A successful application for production requires case-specific evidence that compels the conclusion that the accused’s right to make full answer and defence must prevail over the complainant’s privacy and equality rights.

The purpose of the Mills regime “is to prevent speculative and unmeritorious requests for production…” (R. v. Mills, [1999] S.C.J. No. 68 at para. 118).

The Mills regime does not allow for fishing expeditions. A trial judge will not permit counsel to take a shot in the dark with respect to an application for production of a private record.

Furthermore, the Mills regime is designed to prohibit applications for production that rely upon:

…myths, stereotypes and generalized assumptions about sexual assault victims and classes of records (that) have too often in the past hindered the search of truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences (Mills, supra, at para. 119).

To that end, Parliament enacted section 278.3(4) that sets out a list of insufficient grounds for an application for production. Section 278.3(4) states:

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 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 of the complainant or witness has received or is receiving psychiatric treatment, therapy or counseling;

(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.

As stated by the Court in Mills, supra, at para. 119:

…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.

The Court also made it clear that s. 278.3(4) “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" (Mills, supra, at para. 118).

The following cases provide a sample of judicial commentary regarding insufficient foundations for production:

            R. v. W.B., [2000] O.J. No. 2184 (C.A.) at para. 71:

…the mere fact that a complainant has spoken to a counselor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.

           R. v. Miller, [1997] N.J. No. 207 (P.C.) at para. 10:

… one must avoid the stereotyping of witnesses or complainants. One such stereotype might be the consideration that simply because a person is receiving or has received psychiatric treatment or indeed, has been assigned a general diagnosis, that that person automatically cannot be relied upon to tell the truth in a judicial proceeding...

R. v. P.L., [2014] O.J. No. 2412 (S.C.).

At para. 10, Gordon, J. quotes directly from R. v. O’Connor, [1995] S.C.J. No. 98 as follows:

“… Any suggestion that a particular treatment, therapy or illness, or disability implies unreliability must be informed by cogent evidence, rather than stereotype, myth or prejudice. For these reasons, it would also be inappropriate for judicial notice to be taken of the fact that unreliability may be inferred from any particular course of treatment..."

In applying these comments to the case before him, Gordon, J. states at para. 15:

… that the complainant was taking anti-psychotic and anti-depressant medications is of no relevance unless there is some evidential or informational foundation leading to that conclusion. For instance, in this case, we know that she was taking Seroquel and Cipralex when the complaint was made in February. However, there is no evidence before me that either of these drugs has any effect on the memory of the complainant, on her cognitive abilities, or on her perception of reality. There is no evidence that they relate to an illness which might affect any of these faculties. What I am being asked to do is stereotype - to say that because a person is on these drugs there must be some problem with her evidence. That is a prohibited line of reasoning.

             R. v. Essel, [2016] O.J. No. 3014 (S.C.) at para. 30:

The argument that "a complainant who accuses two persons of sexual impropriety occurring at different times, and in different circumstances, is more likely to be lying about either or both than a complainant who accuses only one person" cannot be sustained: R. v. M.T., 2012 ONCA 511. The fact that a complainant made allegations of sexual abuse against another person is not admissible to undermine the complainant's credibility, unless those allegations were recanted or are demonstrably false: R. v. Riley (1992), 11 O.R. (3d) 151 (C.A.), at p. 154, leave to appeal refused, [1993] S.C.C.A. No. 26 [1993] 2 S.C.R. x. See also: R. v. C.C., 2015 ONCA 59, at para. 32.

The following decisions provide examples of case-specific evidence or information that was sufficient to compel production:

R. v. P.B., [2015] O.J. No. 6786 (S.C.) beginning at para. 28:

… the counselling process played a role in her memory recovery. Given the wording in Batte (evidence that the counselling process played any role in "reviving, refreshing or shaping" the complainant's memory), I find this is sufficient to meet the threshold of likely relevance.

The relevance of these records is further reinforced, in my view, by the anticipated expert evidence from the Crown regarding memory recall. …Defence counsel's ability to challenge the factual foundation for that evidence is unfairly curtailed if he is denied access to therapeutic records that may have played a role in the memories being recalled.

            R. v. P.C., [2011] N.J. No. 65 (S.C.) at para. 18:

…the complainant herself has put in issue a brain injury that she admits affects her memory, although she maintains that her short term memory only is affected. This is a trial relating to alleged historic indecent assaults where the Crown is relying solely on the credibility of the complainant's evidence. That credibility is in large part determined by her ability to remember the events complained of. Consequently, medical evidence relating to her head injury and its possible effects on her memory is likely relevant to the matter before me. The requirement of R. v. Mills that the accused point to "case-specific evidence or information" to ground his application has been met.

            R. v. J.K., [2015] A.J. No. 1079 (P.C.) at para. 26:

Counsel for the complainant and counsel for the Crown conceded that at least a portion of the Daycare Records relating to the complainant's access to and sharing of sexually explicit materials on an electronic tablet are likely relevant and that disclosure of those portions is in the interest of justice. How the complainant had obtained knowledge of sexual acts before the alleged assaults had occurred may be relevant.

Potential Sources of Case-Specific Evidence or Information to Support an Application for Production

The Court in Mills, supra, at para. 135, made the following comments about the potential sources of evidence and information that an accused may rely upon to support an application for production:

... 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.

The scope of permissible questioning at a preliminary hearing to lay the groundwork for an application for production at trial is canvassed in R. v. E.B., [2002], O.J. No. 75 (C.A.) and R. v. Kassok, [2001] 2 W.W.R. 683 (N.W.T.S.C.).

Sometimes the apparent absence of relevant information in a private record will be useful for the defence (e.g. lack of observations of physical injuries by medical staff when the complainant describes a particularly violent encounter).

The next post in this series will provide an overview of the factors that inform a cost-benefit analysis of whether to advance an application for production.

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