Criminal Code

Marginal note:Application for hearing

• 278.3 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.31 to determine whether the record or therapeutic record, or part of it, is admissible under subsection 278.29(2).

• Marginal note:Form and content

  (2) The application must be made in writing and must be accompanied by an affidavit setting out

  • (a) detailed particulars of the record or the therapeutic record, or the part of it, that the accused seeks to adduce;

  • (b) in the case of a record, or a part of one, the relevance of that evidence to an issue at trial; and

  • (c) in the case of a therapeutic record, or a part of one, how that evidence is likely to raise a reasonable doubt as to the accused’s guilt.

• Marginal note:Copy of the application

  (3) A copy of the application and the affidavit must be given to the prosecutor and filed with the clerk of the court.

• Marginal note:Jury and public excluded

  (4) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

• Marginal note:Hearing

  (5) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and filed with the clerk of the court at least 60 days previously or within any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice, and that the record or therapeutic record, or the part of it, sought to be adduced is capable of being admissible, the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.31 to determine whether the evidence is admissible under subsection 278.29(2).

• Marginal note:Copy to complainant

  (6) If the judge, provincial court judge or justice grants the application and agrees to hold the hearing, the accused shall cause a copy of the application to be given to the complainant by a person other than the accused.