278 Applications for Production by Alanah Josey
278 Applications for Production
by: Alanah Josey
Pressé Mason Barristers and Solicitors
Bedford, Nova Scotia
In s 271 prosecutions, production of third party records is typically governed by s 278 of the Criminal Code, which replaced the common law regime established in the O’Connor decision. Applications for production involve a two-step process: disclosure to the court for review, and subsequently, production to the accused.
The first issue is whether the record sought is a “record” within the meaning of s 278.1 such that the s 278 process is triggered. “Record” is defined broadly under s 278.1 of the Code as follows:
278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
The records specifically named are caught by the 278 regime as a matter of course. The production of records not specifically named will be governed by s 278 where the record contains personal information on the part of the complainant for which there is a reasonable expectation of privacy.
There are a number of procedural requirements which must be satisfied. The application must be made in writing to the trial judge and set out particulars of the production sought, which should be as detailed and specific as possible. The notice must set out the grounds upon which the applicant intends to rely in order to satisfy the substantive requirements of the application. The application must be served upon the Crown, the complainant, and the record holder. 60 days’ notice is required, but the trial judge has the discretion to waive the notice period.
In terms of the substantive requirements, there are two main issues: (1) the record sought must be likely relevant to a trial issue or to the competence of a witness to testify, and (2) the production of the record must be necessary in the interests of justice. These requirements must be proven on the balance of probabilities.
The majority opinion in R v Mills  3 SCR 668 held that “likely relevance” for the purpose of s 278.5(1)(b) means a reasonable possibility that the information contained in the record is logically probative of an issue at trial or witness competency . This means that there must be information tending to demonstrate that the evidence sought will assist in proving or disproving a fact in issue, or that the evidence has impeachment value. The standard of “likely relevance” is not intended to be overly onerous. The records sought must have potential significance to the trial, but the applicant does not have to demonstrate on the s 278.5 application the specific uses to which he might put the records.
Subsection 278.3(4) sets out a series of grounds which cannot, on their own, establish likely relevance. This means that the grounds cannot be used to promote a fishing expedition or advance a bare assertion for which there is no support. This is intended to prevent myths and stereotypes from forming the entire basis of an otherwise unsubstantiated request for production.
However, the applicant is not precluded entirely from relying upon the s 278.3(4) grounds. The majority in Mills, supra, emphasized that the trial judge is the ultimate arbiter in deciding whether “likely relevance” threshold has been met, which is highly contextual and depends upon the facts of the case. The applicant can rely upon the s 278.3(4) grounds where he can point to case-specific information to demonstrate that the grounds may be related to likely relevance. An informational or evidentiary foundation will be necessary for support, which is typically established by affidavit evidence. The applicant may be cross-examined on his affidavit, but the Crown would be limited to questions pertinent to the informational foundation and the application itself. The Crown would not be entitled to explore the applicant’s evidence on the offence itself.
With respect to the “interests of justice” analysis, consideration is given to the salutary and deleterious effects an order will have on the applicant’s right to make full answer and defence, as well as the effect on the complainant’s right to privacy, personal security, and equality. The Court is directed to consider the following factors outlined under s 278.5(2) of the Code:
(a) The extent to which the record is necessary for the accused to make 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
(h) The effect of the determination on the integrity of the trial process.
An in-depth evaluation of each factor is not required, but must be taken into consideration to the extent to which they apply in the particular case.
The majority in Mills, supra, recognized that the applicant is likely in the difficult position of making submissions on the importance of records which the defence has not seen. The applicant’s rights must prevail where lack of production would render him unable to make full answer and defence, as this is necessary to avoid convicting the innocent. Defence counsel will want to focus on the impact non-disclosure would have on the right to make full answer and defence under s 7 of the Charter, which is linked to other principles of fundamental justice, including the presumption of innocence and the right to a fair trial. With respect to first party disclosure, the case law is clear that non-disclosure of relevant information prejudices the ability to make full answer and defence. In the context of 278, this is more centrally-implicated where the information contained in a record is part of the case to meet or where its potential probative value is high.
The defence will want to submit that real prejudice will be attracted by non-disclosure to the court (and, subsequently, to the applicant) in terms of the applicant’s inability to advance a defence or meet the Crown’s case. This can be accomplished by emphasizing the prejudicial impact non-disclosure will have on defence strategy and tactics. For example, Defence counsel might submit that disclosure will allow counsel to prepare effectively for cross-examination, to make an informed decision on calling other witnesses, or make an informed decision on whether to bring other applications, such as an application to admit evidence under s 278.93 of the Code, which may or may not already be in the applicant’s possession.
Defence counsel will want to emphasize that, in keeping with the Supreme Court of Canada’s decision in Southman Inc., the complainant’s privacy interests can be limited in accordance with reasonable searches. This supports the search for truth and the interests of justice. The nature of the particular privacy interest is highly relevant analysis. The Court in Mills, supra noted that the complainant’s Charter-protected values are most directly at stake where confidential information is at issue, which concerns the complainant’s personal identity or involves a confidential relationship. The defence will want to emphasize why the records attract minimal or residual privacy interests, or otherwise emphasize how prejudice is negligible in the circumstances. For example, defence counsel may want to highlight the manner in which information contained in a record was collected if this was accomplished pursuant to an investigatory process, such as CPS or police investigation. This limits potential prejudice to the complainant.
Ultimately, the respective interests of the applicant and the complainant are understood as competing interests, which are reconciled depending on the facts of the case. In certain cases, the balance is properly struck by ordering disclosure, while the proper balance might militate against this in another case. Where the balance falls is fact-driven and contextual, but in each case, the process should be fair.
If the trial judge concludes that it is necessary to examine the records to determine whether they should be produced so as to enable the applicant to make full answer and defence, then production to the court is necessary in the interests of justice. On the other hand, in borderline cases where the trial judge is satisfied that the records are likely relevant, but is uncertain about whether production is necessary to full answer and defence, the case law provides that the court should err on the side of caution and rule in favour of inspecting the records. This is because the trial judge has the discretion to make whatever order is necessary in the interests of justice. Defence counsel should emphasize that a real possibility of the denial of the right to make full answer and defence is never consistent with the interests of justice.
If the requirements under s 278.5(1) of the Code are met, the record is produced to the trial judge for review. The application then proceeds to the second stage where the issue is whether the records should be produced to the accused pursuant to s 278.7 of the Code. The records are producible to the accused if the trial judge is satisfied that they are likely relevant to a trial issue or to the competency of a witness to testify. Production to the accused must be necessary in the interests of justice. Similar to the analysis under s 278.5(1), this involves consideration of the salutary and deleterious effects an order would have on the accused’s right to full answer and defence, as well as on the complainant’s right to privacy, personal security, and equality. The factors enumerated under s 278.5(2) of the Code are relevant to this analysis.
The trial judge has the discretion to impose conditions on the production awarded to the accused pursuant to s 278.7(3)(a)—(f) of the Code to protect the complainant’s privacy, personal security, and equality interests. For example, the trial judge can edit or sever information, as well as impose restrictions on disclosure to third parties. Defence counsel may be inclined to submit that the conditions imposed could be used to protect the complainant’s privacy, thereby reducing any prejudice potentially attracted by production to the defence.