WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2025-08-25

Court File No.: Hamilton 24-47103169

Between:

His Majesty the King (Respondent)

— and —

J.B. (Applicant)

Ruling on Privilege

Before: Justice Davin M.K. Garg

Heard: June 26 and July 24, 2025

Ruling delivered: August 19, 2025

Reasons released: August 25, 2025

Counsel:

Carolyn Leblanc — counsel for the applicant J.B.

Raymond Woloshyn-Chick — counsel for the respondent Crown

GARG J.:

Overview

[1] The applicant and the complainant were married for many years. Their relationship was marked by turbulence and disagreements. Despite these challenges, the pair remained committed to working through their issues and sought help from a couples' therapist. They explored a range of topics during these sessions, including the applicant's alleged sexual assault of the complainant—an event that forms the basis of the current criminal charges.

[2] The question before me is whether the State should have access to the admissions made by the applicant to the therapist during the counselling. Specifically, does case-by-case privilege shield the communications from being used by the prosecution?

[3] I recognize a privilege in this case. The communications between the applicant and the therapist were confidential. That confidence is essential to the therapist-client relationship and the effectiveness of couples' counselling. The power to speak freely enables the kind of open dialogue that supports meaningful therapeutic progress. The hope of healing rests in words spoken without fear of self-incrimination. I conclude that the crucial truth-seeking function of a criminal trial does not justify breaching the confidentiality in this case.

General Legal Principles

[4] The law does not recognize a class privilege for therapist-client communications: R. v. McClure, 2001 SCC 14 at para. 29. Rather, the applicant must convince the court to recognize a privilege in this case. The court can recognize a case-by-case privilege if four criteria are met:[1]

1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

[5] Traditional categories of privilege (e.g., solicitor-client privilege) are absolute and necessarily run the risk of occasional injustice by excluding relevant information from a criminal trial. Case-by-case privilege is different. The court must consider the risk of injustice before recognizing a privilege. "[I]f the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result": M. (A.) v. Ryan, [1997] 1 S.C.R. 157 at para. 33. The Court recognized that this case-by-case approach does not offer the public any guarantees that communications with their therapists will remain confidential: para. 35.

[6] While I must conduct an analysis specific to the circumstances before me, the general approach in the common law has been to recognize a privilege in communications with a marriage counsellor: Duits v. Duits at para. 20; see also R. v. R.S. (1985), 19 C.C.C. (3d) 115 (Ont. C.A.) at 133.

Analysis

[7] I find that the criteria have been met to recognize a privilege in this case.

(1) The Communications Originated in a Confidence of Non-Disclosure

[8] I start with the general proposition that individuals who consult a therapist likely expect their communications to remain confidential. A major reason for attending counselling is the opportunity to share intimate details about one's life with a trusted professional.

[9] The evidence in this case permits me to draw an inference that the applicant's communications originated in a confidence that they would not be disclosed. The applicant and the complainant met with Karen Zicari, who is a mental health practitioner and a registered psychotherapist.[2] She is certified by the Canadian Professional Counsellors Association and the International Association of Trauma Professionals.

[10] The evidence on confidentiality is rooted in the Professional Practice Standards of the College of Registered Psychotherapists of Ontario.[3] On the subject of confidentiality, Standard 3.1.1 reads: "Registrants do not collect, use, or disclose information about a client without the informed consent of the client or their authorized representative, except as permitted or required by law".[4] Standard 3.1.2 adds: "Registrants familiarize themselves and comply with relevant privacy laws". There is no suggestion that the applicant consented to the disclosure of his communications.

[11] The evidentiary support on this issue was limited. Counsel appeared to rely on an assumption that the "therapist" designation alone would suffice to establish that the communications were made in confidence. However, as emphasized in L.S. v. B.S., 2022 ONSC 5796 at paras. 137-139, the claim of confidentiality requires evidentiary grounding. Direct testimony from the applicant or the therapist would have provided a firmer foundation.

[12] Nevertheless, based on the evidence before me, I am satisfied that the communications originated in a confidence of non-disclosure. While the Crown challenged whether Ms. Zicari was working as a psychotherapist in her specific dealings with the applicant, I rely on the applicant's affidavit in which he described working on their relationship through "therapy" and regularly discussing issues with their "couples therapist". I add that I do not see a meaningful distinction between "therapist" and "psychotherapist"—the terms were used interchangeably in this case.

[13] The complainant's presence during the counselling sessions did not undermine the applicant's expectation of confidence. Her presence is not equivalent to a third party attending a meeting between a lawyer and their client. Rather, the applicant and the complainant were jointly participating in couples counselling. It is expected that both would be present as the therapist helped to facilitate their communication; see R.S. at 131.

(2) Confidentiality is Essential to the Maintenance of the Relationship

[14] I am satisfied that confidentiality is essential to the full and satisfactory maintenance of the therapist-client relationship, including in the context of marriage counselling. Without it, the therapeutic process risks becoming superficial and ineffective. Ms. Zicari's description of her practice underscores this point. She describes her work as "personal" and aimed at addressing the "challenges at hand". Her goal is for clients "to feel safe, genuinely cared about", and to know that they have her "full support". She "works with couples to shift from destructive patterns to connecting experiences", striving to create a space "that is safe and joyful".

[15] The effectiveness of marriage counselling depends on the clients' ability to speak freely, without fear that their words might later be used against them in a legal proceeding. Clients might withhold important perspectives if they are worried about the risks of self-incrimination. Ms. Zicari's work focuses on rebuilding "communication, trust, or intimacy". These pillars of a healthy relationship cannot be meaningfully addressed unless clients are encouraged to be honest and vulnerable throughout the process. Indeed, the complainant's statement outlines the role that the counselling played in the pair's reconciliation efforts.[5] "We kind of took some time to, kind of build trust and get used to each other. We started going to therapy together. … We were trying to work on the relationship".

(3) The Relationship Ought to be Sedulously Fostered

[16] The relationship between a couples' therapist and their clients should be carefully protected and supported. I rely on how Turnbull J. described the importance of couples' counselling in Duits at para. 48:

Marriage counselling for the purpose of exploring reconciliation is encouraged and statutorily privileged in divorce proceedings. … In our court system in Ontario, there has been major systemic change to over the past ten to fifteen years to encourage mediation, collaborative family law mediation, case conferences, settlement conferences, pre-trial management conferences, pre-trial conferences, and mid trial settlement conferences. These processes are aimed at allowing the parties to work out their differences themselves. The costs, stress, emotional damage and waste of time of much litigation can thereby be avoided. It is this court's view that the sanctity of such social and judicial processes should be recognized in most cases.

[17] Healthy relationships form the quiet architecture of a well-functioning society. The qualities found within these connections, like communication, trust, and conflict resolution, help strengthen families and communities alike. This is especially true when children are involved, as in this case, where the applicant and complainant are raising three children. While written in a different context, the words of Tulloch C.J. in R. v. Habib, 2024 ONCA 830 at para. 46 apply here: "Our society depends on families to raise and nurture children, transmit knowledge, skills, and values from generation to generation, and provide love, care, emotional, economic, and social support to their members … interfering with this foundational social institution, even for just reasons, can endanger community safety and society's well-being". In the protected setting of couples' counselling, healing is not only personal but also a public good; see also R. v. Pabani, [1994] O.J. No. 541 (C.A.) at para. 12.[6]

(4) The Interests Served by Protecting the Communications Outweigh the Costs

[18] The role of confidential couples' counselling to building healthy relationships is not the only relevant consideration. The final criterion considers the importance of giving the Crown an opportunity to prove that the applicant committed a sexual assault against the complainant. Specifically, I must consider whether the interests served by protecting the communications with the therapist are outweighed by the interests of pursuing the truth and reaching a just verdict at trial: Ryan at para. 29. This criterion "does most of the work" in the analysis. "Having established the value to the public of the relationship in question, the court must weigh against its protection any countervailing public interest such as the investigation of a particular crime": R. v. National Post, 2010 SCC 16 at para. 58.

[19] If there were any risk that protecting the communications would shield the alleged sexual assault from the court's purview, then I would have little difficulty rejecting the privilege claim. Recognizing a privilege in that instance would promote an injustice and undermine Parliament's legislative efforts to encourage the reporting and fair litigation of sexual assault charges; see also Ryan at para. 30.

[20] Cognizant of this context, I am satisfied that recognizing a privilege would not undermine the truth-seeking function of the criminal trial.

[21] First, the complainant is available and expected to give evidence about the alleged sexual assault. Although she was asleep when the alleged sexual touching began, she said in her police statement that she woke up and observed the applicant's actions. She then immediately confronted him, and he is said to have admitted further details.[7] The complainant will have a voice at this trial, which distinguishes this case from Pabani, relied on by the Crown. The courts there declined to recognize a privilege over communications made during marital reconciliation. But the charge in that case was murder, and with the victim thus unavailable to testify, a finding of privilege would have stripped the trial of crucial evidence on animus and motive (para. 9).

[22] Second, the applicant has already admitted to touching the complainant in a sexual manner while she slept, in an affidavit that he filed in a separate pre-trial application. That admission suggests there will likely be little dispute regarding the actus reus of the alleged offence. Should the applicant offer a conflicting account at trial, the Crown could use the affidavit to impeach his credibility: see R. v. H.P., 2022 ONCA 419 at paras. 38-39, 50. The availability of the affidavit limits the applicant's ability to present a materially different account from what he disclosed to the therapist, without risking damage to his credibility.

[23] The applicant's affidavit is not a perfect substitute for adducing his admissions to the therapist. The Crown identified other passages in the therapist's notes that it considers relevant. The Crown might have also sought to introduce the admissions during its case-in-chief. Shielding the communications with the therapist will deprive the court of some relevant evidence. However, it will not come close to gutting the Crown's case or subverting its opportunity to challenge the applicant's defence. Recognizing a privilege is not akin to the case of R. c. N.S., 2024 QCCA 876, where excluding the accused's admissions to the psychiatrist prevented the Crown from proving its case (para. 10).[8]

[24] Nothing in the record suggests that anything said by the applicant would have required the therapist to proactively disclose his admissions to the authorities, unlike in cases of suspected child abuse: R.S. at 134. In those cases, legislatures have imposed mandatory reporting obligations, reflecting a public policy judgment that the protection of children must take precedence over confidentiality. No such obligation applies here, which may reflect a different public policy—one that respects the autonomy of adult complainants to decide whether and when to report. That fact, in conjunction with the circumstances outlined above, convinces me that the laudable societal goal of effectively prosecuting sexual assault allegations is not undermined by recognizing a privilege in this case.

Conclusion

[25] The application is granted. The communications between the applicant and the therapist are privileged. This privilege extends to the notes of the session on February 22, 2024, that purports to summarize the applicant's discussions of the alleged sexual assault, among other topics.

Released: August 25, 2025

Signed: Justice Davin M.K. Garg

Footnotes

[1] The criteria make up what is known as the "Wigmore test".

[2] See Exhibit 5.

[3] The standards were tendered into evidence on this application.

[4] "Registrants" refers to the psychotherapists.

[5] The complainant's statement to police on March 2, 2024, was included in the evidence on this application.

[6] "[I]n matrimonial disputes, the state is more interested in reconciliation than divorce and the rule as to privilege tends to promote the prospects of reconciliation".

[7] The applicant is presumed innocent and the complainant's statement is unlikely to become evidence at the trial. I only use the statement in my evaluation of the privilege claim, on the consent of the parties.

[8] The Québec Court of Appeal nonetheless upheld the privilege, even though it prevented the Crown from proving very serious charges of arson (paras. 32-33).