Production of Third-Party Records

This article is designed to provide a brief overview of the third-party records application process that occurs in criminal proceedings, particularly those involving sexual offences.

What is a Third-Party Record?

A third-party record is a document, or some other type of record, containing personal information about the Victim or another witness, which is out of the Accused’s possession and in the possession of a third-party. It is a record that the Victim could reasonably expect to be kept private. In other words, it is something that the Victim believed would never be seen by other people.

Examples of third-party records include the following:

  • notes by a counsellor, therapist, psychologist or doctor
  • records from a child welfare agency
  • records from an employer or school
  • personal journals
  • hospital records

Applying for Production of a Third-Party Record

The Accused can ask for production of a third-party record by submitting a written application to the Judge along with a subpoena.

The application must explain what the third-party record is, and why the Accused believes it is likely relevant for their defence.

A subpoena is an order issued by a Justice to attend court. If a party receives a subpoena, they must go to court and answer questions about the record in question.

The Accused must ensure that the Record Holder gets a copy of the third-party record application and subpoena. Altogether, the Accused must ensure that the following parties get a copy of the application and subpoena: the Crown; the Victim; and the Record Holder

The Judge Decides Whether the Record Will be Produced

The production of third-party records requires a two-stage process as outlined by sections 278.1-278.91 of the Criminal Code, and that process is governed by the Supreme Court of Canada’s decision in R. v. Mills.

After the application and subpoena have been served and filed, the Judge will hold a hearing in court. This provides the opportunity for the Accused to explain to the Judge why they want the record; and for the Record Holder, the Crown, and the Victim to make their submissions to the Judge.

The Judge will follow the regime set out in the Criminal Code and the Supreme Court’s decision in R. v. Mills. The Judge will listen to all of the submissions and decide whether the Accused has presented good reasons for believing that the record is likely relevant to the criminal proceedings and is important for their right to make full answer and defence. The mere existence of the record is not enough for the Accused to get the record.

After the hearing, the Judge can decide that the Record Holder does not have to give the record to the Accused, or that the Record Holder must give the record to the Judge to review. If the Judge is of the view that the Accused has provided good reasons for believing the record is relevant and important for their right to make full answer and defence, the Judge will likely want to see the record.

If the Judge does decide to look at the record, the Judge can then order the following:

  • another hearing before making a decision
  • the Accused will not get the third-party record
  • the Accused will get the third-party record
  • the Accused will get the third-party record on certain conditions (e.g. only specific portions may be produced to the Accused).

In deciding whether the Accused will be given the third-party record, the Judge will consider several factors including the victim’s right to privacy; the Accused’s right to make full answer and defence; and society’s interest in having victims report sexual offences.

If you have questions about third-party records applications and are facing criminal charges, contact a criminal defence lawyer in your jurisdiction as soon as possible. Fahd Ahmed is a criminal defence lawyer based in Toronto, ON and defends against all criminal charges.

Blog posts are not legal advice.

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