What is a third-party record?
A third-party record is a document that has personal information about either the victim or a witness connected to your case. It's something that the person could reasonably expect to be kept private. Some examples of third-party records are:
- notes taken by a counsellor, therapist, psychologist or doctor;
- hospital records;
- records from a child welfare or social service agency;
- information from an employer or school; and
- a diary or personal journal.
How do third-party records help my defence?
Third-party records can serve various purposes, including calling the complainant’s credibility into question. For example, perhaps they had counselling after an alleged sexual assault. If there is information that can confirm the complainant presented a different version about the allegation as compared to what they told police, then an application may be made to obtain those records.
If the complainant is known to have mental health issues that related to her credibility or the reliability of her statements, then an application may be made for those records.
The request for third-party documents must be very specific and cannot be a fishing expedition, launched in the hope of randomly finding damaging evidence. The complexity of filing an effective third-party record application is just one reason to retain me to represent during this process.
How do I obtain third-party records?
As your lawyer, I will prepare a written application for the documents. It will clearly state what third-party records are sought and why they are important to your defence. Once I have completed that application, copies are provided to the Crown prosecutor, the complainant’s lawyer and whoever is in possession of the third-party record in question.
After copies of the application are distributed, the judge will hold a hearing to determine if the records are producible. I will explain why the records are needed in your defence. The other relevant parties are also allowed to present their views on the records’ admissibility. The judge will then decide if the records should be released.
According to the Criminal Code, the judge can order third-party records to be turned over if:
- the application meets the criteria outlined in the legislation;
- the record is “likely relevant” to your defence; and
- production is necessary “in the interests of justice.
The Crown prosecutor can also use a third-party record during the trial. For example, hospital records that detail the complainant’s physical condition could bolster their case, depending on what they show.
Are there limits on what is disclosed?
A 1995 Supreme Court of Canada judgment set out a two-stage process of how and when third-party records should be produced in sexual assault cases. The Court held that for medical and counselling records of a complainant to be released if:
- the applicant establishes, without seeing them, that the records are likely to be relevant to the case; and
- the judge reviews the records and decides to disclose them, after balancing the accused’s right to make full answer and defence and the complainant’s right to privacy.
Section 278.7 (3) of the Criminal Code calls on judges to impose conditions on the release of third-party records to protect privacy rights “to the greatest extent possible.” Conditions the judge may impose include:
- that the record be edited as directed by the judge;
- that counsel for the accused does not disclose the contents of the record to any other person unless that disclosure is first approved by the court;
- that the record be viewed only at the offices of the court;
- that no copies of the record be made; and
- information regarding any person named in the record, such as their address and place of employment, not be shown.
Do third-party records make a difference at trial?
In 2016, a prominent national radio host faced multiple sexual assault allegations involving six women in Toronto. After a short trial, he was acquitted, with the judge ruling the Crown failed to establish his guilt beyond a reasonable doubt. According to court documents, one of the reasons for the doubt was third-party records his lawyer obtained, showing that before the trial, two of the complainants exchanged approximately 5,000 emails between them about the evidence they were to give. As the judge wrote: “The extreme dedication to bringing down [the accused] is evidenced vividly in the email correspondence … while this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution."
Are electronic messages third-party records?
Generally speaking, people accused of sexual assault cannot present private electronic messages from the complainant as evidence in sexual assault trials unless they are successful with a third-party application. That is because the sender is deemed to have an expectation of privacy when they send someone an email or text. This legislation came into effect after the above-mentioned prominent national radio host case was decided.
However, in 2019 a provincial court judge in Alberta ruled the legislation “goes too far … it violates [the accused’s] right to silence, and right to make full answer and defence in requiring him to reveal evidence in his possession and how it will be used at trial beforehand."
That decision followed a Saskatchewan lower court decision where the judge noted the laws concerning electronic correspondence “seriously limit an accused person’s ability to effectively challenge the veracity of a complainant.”
Why you need me on your side
Third-party record applications are complex and a poorly constructed one will not be granted. With sexual assault cases, I know how to avoid invoking the “twin myths” (the idea that complainants with a prior sexual history are more likely to have consented and are less worthy of belief) when making an application. If you have been charged with sexual assault, contact me for a free consultation.