Victims of Crime Research Digest No. 11

Third Party Records: A Review of the Case Law from 2011–2017

By Carly Jacuk and Hassan Rasmi Hassan

The Department of Justice Canada has undertaken research on sexual assault, the criminal justice system and third-party records for decades (Busby 1998; 1997; 2000; McDonald, Wobick and Graham 2006), as well as more general research involving sexual-assault survivors and their criminal justice experiences (Hattem 2000; McDonald and Tijerino 2013; Lindsay 2014; 2014). In December 2012, the Standing Senate Committee on Legal and Constitutional Affairs published a report regarding its review of Canada’s third-party records regime.

As recommended in the Senate Report, Justice Canada continues to monitor trends in case law regarding applications for third-party records. These applications, along with their outcomes, can be monitored through reviews of case law.Footnote 26 McDonald, Pashang and Ndegwa (2014) updated earlier studies of case law, by focusing on 2003 to 2010. This paper updates McDonald et al.’s (2014) study by reviewing cases from January 2011 to May 2017. The paper also outlines notable changes in the legal landscape, including Bill C-32 (An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts), which includes Parliament’s 2015 amendments to the third party records application regime and the Supreme Court of Canada’s (SCC) decision in R. v. Quesnelle.Footnote 27

This article has four sections. The first provides background on applications for third-party records, including definitions of key terms and a history of the regime. The second section describes the methodology used to review relevant case law; sections three and four present results and conclusions, respectively.

1.0 Background

In December 1995, the Supreme Court of Canada (SCC) ruled on issues arising from the application to produce third-party records in R. v. O`ConnorFootnote 28 and A. (L.L.) v. B. (A.).Footnote 29 Following this decision, Parliament amended the Criminal Code (through Bill C-46), adding sections 278.1-278.9Footnote 30 to codify the two-step process articulated in the Supreme Court’s decision. Bill C-46 (also known as the Mills regime) came into force in 1997, was challenged on constitutional grounds in R. v. Mills,Footnote 31 and ultimately was upheld as constitutional.

The legislative regime specifies that, for all sexual offences, the defence is not entitled to disclosure of third-party records. However, the defence can apply to have the court compel a third party to produce certain records. These records include “any form of record that contains personal information for which there is reasonable expectation of privacy.” The Criminal Code provides a non-exhaustive list of record types that require the defence to submit an application: “medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social serves records, personal journals and diaries, and records containing personal information that is protected by law” (s.278.1). Note that records created for investigation or prosecution are not subject to applications for third-party records and that section 278.3 of the Criminal Code further limits the scope of applications. For offences that are not of a sexual nature, the common law rules under O’Connor apply.

It is important to note that in application proceedings, the third party and the complainant both have standing and can be represented by counsel. While they are known as third party applications, records may also reside with the complainant and be known as “personal records,” such as diaries.

The Legislative Framework for Third Party Records Applications

As noted, the Mills regime sets out a two-step procedure. Upon receipt of an application, a judge must determine whether to require the third party to produce the requested records for review. The judge can order production when three criteria are met:

  1. the application meets the limiting criteria outlined in section 278.3;
  2. the record is “likely relevant” to a trial issue or a witness testimony; and
  3. production is necessary “in the interests of justice” (s.278.5(2)).

To determine whether these criteria have been met, the judge weighs the salutary and deleterious effects of a potential order on the accused’s right to make a full answer and defence, as well as the salutary and deleterious effects of a potential order on a complainant’s or witness’ right to privacy and equality. The judge must consider eight factors (s.278.5(2)):

  1. the extent to which the record is necessary for the accused to make a full answer and defence;
  2. the probative value of the record;
  3. the nature and extent of the reasonable expectation of privacy with respect to the record;
  4. whether production of the record is based on a discriminatory belief or bias;
  5. the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
  6. society’s interest in encouraging the reporting of sexual offences;
  7. society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
  8. the effect of the determination on the integrity of the trial process.

The judge completes this first step at a hearing, in camera (s.278.4(1)). If the judge orders that the records be produced, the judge will review them and determine whether some or all of the records should be disclosed to the defence (s.278.6-278.7). In R. v. Mills, the SCC upheld the constitutionality of the new regime.Footnote 32

Bill C-32: Victims Bill of Rights Act

The legislative regime governing third-party records changed in 2015, when Parliament enacted the Victims Bill of Rights Act,Footnote 33 which included the Canadian Victims Bill of Rights (CVBR),Footnote 34 and amended other Acts, including the Criminal Code.Footnote 35 Bill C-32 amended the Criminal Code to establish CVBR rights and protections. Amendments to sections 278.4(2), 278.5(2), 278.7(2), and 278.7(3) of the Criminal Code established the regime for third-party records.

The amendment to section 278.4(2) adds subsection 2.1:

The judge shall, as soon as feasible, inform any person [who has possession or control of the record and any other person related to the record] who participates in the hearing of their right to be represented by counsel. [emphasis added]

This means that victims have a right not only to counsel, but also to be informed of the right to counsel.

Second, Parliament amended section 278.5(2) and section 278.7(2) to include the personal security of the complainant or witness as one of the overall balancing factors that the judge must consider in determining whether to order production of the record(s) to the courtFootnote 36 or disclose them to the defence,Footnote 37 respectively. Section 278.5(2) now reads:

In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account… [emphasis added]

The factors that should be taken into account and informed by the right to privacy, personal security, and equality of the complainant or witness were listed earlier (a-h).

Similarly, section 278.7(2) now reads:

In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.

A judge must now consider the accused’s right to make a full answer and defence, the right to privacy and equality of the complainant or witness, and the personal security of the complainant or witness.

Parliament also amended section 278.7(3) to include the security of the person as one of the balancing factors that the judge must consider in determining whether to place conditions on production/disclosure so that the interests of justice, in addition to the privacy, equality, and personal security of the complainant or witness, are protected.Footnote 38 Section 278.7(3) now reads:

If the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions:

  1. that the record be edited as directed by the judge;
  2. that a copy of the record, rather than the original, be produced;
  3. that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;
  4. that the record be viewed only at the offices of the court;
  5. that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and
  6. that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.

The Senate Report, published in December 2014, recommended several of these amendments based on the testimony it heard from witnesses (Senate Standing Committee 2012). Specifically, the Senate Report recommended the amendments made to sections 278.5(2) and 278.7(3), adding “the complainant’s right to personal security” to the factors that the judge considers to determine if production or disclosure of third party records is required. Additionally, the Senate reported on the importance of independent counsel for the complainant in its discussion surrounding Recommendation 8, which sought to ensure that complainants knew they could make submissions during a hearing. Parliament’s amendments to section 278.4(2) – adding subsection (2.1) – had this effect.

Notable case law post-2011

Since 2011, the SCC has released two notable decisions dealing with the third-party records applications regime: R. v. QuesnelleFootnote 39 and R. v. Grant.Footnote 40

In the Quesnelle decision, the issue was whether police-occurrence reports should be disclosed to the defence if they are unrelated to the offence before the court, but relate to the same witness. The Court determined that these reports (i.e. related to other offences) are private and protected by the definition of “record” in the Mills regime. In other words, police-occurrence reports for other offences are not subject to the exclusion in section 278.1 of the Criminal Code. Rather, the exclusions are limited to police occurrence reports related to the offence at hand (s278.1), which fall under the Stinchcombe disclosure rules.Footnote 41

In Grant, the SCC affirms its decision in Quesnelle by stating: “Legislative measures that restrict disclosure to protect the privacy interests of individuals implicated in criminal matters continue to apply.”Footnote 42 This SCC statement can also be seen as affirming the amendments to the Mills regime under the Victims Bill of Rights Act.

There have been other notable decisions at the provincial level. In the early case of Batte,Footnote 43 the Ontario Court of Appeal (ONCA) determined the meaning of “likely relevant” in section 278.5(1)(b) of the Criminal Code. This section states: “the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify.” This is one of three criteria the defence must meet for a judge to consider ordering the production of records. The 2012 Senate Report recommended that the ONCA’s interpretation be codified and become binding on all Canadian courts (Senate Standing Committee 2012). However, Parliament has yet to codify an interpretation of “likely relevant” in this section.

2.0 Methodology

English decisions reported from January 1, 2011, to May 12, 2017, were retrieved from five different databases: Westlaw, CanLII, Quicklaw, the Canadian Abridgment Digest and the Canadian Encyclopedic Digest. Broad and narrow searches were conducted using the terms: “application /p record /p 278.” The searches produced all decisions (n=144) that discussed an application, a record and the number 278 within the same paragraph. Other search options – such as including names of specific section 278 offences – produced narrower results.

Of the 144 English cases reviewed, 91 were relevant to third-party records applications (representing 63.2% of all cases). For each case, the study gathered information about:

  1. relevant jurisdiction
  2. level of court
  3. the defendant
  4. the complainant
  5. the relationship between defendant and complainant
  6. complainant’s representation
  7. outcome of the application; and,
  8. reasons stated for denying or granting the application.

The study included only cases that involved sexual offences and that fell within the section 278 regime.

The French database, la référence, was also searched using search terms, “L.C.R. ET (1985) ET ch. ET C-46” for legislation cited; “278” for section of the Code; and “entre 01/01/2011 ET 12/05/2017” for time period. This search produced six cases in French; none were decisions about third-party records applications.Footnote 44

3.0 Results

a. Cases by Jurisdiction and Level of Court

Previous studies found that Ontario accounted for the majority of cases, with the remainder spread evenly across other provinces (McDonald, Wobick and Graham 2004; McDonald, Pashang and Ndegwa 2014). These previous studies counted cases with multiple decisions as one case.

The current study found similar results. In particular, Ontario cases comprised more than two-thirds of all cases (66 of 91 cases, 72.5%),Footnote 45 with the remainder from other provinces (27.4%). None of the four appellate cases also had a reported trial-level decision, so each decision included in this review was counted as one case. Table 1 details the findings according to jurisdiction and court level.

Table 1: Cases by Jurisdiction and Level of CourtFootnote 46

Province/Territory

Trial Level

Appellate Level

Total Cases

Prince Edward Island

0

0

0

Quebec

0

0

0

Nunavut

1

0

1

Nova Scotia

2 (1 PC; 1 SC)

0

2

Saskatchewan

2

0

2

New Brunswick

3 (2 PC; 1 QB)

0

3

Newfoundland & Labrador

2

1

3

British Columbia

4

0

4

Manitoba

4

0

4

Alberta

8 (2 PC; 6 QB)

1

9

Ontario

61 (6 PC; 55 SC)

221

63

Total

87

4

91

b. Offences Committed

All reviewed cases involve alleged offences under section 278.2 of the Criminal Code.Footnote 47 Though all of the cases involved charges of a sexual nature, sexual assault charges (s.271-273 of the Criminal Code) were the most common. Other common offences include sexual interference, invitation to sexual touching, and sexual exploitation. None of the cases involve charges for trafficking offences.Footnote 48 Generally, offenders were charged with more than one offence.

c. Records

As with previous reviews, the study found that the type of record sought most often was counselling records (42 out of 91 applications) (McDonald, Wobick and Graham 2004; McDonald, Pashang and Ndegwa 2014). In many cases, defendants requested multiple records, leading to a total of 127 records studied. More than half of all requests involved either the complainant’s counselling or medical records (64/127). Table 2 presents the number of requests for each type of record.

Table 2: Type of Records Requested by DefendantsFootnote 49

Type of Records

No. of Cases

Custodial reports

2

Testimony

3

Insurance reports (public and private)

4

School records

7

Personal records (diaries, cellphone records,
sexual history, internet chats)

9

Other social services records

11

Occurrence reports24

12

Child protection records

15

Medical records, including addiction

22

Counselling records/Therapeutic records,
including psychiatric

42

n=127 because many cases included defendants seeking multiple records.

d. Location of Records

In general, the requested records were in the possession of a single party; however, in some cases, multiple parties possessed the requested records. In other cases, the defence already had the records and were not subject to the s.278 disclosure regime as a result.Footnote 50 The SCC has distinguished between records that are subject to “compelled production” and those that are not, however. As a result, cases subject to “compelled production” (e.g. Children’s Aid Society records, but not private diaries) are still subject to court order under s.278.1, even if they are already in the (lawful or unlawful) possession of the defence.Footnote 51 Without a court order under this regime, the records cannot be used in court. Table 3 presents the locations of requested records; note that many complainants’ personal records are in the “unspecified location” category.

Table 3: Location of Records

Location

No. of Cases

Social services, including Children’s Aid Society

36

Doctor/health centre

24

Police/RCMP

22

Other: insurance (public/private), government, correctional worker/institution, court, defence

21

Counsellor

15

Unspecified

12

School/daycare

9

Crown

8

e. Party Characteristics

Consistent with previous studies, most complainants were female, most defendants were male and the two parties had an existing prior relationship. Furthermore, nearly half (55/118) of all complainants were minors at the time of the alleged offences.

i) Information about Defendants

Information collected about defendants includes gender, age and occupation. Information about the defendant’s gender was available for 78 of the 91 cases reviewed; in all but one of these cases, the defendant was male. The only case involving a female defendant is R v Lavigne. In 58 of the 63 cases that report age, the defendant was an adult; in five cases, the defendant was a minor. Defendant age was not reported in 30 cases. Only 12 of the 91 cases report the defendant’s occupation. Among these were two teachers, two students, and one doctor, drug dealer, horse farmer, paramedic, roofer, Roman Catholic priest, swimming instructor and alleged Hell’s Angels member. See Tables 4 and 5 below.

Table 4: Defendant Characteristics – Gender
Gender No. of Defendants

Male

77

Female

1

Unreported

13

n=91

Table 5: Defendant Characteristics – Age
Gender No. of Defendants

Male

77

Female

1

Unreported

13

n=91

ii) Information about Complainants

Information collected about complainants includes gender, age and indication of mental illness or physical or mental disability. Of the 80 cases that identified the complainant’s gender, 69 involved at least one female complainant, and only 13 involved at least one male complainant.Footnote 52 Of the 69 cases involving a female complainant, 12 cases involved multiple female complainants. In total, there were 82 female complainants and 14 male complainants. Complainant gender was not reported in 11 cases that involved a total of at least 22 complainants.Footnote 53 See Table 6.

Table 6: Complainant Characteristics – Gender
Gender No. of Complainants

Female

82

Male

14

Unreported

22

n=118 because many cases involved multiple complainants.

Fifty-six cases reported complainant age and 35 cases did not. In total, there were 57 minor complainants and 14 adult complainants. The age of 47 complainants was not specified. Among age-reported cases, 43 complainants were minors and eight were adults; in two cases, the alleged offences began when the complainants were minors and continued until they were adults. Three cases involved both an adult and a minor complainant. See Table 7.

Table 7: Complainant Characteristics – Age
Age No. of Complainants

Minor

57

Adult

14

Unreported

47

n=118 because many cases involved multiple complainants.

Ten cases reported a complainant’s mental illnessFootnote 54 and/or mental or physical disability.

iii) Relationship between Defendant and Complainant

In 60 of 91 cases, it was possible to identify the relationship between the complainant(s) and the defendant with certainty. As with the previous studies (McDonald, Wobick and Graham 2004; McDonald, Pashang and Ndegwa 2014), this review found that most cases (n=54) involved prior relationships. Of these, almost three-quarters (37/54) involved family relationships;Footnote 55 12 were either friends, acquaintances or in romantic relationships; and five cases involved professional relationships. The parties were strangers in six cases.

Table 8: Relationship Between Defendant and Complainant
Relationship Type No. of Cases

Family

37

Friend, Acquaintance, or Romantic Relationship

12

Strangers

6

Professional Relationship

5

n=60

f. Representation for the Complainant

It was evident in all 91 cases whether or not the complainant had representation: in 51 cases, complainants had representation and in 39 cases, they did not. In one case, the complainant had representation at the first stage of the inquiry, but not at the second stage and so, this case is excluded from Table 9 below. Given the relatively small sample size (n=90), it was not possible to determine whether there was a statistical relationship between the complainant, representation and the outcome of the application.

Table 9 details the outcomes of applications for represented and unrepresented applicants. The application outcome figures refer only to cases that deal with disclosure at the second stage of inquiry and decisions where production was denied at the first stage (77 cases). The study excluded 14 cases: 12 because applications had been granted at the first stage of inquiry but what happened at the second state was unclear; one because the court adjourned; and one because the complainant had representation only during the first stage. This creates discrepancies between the total numbers of cases.

Table 9: Complainants’ Legal Representation and Outcome of Applications
Represented Unrepresented

51

39

Application Granted Application Denied Application Granted Application Denied

16

 24

 15

 22

g. Outcome of Applications and Reasons Provided

A judge can order that all or some third-party records be produced, deny disclosure of the records entirely, or order that the records be produced for review before deciding whether they will be disclosed to the defence in full, in part, or not at all.

In the cases studied for this review, 14 third-party records were fully disclosed, 13 records were partially disclosed, and 45 applications were denied in full (i.e. none of the requested records were disclosed). Six judges ordered that records be produced for review, but the outcome of the second-stage disclosure inquiry was not reported. Table 10 details these findings. Cases where the court did not specify that some records should be redacted or excluded are counted as being fully disclosed.

Table 10: Outcomes of Applications
Granted Denied
Fully Partially First Stage Only

14

13

6

45

Table 10 includes the case where the complainant was represented at only one stage.

h. Reasons

Section 278.5(2) of the Criminal Code requires judges to consider eight specific factors. Table 11 indicates which factors judges cited as influencing their decisions. Note that in almost all cases reviewed for this study, judges cited multiple factors. In some cases, judges cited different factors to justify disclosing only some records. In R. v. Fiddler,Footnote 56 for example, the judge considered certain factors for one record and no factors for another record.

Table 11: Factors Considered by the Courts
Factors Considered from s 278.5(2) No. of cases

a. The extent to which record is necessary for the accused to make a full answer and defence

21

b. The probative value of the record

15

c. The nature and extent of the reasonable expectation of privacy with respect to the record

21

d. Whether the production of the record is based on a discriminatory belief or bias

2

e. The potential prejudice to the personal dignity and right to privacy of any person to whom the record relates

17

f.  Society’s interest in encouraging the reporting of sexual offences

4

g. Society’s interest in encouraging the obtaining of treatment by complainants of sexual offences

1

h. The effect of the determination on the integrity of the trial process

6

General Reference

5

Other: fishing expedition, relevance to issue at trial, necessary

23

Other: interest of justice, reliability and credibility of complainant

19

Other: equality

3

No reference to s. 278.5(2) factors

13

4.0 Conclusion

This review examined 144 cases dating from January 1, 2011, to May 12, 2017; 91 of these cases featured applications for third-party records and were examined further. Although case law reviews are limited in their ability to identify how applications function at the trial level, they can help to identify trends in Canadian jurisprudence.

The findings of this review are consistent with previous studies: defendants and complainants usually had a prior relationship; most complainants were female minors, while most defendants were adult males.

Of the eligible cases in this study, 33 applications were granted at least in part, and 45 were denied (n=-78). When excluded cases (i.e. the 12 cases where production was granted at the first stage but the second stage was unreported; and the case where the complainant had representation at only one stage) are added to the granted category, the total numbers of applications granted and denied are almost equal (46 granted, 45 denied).

References

Carly Jacuk is a law student in the common law program at the University of Ottawa.

Hassan Rasmi Hassan graduated in 2018 from the Faculty of Law, University of Ottawa.