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

2. Background

2. Background

"Disclosure" refers to the responsibility of the Crown to share information with the accused. "Production" refers to any responsibility of a third party to fulfill the accused's right of full answer and defence and will be the term generally used in this review. In the 1991 Supreme Court case of R. v. Stinchcome, the court established that "information ought not to be withheld if there is a reasonable possibility (of impairing) the right of the accused to make full answer and defence." [9] This rule was quickly challenged in subsequent caselaw on two points: whether certain kinds of information may be exempt from disclosure or production; and whether the right of full answer and defence can be enforced against third parties.

As L'Heureux-Dubé J. noted in O'Connor,

" .… when an accused is unable to make full answer and defence.… as a result of his inability to obtain information that is material to his defence, it is of little concern whether that information is in the hands of the state or in the hands of a third party."[10]

2.1 Bill C-46

The issue of disclosure and production of third party records had attracted considerable attention in the mid-nineties. Gordon Kirkby, Parliamentary Secretary to the Minister of Justice, spoke to the House of Commons during discussion on a motion that Bill C-46 be read a second time. He noted that some two years earlier, the Minister of Justice had been informed of cases where access to personal records was being sought.

Some critics of Bill C-46 contend that this legislation is simply a knee-jerk reaction to the Supreme Court's decision last December in O'Connor. This is not the case. The trend to seek out personal records emerged several years ago and was brought to the attention of the Minister in June 1994 when he met with national women's groups.

The Minister launched an extensive consultation two years ago to fully explore the extent of the problem, its impact on sexual offence victims and possible solutions. The consultation process has included equality seeking women's groups, victim advocates, service providers, the defence bar, crown attorneys and the provincial attorneys general. The consultation process began before and continued after the Supreme Court's hearing and decision in O'Connor.[11]

Bill C-46 was the result of much consultation that had begun prior to the O'Connor hearing at the Supreme Court and after the decision was released as well. The Commons Standing Committee on Justice and Legal Affairs held several sessions in March 1997 and heard from numerous witnesses. Representatives from women's groups supported the bill, but suggested amendments to extend protections to complainants. The Canadian Mental Health Association also supported the legislation, with an amendment. The Criminal Lawyers' Association of Ontario and the Canadian Council of Criminal Defence Lawyers were not in support.

Those against the legislation argued that complainants are not reluctant to report cases of sexual assault because there are so many cases before the courts, and also, citing anecdotal evidence, that a significant proportion of sexual assault allegations are untrue and thus, testing credibility through access to records are critical.[12] Empirical evidence from Statistics Canada, however, highlighted the low reporting rates.[13] Further evidence presented to the Committee indicated a situation in the aftermath of O'Connor described by women's groups as "increasingly more confusing" as lower courts seemed to be applying the O'Connor test of "likely relevance" to result in an "as of right" production and disclosure of records to the defence.[14]

Those witnesses for the Committee who supported Bill C-46 spoke about the myths and stereotypes surrounding sexual assault when the complainant's credibility appears to be on trial and their privacy invaded at all levels. Bill C-46 was designed to balance the rights of the accused with those of the complainant. Balancing ultimately involves compromise between competing rights, and this exact balance may differ depending upon the particular circumstances of each case.

The Preamble to Bill C-46 sets out the principles underpinning the provisions. The Preamble frames the amendments within the context of violence against women and children in Canadian society and the grave social ill that such violence causes. It states in part that,

"… the Parliament of Canada recognizes that violence has a disadvantageous impact on the equal participation of women and children in society and on the rights on women and children to the security of the person, privacy and equal benefit under the law… ".[15]

It is interesting to note that the first example of the explicit reference to equality as constitutional support for criminal legislation was in the Preamble of Bill C-49, a piece of legislation that also enacted changes to sexual assault law. The Preamble of Bill C-46 was cited in the Mills decision,[16] and must be "read as a part of the enactment intended to assist in explaining its purport and object."[17] In a recent key informant study, however, counsel for complainants on records applications have noted that referring to the Preamble does not appear to carry much weight in applications arguments where relevancy is key.[18]

The Preamble and the relevant provisions, sections 278.1 to 278.91 of the Criminal Code, are found in Appendix A.

The records included in such applications are defined in s.278.1:

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.

In determining whether a record should be produced, section 278 lays out a two-stage process. At the first stage, the accused must prove that the record is "likely relevant to an issue at trial or to the competence of a witness to testify" and that "the production of the record is necessary in the interests of justice". [19]

In making this determination, a judge is to consider the salutary and deleterious effects of her or his decision 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.[20]

The provision then states that the judge shall take into account eight factors, which include the following:

  1. the accused's right to make full answer and defence; the probative value of the record;
  2. the reasonable expectation of privacy with respect to the record;
  3. whether production of the record is based on a discriminatory belief or bias;
  4. the potential prejudice to the record holder's privacy or personal dignity;
  5. society's interest in encouraging reporting sexual offences;
  6. society's interest in encouraging complainants of sexual offences to seek treatment; and
  7. the effect of production on the integrity of the trial process.[21]

In Mills, the Court stated that each of the above-mentioned factors does not require an in-depth and conclusive evaluation; rather, they serve as a check-list of factors that may come into play in the judge's decision about whether to allow production of the record.[22]

Applications are made to the trial judge, to avoid disclosure requests at the preliminary inquiry and to establish a more robust test for disclosure. A written application is required to indicate how the record is "likely relevant to an issue at trial or the competence of the witness to testify" and also how the production of said record is "necessary in the interests of justice." A number of reasons are included, which will not meet the criteria of "likely relevance":

  1. the existence of a record; that the record may contain prior inconsistent statements;
  2. that the record may relate to the reliability of the witness because she has received therapy;
  3. that the record may reveal other allegations of sexual abuse; and,
  4. that the record relates to sexual reputation.[23]

Given the tensions around the issue and the balancing between the accused's and the complainant's rights, it seemed inevitable that the legislation would be tested in the courts.[24] Given the lack of certainty over the constitutionality of the provisions, an appeal from the Alberta Court of Queen's Bench in R. v. Mills was quickly heard at the Supreme Court of Canada.

2.2 R. v. Mills

In the case of R. v. Mills, the Supreme Court revisited its decision in O'Connor and affirmed the view of the minority that the principles of fundamental justice that inform the accused's rights to full answer and defence do not include the right to evidence that would distort the search for truth inherent in the trial process. The defendant, Brian Mills, had been charged with one count of sexual touching and one count of sexual assault. The offences allegedly took place in 1995 when the complainant was 13 years old. At the trial level, Mr. Mills sought full disclosure of all therapeutic records and notes relating to the complainant. The trial judge held that the provisions of Bill C-46 violated the defendant's rights under s. 7 and s.11(d) and declared the entire scheme unconstitutional.

The decision recognized that privacy rights are most at stake where a record concerns aspects of one's individual identity or where confidentiality is crucial to a therapeutic or trust relationship. It upheld the test set out in s.278.1 that was drafted with the intent to prevent myths, stereotypes and assumptions regarding complainants and classes of records from forming the entire basis of an otherwise unsubstantiated order. Mills incorporates an equality analysis in its consideration of the truth-seeking objectives of the process.[25]

2.3 Secondary Literature

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 and analyses on the legislative amendments and the several Supreme Court of Canada decisions. While an exhaustive review of the literature was not part of the scope of this study, a few pieces have been selected to illustrate the range of perspectives.

For example, prior to the Mills case, law professor Bruce Feldthusen criticized the O'Connor judgement noting that, "the court might as well have approved production to a judge alone as of right."[26] Submissions to the Committee during hearings on Bill C-46 certainly supported this prediction with evidence that production to the judge was common.[27]

Law professor Karen Busby undertook a review of records cases for the Department of Justice in the aftermath of the O'Connor decision and before Mills.[28] Busby's findings carry the same limitations as this current review, in that one cannot determine: whether applications are standard practice for defence, what the actual frequency of production to the judge or disclosure to the defence is, nor what overall trends on reasons for production/disclosure.[29] Overall, she found that, "the defendant obtained (or was denied) disclosure of records in about 50 per cent of the cases reviewed both before and after Bill C-46."[30]

Women's Studies professor Lise Gotell has written on both C-46 and C-49 caselaw through feminist discursive analysis.[31] She argues that while the Mills decision has been highly lauded, it is a contradictory decision and it interprets s.278 in such a way as to erode its meaning and intent. Gotell suggests that "Charter rights discourse invades the test for likely relevance"[32] in that fair trial rights override consideration of the needs, harms and interests of the complainant. She is critical of the court's discussion of privacy and suggests that underlying the discussion is "a highly individualistic and atomistic understanding of complainants' concerns."[33] The decision individualizes the complainant who is not seen as someone who is part of different relationships that are based on power and control and it limits one's ability to construct an "authoritative version of events".[34]

Other writers include law professor Jamie Cameron[35] who is critical of the decision in R. v. Mills in light of a seeming reversal of the Court's reasoning in O'Connor. She argues that the Court's deference to the weight given by Parliament to consultations in the legislative process suggests that the consultation process leading up to Bill C-46 was limited and favoured women's equality-seeking groups. Steve Coughlan comments on the relationship between the courts and the legislature noting that "the Court did its best to interpret the legislation to conform to its earlier judgement in O'Connor".[36]

Prior to the Mills decision, there was significant writing on Bill C-46, such as that by law professor David Paciocco, who critiqued Bill C-46 arguing that it should not survive a constitutional challenge as it denied the accused the right to full answer and defence.[37] From the defence bar, there was also significant discussion after Mills, in general calling into question the Court's deference to Parliament.[38]

Professor Cameron completed a report for the Department of Justice entitled, "Victim Privacy and the Open Court Principle."[39] She provides an excellent review of caselaw on the issues and finds that almost exclusively in the context of sexual assault proceedings, the status of crime victims changed radically under the Charter. It is within the context of conflict between the rights of the accused and the complainant that the Supreme Court of Canada recognized a right of victim privacy under s.7 of the Charter, and placed it on an equal plane with the defendant's right of full answer and defence. The author views this as a critical development because of the importance of linking the privacy concerns which arise at different times and for different reasons in sexual assault proceedings.

There have also been several socio-legal studies. For example, Gotell cites a study undertaken by doctors working at the Sexual Assault Service at Vancouver General Hospital where the rate of police reporting declined steadily between 1993-1997. The authors do not link this decrease in reporting and the rise of dislosure/production applications.[40] Researchers Margaret Denike and Sal Renshaw looked at caselaw prior to the Mills decision and interviewed health and social service professionals in British Columbia to find that overall there remains a climate of hostility toward women complainants in sexual assault proceedings and that Bill C-46 has helped very little.[41] Research on record keeping practices at sexual assault centres has also been undertaken.[42]

The Department of Justice has undertaken significant social science research, focusing mainly on assessing the impacts of the numerous legislative changes in the past two decades.[43] A survey of sexual assault survivors was completed in collaboration with the Canadian Association of Sexual Assault Centres (CASAC). One finding of the study was that, "women said that they were unwilling to risk being re-victimized by 'being put under a microscope during the trial,' by having their personal life exposed in front of their abuser and others, or by having their personal information used against them."[44] The women indicated that this violation did impact their counselling relationship.[45]

A recent study involved in-depth interviews with criminal justice professionals (judges, Crown, defence, police, third party record keepers and independent counsel) in Ottawa and Toronto about their perceptions regarding the impact of both Bills C-46 and C-49.[46] The results, while not generalizable, complement this caselaw review and will be referred to throughout the report. The following section provides recent statistical information on sexual assault in Canada to provide a context for the prevalence of reported and unreported incidents.


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