Bill C-46: Records Applications Post-Mills,
A Caselaw Review

Appendix A – Bill C-46

An Act to amend the Criminal Code (production of records in sexual offence proceedings)

Preamble

Whereas the Parliament of Canada continues to be gravely concerned about the incidence of sexual violence and abuse in Canadian society and, in particular, the prevalence of sexual violence against women and children;

Whereas the Parliament of Canada recognizes that violence has a particularly disadvantageous impact on the equal participation of women and children in society and on the rights of women and children to security of the person, privacy and equal benefit of the law as guaranteed by sections 7, 8, 15 and 28 of the Canadian Charter of Rights and Freedoms;

Whereas the Parliament of Canada intends to promote and help to ensure the full protection of the rights guaranteed by the Canadian Charter of Rights and Freedoms for all including those who are accused of, and those who are or may be victims of, sexual violence or abuse;

Whereas the rights guaranteed by the Canadian Charter of rights and freedoms are guaranteed equally to all and, in the event of a conflict, those rights are to be accommodated and reconciled to the greatest extent possible;

Whereas the Parliament of Canada wishes to encourage the reporting of incidents of sexual violence and abuse and to provide for the prosecution of offences within a framework of laws that are consistent with the principles of fundamental justice and that are fair to complainants as well as to accused persons;

Whereas the Parliament of Canada recognizes that the compelled production of personal information may deter complainants of sexual offences from reporting the offence to the police and may deter complainants from seeking necessary treatment, counselling or advice;

Whereas the Parliament of Canada recognizes that the work of those who provide services and assistance to complainants of sexual offences is detrimentally affected by the compelled production of records and by the process to compel that production;

And whereas the Parliament of Canada recognizes that, while production to the court and to the accused of personal information regarding any person may be necessary in order for an accused to make a full answer and defence, that production may breach the person's right to privacy and equality and therefore the determination as to whether to order production should be subject to careful scrutiny;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

The Criminal Code is amended by adding the following after section 278:

Definition of "record"

For the purposes of sections 278.2 to 278.9, "record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, 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.

Production of record to accused

(1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect ofan offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273, an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or an offence under section 146, 151, 153, 155, 157, 166, 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988, or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.

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.

Application for production

278.3(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.

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.

Form and content of application

(3) An application must be made in writing and set out

  1. 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
  2. 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.

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:

  1. that the record exists;
  2. that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
  3. that the record relates to the incident that is the subject-matter of the proceedings;
  4. that the record may disclose a prior inconsistent statement of the complainant or witness;
  5. that the record may relate to the credibility of the complainant or witness;
  6. 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;
  7. that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;
  8. that the record relates to the sexual activity of the complainant with any person, including the accused;
  9. that the record relates to the presence or absence of a recent complaint; or
  10. that the record relates to the complainant's sexual reputation.

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

278.3 (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.

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 seven 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.

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.

Hearing in camera

278.4 (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.

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.

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.

Judge may order production of record for review

278.5 (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

  1. the application was made in accordance with subsections 278.3(2) to (6);
  2. 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
  3. the production of the record is necessary in the interests of justice.

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 and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:

  1. the extent to which the record is necessary for the accused to make a full answer and defence;
  2. the probative value of the record;
  3. the nature and extent of the reasonable expectation of privacy with respect to the record;
  4. whether production of the record is based on a discriminatory belief or bias;
  5. the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
  6. society's interest in encouraging the reporting of sexual offences;
  7. society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and
  8. the effect of the determination on the integrity of the trial process.1997, c. 30, s. 1.

Review of record by judge

278.6 (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.

Hearing in camera

(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.

Provisions re hearing

(3) Subsections 278.4(2) and (3) apply in the case of a hearing under subsection (2).1997, c. 30, s. 1.

Judge may order production of record to accused

278.7 (1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).

Factors to be considered

(2) In determining whether to order the production of the record or part of the record to the accused, 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 and equality of the complainant or witness, as the case may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.

Conditions on production

(3) Where the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy and equality interests of the complainant or witness, as the case may be, and any other person to whom the record relates, including, for example, the following conditions:(a) that the record be edited as directed by the judge;(b) that a copy of the record, rather than the original, be produced;(c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;(d) that the record be viewed only at the offices of the court;(e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and(f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.

Copy to prosecutor

(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.

Record not to be used in other proceedings

(5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings.

Retention of record by court

(6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it.1997, c. 30, s. 1.

Reasons for decision

278.8 (1) The judge shall provide reasons for ordering or refusing to order the production of the record or part of the record pursuant to subsection 278.5(1) or 278.7(1).

Record of reasons

(2) The reasons referred to in subsection (1) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.1997, c. 30, s. 1.

Publication prohibited

278.9 (1) No person shall publish in a newspaper, as defined in section 297, or in a broadcast, any of the following:(a) the contents of an application made under section 278.3;(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.1997, c. 30, s. 1.

Appeal

278.91 For the purposes of sections 675 and 676, a determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1) is deemed to be a question of law. 1997, c. 30, s. 1.

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