R. v. Girard
Her Majesty the Queen, and
Leo Joseph Girard
 O.J. No. 1447
Ontario Court of Justice (General Division)
Oral judgment: March 15, 1995.
Evidence -- Witnesses, privilege -- Doctor-patient communications -- Medical records -- Sexual abuse.
This was an application for production of medical records in the trial of an accused charged with indecent assault, incest and gross indecency. The charges involved incidents which allegedly occurred between 1969 to 1982. The accused sought disclosure of the material facts and details of the oral communications material relevant to the complaint. The judge would review the materials to determine what was relevant and should be released.
HELD: The material was to be produced for inspection by the court. Credibility and reliability of the complainant's evidence in a case such as this were critical in the consideration of the total evidence. The test for production was whether the information was likely to be relevant. This was a minimum test. It was not as high as a balance of probabilities.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 7, 11(d), 15.
R. Guthrie, for the Crown.
D. Tait, Q.C., for the accused.
R. Colautti, for the Sexual Assault Crisis Centre.
1 CUSINATO J. (orally):-- The accused is charged with several counts of sexual improprieties. These charges involve historical incidents which are alleged to have occurred between the years 1969 to 1982 as to the complainants named. It is with this background I deal with the issues before the court. Separate applications for disclosure of private communications made to the Sexual Assault Crisis Centre (S.A.C.C.) brought by the accused relative to each complaint before this court.
2 The question for this court's determination is as set out in R. v. O'Connor, 90 C.C.C. (3d) 257 at page 259 and 260. When is the accused's right to make full answer and defence to take precedence over witnesses' privacy interests in their medical records. This last term to include private communications in the nature of therapeutic treatment generated in circumstances giving rise to an expectation of confidentiality.
3 The information here sought from S.A.C.C., a counselling service for victims of sexual assault, are the material facts and details of the oral communications material and relevant to the complaint reduced to writing. The extent of this disclosure as asked for by de fence counsel is restricted in its application to the material facts as exchanged between the complainant and the counsellor or others of past events of sexual abuse now the subject of the charges before this court. In this regard, the accused seeks an order as to the private communications of each complainant restricted to relevant material facts. The form of the order requested follows: That the Sexual Assault Crisis Centre deliver a copy of the S.A.C.C.'s file concerning each named complainant to the trial judge. That the trial judge review the materials with a view to determining what, if any, documentation and information therein is relevant as to material facts and details reported to a counsellor or others which should be released for full answer and defence.
4 The terms of the requested order is limited to material probative facts relevant to the issues before the court, not irrelevant material to abuse the dignity and integrity of the individual. This Application, then, deals with the important principles of the right of an individual, in this instance the complainant, to confidentiality with the equal right of an accused to the equal protection and equal benefit of the law. Although these words, "equal protection", and "equal benefit of the law", are found within section 15 of The Constitution Act and refer to equal rights for all individuals, here we are dealing with the rights limited to three individuals; the complainants as witnesses and the accused as charged. But these words, nonetheless, appear equally applicable to the question here for determination.
5 Mr. Raymond Colautti, counsel for S.A.C.C., was given status to represent the interest of the institution as well as, indirectly, the complainants to oppose disclosure of the private communications. It is confirmed for the record by counsel that the complainants opposed disclosure of their private communications. Mr. Colautti's position on the issue of status to make submissions upon this Application relative to issues of privacy and privilege accords with the findings of the British Columbia Court of Appeal in R. v. O'Connor, supra, page 267. His status and presence meets an appropriate and important procedural requirement of an interested party.
6 In his submissions, counsel for the third party referred to several articles for the court's consideration as to the importance of maintaining the right of confidentiality and the right of private communication as being equally important to that of the accused in balancing what is in societal interest. Mr. Colautti infers from his review of the material that because the complainant in these private sessions is expressing her feelings intermingled with the abuse that has taken place, the information of events is not necessarily sequential in time as to content, the number of incidents, the total abuse involved, the precise time of occurrence, and so on. Or, are the statements carefully worded, guarded or modified by the complainant for the review of others to be used for cross-examination later in an abusive manner to discredit the witness. I will take but one passage, as taken from the materials referred to, to make Mr. Colautti's point. The Privilege of Confidentiality and Rape Crisis Counsellors 1985, 8 W.R.L.R. 188.
"In treating rape trauma syndrome there is a need to establish early a close, supportive relationship with a trained, empathic counsellor. During this period of initial support and stabilization, it is essential that the victim be able to express her whole range of feelings without fear of judgment, rejection, or recrimination. She must be confident that her conversations need not be censored or in any way modified. Many victims will feel both shame and guilt about the incident but will have difficulty expressing these feelings. Such manifestations of rape trauma syndrome make it imperative that the rape counsellor be in no way hindered in her attempts to aid the victim. In addition, unlike most people who seek therapy, rape victims have a fear of disclosure which is neither remote or speculative. The victim of a sexual assault knows that the State's interest in prosecuting and punishing the offender makes it likely that the matter will be aired publicly. If the victim believes that her statements to a counsellor may be of interest to third parties, and in fact they are, she may well be concerned that her discussions with her counsellor will not remain confidential. Without absolute assurances of the confidentiality, the rape victim will be inhibited in her communications with her counsellor and will therefore be unable to benefit completely from counselling. Without those guarantees the rape victim is more apt than the general population to be deterred from seeking counselling."
7 Mr. Colautti submits that the real test, then, is whether one important interest should prevail over another where often the request is nothing but a fishing expedition and intrusion into privileged communications not required for a proper defence. In this, Mr. Colautti asks, "Should not the privacy interest of a citizen complaining of abuse to a counsellor of S.A.C.C. be extended to grant privilege of confidentiality over the rights of an accused to have disclosure of these documents? Does not society, and through them the courts, consider such a value of privacy sufficiently important to justify restrictions on the search for truth?"
8 Mr. Colautti refers to the case of The United States v. Brown, 634 Federal (2d) 819, the Fifth Circuit Court, in dealing with these principles. The court, in dealing with a similar issue, stated that where the rights of an accused to privileged information is in issue and the defendants Sixth Amendment rights will be violated if the information is not available the court considers a test to determine which right is superior under the circumstance. That test appears to be whether the information is absolutely necessary for full answer and defence.
9 Disclosure of any private communication transgresses the important societal right of confidentiality given under circumstances where statements made were given with this understanding. The court, in dealing with this test, went on to say:
"Where the interest protected by the confidential communication surpassed the defendant's need for the information, access in cross-examination on the privileged communication may be prevented."
10 Various exhibits have been filed to establish S.A.C.C.'s policy of confidentiality as given to each complainant demonstrated by Exhibit Number One and Three filed. Nevertheless, even in the terms of this contract it is recognized that the right of confidentiality to the materials therein is not absolute and is subject to production and compliance, within the law, by the third party if requested by the court.
11 Lydia Fiorini, the Executive Director of S.A.C.C. outlines in her affidavit the specifics as to why it is in the public interest that individuals who may have been abused and who suffer psychological trauma seek the centres assistance. She states there is a necessity for confidentiality where the victims are free and uninhibited to review and disclose their inner most thoughts concerning the trauma they have experienced. In the position of the Centre, this assurance is necessary for the treatment of the individual who may have suffered many instances of abuse for sexual gratification.
12 Few could argue that such therapeutic therapy is not in the interest of the public or generally beneficial to the individual seeking assistance. That, of course, is not the issue. It is, rather, the right of the accused to know the facts which may be material to the issues before the court. The consistency of material facts reported to the Centre may be of extreme relevance for cross-examination. In this regard, it may be the subject of critical weight in the court's assessment of the complaint. While the right of confidentiality in these circumstances is an important right, this right of the individual complainant as to non-disclosure of material facts must be balanced with the important right of an accused to make full answer and defence. Section 7 of The Charter entrenches the accused's right to life, liberty and security of the person. These rights are not to be denied except in accordance with the principles of fundamental justice. Added to this provision is the consideration of section 11(d) of The Charter which provides that every person charged with a criminal of fence is to be presumed innocent until proven guilty according to law in a fair and public hearing.
13 In my consideration of R. v. O'Connor, supra, the court sets out a two stage test or procedure in determining whether therapeutic records of a witness should be disclosed.
14 In the first stage, the court states that the Applicant must show that the information contained in the medical records is likely to be relevant either to an issue in the proceeding or to the competence of the witness to testify. In this consideration the court goes on to say that while a liberal interpretation of the word, "relevant", is to be encouraged it is not to be encouraged without due regard for other legitimate, legal and societal interests including the privacy interests of complainants in sexual assault cases. The court also, however, states that the test as to relevancy is a less stringent test in the court's consideration at the first stage since at this point of time, when the Application is made, it is unlikely that anyone other than the witness and the therapist will know what is in the records.
15 In the second stage, the court states that the court is involved in a review of the documents to determine if stage one is met as to what materials, if any, should be disclosed to the defence. In this stage, the disclosure as mandated is in the sense that without it the accused's ability to make full answer and defence would be adversely affected.
16 In referring to the definition of relevance in The Shorter Oxford English Dictionary, Third Edition Revised, it is defined as "pertinent, applicable to the issue". Material evidence is defined as "evidence that proves or disproves an important view of the cause in dispute." In law, then, the material or the facts are important to perhaps influence or affect the result.
17 In McWilliams Canadian Criminal Evidence, Third Edition, 1990, pages three to five, found in R. v. O'Connor, supra, at page 264, the case reviews the traditional definitions of what is relevant and includes the comment that it is whatever accords with common sense. As stated in McWilliams, "Relevant means that any two facts to which it is applied are so related to each other that according to the common course of events one, either taken by itself or in connection with the other facts, proves or renders probable the past, present or future existence or non-existence of the other."
18 If the intake form filed as Exhibit Number Four herein is reduced to writing, how can it be said even without knowing it's contents that the complaint itself; as to the number of times an inappropriate act took place, when and where it took place, is not relevant to the issue. The answer to these questions would be material facts, but as to whether they are appropriate for cross-examination as stated in R. v. O'Connor, supra, is to be left to meet the criteria if cross-examination is sought as to the relevance to the particular issue in the proceeding. By example, an inconsistency in the reporting.
19 Mr. Tait, in dealing with the question of material facts as it relates to the second stage, submits and uses the words from R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1, page 12, a decision of The Supreme Court of Canada, that when dealing with the second stage of the test as to the production of material disclosed in the private documents, the question for the trier to ask is whether disclosure is necessary because there is a reasonable possibility that such material is important to full answer and defence. And, if that is the case, it is to be disclosed.
20 If, then, in such Application the accused is able to satisfy the threshold tests that the production sought is likely necessary in the interest of justice, or more specifically likely necessary for full answer and defence, is not the law of confidentiality to give way to the paramount right of the security of the person. The law and the procedures that apply to privileged communications or confidentiality must be fair and balanced to the right of an accused to have available all material facts relevant to the issues to be determined. The right of confidentiality, then, must be servient to the superior rights of an accused provided by section 7 and 11(d) of The Charter if the contents of the private communication are relevant, material, and probative to the issues to be determined.
21 This right of an accused, as I have stated, does not necessarily mean complete disclosure of S.A.C.C.'s entire file. It is, rather, disclosure after an investigation by the trial judge of relevant material facts and details appropriate for disclosure relative to the charges before the court. In this, I refer to R. v. Stinchcombe, supra, at page 12. Not for its facts but the principles of the right to disclosure versus the right to confidentiality.
"The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless non disclosure is justified by the law of privilege. The trial judge might also, in certain circumstances, conclude that the recognition of an existing Privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and, thus, require disclosure in spite of the law of privilege."
22 Where the entire complaint relates to events or occurrences of a sexual nature many years before and is wholly or greatly dependent upon the recollection or testimony of the complainant, credibility and reliability of the complainant's evidence are critical in the consideration of the total evidence. In this regard, we should see R. v. B.(R.W.) (1993), 40 W.A.C. 1, and, Her Majesty the Queen and G.(M.) Court of Appeal of Ontario reported on the 1st of June, 1994, Galligan, J. In this last referred to decision, Justice Galligan affirmed - and I paraphrase his words - that probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said at trial and what the witness said on other occasions whether under oath or not. In other words, statements of material facts reduced to writing.
23 In this regard, Mr. Colautti is taking issue that the facts given to a counsellor and the note taking is not a verification by the complainant that what was written is accurate. To this I say, this is a question that goes to weight in the cross-examination but does not affect its admissibility or the proof that the record of fact recorded is accurate which is placed upon defence counsel.
24 It has been stated that the disposition of this crucial question is a balancing of the interest of the parties, the rights of an accused to know of the alleged facts and details of an earlier disclosure to a counsellor of sexual abuse, with the protection of such rights under the rule of confidentiality. I am not at all certain that this is necessarily correct. Since the production of such material is based on the criteria of meeting the two-stage test, if accepted as the appropriate manner of consideration of this issue, as provided in R. v. O'Connor, supra. Further, as stated, even with the production of the material facts, this alone does not give the accused the right to cross-examine on matters he is not entitled. It may avail him of such right if there are inconsistencies in the reporting as given earlier to what is said at trial, or relevant to an issue raised, but these are as stated subject to the rules of evidence. Where differences occur in the reporting, this does not foreclose the complainant from being assisted by expert evidence either as it may relate to incremental reporting or denial of certain facts or non-disclosure of specific facts at the time of the counselling.
25 These redundancies or shortcomings, if any, will be left to the trial judge in his assessment of the evidence. He or she will analyze what weight is given or to be given upon review of the entire evidence. Therefore, the fact that the exchange between an individual and the counsellor as to statements is not censored, carefully modified, or given with care, does not delete the accused's right to disclosure since these are matters which may be left to explanation by the complainant in cross-examination and, as stated, further assisted by expert evidence.
26 On this issue of disclosure, I have considered the comments of The Supreme Court of Canada in Oslin v. Her Majesty the Queen (1993) as they have suggested in dealing with the issues or issue of the right of disclosure to the important fundamental rights of confidentiality of medical records, and in this case therapeutic consultations. It is important for the court in determining the rights of an accused not to rely on mere suggestion or speculation as to the possibility raised through the defence that such confidential records may be relevant. There must be more. In other words, fishing expeditions should not be permitted. Madam Justice McLaughlin's comments, taken from R. v. Seaboyer (1991), 2 S.C.R. 577, at page 608, is appropriate to this court's consideration.
"The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This in turn depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution."
And further on this page Her Lordship states:
"Cross-examination is all the more crucial to the accused's ability to make full answer and defence when credibility is the central issue in the trial."
27 In the decision of R. v. Barbosa, 92 C.C.C (3d) 131, at page 148, Justice Hill had these comments concerning a similar issue of disclosure before the court.
"Assuming without deciding that there exists a burden upon the accused to establish as a precursor to the court's review of the documents a foundation for the belief that the contents of the records or some part thereof contain information relevant to the defence of the charges, the accused has met such obligation in the circumstances in this case."
His Honour goes on to say:
"Where a court considering the disclosure issues satisfies itself that the benefit to a fair trial outweighs the intrusion upon the privacy of a complainant, then disclosure should be made only to the extent necessary to achieve that objective."
28 Upon my review of the materials filed by the Applicant, I am cognizant of the evidence reported within the transcripts of the preliminary hearing, the oral communications to the police and the statement of the complainant. While these statements provide what appears to be inconsistencies in the reporting, they in themselves do not meet the test of relevancy in the first stage of the court's consideration for production of the documents. They are nevertheless an aid as to whether, from the intake form filed, the material facts which are likely relevant should be produced.
29 In the determination of relevance, I am not in agreement with the crown attorney. If it is his position that in the court's initial stage of consideration there must be something to show that the evidence within the given statements to the police arose out of suggested or flawed therapy with the counsellor, or are inconsistent as to the reporting to the therapist. Generally the information to the therapist is unknown. The test is whether the information in the records is likely to be relevant. That is the onus to be satisfied by the accused, to show some relevance as to the production of the undisclosed materials, and this test of showing relevance is minimal. It is, of course, more than a request that the materials may be helpful or necessary for credibility in order to obtain the materials to cause embarrassment or discomfort to the complainant.
30 I am satisfied that the threshold for review by this court of the confidential materials in the possession of S.A.C.C. is necessary, and that the words, "likely relevant", as stated by the court in R. v. O'Connor, supra, is a less stringent test - perhaps not as high as a balance of probabilities - to establish that the private materials are relevant. The ultimate determination of what is to be produced can only be made as confirmed in R. v. O'Connor, supra, when the material is reviewed. It is upon this review of the documents by this court that the determination of what disclosure, if any, is appropriate. This should relate, as confirmed earlier, solely to the relevant material facts and details concerning the charges to provide the accused with his entrenched rights to make full answer and defence. Here, in charges of this nature, this is particularly important where consistency of the alleged complaints may be critical to the assessment of the trial judge without further explanation by the complainant or expert evidence.
31 THE COURT: Gentlemen, that is my ruling.
32 MR. TAIT: Thank you very much, Your Honour.
33 MR. COLAUTTI: Thank you, Your Honour.
34 MR. GUTHRIE: Thank you, sir.