Skip to main content 
In R v J.J., 2022 SCC 28, the Supreme Court of Canada upheld, by six judges to three, the Bill C-51 rules that require an accused to have a judge screen any private record about the complainant before using it in a sexual offence trial. The Court also explained what counts as a “record”, when screening is needed and what role the complainant plays. In July 2026, Bill C-16 rewrote and renumbered these rules for charges laid from July 18, 2026.
On Thursday, June 30, 2022, the Supreme Court of Canada released its much-anticipated decision regarding the constitutionality of the Bill C-51 Amendments. In R v. J.J., the majority decision upheld the amendments as constitutional in their entirety, while at the same time offering some clarity on how to interpret them. The Supreme Court’s decision stood to impact thousands of sexual offence cases then in the system. Below are some of the main takeaways.
This commentary was first published the day the decision was released. It has been updated to September 2026: the sections it discusses, ss. 278.92 to 278.94 of the Criminal Code, were repealed and replaced by Bill C-16 (S.C. 2026, c. 19). They still govern charges laid before July 18, 2026. What changed is set out below.
- Decision
- R v J.J.2022 SCC 28, released June 30, 2022
- Result
- Upheld, 6–3ss. 278.92–278.94 constitutional in their entirety (para. 192)
- Screens
- Private recordsabout the complainant, held by the accused
- Since July 18, 2026
- New sectionsss. 278.29–278.38 for new charges; notice 60 days, not 7
How does the records screening regime work?
Four questions, in order, for any evidence the defence wants to use about the complainant.
Bill C-51 (S.C. 2018, c. 29) created the record screening regime in ss. 278.92 to 278.94 of the Criminal Code and moved the s. 276 procedure into the same sections. A private record relating to the complainant that the accused has, and intends to adduce, was inadmissible unless the judge found it relevant to an issue at trial with significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice (s. 278.92(2)(b)).
Six judges upheld the regime. Chief Justice Wagner and Justice Moldaver wrote for the majority, with Justices Karakatsanis, Martin, Kasirer and Jamal. Justices Brown, Rowe and Côté each dissented in part: all three would have struck down ss. 278.92 to 278.94 as they apply to private records, while keeping the s. 276 regime (paras. 320, 438 and 491). Justice Côté would also have read “record” and “adduce” narrowly.
When it is unclear whether evidence is a “record”, the Court said counsel should err on the side of caution and bring the Stage One application (para. 72).
What counts as a “record”?
Content
The trial judge must review “both the content and context” of a possible defence record to determine whether it engages a reasonable expectation of privacy such that s. 278.92 is engaged. The first step is looking at the content of the evidence. No category of evidence is excluded, meaning electronic communications between the complainant and the accused are captured. At para. 49: “Records do not attract a reasonable expectation of privacy simply because of the medium used to convey them. The more important consideration is the sensitivity of the information contained in the record.”
The trial judge must make a determination about whether something is a “record” at stage 1 of the application process under s. 278.93. Because the possible value of impeachment material is often unclear until mid-trial, this means that trial judges will increasingly be tasked with screening potentially irrelevant evidence ahead of time.
However, an argument may be available that what constitutes a “record” should be narrowly construed. At para. 53, the Court states: “the scheme is not intended to catch more mundane information, even if such information is communicated privately. Moreover, given the accused’s right to make full answer and defence, mere discomfort associated with lesser intrusions of privacy will generally be tolerated. In this context, a complainant’s privacy in open court “will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self”. Similarly, at para. 54: “a non-enumerated record will fall within the definition of s. 278.1 if it contains information of an intimate and highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being.” Finally, at para. 56: “mundane information such as general emotional states, everyday occurrences or general biographical information would typically not give rise to a reasonable expectation of privacy.”
The Supreme Court emphasized that, like for s. 276 evidence, the narrow category to which the record regime applies is part of the gateway to its constitutionality. At para. 162, the Court concludes that “screening in the context of private record applications applies to a narrow set of evidence that implicates important interests of complainants in sexual offence cases and has the potential to create serious prejudice. Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial”.
Context
The Supreme Court was clear that courts must also consider the context in which the record was shared – for example, why the complainant shared the information, and who she shared the information with. Consider, for example, where information was shared with someone with whom the complainant was in a relationship of trust or authority, and whether the information was intended to be shared privately or publicly disseminated. At para. 60: “Records produced in the private domain (e.g., one-on-one communications between the complainant and accused) may attract an enhanced reasonable expectation of privacy; records created or obtained in the public domain, where they could be accessed by multiple people or the general public (e.g., social media or news media), are less likely to attract a reasonable expectation of privacy.” The same paragraph adds that a record the accused created or obtained surreptitiously, without the complainant’s knowledge, is more likely to attract a reasonable expectation of privacy.
Note that material may engage the s. 278.92 records regime even if the complainant is not a participant in it. In other words, something might be a record where the evidence is about the complainant. Para. 63: “The complainant may be the sender or recipient of the communication, or the content of the communication pertains to the complainant.”
Finally, note that unlike for s. 276 evidence, even evidence that captures the subject matter of an offence will likely engage the records regime. See paras. 65-67, which highlight that explicit communications, videos, or photographs implicating the subject matter of the charge are “likely” to require a records application.
2026 update. For charges laid on or after July 18, 2026, the definition of “record” in s. 278.1 keeps the same test: personal information for which there is a reasonable expectation of privacy. Records made in psychiatric treatment, therapy or counselling by a health care professional are now a separate category, “therapeutic records”, whatever they contain. Bill C-16 also lets the Crown give the accused communications between the accused and the complainant without a production application (s. 278.2(2)(c)), but that does not affect the admissibility screening in ss. 278.29 to 278.38 (s. 278.2(4)).
When is a records application required?
A “records” application is required when “adducing” information
The Supreme Court has clarified that a s. 278.92 records application will be required even where the defence seeks to ask questions about the content of a record, but not adduce the record itself as an exhibit or for impeachment purposes. The situation remains unclear when an accused was formerly in possession of a record but no longer has it – e.g. deleted text messages or emails. At para. 76, the Court states: “Specifically, under the record screening regime, the accused must screen records when they seek to use information during a hearing that they specifically learned from those records. If they have independent knowledge of the information, gathered from sources that do not rely on the complainant’s private records, they may use this information without invoking the record screening regime (subject to other applicable evidentiary rules and trial procedures).” We anticipate this will be the subject of further litigation.
The words are the same today. The new s. 278.29(1) still applies to a record relating to the complainant that is in the accused’s possession or control “and which the accused intends to adduce”, the phrase the Court interpreted in R v J.J..
What role does the complainant play?
Complainant’s participatory rights at Stage 1 and Stage 2
The Supreme Court confirmed that a complainant has no right to participate in a stage 1 hearing under s. 278.93. However, at para. 92, the Supreme Court suggests that the Crown should provide “a general description of the nature of the record and of its relevance to an issue at trial to the complainant and/or the complainant’s counsel…At the same time, only a general description is required at this stage because it is not yet clear whether a Stage Two hearing involving the complainant will be required.” In other words, although the complainant cannot appear and make submissions at a stage 1 hearing, the Crown is permitted to share information with them about the details of the application at this stage.
The Court confirmed that the defence application record should typically be disclosed to the complainant before a stage 2 hearing under s. 278.94 to allow them to meaningfully participate in the process. Note, however, that the trial judge retains a residual discretion to order that an application record not be provided directly to the complainant. At para. 96, the Court states: “Importantly, the presiding judge retains the discretion to direct that the application not be disclosed to the complainant or that portions of it be redacted. This may arise based on a party’s or the judge’s own concerns about the impact of disclosure on trial fairness.” Finally, the Court rejected the assumption that the defence would send the application record to the complainant directly, without the Crown. At paras. 173-175, the Court suggests that the Crown should be involved with the process of disclosing an application record to the complainant and consulting with them about it. As always, should anything arise as a result of that consultation, that evidence must be disclosed to the defence.
Finally, the Supreme Court confirmed that complainant counsel has no right to cross-examine an accused on an affidavit filed at stage 2 of the application hearing, and that this ability is reserved for the Crown only (paras. 100-101). Complainants and their counsel may attend the whole Stage Two hearing and make oral or written submissions, but their participation is limited to that hearing, not the trial (paras. 97-99).
2026 update. For charges laid on or after July 18, 2026, s. 278.3(6) now deals with this directly: once the judge grants the application and agrees to hold a hearing, the accused must have a copy of the application given to the complainant by someone other than the accused. At the hearing the complainant is not a compellable witness but may appear and make submissions, and the judge must tell them of their right to counsel (s. 278.31(2)–(3)).
When must a records application be brought?
Record applications should be brought pre-trial
The Supreme Court held that mid-trial records applications should be the exception, not the rule. However, the court leaves open the possibility of bringing an application during cross-examination where advanced disclosure “will genuinely negate the efficacy of cross-examination”: at para. 190. In reaching this conclusion, the Court was concerned about trial efficiency. At para. 86, it states: “However, as a general rule, private record applications should be brought at the pre-trial stage of the proceedings. There is good reason for this. If mid-trial applications become routine, this would result in frequent adjournments, significant delays, scheduling difficulties - particularly in jury trials - and potential unfairness to the accused. Mid-trial applications could also harm complainants and discourage the reporting and prosecution of sexual offences.” The same paragraph gives an example of when a mid-trial application may be in the interests of justice: a record discovered only during the trial.
2026 update. Under the old s. 278.93(4), the application had to reach the Crown and the court at least seven days before Stage One, unless the judge allowed a shorter interval. For charges laid on or after July 18, 2026, the period is 60 days (ss. 276.01(4) and 278.3(5)), still subject to a shorter interval in the interests of justice, and the application must now come with an affidavit (s. 278.3(2)).
Does the Crown have to bring a records application?
Final notable issues
A few subsidiary points are worth noting. First, at paras. 73-74, the Supreme Court held that the Crown is not bound by the records regime. In other words, the Crown has no obligation to bring a records application, unlike where the Crown intends to lead evidence of the complainant’s other sexual activity and is required to bring a common law Seaboyer application. For charges laid on or after July 18, 2026, that Crown application is statutory: s. 276.06 of the Criminal Code, with the test in s. 276(2)(b). The new records sections still apply only to records in the accused’s possession or control (s. 278.29(1)).
Second, the Supreme Court commented on the motion for directions procedure that has been widely used to date for litigating whether evidence engages the record regime. The Court stated that motions for direction should be rare but may be appropriate in certain circumstances. At para. 103, the Court states that “they are purely a discretionary exercise of the presiding judge’s trial management power.” Note that, at para. 105, the Court commented that the trial judge retains discretion to give a complainant standing at this type of motion.
Finally, as a procedural point, the Supreme Court confirms that complainant appeals of stage 2 hearings by way of certiorari applications or by way of seeking leave to appeal directly to the Supreme Court (as was done by the complainant A.S. in this case) should be rare. At para. 110, the Court comments that: “interlocutory appeals arising out of s. 276 or private record applications should be rare and restricted to clearly exceptional circumstances.”
What did Bill C-16 change in 2026?
Bill C-16, the Protecting Victims Act (S.C. 2026, c. 19), came into force on July 18, 2026. It repealed ss. 278.92 to 278.97 and rewrote the rules on sexual-history evidence and on the production and admissibility of private records. The new sections apply only where the charge is laid on or after July 18, 2026 (S.C. 2026, c. 19, s. 100). A case charged before that date still runs under the sections R v J.J. upheld.
| Issue | Before July 18, 2026 | From July 18, 2026 |
|---|---|---|
| Which charges | Charges laid before July 18, 2026 | Charges laid on or after July 18, 2026 (S.C. 2026, c. 19, s. 100) |
| Records the accused holds | ss. 278.92 to 278.94 | ss. 278.29 to 278.31, plus a joint application without a hearing (s. 278.35) |
| Notice before Stage One | At least 7 days (s. 278.93(4)) | At least 60 days (s. 278.3(5)) |
| The application | In writing, with detailed particulars (s. 278.93(2)) | In writing, with an affidavit (s. 278.3(2)) |
| Therapy and counselling records | A “record” if there is a reasonable expectation of privacy; the significant probative value test | A “therapeutic record” whatever it contains; admissible only if likely to raise a reasonable doubt and no other evidence can (s. 278.29(2)(c)) |
| Crown’s use of sexual-history evidence | Common law Seaboyer application (R v J.J., para. 74) | Statutory application, s. 276.06; test in s. 276(2)(b) |
| Complainant receives the application | Through the Crown, typically after Stage One (R v J.J., paras. 93 and 174) | Accused must have it given by someone other than the accused (s. 278.3(6)) |
What carries over. The admissibility test for an ordinary record is unchanged: relevant to an issue at trial, with significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice (s. 278.29(2)(b)). The definition of “record” and the words “intends to adduce” are the ones the Court interpreted in R v J.J..
Therapeutic records are much harder to use. A record produced in psychiatric treatment, therapy or counselling by a health care professional can be admitted only if it is likely to raise a reasonable doubt about guilt and no other evidence is capable of doing so (s. 278.29(2)(c)). A joint application cannot be used for one (s. 278.35(7)).
For what a sexual assault charge involves from the first day, see our seven critical steps after a sexual assault charge and our sexual assault defence page.
Why Choose Daniel Brown Law?
Daniel Brown Law is a leading Canadian criminal defence firm. Our lawyers defend sexual offence cases at trial and on appeal, where records and s. 276 applications often decide the case.
A nationally recognized defence firm
An award-winning reputation in criminal defence and appellate advocacy: ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.
Applications prepared early
Records and s. 276 applications now need 60 days’ notice for new charges. We identify the evidence that needs screening early, so the defence can use it at trial.
Trial and appeal experience
If a ruling on a record or on sexual-history evidence goes wrong, it can be raised on appeal. See our criminal appeals page.
Recognized by the profession and the public
Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.
Best Law Firms: Criminal Law
The Globe and Mail, 2026
Top Criminal Law Boutique
Canadian Lawyer, 2026–27
Criminal Defence, Tier 1
Best Law Firms Canada, 2026
Best Lawyers in Canada
Criminal Defence, 2027
Toronto Star Readers’ Choice
Best Law Firm and Best Legal Services, repeat winner
Crime, Nationwide
Chambers Canada, 2027
The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:
- Canada’s Best Law Firms 2026 — The Globe and Mail (Report on Business)
- Canada’s Top Criminal Law Boutiques 2026–27 — Canadian Lawyer Magazine
- Best Law Firms 2026 — Criminal Defence and Appellate Practice (Best Lawyers / Best Law Firms)
- Best Lawyers in Canada — Criminal Defence — Daniel Brown, Hilary Dudding, Mark Halfyard, Lindsay Board and Colleen McKeown
- Toronto Star Readers’ Choice Awards — Best Law Firm and Best Legal Services, repeat winner
- Chambers Canada 2027 — ranked for Crime, nationwide, by Chambers and Partners
- Certified Specialists in Criminal Law — Law Society of Ontario (Daniel Brown and Mark Halfyard — fewer than 2% of Ontario criminal lawyers hold this designation)
R v J.J. and the Records Regime — Frequently Asked Questions
Short answers to the questions people ask most about the decision and the rules today.
The decision
What did the Supreme Court decide in R v J.J.?
On June 30, 2022, the Supreme Court of Canada held, six to three, that ss. 278.92 to 278.94 of the Criminal Code are constitutional in their entirety, both for s. 276 applications and for private record applications (R v J.J., 2022 SCC 28, para. 192). It also set out how to decide whether evidence is a “record” and when screening is required.
Who dissented in R v J.J.?
Justices Brown, Rowe and Côté each dissented in part. All three would have struck down ss. 278.92 to 278.94 as they apply to private records, while keeping the s. 276 regime.
Are text messages a “record”?
They can be. The medium does not decide it; the sensitivity of the information does. A message that reveals intimate and highly personal information about the complainant can be a record, while mundane information such as everyday occurrences usually is not (R v J.J., paras. 49, 54 and 56).
The applications
What is a section 278.92 application?
It was the application an accused had to bring before using a private record relating to the complainant in a sexual offence trial. Section 278.92 was repealed on July 18, 2026, but it still applies to charges laid before that date. For charges laid on or after it, the equivalent is s. 278.29, with the procedure in ss. 278.3 and 278.31.
What is a section 276 or Seaboyer application?
An application to use evidence of the complainant’s sexual activity other than the activity charged. The accused applies under ss. 278.93 and 278.94 of the Criminal Code for charges laid before July 18, 2026, and under ss. 276.01 and 276.02 for charges laid from that date. Before July 18, 2026, the Crown had to bring a common law Seaboyer application instead; for charges laid from that date, the Crown applies under s. 276.06.
How much notice does a records application need?
Seven days before Stage One under the old s. 278.93(4). For charges laid on or after July 18, 2026, 60 days (s. 278.3(5)). In both cases the judge may allow a shorter interval in the interests of justice.
Can the complainant take part in the hearing?
Yes, at the second stage. The complainant is not a compellable witness but may appear, make submissions and have counsel. The complainant cannot cross-examine the accused; only the Crown can (R v J.J., paras. 100–101).
Charges we defend
Learn more about some of the charges we defend. We defend more than what we have written blog articles about.
- Assault
- Bail hearings
- Bail pending appeal
- Coercive control
- Criminal appeals
- Criminal harassment
- Dangerous driving
- Distributing an intimate image
- Domestic assault
- Drug possession
- Drug trafficking
- Extradition
- Fail to appear at court
- Fail to comply with bail
- Failing to remain at the scene
- Firearm and weapon possession
- Forcible confinement
- Fraud
- Impaired driving
- Importing drugs
- Mischief
- Murder and manslaughter
- Obstruct police
- Peace bonds
- Public mischief
- Refusing a breath sample
- Robbery
- Sexual assault
- Sexual exploitation
- Theft and shoplifting
- Uttering threats
- Voyeurism
- Young offenders
Charged with a sexual offence? Talk to Daniel Brown Law
Which rules apply to the evidence in your case can depend on the date the charge was laid. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.
Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3