Victims of Crime Research Digest, Issue No. 7

Third Party Records: The Case Law from 2003-2010

Susan McDonald with Siavosh Pashang and Anna Ndegwa

In the Supreme Court of Canada decision in R. v. Seaboyer, one of many high profile cases in the area of sexual assault law in the 1990s, Judge L'Heureux-Dubé noted, "Sexual assault is not like any other crime..." Footnote 1 Indeed, sexual assault as a crime is unique from other violent crimes and was treated quite differently in the criminal justice system prior to the reforms that began some 30 years ago.

It is telling that the legislative amendments that created a process for production of third party records in sexual offence cases are still referred to by advocates as Bill C-46, Footnote 2 although there have been many C-46s since 1997 when the legislation was passed. The amendments to the Criminal Code introduced a regime to discourage "fishing expeditions" by the defence for third party records in sexual offences cases. A third party record could be a personal diary or a professional record, such as counselling notes or the medical file, which is most often in the possession of the complainant or the third party (e.g., the hospital); importantly, the complainant has a reasonable expectation that the record is private. Defence counsel are required to apply to the court for the production of third party records. Judges are required to consider specific factors in their deliberations as to whether to order full, partial, or no production. The legislation was found to be constitutional in the Supreme Court of Canada decision of R. v. Mills Footnote 3 in November 1999. The introduction of the regime was but one of the many legal and social reforms in the area of sexual assault that took place in the 1980s and 1990s in Canada (see McDonald et al. 2006 for an overview of these reforms).

Some small, qualitative social science studies in the past decade have found that those who report a sexual assault have been more positive about their experiences with criminal justice personnel, such as law enforcement (see for example, Regehr and Alaggia 2006), than before the legal and social reforms began. This may be due to additional training and the establishment of specific units to deal with sexual assault. Confidence in the system overall, however, remains low. Reporting rates, as national statistics show, also remain extremely low for sexual assault and other sexual offences (see Northcott 2013).

National statistics on the rates of sexual offences come from two main sources: police-reported victimization is collected through the Uniform Crime Reporting Survey 2 (UCR2), and self-reported victimization is collected through the General Social Survey on Victimization (GSS), which is conducted every five years, most recently in 2009. In 2012, there were 21,900 sexual assaults reported to police, about 60 fewer than in the previous year (Perreault 2012). This number only represents a small proportion of sexual assaults that occur each year in Canada. Sexual assault, in particular, has one of the lowest reporting rates of all crimes. Data from the 2009 GSS show that 88% of sexual assaults were not reported to police (Perrault and Brennan 2010, 4).

Unfortunately, third party records applications and the outcomes are not captured in Statistics Canada's court surveys (Adult Criminal Court Survey and Youth Criminal Court Survey) and as a result, it is not possible to know the number of applications and the outcomes of these applications. To understand the outcomes and how decisions are being made, it is therefore necessary to review available case law. McDonald et al. (2006) presented a review of third party records decisions dating from the decision in R. v. Mills in 1999 through June 2003. The purpose of this article is to present a similar review, based on decisions from July 2003 through 2010.

Methodology

For s.278.1 third party record applications in sexual offences cases, judges are required to provide reasons for their decisions, although those decisions may or may not be published through one of the case law databases. For this study, decisions reported on CanLII, Westlaw, and the QuickLaw database were retrieved from July 1, 2003, to December 31, 2010. Cases were reviewed for information on the complainant(s), the defendant(s), kinds of records, whether records were ordered to be produced to the judge and to the defendant, and the reasons given in the decision for production.

The search terms used were "s.278," in conjunction with other possible terms such as "records" or "sexual offences." A total of 82 cases with 92 decisions were reviewed for this study (see the list of cases following the list of references at the end of this article).

Cases by jurisdiction and level of court

The common unit in this review is the case. Where there are two decisions for a case, both were reviewed, but the case was only counted as one. As can be seen in Table 1 below, the cases are spread fairly evenly across the provinces with the exception of Ontario which has slightly more than half of the total cases. As the decisions reported are not necessarily representative of all cases, this breakdown should not be seen as a reflection of the total number of third party records applications in a given jurisdiction.

Table 1: Cases by jurisdiction and level of court
Province/territory Total casesTable note * Appellate level Trial level
British Columbia 6 1 5
Alberta 7 1 6
Saskatchewan 5 0 5
Manitoba 4 0 4
Ontario 46 1 (SCC), 2 (OCA) 43
Quebec 4 1 3
Nova Scotia 4 0 4 (1 in youth court)
Prince Edward Island 2 0 2
Newfoundland and Labrador 3 0 2
New Brunswick 1 0 1
Total 82 6 76

Offences committed

Many of the decisions, because they were decisions specifically about the s.278 application, did not include the specific Criminal Code sections involved. In the majority of cases, the accused had been charged with more than one offence. All were offences that fell under those listed in s.278.2.

Records

A third party record is defined in the Criminal Code as:

For the purposes of sections 278.2 to 278.9, "record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

Counselling records (including the records of counsellors, therapists, psychologists, and psychiatrists) were the type of records most often sought, in more than half the cases, and medical records were sought in over a quarter of the cases. With these two types of records, there is a high expectation of privacy. There were only a few cases where personal diaries were sought.

Table 2: Type of records sought by defence
Type of records Number of cases about
Counselling records/Therapeutic records (including psychologists/psychiatrists' records) 37
Other (VIS, testimony, work/personnel, custodial reports, insurance, police investigation records) 19
Medical records 18
Child protection records 16
Social services records 14
School records 14
Personal records (e.g., diary, notes) 4
TotalTable note ** 122

Location of records

At the time of the actual records application, records were in various locations and, in some cases, more than one location: with the Crown (6); with third parties (43), broken down to doctor (11), counsellor/social services (12) or unspecified (27); and with others (8) such as the defence, court, complainant, and police. In 11 cases, the records were in more than one location and in the remaining cases, information about the location was missing.

Party characteristics

The characteristics of the defendants and the complainants are consistent with trends noted in earlier case law reviews (McDonald et al. 2006; Gotell 2006, 2008; Busby 1998). Overall, the majority of complainants were female, the defendants were male, and in a majority of cases, there was a prior relationship between them. A significant proportion of the complainants were younger than 18.

Information about the defendants

The defendant was male in almost all the cases where the information was available (64 out of 66 cases). In one case, there were two defendants - one male, one female - and in one other case, the defendant was a female. In terms of age, out of the 62 cases which had the information, 5 of them involved adult defendants, and only 3 involved defendants under the age of 18. The ethnic background of the defendant was not provided in any of the cases. The vast majority of cases did not note the defendant's profession or job, but 7 cases did include this information, listing a doctor, a professional, caseworkers (2), and labour-related jobs (3).

Information about the complainants

In 70 cases, there was only one complainant, while in 12 cases there was more than one complainant. The majority of complainants were female (56 cases), while there were male complainants in 3 cases and one case with a male and female complainant. The majority of cases examined involved young complainants. In cases where the age of the complainant(s) was identified, 50 were younger than 18 years of age, and 10 cases involved adult complainants. There were 3 cases where the complainants had a developmental disability and 8 cases where the complainant had a psychological disability.

Relationship between the defendant and the complainant

As in previous reviews, the majority of cases showed some form of prior relationship between the accused and the complainant(s). There were 50 cases where it was possible to determine the relationship between the accused and the complainant(s) with certainty. In 30 cases, the defendant was a family member. In 8 cases, the defendant was a neighbour or friend/acquaintance/dating partner. Six other defendants had some form of professional relationship with the client (e.g., colleague, doctor, caseworker, or teacher). There were 6 cases where the defendant was a stranger.

Representation for the complainant

In third party records applications, the complainant has legal standing and is entitled to make submissions to the judge on production of the third party records. As the Crown does not represent the complainant in any part of the criminal proceedings, legal representation at third party records hearings can be very important for complainants. The complainant was represented by legal counsel in 56 cases and not represented in the remaining 25 cases.

Outcome of applications

Following an application for production and disclosure, a judge may order that all or none of the records requested be disclosed to the defence or that some of the records be disclosed. Out of the 82 cases reviewed, records were fully disclosed in 4 cases, partially disclosed in 21, and not disclosed at all in 41 cases. In 12 cases, further arrangements needed to be made, and the information was missing in 4 cases.

Reasons

In R. v. Mills, the court stated that a court in deciding whether to order production must consider "the rights and interests of all those affected by disclosure" and that the three principles at stake in s.278 cases are full answer and defence, privacy, and equality.

Subsection 278.5(2) of the Criminal Code is as follows:

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:...

The section goes on to list eight factors from (a) to (h) that the judge must consider. The cases were reviewed and the factors referenced in the decisions noted in Table 3 below.

Table 3: Factors referenced in the cases
Factors in s.278.5 (2) N
(Number of cases in which the factor is referenced)
a) The extent to which record is necessary for the accused to make a full answer and defence 14
b) The probative value of the record 23
c) The nature and extent of the reasonable expectation of privacy with respect to the record 21
d) Whether the production of the record is based on a discriminatory belief or bias 9
e) The potential prejudice to the personal dignity and right to privacy of any person to whom the record relates 7
f) Society's interest in encouraging the reporting of sexual offences 9
g) Society's interest in encouraging the obtaining of treatment by complainants of sexual offences 5
h) The effect of the determination on the integrity of the trial process 4
General reference 24
Other reference 12
No reference 11

Judges made a general reference to the factors in subsection 278.5(2) that must be considered in 24 cases, and in another 12, included a reference to the factors. This reference most often came in the form of mentioning that she or he must consider the provision, or that she or he had considered the provision in making a decision. There was no reference to the section or the factors in 11 cases.

The probative value of the record was the most common theme, arising in the most number of cases (23), followed closely by the reasonable expectation of privacy of the complainant, which was discussed by the judge in 22 cases.

The defendant's right to a full answer and defence (mentioned in 14 cases) and the potential prejudice to personal dignity and the right of privacy upon disclosure (7 cases) were the most commonly explored of the seven factors in the cases.

Both the influence of discriminatory beliefs or biases (9 cases) and society's interest in reporting offences (9 cases) were mentioned in just over 10% of cases. The least common factors utilized in the decision were society's interest in encouraging victims to seek treatment, mentioned in 5 cases, and the integrity of the trial process, mentioned in 4 cases.

Conclusion

This case law review examined a total of 82 cases (92 decisions) on third party records applications from July 1, 2003, to December 31, 2010. The findings in this review are consistent with previous studies. For example, in a majority of cases, there was a relationship between complainant and defendant (familial, acquaintance, professional); the majority of defendants were male while the complainants were female; a large number of complainants were younger than 18; multiple records were often sought; and partial or full records were ordered produced to the defence in approximately a third of cases (25 out of 82, with 4 of these cases missing that information).

As a methodology to determine how the third party records regime is functioning, a case law review is limited. The decisions that are reported may not be representative of total decisions across the country, and without a review of court and/or Crown files, there are no court data on a national level to determine the number of applications brought and the outcome of those applications.

Nonetheless, as these decisions are available to counsel and judges, they serve as precedents and can provide some trends on the characteristics of the cases involved and the outcomes. In December 2012, the Standing Senate Committee on Legal and Constitutional Affairs released its report on the review of the third party records regime (2012). One of the Committee's recommendations is that there must be support for research to continue to monitor the functioning of this regime. Footnote 4 While this review did not find any trends out of keeping with previous work, as long as the reporting rates of sexual offences remain well below those of other violent offences, on-going monitoring of this regime will be important.

References

  • Busby, Karen. 1998. Third Party Records Cases since R. v. O'Connor: A Preliminary Analysis. Ottawa: Department of Justice Canada. Published as Karen Busby, Discriminatory uses of personal records in sexual violence cases, Canadian Journal of Women and the Law, 9 (1997): 148-177; Karen Busby, Third party records cases since O'Connor, Manitoba Law Journal, 27(2000): 355-390.
  • Gotell, Lise. 2006. When privacy is not enough: Sexual assault complainants, sexual history evidence and the disclosure of personal records. Alberta Law Review 43(3): 743-778.
  • Gotell, Lise. 2008. Tracking decisions on access to sexual assault complainants' confidential records: The continued permeability of subsections 278.1-278.9 of the Criminal Code. Canadian Journal of Women and Law 20:111-154.
  • McDonald, Susan, Andrea Wobick, and Janet Graham. 2006. Bill C-46: Records applications post-Mills, a caselaw review. Ottawa: Department of Justice Canada.
  • Northcott, Melissa. 2013. A survey of survivors of sexual violence. Victims of Crime Research Digest 6:12-19.
  • Perreault, Samuel. 2012. Police-reported crime statistics in Canada, 2012. Ottawa: Statistics Canada.
  • Perreault, Samuel, and Shannon Brennan. 2010. Criminal victimization in Canada, 2009. Ottawa: Statistics Canada.
  • Regehr, Cheryl, and Ramona Alaggia. 2006. Perspectives of justice for victims of sexual violence. Victims & Offenders 1(1): 33-46.
  • Senate Standing Committee on Legal and Constitutional Affairs. 2012. Statutory review on the provisions and operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings). Accessed September 27, 2013.

List of decisions by jurisdiction (number of cases counted)

Alberta

  • R. v. A. J.B., 2011, ABPC
  • R. v. C.A., 2005 ABQB 154, [2005] A.J. No. 475; R. v. C.A., 2006 ABQB 63, [2006] A.J. No. 70
  • R. v. C.J.M., 2003 ABCA 263, [2003] A.J. No. 1136
  • R. v. D.R.W., 2007 ABQB 690, [2007] A.J. No. 1296
  • R. v. G.J.S., 2007 ABQB 757, [2007] A.J. No. 1508
  • R. v. Hundle, 2003 ABQB 618, [2003] A.J. No. 898
  • R. v. Leykin, 2010 ABQB 631, [2010] A.J. No. 1145
  • R. v. R.D.M., 2008 ABQB 630, [2008] A.J. No. 1205

British Columbia

  • R. v. J.W., 2007 BCPC 81, [2007] B.C.J. No. 624
  • R. v. Jackson, 2010 BCSC 1704, [2010] B.C.J. No. 2362; R. v. Jackson, 2010 BCSC 1804, [2010] B.C.J. No. 2515
  • R. v. K.L., 2004 BCSC 54, [2004] B.C.J. No. 909
  • R. v. M.H., 2005 BCCA 419, [2005] B.C.J. No. 1830
  • R. v. Nepinak, 2010 BCSC 1477, [2010] B.C.J. No. 2463; R. v. Nepinak, 2010 BCSC 1659, [2010] B.C.J. No. 2468
  • R. v. T.A.D., 2010 BCSC 1377, [2010] B.C.J. No. 1936

Manitoba

  • R. v. Fones, 2009 MBQB 65, [2009] M.J. No. 92; R. v. Fones, 2009 MBQB 239, [2009] M.J. No. 326
  • R. v. Hendry, 2009 MBQB 256, [2009] M.J. No. 349
  • R. v. Monkman, 2007 MBQB 6, [2007] M.J. No. 12
  • R. v. N.H.P., 2010 MBQB 54, [2010] M.J. No. 73

New Brunswick

  • R. v. Breau, 2011, NBQB, 245

Newfoundland

  • R. v. Pittman, [2009] N.J. No. 215 (N.L. Prov. Ct.)
  • R. v. H.T., 2008 NLTD 63, [2008] N.J. No. 209
  • R. v. P.C., 2011, NLSC

Nova Scotia

  • R. v. Martin, 2010 NSSC 199, [2010] N.S.J. No. 295
  • R. v. N.R.H., 2008 NSPC 38, [2008] N.S.J. No. 321
  • R. v. R.E.W., 2009 NSSC 286, [2009] N.S.J. No. 443
  • R. v. T.Y., 2010 NSPC 41, [2010] N.S.J. No. 310

Ontario

  • Ontario v. Tolliver, 2010 ONSC 506, [2010] O.J. No. 201
  • R. v. A.A.M., [2004] O.J. No. 5306 (Ont. Sup. Ct.)
  • R. v. Au, [2005] O.J. No. 2916 (Ont. Sup. Ct.)
  • R. v. Barnes, [2004] O.J. No. 5572 (Ont. Ct. J.)
  • R. v. Browne, [2008] O.J. No. 4932 (Ont. Sup. Ct.)
  • R. v. C.L., 2008 ONCJ 549, [2008] O.J. No. 4388
  • R. v. D.L., [2005] O.J. No. 3585 (Ont. Sup. Ct.)
  • R. v. D.M., 2010 ONSC 342, [2010] O.J. No. 2875
  • R. v. D.R., [2008] O.J. No. 2192 (Ont. Sup. Ct.)
  • R. v. D.R.M., [2006] O.J. No. 4391 (Ont. Sup. Ct.)
  • R. v. Dolomont, 2008 ONCJ 318, [2008] O.J. No. 2781
  • R. v. Ducharme, [2003] O.J. No. 6084 (Ont. Sup. Ct.)
  • R. v. Frater, [2008] O.J. No. 5329 (Ont. Sup. Ct.)
  • R. v. Gibson, 2010 ONSC 6374, [2010] O.J. No. 5173
  • R. v. Guest, [2006] O.J. No. 1920 (Ont. Sup. Ct.)
  • R. v. H.P.S., [2008] O.J. No. 4993 (Ont. Sup. Ct.)
  • R. v. J.D., [2009] O.J. No. 4572 (Ont. Sup. Ct.)
  • R. v. K.A.R., 2010 ONSC 3103, [2010] O.J. No. 2521
  • R. v. K.W.T., [2003] O.J. No. 5937 (Ont. Sup. Ct.)
  • R. v. Karounos, 2010 ONSC 6504, [2010] O.J. No. 5090
  • R. v. Kersten, [2009] O.J. No. 2666 (Ont. Sup. Ct.)
  • R. v. L.F., [2006] O.J. No. 172 (Ont. Sup. Ct.)
  • R. v. L.G., [2003] O.J. No. 4974 (Ont. Sup. Ct.)
  • R. v. Laviolette, 2010 ONSC 5480, [2010] O.J. No. 4263
  • R. v. M.A., [2006] O.J. No. 4395 (Ont. Sup. Ct.)
  • R. v. M.F., 2010 ONSC 2471, [2010] O.J. No. 1713
  • R. v. M.P., 2006 ONCJ 218, [2006] O.J. No. 2372
  • R. v. Martin, 2010 ONSC 1535, [2010] O.J. No. 1003
  • R. v. McAdam, [2008] O.J. No. 1740 (Ont. Sup. Ct.)
  • R. v. McNeil, 2009 SCC 3, [2009] S.C.J. No. 3
  • R. v. Mumford, [2009] O.J. No. 2599 (Ont. Sup. Ct.)
  • R. v. O'Connell, [2007] O.J. No. 3750 (Ont. Sup. Ct.)
  • R. v. P.F., 2010 ONSC 3672, [2010] O.J. No. 2732
  • R. v. Plaunt, [2006] O.J. No. 2174 (Ont. Sup. Ct.); R. v. Plaunt, [2006] O.J. No. 2175 (Ont. Sup. Ct.)
  • R. v. Quesnelle, [2009] O.J. No. 5502 (Ont. Sup. Ct.); R. v. Quesnelle, 2010 ONSC 175, [2010] O.J. No. 1712
  • R. v. R.L., [2007] O.J. No. 4095 (Ont. Sup. Ct.); R. v. R.L., [2007] O.J. No. 5307 (Ont. Sup. Ct.)
  • R. v. R.S.B., [2005] O.J. No. 2845 (Ont. C.A.)
  • R. v. S.D.M., [2003] O.J. No. 5626 (Ont. Sup. Ct.)
  • R. v. Saluja, [2008] O.J. No. 5297 (Ont. Sup. Ct.)
  • R. v. Senior, [2004] O.J. No. 4714 (Ont. Ct. J.)
  • R. v. Smith, [2008] O.J. No. 227 (Ont. Sup. Ct.)
  • R. v. T.B., [2005] O.J. No. 5724 (Ont. Sup. Ct.)
  • R. v. T.C., [2004] O.J. No. 4077 (Ont. C.A.)
  • R. v. T.F., 2009 ONCJ 656, [2009] O.J. No. 5802
  • R. v. W.F., [2009] O.J. No. 4159 (Ont. Sup. Ct.)
  • R. v. Ward, [2009] O.J. No. 1748 (Ont. Sup. Ct.)

Prince Edward Island

  • R. v. J.P.S., 2010 PESC 13, [2010] P.E.I.J. No. 11; R. v. J.P.S., 2010 PESC 20, [2010] P.E.I.J. No. 18
  • R. v. Tompkins, 2004 PESCTD 51, [2004] P.E.I.J. No. 54

Quebec

  • Ngombo c. R., 2009 QCCS 3211, [2009] J.Q. No. 7167
  • R. c. Brouillard, [2006] J.Q. No. 12049 (C.Q. C.A.)
  • R. c. N.G., 2006 QCCQ 501, [2006] J.Q. no 650; R. c. N.G., 2006 QCCQ 609, [2006] J.Q. No. 849
  • R. c. S.V., [2005] J.Q. No. 18736 (C.Q. crim. & pén.)

Saskatchewan

  • R. v. Brockman, 2007 SKQB 379, [2007] S.J. No. 746
  • R. v. Kozak, 2008 SKQB 213, [2008] S.J. No. 352
  • R. v. Seniuk, 2007 SKQB 75, [2007] S.J. No. 66
  • R. v. Williams, 2003 SKQB 387, [2003] S.J. No. 596
  • R. v. Willick, 2007 SKQB 226, [2007] S.J. No. 456; R. v. Willick, 2007 SKQB 291, [2007] S.J. No. 512

Susan McDonald, LLB, PhD, is Principal Researcher with the Research and Statistics Division, Department of Justice Canada, in Ottawa. She is responsible for victims of crime research in the Department and has extensive research experience on a range of victim issues.

Siavosh Pashang received his JD degree from the Faculty of Law at the University of Ottawa. He is currently completing his articles at the criminal defence firm Hicks Adams LLP, in Toronto.

Anna Ndegwa is completing her final year of an Honours Bachelor of Social Sciences degree, with a specialization in Criminology, at the University of Ottawa. She assisted with this work as a placement student with the Research and Statistics Division, Department of Justice Canada.

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