Criminal Code (R.S.C., 1985, c. C-46)

Act current to 2016-06-21 and last amended on 2016-06-17. Previous Versions

Marginal note:Hearing in camera
  •  (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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.
Marginal note:Judge may order production of record for review
  •  (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), 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.

  • Marginal note: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.
Marginal note:Review of record by judge
  •  (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.

  • 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 re hearing

    (3) Subsections 278.4(2) to (3) apply in the case of a hearing under subsection (2).

  • 1997, c. 30, s. 1;
  • 2015, c. 13, s. 9.
Marginal note:Judge may order production of record to accused
  •  (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).

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.
Marginal note:Reasons for decision
  •  (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) or 278.7(1).

  • Marginal note:Record of reasons

    (2) The reasons referred to in subsection (1) 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.
Marginal note:Publication prohibited
  •  (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 section 278.3;

    • (b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or

    • (c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

  • Marginal note:Offence

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

  • 1997, c. 30, s. 1;
  • 2005, c. 32, s. 14.
 
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