INTRODUCTION AND BRIEF DESCRIPTION
This section lists several assertions that alone are insufficient to establish the relevance of a record in a sexual offense trial.
SECTION WORDING
278.3(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.
EXPLANATION
Section 278.3(4) of the Criminal Code of Canada sets out a list of assertions that on their own are not sufficient to establish that a record is likely relevant to an issue at trial or the competence of a witness to testify. This section is particularly relevant in sexual assault cases, where the prosecution may wish to use medical or counselling records of the complainant or witness as evidence. In essence, this section means that simply asserting that a record exists, or that it relates to the complainant's medical or counselling history, or the subject matter of the proceedings, is not enough to bring it into evidence. The same is true for records that may reveal prior inconsistent statements or relate to the credibility or reliability of the complainant or witness, or that relate to the sexual activity or reputation of the complainant. Similarly, records that may reveal allegations of sexual abuse by someone other than the accused or that are made close in time to a complaint or activity that forms the subject-matter of the charge are also not sufficient on their own to be admitted into evidence. However, it is important to note that these assertions can still be considered when the court is assessing the relevance and admissibility of the record. The court will take other factors into account, such as the probative value of the record and the potential prejudice to the accused, in deciding whether it is relevant and admissible. Overall, section 278.3(4) highlights the need for a careful and nuanced approach to the use of medical and counselling records in sexual assault cases.
COMMENTARY
Section 278.3(4) of the Criminal Code of Canada establishes the threshold for admitting records that pertain to the complainant's mental health status or personal information into a sexual assault trial. The section provides a list of assertions that the accused may make regarding the existence and relevance of the record, but that are not on their own sufficient to establish that the record is admissible in court. This list includes key elements of the sexual assault process, such as medical and psychiatric treatment or counselling, prior inconsistent statements by the complainant, the complainant's credibility, and their sexual activity. The purpose of this section is to balance the competing interests of the accused's right to a fair trial and the complainant's right to privacy and protection from stereotypical or discriminatory assumptions based on their mental health, sexual history, or other personal information. By setting a standard for admissibility, the section aims to prevent the misuse of personal information and to safeguard the reliability and fairness of the trial process. One notable aspect of the section is that it expressly excludes the admission of records related to the complainant's sexual reputation or prior sexual activity with any person, including the accused. This provision reflects the recognition that sexual assault trials often involve evidentiary challenges that may make it difficult to establish the truth of a complainant's sexual history, and that the admission of such evidence may result in unfair prejudice and stereotyping of the complainant. However, it is worth noting that the list of assertions in Section 278.3(4) is not exhaustive, and the admissibility of a record may still depend on the specific facts and circumstances of each case. For example, if the accused can establish that a record is relevant to the complainant's motive or bias, it may be admissible despite falling under one of the listed assertions. Overall, Section 278.3(4) embodies the values of fairness and privacy in sexual assault trials, and aims to create a level playing field for both the accused and the complainant. While it remains to be seen how effectively the provision is applied in practice, its inclusion in the Criminal Code signals a commitment to protecting the rights of all parties involved in the criminal justice system.
STRATEGY
Section 278.3(4) of the Criminal Code of Canada imposes significant restrictions on the admissibility of certain types of records in sexual assault trials. These restrictions are designed to protect the privacy and dignity of complainants and witnesses and to prevent defendants from using irrelevant or prejudicial evidence to undermine the credibility of the complainant or witness. However, the restrictions can also pose challenges for both the prosecution and the defence in terms of presenting evidence and building a case. One strategic consideration when dealing with this section of the Criminal Code is to carefully assess the relevance and probative value of any records that are being sought. Given the narrow scope of admissible records outlined in the section, it is important to ensure that they are directly relevant to a key issue in the case, such as consent, identity, or credibility. This requires a close analysis of the evidence and a clear understanding of the legal standards that govern admissibility. Another strategic consideration is to develop alternative lines of evidence that can support the case even if certain records are excluded. This may include witness testimony, physical evidence, expert opinions, or other forms of documentation that are not subject to the same restrictions as medical or psychiatric records. By diversifying the evidentiary sources, the prosecution or defence can strengthen their case and reduce the risk of being overly reliant on one type of evidence. A third strategic consideration is to consider the potential consequences of introducing certain records, even if they are technically admissible under the section. For example, records that relate to the sexual activity or reputation of the complainant may be admissible, but their introduction may also cause significant harm to the complainant and undermine their credibility. In such cases, the prosecution or defence may need to weigh the potential benefits of the evidence against the potential harm to the complainant. Some strategies that could be employed when dealing with this section of the Criminal Code include conducting a thorough review of all relevant records at an early stage of the case, seeking input from experts and other advisors on admissibility issues, and working closely with the complainant or witness to ensure that their rights and interests are protected throughout the trial process. Additionally, the prosecution or defence could consider negotiating with the other party to reach a mutually acceptable agreement on the admissibility of specific records or categories of evidence. In conclusion, section 278.3(4) of the Criminal Code of Canada presents significant challenges and strategic considerations for both the prosecution and the defence in sexual assault trials. By carefully assessing the relevance and probative value of records, developing alternative lines of evidence, and considering the potential consequences of introducing certain types of evidence, both sides can effectively navigate the complex evidentiary landscape to build a strong case.