Limiting the disclosure of personal information about a victim of sexual violence

The Criminal Code protects your privacy if you are the victim in a case of sexual assault or another form of sexual violence (crime of a sexual nature).

The disclosure of your personal information to the accused, or to his or her lawyer (defence lawyer), is limited by certain rules.

The information may be contained in

• the evidence collected by the police and forwarded to the prosecution;
• the records of public or private organizations, such as your medical record or the notes taken by a psychologist.

At the start of the judicial process, the criminal and penal prosecuting attorney (the prosecutor) sends all the relevant evidence collected by the police and in the prosecutor’s possession to the defence lawyer. During the proceedings, any addition evidence received is also forwarded to the defence.

The evidence may include written materials, video recordings, photographs, audio recordings, etc.

In the evidence, the prosecutor redacts (blanks out)

• any information which, if disclosed, could place your life or security in danger;
• your contact information, except your first and last names (or your initials);
• intimate images in which you appear.

Records concerning you may also be held by another person or organization apart from the prosecutor, the accused or the defence lawyer. The records may be produced in evidence during the trial.

Some of these records may contain personal information concerning you, such as

• notes taken by your therapist, psychologist or doctor;
• a medical record or documents produced by an institution where you receive medical treatment or care;
• records belonging to child protection or social service organizations such as a youth centre, or belonging to your employer or a school you attend;
• your personal diary, etc.

During proceedings for a crime of a sexual nature, the prosecutor cannot disclose your personal records, except with your consent or if authorized by the judge.

The prosecutor may want to use a record to support the evidence against the accused, such as a medical record describing the injuries you sustained during an assault.

In such a case, you can consent to the disclosure of your personal record by the prosecutor to the accused or the defence lawyer by signing a form.

You are not required to agree to the disclosure of your record to the accused. However, the prosecutor must inform the accused that the record is in the prosecutor’s possession or control.

If you sign the form, the prosecutor will disclose the record for which you have given consent to the accused.

Before making your decision, you can discuss the situation with the caseworker from the support organization providing you with assistance.

You can also consult a lawyer free of charge, regardless of your financial circumstances.

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The accused, or the defence lawyer, may also apply in writing to the judge to see records that contain your personal information.

The application from the accused must specify

• the record requested;
• the reason why the accused believes that the record is important for his or her defence.

The accused must send a copy of the application to you, the prosecutor, and the person or organization that holds the record.

After receiving the application from the accused or the defence lawyer, the judge must assess

1. whether to order the production of the record for review by the judge;
2. whether the record or part of the record should be disclosed to the accused or the defence lawyer.

The judge holds a court hearing, in the absence of the public, to decide whether to review the record.

During this hearing, the accused or the defence lawyer explains to the judge why the record is needed. The judge will then ask for the prosecutor’s point of view.

The holder of the record (a hospital, employer, youth centre, etc.), and you as the victim, can also express your point of view during the hearing.

If you prefer, you can be represented by a lawyer, who will explain your concerns to the judge on your behalf. The lawyer can also explain the reasons why you do not want the record to be disclosed to the accused.

The judge may authorize the lawyer to represent you free of charge, regardless of your financial situation.

To decide whether or not to review the record, the judge must find that

• the application contains all the necessary elements;
• the application has been served on the people concerned;
• the accused has established that the record is relevant to an issue at trial or to your competence to testify;
• the production of the record is necessary in the interests of justice.

After hearing the parties, the judge may decide that the record will not be disclosed to the accused, or to review the record before making a decision.

The judge, if he or she decides to review the record, will order the person who has possession to produce it. The judge will then review it to assess whether the record or part of the record should be disclosed to the accused.

The judge’s analysis takes into account

• the extent to which the record is necessary for the accused to make a full answer and defence;
• the probative value of the record;
• your reasonable expectation of privacy with respect to the record;
• the potentially negative impact of disclosure to the personal dignity and right to privacy of any person to whom the record relates;
• the effect of the decision on the integrity of the trial process;
• the interest of victims of sexual violence
  • in obtaining treatment for trauma;
  • in ensuring that information about the treatment is not disclosed.

The judge will also take into account whether disclosure of the record

• is based on a discriminatory belief or bias, rather than on fact;
• would discourage the reporting to sexual offences.

The judge may once again hold a hearing in camera if it will assist in making the decision.

You can attend the hearing to express your point of view, or you may be represented by a lawyer. The judge may authorize the lawyer to represent you free of charge, regardless of your financial situation.

The judge may decide to authorize, or not to authorize, the disclosure of the record to the accused.

The authorization may include conditions, such as removing some information from the record, or prohibiting the accused and the defence lawyer from disclosing the contents of the record to any other person.

The judge authorizes the disclosure of the record or part of the record if

• the record is relevant to an issue at trial or to the victim’s competence to testify;
• disclosure is necessary in the interests of justice.