Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Hearing in camera

• 278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

• Marginal note:Persons who may appear at hearing

  (2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

• Marginal note:Costs

  (3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.

Marginal note:Judge may order production of record for review

• 278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that

  • (a) the application was made in accordance with subsections 278.3(2) to (6);

  • (b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

  • (c) the production of the record is necessary in the interests of justice.

• Marginal note:Factors to be considered

  (2) 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 and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:

  • (a) the extent to which the record is necessary for the accused to make a full answer and defence;

  • (b) the probative value of the record;

  • (c) the nature and extent of the reasonable expectation of privacy with respect to the record;

  • (d) whether production of the record is based on a discriminatory belief or bias;

  • (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

  • (f) society’s interest in encouraging the reporting of sexual offences;

  • (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

  • (h) the effect of the determination on the integrity of the trial process.

Marginal note:Review of record by judge

• 278.6 (1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused.

• Marginal note:Hearing in camera

  (2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.

• Marginal note:Provisions re hearing

  (3) Subsections 278.4(2) and (3) apply in the case of a hearing under subsection (2).