As noted in the introduction to this chapter, in addition to the Court-created disclosure regime dealing with material in the control of the Crown, there are also regimes governing an accused’s right to access to material that is in the hands of third parties. The context which has driven the development of the law in this area is the issue of an accused’s right to see psychiatric, medical, or other counselling records regarding a complainant, particularly complainants in a sexual assault trial.106
The reason special rules have been developed in this area is the presence of a competing concern to the accused’s fair trial right, namely the complainant’s privacy right. This situation is therefore similar to the interplay between disclosure and privilege. However, it is different because the type of privilege concerned is not a "class privilege," as informer
privilege and solicitor-client privilege are. Although a complainant has a privacy interest in counselling records, those records are not automatically subject to the same kind of blanket protection. Rather, any claim of privilege was originally based on a case-by-case analysis according to the Wigmore test for privilege.107The right to disclosure automatically yields to a class privilege, but individual analysis and the weighing of interests is necessary when dealing with case-by-case privilege.
In addition, other factors distinguish production from disclosure, beyond the greater privacy interest in the material sought to be disclosed. Third parties, who are in control of the records, have no obligation to assist the defence. Further, the records are not part of the case the accused has to meet. All of these factors mean that the accused faces a higher burden than normal in obtaining access to this material, though not as high a burden as when a class privilege is in issue.
As the law has developed, there are now two distinct sets of rules governing disclosure. The first of these was created by the Court with its decision in O’Connor.108Subsequently a second regime was created when Parliament partly overrode the result in O’Connor with sections 278.1 to 278.9 of the Criminal Code. A proper understanding of the current state of the law, then, requires consideration of the Court’s decision in O’Connor, the legislative response to that decision, and finally of R. v. Mills,109the Court’s decision on a Charter challenge to the legislation.110
In O’Connor, the accused was charged with several counts of sexual assault. He obtained a pre-trial order for disclosure of the complainants’ entire medical, counselling, and school records. When the accused was unsuccessful in obtaining all these records, the trial judge entered a stay, eventually leading the Supreme Court to consider the question of the procedure to be applied when an accused seeks documents such as counselling records in the hands of a third party.
The Court created a two-stage process for deciding whether third-party records should be produced. At the first stage, the accused must persuade the judge to examine the record personally. At the second stage, having looked at the records, the judge is required to decide whether to release it or some portions of it to the accused. Most of the controversy has related to what factors should guide the decision at each stage.
A majority of five judges held that at the first stage, it was necessary to consider not just the accused’s right to make full answer and defence, but also to weigh the third party’s privacy interests in the balance.111The accused must show that the records are likely relevant. However, "likely relevance" in this context is a higher standard than the normal question of whether the information may be useful to the defence. Rather, the accused must satisfy the trial judge "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."112While this is a higher standard than normal, it is not to be interpreted as an onerous one, since the accused will have to make submissions to the judge without knowing what is in the record.113The majority suggested that evidence in counselling records may be relevant by containing information about the events underlying the charge, by revealing the use of a therapy influencing the complainant’s memory of the events, or by bearing on the complainant’s credibility.
The majority specifically rejected the minority’s suggestion that at the first stage, in addition to showing likely relevance, the accused should also have to satisfy the trial judge that the salutary effects of producing the documents outweighs the deleterious effects. That question, according to the majority, is confined to the second stage.114
At the second stage, where the trial judge decides whether to order any portion of the record produced, all the judges agreed that a number of factors were relevant to the decision:
(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record
would be premised upon any discriminatory belief or bias [and] (5) the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question.115Four of the nine judges, however, unsuccessfully argued that further factors should be considered:
"the extent to which production of records of this nature would frustrate society’s interest in encouraging the reporting of sexual offences and the acquisition of treatment by victims" as well as "the effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome."116The majority said that the former consideration was a relevant but not paramount consideration,117and that the second consideration was only relevant in deciding admissibility of the evidence, not in deciding whether the material should be produced for the accused.
O’Connor created a scheme which was intended to engage in the potentially difficult balancing between an accused’s fair trial interests and the privacy interests of others. As noted, the actual context for that decision pitted a strong third-party interest against that of the accused-the privacy interest of a sexual assault complainant with regard to therapeutic records. As we will see in the following section, that privacy interest and most similarly strong ones have since been "pulled" from the O’Connor regime by a statutory scheme. As a result the cases left to be analyzed under O’Connor now are only those where the competing interest is likely to be much less compelling than the accused’s fair trial interest. Subsequent caselaw has recognized that point.
The Court has concluded, for example, that once "likely relevance" is made out it is unlikely that a third-party privacy interest can defeat an application for production. It is possible that some redactions might be made or conditions imposed to ensure there is no unnecessary invasion of privacy, but the production claim is likely to succeed. In effect, once an...