The Canadian criminal justice system recognizes that an accused’s right to make full answer and defence may require the admissibility of a complainant’s private records at a criminal trial, for example, for the purpose of cross-examination. Indeed, the admissibility of relevant information in a private record may prevent a miscarriage of justice.
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 when assessing the admissibility of a private record at trial is set out in section 278.92 of the Criminal Code which came into force on December 13, 2018.
If an accused has possession of the personal records of a complainant in a sex offence case, whether pursuant to a ruling for production subsequent to a third party records application, further to a consent release or otherwise, the accused must seek a ruling as to the admissibility of the records pursuant to section 278.92 of the Criminal Code before making any use the contents of the records at trial (R. v. Boyle,  ONCJ 226).
Section 278.92(1) of the Code states:
Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused – and which the accused intends to adduce – shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(a) An offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or
(b) Any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct would be an offence referred to in paragraph (a) if it occurred on or after that day.
Section 278.1 of the Code identifies a ‘record’ as follows:
For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes 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 [emphasis in the original].
Requirements for Admissibility
Section 278.92(2) sets out the test for admissibility of private records relating to a complainant that are in the possession or control of an accused. Section 278.92(2) states:
The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(a) If the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
(b) In any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
The factors that a judge shall consider are set out in section 278.92(3), which states:
In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
Procedural Requirements That Must be Met by an Accused Making an Application for an Admissibility Hearing
An application for an admissibility hearing must be made to the trial judge. Section 278.93(1) states:
Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
When an issue arises with respect to admissibility under section 278.92, the trial judge shall consider the application with the jury and the public excluded (s. 278.93(3)).
With respect to the form and content of the application, and the identity of parties who must be served with the application, section 278.93(2) states:
An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.
With respect to the timeline for service of the application, section 278.93(4) states:
If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).
Procedural Requirements for the Admissibility Hearing
The jury and the public must be excluded from the admissibility hearing (s. 278.94(1)).
With respect to the role of the complainant at an admissibility hearing, section 278.94(2) states
The complainant is not a compellable witness at the hearing but may appear and make submissions.
There is an obligation on the trial judge to inform complainants of their right to counsel. Section 278.94(3) states:
The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.
Procedural Requirements at the Conclusion of the Admissibility Hearing
There is an obligation on the trial judge to provide reasons as to what, if any, of the proffered evidence is admissible at trial. Section 278.94(4) states:
At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 276.92(2) and shall provide reasons for that determination, and
(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and
(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
The trial judge’s reasons become part of the record of the proceedings (s. 278.94(5)).
The Code sets out restrictions on the publication of information in relation to an admissibility hearing. Section 278.95 (1) states:
A person shall not publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under subsection 278.93;
(b) any evidence taken, the information given and the representations made at any application under section 278.93 or at a hearing under section 278.94;
(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and
(d) the determination made and the reasons provided under subsection 278.94(4), unless
(i) that determination is that evidence is admissible, or
(ii) the judge or justice, after taking into account the complainant’s right to privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.
It is a criminal offence, punishable on summary conviction, to violate the publication prohibitions in relation to an admissibility hearing (s. 278.95(2)).
Section 278.92 compels counsel to provide case-specific evidence demonstrating why the use of a private record at trial is necessary to make full answer and defence.
R. v. Brown,  O.J. No. 970 (C.J.) - Justice MacLeod permitted the accused to use notes made by a social worker and a physician for purpose of cross-examination at trial.