Four years ago, I wrote about the use of discovery evidence in criminal matters (linked: here). Today (June 30, 2022), the Supreme Court of Canada has provided greater guidance on this question, specifically in the context of sexual assault cases.
Sections 278.92 to 278.94 were meant to remove barriers that deterred complainants from coming forward. Mainly by restricting defence counsel’s use of the complainant’s personal records (e.g. medical records) to attack their character. The provisions create guidelines for determining when a complainant’s private records that are already in the possession of the accused are admissible.
Definition of a Record
A record means any form of record that contains personal information for which there is a reasonable expectation of privacy, like a medical note, psychiatric note, employment record, social services record, journals. It does not include a record created for a person responsible for investigating or prosecuting the offence.
The medium of the record does not determine if it is personal. “The more important consideration is the sensitivity of the information contained in the record” (para 49). The type of content could include discussions about mental health, prior physical or sexual abuse, or involvement of social welfare.
In determining whether the particular evidence comes within the definition of a “record”, the court should consider the context for which the evidence was created, the purpose for the creation of it, the relationship with the record creator (e.g. patient -doctor), whether it was shared, and how it was created or obtained. For example, social media posts shared publicly are less likely to attract a reasonable expectation of privacy versus one on one messages (see paras 58 to 60).
If the evidence comes within the definition of a “record” under section 278.1, then the court considers whether it is admissible. The test for admissibility of private records is set out in section 278.92(2)(b).
Test for Admissibility
At para 13, the Majority writes that “the evidence is admissible if it ‘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’. This determination is made in accordance with the factors listed in s. 278.92(3)“. These factors include:
(a) the interests of justice, including the right of the accused to make a 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.
The Majority justifies uphold the provisions at para 133 by stating that the sections do not breach sections 7 or 11(d) of the Charter because they “require the judge to weigh the potential prejudice arising from the proposed evidence, including whether it is myth-based or unjustifiably intrusive on a complainant’s privacy, against the extent of its probative value”. An accused’s right to make full answer and defence will only be violated if they are prevented from adducing relevant and material evidence, for which the probative value is not outweighed by its prejudicial effect.
Guidance on Record Screening Applications:
At para 104, the Majority states: “Where, in the opinion of the judge, the evidence is clearly a ‘record’, the judge should deal with the matter summarily and order the accused to proceed with a private record application. Equally, where the judge is uncertain whether the proposed evidence is a ‘record’, they should instruct the accused to proceed with an application. Only if the judge is clearly satisfied that the proposed evidence does not constitute a ‘record’ should they direct that the accused need not bring an application”.
If a defendant is required to bring an application, they should be encouraged to bring the application prior to trial.
 While the statutory language does not specify that these applications must be conducted pre-trial, in our view, this should be the general practice. The encouragement of pre-trial applications in the record screening regime mirrors the approach endorsed previously under the s. 276 regime (see, for example, Goldfinch, at para. 145). There should be consistency between s. 276 evidence applications and private record applications because both now proceed under ss. 278.92 to 278.94.
With respect to a complainant’s involvement, the complainant should have sufficient knowledge of the application record to meaningfully participate in Stage Two of the hearing. The complainant can attend the application hearing, subject to the judge’s discretion. However, the complainant does not have the right to cross-examine the accused at the application.
Complainants are only participants at the Stage Two hearing. They are not parties to the criminal trial proceeding. In the vast majority of cases, there will be no further recourse if they are unsatisfied with a decision to admit private records at trial.
So Can Discovery Evidence be Used at a Sexual Assault Trial?
The short answer: it depends on the judge’s assessment of the record in accordance with sections 278.92 to 278.94 of the Criminal Code.
(This article is a brief synopsis of the Majority’s decision. It does not contain any critique. However, commentary on the decision is welcomed in the comments.)