Criminal Code (R.S.C., 1985, c. C-46)

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.