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

4. The Caselaw Review (cont'd)

4. The Caselaw Review (cont'd)

4.5 Reasons

Given the importance of the likely relevance of the reasons for the production of the records and the list of factors that must be considered by the trial judge hearing the application,[116] the reasons provided for the decision were reviewed.

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" [117] 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 (26/39) where the issue was whether or not to order production of the records, [118] the judge made a general reference to s. 278.5(2), 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 (19) of cases, as was the reasonable expectation of privacy of the complainant, which was discussed by the judge in almost two-thirds (24) of the 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. The least commonly 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. In only one case did the judge go through an analysis of each factor listed in section 278.5(2); in almost a quarter of the cases (9/39), she or he examined five or more of the factors listed.

As a whole, the 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. [119] 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 outlined in the legislation and in Mills were explicitly stated, that was rarely the case for the principle of equality.

This is part of Gotell's critique of decisions on records applications in the post-Mills era. As noted earlier, she suggests that the Mills decision is ambiguous in terms of the emphasis on equality rights. As such, lower courts have not included any equality analysis in their decisions, to the detriment of complainants and to the benefit of defendants.[120] She states,

And while most trial judges in sexual assault cases will be very familiar with how fair trial rights can be used to express the interests and needs of the accused, few judges have any experience in pouring the concerns of complainants into the containers of constitutional privacy and equality rights.[121]

Equality rights are relatively new to criminal cases and law professor Christine Boyle has noted the more frequent inclusion of equality rights.[122] Parliament has certainly taken a leadership role in applying section 15 of the Charter to criminal law. Professor Boyle also notes that

"the judiciary and legal profession are beginning to take equality into account."[123] In practice, however, it is perhaps unsurprising that an equality analysis is less prevalent in these decisions. Professor Jamie Cameron agrees with Gotell and has suggested that lack of experience in equality analysis in the criminal context on the part of the trial judge may be at play. Given the number of factors to consider, judges might not feel compelled to undertake such analysis if it were not seemingly necessary in order to reach a decision on production.[124]

Privacy, however, came up frequently in the reported judgements, more than any other factor. In 4 cases the judge focused almost exclusively on privacy interests while excluding any detailed analysis of other factors.[125] 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.[126] 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'".[127] 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.[128] This would also apply to medical and psychiatric records, which as noted earlier, comprise the majority of records sought in the cases reviewed.

In many of the post-Mills judgments, the judge displayed an understanding and consideration of the complainant's right to privacy, although this did not necessarily result in a decision not to order production. For example, in R. v. D.M., the court stated the following with respect to the complainant's diary, psychiatric records and counselling records:

To grant the order sought on the material presented would in effect condone routine production for review orders without a reasonable possibility of advancing full answer and defence while creating prejudicial consequences and possible revictimization for a sexual assault complainant.[129]

With respect to the diary of the complainant, the judge stated:

A diary generally contains significantly intimate thoughts, ideas, and emotional recordings. As such, there exists a high expectation of privacy in a personal diary and, with disclosure, even to the court, prejudice is occasioned to the personal dignity and right to privacy of the complainant.[130]

The above judgment would appear to reflect the Supreme Court's analysis of the privacy interests of a complainant offered in Mills. In other post-Mills judgments however, although the court considered the issue, the complainant's privacy interest in her or his records were not accorded nearly the same level of deference. For example, in R. v. R.B., the judge used the privacy interests of the complainant to justify production to the court:

There is no doubt but that the expectation of privacy is very high as it relates to these records. There are no doubt intimate and private records which may well reflect on past history are of a very personal nature. It is for that reason that the record should be produced to the court to make a further determination as to whether it should be disclosed. Some of the record may relate to events which are in no way connected to the allegations before the court. As such, it should be reviewed by the court to make a determination as to whether it should be released to the defence.[131]

Similarly, in R. v. L.P.M, the judge remarked that with Children's Aid Society records there is a reduced expectation of privacy when the contact is initiated to spark an investigation.[132]

For Gotell, the emphasis on privacy is troubling in that "… it encourages a kind of legal analysis that is both degendered and decontextualized."[133] The author of this review, however, suggests that an opposite conclusion is equally valid.[134] The emphasis on privacy, which was the most commonly cited factor in the cases reviewed (29), demonstrates a contextualizing of the entire criminal justice process for a complainant. Cameron makes this point very clear:

The discussion begins by acknowledging the significance of privacy in sexual assault proceedings… Privacy concerns do not stop there, however, but continue through the investigative and trial processes. At every stage, the complainant's credibility is open to question. In addition to the unavoidably private nature of a sexual offence, which can only be revealed by the complainant, the victim has in the past been subject to inquiries into the history of other activities. More recently, complainants' privacy has been threatened by defence claims for access to counselling and therapeutic records which are in the possession either of the Crown or private third parties.[135]

The importance of the development of a Charter right to privacy through sexual assault proceedings should not be quickly dismissed. The decisions reviewed herein demonstrate that during applications hearings, judges understand and accept its role in the balancing between accuseds' and complainants' rights.

In the 40 cases where an order re production was decided, [136] no production was ordered in 15 cases.[137] 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.[138]

Of the remaining 25 cases, partial or full disclosure was ordered to the defence in 14 cases. 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 remaining 11 cases, after partial or full production to the judge, the case ended. While there were no further reasons for not ordering production to the defence, the initial reasons for production to the judge were similar to those offered in cases where production to the defence was ordered. Several cases cited the credibility or potential for fabrication on the part of the complainant as a reason for production.

The perceptions of the key informants interviewed in Mohr's study certainly support the findings of the caselaw review.[139] For example, the judges interviewed listed the rationales for disclosure: history of lying, veracity, ability to recall, a psychiatric record suggesting the complainant is delusional or has a history of blackouts, credibility (inconsistent statements), and the use of medications that affect memory.

Of note, the judges were generally very uncomfortable with the task of reading records. One judge expressed the concern that since there are no guidelines for judges on how to read the records, "the judge is reading them in the dark, the Crown and defence don't know what the judge has read and if something comes out later in the trial, the judge cannot ask for time-out to check what he or she has read".[140]

Judges also believed that it was likely that records would be produced to the judge, although not necessarily the defence, in cases where applications are made.[141] The caselaw review certainly demonstrated that where records were ordered produced to the judge, they were not necessarily handed over to the defence, or if they were, the records may have been edited, such that only partial production would have been ordered.

All of the Crowns mentioned inconsistent statements and credibility issues as the most common rationale used by defence counsel in applications for production. They further noted that the decision of the Ontario Court of Appeal in Batte was extremely helpful in blocking these kinds of applications. The decision is unequivocal with clear statements from Doherty J. that the mere fact that a complainant spoke to a therapist does not "get you the records". Some Crowns felt that the likelihood of production of records to the judge depends on both the individual judge and the individual complainant.

All of the defence counsel said that testing credibility through inconsistent statements was the primary rationale for record production. The independent counsel for complainants agreed that defence counsel were primarily looking for inconsistent statements. One independent counsel felt that judges, as a rule, do not look at records unless a "really good connection" is made. The other independent counsel felt that judges will view the records in about 50% of the cases. The caselaw review supports this perception in that records were produced to the judge in more than half the cases (25 out of 40). Again, counsel commented that Batte is an extremely important case to make judges aware that there is in fact a significant threshold before production can be ordered.

The experiences and perceptions of key informants from that study add a more in-depth understanding to the process and thinking behind records applications. It appears that the case of Batte has provided clarity on threshold for many


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