Bill C-46: Records Applications Post-Mills,
A Caselaw Review

Executive Summary

In the 1990s, Canada witnessed significant changes in its sexual assault law, through legislative amendments and caselaw. There were a number of Supreme Court of Canada decisions that supported the rights of the accused (Osolin, O'Connor, Carosella)* within the context of access to complainants' confidential records, as well as significant discussion around the impact of these decisions. Bill C-46 was passed in May 1997 and amended the Criminal Code to include specific provisions regarding the production and disclosure of third party records to the accused in sexual assault proceedings (s.278.1). The provisions were challenged on constitutional grounds in R v. Mills and in November 1999, the Supreme Court upheld the legislation.

As part of an ongoing review of the impact of the legislative amendments, the authors undertook a caselaw review of all reported s.278.1 cases in the time period immediately following the Mills decision until June 2003. The purpose of the review was to obtain information on case characteristics (such as types of records sought, relationship between defendant and complainant), as well as the reasons for the decisions rendered.

There is significant literature dealing with sexual assault law and in particular, the changes that have been introduced into the Canadian context during the 1990s. Scholars from different disciplines and perspectives have provided commentaries on the several Supreme Court of Canada and appellate court decisions. While the critical commentaries were insightful, they do not provide the focus of the caselaw review.

Methodology

Judges are required to provide reasons for their decisions in s.278.1 applications.

This study is based only on the decisions found in QuickLaw. Decisions reported on QuickLaw were retrieved from December 1, 1999 until June 30, 2003. The time period covers 43 months after the decision of Mills in November 1999.

The search terms used were "s.278", in conjunction with other terms such as "records" or "sexual offences". Cases found were checked against lists compiled by Professor Lise Gotell and preliminary work by Professor Karen Busby to ensure that all relevant cases were retrieved. There was some duplication of cases and some inconsistencies. Cases were reviewed to determine whether they fit the criteria of being decisions on s.278 records applications. A total of 48 decisions were reviewed.

Limitations of the Methodology

The decisions reviewed from QuickLaw do not equal total decisions in Canada on s.278 applications within this time period. These decisions, however, are those that are reported and because they are available through the QuickLaw database, they become precedents for future caselaw. Lawyers and judges would look to the decisions reported in QuickLaw for their precedents and would rarely have other information on cases available to them.

Decisions are usually provided orally. Unless a particular request is made, oral reasons are not usually transcribed and published. Judicial practices on the publication of reasons vary across Canada. For example, there were no cases on s.278 records applications found on QuickLaw from Quebec.

A caselaw review is limited in what it can ultimately tell us. It cannot reveal perceptions, beliefs or feelings of the key players; it does not answer the question of whether applications for records have become standard practice. A thorough caselaw review, however, may reveal trends in the jurisprudence and as such, it can perform a useful check on a trend that might not accurately reflect the jurisprudence.

Bill C-46

The procedure for third party records applications is set out in ss.278.1-278.9 of the Criminal Code, which are found in Appendix B of this document. It involves a two-stage process: 1) whether to order production to the court, and 2) whether to order production to the defence. The legislation provides factors to consider in making the production decision.

Findings

A total of 48 cases were reviewed covering the timeframe of December 1, 1999, through to June 30, 2003. One quarter of those cases (12 out of 48) were at the appellate level. Most cases were from Ontario (17) with Newfoundland having the second most cases (9). As noted, supra, there were no cases from Quebec, nor from Nunavut, nor Prince Edward Island. The absence of decisions in Nunavut and Prince Edward Island may be due to the small size of the jurisdictions; in Quebec, it may be due to reporting practices.

Characteristics about the defendants and the complainants presented below are consistent with trends noted in earlier caselaw reviews. 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 young.

Information about Defendants

In all of the cases where the information was available (45 out of 48 cases), the defendant was male. At least 79% of the cases (38 out of 48) surveyed involved an adult defendant. Of the remaining 10 cases, 6 involved youths and in 4 cases, the age was not specified in the judgement.

Information about Complainants

In 60% of the cases (28 out of 47), there was only one complainant (in 4 cases the complainant was a male and in the remaining 24, a female). The sex of the complainant was not identified in 5 cases. In 30% of the cases (14), there was more than one complainant, ranging from 2 to 64 complainants.

The majority of cases examined involved young complainants. Of the 38 cases where the age of the complainant(s) was identified in the written judgement, just over three-quarters of the cases involved complainants that were younger than 18 years of age, and 6 cases involved adults. In 3 cases, there were both adult and young complainants.

Of the 6 cases studied involving adult complainants, 3 had developmental or cognitive delays. Another young child complainant was noted to have mental deficiencies, and in another case involving two teenaged girls, the facts suggest that the complainants had cognitive or developmental disabilities. In 4 cases, the complainant had a drug or alcohol dependency, although in one case the addiction developed subsequent to the alleged offence taking place.

Several of the complainants had some involvement with a child services agency. In 3 cases, complainants lived in group homes and in 5 cases, there was a history of Children's Aid Society (C.A.S.) involvement. Furthermore, social services, child welfare agencies, child and family services and like organizations had involvement with complainants in 11 cases.

Relationship between the Defendant and the Complainant

The majority of cases showed some form of prior relationship between the accused and the complainant(s). There were 28 cases where it was possible to determine the relationship between the parties with certainty. Most involved family members (father, step-father, uncle, etc.) and there were 7 cases where the defendants had some form of professional relationship with the complainant (e.g. doctor or psychologist/ patient).

Reasons

Given the list of factors that must be considered and the importance of the likely relevance of the reasons for the production of the records, the reasons in each of these cases were reviewed closely.

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.

In two thirds of the cases (26 out of 39) where the issue was whether or not to order production of the records, the judge made a general reference to s. 278.3(4), the subsection which lists the factors to be considered. 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. The defendant's right to a full answer and defence (mentioned in 28 cases) and the potential prejudice to personal dignity and the right of privacy upon disclosure (29 cases) were the most commonly explored of the seven factors in the cases.

The probative value of the record was also a common theme, arising in almost half of cases (19), as was the reasonable expectation of privacy of the complainant, which was discussed by the judge in almost two thirds of the cases (24).

The least common listed factors to be 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. Both the influence of discriminatory beliefs or biases (8 cases) and society's interest in reporting offences (9 cases) were mentioned in slightly less than one-quarter of the cases. In only one case did the judge go through an analysis of each factor listed in section 278.3(4), and in 9 of the 39 cases she or he examined five or more of the factors listed.

As a whole, judges in the cases reviewed have frequently cited the defendant's right to full answer and defence and the complainant's right to privacy as competing concerns in their reasons with respect to record production; the concept of equality, however, is rarely mentioned. In fact, a detailed consideration of equality only occurred in four judgements. This is not to say that more judges did not consider the notion of equality or that it did not factor into the judgement. Whereas other factors listed in s.278.3(4) and in Mills were explicitly stated, that was rarely the case for the principle of equality.

Privacy, however, is a Charter right that came up frequently in the reported judgements. In 4 cases, the judge focused almost exclusively on privacy interests while excluding any detailed analysis of other factors. A person's reasonable expectation of privacy may be found in s. 8 of the Charter. In Mills, privacy interests were defined as the right to be left alone by the state, which includes the ability to control the sharing of confidential information about oneself. The Court stated that, "privacy concerns are at their strongest where aspects of one's individual identity are at stake, such as in the context of information 'about one's lifestyle, intimate relations or political or religious opinions'". It went on to state that a key consideration when deciding whether to order production of therapeutic records in sexual assault cases is the relationship of trust and confidence between the complainant and the record-keeper.

In the 40 cases where disclosure/production was decided, no production was ordered in 15 cases. In several of these cases, the judge rejected the defence's argument that the record(s) would demonstrate the complainant's lack of credibility or competency, or show a motive to fabricate the complaint. In one such case, which involved a complainant who was legally blind and had a mild cognitive delay, the judge stated that the application for disclosure may have been based on a discriminatory belief that individuals with an intellectual disability are potentially incapable of telling the truth.

Of the remaining 25 cases, partial or full disclosure was made to the defence in 14 cases, and in the remaining 11 cases, after partial or full disclosure to the judge, the case ended. In several of these cases, uncertainty as to the complainant's credibility or a motive to fabricate was mentioned as a reason for ordering production of the records. The defendant's right to a full answer and defence was also frequently cited often in the context that it should take precedence over the complainant's right to privacy in those circumstances.

In the 11 cases where full or partial production was ordered to the judge and further disclosure to the defence did not form part of the judgement, the reasons were similar to those offered in cases where production to the defence was ordered. Several such cases cited the credibility or potential for fabrication on the part of the complainant as a reason for production.

In conclusion, the way that judges have interpreted s. 278.5 in deciding whether to order production of relevant records has been inconsistent in the post-Mills caselaw. Different judges have placed varying emphasis (and sometimes none at all) on the factors listed in section 278.5(2) and in the guidelines offered by both the legislation and the Supreme Court's interpretation of the legislation in Mills. Privacy has been a key factor in decision-making whereas mention of equality has been quite sparse. However, it is very difficult to determine specific trends with respect to reasoning as the detail in judgements thus far has been so varied.

In Sum

This caselaw review revealed findings that are consistent with previous studies, such as Busby's and Gotell's. For example, in a majority of cases, there was a relationship between complainant and defendant (familial, professional); the majority of defendants were male while complainants were female; complainants were young; multiple records were sought; and records were ordered disclosed/produced to the defence in approximately 35% of cases.

No specific trends in terms of reasons could be discerned from the review with the exception of a greater emphasis on privacy of complainants. This caselaw review provides general and specific information on case characteristics and reasons in decisions in s.278.1 cases. It provides a specific tool with which to monitor trends in jurisprudence. Such monitoring is important to determine whether legislative provisions are working in the manner intended by Parliament. Given the many changes in sexual assault law in Canada over the past twenty years, such research plays an important role to inform policy at the Department of Justice. It will be important to continue research in this area as time passes.


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