Criminal Code (R.S.C., 1985, c. C-46)

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Act current to 2019-05-07 and last amended on 2018-12-18. Previous Versions

PART VIIIOffences Against the Person and Reputation (continued)

Assaults (continued)

Marginal note:Production of record to accused

  •  (1) Except in accordance with sections 278.3 to 278.91, 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, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 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:Application of provisions

    (2) Section 278.1, this section and sections 278.3 to 278.91 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.

  • Marginal note: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

Marginal note:Application for production

  •  (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

  • Marginal note:No application in other proceedings

    (2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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) 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 in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

  • Marginal note: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

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
 
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