A. (L.L.) v. B. (A.), 1995 CanLII 52 (SCC), [1995] 4 SCR 536

L.L.A., The Sexual Assault Care Centre of the Plummer Memorial Public Hospital and Women in Crisis (Algoma) Inc. Appellants

v.

A.B. Respondent

and

Her Majesty The Queen, the Attorney General of Canada, the Attorney General of Manitoba, the Canadian Foundation for Children, Youth and the Law, the Aboriginal Women's Council, the Canadian Association of Sexual Assault Centres, DAWN Ontario: DisAbled Women's Network Ontario, the Women's Legal Education and Action Fund ("LEAF") and the Criminal Lawyers Association Interveners

Indexed as: A. (L.L.) v. B. (A.)

File No.: 24568.

1995: June 16; 1995: December 14.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Major JJ.

ON APPEAL FROM THE ONTARIO COURT (GENERAL DIVISION)

Jurisdiction ‑‑ Supreme Court of Canada ‑‑ Interlocutory judgment at trial ‑‑ Third party seeking to appeal that judgment ‑‑ Whether or not Supreme Court of Canada had jurisdiction to hear appeal ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, ss. 2(1), 40(1).

Criminal law -- Evidence ‑‑ Privilege ‑‑ Medical files and records ‑‑ Allegation of sexual assault ‑‑ Complainant counselled by institutions with specialties in sexual assault ‑‑ Accused demanding production of all records ‑‑ Whether or not documents subject to class privilege or meeting requirements for ad hoc production ‑‑ Whether or not production should be ordered, and if so ordered, its nature and extent ‑‑ Whether or not production infringing Charter right to privacy ‑‑ Whether or not production infringing Charter right to equality of the sexual assault complainant ‑‑ Whether or not production infringing accused's Charter rights to a fair trial and to full answer and defence ‑‑ Proper balancing of Charter rights ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 8, 15.

The respondent was charged with indecently assaulting L.L.A. who, at the time of the alleged incidents, was a child. Before the trial was scheduled to begin, the respondent served subpoenas duces tecum on the institutional appellants commanding them to bring to court all records relating to the proceedings and to the appellant L.L.A. At the same time, the respondent served the institutional appellants and the Crown with a notice of motion for an order that the institutional appellants produce to the defence, before the scheduled trial date, all records relating to L.L.A. The motion was adjourned to be dealt with by the trial judge on the scheduled date for the trial to begin. Before that date, the Crown served and filed a notice of application for an order quashing the subpoenas.

The trial judge dismissed the Crown's application to quash the subpoenas. He concluded, with respect to the application for production, that the records were not privileged and ordered that all records sought be produced to the respondent, with the condition that no copies be made. He then granted an adjournment to allow the parties to assess their respective positions. Given the appellants' intention to appeal the order for production, a stay of the order was granted until such time as the appeals were disposed of. The appellants filed notices of appeal and the respondent brought applications to quash them. The Court of Appeal quashed the appeal for want of jurisdiction in a unanimous decision. It held that the appellants had no right to appeal to the Court of Appeal until there had been a final verdict at trial. As a result, the Court of Appeal ordered the production of the documents and directed that the trial proceed. Pursuant to s. 40(1) of the Supreme Court Act, the appellants applied for leave to appeal to this Court from the trial judge's order for the production of the documents. They also applied for a stay of the trial pending this Court's decision on their appeal. This Court remitted the question of the stay to the trial judge and granted the application for leave to appeal.

This appeal raises two issues. The first issue is whether third parties, here the appellants, can appeal a trial judge's interlocutory ruling in a sexual assault criminal proceeding. As such, it is necessary to determine whether this Court has jurisdiction to entertain this appeal. The second issue deals with the nature and extent of production to the defence of medical and therapeutic records relating to complainants held by third parties in sexual assault trials.

Held: The appeal should be allowed.

Jurisdiction

Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Major JJ.: Different procedural avenues exist for third parties seeking to appeal an interlocutory order depending on the level of court issuing the order. A provincial court order is to be challenged through an enlarged remedy of certiorari which falls within the ambit of superior courts. This decision can then be appealed through the regular channels of the judicial system. Where a court order is issued by a superior court judge, third parties can challenge it by seeking leave to appeal directly to this Court, pursuant to s. 40(1) of the Supreme Court Act.

The appellants, who are third parties in the criminal proceeding, have standing to appeal before this Court. The full scope of s. 40(1) of the Supreme Court Act provides for an appeal not only of a "final judgment" but also of "other judgment[s]" and therefore encompasses interlocutory appeals of court orders in criminal matters sought by third parties. Furthermore, an interlocutory order affecting third parties is a final order and, accordingly, s. 40(1) is available to appeal an order of a superior court judge. Finally, s. 2(1) of the Supreme Court Act, in its definition of "final judgment", uses the term "any of the parties in controversy" rather than any of the parties in the proceedings. Third parties' substantive rights might be affected by the outcome of the trial judge's order; they are "parties in controversy" before the Court.

While the dismissal by the trial judge of a motion to quash the subpoenas may not open the door to an interlocutory appeal of that order by parties to the proceedings during the trial, the records here subpoenaed were not in the possession of the Crown but in that of third parties. The parties who seek to appeal the order are third parties, not the Crown. No appeal lay to the Court of Appeal but an appeal by third parties did lie to this Court, with leave. Given that this procedure was followed, this Court had jurisdiction to hear the appeal. The complainant, a third party to the proceedings (whether or not an appellant), and the Crown, a party to the proceedings, both have standing in third party appeals. The audi alteram partem principle requires that courts provide an opportunity to be heard to those who will be affected by the decisions.

Production of Medical Records held by Third Parties

Per Lamer C.J. and Sopinka, Cory and Major JJ.: The procedure and substantive law to be followed where the accused seeks the production of therapeutic records in the hands of third parties is set out in R. v. O'Connor. The appeal must be allowed as respondent failed to follow the requisite procedure and substantive law but without prejudice to his right to renew his request for production via the procedures developed by this Court in O'Connor.

Per La Forest, L'Heureux‑Dubé and Gonthier JJ.: Private records, or records in which a reasonable expectation of privacy lies, may include medical or therapeutic records, school records, private diaries, social worker activity logs, and so on.

A class privilege should not be recognized for private records. Privilege exempts, completely or partially, particular communications arising out of certain defined relationships from disclosure in judicial proceedings. Although the justification for privilege has traditionally been utilitarian, a view based on fundamental individual values, such as privacy, has recently begun to emerge. Nevertheless, privilege is a question of public policy, as it impedes the search for truth, a central objective of our legal system, in order to advance other goals. Notwithstanding several strong arguments of public policy militating in favour of protecting the confidentiality of counsellor-sexual assault complainant communications in criminal trials, a class privilege should not be recognized for private records. The following concerns weigh against the recognition of such a privilege: (1) the truth-finding process of our adversarial trial procedure; (2) the possible relevance of some private records; (3) the accused's right to make full answer and defence; (4) the categories of actors included in a class privilege; and (5) the experience of other countries.

The granting of a case-by-case privilege may be appropriate in some circumstances. Given the nature of the relationship between counsellors and sexual assault complainants, the first three Wigmore criteria will usually be easily met. These relationships are founded on trust and confidence, confidentiality is essential to their maintenance, and the public fosters and supports the relationships. The fourth criterion involves the balancing of the relative values favouring privilege with those favouring production of the records. The determination of whether privilege should be granted in a particular case is based on public policy considerations, as distinct from a balancing of Charter rights. While a case-by-case privilege for private records of sexual assault complainants may be recognized in some instances, exceptions to the general evidentiary rule of admissibility and disclosure should not be encouraged. Moreover, this ad hoc approach to privilege will not cure the most important ills associated with production of private records, notably the deterrent effect that such production has on reporting and counselling.

A better approach is that advocated in R. v. O'Connor, involving a balancing of the sexual assault complainant's Charter rights to privacy and equality with the accused's Charter rights to a fair trial and to full answer and defence.

When deciding whether to order production of private records held by third parties, the court must exercise its discretion in a manner that is respectful of Charter values. The constitutional values involved here are the right to full answer and defence, the right to privacy, and the right to equality without discrimination.

The use of state power to compel production of private records will be justified in a free and democratic society when the following criteria are met: (1) it is shown that the accused cannot obtain the information by any other reasonable means; (2) production that infringes privacy must be limited as reasonably as possible to fulfil the right to make full answer and defence; (3) the arguments urging production rest on permissible chains of reasoning, rather than discriminatory assumptions and stereotypes; and (4) there is proportionality between the salutary and deleterious effects of production. The common law should not accord pre-eminence to the right to a fair trial, over other constitutionally protected rights. A balance must be struck that places the Charter rights of complainants on an equal footing with those of accused persons.

The first step for an accused who seeks production of private records held by a third party is to obtain and serve on the third party a subpoena duces tecum. The Crown, the subject of the records, and any other person with an interest in the confidentiality of the records should be notified at this time that the accused will be seeking an order for production of the records.

At the trial, when the accused requests an order for production of the records, the judge should follow a two-stage approach. First, the accused must demonstrate that the information contained in the records is likely relevant either to an issue in the proceedings or to the competence to testify of the subject of the records. Although the subject's privacy interest does not enter into consideration at this stage, the information must be sought because of its relevance, rather than for illegitimate purposes. Moreover, the accused's demonstration of likely relevance must be based on evidence, not on speculative assertions or on discriminatory or stereotypical reasoning. It may be useful at this stage for the third party to prepare a list of the records in its possession.

If the court is satisfied that the information is likely to be relevant, then the analysis proceeds to the second stage, which has two parts. First, if the accused can show that the salutary effects of producing the documents to the court for inspection outweigh the deleterious effects of such production, the judge should so order. Then, after examining the records, the judge should balance the conflicting constitutional rights to determine whether and to what extent production to the defence should be ordered. Only those parts of records that have a significant probative value to the issues at trial or the competence of the witness which is not substantially outweighed by prejudice to the administration of justice or to the witness' privacy and equality rights should be produced.

Even if production is ordered, it must still be determined whether the produced records are admissible.

The court's inquiry into the relevance of the information and its balancing of the competing interests should be made at the time of the trial. Prospective defence witnesses in sexual assault cases, like other potential witnesses in criminal cases, are not obliged to cooperate with either party before the trial, and may not be compelled to provide the defence with a preview of their evidence. Private records of this kind will in most cases be irrelevant and inadmissible. Moreover, the creation of a pre-trial procedure would inconvenience witnesses, invite fishing expeditions and entail unnecessary delays. Finally, the trial judge would not be in a position, before the beginning of the trial, to determine the relevance, much less the admissibility, of the records sought, or to balance effectively the constitutional rights affected by an order for production.

In this case, the respondent's application for production should not have been entertained before the beginning of the trial. Moreover, no notice was given to L.L.A. who had an interest in the confidentiality of the records. As well, the trial judge erred by ordering the records produced without first determining their likely relevance and balancing the competing Charter rights. Ultimately, the respondent's application could not meet the threshold of likely relevance either to the issues at trial or to the competence of the subject of the records, and constituted nothing more than a fishing expedition.

Cases Cited

By Lamer C.J. and Sopinka J.

Applied: R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.

By L'Heureux‑Dubé J.

Applied: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; R. v. Primeau, 1995 CanLII 143 (SCC), [1995] 2 S.C.R. 60; R. v. Jobin, 1995 CanLII 144 (SCC), [1995] 2 S.C.R. 78; considered: R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263; referred to: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268; Attorney General of Quebec v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), 1981 CanLII 33 (SCC), [1981] 2 S.C.R. 494; Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254; R. v. Ryan (1991), 1991 CanLII 11728 (NS CA), 69 C.C.C. (3d) 226; R. v. R.S. (1985), 1985 CanLII 3575 (ON CA), 19 C.C.C. (3d) 115; R. v. Kliman, [1994] B.C.W.L.D. No. 587; R. v. Coon (1991), 1991 CanLII 11746 (ON SC), 74 C.C.C. (3d) 146; M.(A.) v. Ryan, 1993 CanLII 1915 (BC SC), [1993] 7 W.W.R. 480; M.(E.) v. Martinson (1993), 1993 CanLII 1825 (BC SC), 81 B.C.L.R. (2d) 184; Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Nixon, 418 U.S. 683 (1974); Davis v. Alaska, 415 U.S. 308 (1974); Washington v. Texas, 388 U.S. 14 (1967); In re Robert H., 509 A.2d 475 (1986); Commonwealth v. Two Juveniles, 491 N.E.2d 234 (1986); Commonwealth v. Samuels, 511 A.2d 221 (1986); Advisory Opinion to the House of Representatives, 469 A.2d 1161 (1983); Commonwealth v. Wilson, 602 A.2d 1290 (1992); People v. Foggy, 521 N.E.2d 86 (1988); D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171; Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2), [1974] A.C. 405; Rogers v. Home Secretary, [1973] A.C. 388; Campbell v. Tameside Metropolitan Borough Council, [1982] 1 Q.B. 1065; Gaskin v. Liverpool City Council, [1980] 1 W.L.R. 1549; Duncan v. Cammell, Laird & Co., [1942] A.C. 624; R. v. Governor of Brixton Prison, Ex parte Osman, 1905 CanLII 188 (MB KB), [1991] 1 W.L.R. 281; R. v. Agar, [1990] 2 All E.R. 442; Re M (A Minor) (Disclosure of Material), [1990] 2 F.L.R. 36; Conway v. Rimmer, [1968] A.C. 910; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; Canadian Newspapers Co. v. Canada (Attorney General), 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122; R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419; Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60; Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821; R. v. Dunbar and Logan (1982), 1982 CanLII 3324 (ON CA), 68 C.C.C. (2d) 13; R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; R. v. Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138; Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965); R. v. Barbosa (1994), 1994 CanLII 7549 (ON SC), 92 C.C.C. (3d) 131; R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C‑5, ss. 4(3), 10(1) [repl. 1994, c. 44, s. 86].

Canadian Charter of Rights and Freedoms, ss. 7, 8, 15.

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12, ss. 5, 9.

Civil Code of Québec, S.Q. 1991, c. 64, arts. 35, 36.

Criminal Code, R.S.C. 1970, c. C‑34, s. 140 (now R.S.C., 1985, c. C‑46, s. 151) [rep. & sub. c. 19 (3rd Supp.), s. 1]).

Evidence Act, R.S.N. 1970, c. 115, s. 6.

Medical Act, R.S.Q. 1977, c. M‑9, s. 42.

Supreme Court Act, R.S.C., 1985, c. S‑26, ss. 2(1), 40(1) [rep. & sub. 1990, c. 8, s. 37].

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APPEAL to Supreme Court of Canada pursuant to s. 40(1) of the Supreme Court Act, with leave, [1995] 1 S.C.R. viii, from an interlocutory judgment of Loukidelis J. ordering production of documents. Appeal allowed.

Diane Oleskiw and Freya Kristjanson, for the appellants.

Clayton C. Ruby, John Norris, David Paciocco and Chris Thompson, for the respondent.

Susan Chapman and Kenneth L. Campbell, for the intervener Her Majesty the Queen.

Donna R. Valgardson and Nancy L. Irving, for the intervener the Attorney General of Canada.

Marva J. Smith, for the intervener the Attorney General of Manitoba.

Sheena Scott and David Mikelberg, for the intervener the Canadian Foundation for Children, Youth and the Law.

Anne S. Derrick and Sharon McIvor, for the interveners the Aboriginal Women's Council, the Canadian Association of Sexual Assault Centres, DAWN Ontario: DisAbled Women's Network Ontario and the Women's Legal Education and Action Fund ("LEAF").

Alan D. Gold, for the intervener the Criminal Lawyers Association.

The judgment of Lamer C.J. and Sopinka, Cory and Major JJ. was delivered by

Lamer C.J. and Sopinka J. -- This appeal, along with the companion case of R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, released concurrently, concerns the procedure and substantive law governing the production of sexual assault counselling records in the possession of third parties. In addition, the present appeal raises the issue of this Court's jurisdiction to entertain a third party's appeal from a trial judge's interlocutory ruling in a sexual assault trial. On this latter issue, we agree with the decision of our colleague Justice L'Heureux-Dubé.

Our views concerning the procedure and substantive law to be followed where the accused seeks the production of therapeutic records in the hands of third parties are set out in our reasons in O'Connor. As the respondent in the instant case has failed to follow the requisite procedure and substantive law, we agree with L'Heureux-Dubé J. that the appeal must be allowed. However, we wish to make it clear that in allowing this appeal, we do not prejudice the right of the respondent to renew his request for production via the procedure and substantive law developed by this Court in O'Connor.

The reasons of La Forest, L'Heureux‑Dubé and Gonthier JJ. were delivered by

L'Heureux-Dubé J. -- This appeal raises two issues. The first issue is a jurisdictional question as to whether third parties, here the appellants, can appeal a trial judge's interlocutory ruling in a sexual assault criminal proceeding. As such, it is necessary to determine whether this Court has jurisdiction to entertain this appeal. The second issue is substantive in character and deals with the nature and extent of production to the defence of medical and therapeutic records relating to complainants held by third parties in sexual assault trials.

Several fundamental values are at stake in this appeal: the right to full answer and defence, the right to privacy and the right to equality without discrimination.

At the outset, a reference to the relevant statutory provisions and a review of the facts and judgments are in order.

I. Relevant Statutory Provisions

The jurisdictional issue concerns the application of s. 40(1) and the definition of "final judgment" in s. 2(1) of the Supreme Court Act, R.S.C., 1985, c. S-26. These provisions read as follows:

2. (1)...

"final judgment" means any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;

40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.

II. Facts and Judgments

On March 2, 1993, the respondent A.B. was arrested and charged that, between February 15, 1980, and December 31, 1980, in Sault Ste. Marie, he indecently assaulted the appellant L.L.A., then six years of age, contrary to s. 140 of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46, s. 151).

L.L.A. sought counselling at both appellant counselling institutions. The appellant Sexual Assault Care Centre of the Plummer Memorial Public Hospital is a division of the public hospital at which L.L.A. attended for counselling in January, 1992. The appellant Women in Crisis (Algoma) Inc., operating as "Women's Outreach", is a partially publicly funded organization where L.L.A. sought counselling in November, 1992. It provides counselling to adult women who are victims/survivors of sexual abuse, sexual assault, family violence and other types of violence against women.

At the preliminary inquiry on June 2, 1993, the respondent was committed to stand trial. The trial was scheduled to start on February 14, 1994. On February 3, 1994, the respondent served subpoenas duces tecum on the appellants Sexual Assault Care Centre and Women's Outreach, commanding them to bring to court, on February 14, 1994, all records relating to the proceedings and to the appellant L.L.A. At the same time, the respondent served the appellants Sexual Assault Care Centre and Women's Outreach as well as the Crown with a notice of motion for an order that the appellants Sexual Assault Care Centre and Women's Outreach produce to the defence, before the scheduled trial date, all records relating to the appellant L.L.A. The motion came before Whalen J. on February 9, 1994, and was adjourned to be dealt with by the trial judge on February 14. On February 10, 1994, the Crown served and filed a notice of application for an order quashing the subpoenas.

On February 14, 1994, Loukidelis J. of the Ontario Court of Justice, General Division, heard both applications separately. He dealt first with the application from the Crown to quash the subpoenas, which he dismissed, concluding that "there may be information at hand that is relevant to the issue". Loukidelis J. then heard the motion from the respondent for production of the records. He held:

In view of the way that these matters were brought before me, the issue is not whether this is a fishing expedition because that is an issue of a bona fide need for the evidence which was subsumed under the question of relevance. This argument advances the issue of privilege.

Loukidelis J. observed that there was no statutory basis for the claim of privilege and that the traditional classes of privilege created by the common law, such as the solicitor-client privilege, were not applicable. He concluded that the records were not privileged and ordered that all records sought be produced to the respondent, subject to the condition that no copies be made. He then granted an adjournment to allow the parties to assess their respective positions. Given the appellants' intention to appeal the order for production, Loukidelis J. ordered a stay of his order until the appeals were disposed of. The appellants filed notices of appeal on March 17, 1994, at which time the respondent brought applications to quash the appeals.

On January 6, 1995, the Ontario Court of Appeal quashed the appeal for want of jurisdiction in a unanimous decision (A. (L.L.) v. B. (A.) (1995), 1995 CanLII 542 (ON CA), 37 C.R. (4th) 170). Relying upon the decision of this Court in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, the Court of Appeal concluded that there was no provision under the Code allowing for interlocutory appeals either for parties or third parties from rulings at trial relating to the admissibility of evidence or documents. As such, it held that the appellants had no right to appeal to the Court of Appeal until there had been a final verdict at trial. As a result, the Court of Appeal ordered the production of the documents and directed that the trial before Loukidelis J. proceed.

Pursuant to s. 40(1) of the Supreme Court Act, the appellants applied for leave to appeal to this Court from Loukidelis J.'s order for the production of the documents. They also applied for a stay of the trial pending this Court's decision on their appeal. The trial date was set for June 5, 1995. On March 17, 1995, this Court remitted the question of the stay to the trial judge and, on March 27, the application for leave to appeal was granted: [1995] 1 S.C.R. viii.

III. Arguments of the Parties and the Interveners

A number of issues were raised by the parties and the interveners, which I will attempt to summarize without entering into all the detailed approaches which were suggested.

The appellants submit, first, that the threshold evidentiary basis, which must be established by the accused's seeking the production of private records held by third parties, must take into consideration the right to privacy of the complainant as guaranteed in ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. Accordingly, the initial burden would rest upon the accused to establish that the records are necessary for full answer and defence. The relevance of the records would have to be clearly established and a substantial foundation would have to be laid by material extraneous to the records themselves, the subject of records and the record holder. Secondly, the appellants submit that a common law privilege exists in favour of private records held by third parties and that, in balancing both the right of the accused to a full defence and the privacy right of the complainant, such records should be held privileged.

The respondent's first contention is to the effect that this Court does not have jurisdiction to hear third party interlocutory appeals arising out of sexual assault criminal proceedings. As to the question of production and disclosure, the respondent starts from the proposition that the principles elaborated in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, with respect to documents in the possession of the Crown should apply to documents in the possession of third parties. Consequently, whenever the records at issue may be useful to the defence, disclosure should be the rule. According to the respondent, the privacy interest of sexual assault complainants in records held by third parties is not protected by the Charter. Therefore, there are no conflicting constitutional rights and the accused's right to full answer and defence must prevail. After the issuance of a subpoena duces tecum for the production of such private records, the respondent asserts that the onus is on the Crown to show that the documents are clearly irrelevant. In his supplementary factum, the respondent argues that there is no infringement of s. 15 of the Charter in the case at hand. With regard to privilege, the respondent argues that the onus of establishing the existence of a privilege rests upon the party opposing production and disclosure. Further, no privilege would exist because the traditional rules of confidentiality are trumped by the right of the accused to make full answer and defence.

The intervener Criminal Lawyers Association ("CLA") agrees with the respondent that the Stinchcombe disclosure principles apply for the production and disclosure of private records held by third parties. CLA submits that the accused must have all available tools in order to exercise his right to make full answer and defence, including all potentially relevant information. According to CLA, the Charter is not engaged by the disclosure of private records held by third parties. Concerning privilege, CLA argues that, in weighing the complainant's privacy interest with the accused's right to make full answer and defence, the balance must be struck in favour of the latter.

On behalf of the intervener Crown, the Attorney General of Ontario asserts that the proper procedure in the present case consists in the issuance of a subpoena duces tecum coupled with a formal application for production of the records, including stated grounds and supporting materials. As to the onus, it would be up to the defence to demonstrate, through evidence, that disclosure is necessary in order to make full answer and defence, as well as to establish a substantial likelihood that, without the court compelled infringement of the complainant's ss. 7, 8 and 15 Charter rights, the accused's right to make full answer and defence at trial would be violated. The evaluation of the relevance and probative value of the private records should be based on a factual foundation, within the context of the trial as a whole and in light of Charter values. With regard to privilege, the Attorney General of Ontario endorses the appellants' position that the private records in this case are protected by a class privilege. Alternatively, the proper application of the four Wigmore criteria leads to the conclusion that this is an appropriate case for finding a case-by-case privilege.

The intervener Attorney General of Canada takes the position that the proper approach to the production of private records held by third parties should balance the rights of the accused to make full answer and defence with the rights of the complainant to security of the person, privacy and equality. The procedure would be initiated by subpoena duces tecum and the threshold test would be the likely materiality of the records, i.e., that they are capable of affecting the outcome of the trial. Likely materiality must be determined with regard to the purpose to which the evidence is put and must be based on a proper factual foundation. Hypothetical allegations based on erroneous assumptions informed by stereotypes and myths would be inappropriate and unfair to sexual assault complainants. The Attorney General of Canada further submits that the communications between sexual assault complainants and their counsellors enjoy a class privilege similar to solicitor-client communications. In the alternative, private records of sexual assault complainants are protected by a case-by-case privilege.

The intervener Attorney General of Manitoba submits that trial judges do not have jurisdiction to make pre-trial orders for the production of private records held by third parties. The subpoena procedure could only be used in order to have witnesses attend court to give evidence and not as a means of pre-trial discovery. As to the onus, the applicant seeking disclosure would have to establish that such records are likely to be necessary and useful for full answer and defence. In undertaking this exercise, the court would have to weigh the potential value of such records for ensuring the accused's full answer and defence against the prejudicial effect of disclosure. According to the Attorney General of Manitoba, no class privilege exists in favour of private records held by third parties but a case-by-case privilege may exist if Wigmore's four criteria are met.

The intervener Canadian Foundation for Children, Youth and the Law ("CFCYL") favours a consideration of the complainant's Charter right to privacy in the determination of the relevance of private records held by third parties. In the CFCYL's opinion, the right to privacy is broader than the privilege under the fourfold Wigmore test. This privacy interest must be weighed against the right of the accused to make full answer and defence. The threshold should be the rational or likely connection between the private records requested and the defence being raised by the accused. If the defence satisfies this threshold, the onus falls on the complainant to demonstrate an expectation of privacy or a common law privilege, to be weighed and reconciled with the accused's right to make full answer and defence.

The interveners Aboriginal Women's Council et al. (the "Coalition"), for their part, are of the view that, in the context of a sex-unequal legal and social culture, disclosure of sexual assault complainants' private records involves a balancing not only of the right to privacy and the right to make full answer and defence, but also of the right to equality without discrimination. The Coalition submits that disclosure of private records relating to sexual assault complainants would aggravate women's inequality by perpetuating the discriminatory stereotyping and discrediting of women. Further, disclosure of private records would undermine the integrity of the justice system by deterring reporting of sexual assaults and distorting the fact-finding process. As a consequence, the vindication of complainants' constitutional rights and the interests of justice can only be achieved by an absolute prohibition against the production of complainants' private records in sexual offence proceedings.

IV. Jurisdiction

The first issue raised in this appeal concerns the jurisdiction of this Court to hear the present appeal, which the respondent puts into question. The narrow issue is whether and how sexual assault complainants and other third parties can appeal an interlocutory order for the production of private records. A larger question is whether and how third parties can challenge interlocutory court orders arising out of criminal proceedings. This Court addressed this larger question in Dagenais, supra, and recently applied the approach developed in that case in R. v. Primeau, 1995 CanLII 143 (SCC), [1995] 2 S.C.R. 60; and R. v. Jobin, 1995 CanLII 144 (SCC), [1995] 2 S.C.R. 78.

In Dagenais, this Court had to decide whether the Canadian Broadcasting Corporation, a third party to a criminal proceeding, could challenge the interlocutory broadcast ban of the mini-series "The Boys of St. Vincent". The majority, by which I am bound, set out two distinct appeal routes from orders made in criminal proceedings depending on whether the appeal is sought by a party to the proceedings or by third parties. In the former situation, the accused and the Crown must await the end of the trial to appeal such orders. In the case of third parties, they can appeal court orders affecting them before the end of the trial through two procedural avenues. In Primeau, Sopinka and Iacobucci JJ., writing for the majority, outlined the rationale for appeals of interlocutory orders by third parties (at para. 12):

The procedure for third parties differs for two reasons. First, a third party, being outside the actual proceedings, cannot apply to the trial judge for relief. Second, an order deciding an issue with respect to a third party is a final order. Such a characterization is important in order to comply with the general rule barring interlocutory appeals in criminal matters.

Third parties must follow a different procedural avenue depending on the level of court that issued the order being appealed. A provincial court order is to be challenged through an enlarged remedy of certiorari, which falls within the ambit of superior courts. This decision can then be appealed through the regular channels of our judicial system. On the other hand, where a court order is issued by a superior court judge in the first place, as in the present case, third parties can challenge it by seeking leave to appeal directly to this Court, pursuant to s. 40(1) of the Supreme Court Act. These procedures were outlined in Dagenais with regard to publication bans but, as was pointed out in Primeau and Jobin, they generally apply to other court orders related to criminal proceedings. As a result, the proper procedure to appeal the interlocutory order for production of records issued by Loukidelis J., a superior court judge, was through leave to appeal to this Court pursuant to s. 40(1) of the Supreme Court Act.

The respondent attempts to argue that because the term "final judgment" is defined in s. 2(1) of the Supreme Court Act as being "any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding", the appellants, who are third parties in the criminal proceeding, do not have standing to appeal before this Court. With respect, this argument does not take into account the full scope of s. 40(1) of the Supreme Court Act as interpreted by this Court in Dagenais. The section provides for an appeal not only of a "final" judgment but also of "other judgment[s]". This, in the opinion of the Court, encompasses interlocutory appeals of court orders in criminal matters sought by third parties (see Dagenais, at p. 861). Furthermore, the majority of this Court in Primeau and Jobin expressed the view that an interlocutory order affecting third parties is a final order and, accordingly, s. 40(1) is available to appeal an order of a superior court judge, such as the one at issue. Finally, it is worth noting that s. 2(1) of the Supreme Court Act uses the terms "any of the parties in controversy" rather than any of the parties in the proceedings. There is no doubt that third parties' substantive rights might be affected by the outcome of the trial judge's order. They are "parties in controversy" before the Court.

The respondent further argues that the Dagenais line of cases is distinguishable on the ground that, in the case at bar, it was the Crown, a party to the proceedings, not third parties, who brought the original application to quash the subpoenas before the trial judge. In the respondent's view, this is significant because in Dagenais, Primeau and Jobin the majority of this Court did not allow for interlocutory appeals in criminal matters by parties to the proceedings. While the dismissal by the trial judge of a motion to quash the subpoenas may not open the door to an interlocutory appeal of that order by parties to the proceedings during the trial, the records here subpoenaed were not in the possession of the Crown but in that of third parties. The parties who seek to appeal the order are third parties, not the Crown. According to Dagenais, no appeal lies to the Court of Appeal, which rightly declined jurisdiction, but an appeal by third parties lies to this Court, with leave from the Court. Since this is the procedure followed by the third party appellants in this case, I must, therefore, conclude that this Court has jurisdiction to hear the appeal.

The one question that remains is whether both a complainant, a third party to the proceedings (whether or not an appellant, but here one of the appellants), and the Crown, a party to the proceedings, have standing in third party appeals. There is no doubt in my mind that they do. The audi alteram partem principle, which is a rule of natural justice and one of the tenets of our legal system, requires that courts provide an opportunity to be heard to those who will be affected by the decisions. The rules of natural justice or of procedural fairness are most often discussed in the context of judicial review of the decisions of administrative bodies, but they were originally developed in the criminal law context. In Blackstone's Criminal Practice (Murphy rev. 1993), the authors remark at p. 1529:

Traditionally, the rules of natural justice have been defined with a little more precision, and are said to involve two main principles - no man may be a judge in his own cause, and the tribunal must hear both sides of the case. [Emphasis added.]

See Forsythe v. The Queen, 1980 CanLII 15 (SCC), [1980] 2 S.C.R. 268; and Attorney General of Quebec v. Cohen, 1979 CanLII 223 (SCC), [1979] 2 S.C.R. 305.

Here, both the complainant and the Crown possess a direct and necessary interest in making representations. Both would be directly affected by a decision regarding the production of the complainant's private records. The decision is susceptible of affecting the course of the criminal trial. Both, therefore, must be afforded an opportunity to be heard.

The respondent's argument on this first issue must accordingly be dismissed.

I now turn to the second issue of the extent of production of private records in the possession of third parties. In that regard, the claim by the appellants and the interveners that those records are privileged must first be addressed.

V. Privilege

At the outset, it is useful to determine what is to be understood by private records. The context in which the question of production of private records not in the possession of the Crown generally arises is not limited to medical and therapeutic records of complainants in sexual assault cases. It extends generally to any record, in the hands of a third party, in which a reasonable expectation of privacy lies. These records may include medical or therapeutic records, school records, private diaries, social worker activity logs and so on. For the sake of convenience, I refer to such documents as "private records held by third parties".

The appellants and the interveners who favour recognizing a class privilege at common law for communications between counsellors and sexual assault complainants invoke several arguments in support of their view. Before addressing each of them, however, a brief reference to the principles and rationales for privilege as well as a review of the law of privilege in Canada and in other common law countries are in order.

A. Principles and Rationales

The doctrine of privilege acts as an exception to the truth-finding process of our adversarial trial procedure. Although all relevant information is presumptively admissible at trial, some probative and trustworthy evidence will be excluded to serve other overriding social interests. The same principles apply to exempt, completely or partially, particular communications arising out of certain defined relationships from disclosure in judicial proceedings. Since the existence of privilege impedes the realization of the central objective of our legal system in order to advance other goals, the question of privilege is essentially one of public policy.

Traditionally, the justification for the law of privilege has been based on utilitarian (or "instrumental") considerations. Essentially, this rationale asserts that communications made within a given relationship should be privileged only if the benefit derived from protecting the relationship outweighs the detrimental effects of privilege on the search for the truth. The utilitarian theory of privilege focuses on the societal importance of certain relationships. Maxine H. Neuhauser, in "The Privilege of Confidentiality and Rape Crisis Counselors" (1985), 8 Women's Rts. L. Rep. 185, remarks at p. 188:

It [the utilitarian rationale] is based on the notion that if people fear that their confidences may be revealed in court they will choose not to form particular, valued relationships or will fail to communicate information necessary to the fostering of these relationships, and that, consequently, society will suffer.

See also, Robert Weisberg, "Defendant v. Witness: Measuring Confrontation and Compulsory Process Rights Against Statutory Communications Privileges" (1978), 30 Stan. L. Rev. 935, at pp. 940-42.

More recently, an additional rationale based on privacy has emerged to justify the recognition of privileged communications (see Charles T. McCormick, McCormick on Evidence (4th ed. 1992), vol. 1, at §§ 72 and 77; also R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at pp. 302-3, per L'Heureux-Dubé J., concurring). This non-utilitarian view is founded on more abstract premises, for example, that privilege is vital to the protection of fundamental individual values. In "Developments in the Law -- Privileged Communications" (1985), 98 Harv. L. Rev. 1450, the authors observe at pp. 1480-81:

Rather than focusing on the systemic impact that compelled disclosures might have on behavior, the privacy rationale focuses on the protection that privileges afford to individual privacy. The confidentiality of communications is regarded as a privacy interest that itself justifies whatever impairment of truth-seeking that privileges may cause.

In the context of counsellor and sexual assault complainant communications, Anna Y. Joo, in "Broadening the Scope of Counselor-Patient Privilege to Protect the Privacy of the Sexual Assault Survivor" (1995), 32 Harv. J. on Legis. 255, makes these observations, at p. 260:

Whereas the utilitarian rationale views the goal of the counselor-patient privilege as promoting beneficial future relations, the privacy justification perceives the main purpose of the privilege as shielding the patient from the harm that disclosure may cause. According to the privacy justification, some human relationships are fundamental to human dignity and should be free from state interference. [Emphasis added.]

See also, Stephen A. Saltzburg, "Privileges and Professionals: Lawyers and Psychiatrists" (1980), 66 Va. L. Rev. 597, at pp. 621-22.

It is useful at this stage to review briefly how the law of privilege has developed so far in Canada, as well as in other common law countries, particularly as regards the issue now before the Court.

B. A Comparative View

In Canada, very few communications are recognized as privileged either at common law or under statutory law. At common law, the solicitor-client privilege as well as the informer privilege are fully recognized. These privileges are not absolute however; they must yield, in some circumstances, to the accused's right to make full answer and defence. For example, in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 607, McLachlin J., speaking for the majority of the Court, held that informer privilege and solicitor-client privilege may yield in the context of a criminal trial if the accused's innocence is at stake. Similarly, in Stinchcombe, supra, at p. 340, Sopinka J. noted that existing privileges may, in certain circumstances, constitute unreasonable limits on the constitutional right to make full answer and defence. See also Loretta N. Colton, "R. v. Stinchcombe: Defining Disclosure" (1995), 40 McGill L.J. 525, at p. 556.

By statute, as regards criminal law, communications between spouses are the only ones regarded as privileged (s. 4(3) of the Canada Evidence Act, R.S.C., 1985, c. C-5; see R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, regarding separated spouses without any reasonable possibility of reconciliation). Similarly, provincial legislation generally provides for spousal communications privilege in civil proceedings. Two Canadian provinces, Quebec and Newfoundland, have enacted statutes recognizing religious communications privilege: see Quebec's Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, s. 9; and Newfoundland's Evidence Act, R.S.N. 1970, c. 115, s. 6. With regard to doctor-patient relationships, Quebec is the only province which has recognized a statutory privilege in civil matters: see s. 42 of the Medical Act, R.S.Q. 1977, c. M-9. Neither at common law nor by statute have communications between counsellors and sexual assault complainants been recognized as privileged in Canada.

The question of privilege has recently been visited by our Court in Gruenke, supra. In that case, the Court had to decide whether communications from an accused to her pastor and to a lay counsellor were privileged in criminal proceedings at common law and under the freedom of religion guarantee in s. 2 of the Charter. The majority discussed the two categories of privilege at common law: first, a "class" privilege, and second, a "case-by-case" privilege. A class privilege entails a prima facie presumption that such communications are inadmissible or not subject to disclosure in criminal or civil proceedings and the onus lies on the party seeking disclosure of the information to show that an overriding interest commands disclosure. In order for the privilege to attach, compelling policy reasons must exist, similar to those underlying the privilege for solicitor-client communications, and the relationship must be inextricably linked with the justice system.

In a case-by-case privilege, the communications are not privileged unless the party opposing disclosure can show they should be privileged according to the fourfold utilitarian test elaborated by Wigmore (Evidence in Trials at Common Law (McNaughton rev. 1961), vol. 8, at § 2285). These criteria are:

(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. [Emphasis in original.]

See Gruenke, at p. 286, per Lamer C.J. for the majority; also Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), 1981 CanLII 33 (SCC), [1981] 2 S.C.R. 494, at p. 512, per Laskin C.J., dissenting; and Slavutych v. Baker, 1975 CanLII 5 (SCC), [1976] 1 S.C.R. 254, at p. 260.

The issue of whether private records held by third parties are privileged at common law has never been decided by this Court. The Nova Scotia Court of Appeal did, however, consider it in R. v. Ryan (1991), 1991 CanLII 11728 (NS CA), 69 C.C.C. (3d) 226. The question was whether social agency records of two sexual assault complainants were privileged in a criminal trial for sexual assault and narcotic trafficking. The trial judge had recognized that the records were privileged and had ordered a stay of proceedings for denial of the accused's right to make full answer and defence. The Court of Appeal held that the competing interests at stake weighed in favour of disclosure and overruled the stay. Similarly, in R. v. R.S. (1985), 1985 CanLII 3575 (ON CA), 19 C.C.C. (3d) 115, the Ontario Court of Appeal had to decide whether records relating to family group therapy sessions were privileged in the criminal trial of a man accused of having sexually assaulted his two step-daughters. The Court of Appeal opined that, in the context of child abuse, the search for the truth overcomes the interests in family therapy and, therefore, the records could be produced at trial. See also the decisions of the British Columbia Supreme Court in R. v. Kliman, [1994] B.C.W.L.D. No. 587, and of the Ontario Court, General Division, in R. v. Coon (1991), 1991 CanLII 11746 (ON SC), 74 C.C.C. (3d) 146.

In the context of civil litigation, some courts and masters have examined claims of privilege. In M.(A.) v. Ryan, 1993 CanLII 1915 (BC SC), [1993] 7 W.W.R. 480, the British Columbia Supreme Court considered whether psychiatric records had to be produced in a civil suit for sexual abuse. The court held that, while confidentiality was essential to the psychiatrist-patient relationship, the interest in the proper administration of justice prevailed over the need to maintain confidentiality. In M.(E.) v. Martinson (1993), 1993 CanLII 1825 (BC SC), 81 B.C.L.R. (2d) 184 (Master), the defendant sought production of the plaintiff's counselling records of treatment for sexual abuse, alcoholism and drug addiction, in an attempt to show that the alleged pain and suffering did not result from the automobile accident which was the object of the suit. It was held that, in the circumstances, the interest in maintaining the confidentiality of the records outweighed the benefit there may have been to the administration of justice by their disclosure.

The Law Reform Commission of Canada has recommended the recognition of a general privilege for professionals in criminal proceedings in its Report on Evidence (1975), although not without a caveat. Section 41 of the proposed Evidence Code provides:

41. A person who has consulted a person exercising a profession for the purpose of obtaining professional services, or who has been rendered such services by a professional person, has a privilege against disclosure of any confidential communication reasonably made in the course of the relationship if, in the circumstances, the public interest in the privacy of the relationship outweighs the public interest in the administration of justice. [Emphasis added.]

The American position with regard to privilege at common law is somewhat similar to the Canadian approach. The rationales underlying the recognition of privileged communications are also analogous (see McCormick on Evidence, supra, at § 72). However, in the United States, a number of communications, including those between counsellors and sexual assault complainants, are considered privileged as a result of the enactment of statutory privilege, both by the Federal Government and by the states, for communications that are not privileged at common law. See Scott N. Stone and Robert K. Taylor, in Testimonial Privileges (2nd ed. 1993), for a more detailed compilation of the statutes granting such privilege in the United States as well as the degree and the extent of confidentiality it affords to such communications.

Without going into a detailed analysis, it is fair to say that many states in the United States have enacted some statute limiting disclosure and testimony by doctors, psychiatrists, psychologists, social workers, and other psychotherapists. An increasing number of states are according privileged status to communications between counsellors and sexual assault complainants; they include Alaska, California, Connecticut, Florida, Illinois, Kentucky, Maine, Massachusetts, Minnesota, Pennsylvania, Utah, and Wyoming. Most of these privileges provide an absolute protection of private records relating to sexual assault complainants in criminal trials.

There is, however, a constitutional element to the law of privilege in the United States. The right to a fair trial (or "due process"), as guaranteed by the Fourteenth Amendment, as well as the rights guaranteed by the confrontation clause and the compulsory process clause of the Sixth Amendment, impose limits on statutory privilege (see Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Nixon, 418 U.S. 683 (1974); Davis v. Alaska, 415 U.S. 308 (1974); and Washington v. Texas, 388 U.S. 14 (1967)). The Supreme Court of the United States has determined the constitutionality of privilege in general as regards the disclosure and the admissibility of evidence through a balancing process, weighing the rights of the accused, as guaranteed by the American Constitution, against the public interests served by privilege. That court has yet to decide the question of constitutionality of absolute privilege attaching to private records of sexual assault complainants, but there are a number of commentators who have dealt with this issue: see Maureen B. Hogan, "The Constitutionality of an Absolute Privilege for Rape Crisis Counseling: A Criminal Defendant's Sixth Amendment Rights Versus a Rape Victim's Right to Confidential Therapeutic Counseling" (1989), 30 Boston College L. Rev. 411, at pp. 470-74; Welsh S. White, "Evidentiary Privileges and the Defendant's Constitutional Right to Introduce Evidence" (1989), 80 J. Crim. L. & Criminology 377, at pp. 423-25; and Robert Weisberg, supra, at pp. 968-73.

On the other hand, several state courts have addressed the conflict between sexual assault defendants' constitutional rights and absolute confidentiality privilege for sexual assault counselling communications. Most have ruled that such absolute privilege is unconstitutional because it infringes upon defendants' constitutional rights: see In re Robert H., 509 A.2d 475 (Conn. 1986); Commonwealth v. Two Juveniles, 491 N.E.2d 234 (Mass. 1986); Commonwealth v. Samuels, 511 A.2d 221 (Penn. 1986); Advisory Opinion to the House of Representatives, 469 A.2d 1161 (R.I. 1983). Both the Supreme Court of Pennsylvania, in Commonwealth v. Wilson, 602 A.2d 1290 (1992), and the Supreme Court of Illinois, in People v. Foggy, 521 N.E.2d 86 (1988), have found the same kind of absolute privilege constitutional.

Most Commonwealth countries, including England, Scotland, Ireland, New Zealand and Australia, use a different qualification of privilege. These countries distinguish between private privilege and public interest immunity. See Sir Rupert Cross, Cross on Evidence (7th ed. 1990), at pp. 416 et seq. and 456 et seq.; David Field, The Law of Evidence in Scotland (1988), at pp. 248 et seq.; Caroline Fennell, The Law of Evidence in Ireland (1992), at pp. 165 et seq. and 193 et seq.; Sir Rupert Cross, Evidence, (3rd ed. 1979), at pp. 254 et seq. and 284 et seq.; and Andrew Ligertwood, Australian Evidence (2nd ed. 1993), at pp. 207 et seq. and 280 et seq.

Private privilege at common law is limited to legal professional relationships. As regards other relationships, such as doctor-patient, pastor-penitent, journalist-informants and spousal relationships, no privilege is recognized in the absence of statutory provisions. England, for example, has no statutory provision providing for a general privilege for doctor-patient communications, with only limited exceptions in civil proceedings; there is nothing specifically relating to counsellor-sexual assault complainant communications either. The situation is the same in both Scotland and Ireland. New Zealand and the states of Victoria and Tasmania and the Northern Territory in Australia have enacted civil proceeding privilege regarding communications between physicians and their patients. The legislation, however, is silent on sexual assault counselling communications and the case law has not extended the existing privileges to cover such communications.

In these Commonwealth countries, public interest immunity (formally referred to as Crown privilege) constitutes the residual basis to prevent relevant evidence from being disclosed or being found admissible when considerations of public policy are found to be more important than the full disclosure of facts. See D. v. National Society for the Prevention of Cruelty to Children, [1978] A.C. 171 (H.L.); Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2), [1974] A.C. 405 (H.L.), and Rogers v. Home Secretary, [1973] A.C. 388 (H.L.). The immunity is founded in the common law; it is not a creature of statute. It gives protection to state interests, reports of proceedings in Parliament, police matters and other confidential subjects, including educational records, social worker logs and medical documents: see Campbell v. Tameside Metropolitan Borough Council, [1982] 1 Q.B. 1065 (C.A.); and Gaskin v. Liverpool City Council, [1980] 1 W.L.R. 1549 (C.A.).

In the criminal law context, public interest immunity cannot prevent the disclosure or bar the admissibility of documents that can enable the accused to resist an allegation of crime or to establish innocence: see Duncan v. Cammell, Laird & Co., [1942] A.C. 624 (H.L.). In that respect, English courts have held that the public interest in ensuring a fair trial for a defendant outweighs the interest in protecting such confidential records if their disclosure is necessary for the defendant's full answer and defence. See, in the context of governmental documents, R. v. Governor of Brixton Prison, Ex parte Osman, 1905 CanLII 188 (MB KB), [1991] 1 W.L.R. 281 (Q.B.); concerning the identity of police informants, R. v. Agar, [1990] 2 All E.R. 442 (C.A.); and in the context of social worker logs, Re M (A Minor) (Disclosure of Material), [1990] 2 F.L.R. 36 (C.A.). See also Rachel Langdale and Simeon Maskrey, "Public Interest Immunity: Disclosure of Social Work Records" (1994), 24 Fam. L. 513.

Courts of Commonwealth countries have not addressed the issue of whether private records of sexual assault complainants must be disclosed in criminal proceedings. However, given how this issue has been decided in other contexts, it is doubtful that public interest immunity would bar disclosure of such records when the accused's guilt or innocence is at stake. In the general context of medical records, the Lord Chancellor in England made the following statement (reported at (1956) 197 H.L. Official Report (5th series), col. 745):

We also propose that if medical documents, or indeed other documents, are relevant to the defence in criminal proceedings, Crown privilege [public interest immunity] should not be claimed.

This statement was quoted with approval by Lord Reid in Conway v. Rimmer, [1968] A.C. 910 (H.L.), at p. 942. Therefore, in England at least, in criminal proceedings, it appears that the balance between the right to full answer and defence and the public policies supporting the recognition of a privilege for sexual assault counselling communications is likely to be struck in favour of the former.

With this background in mind, I now turn to the question raised by the appellants and the interveners: Whether, as a matter of law, private records of complainants in sexual assault criminal proceedings should, as a class, be considered privileged communications. In my view, they should not for the reasons that follow.

C. Privilege for Private Records of Sexual Assault Complainants

Under this heading, the appellants and the interveners who favour recognizing a class privilege at common law for communications between counsellors and sexual assault complainants raise five arguments. They can be summarized as follows: (1) sexual assault counselling relationships are based upon and depend on confidentiality; (2) without confidentiality, sexual assault victims will be deterred from seeking counselling; (3) the deterrent effect of disclosure which leads to under-reporting of sexual assault cases, undermines the effectiveness of the criminal justice system; (4) records of statements made in the course of sexual assault counselling are both hearsay and inherently unreliable; and (5) the common law principles governing privilege need to be in step with Charter values. The appellants and the interveners elaborate on each of those arguments and their points are well taken.

Firstly, victims of sexual assaults are subject to the lingering and debilitating effects of sexual assault trauma syndrome. The sexual assault counsellors are specifically trained to help victims recover from sexual assault trauma syndrome. Sexual assault victims often take the first step to recovery by talking about the sexual assault experience in a non-judgmental and confidential atmosphere: see Kim E. Williamson, "Confidentiality of Sexual Assault Victim-Counselor Communication: A Proposed Model Statute" (1984), 26 Ariz. L. Rev. 461, at pp. 466-67; and Carrie J. Scarmeas, "Rape Victim-Rape Crisis Counselor Communications: A New Testimonial Privilege" (1982), 86 Dick. L. Rev. 539, at pp. 543-44.

Confidentiality in sexual assault counselling is essential in creating the sense of security necessary to encourage the free flow of discussion which is crucial to the victim's recovery. Unless the victim is guaranteed confidentiality she will be inhibited in her discussions and unable to receive the full benefits of counselling: see Michael Laurence, in "Rape Victim-Crisis Counselor Communications: An Argument for an Absolute Privilege" (1984), 17 U.C. Davis L. Rev. 1213, at pp. 1223-24.

Secondly, without the assurance of confidentiality, sexual assault victims will be more likely to be deterred from seeking counselling or from divulging all the information to their counsellors. This deterrent effect of disclosure is not only detrimental to the victims but also to society as a whole. In R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, I made the following observation regarding the disclosure of medical records (at p. 622):

First, common sense dictates that if people are aware that medical records can and may very well be obtained to attack the credibility of a witness, they may be reluctant to seek needed and valuable treatment if there is any prospect that they may be required to testify at trial, particularly if there is any connection between the events at trial and the subjects of discussion in the treatment process.

Thirdly, this deterrent effect has further repercussions on the functioning of the criminal legal process. Because sexual assault counselling and therapy may lead victims to report the crime to the authorities, anything that deters victims from seeking treatment will accentuate the under-reporting of offences. This Court has recognized that chronic under-reporting of sexual assault cases undermines the effectiveness of the criminal justice system. See, in the context of publication bans, Canadian Newspapers Co. v. Canada (Attorney General), 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122, at pp. 131-32; and, in the context of sexual assaults, Seaboyer, supra, at pp. 649-50, per L'Heureux-Dubé J., dissenting but not on this point, and R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at pp. 441-42, per L'Heureux-Dubé J. for the Court in the result.

According to Statistics Canada, only six percent of the sexual assaults surveyed in 1993 were reported to the police. Fear of the attitudes likely to be shown by the police and the courts toward complainants continues to deter significant numbers of women from reporting. See J. Roberts, "Criminal Justice Processing of Sexual Assault Cases" (1994), 14:7 Juristat 1; see also Canadian Panel on Violence Against Women, Changing the Landscape: Ending Violence - Achieving Equality (1993), at pp. 28-29.

The legal system has a direct and vital interest in promoting the reporting of sexual assaults. It is important to recognize the impact that procedural and substantive rules have upon the resolve of sexual assault victims to obtain treatment and upon the reporting of crimes of this nature. Therefore, the societal importance of the relationships between counsellors and sexual assault complainants necessarily goes beyond the benefit to the victims; it is also vitally linked to the effectiveness of the criminal justice system to deal with sexual assault crimes.

As a fourth point, the appellants and the interveners note that records of statements made in the course of medical or therapeutic treatments are both hearsay and inherently unreliable (see Osolin, supra, at pp. 622-23). The information given by sexual assault victims expressed in the course of counselling sessions constitutes second-hand communications. The rule against hearsay evidence requires that such communications be considered inadmissible at trial because of its lack of trustworthiness. The same reasoning supports the conclusion that private records of sexual assault complainants ought not to be produced or serve as a basis for the defence.

These records are inherently unreliable because they were gathered in a medical or therapeutic treatment context: see Marilyn T. MacCrimmon and Christine Boyle, "Equality, Fairness and Relevance: Disclosure of Therapists' Records in Sexual Assault Trials", in Canadian Institute for the Administration of Justice, Filtering and Analyzing Evidence in an Age of Diversity (1995), 81, at pp. 103-5. The questions asked by sexual assault counsellors encompass more than the particular events in issue at trial; they include a wide range of elements such as personal history, thoughts, emotions and other irrelevant information. In fact, sexual assault counsellors' records are prepared for the sole purpose of assisting counselling, not for the purpose of establishing accurate historical records for criminal proceedings. Further, private records do not necessarily represent the precise words spoken by the sexual assault complainants. Even if they did, the records would not qualify as statements under s. 10(1) of the Canada Evidence Act, unless the complainants reviewed and ratified the content of the records. As well, sexual assault counselling records are not necessarily prepared contemporaneously with the counselling session, or even immediately afterwards. As a result, the reliability or even the relevance of private records relating to sexual assault complainants are highly questionable.

Finally, the common law principles governing privilege must be consistent with the constitutional values enshrined in the Charter: see Marilyn T. MacCrimmon, "Developments in the Law of Evidence: The 1991-92 Term: Truth, Fairness and Equality" (1993), 4 Sup. Ct. L. Rev. (2d) 225, at pp. 258-59. As regards private records of sexual assault complainants, these values include the complainant's privacy and equality interests. In Gruenke, supra, Lamer C.J.'s analysis of a case-by-case privilege in favour of communications made in confidence to a pastor was informed by the right to freedom of religion in s. 2(a) and by the multicultural interpretation clause in s. 27 of the Charter. He wrote at pp. 290-91:

The Wigmore criteria will be informed both by the Charter guarantee of freedom of religion and by the general interpretative statement in s. 27 of the Charter. . . .

In applying the Wigmore criteria to particular cases, both s. 2(a) and s. 27 must be kept in mind. This means that the case-by-case analysis must begin with a "non-denominational" approach. The fact that the communications were not made to an ordained priest or minister or that they did not constitute a formal confession will not bar the possibility of the communications' being excluded. All of the relevant circumstances must be considered and the Wigmore criteria applied in a manner which is sensitive to the fact of Canada's multicultural heritage.

See also Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449, at p. 540, where the Ontario Court of Appeal stated that the common law interpretation of privilege might have to be reconsidered in relation to the constitutional rights affected.

This is consistent with the approach adopted by this Court in RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, where McIntyre J. said at p. 603: "the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution". More recently, in Dagenais, supra, the Court had to consider the common law rule governing the issuance of publication bans in the context of conflicting constitutional rights, namely freedom of expression and the presumption of innocence. Lamer C.J., speaking for the majority of the Court, after relying on this dicta of McIntyre J., added (at p. 878):

I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights.

See also Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at paras. 95-97, per Cory J. for the Court in the result, and at para. 206, per L'Heureux-Dubé J., concurring; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at para. 51, per L'Heureux-Dubé J. for the Court in the result; and Salituro, supra, at p. 675.

As can be seen from the above discussion, there are strong arguments of public policy which militate in favour of protecting the confidentiality of counsellor-sexual assault complainant communications in criminal trials. They do not, however, necessarily support the recognition of a class privilege in favour of private records. There are many avenues open to prevent production of such records if the need arises. Hearsay and irrelevance constitute one of these avenues; as discussed in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, released concurrently, the balancing of competing constitutional rights is another avenue, to which I will return later. The recognition of a class privilege for private records is not, in my view, the proper approach and I agree with the reasoning advanced by the Attorney General of Manitoba in this respect. Generally, class privilege presents many impediments to the proper administration of justice and, for that reason, has not been favoured in Canada and elsewhere in criminal trials. A class privilege is a complete bar to the information contained in such records, whether or not relevant, and the onus to override it is a heavy one indeed. The particular concerns raised by the recognition of a class privilege in favour of private records in criminal law relate to: (1) the truth-finding process of our adversarial trial procedure; (2) the possible relevance of some private records; (3) the accused's right to make full answer and defence; (4) the categories of actors included in a class privilege; and (5) the experience of other countries.

The principal aim of our adversarial trial process is the search for the truth. In order for justice to be rendered, the judicial system must have the right to all relevant information: see Pierre Tessier, "La vérité et la justice" (1988), 19 R.G.D. 29, at p. 32. This is the foundation of the requirement that everyone must testify in court if requested by subpoena and, in civil cases, of the rules relating to the disclosure of documents in the pre-trial discovery process. Accordingly, relevant information is presumptively admissible and subject to disclosure, while the recognition of privilege is confined to limited communications. In that respect, Professor Mewett, in Witnesses (1991), makes the following observations at p. 15-2:

[T]he objective of all testimony is the eliciting of information from which conclusions may be drawn. It is therefore fundamental to the litigation process that the court or other tribunal have available to it all relevant evidence, unless some other social value is perceived to exist that takes priority over the ascertainment of the truth. All claims of privilege hinder the search for the truth since they result in the concealment of what may be helpful and, indeed, crucial information. It is not surprising, therefore, that claims to privilege should be carefully scrutinised by the courts and only rarely upheld. [Emphasis added]

See also S. A. Tacon, "A Question of Privilege: Valid Protection or Obstruction of Justice?" (1979), 17 Osgoode Hall L.J. 332; and Beverley McLachlin (now of this Court), "Confidential Communications and the Law of Privilege" (1977), 11 U.B.C. L. Rev. 266.

Even if most private records relating to sexual assault complainants are generally irrelevant, some of them can contain information which may be "likely to be relevant either to an issue in the trial or to the competence to testify of the subject of the records" (see O'Connor, supra, at para. 134). The recognition of a class privilege for communications that can contain highly relevant information in criminal proceedings must be limited to situations where the other social interests are indubitably "compelling" (see Gruenke, supra, at p. 288). The recognition of a class privilege in favour of private records relating to sexual assault complainants would be a complete bar to the production and disclosure of the information contained therein, irrespective of its relevance. Because there can be instances where private records will be likely relevant, either to an issue in the proceedings or to the competence of the witness to testify, class privilege does not constitute the proper legal doctrine to govern the issue of production of private records held by third parties.

As a third point related to the possible relevancy of private records of sexual assault complainants, the accused's right to make full answer and defence militates against the recognition of class privilege in criminal proceedings. Privilege constitutes a limit upon the truth-finding principle of our justice system and, consequently, may impair the accused's full enjoyment of his or her right to respond to criminal accusations.

When the enforcement of a privilege means that the accused will be limited as to his or her right to make full answer and defence to criminal accusations, this Court has strongly tended to favour disclosure. The informer privilege, for instance, will be set aside if the confidential material can demonstrate the innocence of an accused person: see R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at pp. 995-96, per Cory J. for the majority; and Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at p. 93. Even the solicitor-client privilege, which has been elevated to a "fundamental civil and legal right" (see Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, at p. 383, per Wilson J.; and Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 839), will be overridden to allow the accused to make full answer and defence to criminal charges: see Seaboyer, supra, at p. 607, per McLachlin J. for the majority; and R. v. Dunbar and Logan (1982), 1982 CanLII 3324 (ON CA), 68 C.C.C. (2d) 13 (Ont. C.A.), at pp. 43-45

At common law, the main condition for a class privilege to be recognized in favour of certain communications is that the category of actors be limited to specific people. The solicitor-client class privilege, for example, involves definite actors: one is a qualified lawyer and the other is the client. In that regard, John Sopinka (of this Court), Sidney N. Lederman and Alan W. Bryant, in The Law of Evidence in Canada (1992), remark at p. 649:

The protection [of the privilege], however, does not extend to communications with persons who are not duly qualified legal advisers even though the advice they might give is legal in nature.

By contrast, the category of actors involved in sexual assault counselling relationships is not restricted to a defined group of qualified professionals and their clients. Whereas counselling in such cases may be provided by medical professionals, such as physicians, psychiatrists and psychologists, sexual assault complainants may also resort to community resources, sexual assault crisis centres, pastors, parents, friends, etc. To extend a class privilege to all these interveners might mean that information gathered in group therapy or communications relating to mental health exchanged on pay-per-call telephone service lines could attract such privilege. At common law, as it now exists, such a wide category of actors militates against the recognition of a class privilege since it would considerably limit the defense and close avenues of information which the search for the truth and justice may warrant in some circumstances.

In the context of privileged communications for psychotherapist-patient relationships, which are very similar to sexual assault counselling relationships, Catharina J. H. Dubbelday, in "The Psychotherapist-Client Testimonial Privilege: Defining the Professional Involved" (1985), 34 Emory L.J. 777, makes these observations at p. 812:

In the case of doctors, lawyers, and spouses, determining the individual to whom communications are privileged is usually not difficult because of state regulation of these professions and relationships. In the case of clergymen, courts look to the tenets of the clergyman's faith for assistance when definitional problems arise. In the context of the psychotherapist-client privilege, however, determining who is a "psychotherapist" is a problem that is not easily resolved. On the one hand, the strong policy considerations supporting a psychotherapist-client privilege do not seem to apply only to clients of licensed individuals. On the other hand, the court's need for truth will not permit a privilege that is so broad that almost every communication to any individual is covered. [Emphasis added.]

See also Kerry L. Morse, "A Uniform Testimonial Privilege for Mental Health Professionals" (1990), 51 Ohio St. L.J. 741, at p. 745.

Lastly, a review of the position of other common law countries demonstrates that, in criminal proceedings, a class (or absolute) privilege for counsellor-sexual assault complainant communications is not generally supported. In the United States, no privilege exists at common law for sexual assault counselling communications and although many states have enacted a statutory class privilege for such communications, many of these absolute privileges have been struck down as unconstitutional by state courts on the basis that they infringe upon defendants' rights as guaranteed by the Sixth and Fourteenth Amendments: see In re Robert H., supra; Commonwealth v. Two Juveniles, supra; Commonwealth v. Samuels, supra; and Advisory Opinion to the House of Representatives, supra. In Commonwealth countries, such as England, Scotland, Ireland, New Zealand and Australia, no private privilege exists, at common law or under statutory law, for communications between counsellors and sexual assault complainants. Where limited doctor-patient privileges exist, they are restricted to civil proceedings and have not been extended to cover sexual assault counselling communications. Public interest immunity in Commonwealth countries is different from class privilege as it exists in Canada. It is decided on an ad hoc basis and is more analogous to case-by-case privilege.

In the end, balancing those arguments, I am of the view that recognizing a class privilege in criminal trials for private records relating to sexual assault complainants is not the best way to serve the interests of justice. As argued by the appellants and the interveners, there are strong public policy considerations which may favour non-production of private records relating to sexual assault complainants in criminal trials, but on balance, I conclude that class privilege is not the avenue which should govern the extent of production of private records held by third parties in criminal trials.

This does not mean, however, that the granting of a case-by-case privilege may not be appropriate in some circumstances, where the Wigmore criteria are met. The determination of whether such a privilege ought to attach will, of course, depend on the facts of each case as they relate to the four Wigmore criteria. Given the nature of the relationship between counsellors and sexual assault complainants, the first three criteria will easily be met in most cases. As it appears from the foregoing discussion, such relationships are founded on trust and confidence, confidentiality is essential to their maintenance and the public fosters and supports these counselling relationships. The fourth criterion involves the balancing of the relative values which favour finding these records privileged with those which favour production, if, of course, the records are found to be likely relevant either to an issue in the proceedings or to the competence of the witness to testify (see O'Connor, supra). This is where the arguments for and against production, which I have discussed earlier, will be examined.

It must be remembered that the determination as to whether privilege should be granted in a particular case is based purely on public policy considerations; it does not involve the balancing of the complainant's Charter rights to privacy and equality with those of the accused to make full answer and defense. Even though the confidentiality of private records relating to sexual assault complainants does engage privacy and equality interests, the assertion of constitutional rights of privacy and equality is distinct from the issue of privilege.

In brief, while there is surely ground to recognize a case-by-case privilege for private records of sexual assault complainants in some instances, I do not think that such exceptions to the general evidentiary rule of admissibility and disclosure should be encouraged. This ad hoc approach to privilege will not serve the main policy consideration behind the granting of privilege for sexual assault counselling communications, i.e., that the complainants should be assured at the outset that information shared with counsellors will be kept confidential. Consequently, it will not cure the most important ills associated with production of private records, notably the deterrent effect that such production has on reporting and counselling.

A better approach to this difficult problem, in my view, lies in the balancing of, on the one hand, the Charter rights to privacy and equality of the sexual assault complainant with, on the other hand, the accused's Charter rights to a fair trial and to full answer and defence. While this approach may suffer from some of the shortcomings discussed previously as regards the granting of class and case-by-case privileges, it ensures that proper consideration is equally given to competing constitutional rights (Dagenais, supra, at p. 877). This is the approach advocated in O'Connor, supra, which should be read as herein recited at length and which I will briefly summarize.

VI. Balancing Charter Values

When deciding whether to order production of private records held by third parties, the court must exercise its discretion in a manner that is respectful of Charter values: Dagenais, supra, at p. 875. The constitutional values involved here are: (1) the right to full answer and defence; (2) the right to privacy; and (3) the right to equality without discrimination. These rights are well recognized and are discussed at length in O'Connor, supra. I will only briefly refer to them here.

The right to full answer and defence, as guaranteed in s. 7 of the Charter, does not need much elaboration. The ability for an accused to make full answer and defence constitutes a principle of fundamental justice (see Stinchcombe, supra; and R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451). However, the extent of all principles of fundamental justice varies according to the context in which they are invoked (see R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309).

This Court has on many occasions recognized privacy as an interest protected by the Charter (see R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; R. v. Pohoretsky, 1987 CanLII 62 (SCC), [1987] 1 S.C.R. 945; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145) and by the common law (see McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138; Hill v. Church of Scientology of Toronto, supra). The civil law in Quebec also provides legal protection to privacy interests (see arts. 35 and 36 of the Civil Code of Québec, S.Q. 1991, c. 64; and art. 5 of the Quebec Charter of Human Rights and Freedoms). It is interesting to note, in passing, that the Supreme Court of the United States has also conferred constitutional status upon certain aspects of privacy: see Roe v. Wade, 410 U.S. 113 (1973); and Griswold v. Connecticut, 381 U.S. 479 (1965).

In O'Connor, supra, I concluded that private records of sexual assault complainants attract a reasonable expectation of privacy (at para. 118):

In R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, albeit in the context of a discussion of s. 8 of the Charter, a majority of this Court identified one context in which the right to privacy would generally arise in respect of documents and records (at p. 293):

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.

Although I prefer not to decide today whether this definition is exhaustive of the right to privacy in respect of all manners of documents and records, I am satisfied that the nature of the private records which are the subject matter of this appeal properly brings them within that rubric. Such items may consequently be viewed as disclosing a reasonable expectation of privacy which is worthy of protection under s. 7 of the Charter. [Emphasis added in O'Connor.]

Finally, the right to equality without discrimination, as guaranteed in s. 15 of the Charter, is relevant to the analysis because private records of sexual assault complainants relate to a crime which overwhelmingly affects women, children and the disabled. I had the opportunity in O'Connor, to consider the right to equality without discrimination and the following comment applies mutatis mutandis to the instant case (at para. 124):

Routine insistence on the exposure of complainants' personal backgrounds has the potential to reflect a built-in bias in the criminal justice system against those most vulnerable to repeat victimization. Such requests, in essence, rest on the assumption that the personal and psychological backgrounds and profiles of complainants of sexual assault are relevant as to whether or not the complainant consented to the sexual contact, or whether the accused honestly believed that she consented.

After a more detailed analysis of each of these rights and their constitutional basis in the Charter, I concluded in O'Connor (at para. 132):

The use of state power to compel production of private records will be justified in a free and democratic society when the following criteria are applied. First, production should only be granted when it is shown that the accused cannot obtain the information sought by any other reasonably available and effective alternative means. Second, production which infringes upon a right to privacy must be as limited as reasonably possible to fulfil the right to make full answer and defence. Third, arguments urging production must rest upon permissible chains of reasoning, rather than upon discriminatory assumptions and stereotypes. Finally, there must be a proportionality between the salutary effects of production on the accused's right to make full answer and defence as compared with the deleterious effects on the party whose private records are being produced.

In summary, in addition to the public policy considerations which the appellants and interveners have underlined, and which I have recounted earlier, militating against the production of private records held by third parties, a balancing of the Charter rights of complainants and accuseds also militates against such production. As Lamer C.J. said in Dagenais, supra, at p. 877, in the context of a publication ban, the common law should not accord pre-eminence to the right to a fair trial, over other constitutionally entrenched rights:

The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favoured the rights protected by s. 11(d) over those protected by s. 2(b). A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.

Similarly, as regards the production of private records held by third parties, a balance must be struck that places the Charter rights of complainants on an equal footing with those of accused persons.

VII. Procedure for Obtaining Production

The procedure for obtaining production of private records held by a third party is outlined in O'Connor, supra. Essentially, the first step for an accused who seeks production of such records is to obtain and serve on the third party a subpoena duces tecum. The form of the subpoena and the procedure for its issuance are described in Part XXII of the Code. When the subpoena is served, the Crown and the subject of the records referred to in the subpoena, as well as any other person with an interest in the confidentiality of the records, should be notified that the accused will ask the trial judge to order the production of the records.

At the trial, when the accused requests an order for production of the records, the judge should follow a two‑stage approach. First, the accused must demonstrate that the information contained in the records is likely relevant either to an issue in the proceedings or to the competence to testify of the person who is the subject of the records. At this stage, the subject's privacy interest does not enter into consideration. At the same time, however, the information must be sought because of its relevance, rather than for illegitimate purposes.

It may be useful at this stage for the third party to prepare a list of the records in its possession (R. v. Barbosa (1994), 1994 CanLII 7549 (ON SC), 92 C.C.C. (3d) 131 (Ont. Ct. (Gen. Div.)), at p. 136). In an appropriate case, the trial judge may require such a list to be provided to the accused, the Crown and the court.

However, I wish to emphasize that, as with any other motion, an application for an order for production of private records held by a third party must be accompanied by affidavit evidence which establishes to the judge's satisfaction that the information sought is likely to be relevant. The accused's demonstration that information is likely to be relevant must be based on evidence, not on speculative assertions or on discriminatory or stereotypical reasoning.

If the court is satisfied that the information contained in the records is likely to be relevant, then the analysis proceeds to the balancing stage, which has two parts. The accused must first show that the salutary effects of ordering the documents produced to the court for inspection outweigh the deleterious effects of such production. If the judge decides that production to the court is warranted, he or she should so order. Then, after examining the records, the judge must balance and reconcile the conflicting constitutional rights discussed above to determine whether and to what extent production to the defence should be ordered. Only those parts of records that have a significant probative value to the issues at trial or the competence of the witness which is not substantially outweighed by prejudice to the administration of justice or to the witness' privacy and equality rights should be produced.

Of course, even if production is ordered, it must still be determined whether the produced records are admissible. Questions of voluntariness and hearsay, for example, may arise.

It is apparent from the procedure I have described that the court's inquiry into the relevance of the information and its balancing of the competing interests for and against production should be made at the time of the trial. Although the respondent has argued forcefully in favour of a pre‑trial determination of these issues, I have not been persuaded by his arguments.

Although a pre‑trial order for the production of documents held by a third party may be obtained in civil matters, such an order is alien to criminal proceedings. In criminal matters, witnesses are called at trial, whether by way of subpoena duces tecum or otherwise. Only at that time can a witness be ordered to give evidence. In this respect, Professor Lee Stuesser, in "Reconciling Disclosure and Privilege" (1994), 30 C.R. (4th) 67, remarks at p. 75:

Under the rules of civil procedure a court may order production of documents from non‑parties, but nowhere in the Criminal Code do you find comparable authority for pre‑trial disclosure by witnesses in a criminal case. Nor does Stinchcombe provide any such authority.

Before the trial, a prospective witness is not obliged to cooperate with either the Crown or the defence, and a court should not compel a witness to provide the defence with a preview of his or her evidence. The respondent has advanced no persuasive argument why prospective defence witnesses in sexual assault cases should be treated differently.

The respondent points out that, should the witness be uncooperative, the defence will have little means to verify, before the trial begins, whether the private records in question are relevant to its case. However, the situation would be no different in any other trial in which a witness has refused to cooperate with the defence. Moreover, regardless of the cooperation of the witness before the trial, the evidence in any trial is only ascertained once the witness is actually in the witness box.

Furthermore, one must not lose sight of the fact that, in most cases, private records of the kind here in question will be irrelevant and inadmissible hearsay evidence. As I have discussed above, notes of statements made by complainants in a therapeutic context are not necessarily contemporaneous with the counselling session, have not been ratified by the complainant, and are not intended to be an accurate record of what the complainant said. Moreover, they touch on a multitude of topics irrelevant to the issues in the trial or to the competence of the complainant to testify. Because of their unreliability and irrelevance, documents of this kind will be inadmissible in most cases.

In addition, there are sound reasons for not introducing, in criminal matters, the concept of pre-trial discovery of records held by third parties. As well as inconveniencing witnesses, who would have to appear in court on more than one occasion, the procedure advocated by the respondent would invite fishing expeditions and entail unnecessary delays. Moreover, the trial judge would not be in a position, before the beginning of the trial, to determine the relevance, much less the admissibility, of the records sought, or to balance effectively the constitutional rights affected by an order for the production of the records (see R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451, and British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3).

Consequently, I am not persuaded that counselling records held by third parties are of such a nature as to warrant a pre‑trial discovery procedure not available in any other criminal proceeding. The proper time for the relevance of the documents to be ascertained and for the competing rights to be balanced is at trial upon an application by the accused for an order for production of the records.

It is against this background that we must now decide whether the trial judge properly disposed of the motions before him.

VIII. Application to the Case

In all fairness, it must be said at the outset that neither the trial judge nor the parties had the benefit of this Court's decision in O'Connor, supra, in dealing with the motions. However, the matter must be determined in accordance with O'Connor.

The record indicates that the respondent initiated the procedure by subpoena duces tecum coupled with a notice of motion requesting the judge to order the appellant counselling institutions to produce to the defence, before the scheduled trial date, all records relating to the appellant L.L.A. Although the motion came before a judge other than the trial judge, it was ultimately dealt with by Loukidelis J., the trial judge, as it ought to be. However, the trial judge ought not to have entertained this motion at the pre-trial stage. As discussed previously, it is only at the trial that the relevance of such records can be assessed. The procedure followed by the respondent in the present case was consequently not appropriate.

Moreover, notice of the application for production of the private records was not given to all those with an interest in the confidentiality of the records. This encompasses not only the counselling institutions and the Crown, as was done, but it includes also the subject of the records, i.e., the sexual assault complainant L.L.A, who was not notified. The notification of all interested parties is not merely elective; failure to make the required notifications is fatal to an application for production.

As well, the trial judge did not apply the correct evidentiary threshold on the issue of relevance, i.e., likely relevance either to an issue in the proceedings or to the competence of the witness to testify (see O'Connor, supra). The Crown's application to quash the subpoenas was dismissed on the ground that "there may be information at hand that is relevant to the issue" without more. There is nothing in the record to indicate that the trial judge informed himself as to the likely relevance of these records either to an issue in the proceedings or to the competence of the witness to testify.

Moreover, as set out in O'Connor, in determining the likely relevance of the private records, the trial judge cannot rely upon illegitimate purposes or discriminatory and stereotypical reasoning. For instance, an application based on credibility "at large", based on unsupported assertions of "recent complaint" or of "allegations of sexual abuse by other people", or based on the mere fact that a witness has a past psychiatric history or that he or she received counselling after a sexual assault are all insufficient grounds to meet the threshold of likely relevance. In the case at hand, the respondent argued that "the records have to be reviewed to determine if there is any information in there which would be relevant to the trial, credibility of the complainant, [and] how the information was extracted prior to them going to the police". These grounds do not meet the test for an application for production of private records held by third parties (see O'Connor). This should have been amply sufficient either to dismiss the respondent's application for production or to allow the Crown's application to quash the subpoena duces tecum.

Having decided to order production, however, the trial judge, without even reviewing the records to ensure that only relevant information would be produced, went on to discuss the appellants' arguments as to privileged communications. He held that the confidentiality of the records had to give way to the right of the accused and, consequently, that the records in question were not privileged and had to be produced to the defence. There was no discussion of, on the one side, the complainant's Charter rights to privacy and to equality without discrimination and, on the other, the accused's Charter right to make full answer and defence. This was also in error.

Given that the respondent has not established the first element of the test for production, namely the likely relevance of the private records held by the appellant third parties either to the issues at trial or to the competence of the witness, and that his request constituted nothing more than a fishing expedition, the trial judge's order directing the production of those records by the appellants must be quashed.

IX. Disposition

In the result, I would allow the appeal, quash the order of the trial judge for the production of the private records relating to the appellant L.L.A. and held by the other appellants and remit the matter to the trial judge for the trial to continue.

Appeal allowed.

Solicitor for the appellants: Diane Oleskiw, Toronto.

Solicitors for the respondent: Ruby & Edwardh, Toronto.

Solicitor for the intervener Her Majesty the Queen: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Canadian Foundation for Children, Youth and the Law: The Canadian Foundation for Children, Youth and the Law, Toronto.

Solicitors for the intervener the Aboriginal Women's Council: Buchan, Derrick & Ring, Halifax.

Solicitor for the interveners the Canadian Association of Sexual Assault Centres, DAWN Ontario: DisAbled Women's Network Ontario and Women's Legal Education and Action Fund: The Women's Legal Education and Action Fund, Toronto.

Solicitors for the intervener the Criminal Lawyers Association: Gold & Fuerst, Toronto.