A. (L.L.) v. B. (A.)

A. (L.L.) v. B. (A.)
Collection
Supreme Court Judgments
Date
1995-12-14
Report
[1995] 4 SCR 536
Case number
24568
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Major, John C.
On appeal from
Ontario
Subjects
Courts
Criminal law
Notes
SCC Case Information: 24568
Decision Content
A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 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] 4 S.C.R. 411.
By L'Heureux‑Dubé J.
Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Primeau, [1995] 2 S.C.R. 60; R. v. Jobin, [1995] 2 S.C.R. 78; considered: R. v. Gruenke, [1991] 3 S.C.R. 263; referred to: R. v. Stinchcombe, [1991] 3 S.C.R. 326; Forsythe v. The Queen, [1980] 2 S.C.R. 268; Attorney General of Quebec v. Cohen, [1979] 2 S.C.R. 305; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Salituro, [1991] 3 S.C.R. 654; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; Slavutych v. Baker, [1976] 1 S.C.R. 254; R. v. Ryan (1991), 69 C.C.C. (3d) 226; R. v. R.S. (1985), 19 C.C.C. (3d) 115; R. v. Kliman, [1994] B.C.W.L.D. No. 587; R. v. Coon (1991), 74 C.C.C. (3d) 146; M.(A.) v. Ryan, [1993] 7 W.W.R. 480; M.(E.) v. Martinson (1993), 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, [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] 4 S.C.R. 595; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; R. v. L. (D.O.), [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] 2 S.C.R. 573; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Park, [1995] 2 S.C.R. 836; R. v. O'Connor, [1995] 4 S.C.R. 411; R. v. Scott, [1990] 3 S.C.R. 979; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Solosky v. The Queen, [1980] 1 S.C.R. 821; R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Pohoretsky, [1987] 1 S.C.R. 945; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; McInerney v. MacDonald, [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), 92 C.C.C. (3d) 131; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [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].
Authors Cited
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Field, David. The Law of Evidence in Scotland. Edinburgh: W. Green & Son Ltd., 1988.
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Joo, Anna Y. "Broadening the Scope of Counselor‑Patient Privilege to Protect the Privacy of the Sexual Assault Survivor" (1995), 32 Harv. J. on Legis. 255.
Langdale, Rachel, and Simeon Maskrey, "Public Interest Immunity: Disclosure of Social Work Records" (1994), 24 Fam. L. 513.
Laurence, Michael. "Rape Victim‑Crisis Counselor Communications: An Argument for an Absolute Privilege" (1984), 17 U.C. Davis L. Rev. 1213.
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MacCrimmon, Marilyn T. "Developments in the Law of Evidence: The 1991‑92 Term: Truth, Fairness and Equality" (1993), 4 Sup. Ct. L. Rev. (2d) 225.
MacCrimmon, Marilyn T., 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. Montréal: Éditions Thémis, 1995, 81.
McCormick, Charles Tilford. McCormick on Evidence, vol. 1, 4th ed. By John William Strong, General Editor. St. Paul, Minn.: West Publishing Co., 1992.
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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
1 Lamer C.J. and Sopinka J. -- This appeal, along with the companion case of R. v. O'Connor, [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.
2 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
3 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.
4 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.
5 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
6 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
7 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 ).
8 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.
9 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.
10 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.
11 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), 37 C.R. (4th) 170). Relying upon the decision of this Court in Dagenais v. Canadian Broadcasting Corp., [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.
12 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
13 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.
14 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.
15 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] 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.
16 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.
17 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.
18 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.
19 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.
20 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.
21 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 discr