Section 278 - Survivor Safety Matters

Section 278 Survey

The Supreme Court of Canada (SCC) is of the opinion that the provisions in Section 278 of the Criminal Code protect victim-complainants who report sexual abuse.

We are looking to gather evidence to challenge that assumption and demonstrate how the provisions in Section 278 are actually being applied in court and their effects on victim-complainants.

It is our assessment that this law is not being applied equally across in Canada. According to evidence shown in the media, the Justice system is not “working as advertised.”

This is an anonymous survey. Respondents can answer the following questions without breaching the Publication Ban covering Section 278:

Publication prohibited

s.278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3;

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2)

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

Marginal Note: Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Canadian Survey Questions:

Please answer the survey for each experience you have had (if you have been through more than one case)

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* 1. Have you been involved in a court case in which Section 278 provisions applied? If YES please proceed.

Yes

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* 2. Was a Section 278 application brought against you by the defence?

Yes

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* 3. Indicate the year and month the Section 278 application was brought forward:

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* 4. Indicate the province or territory in which this case was being tried:

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* 5. Indicate the court the case was being tried in:

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* 6. Did you feel threatened by the defence that they would be “going after your counselling or other records” in advance of Section 278 being brought against you?

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* 7. Were you informed of your right to legal representation by a Section 278 lawyer?

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* 8. Who informed you of your right to legal representation by a Section 278 lawyer?

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* 9. If you had a Section 278 lawyer or reviewed the contents of the Section 278 application yourself, in your opinion, was the application based on (check all that apply):

Rape myths and harmful stereotypes

Misrepresentation of your statements that leave out crucial evidence

False allegations about you and your character

The application was fair and balanced

Other

Other (please specify)

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* 10. How did the Section 278 application affect you (check all that apply)?

It had no affect on me

It was upsetting

It was traumatic to consider that the accused could access my private information

It was frightening to consider that the defence would use this information to harm me in court

I felt that I had “nothing to hide” and that my records supported my allegation

I felt that it was a violation of my privacy

I was concerned that other, non-relevant personal information would be included

It affected my relationship with my therapist/counsellor/peer support/other record holder

I continued accessing ‘support’, but restricted what I discussed

It cut off access to my safe support

Other (please specify)

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* 11. If you chose upsetting to question 10 -On a scale of 1-10, how upsetting was it? (1 = a little bit upsetting to 10 = extremely upsetting)

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* 12. Did the Section 278 application affect your decision to continue the court proceedings?

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* 13. Did you feel the date range of the Section 278 subpoena(s) that were issued for your third-party records were reasonable or covered a relevant period of time?

Yes

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* 14. If you answered NO to the previous question, did you feel the period of time covered by the subpoena(s) was (check all that apply):

Excessive

Unreasonable

Intrusive

A violation of your privacy

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* 15. Who do you feel benefitted most from the rules under Section 278?

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* 16. If you would like to include your gender at the time the Section 278 application was brought against you, please do so here:

If you would like to discuss your individual situation further, please contact the Office of the Federal Ombudsperson for Victims of Crime Email: victimsfirst@ombudsman.gc.ca or Phone: 1-866-481-8429