|2019, c. 25}}, s. 100.
{{Annotation}}
|{{CCCSec2|276}}
|{{NoteUp|276|3}}
}}

Where the application comes from the Crown, the factors from 276(3) still apply.<ref>
e.g. {{CanLIIRx|Boyle|j1hpv|2019 ONCJ 516 (CanLII)}}{{perONCJ|Doody J}}{{atL|j1hpv|14}} ("I must apply those principles [from s. 276(3)], appropriately modified because I am considering Crown-led evidence, in determining whether to admit the evidence in issue.")
</ref>
This arises from the fact that s. 276 codifies the rules articulated in Seaboyer.<ref>
{{CanLIIRP|Darrach|523t|2000 SCC 46 (CanLII)|[2000] 2 SCR 443}}{{perSCC|Gonthier J}}{{atL|523t|20}}
</ref>

Evidence advanced to make an inference supported by an established myth is prohibited.  Any other inferences directed to credibility and consent may be argued as admissible. <ref>
{{CanLIIRP|Ecker|1mdjz|1995 CanLII 3910 (SK CA)|96 CCC (3d) 161}}{{perSKCA|Cameron JA}} </ref>

; Credibility at Large
Using prior sexual activity to go to credibility at large or in general is not a valid purpose.<Ref>
{{CanLIIRP|Goldfinch|j16t7|2019 SCC 38 (CanLII)|380 CCC (3d) 1}}{{perSCC|Karakatsanis J}}{{atL|j16t7|56}}<br>
{{CanLIIR|SR||2014 ONSC 1795 (CanLII)}}{{atL||22}}
</ref>

Commentators have suggested that the prohibition should focus on "general" inference that are focused on attacking the character of the complainant.<ref>David M. Paciocco, "The New Rape Shield Provisions In Section 276 Should Survive Charter Challenge" (1993), 21 C.R.(4th) 223</ref> 
Some courts have adopted this in an attempt to reconcile s.276(1) and (2). <ref>
{{CanLIIRP|Harper|1fnm4|1995 CanLII 3483 (PE SCTD)| Nfld & PEIR 77 (PEISC)}}{{perPEISC|Jenkins J}}, rev’d on other grounds [http://canlii.ca/t/1cvx9 1997 CanLII 4553] (PE SCAD), (1997), 149 Nfld. & PEIR 295 (P.E.I.C.A.){{perPEICA|Carruthers CJ}}</ref>

; Credibility at Issue
Where credibility is an essential issue of trial, the right to full answer and defence weighs in favour of admitting evidence of inconsistencies and contradictions even where it involves prior sexual activity.<ref>
{{CanLIIRx|Gill|fm6x5|2011 ONCJ 345 (CanLII)}}{{perONCJ|Clark J}}{{atL|fm6x5|27}} ("Where credibility is the essential issue at trial, however, the right to make full answer and defence will often militate in favour of the admission of evidence that demonstrates inconsistencies or contradicts the complainant’s evidence, even if it reveals prior sexual activity")<br>
see {{CanLIIRP|Harris|6hgs|1997 CanLII 6317 (ON CA)|[1997] OJ No 35 60 (CA), 118 CCC (3d) 498}}{{perONCA|Moldaver JA}}{{atp|509}} citing {{CanLIIRP|Crosby|1frj7|1995 CanLII 107 (SCC)|98 CCC (3d) 225}}{{perSCC|L'Heureux-Dubé J}}<br>
</ref>

<!--; Development of Relationship
Evidence of sexual activity tending to establish the development of the parties' relationship can sometimes be admitted. It may be admitted to provide the necessary context to the incident evidence in order to avoid assessing the incident in a vacuum and lead to the perception that the accused's testimony was improbable.<ref>
{{CanLIIRP|MM|1wd0m|1999 CanLII 15063 (ON SC)|[1999] OJ No 3943 (ONSC)}}{{perONSC|Langdon J}}<br>
see also {{CanLIIRP|Harris|6hgs|1997 CanLII 6317 (ON CA)|[1997] OJ No 3560}}{{perONCA|Moldaver JA}}<br> 
{{CanLIIRP|Strickland|1qj3v|2007 CanLII 3679 (ON SC)|[2007] OJ No 517 (O.S.C.)}}{{perONSC|Heeney J}}{{atsL|1qj3v|34| to 35}}<br> 
{{CanLIIRP|BB|22p4x|2009 CanLII 9404 (ON SC)|[2009] OJ No 862 (O.S.C.)}}{{perONSC|Spies J}}{{atsL|22p4x|19| to 20}}<br> 
{{supra1|WJA}}{{atL|2cwgl|35}}<br>
</ref>

Excluding such evidence will distort and diminish the accused's evidence enough to suggest sexual activity occurred "out of the blue."<ref>
{{supra1|Strickland}}
</ref>
-->

Evidence of the closeness of the accused and complainant in the form of flirting, can be found relevant to the context of the incident and admissible.<ref>
{{CanLIIRx|Ayenun|fxfp6|2013 ONCJ 260 (CanLII)}}{{perONCJ|Feldman J}}{{atsL|fxfp6|35|, 36}}<br>
</ref>

; Denial of Allegations
Evidence of extrinsic sexual activity of the complainant is "rarely ... relevant to support a denial that sexual activity took place or to establish consent."<ref> 
{{ibid1|Darrach}}{{atL|523t|58}}<br>
{{CanLIIR|Kulasinngam||2019 ABCA 6 (CanLII)}}{{AtL||8}}
</ref>

; "Specific Instances"
The hurdle of showing relevance is not trivial. Mere assertions of relevance to context, narrative or credibility is not sufficient.<Ref> {{supra1|Goldfinch}}{{atsL|j16t7|51| and 65}}
</ref>

The requirement of "specific instances" in 276(2) will be satisfied by evidence of "the parties to the relationship, the nature of the relationship and the relevant time period."<Ref>
{{supra1|Goldfinch}}{{atL|j16t7|54}}<br>
</ref>

; Prior Sexual Assaults
Whether the complainant has previously been sexually assaulted is irrelevant.<ref>
{{CanLIIRP|ARB|1v98j|1998 CanLII 14603 (ON CA)| OR (3d) 361}}{{perONCA|Finlayson JA}}{{atp|365}}, (2:1) aff’d [http://canlii.ca/t/524z 2000 SCC 30] (CanLII), [2000] 1 SCR 781 {{perSCC-H|McLachlin CJ}}</ref>

; Non-Sexual Features
Sexual activity can be used for its non-sexual features, including to show "a pattern of conduct or a prior inconsistent statement."<Ref> 
{{supra1|Darrach}}{{atL|523t|40}}<br>
{{CanLIIRP|Crosby|1frj7|1995 CanLII 107 (SCC)|[1995] 2 SCR 912}}{{perSCC|L'Heureux-Dubé J}}<br>
</ref>

; Significant probative value 
The ''significant probative value'' standard places a greater threshold on relevance for the admission of prior sexual history evidence. It is intended to prohibit evidence that may be of trifling relevance. Regardless of the purpose of the evidence, sexual history evidence can tend to bring the administration of justice to disrepute.
<ref> {{supra1|Darrach}}{{atL|523t|40}}</ref> 
"Significant" must be read in light of the requirement of having "full answer and defence."<ref>
{{supra1|Darrach}}</ref>

; No Need for Full Analysis
Where the prejudicial effect of the evidence outweighs its probative value, the judge need not undertake a full consideration of all the factors found in s. 276(3).<ref>
{{CanLIIRP|Nicholson|5skh|1998 ABCA 290 (CanLII)|129 CCC (3d) 198}}{{perABCA|Rawlins JA}}{{atL|5skh|17}}<br>
see also {{CanLIIRP|Gauthier|2326c|1995 CanLII 8937 (BC CA)|100 CCC (3d) 563}}<br>
</ref>

{{reflist|2}}

===Examples===
Prior acts of prostitution are generally never considered relevant for admission.<ref>
{{CanLIIRP|Seaboyer; R v Gayme|1fskf|1991 CanLII 76 (SCC)|[1991] 2 SCR 577}}{{perSCC-H|McLachlin J}} ("Evidence of prior acts of prostitution or allegations of prostitution are properly excluded by the provision.  In my opinion, this evidence is never relevant and, besides its irrelevance, is hugely prejudicial.")
</ref>

Examples where sexual history should be admitted:<ref>
{{CanLIIRP|Seaboyer; R v Gayme|1fskf|1991 CanLII 76 (SCC)|[1991] 2 SCR 577}}{{perSCC-H|McLachlin J}}{{atsL|1fskf|99| to 106}}
</ref>
* where the "[e]vidence of specific instances of sexual conduct tend[s] to prove that a person other than the accused caused the physical consequences of the rape alleged by the prosecution"
* where the "[e]vidence of sexual conduct tending to prove bias or motive to fabricate on the part of the complainant"
* where the "[e]vidence of prior sexual conduct, known to the accused at the time of the act charged, tending to prove that the accused believed that the complainant was consenting to the act charged (without laying down absolute rules, normally one would expect some proximity in time between the conduct that is alleged to have given rise to an honest belief and the conduct charged)";
* where there is "[e]vidence of prior sexual conduct which meets the requirements for the reception of similar act evidence, bearing in mind that such evidence cannot be used illegitimately merely to show that the complainant consented or is an unreliable witness";
* where there is "[e]vidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct."
* where the defence wanted to lead evidence of a romantic relationship between the accused and complainant where the complainant characterized it as platonic.<ref>
{{CanLIIRP|Harris|6hgs|1997 CanLII 6317 (ON CA)|118 CCC (3d) 498}}{{perONCA|Moldaver JA}}</ref>
* evidence of prior sexual activity between the accused and complainant is relevant to the issue of consent as it addresses the complainant's state of mind<ref>
{{CanLIIRx|WJA, et al.|2cwgl|2010 YKTC 108 (CanLII)}}, ''per'' Cozens J{{atL|2cwgl|33}}<br>
</ref>
* evidence that contradicts the complainant's claims that she had no sexual interest in the accused at the time of the incident;<ref>
{{supra1|Harris}}</ref>
* evidence of prior relationships to demonstrate the development of the relationship between the accused and victim<ref>
{{supra1|Gill}}{{atL|fm6x5|32}}<br>
</ref><!--
* evidence of prior activity as an explanation for the presence of semen during the medical examination of the complainant at after the offence.<ref>
{{CanLIIRP|Downey|1mrxx|1992 CanLII 2615 (NS CA)|307 APR 73}}{{perNSCA-H|Hallett JA}}<br>
</ref>-->
* complainant's prior reports of strikingly similar incidents of sexual assaults<ref>
{{CanLIIRP|SG|1r9ml|2007 CanLII 14331 (ON SC)|219 CCC (3d) 549}}{{perONSC|Spies J}} <br>
{{CanLIIRP|Anstey|1vm0q|2002 NLCA 7 (CanLII)|162 CCC (3d) 567}}{{perNLCA|O'Neill JA}}</ref>
* evidence that contradicts the complainant's claims that they believed the sexual encounter was "too early in the relationship."<ref>
{{CanLIIRP|Nelson|4zct|2001 BCCA 351 (CanLII)}}{{perBCCA-H|Prowse JA}} (2:1)</ref>

Evidence has been found inadmissible in the following scenarios:
* A sex toy party earlier in the day held by the victim was not relevant to the allegations so is not admissible.<ref>
{{CanLIIRP|McDonald|56h0|2003 SKQB 165 (CanLII)|156 CCC (3d) 248}}{{perSKQB|Hrabinsky J}}</ref>

Evidence should be admitted where it "contains highly distinctive features of a consensual sexual relationship as between the parties which is similar to the allegations before the Court."<ref>
{{supra1|Gill}}{{atL|fm6x5|29}}<br>
{{CanLIIR-N|McIntyre|, [1993] OJ No 2971 (CA)}}
</ref>

{{reflist|2}}

==Stage Two: Exception to Section 278.92(2) Prohibition==
{{quotation2|
278.92 <br>
{{Removed|(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 {{AnnSec2|278.93}} and 278.94 {{AnnSec2|278.94}},
:(a) if the admissibility of the evidence is subject to section 276 {{AnnSec2|276}}, that the evidence meets the conditions set out in subsection 276(2) {{AnnSec2|276(2)}} 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.
{{Removed|(3)}}
{{LegHistory10s|2018, c. 29}}, s. 25;
{{LegHistory10s|2019, c. 25}}, s. 403.
{{Annotation}}
|{{CCCSec2|278.92}}
|{{NoteUp|278.92|2}}
}}

{{quotation2|
278.92 
{{Removed|(1) and (2)}}
; Factors that judge shall consider
(3) In determining whether evidence is admissible under subsection (2) {{AnnSec2|278.92(2)}}, 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.

{{LegHistory10s|2018, c. 29}}, s. 25;
{{LegHistory10s|2019, c. 25}}, s. 403.
{{Annotation}}
|{{CCCSec2|278.92}}
|{{NoteUp|278.92|3}}
}}

==Procedure==

; Crown
When the Crown seeks to lead evidence of the complainant's prior sexual history for one or more valid purposes, they must apply under ''Seyboyer'' to determine whether the evidence is admissible.<Ref>
{{ibid1|Stover}}{{AtL|jc8m2|43}} ("Where the Crown seeks to lead such evidence, trial judges should follow the Supreme Court’s guidance in Seaboyer to determine the admissibility of the evidence in a voir dire...")<br>
{{CanLIIRP|Barton|j0fqj|2019 SCC 33 (CanLII)|[2019] 2 SCR 579}}{{perSCC-H|Moldaver J}}{{atL|j0fqj|80}}
</ref>

; Non-Compliance
Failure to comply with these principles will not be fatal to the integrity of the trial, but will be a case-by-case assessment.<ref>
{{supra1|Stover}}{{atL|jc8m2|43}} ("Non-compliance with these principles, however, will not always undermine trial integrity. Rather, the individualized features of the case will determine the result...")<br>
{{CanLIIRP|CMM|j56w8|2020 BCCA 56 (CanLII)|BCJ No 208}}{{perBCCA|DeWitt‑Van Oosten JA}}{{atL|j56w8|183}}
</ref>

; Complainant Reviewing Application Records
It is in the discretion of the trial judge to order that any part of the contents of the application not be disclosed to the complainant.
<ref>
{{CanLIIR|JJ|jq1d8|2022 SCC 28 (CanLII)}}{{perSCC|Wagner CJ and Moldaver J}} (The "presiding judge retains the discretion to direct that the application not be disclosed to the complainant or that portions of it be redacted")
</ref>

{{reflist|2}}


===Publication of Hearing or Records===
{{quotation2|
; 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 {{AnnSec2|278.93}};
:(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 {{AnnSec2|278.94}};
:(c) the decision of a judge or justice under subsection 278.93(4) {{AnnSec2|278.93(4)}}, 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) {{AnnSec2|278.94(4)}}, 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) {{AnnSec2|278.95(1)}} is guilty of an offence punishable on summary conviction.

{{LegHistory10s|2018, c. 29}}, s. 25.
{{Annotation}}
|{{CCCSec2|287.95}}
|{{NoteUp|287.95|1|2}}
}}

{{reflist|2}}

==Consequence of Admission==
{{quotation2|
; 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) {{AnnSec2|278.94(4)}}, the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

{{LegHistory10s|2018, c. 29}}, s. 25.
{{Annotation}}
|{{CCCSec2|278.96}}
|{{NoteUp|278.96}}
}}

==Appeals==
{{quotation2|
; Appeal
278.97 For the purposes of sections 675 {{AnnSec6|675}} and 676 {{AnnSec6|676}}, a determination made under subsection 278.94(4) {{AnnSec2|278.94(4)}} shall be deemed to be a question of law.

{{LegHistory10s|2018, c. 29}}, s. 25.
|{{CCCSec2|278.97}}
|{{NoteUp|278.97}}
}}