Fact Sheet
Bill C-46 — Production of Records in Sexual Offence Prosecutions

In June, 1996, the Minister of Justice introduced amendments to the Criminal Code that restrict access to medical, counselling, therapeutic and other personal records of complainants in sexual offence prosecutions.

In recent years, defence counsel have increasingly tried to access personal and confidential records of witnesses and complainants in sexual assault proceedings. This had a number of serious effects: victims were refusing to report sexual offences or, subsequently, refusing to testify as witnesses; there was a concern that victims of sexual offences would not seek counselling or treatment because they feared their privacy would not be protected in court; and record holders were paying mounting legal bills, at the cost of providing service to their clients, when they were required to appear in court.

The amendments improve protection of the privacy and equality rights of complainants while recognizing the rights of the accused. They became law on May 12, 1997.

The amendments include the following changes to the Criminal Code:

• Preamble

  A preamble has been added to the Code explaining the principles behind the amendments. These include the need to encourage reporting of sexual offences, the effect that compelled production of records has on both complainants and record holders, and the need to respect the rights of both complainants and accused.

• Two-stage application process

  All applications by an accused for access to records must now be considered by the trial judge through a two-stage process.

  At the first stage, the accused must establish that the records contain information that is likely relevant to an issue at trial or to the competence of a witness to testify. The accused must offer a realistic explanation of why he or she believes the information is likely relevant. A simple assertion or statement is not enough to accomplish this.

  At this stage, when determining whether to order the production of records for review, the trial judge must also consider a number of other factors, including:

  • the effect of the decision on the Charter rights of the complainant and the accused;
  • what the reasonable expectations for privacy are for the record; and
  • the potential effect on the dignity, privacy or security of any person to whom the record relates.

  At the second stage, the records are provided to the trial judge only. The judge reviews the records in private and again considers the same factors required under stage one. If, after seeing the records, the trial judge determines that they are likely relevant to an issue at trial or to the competence of a witness to testify, he or she will order that the accused be given only those parts of the record that are likely relevant.

Additional safeguards

The amendments include a number of new procedural requirements and safeguards that protect the privacy of complainants and witnesses:

• an application by an accused must be made in writing;
• a new form of subpoena, which provides more detailed information, must be served on the record holder;
• the hearing where the judge determines the production of records must be held in camera (without the public present);
• the judge can consider imposing conditions on the production of records, for example that no copies can be made or that records cannot be removed from court offices;
• the contents of an application, information provided at the hearing and the judge's determination must not be published or broadcast; and
• records given to an accused can't be used in any other proceedings.

The amendments also define records broadly to include any form of record where there is a reasonable expectation of privacy. This would, for example, include counselling records, adoption records, medical records or diaries.

The amendments only apply to sexual offences, including sexual assault, sexual offences against children, and sexual offences committed in the past, such as rape.

Department of Justice
May, 1997