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 intervened before the Supreme Court of Canada.
Facts
Brian Mills was charged with sexual assault and unlawful sexual touching. His lawyer asked for records relating to the complainant which were in the hands of a psychiatrist and a child and adolescent services association. Mr. Mills then challenged the constitutionality of new provisions in the Criminal Codegoverning the production of records in sexual assault cases. The trial judge ruled that the provisions violated Mr. Mills’ rights ss. 7 and 11(d) of the Charter, and could not be saved under s. 1. The Crown appealed to the Supreme Court of Canada.
Arguments
LEAF argued that the provisions were constitutionally valid. The provisions made trials more fair than they would otherwise be, as they took into account not only the accused’s right to full answer anddefence but also the rights of complainants and the public to the fair and proper administration of justice.
If the Court found that the provisions were not constitutional, they were justified under s. 1. The provisions provided women and children with greater access to the equal protection and benefit of the law, and enhanced their equal security of the person.
Outcome
A majority of the Supreme Court held that the provisions were constitutional. They expressly noted Parliament’s recognition of the prevalence of sexual violence against women and children, and its impact on their equality rights, as well as the need to balance fairness to the complainant with the rights of the accused.
LEAF is grateful to Anne Derrick and Peggy Kolby, counsel in this case, as well as Carole Brown, Ottawa agent for LEAF.
Read the factum 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].
