In 2018, Parliament added a new regime to the Criminal Code dealing with records already in the possession of the accused. Sections 278.92 to 278.94 set out a process for when the defence wants to use records relating to the complainant that contain information in which the complainant has a reasonable expectation of privacy.
The regime may apply to texts, emails, social media messages, photos, videos, and similar material, depending on the circumstances. Its purpose is to balance the accused’s right to make full answer and defence with the complainant’s privacy and dignity interests, and to ensure that private information is only used where it is relevant and meets the legal threshold for admission.
This regime came under intense scrutiny and was upheld by the Supreme Court of Canada in R v J.J. in 2022. The Court confirmed that it is consistent with the Charter because it allows relevant evidence to be admitted while protecting privacy through structured safeguards. The decision has shaped how courts handle private communications in sexual assault trials.
What Section 278.92 Covers
Section 278.92 applies where the accused intends to use a record at trial. A “record” means any form of record containing personal information in which there is a reasonable expectation of privacy. It uses the same broad definition found in section 278.1. Examples of records covered by the section include:
- Text messages between the accused and the complainant
- Emails or direct messages on social media platforms
- Photographs or videos involving the complainant
- Voice recordings
- Diaries or written communications
In these cases, the accused already has possession of the material. The issue is whether it can be admitted in trial.
The Application Process
To use a record under section 278.92, the defence must file a written application at least seven days before the hearing. The application must set out detailed particulars of the record and explain why it should be admitted at trial. The process has two stages, similar to section 276.
Stage one is a written threshold review. The judge considers whether the application discloses sufficient grounds to proceed to a hearing.
Stage two is a closed hearing where the defence, the Crown, and the complainant through counsel make submissions. The judge then decides whether the record is admissible at trial.
The Test for Admissibility
The judge applies a framework similar to that used under section 276. The evidence must be relevant to a specific issue at trial, and its probative value must significantly outweigh the potential prejudice to the proper administration of justice.
In assessing admissibility, the judge considers factors including the accused’s right to make full answer and defence, the complainant’s privacy and dignity interests, the risk of myths and stereotypes, and the integrity of the trial process.
R v J.J. and the Constitutional Challenge
R v J.J. was a constitutional challenge to the section 278.92 regime. Defence counsel argued that the requirements for advance notice and complainant participation violated the accused’s right to a fair trial and right to silence.
The Supreme Court rejected the challenge in a majority decision. The Court held that the regime is a proportionate response to the privacy interests of complainants and the risks associated with the use of private records at trial without prior review. While the procedure does place obligations on the defence, the Court found those limits justified in light of the competing rights and societal interests at stake.
The decision confirms that the section 278.92 regime is constitutionally valid. Defence counsel must therefore plan for it in advance as part of trial strategy.
Where Section 278.92 Differs from Section 276
There is some overlap between the two regimes, but they address different issues. Section 276 applies to evidence of a complainant’s sexual activity other than the activity that forms the subject matter of the charge. The records do not need to be in the possession of the defence.
Section 278.92, by contrast, applies to records already in the possession of the accused where the complainant has a reasonable expectation of privacy. The content of the record does not need to be sexual in nature.
Some evidence may engage both regimes. For example, sexually explicit text messages between the parties may fall under section 276 as evidence of sexual activity, and also under section 278.92 as private records. In those cases, both applications may be required.
Practical Implications
Section 278.92 changes defence strategy in sexual assault cases in a significant way. The defence cannot simply confront the complainant with private messages during cross-examination. Any record the defence intends to use must be identified in advance through the application process.
This includes material that might otherwise emerge during trial, such as texts the defence hopes to put to the complainant in cross-examination. Counsel must therefore identify potentially relevant records early and bring applications well before trial. The statutory timelines, including the 60-day notice requirement, mean this work often needs to begin long before the trial date is fixed.
Not all seemingly helpful records will be admissible. Strategic planning must account for that reality. Even strong evidence is of no use if it cannot survive a section 278.92 application.
What This Means for Accused Persons
If you are charged with sexual assault and have texts, emails, photos, or other communications with the complainant, you should not assume they can simply be used at trial. The use of this material is governed by section 278.92, and admissibility depends on a formal application process. Counsel should review these records as early as possible in order to prepare any necessary applications in time.
It is also critical that no records are deleted or destroyed. Doing so may create separate legal consequences and can seriously undermine the defence. The right approach is to preserve all material and allow counsel to determine what is relevant and how it may be used.
Have records you think will help your defence?
Records in your possession can be important evidence, but only if the required applications are brought on time. Contact us to discuss your case and next steps.
