A section 278 application deals with the production of third-party records in cases involving sexual offences. Some of the most important evidence in a sexual assault case is contained in records that are not in the possession of the defence or the Crown. Therapy notes, counselling records, child welfare files, school records, medical records, and similar documents may contain information relevant to credibility, reliability, or the ability to accurately recall events.
Section 278 of the Criminal Code governs when, if ever, the defence may obtain access to those records.
What Section 278 Covers
Section 278.1 defines a “record” as any form of record that contains personal information for which there is a reasonable expectation of privacy. The section provides a broad list of examples, including:
- Medical records
- Psychiatric records
- Therapeutic records
- Counselling records
- Educational records
- Employment records
- Child welfare records
- Adoption records
- Personal journals or diaries
If a document falls within this definition, section 278 governs whether the defence may obtain access to it. The accused cannot obtain these records directly by subpoena. Any request for production must proceed through the section 278 application process.
How the Application Works
A section 278 application begins with a written notice of application served on the Crown, the complainant, and the third-party record holder. The notice must set out detailed particulars of the records sought, the basis for the claim that the records are likely relevant, and the issues at trial to which the records relate.
The hearing is held in private and is not open to the public. The complainant has the right to participate through counsel, and the third-party record holder may also participate.
The Two-Stage Test
Section 278 of the Criminal Code establishes a two-stage test for the admissibility and production of records in sexual offence cases, which is derived from the Supreme Court of Canada decisions in R v O’Connor and R v Mills.
Stage One: Production to the Court
At Stage One, the judge decides whether the records should be produced to the court for review. The defence must establish that the records are likely relevant to an issue at trial or to the competence of a witness, and that production is necessary in the interests of justice.
The Criminal Code sets out a number of factors the judge must consider, including the accused’s right to make full answer and defence, the probative value of the record, the nature and extent of the reasonable expectation of privacy, whether the application is based on discriminatory belief or bias, and the potential prejudice to the dignity, privacy, or security of the person to whom the record relates.
Several common arguments will not meet this threshold. It is not enough to say the record exists, that the complainant has been in therapy, or that the record might contain something useful. The defence must identify a concrete connection between the records sought and a specific issue at trial.
Stage Two: Production to the Defence
If the records are produced to the court, the judge reviews them privately and holds a second hearing. The judge then decides what, if any, portions of the records should be disclosed to the defence. The same balancing factors apply, but the focus shifts to the actual contents of the records rather than the defence’s speculative assertions.
The judge has the discretion to order full production, partial production, production with redactions, or no production at all, and may impose conditions on how the records are used at trial.
Common Pitfalls
Section 278 applications often fail due to avoidable mistakes:
Insufficient particulars: Generic descriptions of the records or broad assertions of relevance will not survive Stage One. The application must be specific and tied to a live issue at trial
Late filing: The Criminal Code requires at least 60 days’ notice unless the court allows a shorter period for good reason. Applications brought close to trial are often unsuccessful
Improper service: The application must be properly served on the Crown, the complainant, and the record holder. Failure to serve any of these parties can create serious procedural issues
Improper purpose: Applications that resemble a fishing expedition will be dismissed. The defence must establish a concrete link between the records sought and a specific issue at trial
Why Section 278 Is So Important
Records can significantly affect the outcome of a case. Therapy notes may document inconsistent accounts of events. School records may confirm or undermine timelines. Counselling notes may contain different versions of what was reported. Often, this information is not available elsewhere.
At the same time, the privacy interests at stake are substantial. Individuals who attend therapy or counselling do so with an expectation of confidentiality. Children’s records, in particular, attract heightened protection. Section 278 balances these competing interests through a structured legal process. It is detailed and technical work.
A successful application can meaningfully affect how a case is litigated. A poorly prepared one may prevent access to records that are genuinely relevant to the defence and important to the issues at trial.
Need to access private records in your case?
Section 278 applications are among the most complex and demanding procedures in criminal law. Contact us to discuss your case and whether any records may be relevant to your defence.
