Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case concerned the disclosure of medical and counselling records to defendants in sexual assault cases.
LEAF, with the involvement of West Coast LEAF, intervened before British Columbia Court of Appeal and the Supreme Court of Canada, in coalition with:
- Aboriginal Women’s Council
- Disabled Women’s Network of Canada (DAWN)
- Canadian Association of Sexual Assault Centres
Hubert Patrick O’Connor, a bishop, was charged with sexually assaulting four Indigenous women who worked under his supervision at a residential school and had previously attended the school as students. At the preliminary inquiry, Mr. O’Connor’s lawyer obtained an order from the judge requiring that the Crown disclose the entire medical, counselling and school records of all four complainants. The Crown initially did not have any of those records in its possession, but later obtained some of them and provided them to the defence lawyer.
The case made its way to the Supreme Court of Canada, which was asked to determine the appropriate procedure to be followed when defence lawyers ask for medical or counselling records held by third parties, such as therapists, counsellors, psychologists, and psychiatrists.
The Coalition argued that equality rights applied to the disclosure and use of personal and sensitive information, and that complainants’ medical records were never relevant in sexual assault cases.
The Coalition also argued that disclosure rules which made mental health or medical records routinely accessible would: reinforce rape myths, re-victimize survivors, deter future reporting, and disproportionately and negatively impact women with disabilities, Indigenous women, and racialized women. Disclosure rules needed to be informed by the government’s objectives to eliminate sexual discrimination in sexual assault law, encourage reporting, protect complainant’s privacy, and eliminate distortion of fact-finding processes.
A majority of the Supreme Court established a two-part test for determining whether records in the hands of a third party should be disclosed to the defence. First, the defence would need to convince the judge that the information in the records is likely to be relevant. If the defence did so successfully, the judge would then examine the records, weigh the benefits versus the costs of disclosing the records, and decide whether not disclosing the records would be a reasonable limit on the accused’s ability to make full answer and defence.
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 Frances Watters and Gail Dickson, counsel before the British Columbia Court of Appeal in this case. LEAF is also grateful to Sharon McIvor and Elizabeth Shilton, counsel before the Supreme Court of Canada in this case.
Download the British Columbia Court of Appeal factum here.
Download the Supreme Court of Canada factum here.
Read the British Columbia Court of Appeal’s decision here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].