Criminal Code (R.S.C., 1985, c. C-46)

Marginal note: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), 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.

Marginal note: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.

• 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).

Marginal note: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).

• 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.

Marginal note: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) 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.

Marginal note:Publication prohibited

• 278.9 (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.

Marginal note:Appeal

278.91 For the purposes of sections 675 and 676, a determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1) is deemed to be a question of law.

Marginal note: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, 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

  • (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 evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

  • (a) if the admissibility of the evidence 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); 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.

• Marginal note:Factors that judge shall consider

  (3) In determining whether evidence is admissible under subsection (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.

Marginal note:Application for hearing — sections 276 and 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 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

• Marginal note:Form and content of application

  (2) An application referred to in subsection (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.

• Marginal note:Jury and public excluded

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

• Marginal note: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), 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), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).

Marginal note: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) or 278.92(2).

• Marginal note:Complainant not compellable

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

• Marginal note: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.

• Marginal note: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) or 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) or 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.

• Marginal note: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.

Marginal note: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;

  • (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;

  • (c) the decision of a judge or justice under subsection 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), 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.

• Marginal note:Offence

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

Marginal note: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), the judge shall instruct the jury as to the uses that the jury may and may not make of that evidence.

Marginal note:Appeal

278.97 For the purposes of sections 675 and 676, a determination made under subsection 278.94(4) shall be deemed to be a question of law.