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existing s. 276(3), with the addition of a new factor, subsection (c), “society’s
interest in encouraging the obtaining of treatment by complainants of sexual
offences”.20
HOW ARE COURTS APPLYING THE NEW REGIME?
The early case law on the first-party records regime falls into two groups:
cases dealing with whether a document constitutes a “record” under s. 278.1
(which triggers the more formal test under s. 278.92); and cases dealing
with admission of the record. Section 278.1 defines a “record” as “any form
of record that contains personal information for which there is a reasonable
expectation of privacy” and may include any document aside from one
“made by persons responsible for the investigation or prosecution of the
offence”.21
The number of cases on whether a document is a “record” under s. 278.1
is small at present, but patterns are emerging.22 First, most of the cases do
not involve communications of a sexual nature but pertain instead to a variety
of casual texts, photos or social media posts, reflecting the wide potential
ambit of the first-party records regime. Second, because s. 278.1
involves a consideration of only privacy, courts conduct the privacy analysis
in isolation, without weighing privacy against the potential relevance of
the evidence. Third, with the potential scope of the regime being quite
broad, courts tend to apply the “records” test narrowly, in most cases declining
to find a document to be private. Finally, courts decide the question of
privacy using a form of “risk analysis”, as contemplated (and rejected in the
s. 8 Charter context) in R. v. Duarte.23 Documents are not private if the complainant
shared them knowing they might be disclosed. Put another way,
the emblematic private document in this context appears to be something
like a therapeutic record or a diary, rather than a casual text, a non-sexual
photo or a Facebook posting—i.e., documents meant to be shared only with
the recipient.
The case law on whether to admit a first-party record is also relatively
small, but patterns are discernable here as well.24 Most records are admitted.
The preference to admit is so clear and consistent in the early cases as
to suggest almost a presumption of admissibility. Courts exclude records in
two instances: where they contain physically sexual content or are clearly
irrelevant. Yet, the cases also suggest that the evidence must be relevant
and probative, and both to a significant degree. This qualification may be
due in part to the requirement in s. 278.94(4) that the court provide reasons
for its decision under s. 278.92(2) and, specifically, where the court admits
a record, to “state the manner in which that evidence is expected to be relevant
to an issue at trial”.25