When an accused person is charged with a sexual-based offence, defence counsel may choose to bring an application for the production of the complainant’s private records in the possession or control of a third party. Counsel may bring such an application believing that the records are integral to making full answer and defence. These third-party records applications are quite involved and amendments to the Criminal Code contained in Bill C-51 created additional procedural protections designed to ensure adequate safeguards are in place to protect the privacy rights of complainants.
The complexity of these applications is the subject of much commentary which I will not reproduce here. But how should these applications be adjudicated when the records in question are “youth records” as defined by the Youth Criminal Justice Act?
A recent case from the Ontario Superior Court of Justice, R v O.Y., 2021 ONSC 1105, sheds some light on this particular variant of Code s. 278 applications and provides some helpful guidance to counsel. (The case does not appear to be on CanLII at the time of this blog post.)