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What is a disclosure hearing?

A disclosure hearing is a courtroom hearing where an accused person charged with sexual assault or related offence seeks to:

  1. obtain documents not in their control;
  2. be permitted to use documents that are in their control during the trial (such as during cross-examination of the victim/complainant);
  3. seeks to be able to discuss episodes of sexuality outside of the incident captured by the charges.

Is this new?

As of December 2018, the Parliament of Canada amended the Criminal Code to give victims and complainants increased rights to object to the use of potentially embarrassing or otherwise irrelevant documents (think Facebook conversations, text messages, photographs).

The sections that apply are s. 276, and s. 278.92, s. 278.93, s. 278.94 of the Criminal Code of Canada.

How To Oppose The Use Of These Materials

If an accused has brought an application and a judge believes there is sufficient merit to order a hearing, then a hearing shall be ordered and a victim or anyone else having an interest in the material needs to be served with the application. The application needs to set out the date and location of the hearing.

What Options Does A Victim Have At Such A Hearing?

In addition to the right to a lawyer at such a hearing, it is also likely that the complainant would have a right to testify to explain why the document or record is very private and should not be permitted to be used at the trial.

Is The Hearing The Trial?

No. The disclosure hearing is a pre-trial motion but in an increasing number of cases, the hearing may occur mid-trial. A hearing is a preliminary ruling on questions that can be asked or evidence that can be used. The trial is the actual hearing where guilt or non-guilt is established.

Why Would I Want To Fight This Hearing?

A victim or complainant may wish to oppose the use of evidence in the possession of the defence for a number of reasons.

  1. The victim may wish to know what documents the accused or the defence team has and prepare for them;
  2. The victim may feel embarrassed about certain details that were meant to stay private but were put in the public domain.

While there is usually a publication ban on the complainant’s identity, sometimes publication of the accused’s name is sufficient to identify the complainant. This indirect publication of the complainant’s identity leads to possible publication of deeply personal and private information in the public domain (including news media).

Do I Have To Pay For A Lawyer’s Services At This Type Of Hearing?

It is best to assume that you will be asked to pay for the lawyer’s services at their normal private rate. You can contact the Legal Aid program near you to inquire whether this type of service is covered. In Ontario, there is no information about coverage for this new hearing as yet. There has been coverage for other third party records hearing so it’s possible coverage will be expanded. It’s best to inquire with the Legal Aid program directly.

If you are a victim or complainant in a sexual assault case, you may wish to contact us to help you defend against the use of these materials.