M. (A.) v. Ryan

M. (A.) v. Ryan
Collection
Supreme Court Judgments
Date
1997-02-06
Report
[1997] 1 SCR 157
Case number
24612
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Evidence
Notes
SCC Case Information: 24612
Decision Content
M. (A.) v. Ryan, [1997] 1 S.C.R. 157
A. M. Appellant
v.
Clive Ryan and Dr. Kathleen Parfitt Respondents
Indexed as: M. (A.) v. Ryan
File No.: 24612.
1996: October 2; 1997: February 6.
Present: La Forest, L’Heureux‑Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Evidence ‑‑ Disclosure ‑‑ Counselling records ‑‑ Victim bringing civil action for damage allegedly caused by defendant’s sexual conduct ‑‑ Defendant seeking production of psychiatrist’s counselling records and notes ‑‑ Whether documents privileged ‑‑ Whether records and notes should be produced ‑‑ British Columbia Supreme Court Rules, Rule 26(11).
When the appellant was 17 years old, she underwent psychiatric treatment from the respondent R. In the course of treatment, R had sexual relations with her. He also committed acts of gross indecency in her presence. The appellant asserts that this conduct injured her and has sued R for damages. In order to deal with the difficulties allegedly caused by the sexual assault and gross indecency as well as other problems, the appellant sought psychiatric treatment from the respondent P. The appellant was concerned that communications between her and P should remain confidential, and P assured her that everything possible would be done to ensure that this was the case. At one point, the appellant’s concerns led P to refrain from taking her usual notes. At the hearing before the Master of R’s motion to obtain disclosure, P agreed to release her reports, but claimed privilege in relation to her notes. Counsel for the appellant was present. He supported P’s objections to production, but did not assert a formal claim to privilege on behalf of the appellant. The Master found that P had no privilege in the documents and ordered that they all be produced to R. The British Columbia Supreme Court affirmed that decision. P’s appeal to the Court of Appeal was allowed in part. The court ordered disclosure of P’s reporting letters and notes recording discussions between her and the appellant. The disclosure ordered was protected by four conditions: that inspection be confined to R’s solicitors and expert witnesses, and that R himself could not see them; that any person who saw the documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be used only for the purposes of the litigation; and that only one copy of the notes was to be made by R’s solicitors, to be passed on as necessary to R’s expert witnesses.
Held (L’Heureux‑Dubé J. dissenting): The appeal should be dismissed.
Per La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: The common law principles underlying the recognition of privilege from disclosure proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth. The common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate. It follows that the law of privilege may evolve to reflect the social and legal realities of our time, including the Canadian Charter of Rights and Freedoms . The first three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met in this case, since the communications were confidential, their confidence is essential to the psychiatrist‑patient relationship, and the relationship itself and the treatment it makes possible are of transcendent public importance. The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.
If the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust result, it must permit production to the extent required to avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure. An order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non‑essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth. While a test for privilege which permits the court occasionally to reject an otherwise well‑founded claim for privilege in the interests of getting at the truth may not offer patients a guarantee that communications with their psychiatrists will never be disclosed, the assurance that disclosure will be ordered only where clearly necessary and then only to the extent necessary is likely to permit many to avail themselves of psychiatric counselling when certain disclosure might make them hesitate or decline.
It is open to a judge to conclude that psychiatrist‑patient records are privileged in appropriate circumstances. In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case. While it is not essential in a civil case that the judge examine every document, he or she may do so if necessary to the inquiry. A court, in a case such as this, might well consider it best to inspect the records individually to the end of weeding out those which were irrelevant to this defence, but the alternative chosen by the Court of Appeal of refusing to order production of one group of documents and imposing stringent conditions on who could see the others and what use could be made of them cannot be said to be in error and should not be disturbed.
The appellant’s alleged failure to assert privilege in the records before the Master does not deprive her of the right to claim it. If the appellant had privilege in the documents, it could be lost only by waiver, and the appellant’s conduct does not support a finding of waiver.
Where the doctrine of privilege applies, it displaces any residual discretion which might otherwise be thought to inhere in favour of the party claiming privilege. A two-step process which requires a judge to consider first privilege and then a residual discretion under Rule 26(11) would be redundant and confusing.
Per L’Heureux‑Dubé J. (dissenting): Direct disclosure of all of the information shared in the course of therapy to defence counsel and professionals who are assisting the defence constitutes a very serious breach of the plaintiff’s interests in privacy as regards these communications. While the plaintiff’s privacy interests in the records may receive some protection under the doctrine of privilege, this is only to the degree they serve the greater purpose of promoting relationships sufficiently valued by the public. McLachlin J.’s approach to partial privilege is agreed with, but it cannot displace the residual discretion to order production of documents in a manner which effects an appropriate balance of the Charter values engaged in the appeal. The source of this discretion is a common law discretionary rule governing the exercise of powers established under the B.C. Rules of Court. Since the appellant has asserted her privacy interest in private records independently of her claim for privilege, it is necessary to determine whether this interest has received adequate attention.
The traditional common law approach to the power conferred upon the courts to order the production of documents for discovery in civil proceedings holds that all relevant documents which are not privileged must be produced. An alternative approach, that taken by the Court of Appeal in this case, is one which places an outer limit on this discretion, a limit which ensures that the discovery procedures not work injustice, even where a claim of privilege has not been successful and it appears that information in the document is relevant to an issue at trial. The latter approach is more consistent with the wording of the Rules governing discovery, the origins of the procedure, the common law discretionary rules governing information regarding non-parties, and the effect of the Charter on the exercise of common law and statutory discretion in civil proceedings. In any event, the court must ensure that the approach followed reflects an adequate balance of the values underlying the Charter .
As the records at issue here are of the same nature as those mentioned in O’Connor, the appellant has established a reasonable expectation of privacy in the records. Rather than having waived her right to privacy by instituting an action, the appellant has engaged a process where her reasonable expectation of privacy must be balanced against the society’s need to ensure that such litigation be conducted fairly and effectively. The Charter -related value of a fair trial for all litigants, as a fundamental principle of justice, is also affected in such cases and must be balanced with the privacy interests of the appellant. The value of equality must further guide the procedure of discovery in tort cases involving sexual assault.
Given the distinguishing and shared features of the criminal and civil contexts for production of private records, the following procedure seems the appropriate one in the context of civil discovery. The party seeking production must notify those with an interest in the confidentiality of the records. Before a court may order production of private records to the defence for the purposes of discovery, it must first ascertain what documents are likely to be relevant to an issue at trial. In civil cases the required information will be provided by the affidavit of the party seeking the order. The court must then order production of the likely relevant documents to the court for screening and removal of any information which the court deems is not likely relevant or otherwise exempt from production given the balancing of the interests involved. A number of factors to guide in this evaluation are suggested. A judge may also ask the guardian of the documents for an inventory of those in his or her possession to assist in the screening process.
These additional procedures will not confuse trial judges. In many cases, such as the one before us, the privilege claim will be settled by the judge on the basis of affidavit evidence. Even where inspection may be required, the fourth branch of the Wigmore test should be applied to the documents as a whole. Once the privilege claim has been settled, the judge would then undertake the screening procedures described above to those documents which are not protected, provided their likely relevance has been established.
Here the Court of Appeal did not review the documents before ordering their production. By failing to screen private records in such cases, the court creates an impermissible hierarchy of Charter values, where interests in privacy and equality may be seriously affected for records or information which may provide very little if any benefit to the defence or be unnecessary to ensure the fairness of proceedings. The decision of the Court of Appeal should be set aside, except as regards the notes which were not disclosed, and the matter remitted to the Master for determination in a manner consistent with these reasons.
Cases Cited
By McLachlin J.
Not followed: Jaffee v. Redmond, 116 S. Ct. 1923 (1996), aff’g 51 F.3d 1346 (1995); referred to: Trammel v. United States, 445 U.S. 40 (1980); Slavutych v. Baker, [1976] 1 S.C.R. 254; R. v. Gruenke, [1991] 3 S.C.R. 263; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. O’Connor, [1995] 4 S.C.R. 411.
By L’Heureux‑Dubé J. (dissenting)
A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Gruenke, [1991] 3 S.C.R. 263; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Beare, [1988] 2 S.C.R. 387; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Park, [1995] 2 S.C.R. 836; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Young v. Young, [1993] 4 S.C.R. 3; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Dufault v. Stevens (1978), 6 B.C.L.R. 199; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
Statutes and Regulations Cited
British Columbia Supreme Court Rules, Rule 26(10), (11).
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 15 .
Authors Cited
Cudmore, Gordon D. Choate on Discovery, 2nd ed. Scarborough, Ont.: Carswell, 1992 (loose‑leaf updated 1993).
McLachlin, Beverley M., and James P. Taylor. British Columbia Practice, 2nd ed., vol. 1. Vancouver: Butterworths, 1979 (loose‑leaf updated September 1996, issue 26).
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown, 1961.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 98 B.C.L.R. (2d) 1, 119 D.L.R. (4th) 19, [1995] 1 W.W.R. 677, 51 B.C.A.C. 135, 84 W.A.C. 135, 32 C.P.C. (3d) 66, allowing in part the respondent Parfitt’s appeal from a decision of Vickers J. (1993), 81 B.C.L.R. (2d) 180, [1993] 7 W.W.R. 480, affirming an order of Master Bolton (1993), 40 A.C.W.S. (3d) 730, [1993] B.C.W.L.D. 1680, ordering the respondent Parfitt to produce a copy of her records relating to the appellant. Appeal dismissed, L’Heureux‑Dubé J. dissenting.
Brian J. Wallace, Q.C., and Carolyn McCool, for the appellant.
Christopher E. Hinkson, Q.C., and William S. Clark, for the respondent Ryan.
No one appeared for the respondent Parfitt.
//McLachlin J.//
The judgment of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 McLachlin J. -- After having been sexually assaulted by the respondent Dr. Ryan, the appellant sought counselling from a psychiatrist. The question on this appeal is whether the psychiatrist’s notes and records containing statements the appellant made in the course of treatment are protected from disclosure in a civil suit brought by the appellant against Dr. Ryan. Put in terms of principle, should a defendant’s right to relevant material to the end of testing the plaintiff’s case outweigh the plaintiff’s expectation that communications between her and her psychiatrist will be kept in confidence?
I. The Facts and History of Proceedings
2 When the appellant was 17 years old, she underwent psychiatric treatment from Dr. Ryan. In the course of treatment, Dr. Ryan had sexual relations with her. He also committed acts of gross indecency in her presence. The appellant asserts that this conduct injured her and has sued Dr. Ryan for damages. Dr. Ryan does not deny that this sexual conduct occurred. He contends, however, that the appellant consented to the acts. He also takes the position that the conduct was not the cause of the injury for which the plaintiff sues.
3 The appellant alleges that the sexual assault and gross indecency caused her mental distress and anguish, loss of dignity and self-esteem, humiliation and embarrassment, difficulty in forming and maintaining relationships with other persons, lasting psychological and emotional trauma, continuing fear and anxiety, foregone career and educational opportunities, inability to verbalize emotions and recollections of the events, repeated suicide attempts, severe depression and post-traumatic stress disorder. In order to deal with these difficulties as well as other problems, the appellant sought psychiatric treatment from Dr. Parfitt.
4 The appellant was concerned that communications between her and Dr. Parfitt should remain confidential. Dr. Parfitt assured her that everything possible would be done to ensure that their discussions would remain confidential. At one point, the appellant’s concerns led Dr. Parfitt to refrain from taking her usual notes.
5 The British Columbia Rules of Court permit each party to an action to examine the other for discovery and to obtain discovery of all documents in the possession of the other party that are relevant to the lawsuit and not protected from disclosure by privilege or some other legal exemption. If a party has not voluntarily produced a required document, the court may order that it be produced. The rules also provide for documents to be obtained from third parties. Failing voluntary production, an application for production may be brought under Rule 26(1l).
6 During the examination for discovery of the appellant, counsel for Dr. Ryan requested production of Dr. Parfitt’s records and notes. The appellant’s counsel advised that they would not be produced without a court order. Accordingly, Dr. Ryan’s counsel brought a motion to obtain disclosure. At the hearing before Master Bolton, Dr. Parfitt agreed to release her reports, but claimed privilege in relation to her notes. Counsel for the appellant was present. He supported Dr. Parfitt’s objections to production, but did not assert a formal claim to privilege on behalf of the appellant.
7 The Master found that Dr. Parfitt had no privilege in the documents and ordered that they all be produced to Dr. Ryan. In his view, there is no blanket privilege for communications between patient and physician. The only basis upon which privilege could be asserted would be under the principles approved by this Court for case-by-case privilege, sometimes referred to as the “Wigmore test”. The first branch of this test requires that the communications originate in confidence. The Master ruled that this was not the case here, since the appellant had been fearful throughout that the doctor’s notes would be disclosed and Dr. Parfitt had assured her only that everything possible would be done to ensure that their discussions were kept private. The Master went on to consider whether the discretion granted by the Rules of Court permitted him to accede to Dr. Parfitt’s claim for confidentiality. He found the notes to be relevant. The only remaining question was whether Dr. Parfitt’s “embarrassment” at revealing the notes outweighed this probative value. It did not, in the Master’s view. Although he acknowledged the legitimate interest of keeping patient-therapist discussions free-ranging and confidential, he held that this was not a factor that he could consider under the law as it stood.
8 Dr. Parfitt appealed to the Supreme Court of British Columbia. That appeal was dismissed: (1993), 81 B.C.L.R. (2d) 180, [1993] 7 W.W.R. 480. Vickers J. agreed that the notes were not privileged, not on the ground that they had not been made in confidence as the Master had found, but on the ground that the public interest in the proper administration of justice outweighed confidentiality concerns where the appellant had placed the matters in issue by initiating the suit.
9 Dr. Parfitt appealed to the British Columbia Court of Appeal. The appeal was allowed in part: (1994), 98 B.C.L.R. (2d) 1, 119 D.L.R. (4th) 19, [1995] 1 W.W.R. 677, 51 B.C.A.C. 135, 84 W.A.C. 135, 32 C.P.C. (3d) 66. Southin J.A. began by stating that she was only concerned with Dr. Parfitt’s privilege and not the plaintiff’s, since the plaintiff had not properly claimed privilege. A physician could only assert privilege if disclosure would harm the physician. Dr. Parfitt had not shown this to be the case. Therefore, no claim for privilege could be made by anyone, and the matter fell to be considered exclusively under the Rules of Court.
10 Under Rule 26(1l), relevant or “material” documents should be produced unless the order is oppressive of the plaintiff or will have such an adverse effect on her that it would be unjust to order production, the Court of Appeal ruled. In applying this test, the court should consider whether the particular invasion of privacy is necessary to the proper administration of justice and, if so, whether terms are appropriate to limit that invasion. On the one hand, a plaintiff should not be “scared away” from suing by fear of disclosure. On the other hand, a defendant should not be deprived of an assessment of the true loss caused by the alleged wrong. There is no perfect balance to be struck, in the court`s view.
11 Southin J.A. ordered disclosure of Dr. Parfitt’s reporting letters and notes recording discussions between her and the appellant. Southin J.A. did not order disclosure of Dr. Parfitt’s personal notes which she uses to make sense of what the patient is telling her. These notes were not disclosed because the appellant assured the court that Dr. Parfitt would not be called at trial and therefore her diagnosis was “of no moment” (p. 19 B.C.L.R.). The disclosure ordered was protected by four conditions: that inspection be confined to Dr. Ryan’s solicitors and expert witnesses, and that Dr. Ryan himself could not see them; that any person who saw the documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be used only for the purposes of the litigation; and that only one copy of the notes was to be made by Dr. Ryan’s solicitors, to be passed on as necessary to Dr. Ryan’s expert witnesses.
12 The appellant objects to this order for limited production and appeals to this Court.
II. The Legislation
13 British Columbia Supreme Court Rules, Rule 26(11)
Where a document is in the possession or control of a person who is not a party, the court, on notice to the person and all other parties, may order production and inspection of the document or preparation of a certified copy that may be used instead of the original. An order under Rule 41(16) in respect of an order under this subrule may be made if that order is endorsed with an acknowledgment by the person in possession or control of the document that the person has no objection to the terms of the proposed order.
III. Preliminary Issues
14 The findings of the courts below raise three preliminary issues. The first is whether the appellant’s alleged failure to assert privilege in the records before the Master deprives her of the right to claim it. I respectfully dissent from the Court of Appeal’s view that it did. If the appellant had privilege in the documents, it could be lost only by waiver. The appellant’s conduct does not support a finding of waiver. It is true that she did not claim privilege to the notes and records at issue in her affidavit of documents. However, the notes and records were not in her possession but Dr. Parfitt’s. The argument that they were technically in her control and hence should have been mentioned establishes at best omission from the affidavit of documents, not a conscious waiver of privilege. The motion for production before the Master was directed not at the appellant but at Dr. Parfitt. As a result, the appellant was not called upon directly to assert privilege in the documents. However, she appeared through counsel and supported Dr. Parfitt’s claim for privilege. Far from waiving privilege, the appellant has asserted it throughout the proceedings.
15 A second preliminary issue concerns the relationship between the Rules of Court and the common law rule of privilege. In my view, the present appeal falls to be decided solely on the law of privilege. Where the doctrine of privilege applies, it displaces any residual discretion which might otherwise be thought to inhere in favour of the party claiming privilege. A two-step process which requires a judge to consider first privilege and then a residual discretion under Rule 26(1l) would be redundant and confusing.
16 Where the person objecting to production is a party to the action and privilege is raised, there is no need for a supplementary discretion under Rule 26(11), since in considering whether privilege exists on a case-by-case basis, the judge must take into account the interest of the person being asked to disclose. The fourth branch of the Wigmore test for privilege requires the judge to consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and correctly disposing of the litigation. This means that the complainant’s privacy interest and interest in maintaining a productive and healing relationship with her psychiatrist must be considered and weighed in determining whether privilege lies. The fact that her privacy interest arises and hence falls to be considered in the context of her relationship to her psychiatrist does not negate the fact that what is at issue is her privacy interest and whether it should, in the circumstances of the case, prevail over the defendant’s right to disclosure. It thus becomes unnecessary to reconsider the same matters after having decided whether privilege lies. Having determined the issue of privilege, nothing remains to be considered under the Rule.
17 Requiring the judge to reconsider the matter under a residual discretion conferred by Rule 26(11) according to a different methodology would, moreover, be confusing for trial judges. Even more serious, it might on occasion result in a conflicting conclusion. This would amount to a procedural rule enacted not by the Legislature but by Order in Council, trumping the common law. Such a result would be wholly inappropriate.
18 A third preliminary issue concerns the distinction between absolute or blanket privilege, on the one hand, and partial privilege on the other. While the traditional common law categories conceived privilege as an absolute, all-or-nothing proposition, more recent jurisprudence recognizes the appropriateness in many situations of partial privilege. The degree of protection conferred by the privilege may be absolute or partial, depending on what is required to strike the proper balance between the interest in protecting the communication from disclosure and the interest in proper disposition of the litigation. Partial privilege may signify that only some of the documents in a given class must be produced. Documents should be considered individually or by sub-groups on a “case-by-case” basis.
IV. General Principles
19 The common law principles underlying the recognition of privilege from disclosure are simply stated. They proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth”: Trammel v. United States, 445 U.S. 40 (1980), at p. 50.
20 While the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previous centuries -- categories that do not include communications between a psychiatrist and her patient -- it is now accepted that the common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate: Slavutych v. Baker, [1976] 1 S.C.R. 254; R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 286. The applicable principles are derived from those set forth in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2285. First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation.
21 It follows that the law of privilege may evolve to reflect the social and legal realities of our time. One such reality is the law`s increasing concern with the wrongs perpetrated by sexual abuse and the serious effect such abuse has on the health and productivity of the many members of our society it victimizes. Another modern reality is the extension of medical assistance from treatment of its physical effects to treatment of its mental and emotional aftermath through techniques such as psychiatric counselling. Yet another development of recent vintage which may be considered in connection with new claims for privilege is the Canadian Charter of Rights and Freedoms , adopted in 1982: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at pp. 592-93; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at pp. 876-77; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 121.
22 I should pause here to note that in looking to the Charter , it is important to bear in mind the distinction drawn by this Court between actually applying the Charter to the common law, on the one hand, and ensuring that the common law reflects Charter values, on the other. As Cory J. stated in Hill, supra, at paras. 93 and 95:
When determining how the Charter applies to the common law, it is important to distinguish between those cases in which the constitutionality of government action is challenged, and those in which there is no government action involved. It is important not to import into private litigation the analysis which applies in cases involving government action.
. . .
The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1) , either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will “apply” to the common law only to the extent that the common law is found to be inconsistent with Charter values. [Emphasis in original.]
23 While the facts of Hill involved an attempt to mount a Charter challenge to the common law rules of defamation, I am of the view that Cory J.’s comments are equally applicable to the common law of privilege at issue in this case. In view of the purely private nature of the litigation at bar, the Charter does not “apply” per se. Nevertheless, ensuring that the common law of privilege develops in accordance with “Charter values” requires that the existing rules be scrutinized to ensure that they reflect the values the Charter enshrines. This does not mean that the rules of privilege can be abrogated entirely and replaced with a new form of discretion governing disclosure. Rather, it means that the basic structure of the common law privilege analysis must remain intact, even if particular rules which are applied within that structure must be modified and updated to reflect emerging social realities.
V. Privilege for Communications Between Psychiatrist and Patient
24 The first requirement for privilege is that the communications at issue have originated in a confidence that they will not be disclosed. The Master held that this condition was not met because both the appellant and Dr. Parfitt had concerns that notwithstanding their desire for confidentiality, the records might someday be ordered disclosed in the course of litigation. With respect, I do not agree. The communications were made in confidence. The appellant stipulated that they should remain confidential and Dr. Parfitt agreed that she would do everything possible to keep them confidential. The possibility that a court might order them disclosed at some future date over their objections does not change the fact that the communications were made in confidence. With the possible exception of communications falling in the traditional categories, there can never be an absolute guarantee of confidentiality; there is always the possibility that a court may order disclosure. Even for documents within the traditional categories, inadvertent disclosure is always a possibility. If the apprehended possibility of disclosure negated privilege, privilege would seldom if ever be found.
25 The second requirement -- that the element of confidentiality be essential to the full and satisfactory maintenance of the relation between the parties to the communication -- is clearly satisfied in the case at bar. It is not disputed that Dr. Parfitt’s practice in general and her ability to help the appellant in particular required that she hold her discussions with the appellant in confidence. Dr. Parfitt’s evidence establishes that confidentiality is essential to the continued existence and effectiveness of the therapeutic relations between a psychiatrist and a patient seeking treatment for the psychiatric harm resulting from sexual abuse. Once psychiatrist-patient confidentiality is broken and the psychiatrist becomes involved in the patient’s external world, the “frame” of the therapy is broken. At that point, it is Dr. Parfitt’s practice to discontinue psychotherapy with the patient. The result is both confusing and damaging to the patient. At a time when she would normally find support in the therapeutic relationship, as during the trial, she finds herself without support. In the result, the patient’s treatment may cease, her distrustfulness be exacerbated, and her personal and work relations be adversely affected.
26 The appellant too sees confidentiality as essential to her relationship with Dr. Parfitt. She insisted from the first that her communications to Dr. Parfitt be held in confidence, suggesting that this was a condition of her entering and continuing treatment. The fact that she and Dr. Parfitt feared the possibility of court-ordered disclosure at some future date does not negate the fact that confidentiality was essential “to the full and satisfactory maintenance” of their relationship.
27 The third requirement -- that the relation must be one which in the opinion of the community ought to be sedulously fostered -- is equally satisfied. Victims of sexual abuse often suffer serious trauma, which, left untreated, may mar their entire lives. It is widely accepted that it is in the interests of the victim and society that such help be obtained. The mental health of the citizenry, no less than its physical health, is a public good of great importance. Just as it is in the interest of the sexual abuse victim to be restored to full and healthy functioning, so is it in the interest of the public that she take her place as a healthy and productive member of society.
28 It may thus be concluded that the first three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met in the case at bar. The communications were confidential. Their confidence is essential to the psychiatrist-patient relationship. The relationship itself and the treatment it makes possible are of transcendent public importance.
29 The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation. This requires first an assessment of the interests served by protecting the communications from disclosure. These include injury to the appellant’s ongoing relationship with Dr. Parfitt and her future treatment. They also include the effect that a finding of no privilege would have on the ability of other persons suffering from similar trauma to obtain needed treatment and of psychiatrists to provide it. The interests served by non-disclosure must extend to any effect on society of the failure of individuals to obtain treatment restoring them to healthy and contributing members of society. Finally, the interests served by protection from disclosure must include the privacy interest of the person claiming privilege and inequalities which may be perpetuated by the absence of protection.
30 As noted, the common law must develop in a way that reflects emerging Charter values. It follows that the factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values. One such value is the interest affirmed by s. 8 of the Charter of each person in privacy. Another is the right of every person embodied in s. 15 of the Charter to equal treatment and benefit of the law. A rule of privilege which fails to protect confidential doctor/patient communications in the context of an action arising out of sexual assault perpetuates the disadvantage felt by victims of sexual assault, often women. The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus placed in a disadvantaged position as compared with the victim of a different wrong. The result may be that the victim of sexual assault does not obtain the equal benefit of the law to which s. 15 of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress -- redress which in some cases may be part of her program of therapy. These are factors which may properly be considered in determining the interests served by an order for protection from disclosure of confidential patient-psychiatrist communications in sexual assault cases.
31 These criteria, applied to the case at bar, demonstrate a compelling interest in protecting the communications at issue from disclosure. More, however, is required to establish privilege. For privilege to exist, it must be shown that the benefit that inures from privilege, however great it may seem, in fact outweighs the interest in the correct disposal of the litigation.
32 At this stage, the court considering an application for privilege must balance one alternative against the other. The exercise is essentially one of common sense and good judgment. This said, it is important to establish the outer limits of acceptability. I for one cannot accept the proposition that “occasional injustice” should be accepted as the price of the privilege. It is true that the traditional categories of privilege, cast as they are in absolute all-or-nothing terms, necessarily run the risk of occasional injustice. But that does not mean that courts, in invoking new privileges, should lightly condone its extension. In the words of Scalia J. (dissenting) in Jaffee v. Redmond, 116 S. Ct. 1923 (1996), at p. 1941:
It is no small matter to say that, in some cases, our federal courts will be the tools of injustice rather than unearth the truth where