In a criminal case involving sexual assault charges against a physiotherapist, the defence brought a motion for directions regarding Crown disclosure of private records.
The central issue was whether documents disclosed by the Crown required an admissibility hearing under s. 278.92 of the Criminal Code, or if Crown disclosure implied a full waiver of privacy interests by the complainant.
The court, Molloy J., affirmed the binding nature of prior Superior Court decisions (R. v. J.K., R. v. Martiuk) which established a presumption that Crown disclosure constitutes a full waiver, negating the need for a s. 278.92 hearing.
However, the judge found that in this specific case, the Crown had failed to obtain proper, informed waivers from the complainants.
This lack of valid waivers constituted "evidence to the contrary," rebutting the presumption.
Consequently, the court ruled that admissibility hearings under s. 278.92 would indeed be required for the disclosed records.
