NOTE: This article has been divided into two parts due to its length. If you wish, you can read the SECOND PART.

(1996) 1 Canadian Criminal Law Review 31-56
Trial by Ordeal
Marilyn MacCrimmon*

Queen Emma, Edward the Confessor's mother...was accused of adultery with a bishop. [The conditions for the ordeal of hot iron specified for her were:] "let the ill-famed woman walk nine paces, with bare feet, on nine red-hot ploughshares--four to clear herself, five to clear the bishop. If she falters, if she does not press one of the ploughshares fully with her feet, if she is harmed the one least bit, then let her be judged a fornicator"

-- Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal¹

It was when the combats and the ordeals came to be abused, and to be known to be abused that these modes were no longer the best known to the times; and the passage from ordeals and oaths to the jury marked what was equivalent to a rejection of the irrational and an assent to the rational.... Thus there have been, in the history of our modes of proof, separate epochs, in each of which we progressed from what we were aware to be the inferior to what we had come to know as better; and this in a broad sense is the significance of the principle that the law of evidence is based on the employment of rational standards.

-- Wigmore On Evidence (1905)²

[Complainants] must contemplate the threat of disclosing to the very person accused of assaulting them in the first place, and quite possibly in open court, records containing intensely private aspects of their lives, possibly containing thoughts and statements which have never even been shared with the closest of friends or family.

-- per L'Heureux-Dubé J. in R. v. O'Connor (1995)³

The Supreme Court of Canada and Disclosure of Confidential Records: R. v. O'Connor

(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."¹⁰

In summary, the process set out by the majority is as follows:

1. Subpoena duces tecum: The defence must satisfy the requirement in section 698 of the Criminal Code that the person to whom the subpoena is directed is "likely to give material evidence". Under section 700, witnesses can be required to bring with them anything under their control "relating to the subject-matter of the proceedings". The Supreme Court's decision seems to be based on the pragmatic assumption that the subpoena process does not impose a meaningful threshold in itself.¹¹
2. Stage 1: The onus is on the defence to show the information in the record is "likely to be relevant" before the record is produced to the trial judge.
3. Stage 2: The trial judge balances the salutary and deleterious effects of a disclosure order taking into account a number of enumerated factors.

The majority decision to some extent follows the decision of the British Columbia Court of Appeal in R. v. O'Connor, although none of the parties or the interveners supported that decision.¹⁵ In oral argument before the Supreme Court of Canada, the Attorney General of British Columbia supported a threshold test at the first stage higher than the Court of Appeal test of "likely relevance", endorsing the position of the Attorney General of Ontario.¹⁶ The majority decision differs from the British Columbia Court of Appeal decision in that the appellate court had incorporated a consideration of privacy rights into the decision whether to order production of the records to the trial judge, listed impermissible grounds of relevance assessments, and applied a test of materiality in the second stage rather than a balancing of factors.

The majority do not mention equality rights although both the Attorney General of Ontario and the Attorney General of Canada argued that disclosure of confidential records in sexual assault cases infringed the equality rights of the complainant in addition to her rights to privacy and security of the person.¹⁷

The dissent also adopts a two stage process once a subpoena is issued. The threshold test in the first stage is the same as that of the majority--whether the record is "likely to be relevant", although their perception of this standard differs from that of the majority.¹⁸ The dissent inserts an additional requirement at the beginning of the second stage. Before ordering production to the court, "the trial judge must balance the salutary and deleterious effects of ordering the production of the records to the court for inspection, 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."¹⁹ In contrast, the majority reject any balancing of rights until after the records have been disclosed to the trial judge.²⁰

The dissent holds that disclosure of records which meet the threshold of "likely relevance" may infringe the right to equality without discrimination. Routine disclosure of therapeutic records "will have disproportionately invasive consequences for women, particularly those with disabilities and children...The courts must take care not to create a class of vulnerable victims who have to choose between accusing their attackers and maintaining the confidentiality of their records."²¹ Discriminatory beliefs such as the presumption that complainants are not credible or that " personal and psychological backgrounds and profiles of complainants of sexual assault are relevant to whether or not the complainant consented to the sexual contact, or whether the accused honestly believed that she consented"²² must be eliminated from judicial reasoning. "Uninhibited disclosure of complainants' private lives indulges the discriminatory suspicion that women and children's reports of sexual victimization are uniquely likely to be fabricated."²³

The dissent's recognition that disclosure may affect equality rights has five consequences. First, discriminatory beliefs and practices must be eliminated from judicial decision making at all stages of the process including the decision to produce the records to the trial judge. Assessments of relevance must not be based on such beliefs. Thus the dissent states:

For instance, it is impermissible to seek production of records containing reference to other sexual activity to support the inference that because the complainant has engaged in unrelated sexual activity she is more likely to have consented to the activity in question, or less worthy of belief.²⁴

(6) the extent to which production of records of this nature would frustrate society's interest in encouraging the reporting of sexual offences and the acquisition of treatment by victims; and (7) the effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome.²⁶

World Views

We are talking about a kind of indoctrination where a therapist encourages a belief in a victim hardening the memories or filling in the blanks...These people have no concern for the presumption of innocence and the possibility of convicting innocent people.³¹

In contrast, in the world reflected in the dissenting opinion, production to the trial judge can infringe both the privacy and equality rights of complainants. The goal is ""a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration".³³ "A fair legal system requires respect at all times for the complainant's personal dignity, and in particular his or her right to privacy, equality and security of the person." ³⁴Counselling in a "non-judgmental and confidential atmosphere" is often the first step to recovery of a sexual assault victim. Therapeutic records or counselling records are rarely relevant and "may very well have a greater potential to derail than to advance the truth-seeking process."³⁵ In particular, the following grounds are insufficient to ground a production order: 1) "the records might impact on 'recent complaint' or 'the kind of person' the witness is"; 2) credibility "at large"; 3) the possibility of a prior inconsistent statement; 4) "allegations of sexual abuse by other people"; 5) the mere fact the witness has a medical or psychiatric record or has received a particular course of treatment; and 6) "the mere fact that a witness received treatment or counselling after a sexual assault".³⁶

In this world view, equality rights and fair trial rights do not always conflict. "The eradication of discriminatory beliefs and practices in the conduct of [sexual assault] trials will enhance rather than detract from the fairness of such trials. Conversely, sexual assault trials that are fair will promote the equality of women and children who are most often the victims."³⁷ Fair trials and the truth seeking-process is furthered by the non-disclosure of inherently unreliable information.³⁸

The discriminatory effect of presuming the uncreditworthiness of complainants of sexual assault is recognized.

It is a common phenomenon in this day and age for one who has been sexually victimized to seek counselling or therapy in relation to this occurrence. It therefore stands to reason that disclosure rules or practices which make mental health or medical records routinely accessible in sexual offence proceedings will have disproportionately invasive consequences for women, particularly those with disabilities, and children. In particular, in determining questions of disclosure of records of persons allegedly assaulted in institutions where they get psychiatric assistance, the courts must take care not to create a class of vulnerable victims who have to choose between accusing their attackers and maintaining the confidentiality of their records.³⁹

would aggravate women's inequality by perpetuating the discriminatory stereotyping and discrediting of women. Further, disclosure of private records would undermine the integrity of the justice system by deterring reporting of sexual assaults and distorting the fact-finding process. As a consequence, the vindication of complainants' constitutional rights and the interests of justice can only be achieved by an absolute prohibition against the production of complainants' private records in sexual offence proceedings.⁴¹

In the world of the majority, therapeutic records are likely to contain information which will be useful in assessing the credibility of complainants. ⁴⁵ In this world, the fact that judges have found these records to be relevant is strong evidence they are relevant. Lamer C.J. states: "The sheer number of decisions in which such evidence has been produced supports the potential relevance of therapeutic records."⁴⁶

In the world of the dissenting justices, therapeutic records are very rarely relevant. L'Heureux-Dubé J. states:

[Therapy] is not a fact-finding exercise. Consequently, the vast majority of information noted during therapy sessions bears no relevance whatsoever or, at its highest, only an attenuated sense of relevance to the issues at trial. Moreover, as I have already noted elsewhere, much of this information is inherently unreliable and, therefore, may frustrate rather than further the truth-seeking process. Thus, although the fact that an individual has sought counselling after an alleged assault may certainly raise the applicant's hopes for a fruitful fishing expedition, it does not follow, absent other evidence, that information found in those records is likely to be relevant to the accused's defence.⁴⁷

[J]udges should be encouraged to carefully scrutinize claims of relevance in a manner that is sensitive to the therapeutic context and the nature of records created in that context. Without such sensitivity, the danger is great that records having no real relevance will be produced, the search for truth frustrated, and the rights of complainants needlessly violated.⁴⁸

Legislative Action

What scope is there for legislative action? I will address three issues: 1) legislative regulation of relevance, 2) legislative balancing of Charter rights, and 3) legislative creation of a class privilege. Specifically, I will address the possibility of legislation which either sets the initial threshold for disclosure to the trial judge at a higher level than "likely relevance", sets out impermissible grounds of inference, sets out a set of assumptions such as in the preamble to Bill C-49, an act to amend the Criminal Code sexual assault provisions,⁴⁹ or creates a class privilege for therapeutic records of sexual assault complainants. In this short comment, I merely raise these possibilities and do not explore their full ramifications. I should make my viewpoint clear. As I have expressed before, I think that therapeutic records are seldom if ever relevant, Their disclosure is unnecessary, and disclosure even to the trial judge results in severe harm both to the individual complainant, third parties, and the administration of justice.⁵⁰ Those who start with a different set of assumptions understandably arrive at a different outcome. Given my worldview, my purpose is to explore the possibilities for adopting more restrictive procedures than those set out by the majority in O'Connor.

Legislative Regulation of Relevance

In fact, the Supreme Court of Canada has adopted general classifications of relevance for instance in relation to recent complaints and sexual history in sexual assault cases.⁵¹ The British Columbia Court of Appeal in R. v. O'Connor set out generalizations which could not found a disclosure decision.⁵² Parliament in the preamble to Bill C-49, the provisions regulating the admissibility of sexual history evidence, sets out empirical propositions about the world which should underlie assessments of relevance such as: the prevalence of sexual assault against women and children, fear of sexual assault affects the lives of people, limiting admissibility of sexual history will encourage the reporting of sexual violence or abuse, sexual history evidence is prejudicial, and most importantly, "evidence of the complainant's sexual history is rarely relevant".

*

Professor, Faculty of Law, University of British Columbia.

¹

Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (1986) at 17.

²

Wigmore On Evidence (Canadian Edition) Vol. I (1905) at 34, para 9.

³

[1995] S.C.J. No. 98, appeal from (1994), 89 C.C.C.(3d), reversing (1992), 18 C.R. (4th) 98 (B.C.S.C.). 109. The British Columbia Court of Appeal issued separate reasons setting out procedures for the disclosure of medical records in sexual assault cases: R. v. O'Connor (No. 2) decision (1995) 90 C.C.C.(3d) 257. This comment is limited to the Court's opinions on disclosure procedure. On that issue the Court split five (Lamer C.J., Sopinka J. , Cory J., Major J., Iacabucci J.) to four (L'Heureux-Dubé J., McLachlin J., LaForest J. Gonthier J. ). The Court in a 6 to 3 (Lamer C.J., Sopinka J., Major J.) decision upheld the BCCA decision to allow the Crown's appeal against a stay of proceedings. The majority state that their comments are with regard to the "disclosure and production of therapeutic records." at para. 2. The dissent state that the types of documents which may be subject to these procedures are most likely to be medical and therapeutic records in sexual assault cases, but are also likely to involve "school records, private diaries, and activity logs prepared by social workers" per L'Heureux-Dubé J. at para. 99. Paragraph numbers hereinafter cited are from R. v. O'Connor (S.C.C.).

⁴

All justices agree that the defence must give notice to" third parties in possession of the documents as well as to those persons who have a privacy interest in the records." per Lamer C.J. at para. 20.

⁵

[1991] 3 S.C.R. 326.

⁶

Para. 19.

⁷

Para. 24.

⁸

Para. 24 quoting R. v. Chaplin [1995] 1 S.C.R. 727 at 744.

⁹

Para. 30.

¹⁰

Para 31 quoting the dissent.

¹¹

Whether a higher threshold should be imposed before a subpoena is issued raises difficult questions. While a high threshold will decrease the possibility of erroneously requiring a possessor of a record to appear in court, it also may also effectively stamp the record as being highly relevant and thus necessary for the accused's right to full answer and defence. In addition, there is value in making relevance assessments and balancing interests at the point where all those affected are represented.

¹²

Para. 32.

¹³

Para. 32.

¹⁴

Para. 32.

¹⁵

In response to the failure of any of the parties or interveners to endorse the BCCA decision, supra, note 3, the Supreme Court appointed an amicus curiae to submit a factum supporting that decision.

¹⁶

Conversation with Malcolm Macaulay, Q.C., counsel for the respondent, the Attorney General of British Columbia, January 11, 1996.

¹⁷

The arguments on disclosure presented in R. v. O'Connor should be amplified by the presentations to the Court in LLA v. AB [1995] S.C.J. No. 102 handed down on the same day as O'Connor. In both cases the parties and interveners addressed the design of disclosure procedures. Regrettably, there is nothing in the decision in O'Connor which relates it to the specific facts of that case. The disclosure order for therapeutic and school records was very broad. For instance, the order for therapeutic records provided: "THIS COURT FURTHER ORDERS that the complainants authorize all therapists, counselors, psychologists and psychiatrists whom [sic] have treated any of them with respect to allegations of sexual assault or sexual abuse, to produce to the Crown copies of their complete file contents and any other related material including all documents, notes, records, reports, tape recordings and videotapes, and the Crown to provide copies of all this material to counsel for the accused forthwith." This order was complied with prior to the trial. The Supreme Court does not discuss whether the accused, Bishop O'Connor, should be permitted to "secure access to records generated by a church-run residential school which was premised on a perception of aboriginal people as less than fully human". Would "(a) justice system animated by equality principles...have allowed records generated by state policies designed to eradicate an entire culture..be canvassed for potential information discreditable to survivors of such policies?" (Factum of the Coalition of the Aboriginal Women's Council, Canadian Association of Sexual Assault Centres, Disabled Women's Network Canada and Women's Legal Education and Action Fund at Para. 37 and 49.)

¹⁸

See discussion below at notes 53 to 57.

¹⁹

Para. 150.

²⁰

Para. 21.

²¹

Para. 121.

²²

Para. 124.

²³

Para. 48.

²⁴

Para. 148 citing R. v. Seaboyer [1991] 2 S.C.R. 577.

²⁵

Para. 150.

²⁶

Para. 156.

²⁷

Para 134.

²⁸

L.L.A. .v A.B [1995] S.C. J. No 102. . A provincial court order can be challenged through an enlarged remedy of certiorari.

²⁹

Para. 22.

³⁰

Para. 26.

³¹

Quotation as reported in The Globe and Mail, December 15, 1995 at A7.

³²

The majority at Para. 32 quote R. v. Ryan (1991), 69 C.C.C.(3d) 226 which discusses "a number of avenues" "to ensure that production does not frustrate...society's interests in the reporting of sexual crimes."

³³

Para. 123 quoting Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171).

³⁴

Para. 54.

³⁵

Para. 109.

³⁶

Paras. 142-144.

³⁷

Para. 129.

³⁸

Para. 144. The dissent distinguishes the purposes of therapy and judicial trials. Therapy is not an investigation undertaken for the purposes of determining guilt or innocence and is not oriented toward ascertaining historical truth but on "exploring the complainants emotional and psychological responses to certain events, after the alleged assault has taken place".

³⁹

Para. 121.

⁴⁰

Factums of the Attorney General of Ontario and the Attorney General of Canada, File No. 24568.

⁴¹

Described in LLA v. AB supra, note 28 at para. 21. The Coalition comprised the Aboriginal Women's Council, Canadian Association of Sexual Assault Centres, Disabled Women's Network Ontario and Women's Legal Education and Action Fund.

⁴²

I am indebted to Christine Boyle for this idea.

⁴³

Bartlett, Robert, supra, note 1 at 33.

⁴⁴

In addition to the danger information will be incorrectly evaluated, disclosure may intimidate complainants from going forward with a case. See e.g, Schmitz, C., "'Whack' Sexual Assault Complainant at Preliminary Hearing" The Lawyers Weekly, May 27, 1988.

⁴⁵

"[W]e disagree with L'Heureux-Dubé' J.'s assertion that therapeutic records will only be relevant to the defence in rare cases." per Lamer C.J. at para. 29.

⁴⁶

Para. 27. The failure to examine judicial practices critically raises a real danger discriminatory beliefs will be imperious to change and insulates courts from changing social values. For instance, Wigmore in 1913 described general beliefs about the credibility of various cultural, gender, and racial groups which today few would dispute are discriminatory the reliance on which would result in an unfair trial. Wigmore, The Principles of Judicial Proof as Given by Logic, Psychology and General Experience (1913) at 314-317.

⁴⁷

Para. 144.

⁴⁸

Para. 145. supra, note 24.

⁴⁹

3rd Session, 34th Parliament, 40-41 Elizabeth II. 1991-92.

⁵⁰

See e.g., MacCrimmon, Marilyn and Boyle, Christine, "Equality, Fairness and Relevance: Disclosure of Therapists' Records in Sexual Assault Trials", MacCrimmon, M. and Ouellette, M.(eds), Filtering and Analyzing Evidence in an Age of Diversity. (Canadian Institute for the Administration of Justice) 1993 at 81.

⁵¹

R. v. W.(R.) [1992] 2 S.C.R. 122 and R. v. Seaboyer supra, note 24

⁵²

Supra, note 3. The court listed the following impermissible grounds: "Invoking credibility `at large' " is "patently inadequate to justify" disclosure."..."Similarly, a simple submission that the documents should be produced because they may relate to `recent complaint' is an inadequate foundation for an order of disclosure."..."Further, production of medical records is not to be compelled simply because the defence hopes that they might disclose a prior inconsistent statement of a complainant"..."Nor, in our view, is it sufficient simply to say that because a witness received counseling or psychiatric assistance as a consequence of an alleged sexual assault that the records must, therefore, be relevant."..."Further, we would reject any suggestion that psychiatric and counseling records are relevant on the supposition that the very fact that witnesses obtained therapy, whether related to an allegation of sexual assault or otherwise, justifies the conclusion that their evidence may be unreliable."

NOTE: This article has been divided into two parts due to its length. If you wish, you can read the SECOND PART.