Her Majesty the Queen v. Clifford

[Indexed as: R. v. Clifford]

58 O.R. (3d) 257

[2002] O.J. No. 865

Docket No. C34989

Court of Appeal for Ontario

Rosenberg, Goudge and Feldman JJ.A.

March 5, 2002

Criminal law -- Evidence -- Production of third party records of "joint" counselling sessions -- Third party record provisions of Criminal Code apply only to records in respect of which complainant or witness has reasonable expectation of privacy -- Trial judge entitled to assume that reasonable expectation of privacy attaches to any record specifically named in s. 278.1 absent evidence from accused to contrary -- Accused and complainant attended joint counselling sessions -- Counselling sessions dealt with highly personal matters -- Complainant had reasonable expectation of privacy in records of those sessions which was not undermined by presence of accused -- Trial judge properly applied Criminal Code provisions when ruling that accused had not met threshold test for production of records to court -- Criminal Code, R.S.C. 1985, c. C-46, s. 278.1.

Criminal law -- Appeals -- Grounds -- Misapprehension of evidence by trial judge -- Trial judge concluding that complainant's evidence consistent with other witnesses' on all major particulars -- Summary conviction appeal judgment not addressing misapprehension issue as allowed appeal on another basis -- On further appeal, appellate court concluding that trial judge failed to appreciate contradictions in evidence and that this misapprehension pertained to issues central to trial judge's determination of guilt -- Order for new trial confirmed

The accused was charged with sexually assaulting his common- law wife. He brought an application at trial for the production of third party records of a psychotherapist pertaining to the complainant. He had attended several of the complainant's treatment sessions. He asserted that the records were necessary to the defence as they were likely to establish the following: the history of the relationship; the relative credibility of the parties and specifically a purported tendency on the part of the complainant to exaggerate; the unfolding of the events leading up to the time of the allegations, including the complainant's attitude and state of mind; a pattern on the part of the complainant of accusing the respondent and then recanting; and the complainant's feelings of shame and guilt about her consensual sexual relationship with the accused, arising from her social and religious background. The trial judge applied the personal information records provisions of the Criminal Code to the records of the joint counselling sessions as well as to the records of the sessions attended by the complainant alone. She found that the accused had not met the test for release of third party records and dismissed the application. The accused was convicted. The summary conviction appeal judge held that the Criminal Code provisions did not apply to joint records and that the defence had met the threshold test for production of the private records to the court for inspection. The appeal was allowed. The Crown appealed.

Held, the appeal should be allowed.

When Parliament implemented a scheme to deal with disclosure of counselling and other records listed in s. 278.1, it was intended to apply only to records in which a complainant or witness possessed a reasonable expectation of privacy. Parliament specified certain types of records to assist the court in determining the scope of the provisions, thereby avoiding an ad hoc reappraisal in every case of the need to protect certain important categories of records that could be presumed to have a reasonable expectation of privacy. Thus, absent evidence from the accused to the contrary, a trial judge is entitled to assume that a reasonable expectation of privacy attaches to any of the records falling within the enumerated categories and that, accordingly, the accused must comply with the provisions procedure set out in ss. 278.2 to 278.91 in order to gain access to the records.

The trial judge had before her an affidavit of the accused stating that he had accompanied the complainant to several of her sessions and had personally heard the psychotherapist identify some of the complainant's problems, and that the psychotherapist had met with him and the complainant on many occasions. Notwithstanding the accused's presence at some of the sessions, these were records in which the complainant had a reasonable expectation of privacy. The items of information about which the accused claimed the psychotherapist had knowledge concerned highly personal matters such as the complainant's attitude toward sex and her feelings of guilt about having sex out of wedlock.

The summary conviction appeal court judge erred in holding that s. 278.1 did not apply to the records. He also erred in purporting to order the production of the records to the accused on the basis that they were as much the accused's as the complainant's. The summary conviction appeal court judge had no jurisdiction to do so. This was a criminal case and the application for production was made under the Code provisions. Since the records fell within s. 278.1, they could only be ordered produced in accordance with the procedure set out in ss. 278.2 to 278.91. The only issue before the appeal court judge was the summary conviction appeal against conviction.

The trial judge did not err in refusing production of the records. The appeal court judge fell into error when he held that the trial judge erred in failing to order production because, in his view, the records might contain relevant material. Section 278.5 also permits a judge to take into account a broader range of interests, like the privacy rights of the complainant. Likely relevance is not the sole consideration. On the record before her, it was open to the trial judge to conclude that the information sought from the psychotherapist could be obtained from other sources.

APPEAL by the Crown from a judgment of Hawkins J., [2000] O.J. No. 2091 (S.C.J.) allowing an accused's appeal from conviction for sexual assault.

R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)), apld Other cases referred to Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 33 Alta. L.R. (2d) 193, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, 9 C.R.R. 355, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97 (sub nom. Southam Inc. v. Director of Investigation and Research of Combines Investigations Branch); Perka v. R., 1984 23 (SCC), [1984] 2 S.C.R. 232, 28 B.C.L.R. (2d) 205, 13 D.L.R. (4th) 1, 55 N.R. 1, [1984] 6 W.W.R. 289, 14 C.C.C. (3d) 385, 42 C.R. (3d) 113 (sub nom. Perka et al. v. The Queen); R. v. G. (G.) (1995), 1995 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.); R. v. Keegstra, 1995 91 (SCC), [1996] 1 S.C.R. 458, 39 Alta. L.R. (3d) 305, 197 N.R. 26, 105 C.C.C. (3d) 19, 48 C.R. (4th) 118, [1995] 2 S.C.R. 381, 29 Alta. L.R. (3d) 305, 124 D.L.R. (4th) 289, 180 N.R. 120, 29 C.R.R. (2d) 256, 98 C.C.C. (3d) 1, 39 C.R. (4th) 205; R. v. Regan (1998), 1998 17609 (NS SC), 174 N.S.R. (2d) 230, 532 A.P.R. 230, 59 C.R.R. (2d) 141 (S.C.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1, 278.3-278.91, 278.4, 278.5

Christine Bartlett-Hughes, for appellant. Jonathan Dawe, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This Crown appeal concerns the scope of the protection offered by the personal information records provisions of the Criminal Code, R.S.C. 1985, c. C-46. The principal question raised is whether those provisions apply to so-called "joint records" where the accused and the complainant have participated in the same sessions. The trial judge, Mocha J., held that the provisions apply and that the respondent had not met the threshold test for production of those or any other records sought by the defence. The summary conviction appeal court judge held that the provisions did not apply to joint records. Hawkins J. also held that the defence had met the threshold test for production of the private records to the court for inspection. Accordingly, he allowed the appeal and ordered a new trial. For the following reasons, while I would confirm the trial judges' ruling with respect to the records, I would dismiss the appeal.

The Facts

[2] The respondent and the complainant began a common-law relationship in 1994 when the respondent began to live with the complainant and her daughter from an earlier relationship. The relationship was unstable and the complainant had only recently returned to live with the respondent in the weeks before the incident giving rise to the charge of sexual assault. The respondent and the complainant quarreled a few days before the incident and were not talking to each other.

[3] The respondent and the complainant lived on the bottom floor of an apartment building in Toronto. The complainant's parents, siblings and other family members lived in the same building in other apartments. On the night of August 17, 1996, the complainant's daughter stayed at her grandmother's apartment. The complainant slept in her daughter's room and the respondent slept in the master bedroom.

[4] The complainant gave this version of the assault. On the morning of Sunday, August 18, she was rushing to get ready to go to church with her mother and other family members. The respondent came in to the daughter's bedroom and began to hug her and try to talk to her. The respondent was only wearing a T-shirt. The complainant told him that she did not want him to touch her and she did not want to talk to him. However, the respondent picked her up and placed her on the bed. She struggled and screamed at him to stop and get off her. The respondent persisted and pulled up her shirt and began to kiss her breasts. The complainant then heard tapping at an outside window and her mother calling her and asking what was going on. The respondent covered her mouth and persisted with the attack. The complainant's mother and sister entered the room and told the respondent to get off her. The respondent drove them out of the room. There was some further conversation and then a brief "tug-of-war" at the door with the respondent trying to keep the door closed and the complainant's sister and brother trying to gain entry to the apartment. Eventually, the door opened and the complainant left.

[5] The complainant's mother and one of her sisters, L., testified for the Crown. The mother testified that she heard her daughter crying and went downstairs to investigate. She knocked on the door (not the window as the complainant testified) and after receiving no response she and one of her other daughters [were] able to enter the apartment with a key supplied by the superintendent. She heard her daughter crying and found her in her granddaughter's bedroom. When she looked in, the respondent stood up. He was wearing only a T-shirt. He pushed her and L. away. The complainant was, however, able to leave the bedroom and they pulled her out of the apartment and called the police.

[6] L.'s evidence was similar to that of her mother, except that she recalled her mother going to one of the outside windows to look into the apartment after they had no response to knocking on the door.

[7] The respondent's version of events was quite different. On Sunday morning, he went to the bedroom where the complainant had spent the night to try and speak to the complainant. As far as he could tell, the complainant was not getting ready for church. She was in shorts and a T-shirt and was sorting laundry. In fact, while he often went to church with the complainant, it was very rare for her to go with her family. Initially, he was rebuffed and he just sat down on the bed. Eventually, the complainant lay down beside him and they began to hug and make up. Suddenly, the complainant's mother began to scream through the open window and the complainant's demeanour completely changed. She became angry and agitated. There was a loud exchange between the complainant and her mother and the complainant began to cry. She then became angry with the respondent and blamed him for getting her in trouble. The respondent heard a noise at the door and he left the bedroom to investigate. He saw the complainant's mother and other members of the family in the apartment. The respondent was still only wearing the T-shirt and when the mother saw this she "went nuts" and ran out of the apartment. The respondent closed the door. The complainant remained in the apartment for a short time. She asked the respondent if she could leave and he let her go.

[8] The complainant had no physical injuries. The respondent had a small scratch on his cheek and several scratches on his shoulder. The complainant was unsure if she had caused those injuries. The respondent thought the complainant might have scratched him after the confrontation between her and her mother at the window when the complainant began to cry and blame him for getting her in trouble.

The Application for Records

The notice of application and supporting affidavit

[9] Some months prior to trial, counsel for the respondent filed an application for the production of third party records of Dr. Hardin "pertaining to the complainant". In the notice of application, the defence stated that the respondent had attended several of the treatment sessions with the complainant at Dr. Hardin's office. The defence asserted that the records "as well as Dr. Hardin's oral testimony" were necessary to the defence as they were likely to establish the following:

(a) The history of the relationship;

(b) The relative credibility of the parties and specifically a purported tendency on the part of the complainant to exaggerate;

(c) The unfolding of the events leading up to the time of the allegations, including the complainant's attitude and state of mind;

(d) A pattern on the part of the complainant to accuse the respondent and then recant shortly thereafter; and

(e) The complainant's feelings of shame and guilt about her consensual sexual relationship with the respondent, arising from her social and religious background.

[10] The respondent filed his own affidavit in support of the application. He claimed that the complainant was raised in a strict religious family in the Philippines and had initially not informed her family of the birth, out of wedlock, of her daughter. He also stated that the complainant's sisters tried to separate the complainant and the respondent because they were "living in sin". According to the respondent's affidavit, the complainant therefore sought counselling from Dr. Hardin, a psychotherapist.

[11] The respondent accompanied the complainant on several of those sessions and heard Dr. Hardin tell him and the complainant that"as a result of her powerful religious convictions as well as those of her sisters, [the complainant] was constantly feeling compelled to give her daughter up to her married sisters and to leave [the respondent]". In May of 1996, the pressure proved too much and the complainant ended her relationship with the respondent and moved herself and her daughter in with her mother. In early June, the complainant and her daughter moved back in with the respondent. The complainant's mother and sisters were outraged and told her that her "soul would burn in hell". The complainant and the respondent continued to see Dr. Hardin"who assessed her condition as having deteriorated significantly". He advised the complainant that she was "more at risk and that she should increase the frequency of her sessions". The complainant had almost no contact with her family until August 1, 1996, when they attempted to reconcile with her. The complainant then stopped talking to the respondent.

[12] In the affidavit, the respondent asserted that Dr. Hardin would provide the following evidence:

(a) The complainant's upbringing and religious and family pressures;

(b) The complainant's attitude toward sex and her feelings of guilt about allowing herself to have sex out of wedlock;

(c) The emotional support the respondent provided to the complainant and the love and respect he felt for her;

(d) The manner in which the complainant's perception of reality is often warped by her feelings of shame and desperation; and

(e) The likelihood that all of the foregoing factors could result in the complainant making false allegations against the respondent.

[13] The respondent concluded his affidavit with the assertion that Dr. Hardin was the only objective witness who could speak to the religious struggles and family pressures suffered by the complainant.

The hearing before the trial judge

[14] At the hearing before the trial judge, counsel for the complainant opposed production of Dr. Hardin's records. Counsel for the respondent stated that the defence position was that the complainant made the complaint to the police because of the nature of her relationship with her family. He stated that Dr. Hardin's evidence would show the conflict between the complainant and her family "with respect to the way that they would want her to live and the way that she was living, and the religious component or the strong religious belief that she has". He asserted that the fact that the family knew about the relationship "doesn't take that away".

[15] Counsel for the respondent conceded that he had no information about any specific occasions on which the complainant had made allegations about the respondent and then recanted them as alleged in para. (d) in the notice of application. He also conceded that there was nothing in the affidavit to tie this part of the application to any information Dr. Hardin might provide. He stated, however, that "if my client's position is correct that there have been recanting of statements on previous occasions and if it is true that their statement[s] with respect to religious belief and her interaction with him, then certainly that will go to the credibility of the party".

The trial judge's ruling

[16] The trial judge's ruling related to the threshold issue of whether, in accordance with s. 278.4 of the Criminal Code, Dr. Hardin's records should be produced to the court for review by the judge. Section 278.5(1) provides that the trial judge may order production to the court if the judge is satisfied that:

(a) the application was made in accordance with subsections 278.3(2) to (6);

(b) 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

(c) the production of the record is necessary in the interests of justice.

[17] Section 278.5(2) sets out the test the judge must apply in making this determination. The trial judge observed that the application was based solely on the theory that the records may relate to the credibility of the complainant. She held that the allegation of a pattern of making allegations and then recanting them was not substantiated in the material. As to the complainant's feelings about having consensual sex because of her religious background, the trial judge stated that the fact the complainant was "Roman Catholic and may have had certain feelings about consensual sex is irrelevant to the issues in this court". However, she went on to say that if counsel felt that this was a relevant issue, the best evidence of the complainant's religious affiliations would come from the complainant's family members. As to the claim that the respondent felt nothing but love and respect for the complainant, the trial judge stated that Dr. Hardin's evidence would be irrelevant.

[18] Accordingly, the trial judge dismissed the application. She stated that based on the application material before her "at this time", the respondent had not met the test for release of third party records. There was no suggestion during the hearing that the Criminal Code provisions did not apply because the sessions with Dr. Hardin were joint sessions.

Evidence during the trial about the complainant's religious beliefs and her relationship with her family

[19] The complainant's mother was asked in cross-examination if she approved of the relationship between the complainant and the respondent. She said"I really don't, I can't make decision for that because it's up to them, she's my daughter and it's up to her." Counsel did not further pursue the matter with this witness.

[20] In cross-examination, the complainant testified that there was a "lot of pressure" on her relationship with the respondent and that her family did not approve of the relationship. She stated that she loved her family very much and loved the respondent and she wanted the respondent to "accept" her family. She denied that she had ever previously accused the respondent of sexual assault and then recanted. She agreed that she had tried to end the relationship at different times because the respondent did not seem to have a commitment to her and only wanted her for sex. She denied that religion had anything to do with the problems with their relationship. However, she testified that she believed it was sinful to live with the respondent because he was previously married. This caused her concern personally, but was not something that concerned her family.

[21] Counsel for the respondent tried to question the complainant about her visits to Dr. Hardin. She testified that the respondent came with her but stayed outside. Crown counsel then objected and the trial judge stated that the respondent would have to bring a new application if he wishes to read evidence of the content of those meetings. The respondent's counsel did not pursue the matter any further.

[22] After the complainant testified, the trial judge adjourned the case for several months because the complainant's sister was pregnant and not available to testify. The complainant's sister testified in cross-examination that her mother did not interfere with the relationship between the complainant and the respondent. Counsel did not pursue the matter further.

[23] The respondent testified that the complainant wanted to have a relationship with him and with her family, but they did not approve and this was "very divisive for her". He testified that at one point after they split up and then reconciled, her mother "disowned her and cursed her and threatened her". This incident had not been put to any of the Crown witnesses.

[24] Counsel for the respondent also asked the respondent whether Dr. Hardin had been his doctor. According to the respondent, he became a patient because Dr. Hardin had become interested in him in terms of his relationship with the complainant. Counsel did not ask any further questions about this. In cross-examination, Crown counsel asked the respondent about family pressures on the complainant. He testified that the complainant was ambivalent and was "torn back and forth" and this was one of the reasons that she sought psychiatric help. He agreed that he attended family functions with the complainant, although he believed his inclusion was something of an afterthought. He stated that in August 1996, there was no contact between him and her family.

[25] Crown counsel asked the respondent if the complainant had expressed the concern that he was not really committed to her and was only interested in her for sex. The respondent seemed to agree but then said the following:

Keep in mind too that she comes from a very strict Catholic background and she's very, there's a lot of guilt feelings about sex and relationships out of wedlock and having children, you know unmarried, being an unmarried mother, and all these things. She's very committed to the Church, she feels guilt if she doesn't go to church.

[26] Crown counsel questioned the respondent further about this. The respondent testified that the complainant's family had broken up the relationship between the complainant and her daughter's father and sent the complainant to Canada. He agreed that soon after his relationship began with the complainant, they started living together in the same building as the rest of her family. Dr. Hardin and others had advised them to move out of that building. It seemed to the respondent that the family kept apart from the complainant and there would be periods when they would not talk to her.

[27] Defence counsel (not Mr. Dawe) then called Dr. Hardin. In response to leading questions, Dr. Hardin agreed that the respondent had been a patient and that he had seen him along with the complainant. It was unclear whether Dr. Hardin intended to say that he had seen the two together. At this point, Crown counsel objected and the defence counsel stated that he was not calling Dr. Hardin as an expert but "to buttress evidence given by [the respondent]". Counsel seemed unsure about how Dr. Hardin's evidence would be relevant. He conceded that Dr. Hardin's testimony on what the respondent told him would be inadmissible hearsay. He then suggested that Dr. Hardin could confirm that he had felt it would be good for the respondent and the complainant to move away from the complainant's family. The trial judge pointed out that this would be opinion evidence and counsel had said he did not intend to qualify Dr. Hardin as an expert. She also stated that even if he were qualified as an expert, Dr. Hardin's opinion would be simply based upon hearsay from the respondent.

[28] The trial judge asked defence counsel if Dr. Hardin had any conversations with the complainant about the incident itself. Defence said that he had not. This interchange then took place:

The Court: So it was solely with regards to the doctor's opinion about the relationship between the complainant and your client and the family of the complainant?

Defence counsel: Yes, and what he gathered having treated the complainant and my client, what he gathered to be part of their problem. And I was going to ask him if the family played a role, the complainant's family.

The Court: But that's based upon just what your client has said though?

Defence counsel: To my client?

The Court: What your client had said to the doctor.

Defence counsel: To the doctor, based upon what my client said to the doctor, and what the complainant said to the doctor. But what the complainant said to the doctor is not relevant you've already ruled, so it would be only what my client said to the doctor.

The Court: Right, okay, then I don't see how that would be relevant if it's only on that particular issue then.

Defence counsel: On the grounds of hearsay?

The Court: On the grounds, that's correct, that the doctor's opinion which would be based upon hearsay is not relevant, that's correct.

Defence counsel: And Your Honour is also saying that even if he's an expert that opinion will still be hearsay?

The Court: An expert with regards to?

Defence counsel: He's a psychoanalyst he says, medical psychoanalyst, and he would have formed some expert opinion about . . .

The Court: About the relationship of the complainant with her family based on what the accused has said. No, I don't think that that's admissible . . .

[29] Dr. Hardin, therefore, did not give any evidence.

Trial judge's reasons for judgment

[30] The trial judge reviewed the evidence at some length. Counsel for the respondent has submitted that, irrespective of the records issue, the order for a new trial must stand because the trial judge misapprehended certain crucial parts of the evidence. I will deal with those issues later in these reasons. The trial judge found that the complainant was forthright in acknowledging that the family did not approve of the relationship and that this caused her some concern. She also reviewed the evidence that the complainant had said that religion did not have anything to do with the situation but that living with the respondent when they were not married did cause her some concerns. In this too, the complainant was being forthright. In summary, the trial judge found the complainant and the other Crown witnesses to be credible and that they gave consistent accounts on all of the major particulars.

[31] The trial judge fully reviewed the respondent's evidence including his testimony about the relationship and the interference by the complainant's family. She found that the respondent was not a credible witness with respect to the events of August 18 and that the Crown had proved the case beyond a reasonable doubt. She also considered whether the respondent might have had a defence of mistaken belief in consent, although this had not been raised by counsel. She rejected this defence on the basis that the complainant made it quite clear by words and actions that she was not consenting.

The Summary Conviction Appeal

[32] Hawkins J. dealt with four grounds of appeal raised by the respondent on his appeal from conviction as follows:

(1) Did the trial judge err in applying the Criminal Code provisions to production of joint counseling records?

[33] The appeal court judge held that the records of joint counseling sessions were as much the respondent's records as the complainant's and should be furnished to him. He also held that s. 278.1 of the Criminal Code had no application because "there can be no reasonable expectation of privacy in communications to and from the doctor which are made in the presence of the third party and vis-à-vis that third party".

(2) Did the trial judge err in refusing to order that the complainant's private counseling records be produced for inspection by the judge?

[34] The appeal judge referred to the trial judge's finding that the complainant's feelings about consensual sex in light of her religious background were irrelevant. Hawkins J. held as follows:

There is a possibility that the complainant's counseling records may contain material relevant to this issue. With respect, I do not agree with the learned trial judge that this issue is irrelevant.

(3) Did the trial judge err by excluding the testimony of Dr. Hardin as to statements made to him by the respondent?

[35] The appeal judge agreed with the trial judge's ruling with respect to Dr. Hardin's proposed testimony as a defence witness.

(4) Did the trial judge's reasons for conviction disclose a misapprehension of the evidence?

[36] The appeal judge found no error by the trial judge respecting the evidence.

[37] The appeal judge concluded his reasons as follows:

To summarize then, an order will go that Dr. Hardin furnish to the appellant copies of all clinical records of sessions at which the appellant was present and, secondly, that Dr. Hardin produce to the court clinical records of all counseling sessions at which the complainant was present either alone or along with the accused.

[38] The appeal judge therefore allowed the appeal, set aside the conviction and ordered a new trial.

Analysis

Application of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) to joint counselling records

[39] As I stated earlier, the main issue in the appeal is whether the personal information records provisions of the Criminal Code cover joint records. Before dealing with this issue, it is only right to point out that at trial, counsel for the respondent never contended that the Criminal Code provisions did not apply to Dr. Hardin's records. This view of the case was raised for the first time before the summary conviction appeal court. Resolution of the issue turns on the wording of s. 278.1, which provides as follows:

278.1 For the purposes of sections 278.2 to 278.9"record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

[40] This definition is important because under s. 278.2, no "record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of" an offence such as sexual assault, except in accordance with the scheme set out in ss. 278.3 to 278.91. The Crown's principal submission in this court was that since these are therapeutic or counselling records relating to the complainant, they fall within the s. 278.1 definition of record, irrespective of whether or not the accused or some other party was present with the complainant and the counsellor. In the alternative, she submits that notwithstanding the presence of another party, such as the respondent in this case, the complainant had a reasonable expectation of privacy with respect to the records and therefore s. 278.1 applied.

[41] Counsel for the respondent contends that no record of any kind falls within s. 278.1, even if like therapeutic and counselling records they are specifically enumerated in the section, unless there is a reasonable expectation of privacy. He submits that where, as here, the accused was present during the counselling session, there can be no reasonable expectation of privacy.

[42] In my view, the correct interpretation falls somewhere between the positions advanced by the Crown and the respondent. The leading case on the interpretation of the Criminal Code provisions respecting disclosure of personal information records is R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 139 C.C.C. (3d) 321. Mills involved a constitutional challenge to these provisions. In order to deal with that challenge the court had to determine with some particularity the ground covered by the legislative scheme and the Canadian Charter of Rights and Freedoms principles at stake. Writing for a majority of the court, McLachlin and Iacobucci JJ. held that several principles were at play. They paid special attention to the accused's right to full answer and defence and the complainant's right to privacy and thus protection against an unreasonable search and seizure. They also considered the equality and security of the person interests may be implicated [sic].

[43] With respect to the right to privacy, McLachlin and Iacobucci JJ. referred to the line of cases beginning with Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641 that protect a person's reasonable expectation of privacy. They held at p. 721 S.C.R., p. 364 C.C.C. that this right was relevant to the issues because "an order for the production of documents is a seizure within the meaning of s. 8 of the Charter". Thus, an order for production of documents made under the personal records scheme "falls within the ambit of s. 8". The majority then turned directly to s. 278.1 and concluded as follows, at p. 721 S.C.R., p. 365 C.C.C.:

Therefore, if a record does not contain information regarding which there is a reasonable expectation of privacy, then it is not subject to the impugned provisions governing production.

[44] As part of the discussion about the importance of the privacy right in therapeutic records, the majority noted at p. 723 S.C.R., p. 366 C.C.C. that "the protection of the complainant's reasonable expectation of privacy in her therapeutic records protects the therapeutic relationship." Despite the importance of this privacy interest, the majority held at p. 724 S.C.R., p. 367 C.C.C. that the right may be limited and, in particular, a "reasonable" search or seizure is permitted. Most importantly, McLachlin and Iacobucci JJ. held at p. 726 S.C.R., p. 368 C.C.C. that a "reasonable search or seizure is consistent with the principles of fundamental justice".

[45] The majority then undertook the task of measuring the personal information records provisions against the Charter principles involved. One line of attack against the constitutionality of the legislation, which had found favour in the trial court, was that the legislation was overly broad because of the wide definition of "record" in s. 278.1. The majority rejected this attack in these words, at pp. 730-31 S.C.R., p. 372 C.C.C.:

The response to these claims is to remember that the legislation applies only to records "for which there is a reasonable expectation of privacy" (s. 278.1 (emphasis added)). Only documents that truly raise a legally recognized privacy interest are caught and protected: see R. v. Regan (1998), 1998 17609 (NS SC), 174 N.S.R. (2d) 230 (S.C.). The Bill is therefore carefully tailored to reflect the problem Parliament was addressing -- how to preserve an accused's access to private records that may be relevant to an issue on trial while protecting, to the greatest extent possible, the privacy rights of the subjects of such records, including both complainants and witnesses. By limiting its coverage to records in which there is a reasonable expectation of privacy, the Bill is consistent with the definition of s. 8 privacy rights discussed above. Moreover, as will be discussed below, the mere fact that records are within the ambit of Bill C-46 will not, in itself, prevent the accused from obtaining access to th em. Applied in this way, s. 278.1 and s. 278.2(1) will not catch more records than they should, and are not overly broad.

(Emphasis added)

[46] The reference to, and apparent approval of, R. v. Regan (1998), 1998 17609 (NS SC), 59 C.R.R. (2d) 141, 174 N.S.R. (2d) 230 (S.C.) is important in this context. In Regan, MacDonald A.C.J.S.C. was faced with an application for a declaration that these provisions were unconstitutional. At para. 35 [p. 152 C.R.R.], he said the following:

I believe that it is not only understandable but necessary for Parliament to establish an all inclusive definition of "record". The regime must cover all documents for which there may potentially be a reasonable expectation of privacy. At the same time the accused is protected by the limiting words in this section. The definition applies only to records "that contain personal information for which there is a reasonable expectation of privacy". This section will not deny the accused access to records that would otherwise be public in nature.

(Emphasis added)

[47] MacDonald A.C.J.S.C. then gave school records as an example of records that, although enumerated in the section as "education" records, would not be covered if they were otherwise public in nature.

[48] In my view, Mills is conclusive against the broad proposition asserted by the Crown that any record specifically named in s. 278.1 is covered by the legislation. In order to uphold the constitutionality of the legislation, the Supreme Court found that the definition only applies to records in which the complainant or witness has a reasonable expectation of privacy. It is only in connection with such records that the complainant's privacy rights would be implicated and there would be a need to balance those rights against the accused's important right to full answer and defence.

[49] However, the structure of s. 278.1 cannot be ignored. Parliament could have simply defined "record" for the purpose of the scheme as one in which there is a reasonable expectation of privacy. The fact that Parliament went on to specify certain types of records was, in my view, intended to assist the court in determining the scope of the provisions. It obviously wanted to avoid an ad hoc reappraisal in every case of the need to protect certain important categories of records that could be presumed to have a reasonable expectation of privacy. Thus, absent evidence from the accused to the contrary, a trial judge is entitled to assume that a reasonable expectation of privacy attaches to any of the records falling within the enumerated categories and that, accordingly, the accused must comply with the provisions in order to gain access to the records.

[50] The question in this case, then, is whether the accused adduced any evidence before the trial judge at the time of the application that there was no reasonable expectation of privacy in these therapeutic records concerning the complainant. The evidence at the time of the application is in the respondent's affidavit, which states that he had accompanied the complainant to "several of her sessions with Dr. Hardin" in which he "personally heard" Dr. Hardin identify some of the complainant's problems. The respondent also stated that Dr. Hardin had met with him and the complainant on many occasions.

[51] In my view, notwithstanding this evidence, these were records in which the complainant had a reasonable expectation of privacy. The whole thrust of the respondent's affidavit is that these were the complainant's sessions in which she was seeking help because of the pressure being brought to bear by her family. The items of information about which the respondent claimed Dr. Hardin had knowledge concerned highly personal matters such as her attitude toward sex and her feelings of guilt about having sex out of wedlock. In Mills at p. 722 S.C.R., p. 365 C.C.C., the majority discussed the nature of the privacy interest protected by these provisions and said:

This interest in being left alone by the state includes the ability to control the dissemination of confidential information. . . .

These privacy concerns are at their strongest where aspects of one's individual identity are at stake, such as in the context of information "about one's lifestyle, intimate relations or political or religious opinions": Thomson Newspapers, supra, at p. 517, per La Forest J., cited with approval in British Columbia Securities Commission v. Branch, 1995 142 (SCC), [1995] 2 S.C.R. 3, at para. 62.

(Emphasis added)

[52] The information that the respondent sought to have produced was of this nature. It was about her "lifestyle, intimate relations or . . . religious opinions". The fact that the respondent was present for some of these sessions and may have been privy to some of the disclosures by the complainant and the advice from Dr. Hardin did not undermine her reasonable expectation of privacy. First, if the respondent was present, it was likely because Dr. Hardin felt it would be helpful in treating the complainant. Thus, for example, disclosures in group therapy would not lose the protection of the Code provisions because other persons were present. Second, as the Mills analysis makes clear, the intrusion against which these provisions offer protection is not just intrusion by the accused but by the state. The procedure set up in the Code is not for the purpose of satisfying some prurient interest in the accused. It is not an end in itself. The purpose is to obtain information to be used in a criminal tr ial, information, if the application is successful, that will be exposed to the judge, the lawyers, police officers, the jury and members of the public who may be present at the trial. The point of these provisions is that the complainant has the right to be left alone in these highly personal areas unless the accused can meet the test set out by Parliament. Finally, as the majority said in Mills at p. 735 S.C.R., p. 375 C.C.C., privacy is not an all or nothing right and in modern society privacy interests "include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged".

[53] The appeal judge erred in holding that s. 278.1 did not apply to the records in Dr. Hardin's possession. The appeal judge also purported to order Dr. Hardin to produce the joint records to the respondent on the basis that they were as much the respondent's as the complainant's. In my view, the appeal judge had no jurisdiction to do so. This was a criminal case and the application for production was made under the Code provisions. If, as I have held, the records fell within s. 278.1, they could only be ordered produced in accordance with the procedure set out in ss. 278.2 to 278.91. Whether or not the respondent had some right to obtain his records independent of this scheme was not before the appeal court judge. He was seized only with a summary conviction appeal under the Criminal Code.

Did the trial judge err in refusing to order production of the records to the court?

[54] For convenience, I will repeat the grounds upon which the respondent sought production of the records and then deal with each in turn.

(a) The history of the relationship;

(b) The relative credibility of the parties and specifically a purported tendency on the part of the complainant to exaggerate;

(c) The unfolding of the events leading up to the time of the allegations, including the complainant's attitude and state of mind;

(d) A pattern on the part of the complainant to accuse the respondent and then recant shortly thereafter; and

(e) The complainant's feelings of shame and guilt about her consensual sexual relationship with the respondent, arising from her social and religious background.

[55] Section 278.5 sets out the threshold test that an accused must meet to obtain an order that records be produced for review by the trial judge. For the purposes of this case, the applicable considerations are set out in s. 278.5(1)(b) and (c). The accused must establish that the record is likely relevant to an issue in the case and production of the record is "necessary in the interests of justice". Section 278.5(2) sets out a number of factors to be taken into account. The factors that seem to me of particular concern in this case are:

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record; and

(c) the nature and extent of the reasonable expectation of privacy with respect to the record[.]

[56] I will now turn to the five grounds upon which the respondent put the case for production.

(a) The history of the relationship

[57] It was open to the trial judge to find that, when the application was made, the records were not necessary to establish the history of the relationship. These parties were all well known to each other. The complainant, her family members and the respondent were the best sources of information about the history of the relationship. Dr. Hardin's notes would, at best, recount hearsay statements from the complainant and the respondent about that history. To the extent that it was relevant, the respondent had more than adequate means of exposing the nature of the relationship without the need to turn to these personal records. It would have been open to the respondent to renew the application if, as the trial developed, it became necessary to obtain such information from some other source. However, at trial, counsel for the respondent made little if any effort to pursue this issue either with the Crown witnesses or the respondent.

(b) The relative credibility of the parties and specifically a purported tendency on the part of the complainant to exaggerate

[58] There was nothing in counsel's submissions before the trial judge or in the respondent's affidavit that provided any support for this ground.

(c) The unfolding of the events up to the time of the allegations, including the complainant's attitude and state of mind

[59] There was nothing in the respondent's affidavit and in counsel's submissions to show that Dr. Hardin had any records concerning the events of August 18. If there was any doubt on that matter, it was settled in the course of submissions when counsel wanted to call Dr. Hardin to testify at the trial proper. As I have said, counsel conceded that Dr. Hardin had no information about the incident.

(d) A pattern on the part of the complainant to accuse the respondent and then recant

[60] There was no substance to this ground. There is nothing in the respondent's affidavit to support the allegation of a pattern of allegations against the respondent followed by recantations. Counsel at trial could offer no specifics of any such allegations, although the respondent would have been in the best possible position to provide those details.

(e) The complainant's feelings of shame and guilt about her consensual sexual relationship with the respondent arising from her social and religious background

[61] Counsel for the respondent submits that the trial judge erred in holding that the complainant's feelings about having consensual sex because of her religious background were irrelevant to the issues before the court. In this court, he argues that the uncontradicted evidence on the application was that the complainant was under intense familial pressure to break off her intimate relationship with the respondent and that this pressure was causing her serious psychological torment and anguish. This led her to seek the assistance of Dr. Hardin. The respondent argues that this psychological torment and anguish was so intense that it led the complainant to make a false allegation of sexual assault when her mother saw her with the respondent the morning of August 18.

[62] In my view, based on the submissions that were made to her, it was open to the trial judge to conclude that the records should not be produced. At trial, counsel put the case for production as follows:

The evidence that we're trying to get admitted, Your Honour, is something that definitely will show the conflict between herself and her parents with respect to the way that they would want her to live and the way that she was living, and the religious component or the strong religious belief that she has, and the fact that [the family] knew before [about the consensual sexual relationship] doesn't take that away.

[63] It was open to the trial judge to find that the complainant's religious beliefs about consensual sex were irrelevant to the issues in the case. The submissions on the application disclosed that the complainant had lived openly with the respondent as man and wife, in the same building as her family members. Like the trial judge, I find it difficult to see how her religious beliefs were of any probative value to the case. The respondent has not shown that that part of the trial judge's ruling was incorrect.

[64] The other aspect of the case for production is more compelling. The fact that the complainant was under intense family pressure to end the relationship to the point that she was suffering psychological harm was arguably a viable theory. The question for the trial judge, however, was whether Dr. Hardin's notes were necessary for the respondent to make this defence. I think it was open to the trial judge to conclude that, at that stage, they were not. At the point of the application, there was nothing to indicate that this information was unavailable from other sources that would not involve an invasion of the therapeutic relationship.

[65] The appeal court judge fell into error when he held that the trial judge erred in failing to produce the record because, in his view, the records "may contain material relevant to this issue". Section 278.5 also permits the judge to take into account a broader range of interests, like the privacy rights of the complainant: Mills, supra, at pp. 747-48 S.C.R., p. 385 C.C.C. Likely relevance is not the sole consideration. On the record before her, it was open to the trial judge to conclude that the information sought from Dr. Hardin's records could be obtained from other sources. I return to the important feature of this case: the allegation arose out of an ongoing relationship between the complainant and the respondent. The complainant and her family members were going to be called as Crown witnesses. They were available for cross-examination and were an obvious source of information about the alleged familial pressures.

[66] I will give one example based upon one of the only specific pieces of information provided in the respondent's affidavit. He stated that the complainant's mother and sisters were outraged when the complainant moved back in with him in June 1996 and told her that her "soul would burn in hell". This was potentially powerful evidence of the intensity of pressure being brought to bear upon the complainant. But the complainant, her mother and her sister were obviously superior sources of this information. If one or all of them conceded that this statement was made, there would be no need to access the records. Yet, none of the complainant, her mother and her sister was asked about this statement, notwithstanding the trial judge's comment in her ruling that the family members were the best source of this information.

[67] If at some juncture in the trial it became apparent that Dr. Hardin's notes were necessary for the respondent to make his defence, the respondent would not have been precluded from renewing the application. In fact, such an opportunity presented itself during cross-examination of the complainant. As indicated, after obtaining some information from the complainant about family pressures, counsel for the respondent attempted to question the complainant about her sessions with Dr. Hardin. The trial judge stated that, as she saw it, what the complainant told Dr. Hardin was irrelevant unless the respondent wanted to make a new application. Counsel declined to do so. The fact that counsel did not do so is very telling. It was the defence position that the respondent was present for some of these sessions. If he had information that the complainant had made statements to Dr. Hardin that were inconsistent with her testimony about the family pressures, such as the "burn in hell" comment, that was the time to bring it up and renew the application.

[68] Before leaving this issue, I would make one final observation. When the trial judge comes to determine whether the records should be produced to the court, s. 278.5 provides that one of the factors to be considered is the nature and extent of the reasonable expectation of privacy with respect to the record. The trial judge might well find that there is a somewhat reduced expectation of privacy in respect of records relating to sessions where the accused was present. On the other hand, because the accused was present at the session, he should be in a position to provide specific details of the information sought. Where, as in this case, the application for production is largely nothing more than vague assertions, the court might be skeptical that the records contain anything of value to the defence. One explanation for the absence of detail in this case is that the respondent did not want Dr. Hardin's information about what the complainant told him in the counselling sessions as much as Dr. Hardin's opi nion about the family relationship. The trial judge ruled against the respondent on the admissibility of that evidence and the respondent did not pursue the issue in this court.

[69] Accordingly, in my view, the trial judge did not err in refusing to order production of the records.

Misapprehension of evidence

[70] The respondent seeks to support the order for a new trial on the basis that the trial judge misapprehended the evidence. While the appeal court judge did not give effect to this ground of appeal, it is open to the respondent to raise the matter before this court. See Perka v. R., 1984 23 (SCC), [1984] 2 S.C.R. 232 at p. 240, 14 C.C.C. (3d) 385 at pp. 391-92 and R. v. Keegstra, 1995 91 (SCC), [1995] 2 S.C.R. 381 at pp. 397-98, 98 C.C.C. (3d) 1 at p. 14.

[71] This submission depends upon two parts of the trial judge's reasons. First, in reviewing the complainant's evidence, the trial judge said the following:

What she does remember is that she said she heard someone tapping on the window outside, that it was her mother, and that she said "He won't let me go" and that is consistent with what the mother had testified to earlier, where she indicated she had recalled hearing her daughter say that she couldn't get out."

(Emphasis added)

[72] This is not an accurate reflection of the evidence. The complainant's mother gave no evidence of having been at the window and hearing her daughter say"He won't let me go." Indeed, she gave no evidence of having been at the window at all. She also gave no evidence in chief that the complainant at any time said she could not get out. In cross-examination, she did testify that the complainant said that she could not get out, but she stated that the complainant said this when the mother was inside the apartment, at the bedroom door.

[73] Second, the respondent relies upon the following part of the reasons, which appears after the trial judge summarized the Crown evidence:

And before I move on to defence evidence I should indicate that having carefully reviewed the evidence of the complainant and the evidence of the other witnesses, I found the evidence of the complainant to be very credible. I found the evidence of the other witnesses to be consistent with the evidence of the complainant on all of the major particulars, but there were some minor discrepancies with regards to who was standing where, or exactly who knocked on the door. But with regards to any minor discrepancies between the different witnesses, I did not feel that they were significant in regards to this matter.

(Emphasis added)

[74] The respondent submits that the evidence of the complainant was not consistent with the evidence of the other Crown witnesses on all of the major particulars. He points out that none of the Crown witnesses supported the complainant's version of the conversation at the window. This was a critical issue for the respondent, since the theory of the defence was that the respondent and the complainant were engaged in consensual conduct until the complainant's mother unexpectedly came to the window and interrupted them.

[75] On the other hand, the sister and mother do support the complainant on some things. They both testified that they heard crying in the apartment, saw the half-naked respondent on top of the complainant and engaged in some kind of tug of war at the door.

[76] In my view, the summary conviction appeal court judge erred in failing to give effect to this ground of appeal. The incident at the window was a critical feature of the case. If the complainant did tell her mother that the respondent would not let her go, this strongly supported her claim that the sexual assault had commenced before the complainant's relatives came downstairs. On the other hand, if the complainant did not say this to her mother, then the mother's evidence on this point was equally consistent with the respondent's testimony that the complainant only became angry after her mother appeared at the window. The trial judge appears to have thought that the mother's evidence supported the complainant's evidence on this issue when it did not. Further, given the issues raised at trial, it cannot be said that the Crown witnesses support the complainant's evidence on all major particulars. These are "errors on findings central to the trial judge's determination of guilt" and had a direct bearing on the issue of reasonable doubt: R. v. G. (G.) (1995), 1995 8922 (ON CA), 97 C.C.C. (3d) 362 (Ont. C.A.) at pp. 380-81. Accordingly, I would dismiss the appeal.

Conclusion

[77] At the opening of the appeal, the court asked counsel to address the effect of the long delay in bringing this appeal to court. The decision of the summary conviction appeal court was made on June 6, 2000. Carthy J.A. granted the Crown an extension of time to appeal on September 12, 2000. The Crown filed the transcripts in October 2000. The Crown only perfected the appeal in September 2001. When the appeal was originally set to be argued on November 20, 2001, it had to be adjourned because Crown counsel had only notified the complainant of the date of the appeal the day before and she needed time to consider whether to retain counsel to make submissions before this court. The court allowed the adjournment on terms that the Crown pay the respondent's costs of the day, which the court fixed at $1,000.

[78] Counsel who appeared before us, Ms. Bartlett-Hughes, had only recently assumed carriage of the appeal and I do not attach any blame to her for the delay. She was candid in accepting that the delay in perfecting the appeal was inexcusable. This appeal raised an important point of law, and I think it was necessary to hear the appeal on its merits. I am also satisfied that the respondent was not unfairly prejudiced by the delay. He had served the sentence (a four-month conditional sentence) before the summary conviction appeal was heard and so this is not a case where an accused is being returned to jail after a lengthy delay. The delay was not so excessive that the proceedings amounted to an abuse of the court's process. That said, the Crown may wish to consider whether it is now in the public interest and in the best interests of the administration of justice to pursue the new trial in view of the Crown delay and in view of the fact that the respondent has served the sentence originally imposed.

[79] Accordingly, I would dismiss the appeal and confirm the order for a new trial.

Appeal allowed.