An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act (S.C. 2018, c. 29)

Marginal note:Definition of record

278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

• 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: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, 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: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.