Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case concerned whether a person accused of sexual assault could demand that the complainant’s counselling records be given to them and used to determine whether the complainant was credible.
LEAF intervened before the Supreme Court of Canada, in coalition with:
- Aboriginal Women’s Council
- Canadian Association of Sexual Assault Centres
- Disabled Women’s Network Ontario
A.B. was charged with indecently assaulting L.L.A. when she was a child. L.L.A. went to counselling at two different institutions. A.B. served subpoenas on those institutions, ordering them to bring all of L.L.A.’s counselling records to court so that he could argue that the records should be given to him. The trial judge agreed that the records should be given to A.B. The two institutions appealed the decision to the Ontario Court of Appeal, which held it had no jurisdiction to hear the appeal. They then appealed to the Supreme Court of Canada.
The Coalition argued that the use of counselling records in sexual assault cases denied women’s equality rights and security of the person, and that they should never be given to the defence in these cases.
Accessing women’s information and records for credibility purposes unduly exposed claimants to re-victimization and shifted the blame from their assailant to them. It reinforced discriminatory stereotypes about women and children, and their sexuality. It discouraged women from reporting sexual assault. Production of personal records also disproportionately disadvantaged women who had been documented the most, including immigrant women, institutionalized women, and low-income women.
The Supreme Court held that it had jurisdiction to hear the appeal. A majority of the Court held that the trial judge had failed to follow the proper procedures for requesting counselling records, as had been developed in R. v. O’Connor. They allowed the appeal, but said that A.B. could again try to request the records, this time using the proper procedures.
LEAF’s advocacy in this area did not end with this case. LEAF consulted with the Department of Justice on the development of Bill C-46. This bill amended the Criminal Code to establish a procedure for the disclosure of personal records in all sexual assault cases – one which recognized the equality rights of women and children. When the constitutionality of that regime was challenged, LEAF once again returned to the courts to stand up for equality rights in sexual assault proceedings. For more information, see our intervention in R. v. Mills.
LEAF is grateful to Anne Derrick and Sharon McIvor, counsel in this case, as well as Catharine Aitken, Ottawa agent for LEAF.
Download the factum here.
Read the Supreme Court of Canada’s decision here.