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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Toronto Criminal Lawyers
01 • INTRODUCTION
In R. v. Fede, 2026 ONCA 764, released October 29, 2026, the Court of Appeal for Ontario held that a sexual assault evidence kit (SAEK) completed by a nurse is not a protected “record” under the Criminal Code‘s private records regime when it forms part of the investigation of the accused. For that limited purpose, the Court reasoned, the nurse who completes the kit is a person “responsible for the investigation.”
Trial courts across Canada have approached this question differently: can a health professional, working in a hospital with no authority to direct a police investigation, fall within the statutory exemption for investigative records? Writing for a unanimous panel (Coroza, Favreau and Pomerance JJ.A.), Pomerance J.A. answered yes. The Court dismissed the Crown’s appeal from an acquittal on a charge of sexual assault.
The case also deals with three other issues:
A note on privacy: the appeal is subject to a publication ban under s. 486.4 of the Criminal Code. Nothing in this post identifies the complainant.
02 • BACKGROUND
The respondent and the complainant met for the first time at a house party in February 2022. Later that night, they had sexual intercourse in a bedroom. The complainant testified that the intercourse began consensually but became painful after about 30 seconds. She said she repeatedly asked him to stop, and that he covered her mouth and continued. Afterward she had a fresh scratch on her face, was seen crying, and told friends she had told him to stop.
The respondent testified and denied that she asked him to stop or that he put his hand on her face. He had earlier given police a statement that he later admitted contained falsehoods, including a claim that he did not know the complainant.
The hospital examination. The complainant reported the assault the next day and went to hospital. There, a sexual assault nurse examiner (SANE) completed a SAEK with the help of a student nurse. The student spoke to the complainant in French, under the SANE’s direction. The SANE testified that the kit’s purpose was to collect swabs that might yield the assailant’s DNA. Where to swab depends on where the patient reports being kissed, touched or penetrated.
The SAEK form is titled “FORENSIC EVIDENCE FORM.” It recorded “yes” to contact with the mouth and hand, and oral swabs were taken. The student nurse also wrote on a separate page of the clinical notes. That page recorded “yes” answers to questions about touching/fondling, kissing and penetration. The SANE explained that these answers went there only because the kit form had no space for a narrative.
At trial, the complainant denied telling the nurses there had been any kissing or touching with the respondent.
How page 12 reached the defence. The complainant had waived her privacy interest in the SAEK itself, but not in the surrounding medical records. Those records, including the clinical notes page, were disclosed to the defence by mistake. The Crown objected to their use. It argued the page was a protected “record” under s. 278.1, which could be admitted only after the balancing process in s. 278.92 (now s. 278.29).
03 • THE TRIAL DECISION
Justice Trevor A. Brown of the Ontario Court of Justice sided with the defence on admissibility. Relying on R. v. T.S., 2021 ONCJ 299, he held that SAEKs fall outside s. 278.1. He then found that the clinical notes page was so closely tied to the forensic examination that it was, in substance, part of the kit. In his view, treating it as a separate medical record would be artificial.
He also held that the recorded “yes” answers were statements reduced to writing under s. 10 of the Canada Evidence Act. That meant the complainant could be cross-examined on them.
On the merits, the trial judge found the respondent an unimpressive witness, with an unconvincing explanation for lying to police. The complainant, by contrast, was composed and articulate. She did not waver in her evidence that the intercourse became non-consensual.
Two features of her account nonetheless left him in reasonable doubt:
Her account conflicted with that of her friend, M.L., who was less intoxicated. M.L. had earlier told the respondent to leave the complainant alone. The judge found it implausible that she would then have left them alone at his request.
The complainant testified that he pushed her onto the bed and went straight to intercourse. That fit poorly with her answers to the nurse that there had been kissing and touching beforehand.
The trial judge did not find the complainant untruthful. He found that her memory may have been affected by the passage of time, alcohol, trauma, or a combination of these. He acquitted.
04 • THE CENTRAL HOLDING: A SAEK IS NOT A PROTECTED RECORD
The Court held that a nurse who completes a SAEK is a person “responsible for the investigation” within the meaning of s. 278.1. The kit is therefore exempt from the protective regime when it forms part of the case against the accused.
The Crown’s argument. The Crown argued that a health professional lacks the control or authority to be answerable for an investigation, and cannot start, stop or direct it. It added that a SAEK may be completed before any offence is reported, so it cannot yet serve a forensic purpose. Pomerance J.A. accepted these factual premises but found the Crown’s reading of the statute too narrow.
Why the Court disagreed. The reasoning rests on four points:
In the Court’s view, the SAEK hands part of the investigation to a qualified health professional because the evidence must be taken from the complainant’s body. Nurses are not investigators in the classic sense, but they are responsible for that part of the investigation. This is consistent with T.S., R. v. Oakes, 2020 SKPC 23, and R. v. Dick, 2024 BCSC 1785.
The result also fits the regime’s design. Once a kit is in police hands, the Crown must disclose it as part of the case under Stinchcombe. R. v. Quesnelle, 2014 SCC 46, explains that investigative records are presumed relevant and should always be produced. The exemption simply skips a balancing exercise whose outcome is already known.
Two important caveats.
The Court took care to reaffirm the regime’s importance in protecting complainants’ privacy, dignity and equality, citing Mills, J.J. and Kruk. It stressed that the exemption balances competing interests rather than weakening that protection.
05 • THE REMAINING GROUNDS OF APPEAL
The Crown’s other three grounds also failed. In each, the Crown was really challenging findings of fact or the weight given to evidence, not identifying an error of law.
The clinical notes page. A complainant’s medical record is ordinarily protected. Here, however, the trial judge found as a fact that the single page continued the SAEK inquiry. The answers were asked for to decide which swabs to take, and were written elsewhere only because the form had no room. The Court of Appeal deferred to that finding. It noted that other pages disclosed by mistake did contain protected health information, but the defence did not rely on any of it.
Statements reduced to writing. The Crown argued that these answers could not be proven prior statements under s. 10 of the Canada Evidence Act. They were given in French, recorded in English, and written down by a student nurse who did not testify. The Court acknowledged that language can cast doubt on the accuracy of a recorded statement. But the trial judge was entitled to rely on the SANE’s evidence. She testified that she:
The complainant also admitted at trial that she understood the word. The Crown never explored whether her understanding had been different at the hospital.
Myths and stereotypes. The Crown argued that the acquittal rested on inconsistencies about peripheral details. In its view, this reflected stereotyped expectations about how trauma survivors remember events. The Court disagreed on both points.
First, the inconsistencies were not peripheral. One concerned how the two came to be alone. The other concerned the sexual activity before the alleged assault. Second, relying on them did not invoke any empirically false belief of the kind described in R. v. Kruk, 2024 SCC 7.
Pomerance J.A. drew a clear line. Judges must guard against old and newly emerging stereotypes, which distort fact-finding. But they must also grapple with genuine inconsistencies, both between witnesses and within one witness’s account. Failing to do so can itself be an error.
Considering the whole of the evidence. The Crown pointed to evidence the trial judge did not expressly address: the reported kissing might have involved someone else, the scratch on the complainant’s face, and her distress afterward.
Under s. 676(1)(a), the Crown may appeal an acquittal only on a question of law alone. A judge need not discuss every piece of evidence (R.E.M., J.M.H.). The Court distinguished R. v. Rudge, 2011 ONCA 791. There, the trial judge had analyzed the evidence piece by piece, and the result was an “analytical distortion.” In this case, the reasons implied that this evidence did not remove the judge’s reasonable doubt. The Crown’s complaint was really about weight.
06 • ANALYSIS AND IMPLICATIONS
Fede gives Ontario courts clear appellate authority that a SAEK in the investigative file is outside the private records regime. What matters is the purpose of the record, not the profession of the person who made it.
For defence counsel. Where the Crown tenders a kit or relies on evidence collected through it, the defence can expect the form to be disclosed under Stinchcombe. The defence can use the form in cross-examination without a s. 278.92 (now s. 278.29) application. Notes recorded outside the form may also qualify. That requires evidence showing the notes truly continue the forensic inquiry, ideally from the examining nurse.
For Crown counsel. The decision shows why hospital records should be reviewed carefully before disclosure. Waiver of the SAEK does not extend to the surrounding medical records, and a mistaken disclosure can be hard to undo. Where language may affect the accuracy of a recorded statement, the Crown should explore that issue at trial rather than raise it for the first time on appeal.
For health professionals. The second caveat matters in practice for SANE programs. The exemption covers forensic information about the alleged offence. Two habits will help courts apply the line the Court of Appeal has drawn:
Open questions. Some issues remain for future cases:
07 • CONCLUSION
So, when does a nurse become an investigator? According to the Court of Appeal, it happens when she does two things. She completes a forensic examination meant to gather evidence of the alleged offence, and that work becomes part of the case against the accused. For that limited purpose, she is a person responsible for the investigation. The record she creates is then disclosed like any other product of the investigation.
Fede reconciles two commitments that sometimes pull in opposite directions. One is strong protection for complainants’ private records. The other is the accused’s right to the evidence gathered against him. The Court’s caveats keep the exemption tied to its forensic purpose, so genuinely private health information stays protected.
08 • SOURCE
This post is general commentary and is not legal advice. Neuberger & Partners LLP, Toronto Criminal Lawyers.
