e-4749 (Justice)

The Government of Canada is committed to upholding the essential rights of victims of crime, including victims of heinous crimes like sexual assault. The Canadian Victims Bill of Rights provides for specific victims’ rights such as the right to have their security and privacy considered at all stages of the criminal justice process, and to have reasonable and necessary protection from intimidation and retaliation. This is vital.

The third-party records regime limits the accused’s access to the victim’s private records that are in the possession of third parties and establishes a special procedure to be followed where production of third-party records is sought in proceedings involving sexual offending. This regime is informed by the Supreme Court of Canada’s (SCC) 1995 O’Connor decision, which set out the rules that govern the production of third party records in criminal trials, but is more stringent to address Parliament’s concern about the incidence of sexual violence in Canada, its prevalence against women and children, and its particularly disadvantageous impact on the equal participation of women and children in society, as well as on the rights of women and children to security of the person, privacy, and equal benefit of the law, as guaranteed by the Canadian Charter of Rights and Freedoms. The constitutionality of this regime was affirmed by the SCC in its 1999 Mills decision.

In its 1999 Mills decision, the SCC noted that the third-party records regime requires a careful balancing of three constitutionally protected rights: the section 7 right to full answer and defence, the section 8 right to privacy and the section 15 right to equality. The victim’s right to privacy is protected by section 8 of the Charter. Victims have a reasonable expectation that the private information they divulge in a therapeutic relationship will remain confidential. Equality rights under section 15 of the Charter must also inform the analysis. An understanding of myths and stereotypes in the context of sexual violence is essential in properly delineating the boundaries of the accused’s right to full answer and defence and the victims’ right to privacy.

Repealing the third-party records regime would result in the SCC’s O’Connor decision governing the production of third-party records in all criminal trials, including sexual assault trials. Reverting to the O’Connor procedure would result in fewer protections for victims. Our Government has a track record of standing up to protect victims and will always do so.