The Canadian criminal justice system recognizes that an accused’s right to make full answer and defence may require the production of a complainant’s private records.
At the same time, the system also recognizes the privacy and equality rights of complainants.
In the context of an allegation of sexual misconduct, the mechanism for balancing these competing rights is set out sections 278.1 to 278.91 of the Criminal Code of Canada.
The Code requires an accused to make an application to the trial judge for the production of a private record for which the complainant or other witness has a reasonable expectation of privacy.
The following comments from the Supreme Court of Canada in R. v. Mills,  S.C.J. No. 68, at paragraph 94, provide insight into a trial judge’s difficult task of weighing the conflicting interests at stake when deciding whether to order production:
The right of an accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. …where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent. Most cases, however, will not be so clear, and in assessing applications for production, courts must determine the weight to be granted to the interests protected by privacy and full answer and defence in the particular circumstances of each case…(emphasis added).
The next post in this series will examine the two-stage test for production under the Code.
· Sections 278.1 to 278.91 of the Code came into force on May 12, 1997.
· The Supreme Court of Canada affirmed the constitutionality of sections 278.1 to 278.91 in 1999 in R. v. Mills, supra. As a result, the Code procedure for production of private records is commonly referred to as "the Mills regime".
· The Mills regime is the only gateway for an accused charged with a sexual offence to access the private records of a complainant or other witness.
· The Mills regime applies to a wide scope of personal information including records pertaining to counseling, medical treatment, education, employment and child welfare (s. 278.1).
· The Mills regime also applies to police occurrence reports prepared in the investigation of unrelated incidents involving the complainant (R. v. Quesnelle, 2014 SCC 46).
· The Mills regime does not apply to records made by a person responsible for the investigation or prosecution of the offence (s. 278.1).
· If the prosecution comes into possession of private records of the complainant in a sexual assault case, the regular rules of disclosure do not apply. While the Crown has a statutory duty to notify the accused of the existence of the private records in its possession (s.278.2(3)), the prosecution is prohibited from releasing these records to an accused in the absence of an informed waiver by the complainant (s. 278.2(2)).