Criminal Code

Marginal note:Application for production

• 278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

• Marginal note:No application in other proceedings

  (2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

• Marginal note:Form and content of application

  (3) An application must be made in writing and set out

  • (a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and

  • (b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

• Marginal note:Insufficient grounds

  (4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

  • (a) that the record exists;

  • (b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

  • (c) that the record relates to the incident that is the subject-matter of the proceedings;

  • (d) that the record may disclose a prior inconsistent statement of the complainant or witness;

  • (e) that the record may relate to the credibility of the complainant or witness;

  • (f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

  • (g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

  • (h) that the record relates to the sexual activity of the complainant with any person, including the accused;

  • (i) that the record relates to the presence or absence of a recent complaint;

  • (j) that the record relates to the complainant’s sexual reputation; or

  • (k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

• Marginal note:Service of application and subpoena

  (5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 60 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

• Marginal note:Service on other persons

  (6) The judge may at any time order that the application be served on any person to whom the judge considers the record may relate.