Third Party Records Disclosure Applications s. 278 Criminal Code. D. Brian Newton, Q.C.

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1 Third Party Records Disclosure Applications s. 278 Criminal Code D. Brian Newton, Q.C. Preamble Several years ago, I was approached by Victim Services of the Department of Justice in regards to providing independent legal counsel on behalf of complainants who are subjected to an application being made by accused persons under the provisions of s. 278 of the Criminal Code or under the common law provisions as set out in O Connor v. The Queen (1995), 103 C.C.C. (3d) 1 (S.C.C.) I have had the opportunity of participating in applications for production of third party records in approximately twenty cases. In addition to my experience in this particular regard, I have also had the opportunity of reviewing the paper that has been presented by Donald C. Murray, Q.C. and for the sake of brevity, I will try not to repeat many of the points that Mr. Murray has already alluded to. Background Information The Supreme Court of Canada addressed the issues arising in an application for production of third party records in their Judgment in R. v. O Connor supra which was rendered on December 14, Subsequent to the decision in R. v. O Connor, Parliament enacted sections through of the Criminal Code. These sections codified the two step process outlined by the majority in R. v. O Connor, together with some changes and additions, and came into force as of May 12, Since that date, these sections of the Criminal Code have been reviewed by Courts at all levels in regards to the proper interpretation to be placed on an application for production of third party records. The leading decision in this regard is the decision of the Supreme Court of Canada in R. v. Mills [1999] 3 S.C.R. 668, 139 C.C.C. (3d) 321. Complainant s Privacy and Equality Rights It is my position on behalf of complainants subjected to an application for production of their records that the application brought by the accused under the provisions of s. 278 of the Criminal Code requires the balancing of the rights of the accused under s. 7 and s. 11 of the Charter with the privacy rights of the complainant. The Complainant s equality rights have constitutional protection. Section 15(1) of the Charter states: 15(1) Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. -1-

2 The Right to Equality without discrimination was discussed by Madam Justice L Heureux Dube writing for the minority in R. v. O Connor supra at paragraphs 121 through 124. She wrote in part: [121] It is a common phenomenon in this day and age for one who has been sexually victimized to seek counseling or therapy in relation to this occurrence. It therefore stands to reason that disclosure rules or practices which make mental health or medical records routinely accessible in sexual offence proceedings will have disproportionately invasive consequences for women, particularly those with disabilities, and children. In particular, in determining questions or disclosure of records of persons allegedly assaulted in institutions where they get psychiatric assistance, the Courts must take care not to create a class of vulnerable victims who have to choose between accusing their attackers and maintaining the confidentiality of their records. [122] This Court has recognized the pernicious role that past evidentiary rules in both the Criminal Code and the common law, now regarded as discriminatory, once played in our legal system: R. v. Seaboyer, supra. We must be careful not to permit such practices to reappear under the guise of extensive and unwarranted inquiries into the past histories and private lives of complainants of sexual assault. We must not allow the defence to do indirectly what it cannot do directly under s. 276 of the Criminal Code. This would close one discriminatory door only to open another. [123] As I noted in Osolin, supra at p. 500 C.C.C., p. 498 D.L.R., uninhibited disclosure of complainants private lives indulges the discriminatory suspicion that women and children s reports of sexual victimization are uniquely likely to be fabricated. Put another way, if there were an explicit requirement in the Criminal Code requiring corroboration before women or children could bring sexual assault charges, such a provision would raise serious concerns under s. 15 of the Charter. In my view, a legal system which devalues the evidence of complainants to sexual assault by de facto presuming their uncreditworthiness would raise similar concerns. It would not reflect, far less promote, a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration (Andrews v. Law Society of British Columbia (1989), 56 D.L.R. (4 th ) at p. 15 ([1898] 1 S.C.R. 143, 25 C.C.E.L. 255). [124] Routine insistence on the exposure of complainants personal backgrounds has the potential to reflect a built-in bias in the criminal justice system against those most vulnerable to repeat victimization. Such requests, in essence, rest on the assumption that the personal and psychological backgrounds and profiles of complainants of sexual assault are relevant as to whether or not the complainant consented to the sexual contact, or whether the accused honestly believed that she consented. Although the defence must be free to demonstrate, without resort to stereotypical lines of reasoning, that such information is actually relevant to a live issue at trial, it would mark the triumph of stereotype over logic if courts and lawyers were simply to -2-

3 assume such relevance to exist, without requiring any evidence to this effect whatsoever. Bill C-46, now sections of the Criminal Code of Canada, also addresses the issue of equality in its preamble. It states in part: WHEREAS the Parliament of Canada continues to be greatly concerned about the incidence of sexual violence and abuse in Canadian society and, in particular the prevalence of sexual violence against women and children; WHEREAS the Parliament of Canada recognizes that violence has a particularly disadvantageous impact on the equal participation of women and children in society and on the rights of women and children to security of the person, privacy and equal benefit of the law as guaranteed by sections 7, 8, 15 and 28 of the Canadian Charter of Rights and Freedoms; WHEREAS the Parliament of Canada intends to promote and help to insure the full protection of the rights guaranteed by the Canadian Charter of Rights and Freedoms for all, including those who are accused of, and those who are or may be victims of, sexual violence or abuse; The right to privacy of the Complainant also has constitutional protection. The Supreme Court of Canada in R. v. O Connor supra discussed the right to privacy of the complainant and the history of judicial and other protection for this right. Writing for the minority, Madam Justice L Heureux Dube stated in paragraph 110, 118 and 119: [110] This Court has on many occasions recognized the great value of privacy in our society. It has expressed sympathy for the proposition that s. 7 of the Charter includes a right to privacy: R. v. Beare, supra, at p. 77 C.C.C., pp D.L.R.; B..) v. Children s Aid Society of Metropolitan Toronto (1995), 122 D.L.R. (4 th ) 1 at p. 39, [1995] 1 S.C.R. 315, 26 C.R.R. (2d) 202, per La Forest J. On numerous other occasions, it has spoken of privacy in terms of s. 8 of the Charter: see, e.g., Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4 th ) 641, [1984] 2 S.C.R. 145; R. v. Pohorestky (1987), 33 C.C.C. (3d) 398, 99 D.L.R. (4 th ) 669, [1987] 1 S.C.R. 945; R. v. Dyment (1988), 45 C.C.C. (3d) 244, 55 D.L.R. (4 th ) 503, [1988] 2 S.C.R On still other occasions, it has underlined the importance of privacy in the common law: McInerney v. MacDonald (1992), 93 D.L.R. (4 th ) 415 at pp , [1992] 2 S.C.R. 138, 12 C.C.L.T. (2d) 225; Hill v. Church of Scienctology of Toronto (1995), 126 D.L.R. (4 th ) 129, [1995] 2 S.C.R. 1130, 25 C.C.L.T. (2d) 89. [118] In R. v. Plant (1993), 84 C.C.C. (3d) 203, [1993] 3 S.C.R. 281, 24 C.R. (4 th ) 47, albeit in the context of a discussion of s. 8 of the Charter, the majority of this -3-

4 Court identified one context in which the right to privacy would generally arise in respect of documents and records (at p. 213); In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle of personal choice of the individual. (Emphasis added) Although I prefer not to decide today whether this definition is exhaustive of the right to privacy in respect of all manners of documents and records, I am satisfied that the nature of the private records which are the subjectmatter of this appeal properly brings them within that rubric. Such items may consequently be viewed as disclosing a reasonable expectation of privacy which is worthy of protection under s. 7 of the Charter. [119] The essence of privacy, however, is that once invaded, it can seldom be regained. For this reason, it is all the more important for reasonable expectations of privacy to be protected at the point of disclosure. As La Forest J. observed in Dyment, supra, at p. 256 C.C.C., p. 515 D.L.R.:...if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. The majority of the Court in the O Connor decision agreed that therapeutic records attract a stronger privacy interest than many other forms of information. The Decision in R. v. O Connor The Supreme Court of Canada addressed the issues arising in an application for production of third party records in their judgment in R. v. O Connor which was rendered December 14, The majority of the Court held: In our opinion, the balancing approach we established in Stinchcombe can apply with equal force in the contest of production; where information sought is in the hands of a third party. Of course, the balancing process must be modified to fit the contest in which it is applied. In cases involving production, for example, we -4-

5 are concerned with the competing claims of a constitutional right to privacy on the one hand, and the right to full answer and defence on the other. The majority of the Court in R. v. O Connor endorsed a two stage procedure for the production of records. In the first stage the accused must establish likely relevance. Sopinka J. writing for the majority at paragraph 19 writes When the defence seeks information in the hands of a third party (as compared to the state), the following considerations operate so as to require a shifting of the onus and a higher threshold of relevance: (1) the information is not part of the state s case to meet nor has the state been granted access to the information in preparing its case, and; (2) third parties have no obligation to assist the defence. If the accused is able to establish likely relevance, the judge may order production of the records for review by the court. The Court held that the second stage in the procedure required the judge to balance the accused s right to full answer and defence with privacy rights of the complainant or witness. The Court enumerated a number of factors to be considered in balancing the competing rights. Statutory Provisions Subsequent to the O Connor decision of the Supreme Court of Canada, Parliament enacted sections of the Criminal Code. These sections codified the two step process outlined by the majority in the O Connor decision with some changes and additions and were in force as of May 12, Sections of the Criminal Code have been upheld as constitutional in a judgment of the Supreme Court of Nova Scotia dated September 3, MacDonald A.C.J. stated: Having considered this legislation, including its preamble, both on its own and in the context of majority decision in O Connor, I have concluded that the portions of this bill, relative to the application at bar, are constitutional. R. v. Regan September 3, 1998 C.R The sections of the Criminal Code provide that the accused must make application in writing to the trial judge for production of the sought after records (Section 278.3(3)). -5-

6 Section 278.3(4) enumerates 10 grounds which are insufficient on their own to establish that the record sought is likely relevant to an issue at trial or to the competence of a witness to testify. The judge may after a hearing in camera on the issue of likely relevance, order production of the records for review by the judge. To do so the judge must be satisfied that the application was made in accordance with the provisions of section 278.3(2) - (6) and that the accused has established that the record is likely relevant to an issue at trial or to the competence of the witness to testify. Section (1) requires the accused at the stage of production to a judge to demonstrate not only that the information is likely relevant but in addition that the production of the record is necessary in the interest of justice. Section (2) provides that the judge in determining whether to order the production of the record for review shall consider the salutary and deleterious effects on the accused s right to make full answer and defence and the right to privacy and equality of the complainant or witness. Factors to consider are enumerated at subsection (2)(a) -(h). The judge may after review of the document, order that the records are likely relevant and should be produced to the accused. Section 278(1) states that in determining whether to produce records to the accused, the court shall take into account the same factors as considered for production to the judge at the first step of the procedure (278.7 (2) Criminal Code). When ordering production of records to the accused the court may impose conditions on the production (Section 278.7(3)). Like the O Connor decision, the Criminal Code provisions provide that the application be dealt with in a two step process; that the threshold at the first step of the process is likely relevance of the records to an issue at trial or the competence of a witness to testify; and that the onus is on the accused to establish likely relevance. Onus on the Accused The onus on the accused in bringing an application is to establish the likely relevance of the records sought. The burden on the accused was noted by Sopinka J. in O Connor supra to be a significant one. He wrote at paragraph 24: While we agree that likely relevance is the appropriate threshold for the first stage of the two - step procedure, we wish to emphasize that while it is a significant burden, it should not be interpreted as an onerous burden upon the accused. The onus on the accused under the Criminal Code sections is a higher onus than described in the O Connor decision. -6-

7 Meaning of Likely Relevance The majority of the Court in O Connor considered the meaning of likely relevance. It was stated: The Decision in R. v. Mills [22] In the disclosure contest, the meaning of relevance is expressed in terms of whether the information may be useful to the defence: see Egger, supra, at p. 204 C.C.C., p. 689 D.L.R., and Chaplin, supra, at p In the context of production, the test of relevance should be higher; the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak of relevance to an issue at trial, we are referring not only to evidence that may be probative to the material issues in the case (i.e., the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case: see R. v. R. (L.) (1995), 100 C.C.C. (3d) 329 at p. 339, 127 D.L.R. (4 th ) 170 at p. 180, 39 C.R. (4 th ) 390 (Ont. C.A.) Subsequent to the decision in R. v. O Connor and the enactment of Sections of the Criminal Code, the Supreme Court of Canada had an opportunity of considering the legislative framework in R. v. Mills [1999], 3 S.C.R. 668, 139 C.C.C. (3d) 321. In discussing the test which must be applied to determine whether or not an applicant has established that the record is likely relevant to an issue at trial or the competence of a witness to testify Justices McLachlin and Iacobucci stated at paragraph 118: It does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on bare assertions of the listed matters, where there is no other evidence and they stand on their own. The purpose and wording of s do not prevent an accused from relying on the assertions set out in s (4) where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance. (An exception is recent complaint which has been abolished by the jurisprudence and cannot be relied on in any event, quite apart from the section.) The section requires only that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify. This test has been applied by various courts across the country. In R. v. Batte (2000), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449 the Ontario Court of Appeal stated at paragraph 75: -7-

8 The determination of likely relevance under the common law scheme requires the same approach. The mere assertion that a record is relevant to credibility is not enough. An accused must point to some case specific evidence or information to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value. The principles enunciated in both Mills, supra and Batte, supra were applied in R. V. M.(D.) (2000), 37 C.R. (5 th ) 80 (Ont. S.C.J.). Here Justice Hill stated at paragraph 37: The initial stage, whether production should be ordered to the Court for review, calls for the trial judge to apply a likely relevant standard. While the burden is not to be overly onerous, at the same time, the requirement is not to be reduced to an altogether standardless process. Relevance is contextual, a case specific application of logic and experience to determine whether the evidence assists in proving a fact in issue. Whether or not the evidence in question has some tendency to make the proposition for which it is advanced more likely than were the evidence absent requires the Court to assess an evidentiary or informational foundation grounded in the circumstances of the case at hand: R. v. Mills (1999), 139 C.C.C. (3d) 321 (S.C.C.) at 380; R. V. Batte (2000) 34 C.R. (5 th ) 197 (Ont. C.A.) at para. 74" The Nova Scotia Court of Appeal has also considered this issue in R. v. L. (D.W.) 156 C.C.C. (3d) 152. In applying the test for production of the record to the trial judge and finding that it was not met in this case the Court stated at paragraphs 32-34: I agree with the Crown s submission in this case that the Respondent s argument that the complainant s diaries might contain material relevant to the complainant s animus against him is highly speculative and falls far short of establishing likely relevance to an issue at this trial or to the competence of a witness to testify. Further s (2) of the Code requires the trial judge to consider the extent to which the diaries of the complainant are necessary for the accused to make a full answer and defence. As I have indicated, the Respondent made application to have the diaries produced because of that which they might show with respect to the complainant s animus against him. In view of the evidence of that animus which already exists - in the form of the writings on the cell wall - it is difficult to imagine how these diaries, even if they did, in fact, contain evidence of the complainant s animus against the Respondent are necessary in order for the Respondent to make full answer and defence. The trial judge did not consider, in his decision, the extent to which the diaries were necessary for that defence. -8-

9 Conclusion Likewise, the trial judge failed to consider, as he is required to do under s (2), the probative value of the diaries. Even if the diaries contained reference to the complainant s ill will against the Respondent, the probative value of such evidence would be marginal considering the other evidence already available to the Respondent. The difficulty that the Courts must face on a regular basis is to properly balance the accused s ability to access private records of the complainant that may be useful to the accused in asserting his or her defence together with the right of a complainant to have their private records kept confidential particularly from the very person who may have been responsible for the complainant undergoing treatment in the first instance. It is somewhat of a unique situation where a complainant undergoes therapeutic treatment as a result of an allegation that he or she were sexually assaulted and the accused person who is the subject matter of the complaint has an ability to access those very private records. I have had a number of occasions where it was my understanding that if the accused person gained access to the complainant s private records that the complainant would rather not proceed with the criminal charges. In such a scenario it is regrettable that the sections of the Criminal Code that were set up to protect the privacy of a complainant may not afford that protection to the complainant in each and every case. It has been my experience that commesurate with the decision in R. v. O Connor and the enactment of s. 278 of the Criminal Code that the Courts seemed to be wary of producing the private records of the complainant even at the first stage. More recently, however, the Courts have been somewhat more amenable to having the records of the complainant produced at least at the first stage on the basis that there can be little potential prejudice to the personal dignity and right to privacy of the complainant at the first stage as opposed to the second stage when all or a portion of the complainant s records could be made available to the accused. It is my position when representing complainants at a hearing pursuant to Section 278 of the Criminal Code that the privacy rights of the complainant are just as important at the first stage of the hearing as they are at the second stage of the hearing. While admittedly the onus on the accused at the first hearing is not an onerous one, it still is a significant one and my concern, of course, is that records may be routinely produced at the first stage for review by the Judge without the Judge properly taking into consideration, the privacy interests on behalf of the complainant. In this regard as well, I also have some concerns in regards to the applicable tests to be applied at the first hearing. It is clear that the burden rests with the accused and it would be my position that the proper test to be applied at such a hearing would be the civil test, namely, on a balance of probabilities. However, Mr. Murray has quite rightly referred to the decision in R. v. Mills, supra where the Supreme Court of Canada stated: -9-

10 Where there is a danger that the accused s right to make full answer and defence will be violated, the Trial Judge should err on the side of production to the Court. It may be logical to argue that such a comment by the Supreme Court of Canada may even lessen the burden on the accused person to show on a balance of probabilities that the records should be produced at either the first or second hearing. In regards to Section (1) of the Criminal Code, a Judge must be satisfied that the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify and the production of the record is necessary in the interest of justice. It is my position that there may be cases where an accused could establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify but to fail to establish that the production of the records is necessary in the interest of justice. It is also important to note that the accused must satisfy the provisions of Section (1)(b) and (c). In a number of cases that I have been involved in, the accused person in his or her application does nothing more than to make assertions according to the provisions of Section 278.3(4) that are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify. In cases such as these, I will usually assert that the accused is engaging in nothing more than a fishing expedition and is therefore not entitled to the production of any or all of the records sought. Finally, in regards to production of the records, I would refer you to Section 278.7(1) of the Criminal Code and simply confirm that the Judge still has a discretion as to whether or not a record or part of a record will be produced to the accused even if the trial Judge is satisfied that the accused has complied with the provisions of Section 278.5(1) of the Criminal Code. In addition, I take the position on behalf of complainants that if the records or a portion of the records are produced that there should be as many restrictions placed on them as possible in order to protect the privacy rights of the complainant. For example, I usually insist that the record to be disclosed is to be disclosed only to the accused and their counsel or any expert that may be retained by counsel for the accused with the express provision that the contents of the records are not to be disclosed to any third party. I also generally ask that no additional copies of the records be made and that once the accused s trial has been concluded that the original and all copies of the records be returned to the complainant or to the Court for destruction. I will conclude my remarks by saying that I believe that it is logical to assume that a complainant who may have been victimized may seek the need of therapeutic counseling to deal with mental and physical issues that may occur as a result of the alleged violation. It may be somewhat inconsistent to argue that the person potentially responsible for placing the complainant in such a position should have access to those very private records which would not have existed were it not for the alleged conduct of the accused. On the other hand, having some experience as a lawyer for accused persons, I also would conclude that it is the right of any accused person to be able to provide a full and complete defence to the allegations being asserted against them and if -10-

11 they cannot do so without access to the complainant s private records then a disservice may be done to them. It is within this delicate balancing between the complainant s right to privacy and the accused s right to provide a full defence that our Courts must properly interpret the provisions of Section 278 of the Criminal Code on a regular basis. -11-