R v. Mills

M was charged with sexual offenses. Following an adjournment of M’s trial his counsel sought full disclosure of all therapeutic records and notes relating to the complainant in possession of a counseling organization. An order for partial disclosure was made and M sought further disclosure of psychiatric records. However, in the interim Bill C-46 had entered into force, expanding the Criminal Code to include ss 278.1 to 278.91 and thereby limiting the production of records in sexual offense proceedings. Under the Bill, the accused had to first establish that the record was likely to be relevant at trial or to the competence of a testifying witness and that disclosure was in the interests of justice. The application was then subject to judicial inspection of the documents to determine where and to what extent disclosure should take place. M successfully challenged the validity of the provisions on the grounds that they violated his rights only to be deprived of liberty pursuant to the principles of fundamental justice (s 7 of the Canadian Charter of Rights and Freedoms) and to be presumed innocent (s 11(d) of the Charter). Further the trial judge held that the provisions were not saved by s 1 of the Charter, as they were not reasonably required in a democratic society, and accordingly the Bill should be struck down. Leave to appeal was subsequently granted.

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal, The Court held that (Lamer CJ dissenting in part):

1. The mere fact that it is not clear whether the accused will actually be denied access to records potentially necessary for full answer and defense does not make his claim of constitutional invalidity premature. In this context he does not need to prove that the impugned legislation would probably violate his rights. It is sufficient to establish that the legislation's general effects are unconstitutional in accordance with s 52 of the Constitution Act 1982 subject to the proviso that there are sufficient adjudicative facts to determine the claim. This is the case here and therefore the application is not premature.
2. The fact that the provisions set out in Bill C-46 substantially differ from the judicially created common law regime for disclosure does not render the Bill unconstitutional. Parliament may build on decisions of the Court to develop new schemes provided that they are constitutional and the Court must presume that Parliament intended to enact constitutional legislation and give effect to that intention where possible. The Bill has the legitimate aims of recognizing the frequency and negative impact of sexual violence against women and children, encouraging such events to be reported, recognizing the impact of personal details being produced on treatment whilst balancing fairness to a complainant against the rights of the accused.
3. At issue are three principles of fundamental justice - full answer and defense, privacy and equality - none of which are absolute and must be defined in light of competing claims. When the protected rights of two individuals come into conflict Charter principles require a balance be achieved that fully respects the importance of both sets based on a contextual interpretation (dicta of Lamer CJ in Dagenais v Canadian Broadcasting Corporation Corp [1984] 3 SCR 835, 877 applied).
4. The right to full answer and defense is crucial in ensuring the accused receives a fair trial and non-disclosure of relevant information by the Crown can seriously erode the right resulting in the very real threat of conviction of an innocent person (R v Stinchcombe [1991] 3 SCR applied). That said, the accused is not entitled to the most favourable procedures imagined and to have access to irrelevant evidence that distorts the search for truth inherent in the trial procedure. Moreover public interest considerations may limit his ability to see relevant information.
5. On the other hand, an order to produce records according to the amended Criminal Code constitutes a seizure pursuant to s 8 of the Charter thereby threatening the complainant's right to privacy. This is especially the case where the records concern aspects of individual identity or, if confidentiality is vital, to a therapeutic or trust-like relationship. Moreover by affecting a person's mental integrity such a breach may also violate their personal security (Mills v The Queen [1986] 1 SCR 863 applied). This is not to ignore the fact that a reasonable search or seizure may be permitted by s.8 where it is in the public interest.
6. For a search and seizure to be reasonable and hence consistent with the principles of fundamental justice it must accommodate both the accused's ability to make full answer and defence and the complainant's right to privacy. The balance must be further assessed in the context of the equality rights of men and women guaranteed by ss.15 and 28. Although not determinative they should be taken into account when assessing the reasonable limits to be placed on the cross-examination of a complainant to avoid undue harassment through the use of groundless myths and stereotypes. In addition the equality dimension in cases concerning sexual violence further strengthens the privacy interests of complainants against the rights of defendants.
7. In this context s 278 (2) only prevents disclosure where there is a reasonable expectation of privacy in the relevant documents and the witness chooses not to expressly waive this protection. Such expectation does not cease on the records coming into the possession of the Crown (R v Dyment [1988] 2 SCR 417 applied).
8. Further pursuant to s 278.5(1), production must be ‘necessary in the interests of justice’ and the information likely to be relevant, thereby granting judges a wide discretion during a disclosure application to consider all relevant rights and interests in accordance with the Charter. Hence provided there is no prejudice to the accused non-disclosure of relevant evidence with a high privacy interest does not compromise trial fairness.
9. In addition, s 278.3 (4) by listing a series of assertions that cannot on their own establish whether a record is likely to be relevant or not, does not violate s 7 as it merely prevents the making of a bare assertion without accompanying evidence. In this regard it has a legitimate purpose in preventing a variety of stereotypical myths about complaints from forming the entire basis of an otherwise unsubstantiated order for production.
10. The statutory scheme, by permitting judges to exercise a wide discretion through the consideration of a variety of factors, allows them to fairly balance the complaint's privacy and equality rights against those of the accused to answer and defence. Therefore, the constitutionality of Bill C-46 is upheld.

[Adapted from INTERIGHTS summary, with permission]

".....fundamental justice embraces more than the rights of the accused.... this Court has held that an assessment of the fairness of the trial process must be made 'from the point of view of fairness in the eyes of the community and the complainant' and not just the accused." Para. 72

"Counseling helps an individual to recover from his or her trauma. Even the possibility that this confidentiality may be breached affects the therapeutic relationship. Furthermore, it can reduce the willingness to report crime or deter him or her from counseling altogether. In our view, such concerns indicate that the protection of  therapeutic relationship protects the mental  integrity of complainants and witnesses. This Court has on several occasions recognized that a security of the person is violated by state action interfering with an individual’s mental integrity." Para. 85