I’m here today to talk about what’s called “third party records applications”. This is a very common procedure under our criminal code.
Think of it this way: the complainant, or the victim of an alleged assault, sexual assault, aggravated assault, these types of offences. They have privacy interests in therepeutic records, their counselling records, their education records. As a lawyer, you want those records, but it’s not that easy. Under Section 278.2 of the Criminal Code, in advance of the trial you have to bring an application to see these records. It’s a very detailed application. It’s in writing – 20-30-40-50 pages long. And you have to show evidence that they have these records and they’re likely relevant. It’s a real Catch-22 because you don’t know what’s in these records but you have to show that they might be relevant.
The way to gather that evidence is at the preliminary hearing by cross-examining the complainant and setting it up before the trial that they have memory regression therapy – when did they go to counselling, what did they talk about in general terms, did they talk about the offence? You’re not allowed to get into specifics but you can set it up with some general questions. If you can do that, then you have a basis for the application in front of the judge – the trial judge – to hopefully get the records. But it’s not even easy there, it’s very difficult under Canadian law to get them. We often succeed when there is a basis for it. And the beauty of it is that sometimes you get the records and they show that the person is under treatment for lying, they’ve got bipolar problems – they’ve got all kind of problems that you can use to attack their credibility at trial.
But even if you don’t succeed, a lawyer needs to bring this. Number one, for due diligence. Equally important – you get to find out who the trial judge. Then, for example, if it’s a jury case and you like the trial judge you can re-elect. If you don’t like the trial judge, and this is where you need to know your local judges, you can stick with the jury. That’s the importance of bringing a third party records application. I’ve brought them many times throughout my career and had many successes winning my cases. I’ve had cases withdrawn because the complainants were shown to be liars in their records; in fact being treated for lying continually. That’s the beauty of it. Bring it every time when you have the basis for it.