Privacy is a major consideration in court proceedings, but there are some cases where protected information may be used in court. If you think your accuser’s private health information could help your case, it will take the help of a sexual assault defence lawyer to convince the judge to allow your request.

Third-Party Records You Could Request as Evidence

Section 278 of the Criminal Code of Canada limits the use of protected information as evidence in sexual assault cases. These limitations apply to any third-party records that contain personal information and carry a reasonable expectation of privacy, including:

  • Records of medical, psychiatric, rehabilitative, or therapeutic treatment
  • College transcripts or education documents
  • Employment records such as pay stubs or employee reviews
  • Child welfare reports, adoption agency records, or social services documentation
  • Text messages or emails between private parties
  • Diaries or personal journals
  • Any record protected by an Act of Parliament or a provincial legislature

Keep in mind that Canada Law restricts the use of an accuser’s past sexual activity as evidence in a sexual assault case. If you requested a third-party record in order to argue that the accuser consented to the act for which you were arrested or to undermine the accuser based on alleged promiscuity, your request will likely be denied.

How Can I Obtain Third-Party Records?

You will have to make a formal request for any third-party records used in your defence. This means submitting a written application to the judge stating what the record is, who has it, and why you have good reason to think the record is important to your defence. You also have to send copies of the application to the Crown prosecutor, your accuser, and the record holder.

After the application, the judge will hold a hearing to decide if the record will be allowed in court. Your lawyer, the accuser, the Crown prosecutor, and the record holder will all have a chance to explain to the judge why the record should or shouldn’t be admitted. If the judge has reason to believe the record likely contains relevant information, they may look at the record to decide if it’s important to the case.

After the judge has examined the record, they could:

  • Approve the request for the third-party record
  • Deny the request for the third-party record
  • Apply conditions to the use of the third-party record, such as removing certain sections or irrelevant information before releasing it to the defence
  • Hold another hearing before making a decision.

How a Judge Decides If an Accuser’s Medical Records Are Relevant

There are high standards for the admission of protected information. It’s not enough for a record to merely exist, be created around the time of the offence, or even be related to the credibility of the accuser or a witness. The record must be of such material value that it could potentially jeopardize a defendant’s chance of receiving justice.

Before deciding if a defendant will get a third-party record, the judge must consider how the release of the record might affect:

  • The accuser’s right to privacy
  • The accused’s right to defend themselves
  • The public interest
  • The treatment of victims reporting sex crimes

Learn Your Options From an Experienced Criminal Defence Lawyer

Documents produced by officials during the investigation or prosecution of an offence are not considered third-party records. These include police reports, notes made by law enforcement, or records created by the Crown prosecutor. You do not need permission to request copies of these documents, although the prosecution may be reluctant to provide them.

No matter what evidence you intend to use in court, you will need an aggressive Ontario criminal defence lawyer to get the most favourable outcome in your case and do everything possible to avoid conviction. At Kruse Law Firm, we fight aggressively to minimize the damage of a sexual assault accusation and get your life back on track. Contact us today at 800-699-0806 to arrange your free case review.

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