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

4. The Caselaw Review

4. The caselaw review

4.1 Research Objective

The objective of this research project was to thoroughly review the QuickLaw database to obtain decisions in all s.278.1 application cases since the Supreme Court of Canada's decision in Mills. The cases are reviewed to obtain the following information: relationship between defendant and complainant; types of records sought; nature of the offence; rationales offered for production; and identification of judicial commentary on the provisions.

4.2 Methodology

For s. 278.1 applications, judges are required to provide reasons for their decisions.[107] Decisions reported on the QuickLaw database were retrieved from December 1, 1999 until June 30, 2003. The time period covers 43 months from the decision of Mills in November 1999.

Cases were reviewed for information on the complainant(s), the defendant(s), kinds of records, whether records were ordered to be produced/disclosed to the judge and to the defendant, and the reasons given in the decision for production and/or disclosure. As well, information on the preliminary inquiry, particularly concerning the cross-examination of the complainant on her records, was reviewed.

This review looked specifically at the use of s.278 records applications. As such, the search terms used were "s.278" ", in conjunction with other possible terms such as "records" or "sexual offences". The process was verified to have been thorough with QuickLaw Customer Service.

Section 278.2 lists the offences for which records applications can be made, so the offences found in these cases accordingly were sexual offences, or those listed in the legislation. Analysis based on kinds of offences is not included.

The researchers began with lists compiled by Karen Busby and Lise Gotell. [108] There were some inconsistencies and duplication of cases. Cases were reviewed to determine whether they fit the criteria of being decisions on s.278.1 records applications. After reviewing the cases on these preliminary lists, a QuickLaw search was completed to update the list and ensure there were no gaps.

A total of 48 decisions were reviewed in this study. The list of cases can be found in Appendix B.

This review is based only on the decisions found in the QuickLaw database.

4.3 Limitations of the Methodology

These decisions are not representative of the total decisions on s.278 and records applications. They do not represent all the situations in which records applications can be made. These decisions, however, are those that are reported and as such, 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 although that database holds 65,000 cases from that province.

Caselaw review is limited in what in can ultimately tell us. In this study, as only decisions on records applications were reviewed, at times certain information is incomplete. A caselaw review cannot reveal perceptions, beliefs or feelings of the key players. It cannot provide representative data on what is occurring for all s.278 records applications. Basically, the decision tells us whether the records applications pass the threshold test for production to the judge and/or disclosure to the defendant and the reasons for the decision.

Further, in reviewing those decisions for information on the preliminary inquiry, one was limited to what was reported by the judge in the decision. In most cases, this was quite limited in contrast to a full account of what occurred at the preliminary inquiry which could have been obtained through transcripts.

A thorough caselaw review will reveal trends in the jurisprudence. In an advocacy context, jurists are prone to the assertion of a proposition and the citation of a case to support that proposition, ignoring cases which might refute that proposition or suggest otherwise. As such, it can perform a useful check on trends that might not accurately reflect the jurisprudence.

A caselaw review will not be able to answer the question of whether applications for records have become standard practice, as only decisions on applications already made are reviewed. The key informant study asked this specific question and the responses of those interviewed will be presented herein to further inform this study. Finally, one cannot state with any authority how likely it is that records will be ordered produced or disclosed.