Production of Third-Party Records: Section 278.3

• Author: Daniel Brown/Jill Witkin
• Pages: 293-320

293

Production

of Third-Party

Records:

Section 278.3

11

I. Background .............................................. 294

II. Legal Framework ......................................... 296

A. Records Caught Under the Legislation .................. 296

B. Records Obtained by the Defence ...................... 300

C. Role of the Crown ................................... 301

D. Waiver ............................................ 302

III. Statutory Procedure Where an Accused Seeks a Private Record .... 303

A. Service ............................................ 303

B. Standing .......................................... 304

C. Evidentiary Basis .................................... 304

IV. Two-Stage Hearing ........................................ 305

A. The First Stage: Production of the Record for Review

of the Court ........................................ 305

B. The Second Stage: Ordering Production of the Record

tothe Accused ...................................... 311

V. Practical Tips ............................................ 313

A. Crown Position on Application ......................... 313

B. Sensitivity to the Victim .............................. 314

C. Scheduling of the Application in Advance ................ 314

VI. Cross-Examination at the Preliminary Hearing .................. 315

VII. Appeal Issues ............................................ 317

Appendix 11.1 Sample Waiver of Privacy Rights (Ontario) ........ 319

Appendix 11.2 Sample Waiver of Privacy Rights (Alberta) ........ 320

© [2020] Emond Montgomery Publications. All Rights Reserved.

294 Prosecuting and Defending Sexual Oence Cases

I. Background

In 1991, the Supreme Court of Canada (SCC) in R v Stinchcombe set out the

Crown’s obligation under section 7 of the Canadian Charter of Rights and Freedoms1

to disclose to the accused all documents that are not “clearly irrelevant.”2 Soon

after the case was decided, frequent requests were made by defence counsel for

“third-party records” (i.e., records that were not in the possession of the Crown

or police), particularly in cases of sexual assault. Parliament enacted Bill C-49 in

1992,3 and it restricted questioning of victims about their sexual history.4 The

Crown and third parties took the position that there also needed to be a dierent

disclosure regime that applied to third-party records. In the case of R v O’Connor,5

the Supreme Court created such a regime, and implemented a two-stage process

for an accused who seeks to obtain third-party records.6 This process paved the

way for the current statutory provisions as they relate to sexual oences, which also

involve a two-stage process. After a lengthy consultation process, Bill C-467 was

enacted in April 1997, and, in May 1997, the codified regime under section 278.1

came into force.

There are now two distinct processes for an accused to obtain production of rel-

evant third-party records. One relates to cases involving sexual oences (i.e., ss278.1

to 278.91 of the Criminal Code8) and the other relates to all other oences (i.e., the

O’Connor regime). One major dierence between the two is that under the O’Connor

regime, where the Crown is in possession of personal records relating to the victim

or a witness, these records must be disclosed pursuant to Stinchcombe. By contrast,

under the Criminal Code regime for sexual oences, records that fall under the Crim-

inal Code definition of third-party records are privileged and should not be disclosed

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[the Charter].

2 R v Stinchcombe, [1991] 3 SCR 326 at 339, 68 CCC (3d) 1.

3 Bill C-49, An Act to amend the Criminal Code (sexual assault), 3rd Sess, 34th Parl, 1992.

4 See Karen Busby, “Discriminatory Uses of Personal Records in Sexual Violence Cases” (1997)

9 Can J Women & L 148.

5 [1995] 4 SCR 411, 103 CCC (3d) 1.

6 O’Connor was a sexual assault case, and the records in question were therapeutic records. At stage

one, the records are produced to the court for inspection if the accused can demonstrate their “likely

relevance” (i.e., the reasonable possibility that the information is logically probative to an issue at trial

or the competence of a witness to testify). At stage two, the judge examines the records to determine

whether and to what extent they should be produced to the accused, weighing the salutary and dele-

terious eects of production and determining whether a non-production order would constitute

a reasonable limit on the ability to make full answer and defence: ibid at paras 22, 30. While the

accused has to go through the two-stage process to obtain records held by third parties, if the Crown

is in possession of these records, it has to disclose them to the accused.

7 Bill C-46, An Act to amend the Criminal Code (production of records in sexual ofence proceedings),

2nd Sess, 35th Parl, 1997.

8 RSC 1985, c C-46.

© [2020] Emond Montgomery Publications. All Rights Reserved.