R. v. Mills, [1999] 3 SCR 668

R. v. Mills, [1999] 3 S.C.R. 668

L.C. (The Complainant)

and the Attorney General for Alberta                                              Appellants

v.

Brian Joseph Mills                                                                            Respondent

and

The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of Nova Scotia, the Attorney General of Manitoba, the Attorney General of British Columbia, the Attorney General of Prince Edward Island, the Attorney General for Saskatchewan, the Canadian Mental Health Association, the Canadian Psychiatric Association, the Child and Adolescent Services Association, the Criminal Lawyers’ Association (Ontario), the Association québécoise des avocats et avocates de la défense, the Women’s Legal Education and Action Fund, the Canadian Civil Liberties Association, the Canadian Council of Criminal Defence Lawyers, the Alberta Association of Sexual Assault Centres and the Sexual Assault Centre of Edmonton            Interveners

Indexed as:  R. v. Mills

File No.:  26358.

1999:  January 19; 1999:  November 25.

Present:  Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory,^* McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the alberta court of queen’s bench

Constitutional law -- Charter of Rights  -- Fundamental justice -- Right to fair trial -- Right to make full answer and defence -- Right to privacy -- Right to equality -- Sexual offences -- Production of records to accused -- Balancing of rights and interests:  privacy, equality and full answer and defence -- Whether Criminal Code provisions dealing with production of records in sexual offence proceedings infringing ss. 7  and 11(d)  of  Charter  -- If so, whether infringement justified -- Whether constitutional challenge premature -- Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 11(d) , 15  -- Criminal Code, R.S.C., 1985, c. C-46, ss. 278.1  to 278.91 .

Criminal law -- Sexual offences -- Production of records to accused -- Whether Criminal Code provisions dealing with production of records in sexual offence proceedings unconstitutional -- Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 11(d) , 15  -- Criminal Code, R.S.C., 1985, c. C-46, ss. 278.1  to 278.91 .

The accused was charged with one count of sexual assault and one count of unlawful sexual touching.  On the scheduled day of the trial, the Crown provided the accused with a statement of the complainant L.C.  Counsel for the accused also obtained partial disclosure of therapeutic records and notes relating to the complainant that were in the possession of a counselling organization.  Counsel for the accused later  sought production of records relating to the complainant held by a psychiatrist and a child and adolescent services association.  The trial judge then informed  the parties that on May 12, 1997, Bill C-46 was proclaimed into force and  amended the Criminal Code  to include ss. 278.1 to 278.91, which deal with the production of records in sexual offence proceedings.  The accused brought a constitutional challenge attacking the validity of these provisions on the basis that they violated ss. 7  and 11( d )  of the Canadian Charter of Rights and Freedoms .  The trial judge concluded that the new Criminal Code  provisions infringed the accused’s rights under ss. 7  and 11( d )  of the Charter  and, in a separate judgment,  ruled that the impugned provisions were not saved by s. 1  of the Charter .

Held (Lamer C.J. dissenting in part):  The appeal should be allowed.  Sections 278.1  to 278.91  of the Criminal Code  are constitutional.

Per L’Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.:  To challenge the constitutionality of the impugned legislation, the accused need not prove that the legislation would probably violate his right to make full answer and defence.  It is sufficient that he establish that the legislation is unconstitutional in its general effect.  In determining whether a constitutional challenge is premature, one must ask whether the record provides sufficient facts to permit a court to adjudicate properly the issues raised.  The record in this case contains sufficient facts to resolve the issues posed by the present appeal and the constitutional challenge is therefore not premature.  A determination that the legislation at issue in this appeal is unconstitutional in its general effect involves an assessment of its effects under reasonable hypothetical circumstances.

Although the procedure governing the production of private records of complainants in sexual assault proceedings set out in Bill C-46 differs significantly from the O’Connor regime, it does not follow that Bill C-46 is unconstitutional.  Parliament may build on the Court’s decision, and develop a different scheme as long as it meets the required constitutional standards.  A posture of respect towards Parliament has been adopted by the courts.  The relationship between the courts and the legislature should be one of dialogue.  The courts do not hold a monopoly on the protection and promotion of rights and freedoms.  Parliament also plays a role in this regard and is often able to act as a significant ally for vulnerable groups, especially in the context of sexual violence.  While it is the role of the courts to specify constitutional standards, there may be a range of permissible regimes that can meet these standards.  In adopting Bill C-46, Parliament sought to recognize the prevalence of sexual violence against women and children and its disadvantageous impact on their rights, to encourage the reporting of incidents of sexual violence, to recognize the impact of the production of personal information on the efficacy of treatment, and to reconcile fairness to complainants with the rights of the accused.  Parliament may also be understood to be recognizing “horizontal” equality concerns, where women’s inequality results from the acts of other individuals and groups rather than the state.

At issue in the present case is whether the procedure established in Bill C-46 violates the principles of fundamental justice.  Two principles of fundamental justice seem to conflict:  the right to full answer and defence and the right to privacy.  Neither right may be defined in such a way as to negate the other and both sets of rights are informed by the equality rights at play in this context.  No single principle is absolute and capable of trumping the others; they must all be defined in light of competing claims.  A contextual approach to the interpretation of rights should be adopted as they often inform, and are informed by, other rights at issue in the circumstances.  It is important, however, to distinguish between balancing the principles of fundamental justice under s. 7 and balancing interests under s. 1  of the Charter .  The issue under s. 7 is the delineation of the boundaries of the rights in question whereas under s. 1 the question is whether the violation of these boundaries may be justified.  In this context, the right to make full answer and defence, the right to privacy, and the right to equality must be defined.

The right of an accused to make full answer and defence is crucial to ensuring that the innocent are not convicted.  In the context of records production, it is important not to place the accused in a Catch-22 situation as often the accused may be in the difficult position of making submissions regarding the importance to full answer and defence of records that he or she has not seen.  The accused’s right to make full answer and defence must be understood in light of other principles of fundamental justice which may embrace interests and perspectives beyond those of the accused.  In this context, full answer and defence does not include the right to evidence that would distort the search for truth inherent in the trial process.

An order for the production of records made pursuant to ss. 278.1  to 278.91  of the Criminal Code  is a seizure within the meaning of s. 8  of the Charter .  The reasonable expectation of privacy or right to be left alone by the state protected by s. 8 includes the ability to control the dissemination of confidential information.  Privacy is also necessarily related to many fundamental human relations.  The therapeutic relationship is one that is characterized by trust, an element of which is confidentiality.  The protection of the complainant’s reasonable expectation of privacy in her therapeutic records protects the therapeutic relationship and the mental integrity of complainants and witnesses.  Security of the person is violated by state action interfering with an individual’s mental integrity.  Therefore, in cases where a therapeutic relationship is threatened by the disclosure of private records, security of the person and not just privacy is implicated.  The right to privacy is one which may be limited as reasonable searches and seizures are permitted by s. 8  of the Charter .  Given that s. 8 addresses a particular application of the principles of fundamental justice it may be inferred that a reasonable search or seizure is consistent with the principles of fundamental justice and  accommodates both the accused’s ability to make full answer and defence and the complainant’s privacy right.  The accused will have no right to the records in question insofar as they contain information that is either irrelevant or would serve to distort the search for truth.  On the other hand, the accused’s right must prevail where the lack of disclosure or production of the record would render him unable to make full answer and defence.  Between these extremes lies a spectrum of possibilities regarding where to strike a balance between these competing rights in any particular context.  Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high.  Privacy rights will be most directly at stake where a record concerns aspects of one’s individual identity or where confidentiality is crucial to a therapeutic or trust-like relationship.

Equality concerns must also inform the contextual circumstances in which the rights of full answer and defence and privacy will come into play.  An appreciation of myths and stereotypes in the context of sexual violence is essential to delineate properly the boundaries of full answer and defence.  An appreciation of the equality dimensions of record production in cases concerning sexual violence highlights the need to balance privacy and full answer and defence in a manner that fully respects the privacy interests of complainants.

The definition of the records subject to Bill C-46 is not overly broad as the legislation only applies to records in which there is a reasonable expectation of privacy. The legislation is therefore consistent with the definition of privacy rights under s. 8  of the Charter .  Documents falling within the ambit of Bill C-46 may or may not be ordered to be disclosed to the accused pursuant to the legislative regime.  It is therefore the procedures established by Bill C-46 and not the spectrum of records subject to these procedures that will determine the fairness or constitutionality of the legislation.

The mere fact that s. 278.2  of the Criminal Code  prevents the automatic disclosure of all relevant and non-privileged information in the possession of the Crown does not  deprive the accused of his right to full answer and defence.  This provision does not by itself deny access to documents to which the defence is constitutionally entitled. It was open for Parliament to determine what procedure was to be followed where third party records were in the possession of the Crown without the existence of an express waiver.  Crown possession or control of such records cannot be equated with a total loss of any reasonable expectation of privacy.  Although the Crown can obtain private records through a search warrant or subpoena while the accused, in the absence of an express waiver, can only apply for the documents under Bill C-46, s. 278.2  of the Criminal Code  does not provide the Crown with an unconstitutional advantage.  It is constitutionally permissible for the Crown to be subject to different treatment, to different procedures, or even to end up with documents that the accused has not seen, as long as the accused can make full answer and defence and the trial is fundamentally fair.  Any unfairness to the accused is offset by the provision that requires disclosure to the defence if the protection of the legislation is waived and the requirement under s. 278.2(3) that the prosecutor  notify the accused of the private documents in his or her possession.  A fully informed complainant may waive the protection of the legislation by express declaration or by voluntarily providing records to the Crown.  The fact that the Crown may possess documents that the accused has not seen does not violate s. 7  of the Charter  as the remainder of Bill C-46 gives the accused sufficient access to all relevant documents.

Section 278.3(4)  of the Criminal Code , which lists a series of assertions that cannot on their own establish that a record is likely relevant, does not violate s. 7  of the Charter .  The purpose of this provision is to prevent speculative and unmeritorious requests for production.  It does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on bare assertions of the listed matters where there is no other evidence and they stand on their own.  This provision prevents speculative myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records from forming the entire basis of an otherwise unsubstantiated order for production of private records.  Where any one of the listed assertions is made and supported by the required evidentiary and informational foundation, the trial judge remains the ultimate arbiter in deciding whether the likely relevance threshold is met.

In s. 278.5(1) of the Criminal Code Parliament supplemented the “likely relevant” standard for production to the judge proposed in O’Connor with the further requirement that production be “necessary in the interests of justice”.  This new standard is the result of a lengthy consultation process and is a notable example of the dialogue between the judicial and legislative branches.  Under the new provision a trial judge is required to consider the salutary and deleterious effects of production to the court on the accused’s right to make full answer and defence and on the rights to privacy and equality of the complainant or witness.  Once likely relevance is established, the fact that a consideration of the rights and interests of those affected by production to the court might result in production not being ordered does not necessarily render the legislation unconstitutional.  The non-disclosure of third party records with a high privacy interest that may contain relevant evidence will not compromise trial fairness where such non-disclosure would not prejudice the accused’s right to full answer and defence.  The criterion that production to the court be necessary in the interests of justice invests the trial judge with the discretion to consider the full range of rights and interests at issue before ordering production, in a manner scrupulously respectful of the requirements of the Charter .  If the judge concludes that it is necessary to examine the documents at issue in order to determine whether they should be produced to enable the accused to make full answer and defence, then production to the judge is necessary in the interests of justice.  Likewise if the judge is left uncertain about whether the production of the documents is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document.

In determining whether production is necessary in the interests of justice, the judge need not engage in a conclusive and in-depth analysis of each of the factors listed in s. 278.5(2).  The provision merely requires that the judge take these factors into account.  Even at this early stage, the analysis required can have a sufficient evidentiary basis through Crown disclosure, defence witnesses, the cross-examination of Crown witnesses at both the preliminary inquiry and trial, and expert evidence.  In addition to the evidentiary foundation of a case, considerations such as the nature of the records sought and the manner in which these records were taken will often provide trial judges with sufficient information to be able to consider and take into account the factors listed in s. 278.5(2) and fulfil the requirements of s. 278.5(1).

When determining whether production of part or all of the impugned record to the accused is necessary in the interests of justice under s. 278.7(1)  of the Criminal Code , trial judges are only asked to take into account the factors listed in s. 278.5(2) and are not required to rule conclusively on each factor.  Trial judges are also not required to determine whether factors relating to the privacy and equality of the complainant or witness outweigh factors relating to the accused’s right to full answer and defence.  The inclusion of societal interest factors in the analysis does not alter the constitutional balance established in O’Connor.  The requirement that the judge consider the effect of the determination on the integrity of the trial process relates to whether the search for truth would be advanced by the production of the records in question or whether the material would introduce discriminatory biases and beliefs into the fact-finding process.  The scheme created by Parliament permits judges to exercise wide discretion and consider a variety of factors in order  to preserve the complainant’s privacy and equality rights to the maximum extent possible, and also ensure that the accused has access to the documents required to make full answer and defence.

Per Lamer C.J. (dissenting in part):  Although Bill C-46 complies with ss. 7  and 11( d )  of the Charter  as it applies to the production of records in the possession of third parties, ss. 278.3(3) (b) and 278.5(1) (b) of the Criminal Code  infringe these Charter  provisions as they apply to records in the Crown’s possession or control.  Parliament was unquestionably free to fashion a legislative scheme to address the issue of the procedure applicable to the production of records in the Crown’s possession in the absence of an express waiver.  However, the legislative means chosen are not impeccably consistent with ss. 7  and 11( d )  of the Charter .  The Crown’s constitutional and ethical duty to disclose all information in its possession reasonably capable of affecting the accused’s ability to raise a reasonable doubt flows from the right to make full answer and defence, which is itself a principle of fundamental justice protected by ss. 7  and 11( d )  of the Charter .  The duty of disclosure is premised on the presumption that material in the Crown’s possession has probative value.  The requirement in Bill C-46 that the accused must prove the relevance of records that form part of the case to meet is a serious incursion on the meaningful exercise of the right to make full answer and defence.  By displacing the presumption of relevance and increasing the relevance threshold, ss. 278.3(3)(b) and 278.5(1)(b) of the Code give the Crown a distinct advantage over the defence, as it holds information that the accused must surmount a significant obstacle to obtain.  These provisions therefore infringe the accused’s right to a fair trial. 

The infringement of ss. 7 and 11(d) is not justified by s. 1  of the Charter .  Sections 278.3(3)(b) and 278.5(1)(b) fail to protect the privacy and equality rights of complainants and witnesses in sexual assault trials in a manner that minimally impairs the right of an accused to make full answer and defence. The burden on the accused to demonstrate likely relevance is more intrusive than reasonably necessary to achieve the important legislative goals.  In addition, the risk of suppressing relevant evidence and of convicting an innocent person outweighs the salutary effects of the impugned provisions on privacy and equality rights.  A combination of reading down and reading in new language is the most appropriate way to vindicate the Charter  rights at issue.  Sections 278.3(3)(b) and 278.5(1)(b) should be read as not applying to records in the possession or control of the prosecutor in the proceedings.  The existing principles for Crown disclosure as enunciated in Stinchcombe and O’Connor would partially apply instead of those paragraphs, such that the Crown would have the opportunity to show the trial judge that the documents are irrelevant or privileged.  If the Crown is unable to discharge this burden, then the records should, to protect the complainant’s privacy rights, be disclosed to the trial judge rather than the accused if the trial judge is satisfied that the other requirements in s. 278.5(1) and (2) are met.  The second stage of the legislative regime -- judicial examination of the documents to determine whether and to what extent they should be produced to the accused -- would then proceed according to the criteria in ss. 278.6 to 278.91.

Cases Cited

By McLachlin and Iacobucci JJ.

Considered:  R. v. O’Connor, [1995] 4 S.C.R. 411; referred to:  Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Vriend v. Alberta, [1998] 1 S.C.R. 493; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Stinchcombe, [1991] 3 S.C.R. 326;  A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; R. v. Weeseekase (1997), 161 Sask. R. 264; R. v. G.C.B., [1997] O.J. No. 5019 (QL); R. v. Fiddler, [1998] O.J. No. 5819 (QL); R. v. D.H.C. (1998), 163 Nfld. & P.E.I.R. 116; R. v. O'Neill (1998), 172 Nfld. & P.E.I.R. 136; R. v. E.M.F., [1997] O.J. No. 4828 (QL); R. v. Lee (1997), 35 O.R. (3d) 594; R. v. E.H., [1998] O.J. No. 4515 (QL);  R. v. G.J.A., [1997] O.J. No. 5354 (QL); R. v. DeSousa, [1992] 2 S.C.R. 944; MacKay v. Manitoba, [1989] 2 S.C.R. 357; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; Baron v. Canada, [1993] 1 S.C.R. 416; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Salituro, [1991] 3 S.C.R. 654; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Keegstra, [1990] 3 S.C.R. 697; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rose, [1998] 3 S.C.R. 262; R. v. CIP Inc., [1992] 1 S.C.R. 843; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Garofoli, [1990] 2 S.C.R. 1421; Carey v. Ontario, [1986] 2 S.C.R. 637; R. v. Durette, [1994] 1 S.C.R. 469; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. E. (A.W.), [1993] 3 S.C.R. 155;  R. v. Harrer, [1995] 3 S.C.R. 562; R. v. La, [1997] 2 S.C.R. 680; Marks v. Beyfus (1890), 25 Q.B.D. 494; R. v. Scott, [1990] 3 S.C.R. 979; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406;  R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Duarte, [1990] 1 S.C.R. 30; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Plant, [1993] 3 S.C.R. 281; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Mills v. The Queen, [1986] 1 S.C.R. 863; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123;  R. v. Morgentaler, [1988] 1 S.C.R. 30; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Regan (1998), 174 N.S.R. (2d) 230; R. v. Boudreau, [1998] O.J. No. 3526 (QL); R. v. Hurrie (1997), 12 C.R. (5th) 180; R. v. Stromner (1997), 205 A.R. 385; R. v. J.F.G., [1997] N.W.T.J. No. 47 (QL); R. v. J.S.P., B.C.S.C., Vancouver Registry Nos. CC970130 & CC960237, May 15, 1997.

By Lamer C.J. (dissenting in part)

R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Egger, [1993] 2 S.C.R. 451; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; Egan v. Canada, [1995] 2 S.C.R. 513; M. v. H., [1999] 2 S.C.R. 3; R. v. Laba, [1994] 3 S.C.R. 965.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 8  to 14 , 11( d ) , 15(1) , 28 .

Constitution Act, 1982 , s. 52 .

Criminal Code , R.S.C., 1985, c. C-46 , ss. 278.1  to 278.91  [ad. 1997, c. 30, s. 1].

Supreme Court Act , R.S.C., 1985, c. S-26 , s. 40  [am. c. 34 (3rd Supp.), s. 3; am. 1990, c. 8, s. 37].

Authors Cited

Busby, Karen. “Discriminatory Uses of Personal Records in Sexual Violence Cases” (1997), 9 C.J.W.L. 148.

Busby, Karen. “Third Party Records Cases Since R. v. O’Connor:  A Preliminary Analysis”.  A study funded by the Research and Statistics Section, Department of Justice Canada,  July 1998.

Feldman, David J. “Privacy-related Rights and their Social Value”.  In Peter Birks, ed., Privacy and Loyalty.  Oxford:  Clarendon Press, 1997, 15.

Fried, Charles.  “Privacy” (1967-68), 77 Yale L.J. 475.

Hogg, Peter W., and Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter Of Rights Isn’t Such A Bad Thing After All)” (1997), 35 Osgoode Hall L.J. 75.

Holmes, Heather J. “An Analysis of Bill C-46, Production of Records in Sexual Offence Proceedings” (1997), 2 Can. Crim. L.R. 71.

Kelly, Katharine D.  “‘You must be crazy if you think you were raped’:  Reflections on the Use of Complainants’ Personal and Therapy Records in Sexual Assault Trials” (1997), 9 C.J.W.L. 178.

Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution.  Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations.  Halifax: The Commission, 1989.

Rachels, James. “Why Privacy Is Important” (1975), 4 Philosophy & Public Affairs 323.

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 8.  Revised by John T. McNaughton.  Boston:  Little, Brown & Co., 1961. 

APPEAL from judgments of the Alberta Court of Queen’s Bench (1997), 56 Alta. L.R. (3d) 277, 205 A.R. 321, 12 C.R. (5th) 138, 47 C.R.R. (2d) 104, [1998] 4 W.W.R. 83, [1997] A.J. No. 891 (QL), and (1997), 56 Alta. L.R. (3d) 301, 207 A.R. 161, 12 C.R. (5th) 163, 47 C.R.R. (2d) 237, [1998] 4 W.W.R. 107, [1997] A.J. No. 1036 (QL).  Appeal allowed, Lamer C.J. dissenting in part.

Mary A. Marshall and Teresa L. Meadows, for the appellant L.C.

James A. Bowron, for the appellant the Attorney General for Alberta.

Dennis Edney and Robert Shaigec, for the respondent.

Graham M. Garton, Q.C., and Donna Valgardson, for the intervener the Attorney General of Canada.

Susan Chapman and Christine Bartlett-Hughes, for the intervener the Attorney General for Ontario.

Daniel Grégoire and Jacques Gauvin, for the intervener the Attorney General of Quebec.

Denise C. Smith, for the intervener the Attorney General of Nova Scotia.

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

W. J. Scott Bell, for the intervener the Attorney General of British Columbia.

Written submissions only by Catherine C. Flanagan, for the intervener the Attorney General of Prince Edward Island.

Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.

Aleck H. Trawick, Q.C.,  and Emi Bossio, for the intervener the Canadian Mental Health Association.

Brian A. Crane, Q.C., for the intervener the Canadian Psychiatric Association.

Bruce F. Hughson and Claire M. Klassen, for the intervener the Child and Adolescent Services Association.

David M. Porter and Danielle T. Miller, for the intervener the Criminal Lawyers’ Association (Ontario).

Guy Cournoyer, for the intervener the Association québécoise des avocats et avocates de la défense.

Anne S. Derrick and Peggy Kobly, for the intervener the Women’s Legal Education and Action Fund.

Patricia D. S. Jackson and Sherri A. Pinsler, for the intervener the Canadian Civil Liberties Association.

David M. Paciocco, for the intervener the Canadian Council of Criminal Defence Lawyers.

Sheilah Martin, Q.C., for the intervener the Alberta Association of Sexual Assault Centres.

Dale Gibson and Ritu Khullar, for the intervener the Sexual Assault Centre of Edmonton.

The following are the reasons delivered by

1                                   The Chief Justice (dissenting in part) -- The issue in this appeal is whether Bill C-46 (now S.C. 1997, c. 30) strikes the appropriate constitutional balance between protecting the accused’s right to a fair trial and the privacy and equality rights of complainants and witnesses when an accused seeks access to their confidential records in sexual assault proceedings.  While I agree with McLachlin and Iacobucci JJ.’s finding that Bill C-46 complies with ss. 7  and 11( d )  of the Canadian Charter of Rights and Freedoms  as it applies to the production of records in the possession of third parties, I take a different view of the legislative regime’s approach to records in the hands of the Crown.  In my opinion, Bill C-46's treatment of records that form part of the case to meet tips the balance too heavily in favour of privacy to the detriment of the accused’s right to make full answer and defence.

2                                   As my colleagues have explained, s. 278.2(2)  of the Criminal Code , R.S.C., 1985, c. C-46 , extends the application of the legislative scheme for the production of therapeutic records to documents in the Crown’s possession or control.  If the complainant or witness expressly waives the protection of the legislation, then the records may be produced to the accused as at common law according to the principles in R. v. Stinchcombe, [1991] 3 S.C.R. 326.

3                                   Absent waiver, however, Bill C-46 requires the accused to submit to the same two-stage procedure for production applicable to records held by third parties:  disclosure to the trial judge and production to the accused.   The first stage obliges the accused to establish that the record in the Crown’s possession is “likely relevant to an issue at trial or to the competence of a witness to testify” (ss. 278.3(3)(b) and 278.5(1)(b)).  The trial judge must also decide whether disclosure to the court is “necessary in the interests of justice” and consider the salutary and deleterious effects of production on the accused’s right to make full answer and defence, and on the complainant’s or witness’s right to privacy and equality (s. 278.5(1)(c) and 278.5(2)).  If the first step is satisfied, the second stage involves judicial inspection of the documents to determine whether and to what extent they should be produced to the accused (ss. 278.6 to 278.91).

4                                   My colleagues observe that the majority in R. v. O’Connor, [1995] 4 S.C.R. 411,  did not comment on the procedure applicable to the production of records which the Crown possesses in the absence of an express waiver.  Parliament was unquestionably free to fashion a legislative scheme to address this issue.  I agree entirely with the appellant L.C.’s submission that the courts’ creation of a common law procedure for production does not curtail Parliament’s jurisdiction to modify that scheme, particularly after having the benefit of evaluating its impact.  However, I cannot agree with my colleagues that the legislative means chosen are impeccably consistent with ss. 7  and 11( d )  of the Charter .

5                                   As this Court maintained in Stinchcombe, supra, at p. 336, the right of an accused to make full answer and defence is a pillar of criminal justice on which we rely heavily to prevent the conviction of the innocent.  It is a principle of fundamental justice protected by ss. 7  and 11( d )  of the Charter .  Flowing from the right to make full answer and defence is the Crown’s constitutional and ethical duty to disclose all information in its possession reasonably capable of affecting the accused’s ability to raise a reasonable doubt concerning his innocence:  R. v. Egger, [1993] 2 S.C.R. 451, at p. 466.  This obligation is subject only to the Crown’s discretion to withhold disclosure on the basis that the material is irrelevant or privileged.

6                                   The duty of disclosure is premised on the presumption that material in the Crown’s possession has probative value.  The O’Connor majority endorsed this presumption at para. 12, where we surmised that “[g]enerally speaking, the Crown would not obtain possession or control of therapeutic records unless the information the records contained was somehow relevant to the case against the accused.”  This reasoning applies with even greater force, in my view, when the Crown seeks access to documents without the complainant’s cooperation, such as by way of a search warrant.

7                                   McLachlin and Iacobucci JJ. emphasize in their reasons that the Crown’s duty of disclosure is not absolute.  The Charter entrenches the right to a fair trial, they maintain, not the best trial.  The principles of fundamental justice do not guarantee the most favourable procedures conceivable.  All of this is true.  However, in my respectful view my colleagues understate the importance of Crown disclosure to trial fairness.  Disclosure of records in the Crown’s hands furthers the search for truth as it enables the defence to challenge the accuracy and cogency of the prosecution’s case.  The accused’s ability to access relevant information that may ultimately deprive him of his liberty strikes at the very core of the principles of fundamental justice.

8                                   The requirement in Bill C-46 that the accused must prove the relevance of records that form part of the case to meet is a serious incursion on the meaningful exercise of the right to make full answer and defence.  Not only does the legislative scheme supplant the presumption of relevance, but it also raises the relevance bar.  The standard of relevance which the accused must satisfy according to ss. 278.3(3)(b) and 278.5(1)(b) – likely relevance to an issue at trial or to the competence of a witness to testify – is higher than that required for disclosure under a Stinchcombe application, which is whether the information “may be useful to the defence”:  O’Connor, supra, at para. 22, and Stinchcombe, supra, at p. 345.

9                                   Moreover, I do not agree with McLachlin and Iacobucci JJ.’s assertion that the notification requirement in s. 278.2(3) provides the accused with much assistance in establishing the likely relevance of a document in the Crown’s possession.  I reiterate the concerns which the majority expressed in O’Connor, supra, at paras. 25-26, about placing an accused in the position of having to persuade the trial judge that documents are relevant without any knowledge of their contents.  It will be difficult indeed for an accused to establish the likely relevance of a record which he knows to exist, but which he has never seen.  By displacing the presumption of relevance and increasing the relevance threshold, ss. 278.3(3)(b) and 278.5(1)(b) give the Crown a distinct advantage over the defence, as it holds information that the accused must surmount a significant obstacle to obtain.  These provisions therefore infringe the accused’s right to a fair trial.

10                               Having found that ss. 278.3(3)(b) and 278.5(1)(b) violate ss. 7  and 11( d )  of the Charter  as they apply to records in the Crown’s possession, I must consider whether the infringement is a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society.  I am mindful that violations of s. 7 are  rarely saved by s. 1:  New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.  Iacobucci J. summarized the analytical framework applicable to s. 1 as follows in Egan v. Canada, [1995] 2 S.C.R. 513, at para. 182:

A limitation to a constitutional guarantee will be sustained once two conditions are met.  First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must  be reasonable and demonstrably justifiable in a free and democratic society.  In order to satisfy the second requirement, three criteria must be satisfied:  (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter  guarantee; and (3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not outweighed by  the abridgement of the right.

11                               Without a doubt, Bill C-46 was adopted to address a pressing and substantial objective, which is the protection of the privacy and equality rights of complainants and witnesses in the context of sexual assault trials.  The legislative scheme also rationally advances this important aim.  In my opinion, however, ss. 278.3(3)(b) and 278.5(1)(b) fail to protect those rights in a manner that minimally impairs the right of an accused to make full answer and defence.  The requirement that the accused must demonstrate the likely relevance of records held by the Crown is more intrusive than reasonably necessary to achieve the legislative goals: see M. v. H., [1999] 2 S.C.R. 3, at para. 118.  In addition, the risk of suppressing relevant evidence and of convicting an innocent person outweighs the salutary effects of the impugned provisions on privacy and equality rights.  I accordingly conclude that the violations are not justified by s. 1.

12                               While in my view ss. 278.3(3)(b) and 278.5(1)(b) are unconstitutional as they apply to records in the Crown’s hands, I remain sensitive that the production of therapeutic records to the defence is injurious to a complainant’s privacy rights.  Indeed, disclosure may be all the more invasive to a complainant’s dignity and psychological integrity when they are obtained by the Crown without her consent.

13                               In this regard, I emphasize that records which the Crown procures absent waiver would still be subject to the principles in Stinchcombe.  The prosecution would be free to rebut the presumption that the documents are relevant.  I remark in passing that this may be difficult for the Crown to accomplish in respect of documents obtained pursuant to a search warrant, as in most cases the evidentiary basis upon which the warrant was secured will itself be disclosed.  As with any Stinchcombe application, the Crown may likewise attempt to resist disclosure by demonstrating that the records are privileged.

14                               If the Crown is unable to discharge this burden, then the records should be disclosed to the trial judge rather than the accused (as they normally would under a Stinchcombe application), because of the privacy rights at stake, if the trial judge is satisfied that the other requirements in s. 278.5(1) and (2) are met.  The second stage of the legislative regime -- judicial examination of the documents to determine whether and to what extent they should be produced to the accused -- would then proceed according to the criteria in ss. 278.6 to 278.91, as explained by my colleagues.  In my view, relieving the accused of the burden of showing relevance strikes a more appropriate balance between the various rights at stake.  It removes a significant barrier to the accused’s ability to raise a reasonable doubt concerning his innocence while preserving a large measure of protection for the privacy and equality rights of complainants and witnesses.

15                               I turn last to a consideration of the appropriate remedy under s. 52(1)  of the Constitution Act, 1982 .  My finding of unconstitutionality is limited to two provisions of an otherwise complex legislative scheme.  I believe that a combination of reading down the sections and reading in new language is the most appropriate way to vindicate the Charter  rights at play “while refraining from intrusion into the legislative sphere beyond what is necessary”:  R. v. Laba, [1994] 3 S.C.R. 965, at p. 1012, per Sopinka J.  Sections 278.3(3) (b) and 278.5(1) (b) of the Criminal Code  should therefore be interpreted such that they no longer apply to an application for the production of records in the Crown’s possession.  Language along the following lines should be read into both ss. 278.3(3)(b) and 278.5(1)(b):  “unless the record is in the possession or control of the prosecutor in the proceedings, in which case this paragraph does not apply”.  The principles for Crown disclosure enunciated in Stinchcombe and O’Connor would partially apply instead of those paragraphs, such that the Crown would have the opportunity to show the trial judge that the documents are irrelevant or privileged.

16                               I would allow the appeal in part and answer the constitutional questions as follows:

1.                                 Do ss. 278.1  to 278.91  of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer:       Yes, in part.  Sections 278.3(3)(b) and 278.5(1)(b) infringe s. 7  of the Charter  as they apply to records in the Crown’s possession or control.

2.                                 If so, is the infringement demonstrably justified in a free and democratic society?

Answer:       No.

3.                                 Do ss. 278.1  to 278.91  of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 11( d )  of the Canadian Charter of Rights and Freedoms ?

Answer:       Yes, in part.  Sections 278.3(3)(b) and 278.5(1)(b) infringe s. 11( d )  of the Charter  as they apply to records in the Crown’s possession or control.

4.                                 If so, is the infringement demonstrably justified in a free and democratic society?

Answer:       No.

The judgment of L’Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

McLachlin and Iacobucci JJ. –

I.  Introduction

17                               The question of when accused persons should have access to private records of complainants and witnesses in sexual assault trials is a vexed one. This Court addressed this issue in R. v. O’Connor, [1995] 4 S.C.R. 411. Following this decision, and a lengthy consultation process, Parliament reviewed the issue and drafted Bill C-46, (now S.C. 1997, c. 30) which came into force on May 12, 1997 and amended the Criminal Code , R.S.C., 1985, c. C-46 . The issue in the present appeal is whether Bill C-46 is constitutional. The resolution of this appeal requires understanding  how to define competing rights, avoiding the hierarchical approach rejected by this Court in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 877.  On the one hand stands the accused’s right to make full answer and defence. On the other hand stands the complainant’s and witness’s right to privacy. Neither right may be defined in such a way as to negate the other and both sets of rights are informed by the equality rights at play in this context. Underlying this question is the relationship between the courts and Parliament when Parliament alters a judicially created common law procedure that already embodies Charter  standards.

II.  Summary

18                This appeal presents an apparent conflict among the rights to full answer and defence, privacy, and equality, all of which are protected by the Canadian Charter of Rights and Freedoms  (ss. 7  and 11( d ) , s. 8 , and s. 15 , respectively).  The underlying issue is what is required by the “principles of fundamental justice” protected by s. 7.  Bill C-46 reflects Parliament’s effort at balancing these rights.  Our task is to decide whether Parliament’s balance is a constitutional one. 

19                As a preliminary matter, we conclude that this appeal is not premature.  While it is true that the accused did not actually make an application for records under Bill C-46, this does not deprive the Court of a sufficient basis to decide the issues raised in the appeal.

20                As noted above, this Court has previously addressed the issue of disclosure of third party records in sexual assault proceedings: see O’Connor, supra.  However, it is important to keep in mind that the decision in O’Connor is not necessarily the last word on the subject.  The law develops through dialogue between courts and legislatures: see Vriend v. Alberta, [1998] 1 S.C.R. 493.  Against the backdrop of O’Connor, Parliament was free to craft its own solution to the problem consistent with the Charter .

21                As this Court’s decision in Dagenais, supra, makes clear, Charter  rights must be examined in a contextual manner to resolve conflicts between them.  Therefore, unlike s. 1 balancing, where societal interests are sometimes allowed to override Charter  rights, under s. 7 rights must be defined so that they do not conflict with each other.  The rights of full answer and defence, and privacy, must be defined in light of each other, and both must be defined in light of the equality provisions of s. 15.

22                Turning to the legislation at issue in this appeal, we find it constitutional.  It is undisputed that there are several important respects in which Bill C-46 differs from the regime set out in O’Connor.  However, these differences are not fatal because Bill C-46 provides sufficient protection for all relevant Charter  rights.  There are, admittedly, several provisions in the Bill that are subject to differing interpretations.  However, in such situations we will interpret the legislation in a constitutional manner where possible: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078.  By so doing, we conclude that Bill C-46 is a constitutional response to the problem of production of records of complainants or witnesses in sexual assault proceedings.

III.  Proceedings and Judgments in the Court Below

23                The appellant L.C. is the complainant in a criminal proceeding in which the respondent, Brian Mills, has been charged with one count of sexual assault and one count of unlawful sexual touching. The offences are alleged to have occurred on July 12, 1995, when the appellant L.C. was 13 years of age.

24                The respondent elected to waive his right to a preliminary inquiry. On the scheduled day of the trial, October 4, 1996, the Crown provided the respondent with a second statement of the appellant L.C., dated September 29, 1996. Mr. Justice Jones adjourned the trial until January 28, 1997. On January 27, 1997, counsel for the respondent brought an application to have a new preliminary inquiry, arguing that the original preliminary inquiry was waived on the basis of the original witness statement, dated July 12, 1995, which disclosed information alleged to be less substantial and serious than that provided in the second statement. Counsel for the respondent also sought full disclosure of all therapeutic records and notes relating to the appellant that were in the possession of a counselling organization known as “Changes”.

25                In dismissing the application for a new preliminary inquiry, Belzil J. held that the trial could not proceed until the application for production of third party records was dealt with.  On the basis of O’Connor, he ordered that portions of various records be produced.

26                On May 14, 1997, counsel for the respondent sought the production of records relating to the appellant held by a psychiatrist, Dr. Drew Bremness, and the Child and Adolescent Services Association. On May 16, 1997, Belzil J. advised the parties that on May 12, 1997, Bill C-46 was proclaimed into force and amended the Criminal Code  to include ss. 278.1 to 278.91.  On May 26, 1997, counsel for the respondent forwarded correspondence to both Alberta Justice and the Federal Department of Justice advising that he intended to argue that the new amendments violated ss. 7  and 11( d )  of the Charter .  Belzil J. held that the respondent could proceed with his constitutional challenge without first making an application for third party records under the new provisions, and granted full standing to intervene in respect of the constitutional challenge to both the Attorney General of Canada and the appellant L.C.

27                On September 18, 1997, Belzil J. concluded that the new Criminal Code  provisions infringed ss. 7  and 11( d )  of the Charter  ((1997), 56 Alta. L.R. (3d) 277 (Q.B.)).  Belzil J. first dealt with the argument that the respondent’s application was premature since the accused had not been denied access to any records pursuant to the new provisions. He stated, at para. 12 of his reasons: “it would be grossly unfair to an accused to force an accused to make an application pursuant to legislation which according to the accused is unconstitutional”. Furthermore, given that the respondent is not allowed unfettered access to the records, he could never know whether his access under the new provisions would differ from that under the O’Connor procedure.  Accordingly, Belzil J. held that the respondent had the right to bring an application at this time to determine the constitutionality of Bill C-46.

28                After ruling that the application was not premature, Belzil J. dealt with the constitutional claims. He characterized Bill C-46 as Parliament’s reaction to the majority decision in O’Connor.  He held that, if propositions of law not accepted by the majority in O’Connor are found within Bill C-46, that should be a relevant consideration in determining the constitutional validity of the legislation.  Moreover, if Bill C-46 materially alters the balance between privacy rights and the rights of an accused to a fair trial as enunciated by the majority in O’Connor, this in and of itself gives rise to an argument that Bill C-46 is constitutionally invalid. In his view, there are five broad differences between Bill C-46 and O'Connor:

(1)        The broad definition of records in Bill C-46 forces an accused to proceed with an application under the new Bill for each type of record, each of which must be supported by affidavits.

(2)        Notwithstanding that in O’Connor this Court specifically rejected the idea that therapeutic records will rarely be relevant, Bill C-46 restricts the type of evidence that an accused may place before a judge in support of an application for production of records by imposing a higher initial threshold on an accused to show likely relevance, compelling an accused to rely on the veracity of a complainant to determine on a preliminary inquiry whether such records exist.

(3)        Section 278.5(2) requires the trial judge to engage in a balancing exercise before examining the records in question, requiring the trial judge to weigh important rights in a vacuum, and exacerbating the Catch-22 situation identified in O’Connor.

(4)        Section 278.5(2) compels the trial judge to use factors specifically rejected by a majority of the Supreme Court of Canada, namely factors  (f), (g), and (h). 

(5)        Bill C-46 restricts the ability of the Crown to produce relevant records, weakening the Crown’s obligations under R. v. Stinchcombe, [1991] 3 S.C.R. 326.

29                Belzil J. concluded that these differences sacrificed the balance of rights achieved by this Court in O’Connor by creating a presumption against disclosure and ranking privacy rights above the rights of an accused to a fair trial. Therefore, he held that Bill C-46 infringed the accused's rights under ss. 7  and 11( d )  of the Charter .

30                In a separate judgment delivered on October 31, 1997, Belzil J. ruled that Bill C-46 was not saved by s. 1  of the Charter  ((1997), 56 Alta. L.R. (3d) 301 (Q.B.)).  None of the testimony justified exclusion of therapeutic records on the basis of detrimental impacts, and the records might  contain highly probative evidence. Belzil J. stated that no authority had been cited before him wherein this Court had ever sanctioned the use of s. 1 for a breach of the fundamental right to a fair trial. In his view, almost by definition an impairment of a fundamental right can never be demonstrably justified in a free and democratic society.  Belzil J. held that Bill C-46 is not a proportional response and does not constitute a minimal impairment of rights, but rather constitutes a substantial impairment of the fundamental right to a fair trial.  He concluded that Bill C-46 could not be saved by s. 1 and should be struck down in its entirety. 

31                Leave to appeal was granted to the appellant L.C. by this Court. As our jurisprudence has established, a third party may challenge an interlocutory court order, issued by a superior court judge in criminal proceedings, by seeking leave to appeal to this Court pursuant to s. 40  of the Supreme Court Act , R.S.C., 1985, c. S-26 .  See A. (L.L.) v. B. (A.), [1995] 4 S.C.R. 536; Dagenais, supra.

IV.  Relevant Constitutional and Legislative Provisions

32                Canadian Charter of Rights and Freedoms 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8.  Everyone has the right to be secure against unreasonable search or seizure.

11.  Any person charged with an offence has the right

                                                                     ...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

28. Notwithstanding anything in this Charter , the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Bill C-46

An Act to amend the Criminal Code  (production of records in sexual offence proceedings)

WHEREAS the Parliament of Canada continues to be gravely concerned about the incidence of sexual violence and abuse in Canadian society and, in particular, the prevalence of sexual violence against women and children;

WHEREAS the Parliament of Canada recognizes that violence has a particularly disadvantageous impact on the equal participation of women and children in society and on the rights of women and children to security of the person, privacy and equal benefit of the law as guaranteed by sections 7 , 8 , 15  and 28  of the Canadian Charter of Rights and Freedoms ;

WHEREAS the Parliament of Canada intends to promote and help to ensure the full protection of the rights guaranteed by the Canadian Charter of Rights and Freedoms  for all, including those who are accused of, and those who are or may be victims of, sexual violence or abuse;

WHEREAS the rights guaranteed by the Canadian Charter of Rights and Freedoms  are guaranteed equally to all and, in the event of a conflict, those rights are to be accommodated and reconciled to the greatest extent possible;

WHEREAS the Parliament of Canada wishes to encourage the reporting of incidents of sexual violence and abuse and to provide for the prosecution of offences within a framework of laws that are consistent with the principles of fundamental justice and that are fair to complainants as well as to accused persons;

WHEREAS the Parliament of Canada recognizes that the compelled production of personal information may deter complainants of sexual offences from reporting the offence to the police and may deter complainants from seeking necessary treatment, counselling or advice;

WHEREAS the Parliament of Canada recognizes that the work of those who provide services and assistance to complainants of sexual offences is detrimentally affected by the compelled production of records and by the process to compel that production;

AND WHEREAS the Parliament of Canada recognizes that, while production to the court and to the accused of personal information regarding any person may be necessary in order for an accused to make a full answer and defence, that production may breach the person’s right to privacy and equality and therefore the determination as to whether to order production should be subject to careful scrutiny;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. The Criminal Code  is amended by adding the following after section 278:

278.1 For the purposes of sections 278.2 to 278.9, "record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273,

(b) an offence under section 144 , 145 , 149 , 156 , 245  or 246  of the Criminal Code , chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146 , 151 , 153 , 155 , 157, 166  or 167  of the Criminal Code , chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.

(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.

(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor's possession but, in doing so, the prosecutor shall not disclose the record's contents.

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

(3) An application must be made in writing and set out

(a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and

(b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject‑matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant's sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject‑matter of the charge against the accused.

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

(6) The judge may at any time order that the application be served on any person to whom the judge considers the record may relate.

278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

(3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.

278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that

(a) the application was made in accordance with subsections 278.3(2) to (6);

(b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

(c) the production of the record is necessary in the interests of justice.

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society's interest in encouraging the reporting of sexual offences;

(g) society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

278.6 (1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused.

(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.

(3) Subsections 278.4(2) and (3) apply in the case of a hearing under subsection (2).

278.7 (1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).

(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.

(3) Where the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy and equality interests of the complainant or witness, as the case may be, and any other person to whom the record relates, including, for example, the following conditions:

(a) that the record be edited as directed by the judge;

(b) that a copy of the record, rather than the original, be produced;

(c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;

(d) that the record be viewed only at the offices of the court;

(e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and

(f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.

(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.

(5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings.

(6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it.

278.8 (1) The judge shall provide reasons for ordering or refusing to order the production of the record or part of the record pursuant to subsection 278.5(1) or 278.7(1).

(2) The reasons referred to in subsection (1) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.

278.9 (1) No person shall publish in a newspaper, as defined in section 297, or in a broadcast, any of the following:

(a) the contents of an application made under section 278.3;

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

278.91 For the purposes of sections 675 and 676, a determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1) is deemed to be a question of law.

V. Issues

33                On June 11, 1998, the Chief Justice stated the following constitutional questions:

1.         Do ss. 278.1  to 278.91  of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

2.         If so, is the infringement demonstrably justified in a free and democratic society?

3.         Do ss. 278.1  to 278.91  of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 11( d )  of the Canadian Charter of Rights and Freedoms ?

4.         If so, is the infringement demonstrably justified in a free and democratic society?

A further issue is whether this constitutional challenge has been brought prematurely.

VI. Analysis

A.  Introduction

34                We have chosen to address the issues raised by this appeal in the following manner. First, we will outline why this constitutional challenge is not premature. Second, we will discuss the relevant background considerations such as the relationship between the courts and Parliament in light of this Court’s decision in O’Connor, supra, and the definition of the constitutional rights at stake in this appeal. Third, with this background and context, we will consider the constitutionality of the impugned provisions.

B.  Prematurity

35                The appellant the Attorney General for Alberta (“Alberta”) submitted that Belzil J.’s  finding of constitutional invalidity was premature and lacked an adequate factual foundation. Alberta argued that as no application for records had been made by the respondent under the new provisions, it is unclear what records, if any, would be denied to the respondent. Several lower courts have endorsed this reasoning. For example, see R. v. Weeseekase (1997), 161 Sask. R. 264 (Q.B.); R. v. G.C.B., [1997] O.J. No. 5019 (QL) (Gen. Div.); R. v. Fiddler, [1998] O.J. No. 5819 (QL) (Prov. Div.); R. v. D.H.C. (1998), 163 Nfld. & P.E.I.R. 116 (Nfld. S.C.T.D.); R. v. O'Neill (1998), 172 Nfld. & P.E.I.R. 136 (Nfld. S.C.T.D.); R. v. E.M.F., [1997] O.J. No. 4828 (QL) (Gen. Div.).  However, other courts have adopted Belzil J.’s reasoning in the court below: see, e.g.,  R. v. Lee (1997), 35 O.R. (3d) 594 (Gen. Div.); R. v. E.H., [1998] O.J. No. 4515 (QL) (Gen. Div.);  R. v. G.J.A., [1997] O.J. No. 5354 (QL) (Gen. Div.).

36                The mere fact that it is not clear whether the respondent will in fact be denied access to records potentially necessary for full answer and defence does not make the claim premature. The respondent need not prove that the impugned legislation would probably violate his right to make full answer and defence. Establishing that the legislation is unconstitutional in its general effects would suffice, as s. 52  of the Constitution Act, 1982 , declares a law to be of no force or effect to the extent that it is inconsistent with the Constitution. 

37                However, accepting that the respondent may challenge the general constitutionality of the impugned legislation does not answer the question of whether the respondent must first apply for, and be denied, the production of third party records before bringing a constitutional challenge. The question to answer is whether the appeal record provides sufficient facts to permit the Court to adjudicate properly the issues raised.  As Sopinka J. stated for the Court in R. v. DeSousa, [1992] 2 S.C.R. 944, at p. 955, when discussing the general rule that constitutional challenges should be disposed of at the end of a case: “An apparently meritorious Charter  challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule” (emphasis added).

38                This Court has often stressed the importance of a factual basis in Charter  cases. See, for example,  MacKay v. Manitoba, [1989] 2 S.C.R. 357, at p. 361; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 762 and 767-68, per Dickson C.J.; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59, at p. 83; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1099; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 452; DeSousa, supra, at p. 954; Canadian Broadcasting Corp.  v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 15. These facts have been broken into two categories: legislative and adjudicative.  In Danson, supra, at p. 1099, Sopinka J., for the Court, outlined these categories as follows:

These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis' words, "who did what, where, when, how, and with what motive or intent ...." Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, per McIntyre J., at p. 318.

39                The argument that the present appeal is premature rests on the contention that there are few adjudicative facts before the Court. Two points may be made in response.

40                First, it is not clear what further adjudicative facts would arise if the respondent had gone through the impugned procedure and been refused production. Although, pursuant to s. 278.8(1)  of the Criminal Code ,  the trial judge must provide reasons for refusing to order production of any record, or part of any record, presumably these reasons could not divulge much about the content of the records in question for that would defeat the very purpose of the new provisions.

41                            Second, the record contains sufficient facts to resolve the issues posed by the present appeal. Indeed, no argument was made that the adjudicative facts, sparse as they may be, are insufficient.  Moreover, a determination that the legislation at issue in this appeal is unconstitutional in its general effect involves an assessment of the effects of the legislation under reasonable hypothetical circumstances.  In R. v. Goltz, [1991] 3 S.C.R. 485, Gonthier J. stated, for the majority, at pp. 515-16:

It is true that this Court has been vigilant, wherever possible, to ensure that a proper factual foundation exists before measuring legislation against the Charter  (Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1099, and MacKay v. Manitoba, [1989] 2 S.C.R. 357, at pp. 361-62). Yet it has been noted above that s. 12 jurisprudence does not contemplate a standard of review in which that kind of factual foundation is available in every instance. The applicable standard must focus on imaginable circumstances which could commonly arise in day-to-day life. [Emphasis added.]

Likewise, given the nature of the statutory framework, where the accused and the Court remain unaware of the contents of the records sought, many of the arguments by necessity focus upon such “imaginable circumstances”.

42                            Given these considerations, we are satisfied that there is an appropriate factual basis in this case and that the application is therefore not premature.

C.  Background Considerations

(1)  The O’Connor Regime and Bill C-46

43                            The respondent in this appeal and several interveners argued that the provisions of Bill C-46 are unconstitutional to the extent that they are inconsistent with the reasons of the majority of this Court in O’Connor, supra.  Belzil J., for the court below, similarly held that Bill C-46 is unconstitutional because it alters the constitutional balance achieved in O’Connor.   Before addressing these arguments, we will briefly review the production regimes at issue.

(a)  The O’Connor Regime

44                            This Court’s decision in O’Connor concerned the common law procedure to be followed by an accused seeking production of therapeutic records in the hands of third parties.  As a preliminary matter, Lamer C.J. and Sopinka J., for the majority on the issue of production, also discussed the issue of disclosure of therapeutic records in the hands of the Crown. In their opinion, the Crown’s obligation to disclose records in its possession or control, as established in  Stinchcombe, supra, is unaltered by the confidential nature of therapeutic records where the records have been shared with the Crown or “confidentiality has been waived for the purpose of proceeding against the accused” (para. 9).  Even if privileged, these records must be disclosed to the accused where “clearly relevant and important to the ability of the accused to raise a defence” (para. 11).

45                            In the context of ordering production of records that are in the hands of third parties, Lamer C.J. and Sopinka J. outlined a two-stage process.  At the first stage, the issue is whether the document sought by the accused ought to be produced to the judge; at the second stage, the trial judge must balance the competing interests to decide whether to order production to the accused.  At the first stage, the onus is on the accused to establish that the information in question is “likely to be relevant” (para. 19 (emphasis in original)).  Unlike in the Crown disclosure context, where relevance is understood to mean “may be useful to the defence”, the threshold of likely relevance in this context requires that the presiding judge be satisfied “that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (para. 22 (emphasis in original)). This shift in onus and the higher threshold, as compared to when records are in the possession of the Crown, was necessitated by the fact that the information in question is not part of the state’s “case to meet”, the state has not been given access to it, and third parties are under no obligation to assist the defence.

46                            Lamer C.J. and Sopinka J. held that the threshold of likely relevance at this first stage is not a significant or onerous burden.  It is meant to prevent requests for production that are “speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming” (para. 24). Although Lamer C.J. and Sopinka J. disagreed with L’Heureux-Dubé J. that therapeutic records are rarely relevant to the accused, they declined to set out “categories of relevance” (para. 27).

47                            If the first stage is passed, the record is disclosed to the court and the application for production moves onto the second stage where the judge determines whether the record should be produced to the accused.  At this second stage, Lamer C.J. and Sopinka J. require the trial judge to balance the competing interests in order to determine whether a non-production order would be a reasonable limit on the accused’s ability to make full answer and defence.  They list a series of factors that trial judges should consider in making this determination (at para. 31):

(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question.

Although L’Heureux-Dubé J., for the minority on this issue, outlined the same five factors as the majority, she also included two additional factors: the integrity of the trial process and the societal interest in reporting sexual crimes. Lamer C.J. and Sopinka J. held that the former is better dealt with when determining admissibility of the evidence and that the latter, while a relevant factor, was “not a paramount consideration” as there are many other avenues open to the trial judge to protect this interest than declining production (at paras. 32 and 33).

(b)  Bill C-46

48                            On May 12, 1997, approximately 17 months after this Court released its decision in O’Connor, Bill C-46 came into force.  Bill C-46 sets out a process to govern the production of the private records of complainants and witnesses in sexual assault trials in place of the common law regime this Court established in O’Connor.  The preamble to the Bill indicates that Parliament was concerned about the incidence of sexual violence and abuse in Canadian society, its prevalence against women and children, and its “particularly disadvantageous impact on the equal participation of women and children in society and on the rights of women and children to security of the person, privacy and equal benefit of the law as guaranteed by sections 7, 8, 15 and 28 of the [Charter ]”.  The preamble expressly declares that Parliament seeks to provide a framework of laws that are fair to and protect the rights of both accused persons and complainants.

49                            While the Bill retains the two-stage structure set out in O’Connor, there are significant differences between the two regimes.  Many of these are uncontentious.  In the following overview of the Bill, we expound on only the provisions brought under review in this appeal.

50                            Bill C-46 begins by defining the records to which it applies: “any form of record that contains personal information for which there is a reasonable expectation of privacy”, excluding investigatory or prosecutorial records: s. 278.1. It goes on to define the types of offences that will trigger its application: s. 278.2(1).  Generally, these are sexual assault and similar sexual offences.  Section 278.2(1) states that an accused person charged with these offences cannot obtain the records relating to complainants or witnesses covered by s. 278.1, except in accordance with the process set out by the Bill.

51                            A third preliminary section, s. 278.2(2), states that the Bill applies to records in the possession or control of any person, including the Crown prosecutor, unless the complainant or witness “has expressly waived the application of [the Bill]”.  Absent waiver, documents in the possession of the prosecution are treated in the same manner as documents in the hands of a private individual or organization and therefore  are subject to disclosure pursuant to the Bill’s procedures. 

52                            Yet another preliminary provision sets out “assertions” that are “not sufficient on their own” on an application for production to establish that a record is “likely relevant to an issue at trial or to the competence of a witness to testify”: s. 278.3(4). 

53                            This brings us to the heart of the Bill – the process established to govern the production of private records to an accused person in sexual offence proceedings.  Like O’Connor, Parliament has set up a two-stage process: (1) disclosure to the judge; and (2) production to the accused.  At the first stage, the accused must establish that the record sought is “likely relevant to an issue at trial or to the competence of a witness to testify” and that “the production of the record is necessary in the interests of justice” (s. 278.5(1)).  Bill C-46 diverges from O’Connor by directing the trial judge to consider the salutary and deleterious effects of production to the court on the accused’s right to full answer and defence and the complainant’s or witness’s right to privacy and equality.  A series of factors is listed that the trial judge is directed to take into account in deciding whether the document should be produced to the court (s. 278.5(2)):

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society’s interest in encouraging the reporting of sexual offences;

(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process. 

54                            If the requirements of this first stage are met, the record will be ordered produced to the trial judge.  At the second stage, the judge looks at the record in the absence of the parties (s. 278.6(1)), holds a hearing if necessary (s. 278.6(2)), and determines whether the record should be produced on the basis that it is “likely relevant to an issue at trial or to the competence of a witness to testify” and that its production is “necessary in the interests of justice” (s. 278.7).  Again at this stage, the judge must consider the salutary and deleterious effects on the accused’s right to make full answer and defence and on the right to privacy and equality of the complainant or witness, and is directed to “take into account” the factors set out at s. 278.5(2): s. 278.7(2). When ordering production, the judge may impose conditions on production: s. 278.7(3).

55                            The respondent and several supporting interveners argue that Bill C-46 is unconstitutional to the extent that it establishes a regime for production that differs from or is inconsistent with that established by the majority in O’Connor.  However, it does not follow from the fact that a law passed by Parliament differs from a regime envisaged by the Court in the absence of a statutory scheme, that Parliament’s law is unconstitutional.  Parliament may build on the Court’s decision, and develop a different scheme as long as it remains constitutional.  Just as Parliament must respect the Court’s rulings, so the Court must respect Parliament’s determination that the judicial scheme can be improved.  To insist on slavish conformity would belie the mutual respect that underpins the relationship between the courts and legislature that is so essential to our constitutional democracy: Vriend, supra.  We turn now to a brief discussion of that relationship.

(2)  Relationship Between the Courts and the Legislature Generally

56                            A posture of respect towards Parliament was endorsed by this Court in Slaight Communications, supra, at p. 1078, where we held that if legislation is amenable to two interpretations, a court should choose the interpretation that upholds the legislation as constitutional. Thus courts must presume that Parliament intended to enact constitutional legislation and strive, where possible, to give effect to this intention.

57                            This Court has also discussed the relationship between the courts and the legislature in terms of a dialogue, and emphasized its importance to the democratic process.  In Vriend, supra, at para. 139, Iacobucci J. stated:

To my mind, a great value of judicial review and this dialogue among the branches is that each of the branches is made somewhat accountable to the other. The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33  of the Charter ). This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.

See also P. W. Hogg and A. A. Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J. 75. If the common law were to be taken as establishing the only possible constitutional regime, then we could not speak of a dialogue with the legislature. Such a situation could only undermine rather than enhance democracy. Legislative change and the development of the common law are different. As this Court noted in R. v. Salituro, [1991] 3 S.C.R. 654, at p. 666, the common law changes incrementally, “while complex changes to the law with uncertain ramifications should be left to the legislature”.  While this dialogue obviously is of a somewhat different nature when the common law rule involves interpretation of the Charter , as in O’Connor, it remains a dialogue nonetheless.

58                            Moreover, in this Court’s recent decision Reference re Secession of Quebec, [1998] 2 S.C.R. 217,  we affirmed the proposition that constitutionalism can facilitate democracy rather than undermine it, and that one way in which it does this is by ensuring that fundamental human rights and individual freedoms are given due regard and protection (at paras. 74-78). Courts do not hold a monopoly on the protection and promotion of rights and freedoms; Parliament also plays a role in this regard and is often able to act as a significant ally for vulnerable groups. This is especially important to recognize in the context of sexual violence. The history of the treatment of sexual assault complainants by our society and our legal system is an unfortunate one. Important change has occurred through legislation aimed at both recognizing the rights and interests of complainants in criminal proceedings, and debunking the stereotypes that have been so damaging to women and children, but the treatment of sexual assault complainants remains an ongoing problem. If constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament’s attempt to respond to such voices.

59                            Parliament has enacted this legislation after a long consultation process that included a consideration of the constitutional standards outlined by this Court in O’Connor. While it is the role of the courts to specify such standards, there may be a range of permissible regimes that can meet these standards. It goes without saying that this range is not confined to the specific rule adopted by the Court pursuant to its competence in the common law. In the present case, Parliament decided  that legislation was necessary in order to address the issue of third party records more comprehensively. As is evident from the language of the preamble to Bill C-46, Parliament also sought to recognize the prevalence of sexual violence against women and children and its disadvantageous impact on their rights, to encourage the reporting of incidents of sexual violence, to recognize the impact of the production of personal information on the efficacy of treatment, and to reconcile fairness to complainants with the rights of the accused. Many of these concerns involve policy decisions regarding criminal procedure and its relationship to the community at large. Parliament may also be understood to be recognizing “horizontal” equality concerns, where women’s inequality results from the acts of other individuals and groups rather than the state, but which nonetheless may have many consequences for the criminal justice system. It is perfectly reasonable that these many concerns may lead to a procedure that is different from the common law position but that  nonetheless meets the required constitutional standards.

60                            We cannot presume that the legislation is unconstitutional simply because it is different from the common law position. The question before us is not whether Parliament can amend the common law; it clearly can. The question before us is whether in doing so Parliament has nonetheless outlined a constitutionally acceptable procedure for the production of private records of complainants in sexual assault trials.  This question is considered at length below, following the discussion of the constitutional rights at stake in this appeal. 

(3)  Tensions Among Full Answer and Defence, Privacy, and Equality

(a)  Balancing Interests and Defining Rights

61                            At play in this appeal are three principles, which find their support in specific provisions of the Charter .  These are full answer and defence, privacy, and equality. No single principle is absolute and capable of trumping the others; all must be defined in light of competing claims. As Lamer C.J. stated in Dagenais, supra, at p. 877: “When the protected rights of two individuals come into conflict . . . Charter  principles require a balance to be achieved that fully respects the importance of both sets of rights.”  This illustrates the importance of interpreting rights in a contextual manner -- not because they are of intermittent importance but because they often inform, and are informed by, other similarly deserving rights or values at play in particular circumstances.

62                            The respondent’s right to liberty under s. 7  of the Charter  is engaged because he faces the possibility of imprisonment.  The question therefore becomes whether the procedure outlined in ss. 278.1  to 278.91  of the Criminal Code  violates the principles of fundamental justice.  To answer this we must determine what the relevant rights are. First of all, the denial of the accused’s ability to make full answer and defence implicates s. 7.  An unreasonable search and seizure of a complainant’s records, however, violates the complainant’s right to privacy protected under s. 8.  As this Court made clear in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 502, both of these rights are instances of the “principles of fundamental justice” enshrined in s. 7.  Insofar as the rights at stake all fall within ss. 7 to 14, the “principles of fundamental justice” provide a useful context for defining these rights in light of each other.

63                            Considered in the abstract, these principles of fundamental justice may seem to conflict.  The conflict is resolved by considering conflicting rights in the factual context of each particular case.  Therefore, we do not say that a complainant’s right to be free from an unreasonable search and seizure may be justifiably infringed by the accused’s right to make full answer and defence or vice versa.  Rather, part of what defines both a reasonable search or seizure and full answer and defence is a full appreciation of these principles of fundamental justice as they operate within a particular context.

64                            Moreover, a full interpretation and discussion of these principles will implicate other Charter  rights such as equality and security of the person.  When the rights involved are outside of ss. 7 to 14, resort to the principles of fundamental justice will of course not be sufficient to resolve the question.  However, it will not change   the analysis.  Whether or not all the rights involved are “principles of fundamental justice”, Charter  rights must always be defined contextually.

65                            It is also important to distinguish between balancing the principles of fundamental justice under s. 7 and balancing interests under s. 1  of the Charter . The s. 1 jurisprudence that has developed in this Court is in many respects quite similar to the balancing process mandated by s. 7. As McLachlin J. stated for the Court in Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 152, regarding the latter: “The . . . question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused’s interests and the interests of society.” Much the same could be said regarding the central question posed by s. 1.

66                            However, there are several important differences between the balancing exercises under ss. 1 and 7. The most important difference is that the issue under s. 7 is the delineation of the boundaries of the rights in question whereas under s. 1 the question is whether the violation of these boundaries may be justified. The different role played by ss. 1 and 7 also has important implications regarding which party bears the burden of proof. If interests are balanced under s. 7 then it is the rights claimant who bears the burden of proving that the balance struck by the impugned legislation violates s. 7.  If interests are balanced under s. 1 then it is the state that bears the burden of justifying the infringement of the Charter  rights.

67                            Because of these differences, the nature of the issues and interests to be balanced is not the same under the two sections. As Lamer J. (as he then was) stated in  Re B.C. Motor Vehicle Act, supra, at p. 503: “the principles of fundamental justice are to be found in the basic tenets of our legal system”.  In contrast, s. 1 is concerned with the values underlying a free and democratic society, which are broader in nature. In R. v. Oakes, [1986] 1 S.C.R. 103, Dickson C.J. stated, at p. 136, that these values and principles “embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society”.  In R. v.  Keegstra, [1990] 3 S.C.R. 697, at p. 737, Dickson C.J. described such values and principles as “numerous, covering the guarantees enumerated in the Charter  and more”.

68                            Keeping these differences in mind, the first question to ask is how to define full answer and defence, privacy, and equality in this context, and not how they may be justifiably limited.  We therefore now turn to a more detailed consideration of these rights and their animating principles.

(b)  Nature of the Charter Principles

(i)  Full Answer and Defence

69                            It is well established that the ability of the accused to make full answer and defence is a principle of fundamental justice protected by s. 7: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505.  Full answer and defence  is also linked to other principles of fundamental justice “such as the presumption of innocence, the right to a fair trial, and the principle against self-incrimination”: R. v. Rose, [1998] 3 S.C.R. 262, per Cory, Iacobucci and Bastarache JJ., at para. 98.  Many of these principles of fundamental justice are informed by the legal rights outlined in ss. 8  to 14  of the Charter :  Re B.C. Motor Vehicle Act, supra; R. v. CIP Inc., [1992] 1 S.C.R. 843.  Indeed, in R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 603, the majority of this Court recognized that both s. 7 and the guarantee of a right to a fair trial enshrined in s. 11(d) are “inextricably intertwined” and protect a right to full answer and defence.

70                            Indeed, this Court recognized in Stinchcombe, supra, that non-disclosure of relevant information by the Crown can seriously erode the right to make full answer and defence and carries with it the very real threat of convicting an innocent person.  Sopinka J. noted, at p. 336, that the Royal Commission on the Donald Marshall, Jr., Prosecution found that the Crown’s failure to disclose prior inconsistent statements played a key role in the miscarriage of justice that occurred in that case, prompting the Commissioners to recommend that “anything less than complete disclosure by the Crown falls short of decency and fair play” (see Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations (1989), at p. 238).

71                            Our jurisprudence has recognized on several occasions “the danger of placing the accused in a ‘Catch-22’ situation as a condition of making full answer and defence”: O’Connor, supra, at para. 25; see also Dersch, supra, at pp. 1513-14; R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1463-64; Carey v. Ontario, [1986] 2 S.C.R. 637; R. v. Durette, [1994] 1 S.C.R. 469.  This is an important consideration in the context of records production as often the accused may be in the difficult position of making submissions regarding the importance to full answer and defence of records that he or she has not seen. Where the records are part of the case to meet, this concern is particularly acute as such a situation very directly implicates the accused’s ability to raise a doubt concerning his or her innocence.  As the Court stated in R. v. Leipert, [1997] 1 S.C.R. 281, at para. 24, “[t]his Court has consistently affirmed that it is a fundamental principle of justice, protected by the Charter , that the innocent must not be convicted”.  Where the records to which the accused seeks access are not part of the case to meet, however, privacy and equality considerations may require that it be more difficult for accused persons to gain access to therapeutic or other records.

72                            That said, the principles of fundamental justice do not entitle the accused to "the most favourable procedures that could possibly be imagined": R. v. Lyons, [1987] 2 S.C.R. 309, per La Forest J., at p. 362. This is because fundamental justice embraces more than the rights of the accused. For example, 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: R. v. E. (A.W.), [1993] 3 S.C.R. 155, per Cory J., at p. 198.  In a similar vein, McLachlin J., in Seaboyer, supra, at p. 603, stated:

The principles of fundamental justice reflect a spectrum of interests, from the rights of the accused to broader societal concerns. Section 7 must be construed having regard to those interests and “against the applicable principles and policies that have animated legislative and judicial practice in the field” (Beare, [[1988] 2 S.C.R. 387], at pp. 402-3 per La Forest J.). The ultimate question is whether the legislation, viewed in a purposive way, conforms to the fundamental precepts which underlie our system of justice.

She concluded, at p. 606, that  “the avoidance of unprobative and misleading evidence, the encouraging of reporting and the protection of the security and privacy of the witnesses” conform to these fundamental precepts.

73                            This spectrum of interests reflected in the principles of fundamental justice highlights the need to avoid viewing any particular principle in isolation from the others. As La Forest J. stated in R. v. Harrer, [1995] 3 S.C.R. 562, at para. 14:

As in other cases involving broad concepts like "fairness" and "principles of fundamental justice", one is not engaged in absolute or immutable requirements; these concepts vary with the context in which they are invoked; see Lyons, at p. 361. Specifically here, one is engaged in a delicate balancing to achieve a just accommodation between the interests of the individual and those of the state in providing a fair and workable system of justice; see my remarks in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 539.

See also Cunningham, supra, at p. 152. The ability to make full answer and defence, as a principle of fundamental justice, must therefore be understood in light of other principles of fundamental justice which may embrace interests and perspectives beyond those of the accused.

74                            One example is society’s interest in having the trial process arrive at the truth. Accordingly, this Court has held that full answer and defence does not entitle the accused to admit at trial all evidence that tends to prove his or her innocence irrespective of the ordinary rules governing admissibility of evidence, such as the hearsay exclusion: Dersch, supra, at p. 1515.  In Seaboyer, supra, at pp. 609 et seq., McLachlin J. stated that the underlying principle of many such exclusionary rules is that they disclose circumstances where the potential prejudice to the fact-finding process of the evidence to be admitted outweighs its probative value. Similarly, the accused has never had a right to irrelevant evidence. In other words, the accused is not permitted to distort the truth-seeking function of the trial process.

75                            The foregoing considerations do not mean that the accused’s right to make full answer and defence is automatically breached where he or she is deprived of relevant information. As this Court outlined in R. v. La, [1997] 2 S.C.R. 680, at para. 25, where the claim is based on lost evidence, “the accused must establish actual prejudice to his or her right to make full answer and defence”.  Other public interests may similarly limit the accused’s ability to gain access to potentially relevant information. This is clear from Stinchcombe, supra, where this Court held that the Crown’s disclosure obligation is subject to a privilege exception.  Similarly, our law has long recognized the importance of protecting the identity of police informers through an informer privilege, subject to the “innocence at stake” exception: see Marks v. Beyfus (1890), 25 Q.B.D. 494 (C.A.); R. v. Scott, [1990] 3 S.C.R. 979; Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 93; Leipert, supra, at p. 295.

76                            Several principles regarding the right to make full answer and defence emerge from the preceding discussion.  First, the right to make full answer and defence is crucial to ensuring that the innocent are not convicted. To that end, courts must consider the danger of placing the accused in a Catch-22 situation as a condition of making full answer and defence, and will even override competing considerations in order to protect the right to make full answer and defence in certain circumstances, such as the “innocence at stake” exception to informer privilege. Second, the accused’s right must be defined in a context that includes other principles of fundamental justice and Charter  provisions. Third, full answer and defence does not include the right to evidence that would distort the search for truth inherent in the trial process.

(ii)  Privacy

77                            Since Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court has recognized that s. 8  of the Charter  protects a person’s reasonable expectation of privacy. This right is relevant to the present appeal, as an order for the production of documents is a seizure within the meaning of s. 8  of the Charter  (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627), as is the power to make copies of documents (Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406).  Therefore, an order for the production of records made pursuant to ss. 278.1  to 278.91  of the Criminal Code , falls within the ambit of s. 8.

78                            Section 278.1  of the Criminal Code  defines the records apposite to ss. 278.2 to 278.9 as:

. . . any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

Therefore, if a record does not contain information regarding which there is a reasonable expectation of privacy, then it is not subject to the impugned provisions governing production.

79                            This Court has most often characterized the values engaged by privacy in terms of liberty, or the right to be left alone by the state. For example, in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427, La Forest J. commented that “privacy is at the heart of liberty in a modern state”. In R. v. Edwards, [1996] 1 S.C.R. 128, at para. 50, per Cory J., privacy was characterized as including “[t]he right to be free from intrusion or interference”.

80                            This interest in being left alone by the state includes the ability to control the dissemination of confidential information. As La Forest J. stated in R. v. Duarte, [1995] 1 S.C.R. 30, at pp. 53-54:

. . . it has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society. Yates J., in Millar v. Taylor (1769), 4 Burr. 2303, 98 E.R. 201, states, at p. 2379 and p. 242:

It is certain every man has a right to keep his own sentiments, if he pleases: he has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends.

These privacy concerns are at their strongest where aspects of one’s individual identity are at stake, such as in the context of information “about one’s lifestyle, intimate relations or political or religious opinions”: Thomson Newspapers, supra, at p. 517, per La Forest J., cited with approval in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, at para. 62.

81                            The significance of these privacy concerns should not be understated.  Many commentators have noted that privacy is also necessarily related to many fundamental human relations. As C. Fried states in “Privacy” (1967-68), 77 Yale L.J. 475, at pp. 477-78:

To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust and affection is at the heart of our notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions, as oxygen is for combustion.

See also D. Feldman, “Privacy-related Rights and their Social Value”, in P. Birks, ed., Privacy and Loyalty (1997), 15, at pp. 26-27, and J. Rachels, “Why Privacy Is Important” (1975), 4 Philosophy & Public Affairs 323.  This Court recognized these fundamental aspects of privacy in R. v. Plant, [1993] 3 S.C.R. 281, where Sopinka J., for the majority, stated, 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.  [Emphasis added.]

82                            That privacy is essential to maintaining relationships of trust was stressed to this Court by the eloquent submissions of many interveners in this case regarding  counselling records. The therapeutic relationship is one that is characterized by trust, an element of which is confidentiality. Therefore, the protection of the complainant’s reasonable expectation of privacy in her therapeutic records protects the therapeutic relationship.

83                            Confidential relationships have a long history of being protected through the common law doctrine of privilege. The “Wigmore test” sets out the generally accepted  criteria for determining whether, in a particular case, the communications at issue should be privileged and therefore excluded as evidence at trial (Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), §2285, at p. 527).  See M. (A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 20.

84                            Of course, where state action is implicated, and competing Charter  rights are at stake such as in the present appeal, a common law test like Wigmore’s will not be sufficient. We therefore advocate a different approach to balancing interests from that found in the Wigmore test for privilege. However, we accept that confidential relationships may be protected under s. 8  of the Charter .

85                            Many interveners in this case pointed out that the therapeutic  relationship has important implications for the complainant’s psychological integrity. Counselling 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 complainant’s willingness to report crime or deter him or her from counselling altogether. In our view, such concerns indicate that the protection of the therapeutic relationship protects the mental integrity of complainants and witnesses. This Court has on several occasions recognized that security of the person is violated by state action interfering with an individual’s mental integrity: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at paras. 58-60; Mills v. The Queen, [1986] 1 S.C.R. 863, at pp. 919-20, per  Lamer J.;  Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1177, per Lamer J.; R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 55-56, per Dickson C.J., and p. 173, per Wilson J. Therefore, in cases where a therapeutic relationship is threatened by the disclosure of private records, security of the person and not just privacy is implicated.

86                            Despite the importance of the interests protected by privacy, this right may be limited; a reasonable search or seizure is permitted by s. 8  of the Charter . In Hunter v. Southam, supra, Dickson J. stated, for the Court, at pp. 159-60, that the limitation on the right guaranteed by s. 8

indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.

This balance of interests is not to be assessed ex post facto. Thus, where feasible, a search or seizure requires prior authorization. Such authorization is to be provided by an individual who is capable of acting judicially, and who must assess the balance of interests at stake. As Dickson J. stated, at pp. 167-68:

The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where  the state’s interests is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one.

Therefore, the appropriateness of the balance is assessed according to the nature of the interests at stake in a particular context, and the place of these interests within our legal and political traditions.

87                            The present appeal asks how to define the privacy rights of third parties in light of the accused’s right to gain access to evidence in order to make full answer and defence. As the right to make full answer and defence is a principle of fundamental justice protected by s. 7  of the Charter , it is helpful to explore the connection between ss. 7  and 8  of the Charter .  In Re B.C. Motor Vehicle Act, supra, at p. 502, Lamer J. stated for the majority:

Sections 8 to 14, in other words, address specific deprivations of the “right” to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7. It would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14.

Of course, later cases have held that the text of the Charter  supports some differences between ss. 7 and 8. For example, s. 8 applies to corporations whereas s. 7 does not: Hunter v. Southam, supra; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.  In CIP Inc., supra, at p. 854, this Court held that the concern that there be no incongruity between ss. 7 and 8-14 related to the principles of fundamental justice and not to the scope of life, liberty and security of the person.

88                            Given that s. 8 protects a person’s privacy by prohibiting unreasonable searches or seizures, and given that s. 8 addresses a particular application of the principles of fundamental justice, we can infer that a reasonable search or seizure is consistent with the principles of fundamental justice. Moreover, as we have already discussed, the principles of fundamental justice include the right to make full answer and defence. Therefore, a reasonable search and seizure will be one that accommodates both the accused’s ability to make full answer and defence and the complainant’s privacy right.

89                            From our preceding discussion of the right to make full answer and defence, it is clear that the accused will have no right to the records in question insofar as they contain information that is either irrelevant or would serve to distort the search for truth, as access to such information is not included within the ambit of the accused’s right. In this regard, it is important to note that several interveners before this Court stressed the importance of understanding the context in which therapeutic records are made and their potential unreliability as a factual account of an event. However, the accused’s right must prevail where the lack of disclosure or production of the record would render him unable to make full answer and defence. This is because our justice system has always held that the threat of convicting an innocent individual strikes at the heart of the principles of fundamental justice. However, between these extremes lies a spectrum of possibilities regarding where to strike a balance between these competing rights in any particular context. The values protected by privacy rights will be most directly at stake where the confidential information contained in a record concerns aspects of one’s individual identity or where the maintenance of confidentiality is crucial to a therapeutic, or other trust-like, relationship.

(iii)  Equality

90                            Equality concerns must also inform the contextual circumstances in which the rights of full answer and defence and privacy will come into play. In this respect, an appreciation of myths and stereotypes in the context of sexual violence is essential to delineate properly the boundaries of full answer and defence. As we have already discussed, the right to make full answer and defence does not include the right to information that would only distort the truth-seeking goal of the trial process. In R. v. Osolin, [1993] 4 S.C.R. 595, Cory J., for the majority on this issue, stated, at pp. 669-70:

The provisions of ss. 15  and 28  of the Charter  guaranteeing equality to men and women, although not determinative should be taken into account in determining the reasonable limitations that should be placed upon the cross-examination of a complainant. . . . A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system. . . .

The reasons in Seaboyer make it clear that eliciting evidence from a complainant for the purpose of encouraging inferences pertaining to consent or the credibility of rape victims which are based on groundless myths and fantasized stereotypes is improper.

The accused is not permitted to “whack the complainant” through the use of stereotypes regarding victims of sexual assault.

91                            In addition, an appreciation of the equality dimensions of records production in cases concerning sexual violence highlights the need to balance privacy and full answer and defence in a manner that fully respects the privacy interests of complainants. McLachlin J. made this clear in M. (A.) v. Ryan, supra, at para. 30, while  discussing the interests at stake in determining whether counselling records were privileged or should be produced in a civil action for damages allegedly caused by sexual assault:

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.

92                            When the boundary between privacy and full answer and defence is not properly delineated, the equality of individuals whose lives are heavily documented is also affected, as these individuals have more records that will be subject to wrongful scrutiny.  K. Busby cautions that the use of records to challenge credibility at large

will subject those whose lives already have been subject to extensive documentation to extraordinarily invasive review. This would include women whose lives have been documented under conditions of multiple inequalities and institutionalization such as Aboriginal women, women with disabilities, or women who have been imprisoned or involved with child welfare agencies.

(“Discriminatory Uses of Personal Records in Sexual Violence Cases” (1997), 9 C.J.W.L.148, at pp. 161-62.)

93                            These concerns highlight the need for an acute sensitivity to context when determining the content of the accused’s right to make full answer and defence, and its relationship to the complainant’s privacy right.

(c)  Summary

94                            In summary, the following broad considerations apply to the definition of the rights at stake in this appeal.  The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses.  Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses.  It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount.  On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.  Most cases, however, will not be so clear, and in assessing applications for production, courts must determine the weight to be granted to the interests protected by privacy and full answer and defence in the particular circumstances of each case. Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high. A complainant’s privacy interest is very high where the confidential information contained in a record concerns the complainant’s personal identity or where the confidentiality of the record is vital to protect a therapeutic relationship.

95                            With this background in mind, we now proceed to discuss the statutory provisions under attack.

D.  Analysis of Sections 278.1 to 278.91 of Bill C-46

96                            In enacting Bill C-46, Parliament was concerned with preserving an accused’s access to private records that may be relevant to an issue on trial, while protecting the right to privacy of complainants and witnesses to the greatest extent possible.  Notwithstanding Parliament’s good intentions, the respondent suggests that Bill C-46 violates the constitutional right of the accused to a fair trial and full defence on a number of grounds.  We will consider each in turn. 

(1)  The Definition of Documents Subject to the Legislation: Sections 278.1 and 278.2(1)

97                            An initial issue to address is the definition of documents subject to the legislation.  Pursuant to ss. 278.1 and 278.2(1), the Bill applies to all records of complainants and witnesses in sexual offence proceedings containing “personal information for which there is a reasonable expectation of privacy”, including “medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature”.

98                            Belzil J., for the court below, found that the definition of records under the Bill is “extremely broad” (para. 47) and that the Bill therefore accords legislative protection to records not contemplated under O’Connor.  The broader scope of the legislation, he held, imposes a significant burden on accused persons by requiring them to proceed with an application, supported by affidavits, for each different type of record listed.  Belzil J. considered the greater reach of the Bill to be one of five significant differences between the Bill and O’Connor which led him to conclude that the Bill as a whole was unconstitutional. 

99                            The response to these claims is to remember that the legislation applies only to records “for which there is a reasonable expectation of privacy” (s. 278.1 (emphasis added)). Only documents that truly raise a legally recognized privacy interest are caught and protected: see R. v. Regan (1998), 174 N.S.R. (2d) 230 (S.C.).  The Bill is therefore carefully tailored to reflect the problem Parliament was addressing  –  how to preserve an accused’s access to private records that may be relevant to an issue on trial while protecting, to the greatest extent possible, the privacy rights of the subjects of such records, including both complainants and witnesses.  By limiting its coverage to records in which there is a reasonable expectation of privacy, the Bill is consistent with the definition of s. 8 privacy rights discussed above.  Moreover, as will be discussed below, the mere fact that records are within the ambit of Bill C-46 will not, in itself, prevent the accused from obtaining access to them.  Applied in this way, ss. 278.1 and 278.2(1) will not catch more records than they should, and are not overly broad.

100                        It must also be remembered that the definition of records in ss. 278.1 and  278.2(1) simply establishes the starting point for the analysis proposed by the Bill.  Documents falling within the ambit of these provisions, after being subject to the legislative regime, may or may not be ordered to be disclosed to the accused.  It is therefore the procedures established by the Bill and not the spectrum of records subject to these procedures that will determine the fairness or constitutionality of the legislation. If the legislative regime fairly provides access to all constitutionally required documents, then the spectrum of records brought under the Bill, if in keeping with the Bill’s objectives, cannot be challenged.

101                        The broad scope of Bill C-46 has also been challenged as imposing an excessive burden on judicial resources.  However, the Bill safeguards the efficiency and resources of the judicial system while furthering its objective of protecting, to the greatest extent possible, the rights of all those involved in sexual offence proceedings, by mandating that judges can only review the records in question once these records have been established as likely relevant and their production to the court has been established as necessary in the interests of justice.  The balancing process required at the first stage ensures that records are not needlessly or casually produced to the court for review: see O’Connor, supra, at para. 152, per L’Heureux-Dubé J.  Moreover, as many interveners have pointed out, production of records to the court had become almost routine in sexual assault cases.  It is unlikely that Bill C-46's procedures will be substantially more onerous on judicial resources.  Finally, Parliament, with the benefit of a full legislative inquiry, has ruled on such questions of administrative convenience.  We see no reason to disturb its conclusion.  If the system proves unworkable in practice, then Parliament, not this Court, is better positioned to fix it.

(2)  Third Party Records in the Possession of the Crown:  Sections 278.2(2) and (3)

102                        The next provision at issue extends the application of the legislative regime for the production of private records to records “in the possession or control of any person”, including the Crown: s. 278.2(2).

103                        Where private records are in the possession or control of the Crown two important variations on the regime for production exist.  First, the legislative regime does not apply if the complainant or witness has expressly waived the protections of the Bill (s. 278.2(2)).  Second, s. 278.2(3) requires the prosecutor to notify the accused of any records in the Crown’s possession.

104                        The respondent objects to the fact that this provision prevents the automatic disclosure of all relevant and non-privileged information in the possession of the Crown.  He submits that this is contrary to the constitutional obligation upon the Crown set out in Stinchcombe, and is inconsistent with this Court’s conclusion in O’Connor that “the Crown’s disclosure obligations established in the Stinchcombe decision are unaffected by the confidential nature of therapeutic records” (para. 13, per Lamer C.J. and Sopinka J.).  The respondent also argues that s. 278.2(2) gives the Crown an unfair advantage in that only the accused is subject to the legislative regime.  The Crown can obtain private records through the complainant directly or through the power of a search warrant.  The Bill not only exempts the Crown from the obligation to comply with the legislation regime when seeking private records, but also allows the Crown to possess information that the defence does not have.

105                        The first response to the respondent’s argument is that it is  premature.   Section 278.2 simply defines the scope of the legislation.  It does not by itself deny access to documents to which the defence is constitutionally entitled.  If the procedures set out in the sections that follow fairly provide access to all constitutionally required documents, then the accused has no constitutional complaint.

106                        Second, the argument that this provision contradicts Stinchcombe and  O’Connor rests on an overstatement of the Crown obligation to disclose that was affirmed in those cases.  It is true that Stinchcombe spoke of a duty on the Crown to disclose to the defence all relevant documents in the Crown’s possession, subject to privilege.  Privacy interests, however, were not at issue in Stinchcombe.  In O’Connor, the Court considered the Crown’s obligation to disclose private records in the context of sexual offence proceedings where the complainant has made an informed waiver of her privacy rights.  The majority in O’Connor concluded that “the Crown’s well-established duty to disclose all information in its possession is not affected by the confidential nature of therapeutic records”: O’Connor, supra, at para. 7.  This conclusion, however, was premised upon the assumption that the records in the Crown’s possession have been freely and voluntarily surrendered by the complainant or witness: “where the documents in question have been shared with an agent of the state (namely, the Crown), it is apparent that the complainant’s privacy interest in those records has disappeared” (O’Connor, supra, at para 8).  Lamer C.J. and Sopinka J. further found that “fairness must require that if the complainant is willing to release this information in order to further the criminal prosecution, then the accused should be entitled to use the information in the preparation of his or her defence” (O’Connor, supra, at para. 9 (emphasis added)).  Bill C-46 imposes the same waiver rule.  Where a fully informed complainant expressly waives the protection of the legislation, by declaration or by voluntarily providing her records to the Crown, the Bill C-46 procedure does not apply and the records are producible as at common law: s. 278.2(2).  Bill C-46 thus conforms to the constitutional standard of O’Connor.

107                        The respondent argues, however, that O’Connor should not be read as requiring the disclosure of confidential records pursuant to Stinchcombe only in cases of an express waiver and that s. 278.2(2) is unconstitutional.   He asserts that any reasonable expectation of privacy is lost once the records are in the possession of the Crown, regardless of how the records came into the Crown’s possession.  Once in the Crown’s hands, the records become “the property of the public” to be used to ensure that justice is done and must be disclosed pursuant to the common law.   

108                        This argument erroneously equates Crown possession or control with a total loss of any reasonable expectation of privacy.  Privacy is not an all or nothing right.  It does not follow from the fact that the Crown has possession of the records that any reasonable expectation of privacy disappears.  Privacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged,  Dyment, supra, at p. 429.  Where private information is disclosed to individuals outside of those to whom, or for purposes other than for which, it was originally divulged, the person to whom the information pertains may still hold a reasonable expectation of privacy in this information, R. v. Boudreau, [1998] O.J. No. 3526 (QL) (Gen. Div.), at para. 18.   Third party records may fall into the possession of the Crown without the knowledge, consent, or assistance of the complainant or witness.  Where the complainant or witness has not expressly waived her privacy right, Parliament can legitimately take steps to protect those privacy rights.  Such protection is to be found in the procedures for production set out in ss. 278.5 and 278.7 of the Bill.

109                        The O’Connor majority did not address what procedure was to be followed where third party records were in the possession of the Crown without the existence of an express waiver.  It was therefore open to Parliament to fill this void legislatively.  Viewed in this context, s. 278.2(2) ensures that the range of interests triggered by production will be balanced pursuant to the procedure set out in ss. 278.5 and 278.7.  The mere fact that this procedure differs from that set out in Stinchcombe does not, without more, establish a constitutional violation.  As noted, Stinchcombe and O’Connor did not address the situation at issue here, namely, records in the Crown’s possession in which a complainant or witness has a reasonable, and non-waived, expectation of privacy. We are thus returned to our starting point – that s. 278.2 in itself violates no rights and any violation can be determined only by examining its impact in conjunction with ss. 278.5 through 278.8.

110                        When the arguments that s. 278.2 is inconsistent with Stinchcombe and O’Connor are cleared away, the respondent’s fundamental objection to the section emerges – it unfairly favours the Crown.  The Crown can obtain the complainant’s private records through a search warrant or subpoena.  Where the complainant or witness does not expressly waive the protection of the legislation, the accused can get these documents only by applying under the Bill C-46 regime.  If the accused does not succeed, the Crown may possess documents that the accused does not have.  This, it is argued, puts the Crown at an advantage.

111                        All this is true.  But it begs the real question -- is the Crown’s advantage unconstitutional?   In other words, does it deprive the accused of his right to make full answer and defence?  That will be so only if the legislation prevents the accused from getting access to all constitutionally required documents.  There is no principle of fundamental justice that the Crown and defence must enjoy precisely the same privileges and procedures.  See Leipert, supra. The real question is whether the procedures that Parliament has enacted prevent the accused from making full answer and defence.  This is the true meaning of the passage from O’Connor, supra, at para. 34, which states that “[f]airness requires that the accused be treated on an equal footing” with the Crown, which has access to search warrants.  Obviously, the search warrant procedure involves a different array of factors from those that are relevant to production of third party records to the accused.  All that was meant by this passage is that the accused must have a procedure for obtaining evidence that respects all the relevant constitutional rights at stake, just as the prosecution does through the warrant process.  As we will explain below, Bill C-46 is just such a procedure.

112                        In Stinchcombe, this Court acknowledged that the Crown, by virtue of its unique role as agent of the state, has greater access to certain types of information than the accused.  The Court therefore imposed a duty on the Crown to disclose all relevant information to the defence.  The goal behind imposing this duty upon the Crown was not, however, to ensure equivalency of  treatment between the accused and the Crown.  Rather, the duty to disclose was imposed to advance the overall fairness, justice, efficacy, and truth finding elements of criminal proceedings. Since the right to full answer and defence must be defined in light of other principles of fundamental justice, that right is not an absolute one.  Thus, while acknowledging the disparity in access to certain types of information, Sopinka J. conditioned the Crown’s duty to disclose by investing in the Crown a discretion to withhold information where necessary to respect the rules of privilege, to protect persons from harassment or injury, or where this information is clearly irrelevant, at pp. 336 and 339.  Similarly, in O’Connor, supra, at para. 16, Lamer C.J. and Sopinka J. held:

. . . Stinchcombe recognized that, even in the context of disclosure, there are limits on the right of an accused to access information.  For example, when the Crown asserts that the information is privileged, the trial judge must then balance the competing claims at issue.  In such cases, the information will only be disclosed where the trial judge concludes that the asserted privilege “does not constitute a reasonable limit on the constitutional right to make full answer and defence” (Stinchcombe, at p. 340).

Stinchcombe and O’Connor accept that it is constitutionally permissible for the Crown to be subject to different treatment, to different procedures, or even to end up with documents that the accused has not seen, as long as the accused can make full answer and defence and the trial is fundamentally fair.

113                        Furthermore, when addressing the disparity of treatment between defence counsel and the Crown, we must remember the specific problem Bill C-46 was enacted to address.  Through Bill C-46, Parliament sought to preserve an accused’s access to private records that may be relevant to the defence in a sexual offence proceeding while protecting, to the greatest extent possible, the privacy rights of complainants and witnesses.  The context of the Bill is one in which defence counsel were routinely seeking access to the private records of complainants or witnesses in sexual offence proceedings (K. Kelly, “‘You must be crazy if you think you were raped’: Reflections on the Use of Complainants’ Personal and Therapy Records in Sexual Assault Trials” (1997), 9 C.J.W.L. 178; K. Busby, “Third Party Records Cases Since R. v. O’Connor:  A Preliminary Analysis”, a study funded by the Research and Statistics Section, Department of Justice Canada, July 1998.).  As H. Holmes aptly summarizes:

The O’Connor issue arose from new defence intrusion into the rights and interests of third parties.  Defence applications for access to third party records are quite properly motivated only by the accused’s concern to make full answer and defence to the charge.  The Crown, by contrast, is responsible for a larger set of interests including those of third parties and the general public as well as those of the accused.  [Emphasis in original.] 

(“An Analysis of Bill C-46, Production of Records in Sexual Offence Proceedings” (1997), 2 Can. Crim. L.R. 71, at p. 86.)

The greater procedural burden placed on the accused under Bill C-46 reflects the fact that unlike the Crown, the accused bears no responsibility to protect the rights of others.  To protect such rights, when they are threatened by the acts of the accused, greater procedural protections are required. 

114                        The defence concern that it will be unable to obtain records relevant to its defence will be considered in greater detail later.  However, in relation to s. 278.2(2)  it is worth pointing out that Parliament inserted two provisions to offset any unfairness that might flow from the Crown’s being in possession of documents that the defence has not seen.  As discussed above, the first is the provision that if the complainant or witness waives the protection of the legislation, the documents must be disclosed to the defence:  s. 278.2(2).  Waiver should not be read in a technical sense.  Where the complainant or witness, with knowledge that the legislation protects her privacy interest in the records, indicates by words or conduct that she is relinquishing her privacy right, waiver may be found.  Turning records over to the police or Crown, with knowledge of the law’s protections and the consequences of waiving these protections, will constitute an express waiver pursuant to s. 278.2(2).

115                        The second aid to the accused is the requirement in s. 278.2(3) that the prosecutor notify the accused of the private documents in his or her possession.  While the contents are not to be disclosed at this stage, the notification requirement reveals the existence of the record to the accused and allows the accused to make an application for production.  When notifying an accused, the Crown should ensure that information as to date and context are provided so that the documents can be sufficiently identified.  This will help furnish the accused with a basis for arguing that the documents may be relevant to the defence under s. 278.5: see Boudreau, supra, per Ewaschuk J.

116                        We conclude that the fact that s. 278.2 may result in the Crown holding documents that the accused does not possess does not of itself deprive the accused of the right to make full answer and defence. Parliament has balanced the inevitably advantageous documentary position the prosecution enjoys with safeguards to protect the accused’s interest in getting those documents that may be relevant to the defence.  Provided the remainder of Bill C-46 permits the accused to obtain the documents to which the defence is entitled, the fact that the Crown may possess documents that the accused does not, does not vitiate the process.  Section 278.2 is constitutional in that it does not violate ss. 7  or 11( d )  of the Charter .

(3)  The “Insufficient Grounds” Section:  Section 278.3(4)

117                        Section 278.3(4) lists a series of “assertions” that cannot “on their own” establish that a record is likely relevant.  The respondent submits that on a plain reading, this provision prevents the accused from relying on the listed factors when attempting to establish the likely relevance of the records.  This, he argues, interferes with the right to make full answer and defence by restricting what the judge can consider in determining whether the records must be produced to the defence.  The legislation raises the bar for production, he asserts, making it difficult if not impossible for the accused to meet the likely relevance test of ss. 278.5 and 278.7.   The Respondent contends that it is unconstitutional to exclude the assertions listed in s. 278.3(4) as irrelevant.

118                        This submission forgets that when legislation is susceptible to more than one interpretation, we must always choose the constitutional reading.  See Slaight, supra, at p. 1078. This mistake leads the respondent to overstate the purpose and effect of s. 278.3(4).  As has frequently been held, its purpose is to prevent speculative and unmeritorious requests for production: R. v. Hurrie (1997), 12 C.R. (5th) 180 (B.C.S.C.), at paras. 16-17; Boudreau, supra, at para. 6; Regan, supra, at paras. 26-27;  R. v. Stromner (1997), 205 A.R. 385 (Prov. Ct.), at paras. 39-42; R. v. J.F.G., [1997] N.W.T.J. No. 47 (QL) (S.C.), at paras. 27-28.  It does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on bare “assertions” of the listed matters, where there is no other evidence and they stand “on their own”.

119                        As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences.  See Seaboyer, supra, at p. 634. The myths that a woman’s testimony is unreliable  unless she made a complaint shortly after the event (recent complaint), or if she has had previous sexual relations, are but two of the more notorious examples of the speculation that in the past has passed for truth in this difficult area of human behaviour and the law.  The notion that consultation with a psychiatrist is, by itself, an indication of untrustworthiness is a more recent, but equally invidious, example of such a myth.  The purpose of s. 278.3(4) is to prevent these and other myths from forming the entire basis of an otherwise unsubstantiated order for production of private records.

120                        The purpose and wording of s. 278.3 do not prevent an accused from relying on the assertions set out in s. 278.3(4) where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance.   (An exception is “recent complaint” which has been abolished by the jurisprudence and cannot be relied on in any event, quite apart from the section.)   The section requires only that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify: see Leipert, supra, at para.  21.   Conversely, where an accused does provide evidence or information to support an assertion listed in s. 278.3(4), this does not mean that likely relevance is made out.  Section 278.3(4) does not supplant the ultimate discretion of the trial judge.  Where any one of the listed assertions is made and supported by the required evidentiary and informational foundation, the trial judge is the ultimate arbiter in deciding whether the likely relevance threshold set out in ss. 278.5 and 278.7 is met. 

121                        We conclude that s. 278.3(4) does not violate ss. 7  or 11( d )  of the Charter .

(4)  The First Stage -- Production to the Judge:  Sections 278.4 and 278.5

122                        Bill C-46, as noted, contemplates a two-stage procedure for gaining access to documents.  At the first stage, the issue is whether the document should be produced to the judge.  If that stage is passed, the judge looks at the document to determine whether it should be produced to the accused.  Section 278.5 establishes the procedure for production to the judge at the first stage.

123                        Section 278.4 also deals with procedure.  The judge holds the hearing in camera, and may hear witnesses and take submissions.  Witnesses are not, however, compellable, though under s. 278.4(2) they “may appear and make submissions”.  None of the parties or interveners in this appeal directly challenged the non-compellability of witnesses under s. 278.4(2) (though this section falls within the stated constitutional questions, and was addressed by Belzil J.).  We are therefore reluctant to assess its constitutionality.  That said, and without deciding the issue, we would note that the fact that witnesses are not compellable must be viewed in light of the preliminary, investigatory nature of the process at this stage and the other sources upon which the judge can draw in assessing whether the documents may be relevant and whether their production is necessary to the interests of justice, discussed more fully below.  While Stinchcombe affirmed the right of the defence to obtain documents in the possession of the Crown which may be relevant to the defence, it did not suggest that the defence should have the right to examine witnesses on what documents are relevant.  The common law has never compelled witnesses to testify as to records at the investigatory stage, although many inquisitorial, civilian systems do so.  The fact that witnesses are not compellable under s. 278.4(2) is consistent, at the very least, with the common law tradition and with Stinchcombe.  Moreover, as we discuss more fully infra, trial judges retain a broad discretion under s. 278.5(1) to order production.  We must presume that Parliament intended for trial judges to exercise that discretion in a manner consistent with the Charter  principles discussed above.

124                        Both the majority and minority of this Court in O’Connor held that records must be produced to the judge for inspection if the accused can demonstrate that the information is “likely to be relevant”: O’Connor, supra, at para. 19, per Lamer C.J. and Sopinka J., and at para. 138, per L’Heureux-Dubé J.  The Court defined the standard of likely relevance as “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (para. 22 (emphasis in original)). Although the majority recognized that complainants have a constitutional right to privacy (at para. 17), it held that no balancing of rights should be undertaken at the first stage (at para. 24).  This conclusion was premised on the finding that: (1) to require the accused to meet more than the likely relevance stage would be to “put the accused in the difficult situation of having to make submissions to the judge without precisely knowing what is contained in the records” (para. 25); and (2) there is not enough information before a trial judge at this initial stage of production for an informed balancing procedure to take place (at para. 21).  To this end, the majority held that the analysis should be confined to determining “likely relevance” and “whether the right to make full answer and defence is implicated by information contained in the records” (para. 21).  In contrast, the minority held that once the accused meets the “likely relevance” threshold, he must then satisfy the judge that the salutary effects of ordering the documents produced to the court for inspection outweigh the deleterious effects of such production, having regard to the accused’s right to make full answer and defence, and the effect of such production on the privacy and equality rights of the subject of the records (at para. 150).  L’Heureux-Dubé J. found that a sufficient evidentiary basis could be established at this stage through Crown disclosure, defence witnesses, the cross-examination of Crown witnesses at both the preliminary inquiry and the trial and, on some occasions, expert evidence (at para. 146). 

125                        Parliament, after studying the issue, concluded that the rights of both the complainant and the accused should be considered when deciding whether to order production to the judge.  In coming to this conclusion, Parliament must be taken to have determined, as a result of lengthy consultations, and years of Parliamentary study and debate, that trial judges have sufficient evidence to engage in an informed balancing process at this stage.  Parliament began consultations on the production of complainants’ private records in sexual assault cases in June 1994.  The O’Connor decision became a part of that discussion when it was released December 14, 1995, and was subsequently addressed in the consultations which continued until March 1997.  In developing the Bill C-46 production regime, we must therefore remember that Parliament had the benefit of information not available to the Court when it penned O’Connor.  Specifically, Parliament had the advantage of being able to assess how the O’Connor regime was operating.  The record indicates that Parliament received many submissions that under the O’Connor regime, private records were routinely being produced to the court at the first stage, leading to the recurring violation of the privacy interests of complainants and witnesses.  While it is true that little statistical data existed at the time of the drafting of Bill C-46 on the application of O’Connor, it was open to Parliament to give what weight it saw fit to the evidence presented at the consultations.  As a result of the consultation process, Parliament decided to supplement the “likely relevant” standard for production to the judge proposed in O’Connor with the further requirement that production be “necessary in the interests of justice”.  The result was s. 278.5. This process is a notable example of the dialogue between the judicial and legislative branches discussed above.  This Court acted in O’Connor, and the legislature responded with Bill C-46.  As already mentioned, the mere fact that Bill C-46 does not mirror O’Connor does not render it unconstitutional.

126                        Section 278.5(1) requires the accused at the stage of production to a judge to demonstrate not only that the information is “likely relevant” but, in addition, that the production of the record “is necessary in the interests of justice”.  The first requirement takes up the unanimous view in O’Connor that the accused, to get production to the judge, must show that the record is “likely relevant”.  The additional requirement that production to the judge be “necessary in the interests of justice” encompasses (but is not confined to) the concern of the minority in O’Connor that even where likely relevance is shown, there should be room for the court to consider the rights and interests of all those affected by disclosure before documents are ordered disclosed to the court.

127                        Section 278.5(1) is followed by s. 278.5(2) which gives substance to the requirement that trial judges consider the broad range of rights and interests affected before ordering disclosure to the court.  Under this section, a trial judge is required to consider the salutary and deleterious effects of production to the court on the accused’s right to make full answer and defence and on the rights to privacy and equality of the complainant or witness and any other person to whom the record relates.  The section directs the trial judge to “take into account” a series of factors in deciding whether the document should be produced to the court: (a) the extent to which the record is necessary for the accused to make full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society’s interest in encouraging the reporting of sexual offences; (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process. 

128                        The respondent takes no issue with the requirement that the records be established as likely relevant before production to the judge is ordered.  His objection is that the accused must also show that disclosure to the judge is “necessary in the interests of justice”.  He argues that this requires a weighing and balancing of interests that cannot properly be done without reviewing the documents in question.  To this end, s. 278.5 calls upon the trial judge to do the impossible – to weigh competing rights in a vacuum.  The respondent contends that likely relevance should be the only requirement at the stage of deciding whether the judge can see the document.  In  imposing the additional requirement that production be established as “necessary in the interests of justice”, s. 278.5 risks depriving the accused of documents relevant to his defence and hence is unconstitutional.

129                        The question comes down to this: once likely relevance is established, is it necessarily unconstitutional that a consideration of the rights and interests of those affected by production to the court might result in production not being ordered?  The answer to this question depends on whether a consideration of the range of rights and interests affected, in addition to a finding of likely relevance, will ultimately prevent the accused from seeing documents that are necessary to enable him to defend himself – to raise all the defences that might be open to him at trial.  The non-disclosure of third party records with a high privacy interest that may contain relevant evidence will not compromise trial fairness where such non-disclosure would not prejudice the accused’s right to full answer and defence.

130                        Section 278.5(1) is a very wide and flexible section.  It accords the trial judge great latitude.  Parliament must be taken to have intended that judges, within the broad scope of the powers conferred, would apply it in a constitutional manner - a way that would ultimately permit the accused access to all documents that may be constitutionally required.  Indeed, a production regime that denied this would not be production “necessary in the interests of justice”.

131                        The requirement that production be “necessary in the interests of justice”  at this stage refers to whether production to the judge is necessary in the interests of justice.  That is a phrase capable of encompassing a great deal.  It permits the judge to look at factors other than relevancy, like the privacy rights of complainants and witnesses, in deciding whether to order production to himself or herself.  Where the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused’s right to full answer and defence and dismiss the application for production.

132                        However, pursuant to the first factor of s. 278.5(2), the judge must consider the accused’s right to make full answer and defence.  If the judge concludes that it is necessary to examine the documents at issue in order to determine whether they should be produced to enable the accused to make full answer and defence, then production to the judge is “necessary in the interests of justice”.  This answers the argument that s. 278.5(1) may require the judge to decide against production to himself or herself of documents necessary to the defence, and hence foreclose production to the accused in an unconstitutional manner.  If a record is established to be “likely relevant” and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document.  As L’Heureux-Dubé J. stated in O’Connor, supra, at para. 152, “[i]n borderline cases, the judge should err on the side of production to the court”.  The interests of justice require nothing less.

133                        The criterion in s. 278.5 that production must be “necessary in the interests of justice” invests trial judges with the discretion to consider the full range of rights and interests at issue before ordering production, in a manner scrupulously respectful of  the requirements of the Charter ; see: Baron, supra, at p. 442, per Sopinka J.  The fact that the approach set out in s. 278.5 does not accord with O’Connor’s pronouncement, at para. 24, that at the stage of production to the Court, “considerations of privacy should not enter into the analysis”, does not render it unconstitutional.  In O’Connor, the Court was operating in a legislative vacuum, and fashioned what it considered to be the preferred common law rule.  While the rule from that case was of course informed by the Charter , it should not be read as a rigid constitutional template.  As discussed above, the relationship between the courts and legislatures allows a range of constitutional options. While this Court may have considered it preferable not to consider privacy rights at the production stage, that does not preclude Parliament from coming to a different conclusion, so long as its conclusion is consistent with the Charter  in its own right.  As we have explained, the Bill’s directive to consider what is “necessary in the interests of justice”, read correctly, does include appropriate respect for the right to full answer and defence.

134                        This leaves the argument that the judge cannot consider the factors listed in s. 278.5(2) without looking at the documents.  However, s. 278.5(2) does not require that the judge engage in a conclusive and in-depth evaluation of each of the factors.  It rather requires the judge to “take them into account” – to the extent possible at this early stage of proceedings – in deciding whether to order a particular record produced to himself or herself for inspection.  Section 278.5(2) serves as a check-list of the various factors that may come into play in making the decision regarding production to the judge.  Therefore, while the s. 278.5(2) factors are relevant, in the final analysis the judge is free to make whatever order is “necessary in the interests of justice” – a mandate that includes all of the applicable “principles of fundamental justice” at stake. 

135                        Furthermore, contrary to the respondent’s submissions, there is a sufficient evidentiary basis to support such an analysis at this early stage.  This basis can be established through Crown disclosure, defence witnesses, the cross-examination of Crown witnesses at both the preliminary inquiry and the trial, and expert evidence, see: O’Connor, supra, at para. 146, per L’Heureux-Dubé J.  As noted by Taylor J. for the British Columbia Supreme Court, “the criminal process provides a reasonable process for the acquisition of the evidentiary basis”, Hurrie, supra, at para. 39.  To this end, as the Attorney of British Columbia submitted: “Laying the groundwork prior to trial, or comprehensive examination of witnesses at trial, will go a long way to establishing a meritorious application under this legislation.” 

136                        The nature of the records in question will also often provide the trial judge with an important informational foundation.  For example, with respect to the privacy interest in records, the expectation of privacy in adoption or counselling records may be very different from that in school attendance records (see R. v. J.S.P.,  B.C.S.C., Vancouver Registry Nos. CC970130 & CC960237, May 15, 1997).  Similarly, a consideration of the probative value of records can often be informed by the nature and purposes of a record, as well as the record taking practices used to create it.  As noted above, many submissions were made regarding the different levels of reliability of certain records.  Counselling or therapeutic records, for example, can be highly subjective documents which attempt merely to record an individual’s emotions and psychological state.  Often such records have not been checked for accuracy by the subject of the records, nor have they been recorded verbatim.  All of these factors may help a trial judge when considering the probative value of a record being sought by an accused.

137                        The evidentiary foundation of a case, and considerations such as the nature of the records sought and the manner in which these records were taken, will often provide trial judges with sufficient information to be able to “consider” and to “take into account” the factors listed in s. 278.5(2) and to fulfil the requirements of s. 278.5(1).  As a final protection for the accused, the trial judge is always free to make whatever order is “necessary in the interests of justice”.  As discussed above in the context of defining the right to full answer and defence, courts must as a general matter ensure that the accused can obtain all pertinent evidence required to make full answer and defence, and must be wary of the danger of putting the accused in a Catch-22 situation in seeking to obtain such evidence.  Where there is a danger that the accused’s right to make full answer and defence will be violated, the trial judge should err on the side of production to the court.

138                        We conclude that s. 278.5 is constitutional.  The respondent’s argument depends on reading the requirement in s. 278.5(1)(c), that production can only be ordered where “necessary in the interests of justice”, as capable of blocking production even where the accused might constitutionally require access to the documents in question.  A finding of unconstitutionality also hinges on reading s. 278.5(2) as consisting of a check-list of factors and rights to be conclusively assessed and weighed-off against one other.  Such readings, however, cannot stand.  It can never be in the interests of justice for an accused to be denied the right to make full answer and defence and, pursuant to s. 278.5(2) the trial judge is merely directed to “consider” and “take into account” the factors and rights listed.  Where the record sought can be established as “likely relevant”, the judge must consider the rights and interests of all those affected by production and decide whether it is necessary in the interests of justice that he or she take the next step of viewing the documents.  If in doubt, the interests of justice require that the judge take that step.

(5)  Stage Two -- Production to the Accused, Section 278.7: The Consideration of Societal Interests, Sections 278.5(2)(f) and (g), and the Integrity of the Trial  Process, Section 278.5(2)(h)

139                        Once the first hurdle is passed and the records are produced to the judge, the judge must determine whether it is in the interests of justice that they be produced to the defence.  Again the judge must be satisfied that the records are “likely relevant” and that production, this time to the accused, is necessary in the interests of justice.  In making this decision, the judge must once again consider the factors set out in s. 278.5(2).

140                        The respondent accepts that weighing competing interests is appropriate at this second stage of the analysis.  However, the respondent contends that the requirement under s. 278.7(2), that the trial judge take the factors specified in s. 278.5(2)(a) to (h) into account, inappropriately alters the constitutional balance established in O’Connor.  Specifically, the respondent contends that ss. 278.5(2)(f) and (g) elevate the societal interest in encouraging the reporting of sexual offences and encouraging of treatment of complainants of sexual offences, to a status equal to the accused’s right to make full answer and defence.  This, he suggests, alters the constitutional balance established in O’Connor, where the majority specifically determined these factors to be of secondary importance to defence interests in any balancing of competing interests and better taken into account through other avenues. The respondent also contends that s. 278.5(2)(h) unfairly requires trial judges to consider the effect of disclosure on the integrity of the trial process.  The respondent submits that this is a question going to admissibility.

141                        These concerns are largely answered by the analysis advanced under s. 278.5(2), discussed at greater length above.  Trial judges are not required to rule conclusively on each of the factors nor are they required to determine whether  factors relating to the privacy and equality of the complainant or witness “outweigh”  factors relating to the accused’s right to full answer and defence.  To repeat, trial judges are only asked to “take into account” the factors listed in s. 278.5(2) when determining whether production of part or all of the impugned record to the accused is necessary in the interest of justice (s. 278.7(1)).

142                        The respondent argues that the inclusion of the societal interest factors in ss. 278.5(2)(f) and (g) alters the constitutional balance established by the O’Connor majority.  With respect, this argument is unsound.  Lamer C.J. and Sopinka J. explicitly held that such factors were relevant and ought to be “taken into account in weighing the competing interests” (para. 33).  Their concern was solely that such factors not be given controlling weight.  The interpretation of s. 278.5(2) advanced above respects this concern.  Nonetheless, it is worth noting that when considering the factors set out in ss. 278.5(2)(f) and (g), trial judges should acknowledge that such factors will likely arise in every case and may be more readily supported by evidence, and take them into account accordingly.

143                        This leaves the argument that s. 278.5(2)(h) goes to admissibility and that any consideration of it at the stage of production distorts the fairness of the trial.  While the O’Connor majority held that this factor was “more appropriately dealt with at the  admissibility stage”, this conclusion does not amount to a finding that a consideration of this factor at the stage of production would result in unfairness to the accused: see O’Connor, at para. 32.  As noted above, when preparing Bill C-46 Parliament had the advantage of being able to assess how the O’Connor regime was operating.  From the information available to Parliament and the submissions it received during the consultation process, Parliament concluded that the effect of production on the integrity of the trial was a factor that should be included in the list of factors for trial judges to “take into account” at both stages of an application for production.  Several interveners have interpreted this factor as requiring courts to consider, along with the other enumerated factors, whether the search for truth would be advanced by the production of the records in question; that is, the question is whether the material in question would introduce discriminatory biases and beliefs into the fact-finding process.  We agree with this interpretation of the inquiry required by s. 278.5(2)(h) and believe it to be in keeping with the purposes set out in the preamble of the legislation. 

144                        By giving judges wide discretion to consider a variety of factors and requiring them to make whatever order is necessary in the interest of justice at both stages of an application for production, Parliament has created a scheme that permits judges not only to preserve the complainant’s privacy and equality rights to the maximum extent possible, but also to ensure that the accused has access to the documents required to make full answer and defence.

(6)  Timing

145                        Concerns were raised as to how the legislation would work in practice.  One concern was that the application must be made to the trial judge: s. 278.3(1).  This suggests that it may be deferred to the eve of trial or at the trial itself, allowing the accused little time for consideration of whether and how the records may relate to the accused’s defence.  One way of avoiding this is through the early assignment of the trial judge, a common practice in prosecutions of serious criminal offences.  The trial judge may canvas the possibility of applications for production well in advance of the trial, leaving time for follow-up applications if the first is unsuccessful. 

VII. Conclusion and Disposition

146                        In the result we would allow the appeal, set aside the judgments of Belzil J., and uphold the constitutionality of Bill C-46.  We answer the constitutional questions as follows:

1.               Do ss. 278.1  to 278.91  of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer:      No.

2.               If so, is the infringement demonstrably justified in a free and democratic society?

Answer:      Given the answer to question 1, it is not necessary to answer this question.

3.               Do ss. 278.1  to 278.91  of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 11( d )  of the Canadian Charter of Rights and Freedoms ?

Answer:      No.

4.               If so, is the infringement demonstrably justified in a free and democratic society?

Answer:      Given the answer to question 3, it is not necessary to answer this question.

Appeal allowed, Lamer C.J.  dissenting in part.

Solicitors for the appellant L.C.:  Cook Duke Cox, Edmonton.

Solicitor for the appellant the Attorney General for Alberta:  Alberta Justice, Edmonton. 

Solicitors for the respondent:  Edney, Hattersley & Dolphin, Edmonton.

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

Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  The Department of Justice, Sainte-Foy.

Solicitor for the intervener the Attorney General of Nova Scotia:  The Public Prosecution Service (Appeals), Halifax.

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

Solicitor for the intervener the Attorney General of British Columbia:  The Ministry of the Attorney General, Vancouver.

Solicitor for the intervener the Attorney General of Prince Edward Island:  The Attorney General, Charlottetown.

Solicitor for the intervener the Attorney General for Saskatchewan:  The Deputy Attorney General, Regina.

Solicitors for the intervener the Canadian Mental Health Association:  Blake, Cassels & Graydon, Calgary.

Solicitors for the intervener the Canadian Psychiatric Association:  Gowling, Strathy & Henderson, Ottawa.

Solicitors for the intervener the Child and Adolescent Services Association:  Emery Jamieson, Edmonton.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  McCarthy Tétrault, Toronto.

Solicitor for the intervener the Association québécoise des avocats et avocates de la défense:  Guy Cournoyer, Montréal.

Solicitors for the intervener the Women’s Legal Education and Action Fund:  Buchan, Derrick & Ring, Halifax.

Solicitors for the intervener the Canadian Civil Liberties Association:  Tory Tory DesLauriers & Binnington, Toronto.

Solicitors for the intervener the Canadian Council of Criminal Defence Lawyers:  Edelson & Associates, Ottawa.

Solicitors for the intervener the Alberta Association of Sexual Assault Centres:  Evans Martin Wilson, Calgary.

Solicitors for the intervener the Sexual Assault Centre of Edmonton:  Dale Gibson Associates, Edmonton.