Production of Third-Party Records: Section 278.3

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 325-353

325

Production

of Third-Party

Records:

Section.

11

I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

II. Legal Framework .......................................... 

III. Motion for Directions—Is the Item Sought a Record Captured by

Section.? ............................................ 

IV. Statutory Procedure Where an Accused Seeks a Private Record..... 

V. Two-Stage Hearing ........................................ 

VI. Practical Tips ............................................. 

VII. Cross-Examination at the Preliminary Hearing .................. 

VIII. Appeal Issues ............................................ 

Appendix . Sample Waiver of Privacy Rights (Ontario) ........ 

Appendix . Sample Waiver of Privacy Rights (Alberta)......... 

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326 Prosecuting and Defending Sexual Oence Cases

I. Background

In 1991, the Supreme Court of Canada (SCC) in Rv Stinchcombe1 set out the Crown’s

obligation under section7 of the Canadian Charter of Rights and Freedoms2 to disclose

to the accused all documents that are not “clearly irrelevant.”3 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-494 in 1992, and it restricted

questioning of victims about their sexual history.5 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,6 the SCC created such a regime

and implemented a two-stage process for an accused who seeks to obtain third-party

records.7 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 con-

sultation process, Bill C-468 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 Code)9 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 offences, records that fall under the

1 [1991] 3 SCR 326, 68 CCC (3d) 1.

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

[the Charter].

3 Rv Stinchcombe, supra note 1 at 339.

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

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

9 Can J Women & L 148.

6 [1995] 4 SCR 411, 103 CCC (3d) 1.

7 Rv O’Connor, ibid, 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 deleterious 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.

8 An Act to amend the Criminal Code (production of records in sexual ofence proceedings), 2nd Sess,

35th Parl, 1997.

9 RSC 1985, c C-46.

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