Briefing Note: Improving the use of Criminal Code 

Section 278 Third Party Records of Sexual Assault Complainants

Priority Objectives

1. Warn the public that those who report a Sexual Assault are subject to having their personal and confidential records, where there is a reasonable expectation of privacy, brought into court and potentially be given to the accused. s.278.1; s278.2(1).

2. The victim’s personal and confidential records, once subpoenaed, must be brought into court to be viewed by the trial judge. The accused’s persons application and factum for the production of these records contains incomplete facts and information which ignore the significant relevant portion of evidence in order to support the defence position. This misleading presentation of information is also designed to make the victim “look bad” in front of the trial judge, and the victim is not permitted to defend themselves in any forum against the misleading information presented by the defence in the application and factum. s.278.3(1).

3. The accused’s defence counsel can and do state that:

  • they believe the records are relevant

  • the records may disclose inconsistent statements

  • that the record may relate to the credibility of the complainant or witness

as valid reasons to apply for these records, even though these reasons are listed as “insufficient grounds” to apply. s.278(4)(c)(d)(e).

4. Judges routinely sign off of s.278 applications without weighing the factors to be considered, especially:

  • the nature and extent of the reasonable expectation of privacy with respect to the record,

  • whether the production of the record is based on a discriminatory belief or bias,

  • potential prejudice to the personal dignity and right to privacy of any person to whom the record relates,

  • society’s interest in encouraging the reporting of sexual offences; and

  • society’s interest in encouraging the obtaining of treatment by complainants of sexual offences. s.278.5(2)(c)(d)(e)(f)(g).

5. A judge, who is not a counsellor or therapist, and who may not be trauma-informed, is to review the contents of the victim’s private records, that were not created or designed for the purpose of court evidence. This judge may determine that the victim’s private records can be produced to the accused. Once the accused has access to this information, the extent of harm they can cause their victim long after court has ended is immense and dangerous. The victim’s private records were meant to be created in a safe environment with a trusted person and may be required by law to be given to the most unsafe person in the most dangerous environment possible.

6. Section 278 hearings use up more court time and resources and can further delay trials.

7. It is our determination that, in view of all these factors, the Criminal Code of Canada should never allow a perpetrator of sexual violence to apply for, or threaten to apply for, their victim’s records under any circumstances. The provision under s.278.2(1) to produce records of a sexual assault victim to an accused should be abolished.

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Overview of Section 278 and the production of third party records of the sexual assault complainant to the accused:

s.278.1 Definition of record: 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

  • Social services records

  • Personal journals and diaries

  • Records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature.

s.278.2(1) Production of record to accused: No record relating to a complainant or a witness shall be produced to an accused in any proceedings, except for an offence under section 271 sexual assault (among a list of other exceptions).

s.278.3(1) Application for production: An accused who seeks production of a record must make application to the judge before whom the accused is to be, or is being, tried.

s.278(4) Insufficient grounds: 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 the 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 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.

s.278.4(1) Hearing in camera: 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.

s.278.5(1) Judge may order production of record for review: 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.

s.278.5(2) Factors to be considered: 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.

s.278.6(1) Review of record by judge: 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 of part of the record should be produced to the accused.