Special Procedures and O’Connor Applications in Sexual Assault Trials: A Guide for Survivors

This guide provides general information and answers some common questions about what happens when applications under section 276 or 278.3 of the Criminal Code are made as part of a trial involving sexual assault or other types of sexual violence.

This information is general in nature and does not constitute legal advice. We strongly recommend consulting with a lawyer to get legal advice about your specific situation.

A Note on Language: Language is important. It holds a lot of power. You may or may not identify with the word “survivor” or “victim”. Police, lawyers, judges, and others involved in the legal system may refer to you as a “victim”, “witness”, or “complainant” even though you may not identify with any of these terms. This is the language used by the legal system and in courts and does not mean you or your reaction to the incident is being judged. In this guide, we use the term “survivor.” However, we know that not everyone who has experienced sexual violence will identify this way.

For Reference

The Criminal Code includes some special procedures that may happen as a part of criminal trials related to sexual assault or other forms of sexual violence. They involve applications by the accused person to ask certain questions about a survivor’s sexual activity (section 276 of the Criminal Code) or to access certain records related to the survivor, potentially including medical, counselling, or social services records (s. 278.3 of the Criminal Code).

Applications related to these sections of the Criminal Code are sometimes referred to as the “rape shield law” or as an “O’Connor application”. The name O’Connor comes from the name of the case that first set out the procedure for applications about records related to survivors.

Many people use the term “O’Connor Application” to refer to both applications by the accused person to ask questions about a survivor’s sexual activity or to access certain records related to the survivor. This is because the courts follow the same general procedure to consider both types of applications. The applications are considered as part of a special hearing that happens within the criminal trial.

Background

Section 276 – Evidence About Sexual Activity and History

Section 276 of the Criminal Code is sometimes called the “rape shield law”. This law says that evidence or questions about a survivor’s sexual activity and history cannot be brought up during a trial unless certain conditions are met. The questions about sexual activity must be directly relevant to the case, must be specific, and must not be used to argue that the survivor was more likely to have consented because of their sexual activity and history and/or should be less believed because of their sexual activity and history. These rules apply for questions about the survivor’s sexual activity with the accused person as well as with anyone else.

This law is in place to protect survivors from some of the harmful myths about sexual violence, including that previous sexual activity makes the survivor less believable or more likely to have consented to sexual activity.

Before the defence can ask a survivor about their sexual activity or history, the judge must consider whether this should be allowed in a special hearing that happens during the trial. To make a decision about this issue, the judge must consider the right of the accused person to defend themselves against the criminal charges and the right of the survivor to privacy and personal dignity.

Section 278.2 and Personal Records

Section 278.2 of the Criminal Code stops certain records related to a survivor or other witnesses in a case from being given to the accused person and used as part of a trial unless a judge allows them, following an application by the accused.

Section 278.1 of the Criminal Code defines ”records” as including any form of record about the survivor or other witness that contains personal and private information. These may include medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption, or social services records, as well personal journals or diaries.

Before allowing these types of records to be turned over to the accused person and their lawyer, the judge must consider whether the record in question is likely to be relevant to an issue in the trial or if it relates to the competence of a witness. The judge must also be satisfied that giving the record to the accused and their lawyer is necessary in order to serve the interests of justice.

The judge would consider a number of different factors to make a decision about what to do with these records, some of which include:

How necessary the record is for the accused person to defend themselves.
Whether the record has value in helping prove certain facts that are part of the trial.
The level of privacy that would reasonably be expected about the specific record.
The impact on the survivor’s personal dignity and right to privacy if the record was disclosed.
The impact on the fairness and integrity of the trial

What is an O’Connor Application and Hearing?

“O’Connor Application” now usually describes applications under s. 276 or s. 278.3 of the Criminal Code. Both types of applications use a similar procedure. This term comes from a Supreme Court of Canada case in 1995 called R. v. O’Connor that was about whether a survivor’s medical and counselling records should have been disclosed to the accused person during a sexual assault trial. This case set out the procedure to be followed for these types of applications.

Note that there are slightly different procedures used if the application is about accessing records held by another person or group (sometimes called a “third party”) or if the records in question are already in the possession of the accused person.

Applications made under s. 276 or 278.3 must be made in writing by the accused (or by their lawyer) and include specific details of the evidence they are seeking to include in the trial, whether it is evidence about the survivor’s sexual activity and history or the personal records they are seeking.

The accused person’s application must also make a clear connection to their defence against the criminal offences they have been charged with and show why the evidence they are trying to include in the trial is relevant to a specific issue.

Because of the personal nature of these types of applications, many survivors will understandably experience a range of thoughts, feelings, and concerns upon hearing that the defence has filed an O’Connor Application. Being informed about the process can help survivors more clearly understand what is involved and understand what rights they have as part of the process.

What is the process?

Step 1

The accused person, or their lawyer, makes an application to the judge. The application must be made in writing and include details of the evidence they are seeking. If the evidence involves records held by another person (sometimes called a “third party”) the application must clearly indicate which record the accused is requesting and the name of the person or groups who has that record.

The application must also show a link between the defence and the evidence. In other words, the accused must show that the evidence is likely relevant to an issue at the trial or to the competence of a witness to testify.

Step 2

Once an application has been made, the survivor must be told as soon as possible that the application has been made. The judge in the case is also required to tell the survivor as soon as possible that they have the right to appear at the hearing for the O’Connor application, and that they have the right to have a lawyer represent them at the hearing. If the application involves other witnesses or is about records held by another person or group (for example, medical records held by a doctor’s office or counselling records held by a counsellor), then that person or group must also be told about the application. They must also be told that they have the right to appear at the hearing for the O’Connor application and to have a lawyer represent them at the hearing.

Step 3

In Step Three, the judge holds a hearing to make a decision about the O’Connor Application. The judge will have to decide whether the record held by a third party will be provided to the accused and allowed in the trial or if evidence about the survivor’s sexual activity and history can be brought up in the trial.

The hearing for an O’Connor application is like a mini-trial in the middle of the actual criminal trial. The people or groups involved can make arguments and submissions to the judge about the application and may call witnesses to testify. However, there are some differences from a regular trial.

When the hearing is held, no members of the public or the jury (if there is one for that case) are allowed to attend. As well, there is an automatic publication ban during the hearing on the O’Connor application, the evidence the accused is trying to include in the trial, and the arguments made during the hearing. This means that this information and evidence cannot be published in a newspaper or on the internet, broadcast on the radio or TV, or otherwise published or transmitted to the public.

The survivor has the right to choose not to attend the hearing or they can choose to attend and make submissions to the judge. They cannot be forced to attend the hearing or to testify at the hearing as a witness by the accused person or their lawyer.

Unlike in the rest of the trial, the survivor has the right to be represented by their own lawyer during the hearing. For the O’Connor application hearing, the survivor is considered a “party” to the hearing. Any “party” at a hearing or trial has the right to make arguments to the judge and to call witnesses. This is different from the rest of the criminal trial, when the survivor is likely to be a witness, but not a party.

Step 4

If the O’Connor application is approved by the judge, they may decide to give all or part of the records in question to the accused person. The Crown Attorney would also be provided with a copy of the record. If the application involved third party records, then another application and hearing may need to happen to decide if that record will be allowed in the trial.

What factors does the judge consider?

The rights of the defence

All parties in a trial have rights. This is important and necessary to ensure a fair trial, based on Canada’s legal system and the Charter of Rights and Freedoms. The court must take the approach that the accused person is innocent until proven guilty beyond a reasonable doubt. There are also protections in place to make sure the accused person has the chance to fully answer the charges against them and defend themselves. The O’Connor application process is a part of how those rights are applied during a trial.

The rights of the survivor to privacy and personal dignity

The privacy and dignity of survivors matters. These rights have been recognized by the courts and by Canada’s Parliament, which is why sections 276 and 278 of the Criminal Code were passed. The O’Connor application process is in place to help protect survivors from personal information not relevant to the case being revealed, whether it is personal records or questions about a person’s sexual activity and history.

Outcome of application

A judge can order that all or some records be produced; they can deny disclosure of the records entirely; or order that the records be given to the judge for review before making a final decision. You will be informed every step of the way. If you have any questions during this hearing, either your lawyer or Victim Services Coordinator can provide you with updates and explain the process.

Common Questions

When are O’Connor applications filed?

All parties, including the survivor, must be made aware of applications about access to third party records at least 60 days before the hearing. For applications about records already held by the accused person or about whether a survivor can be questioned about their sexual activity or history, the application must be made at least 7 days before the hearing. However, it is possible that the judge may allow the defence to apply within a shorter time frame if the judge decides it is in the interests of justice.

How often are they used?

O’Connor applications may be something that survivors will face if their matter ends up in court for a criminal trial. However, that doesn’t necessarily mean all survivors will encounter this issue as part of the trial. As well, just because an application is made does not mean it will be successful. For example, applications to access third party records are turned down in about half of cases, according to statistics from the Department of Justice Canada.

What if I can’t afford a lawyer to represent me at the hearing?

Survivors have the right to have a lawyer represent them at a hearing for s. 276 or s. 278.3 application. Victim Services, which is part of the provincial Department of Justice and Public Safety, can provide free legal representation for survivors involved in O’Connor application hearings.

If a survivor has been served with an application or otherwise told that an application under s. 276 or s. 278.3 has been made, they should contact the Regional Coordinator at Victim Services with whom they have been working. If the survivor has not yet had contact with any Victim Services Coordinator, they should contact the main phone number of the Victim Services office nearest to them.

The Victim Services Coordinator will then discuss the process with them. If the survivor wants legal representation, the Coordinator will make a request to their supervisor for funding and let the survivor know what lawyers are available. All contact between the survivor and lawyer is confidential and the survivor does not have to pay for the lawyer.

For more information, visit: https://www.gov.nl.ca/victimservices/

Email: victimservices@gov.nl.ca

Provincial Office: (709) 729-7970

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