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Criminal - Sexual Offences - Disclosure [CCC s.278.1-278.97]. R. v. D.V.
In R. v. D.V. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here where the appellant sought "production of private records pertaining to a sexual assault complainant" - here at the appeal stage, where "(t)here was no application for production of records at trial".
Here the court considers the "comprehensive scheme governing production of private records in sexual offence prosecutions" [CCC s.278.1-278.97], and the legal test for such private disclosure, in this appeal context:Application of the Statutory Regime
[10] The Criminal Code contains a comprehensive scheme governing production of private records in sexual offence prosecutions. Sections 278.1 to 278.97 set out the procedure to be followed, and the tests to be applied at each stage of the process. These provisions aim to strike a proper balance between competing interests: the right of an accused to full answer and defence and a fair trial; and the right of a complainant to privacy, dignity, and equality.
[11] When an application is brought at trial, it must comply with the rigours of the Criminal Code regime. Not so when the application is brought for the first time on appeal. The statutory scheme expressly restricts itself to applications heard by trial judges.
[12] The opening words of s. 278.2(1) of the Criminal Code are broad. The provision sets out a general prohibition on production of a record, except in accordance with the scheme, “in any proceedings in respect of” a designated offence:278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: [Emphasis added.] [13] While the prohibition on production applies to “any proceedings”, s. 278.3 provides that an application for production must be brought before the trial judge, the “judge before whom the accused is to be, or is being, tried”: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.
(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. [14] Thus, the statutory regime contemplates that applications will be heard only by trial judges. This does not mean that such applications can never be brought on appeal. It simply means that, prior to conviction, trial is the venue of choice. Jurisdiction does not reside, for example, in a judge presiding over a preliminary inquiry.
[15] Because the statutory regime expressly refers to hearings before trial judges, it does not, on its face, purport to bind appellate courts. When it comes to appeals, the operative provision is s. 683(1)(a) of the Criminal Code. This provision empowers an appellate court to “order the production of any writing, exhibit or other thing connected with the proceedings”, where the court is satisfied that production is “in the interests of justice.” The “interests of justice” will vary according to context.
[16] The test for production under s. 683(1)(a) is well settled in Ontario. In Trotta, Doherty J.A. set out a two-part test to be met by the party seeking production. That test will be discussed below. For present purposes, it suffices to observe that the test in Trotta cannot, standing alone, govern this setting. That test must be modified and adapted to account for the special privacy interests that attach to complainants’ records in sexual offence cases.
[17] The necessary modifications to the Trotta test are to be found in the statutory framework set out in ss. 278.1 to 278.97 of the Criminal Code. The statutory regime does not, as a matter of law, apply to applications brought on appeal. However, it should, as a matter of policy, inform the process for determining whether production on appeal is in the interests of justice.
[18] There is much to commend the principles, policies, and practices reflected in the Criminal Code regime. Parliament tailored the scheme to address the exigencies of sexual offence prosecutions and to respond to historical mistreatment of complainants and witnesses. These animating objectives are as important on appeal as they are at trial.
[19] Historically, courtrooms were hostile environments for sexual assault complainants. This was attributable to anachronistic notions about gender, morality, and sexuality. Pernicious myths and stereotypes flourished as did offensive questioning techniques that improperly invaded the privacy and dignity of complainants.
[20] In some cases, defence counsel used tactics to demean, intimidate or otherwise discourage complainants from participating in the prosecution. Such tactics included unmeritorious requests to access private information of, or pertaining to, the complainant. These strategies not only deterred complainants who were involved in ongoing prosecutions. They had the ancillary effect of discouraging other individuals from coming report to report sexual violence. It verges on trite to observe that sexual offences are among the most underreported of all crimes. As the Supreme Court has observed, “[m]ost victims of sexual offences do not report such crimes; and for those that do, only a fraction of reported offences result in a completed prosecution”: R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577, at para. 2. See also R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 42.
[21] It was in direct response to these tactics that Parliament enacted the statutory regime in the Criminal Code, originally consisting of ss. 278.1 to 278.91, and now consisting of ss. 278.1 to 278.97 of the Code. In R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, the Supreme Court upheld the provisions as constitutional, commenting, at para. 96, that: “In enacting Bill C-46, Parliament was concerned with preserving an accused’s access to private records that may be relevant to an issue on trial, while protecting the right to privacy of complainants and witnesses to the greatest extent possible.”
[22] The Supreme Court has since re-affirmed the importance of the regime and its underlying objectives. In J.J., Moldaver J. observed that this legislation “sought to restrict what had become a routine practice — defence counsel seeking production of complainants’ private records in order to engage in invasive attacks on their character”: at para. 6. Likewise, in Kruk, Martin J. described how “[a]mendments such as these appropriately balance respect for complainants’ dignity, privacy, and equality and the fundamental right of the accused to the presumption of innocence and a fair trial and they have been endorsed as constitutionally compliant by this Court”: at para. 40 (citations omitted).
[23] Since Mills was decided, the statutory regime has been augmented to offer additional protections to complainants in applications to introduce evidence of other sexual activity, under s. 276 of the Criminal Code, and applications to introduce records in the possession of the accused, under s. 278.92 of the Code. Those provisions are not before us, but they further exemplify the increased recognition of complainants’ rights in cases of sexual violence.
[24] To date, those cases that have considered the issue concluded that the statutory regime in the Criminal Code, while not technically applicable, should inform the process used on appeal. In R. v. Davies, 2022 BCCA 103, 412 C.C.C. (3d) 375, the appellant sought to adduce other sexual history of the complainant as fresh evidence on appeal. Bennett J.A., writing for the British Columbia Court of Appeal, ruled that, while the Criminal Code provisions, including s. 276, do not strictly apply on appeal, they should, in their purpose and effect, inform the process at para. 18. More recently, in R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, O’Bonsawin J. expressly adopted Bennett J.A.’s comment in Davies that the “substantive purpose” of the provisions, “protecting the dignity and privacy of complainants, is not limited to the trial process”: at para. 69 (internal quotations omitted; emphasis added by O’Bonsawin J.). O’Bonsawin J. added that “[t]he complainant’s personal interest privacy and dignity, and the public’s shared interest in the same, are still present on appeal”: at para. 69.
[25] Thus, the protections afforded complainants in sexual offence prosecutions, and the objectives they serve, extend beyond the trial context. In this case, the appellant acknowledged the special interests at play and agreed that certain features of the statutory scheme should apply. All counsel agreed that, whether at trial or on appeal, the competing interests of both the complainant and accused must be properly accounted for. At paras 27-28 the court considers whether such appellate private disclosure procedures should be held in camera, at paras 29-37 whether there should be a publication ban, and at paras 38-46 the extend to which the complainant should participate. Next the court considers the legal test for such private disclosure:THE TEST FOR PRODUCTION
[47] Having addressed certain procedural issues, I will now turn to the test for production. The discussion begins with the reasons of Doherty J.A. in Trotta, where he summarized the test as follows, at para. 25:To obtain production, the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce. The applicant must show that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence. By assist, I mean yield material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence.
The applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.
Unless the appellant can make both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and consequently, no reason for this court to require the Crown to disclose it. [Footnotes omitted.] [48] At the first stage of the test, the applicant must demonstrate a connection between the request for production and a fresh evidence application. Doherty J.A. cautioned, at para. 26, that the applicant will often have very limited knowledge of what is in the material sought to be produced. The court should take that disadvantage into account when assessing the first limb of the test.
[49] As for the second limb, the applicant must demonstrate a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. It is here that the criteria from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, which inform the determination of whether evidence is capable of being admitted as fresh evidence on appeal, are engaged. Briefly put, the party seeking to introduce fresh evidence must show that the proposed evidence is credible, could not have been obtained through reasonable diligence before trial, and if admitted, would likely be conclusive of an issue in the appeal.
[50] While Trotta is the starting point for production requests, it does not address the special privacy interests that can arise in different contexts. These special interests were at stake in R. v. Jaser, 2023 ONCA 24. In Jaser, the appellant sought production of psychiatric records pertaining to his co-accused on the basis that this individual may have been unfit to stand trial. The appellant argued that he was entitled to the records on the basis that he was impacted by various decisions made by the co-accused. If the co-accused was unfit to stand trial, this would have implications for the appellant’s trial and conviction.
[51] In Jaser, at para. 17, this court modified the test in Trotta by incorporating the test governing production of third party records in non-sexual offence cases:In addition, because the psychiatric assessment in issue is a report pertaining to Esseghaier, a non-party to the appeal, and Esseghaier’s privacy interests are engaged, the factors relevant to the production of a third-party record must also be considered: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 28-44. [52] The court in Jaser found that the test from Trotta was satisfied. The report was the very fresh evidence that the appellant wished to tender on appeal, and applying Palmer, he demonstrated a prima facie entitlement to production of the psychiatric assessment. Having satisfied the foundational test in Trotta, the court went on to consider the co-accused’s privacy interest in his psychiatric evaluation. In particular, the court had to consider whether the co-accused’s privacy interest overrode the appellant’s interest in production, and further, whether there were available steps that could protect the co‑accused’s interests. Applying McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the court in Jaser concluded that the evaluation should be produced to the court for its inspection to determine whether it should be produced and what steps, if any, should be taken to mitigate the impact of production on privacy: at paras. 29-30.
[53] The analysis in Jaser is directly relevant to this case. Like this case, it involved an application for production of private records. Like this case, the records had not been sought at trial, and were requested for the first time on appeal. Like this case, Jaser involved special privacy interests enjoyed by a third party who was not before the court.
[54] The fundamental difference between Jaser and this case is that, while Jaser concerned third party privacy interests, it did not engage the heightened protections enjoyed by complainants in sexual offences. In Jaser, the court supplemented Trotta by incorporating the common law procedure from McNeil. In this case, the pertinent authority is not McNeil, but rather, Mills, or more accurately, the statutory regime that was upheld as constitutional in Mills.
[55] The processes in McNeil and Mills are related but distinct, not only as it relates to process, but to the test for production. At common law, the first stage requires the party seeking production to establish that the records are “likely relevant.” If that test is met, the court will produce the records for its own review. In Jaser, satisfaction of the Trotta test was deemed the equivalent of likely relevance and justified a review of the record by the court.
[56] The test for production is more nuanced and multifactorial in the context of sexual offences. Pursuant to s. 278.5(2) of the Criminal Code, the court must consider a number of factors in determining whether to produce the records for review by the court. Some of these are case specific adjudicative factors. Others are policy-based considerations “tailored to counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings”: McNeil, at para. 31.
[57] For ease of reference, Section 278.5(2) of the Criminal Code is reproduced below:(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, 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:
(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. [58] As is apparent, the Mills regime contemplates a more robust balancing of competing interests than the common law test does in McNeil. Therefore, when third party records are sought on appeal, in the context of designated sexual offences, the test in Trotta begins but does not end the analysis. An appellant seeking production in these circumstances must do more than establish likely relevance. Even when the Trotta test is met, the court must go on to consider the factors set out in s. 278.5(2) of the Criminal Code, modified to suit the appellate context. It is only where the balancing of all of these factors favours production that the court is at liberty to review the records and determine what if any portions should be disclosed.
[59] In sum, an appellant seeking production of private records, as defined under s. 278.1 of the Criminal Code, at first instance on appeal must satisfy the two-step framework established in Trotta. This requires the appellant to demonstrate: (1) a reasonable possibility that the request for production will assist their proposed fresh evidence application, and (2) a reasonably possibility that the records sought may be received as fresh evidence on appeal. If the test in Trotta is not satisfied, the request for production on appeal should be dismissed without the necessity of considering the statutory factors in s. 278.5. if the test in Trotta is satisfied, the court must then go on to weigh the various factors set out in 278.5(2) of the Criminal Code, modified to suit the appellate context. If those factors favour production, the court is empowered to review the contents of the records and, informed by the contents, repeat the balancing exercise to determine production to the parties is warranted.
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