R. v. Mills [2001] Judges must balance rights of victims to privacy and rights of accused person to make full answer and defence when ruling on production of records.
180 D.L.R. (4th) 1
FACTS
Sexual assault case in which the accused person wanted access to complainant’s medical records in order to mount a defence. He argued that Bill C-46 in precluding his access to the records violates his right to make a full answer and defence to the charges against him because they add the requirement that producing documents be “in the interests of justice” and thereby violates his rights under the Charter. The court of appeal agreed with the accused that Bill C-46 is unconstitutional and the Crown appealed.
ISSUES
Do the amendments to the Criminal Code brought on by this bill (specifically ss. 278.1 and 279(1)) violate the Charter?
HELD
No. Crown’s appeal allowed.
RATIO
The respondent’s (accused’s) reading of the impugned provisions is incorrect because the requirement that production of records be “in the interests of justice” never means that an accused be denied the right to make full answer and defence. When analyzing the rights and interests of those affected by production, if the judge is in doubt, the interests of justice require the judge to take the step of viewing the documents for him- or herself.
NOTES
There was a history behind this case: O’Connor, in which, by common law, the court set out a scheme by which this evidence would no longer be generally admissible and the accused would bear the burden of trying to show that the records should be produced. Before this, there was no such rule and this evidence was generally admissible. O’Connor created a certain therapeutic privilege in sexual assault situations.
There are two steps on producing records:
Production: Records produced to the court (but not to the defence)
Disclosure: Records are produced to the defence
The heart of the disagreement between O’Connor and Mills is that the accused in O’Connor had to show that the record is likely relevant to him at trial. The defence must show likely relevance, though, without seeing the record. The only issue to be considered in having the record produced to the court is the likely relevance. In Mills it is the potential prejudice to the complainant and integrity of the trial process that must also be considered.
whether the information is prejudicial and misleading when exported outside the therapy scenario
Sklar would have stayed with the O’Connor ruling and would have left out the other factors that the legislation brings up for the production stage.
R. v. Batte (2000) Likely relevance threshold: info must not already be available to defence and must have some impeachment value.
145 C.C.C. (3D) 449 (Ont. C.A.)
FACTS
Sexual assault case that is pre-statute and pre-Mills. In 1979, the accused hired 13-year-old sisters to work on his farm in exchange for allowing them to ride his horses. He allegedly sexually assaulted them over a period of several months and was convicted of indecent assault and rape in relation to the girls. The accused denied the events took place and convinced the motion judge that the records were likely relevant to a fact in issue and thus the records were produced to the judge (stage 1). The motion judge reviewed the records and held they could not assist in making full answer and defence and declined to order disclosure to the defence (stage 2 not fulfilled).
ISSUES
Did the trial judge err in refusing to order production of the complainants’ therapeutic record?
HELD
No. Accused’s appeal dismissed.
RATIO
Records will pass the likely relevance threshold (for review by the court, production stage) only if they can potentially provide the accused with some added information not already available to the defence or have some impeachment value.
NOTES
Remember the distinction in O’Connor between relevance for the purposes of determining the Crown’s disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.
In the later statute (upheld even later by Mills) the allegation that the record relates to the incident that is the subject matter of the proceedings will not establish likely relevance. This is important in understanding this case.
Obiter with which Sklar profoundly disagrees: paragraph 78—The appellant did not establish likely relevance. “[The records] should not have been produced to the judge much less disclosed to the appellant.”
Sklar: What section 278 seeks to protect is the privacy of the complainant and not respect for the court. For the court to review something (production) is not nearly the invasion of privacy that disclosure to the defence would be, which is why O’Connor had different threshold levels for either stage.
Remember that any statements made to the police must be made available to the accused.
Oslin (1993): Consent vs. no consent case. There was no prohibition on medical records at this time. Defence could obtain them. Complainant had said to a therapist that her behaviour could have influenced the accused (How?) to some extent and she was having second thoughts about the case (Why? Because she should not have brought the charges?). This would be the kind of specific information, which if obtained by the defence in a preliminary hearing, would allow cross-examination and the judge to produce the material. The evidence here is quite material and the cross-examination would be vigorous. This is the kind of material that would be admissible at trial. [Could the complainant’s guilt have influenced her remarks? In therapy sessions, a lot of stuff comes out that may or may not be true.]
R. v. Shearing (2002) S.C.C.: Accused had access to complainant’s diary. Section 278.1-.9 regime did not apply because diary was not in possession of complainant or third party. Privacy interest is not very strong. This is not a case regarding production or disclosure, but one regarding admissibility, where the common law rule applies of weighing the prejudice to the complainant in relation to the probative value. Accused sought to show that since there was no reference to the sexual abuse in the diary, there should be an inference that no such abuse took place. Does this play into the myth that a woman will always make an immediate complaint? (L’Heureux-Dubé’s dissent) [Probative value need not be significant but in this case the prejudice to the complainant was found to be relatively insignificant.]
Guest Speaker: Dr Alana Furlong
(Co-chair of Canadian Psychoanalytic Association)
Lawyers don’t understand what happens in the consulting room.
Garner v. Stone (2000) Georgia: Case of a policeman (Garner) having problems with his superiors. He went to see a therapist (Gonzales) who asked an expert (Stone) to do some forensic psychology on Garner, who ended up describing some violent fantasies about his bosses. Gonzales (original psychoanalyst): The way psychologists and lawyers think is entirely different. Human behaviour is more complex than the legal establishment presumes. That which goes on in a courtroom is not a rational process though it appears to be.
Judicial system is imposing a double standard: attorney/client privilege is protected much more strongly then psychologist/patient confidentiality.
Attorney/client communications are excluded not because it isn’t relevant but because of overriding policies.
Objects to Mills: Dr Furlong would restrict access to the dossiers of any psychotherapy situation and that the Crown should have just as little access to these files as the defence. Dr Furlong distances herself from the feminists, saying they are at times opportunistic and self-serving in their stance on this issue.
Distinguish between privacy and confidentiality: confidentiality is the issue Dr Furlong wants to defend. Confidentiality protects the relationship, not the patient. When a sexual assault victim speaks to her therapist, there are all sorts of regressive memories coming up and the information is contaminated by the nature of the psychotherapy relationship, which itself, is one of authority (therapist as authority figure).
Lawyers cannot separate the reliable from unreliable aspects of psychotherapy.
Makes the distinction between expert evidence and evidence from the therapist.
Concept of deliberative privilege: there are certain situations where we consider there should be a confidential space to allow experimental thought to take place before taking it to an adversarial process.
