What are third-party records and why are they important?

Third-party records are documents containing personal information about the victim or a witness connected to your case. They are something the person likely assumes will never be made public, since the information is often of a personal nature. Examples of third-party records are:

• notes taken by a counsellor, therapist, psychologist or doctor;
• hospital records;
• records from a child welfare or social service agency;
• records from an employer or school, and;
• the victim’s personal journals. 
• In certain cases, emails and other online correspondence

In some sexual assault cases, the accused may want to access those records as evidence, believing the information may be relevant to their defence. Obtaining these documents requires a detailed two-step approach that criminal lawyers with experience in this field, such as myself, can guide defendants through. But before we go into that process, let’s look at a high-profile case that shows the importance of third-party records.

‘Private’ emails are not so private

In 2016, a prominent national radio personality faced multiple sexual assault allegations involving six women in Toronto. After a short trial, he was acquitted, with the judge ruling there was insufficient evidence to establish proof beyond a reasonable doubt.

One of the reasons for the doubt was third-party records his lawyer obtained, showing two complainants had exchanged approximately 5,000 emails about the evidence they were to give. The disclosure of these private emails is noted in the judgment under the subhead “Possible collusion.” As the judge wrote: “The extreme dedication to bringing down [the accused] is evidenced vividly in the email correspondence … while this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution.”

Development of this legislation

The Department of Justice has studied various aspects of sexual assault for decades, including third-party records. A 1995 Supreme Court of Canada judgment set out a two-stage process of how and when these records should be produced. Following this decision, Parliament amended the Criminal Code in 1997 through Bill C-46, adding a section specifying what type of records this law would encompass. Those are: medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social serves records, personal journals and diaries, and records containing personal information that is protected by law.

The Criminal Code was further updated in 2018, removing or repealing passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms, as well as removing provisions that no longer have a place in criminal law. Changes also clarified the admissibility and use of a complainant’s record when in the possession of the accused, and provided a procedure that should be used in the circumstance.

In any application proceedings, the third party and the complainant both have standing and can be represented by counsel. While they are known as third-party applications, records may also reside with the complainant and be known as “personal records,” such as diaries.

The legislation clearly states that for all sexual offences, the defence is not entitled to disclosure of third-party records. However, defence can apply to have the court compel a third party to produce certain records if they are “likely relevant,” but more on those crucial words later.

Applying for a third-party record

The first thing to keep in mind is that almost anything can be considered a third-party record. Texts or Facebook messages may fall into the category, depending on how they were sent. If exchanged privately between two people, the court will probably rule they are third-party records, as compared to someone writing a message on their virtual wall, open for everyone to see.

Let’s use the example of a woman who privately messages a man and says, “That was great sex last night.” If she later decides to have him charged with sexual assault – and he comes to me for advice – I would tell him to make a printout of her messages pertaining to the night in question, as we will want to use those in court to show there was consent.

But before we can do that, I have to make a third-party record application to the court. The application must clearly state what the record is that I am seeking and why it is relevant to my client’s defence.

A difficult decision for the judge

After copies of the application are distributed, the judge convenes an in-camera courtroom hearing, meaning the public and the media are excluded.

Counsel for the accused will explain to the judge why the record is relevant to the case, with the Crown prosecutor and the accuser also given an opportunity to air their views. After hearing all statements, the judge will decide what should be done with the document. Just because it exists is not a good enough reason for it to be handed over to the defendant.

If the judge orders that the records be produced, the judge will review them and determine whether some or all of the records should be disclosed to the defence. The judge may impose limits to protect the interests of justice and the privacy of the person to whom the records relate. These limits are:

• that the record be edited as directed by the judge;
• that a copy of the record, rather than the original, be produced;
• that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;
• that the record be viewed only at the offices of the court;
• that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and
• that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.

If the victim was known to have mental health issues, the counsel for the defendant may ask to see her counselling records, since they may provide evidence that she has fabricated incidents in the past against other men. The request for any documents must be very specific in nature and cannot be a fishing expedition, where the defendant hopes damaging evidence will be randomly revealed in private records.

The complexity of filing an effective third-party record application is another reason to seek the advice of an experienced lawyer.

More about the two-step process

Upon receipt of an application, a judge must determine whether to require the third party to produce the requested records for review. According to the Criminal Code, the judge can order these records be turned over when these three criteria are met:

• the application meets the limiting criteria outlined in the legislation;
• the record is “likely relevant” to a trial issue or a witness testimony; and
• production is necessary “in the interests of justice.”

To make this determination, the judge considers these eight factors:

• the extent to which the record is necessary for the accused to make a full answer and defence;
• the probative value of the record;
• the nature and extent of the reasonable expectation of privacy with respect to the record;
• whether production of the record is based on a discriminatory belief or bias;
• the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
• society’s interest in encouraging the reporting of sexual offences;
• society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
• the effect of the determination on the integrity of the trial process.

In the second stage, the judge evaluates whether the documents are actually relevant to the proceedings. The judge will also assess any claims of solicitor-client and litigation privilege, public interest immunity and privacy interests in the documents. Any documents the judge determines are relevant are then disclosed to the Crown and defence counsel.

Timing the disclosure of third-party records

While the judge is the only one whose permission is required to obtain third-party records, copies of the application must also go to the Crown prosecutor, the victim and the person or body holding the record, in the case of a doctor or an outside organization.

As a defendant’s counsel, I might not want to bring the application for a third-party record at the start of the trial, as that will inform the other side that I am aware of them and that might change the testimony that is given.

Depending on the case, I sometimes wait until mid-trial to bring forward an application for third-party records, so I can use the information they contain in the cross-examination. If that application is approved and the third-party information contradicts what was given in previous testimony, that will be a major step in my client’s defence.

Experienced criminal lawyers will know how and when to make these applications, plus we know the limits of questioning, such as not invoking the “twin myths” (the idea that complainants with a prior sexual history are more likely to have consented and are less worthy of belief).

Third-party records can be invaluable tools for a defence, but since the rules governing their use are so complex and exacting, they are tools that only work effectively in the hands of experienced litigators. Call me for a free consultation to see how they can be used in your situation.