Compelled Production of Medical Records
John Dawson’
This article discusses the form of analysis a court
is likely to adopt in resolving a dispute concerning the
compelled production of medical or psychiatric records
in legal proceedings, when the defendant seeks access
to the records of the complainant. The principles con-
sidered are derived largely from recent decisions of the
Supreme Court of Canada in the criminal field. These
principles are applied to civil and administrative con-
texts in the common and civil law jurisdictions of Can-
ada. Consideration is given to the relevance of the Ca-
nadiam Charter to various production disputes, to the
common law of privilege and to the law of professional
secrecy in Quebec. The argument is made that there is a
convergence of principle in all contexts. For the pur-
poses of illustration an example is given of a set of
facts which could give rise to simultaneous production
disputes in criminal, civil and administrative proceed-
ings.
Dans cet article, ‘auteur analyse les principes qui
rdgissent le riglement des conflits concemant la pro-
duction forcde de dossiers m6dicaux et psychiatriques
dans les proc6dures judiciaires. Les principes consid6-
r6s sont en grande partie tir6s de decisions de Ia Cour
supreme du Canada en matire criminelle. Ces princi-
pes sont appliquds aux contextes civil et administratif
des juridictions de droit civil et de common law. Une
attention particulire est donnde A la pertinence de la
Charte canadienne dans les questions d’acc2s aux
dossiers m6dicaux, l’immunit6 de divulgation en jus-
tice et la loi du secret professionnel au Qu6bec.
L’auteur soutient qu’il y a convergence de principes
dans tous ces contextes. Pour illustrer son argumenta-
tion, il donne en exemple un seul ensemble de faits
susceptibles de donner lieu a des conflits simultands de
production dans des poursuites criminelles, civiles et
administratives.
* Faculty of Law, University of Otago, Dunedin, New Zealand; visitor in 1996 at the McGill Centre
for Medicine, Ethics and Law. The author is very grateful for the support of the Centre and of Profes-
sor Margaret Somerville in the preparation of this paper, and to Patrick Glenn, Patrick Healy, Trudo
Lemmens, Bernadette McSherry, Yves-Marie Morissette, Ron Sklar and Jeremy Webber for their
generous assistance.
McGill Law Journal 1998
Revue de droit de McGill
To be cited as: (1998) 43 McGill LJ. 25
Mode de r6f&ence: (1998) 43 R.D. McGill 25
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 43
Introduction
1. The General Legal Approach
A. The Ubiquitous Balancing Test
B. The Nature of the Proceedings
C. The Application of the Canadian Charter
1. The Element of Government Action
2. The Judicial Order Based on Legislative Authority in Private
Litigation
3. Defendants’ Interests in Disciplinary Proceedings
II. Some Features of the Balancing Calculus
A. Confidentiality and Privacy
1. The Two Conceptions
2. Constitutional Protection
3. Statutory Authority for Disclosure
B. Full Answer and Defense
C. The Meaning of Relevance
D. Limiting the Extent of Disclosure
Ill. Privilege and Professional Secrecy
A. Confidentiality and Privilege under the Common Law
B. Professional Secrecy in Quebec
1. Frenette v. Metropolitan Life Insurance
2. Compelling the Oral Testimony of a Physician in Quebec
C. Privilege and Privacy after Production
Conclusion
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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Introduction
Canadian law concerning the production of medical records in legal proceedings
centres upon a balancing test in which the advantages of using patient information are
weighed against the compromises to patient privacy and confidentiality compelled
disclosure entails. This balancing of interests occurs in a production process in which
a court or tribunal determines the likely existence and relevance of the contested
medical information, assesses the potential consequences of its disclosure and fixes
the permissible scope of its future circulation. This production procedure brokers the
arguments and interests, but ultimately one set of values must prevail as the court will
order production or it will not.
Consider an example which illustrates the tensions between interests. A psychiat-
ric patient makes a complaint against a staff member of the hospital in which treat-
ment is being conducted.’ A young woman, the complainant, under treatment for a
psychotic illness, tells a nurse that she has been sexually assaulted by a male clinician,
the defendant, in her room. The defendant has not been directly involved in the com-
plainant’s treatment, is largely ignorant of her psychiatric condition, and has no im-
mediate claim to have lawful access to her medical notes.
The complaint could give rise to criminal proceedings against the clinician; civil
proceedings (e.g. in tort, equity or under the Civil Code of Quibec); an inquiry by a
hospital ombudsman, human rights commission, health commissioner or another
agency; professional disciplinary proceedings; or an inquiry by the managers of the
hospital, who are responsible both for the safety of patients and for the staff’s em-
ployment. The defendant might be imprisoned, fined, dismissed or banned from pro-
fessional practice. Damages may be awarded against him and he may suffer serious
damage to reputation, family life and social standing.
In the course of making a defense, the defendant may wish to investigate the
competence or credibility of the complainant as a witness, the quality of her percep-
tion of the alleged events or the effects of medication on her memory. Psychiatric rec-
ords may illuminate these matters. Should the complainant’s record, or some part
thereof, be produced to assist the defense despite the complainant’s objection? Is the
complainant, already under psychiatric treatment and now apparently a victim of sex-
ual assault, to be further traumatised through the compelled production of intimate re-
cords of diagnosis and treatment to judges, counsel, managers, experts, disciplinary
committees or investigative officers? What effect might the prospect of disclosure
have on her willingness to complain and to testify? On the other hand, if the records
are not disclosed, how can the complaint be fully evaluated? Is the defendant not al-
ways entitled to test the competence and credibility of his accuser?
‘ Compare the facts of M.(A.) v. Ryan, [1997] 1 S.C.R. 3, 143 D.L.R. (4th) 1 [hereinafter Ryan cited
to S.C.R.] (extent of privilege attaching to the psychiatric records of a plaintiff in civil litigation, when
she had sought the assistance of a psychiatrist B following sexual relations with a previous psychia-
trist A, and the defendant, psychiatrist A, sought access to psychiatrist B’s notes).
2Hereinafter C.C.Q.
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Must production be ordered, or the proceedings against the defendant stayed,
until the complainant agrees to release the notes? Is the complainant forced to surren-
der her rights to privacy in favour of a right to complain, as if bringing the complaint
itself acted as a waiver of any privileged status attaching to this material? Or are her
interests in psychological integrity, in the non-disclosure of confidential psychiatric
information, so fundamental that the complaint against the clinician should proceed
without him or his counsel ever reviewing the documents for possible lines of de-
fense?
The formulation of doctrine in these circumstances could begin with a presump-
tion against the production of medical records or patient information, even for the
purposes of legal proceedings, with patients’ interests in privacy and confidentiality
being given priority. Limited exceptions could then be grafted to that rule to serve
other prevailing interests. In every case, outsiders seeking access could bear the bur-
den of persuasion, with hard cases resolved against production. This might be called
the “access forbidden unless” approach. It has been followed in some civil law juris-
dictions, where conceptions of the obligations attaching to professional secrecy have
been influenced by the model of a sacred priest-penitent relationship,’ and continues
to influence the law of Quebec. For example, section 9 of the Quebec Charter of Hu-
man Rights and Freedoms states the general principle: “Every person has a right to
non-disclosure of confidential information.”‘
The opposite premise might also be adopted. Legal proceedings could start with a
presumption in favour of disclosure of all material likely to be relevant to any party.
Production could be compelled by a court, and ad hoc enclaves of privacy would be
established only where they could be clearly justified. Those seeking to withhold
relevant material could bear the burden of persuasion, with hard cases resolved in fa-
vour of production. That might be called the “access permitted except” approach. It
has found favour in England, in the common law provinces and in proceedings under
the Criminal Code
Situational or relativist positions are also possible. These might recognise the in-
evitability of choosing between confidentiality or privacy concerns and full disclo-
sure, without any initial ranking of these interests. The burden of justification might
then shift at different stages of the production and admission process. It might fail on
the party in the best position to present an argument, who might not be the person
seeking access to medical records not yet seen. This might be the position upon which
the law is converging throughout Canada. It leaves a wider area of discretion to the
court.
3See D.W. Shuman & M.E Weiner, The Psychotherapist-Patient Privilege: A Critical Examination
(Springfield, Ill.: Charles Thomas, 1987) at 45-77.
‘R.S.Q. c. C-12 [hereinafter Quebec Charter].
5 R.S.C. 1985, c. C-46.
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J. DAWSON- COMPELLED PRODUCTION OF MEDICAL RECORDS
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The manner in which the opposing interests should be balanced by a criminal
court has been considered recently by the Supreme Court of Canada in O’Connor,
sexual assault cases in which the accused sought access to the
and Beharriell’ –
counselling records of the complainant, the alleged victim of the offence and the
principal Crown witness. An amendment to the Criminal Code has been enacted by
the Canadian Parliament to codify, with some adjustments, the views expressed in
these decisions by a majority of the Court.!
This article is not intended to provide a full account of these cases, nor a com-
plete review of the doctrine concerning the production and privilege of medical rec-
ords in the provinces or under the Criminal Code.'” The aim of this article is to iden-
tify a larger framework for the resolution of issues concerning the compelled produc-
tion of medical records in legal proceedings generally; to relate the principles af-
firmed in the criminal cases to the wider constitutional framework; and to consider
how the principles established by the Supreme Court in the criminal cases apply in
other contexts, for example, when production of medical records is at issue in civil
litigation or in medical disciplinary proceedings.
The focus throughout the discussion will be on situations in which a defendant, in
order to answer the allegations made, seeks access to the therapeutic records of the
plaintiff or the complainant, without that person’s consent (or against express refusal)
and without the consent of the current record holder or the treating clinicians.
I. The General Legal Approach
Inevitably, the law does not provide general answers to the questions raised
above. Rather, it provides particular answers in various legal and factual contexts.
Nevertheless, it is possible to point to features of these contexts which indicate the
approach a court is likely to follow, such as the nature of the proceedings in which
production is sought and the relevance of constitutional norms. The court will often
work through a disclosure calculus, adopting a conventional style of reasoning –
signalled by the “balancing” metaphor –
in order to assess the interests at stake. The
court will apply criteria of relevance to the information sought and it will fix the least
intrusive form of disclosure.
In each form of proceedings the court must identify the sources and the extent of
the confidentiality or privacy guarantees covering the contested information. It must
” R. v. O’Connor, [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235 [hereinafter O’Connor cited to
S.C.R.].
‘ A.(LL) v. B.(A), [1995] 4 S.C.R. 536, (sub nom. R. v. Beharriell) 130 D.L.R. (4th) 422
[hereinafter Beharriell cited to S.C.R.].
‘ Criminal Code (Production of Records in Sexual Offence Proceedings) Amendments, S.C. 1997,
c. 30, proclaimed in force 12 May 1997, now ss. 278.1-278.91 of the Criminal Code, supra note 5
[hereinafter Criminal Code amendments].
9 There are several accounts in (1996) 1 Can. Crim. L.R.
” See L.E. Rozovsky & EA. Rozovsky, Canadian Health Information: A Legal and Risk Manage-
ment Guide, 2d ed. (Toronto: Butterworths, 1992) [hereinafter Rozovsky & Rozovsky].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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determine the weight these guarantees should carry vis-A-vis the authority of adjudi-
cative or investigative bodies to demand the production of documents or evidence in
their proceedings. Also the strength of the defendant’s rights to procedural fairness
must be assessed; fairness would usually require disclosure to the defendant of any
material relevant to a full answer and defense.
These elements must be distinguished:
” the Crown’s duty to disclose information to the defense in criminal
proceedings;
” the authority of a court or other body to order the production of informa-
tion by persons other than the Crown, who may or may not be parties to
the proceedings; and
” the scope of any privilege or conception of professional secrecy which
may prevent the presentation of medical information as evidence.
The production and admission process will often involve:
” an application for production, made to a court by the party seeking
access;
” an order for production of the records for inspection by the court itself;
the decision concerning production to the party who is seeking access;
* settling the conditions of access or the limits of the material’s circulation;
* production in fact, in the above scenario to the defendant;
” the tendering of the material in evidence;
” the decision concerning its admissibility or exclusion.
Finally, consideration should be given to the potential range of orders or remedies
available to a court or a tribunal faced with a refusal by a medical record holder to
disclose that information voluntarily. Often the court will be required to choose be-
tween two options: it may enter a stay of the proceedings (barring progress until dis-
closure occurs) or it may order production. If that order is not obeyed contempt of
court proceedings might conceivably follow, or a permanent stay may be entered to
prevent abuse of the court’s process.
A. The Ubiquitous Balancing Test
According to the current jurisprudence, there are two main points at which the
balancing of fairness and privacy concerns should become explicit: first, at the mo-
ment of the production decision, when the confidential material has been inspected by
the court, its potential relevance established, and a decision on its release to defendant
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J. DAwSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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must be made; and second, when the material is tendered in evidence and the issue of
privilege, or its exclusion to protect professional secrecy, must be resolved.
The requirement that the interests of the complainant and defendant be balanced
or weighed is found throughout the relevant law.” For instance, there is a balancing
process to determine the effect of the Canadian Charter of Rights and Freedoms,’2
when both the privacy interests of the complainant and the due process interests of the
defendant may find protection in the same provision of the Charter, section 7. This
provision declares: “No person shall be deprived of life, liberty or security of the per-
son except in accordance with the principles of fundamental justice.” The Supreme
Court has now determined that a person’s expectation of privacy in therapeutic rec-
ords is an aspect of liberty or security protected under section 7.” Therefore, this pro-
vision may limit the circumstances in which privacy may be lawfully infringed and it
may dictate the fundamentals of production procedure. On the other side of the bal-
ance, the rights of defendants to a fundamentally just trial have also been protected by
section 7.” As a result, it may be necessary to weigh the privacy of the complainant
against fairness to the defendant to determine what the principles of fundamental jus-
tice require in a particular production context.”S
Similar conflicts occur beyond the purview of the Constitution. A balancing of
interests may be required to construe the guarantees of professional secrecy in the
Quebec Charter and to determine the compatibility of those guarantees with other
Quebec legislation.” Quebec law contains a number of potentially conflicting provi-
sions: rights to privacy and professional secrecy are accorded a quasi-constitutional
status by sections 5 and 9 of the Quebec Charter,” rights to personal privacy are con-
ferred by articles 35 and 36 of the C.C.Q.; and, in a provision with no counterpart in
the other provinces, section 42 of the Medical Act’ appears to prohibit any attempt by
a court to compel the testimony of a physician.
Disclosure of confidential information is also expressly permitted in Quebec: by
authorization of the patient, by “express provision of law,”‘9 or by “the order of a
“Including now in ss. 278.5(2) and 278.7(2) of the Criminal Code, supra note 5, per the Criminal
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
Code amendments, supra note 8.
[hereinafter Canadian Charter].
“3 See O’Connor, supra note 6. The principles of fundamental justice have both substantive and
procedural content: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
” Section 11(d) of the Canadian Charter, supra note 12, also guarantees a “fair and public hearing”
to any person charged with an offence.
“5 Sopinka J., speaking for the majority discusses the concept of balancing in the interpretation of
section 7 in Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R. 519 at 589-96, 107 D.L.R. (4th)
342 at 392-397 [hereinafter Rodriguez cited to S.C.R.] (constitutionality of offence of aiding and
abetting suicide).
‘See Professional Secrecy in Quebec, Part II.B, below.
,Supra note 4.
“R.S.Q. c. M-9.
“Quebec Charter, supra note 4, s. 9(2).
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court. ‘ . In addition, there are many procedural provisions in Quebec which authorize
courts and tribunals to make orders under which documents may be discovered or
witnesses compelled. For example, the province’s Professional Code requires that in
disciplinary proceedings against a doctor, “[t]he [disciplinary] committee must permit
the respondent to make a full and complete defence,” it “shall summon such wit-
nesses as it or any party considers useful,” and “[a witness is] bound to answer all
questions.”” These provisions may prevail over the Medical Act, permitting, despite
the apparent prohibtion in section 42, the compulsion of medical testimony or docu-
ments which might exonerate another doctor who has been charged with a discipli-
nary offence, as in the above scenario.’
Section 23 of the Quebec Charter further guarantees a right of fair procedure to
defendants.” Providing a full and fair hearing may also require granting the defendant
access to the very kinds of information that section 42 of the Medical Act purports to
protect. Section 23 applies to the “determination of … rights and obligations” gener-
ally, including those adjudicated in private and administrative proceedings. To resolve
these apparent conflicts, priority must be assigned (at least implicitly) to the “right to
privacy in the information on the one hand, and the right to full answer and defence
on the other.”‘”
Similar balancing is required under the law of evidentiary privilege. In the com-
mon law, a claim that a confidential communication between a patient and a physician
is inadmissible, and therefore to be excluded, is determined by reference to Wig-
more’s four criteria for the establishment of case-by-case privileges. Wigmore’s
fourth criterion provides that a communication generated within a confidential rela-
tionship may be excluded where “[tihe injury that would inure to the relation by the
disclosure of the communication [is] greater than the benefit thereby gained for the
correct disposal of litigation”‘ –
a restatement of the balancing test.
In the laws of confidence, evidence and procedure a similar kind of judgment is
required; 6 nevertheless, the language of balancing employed may be deceptive. This
” An Act respecting Health Services and Social Services, R.S.Q. c. S-4.2, s. 19; see Frenette v. Met-
ropolitan Life Insurance Co., [1992] 1 S.C.R. 647, 89 D.L.R. (4th) 653 [hereinafter Frenette cited to
S.C.R.].
R.S.Q. c. C-26, ss. 144(1), 146, 149(1).
See Archambault v. ComitJ de Discipline du Barreau du Quebec (1992), 45 Q.A.C. 32 at 43-44,
(sub nor. Archambault v. Barreau du Quibec, Comitg de Discipline) 92 D.L.R. (4th) 173 at 185-86
[hereinafterArchambault cited to D.L.R.].
Section 23(1): “Every person has a right to a full and equal, public and fair hearing by an inde-
pendent and impartial tribunal, for the determination of his rights and obligations or of the merits of
any charge brought against him”, supra note 4.
24 O’Connor, supra note 6 at 434, Lamer C.J.C. & Sopinka J.
‘ J.H. Wigmore, Evidence in Trials at Common Law, McNaughton rev. ed., vol. 8 (Boston: Little,
Brown, 1961) at 527, para. 2285 [emphasis in original]. The full criteria are reproduced infra note
133.26 The importance of the balancing of interests was recently reaffirmed by the S.C.C., in the context
of civil proceedings, in Ryan, supra note 1.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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metaphorical way of speaking does have advantages: it directs attention to the need to
hear those affected; it promotes damage limitation strategies whereby, in giving prior-
ity to one value we seek to impair others as little as possible; and it encourages the ar-
ticulation of reasons for judgment. But the notion of balancing may obscure the in-
comparable nature of the interests at stake. It may incorrectly suggest that their
evaluation can be a quantitative rather than a qualitative exercise, or that the opposing
interests can be successfully adjusted, leaving both parties partially satisfied, when in
fact a choice must be made. Use of a metaphor may obscure the difficult character of
this choice. It may imply that reference to a list of facts can determine it or that judges
are especially qualified to make it. It is a way of speaking that may simply use the
language of the legal system to obscure the indeterminacy of values which precedes
the formulation of its rules’
B. The Nature of the Proceedings
A critical feature of the context in which the balancing of interests occurs is the
nature of the proceedings in which the production of medical records is sought: that
is, the judgment will be affected by the criminal, civil or administrative character of
the proceedings and the court’s assessment of the interests those proceedings may
serve or threaten. Obviously, the nature of the proceedings will affect the norms to be
applied in terms of rules of privilege, the powers to summon witnesses, or the sources
of the defendant’s rights; but a more pervasive effect of the nature of the proceedings
will be on the form of analysis adopted. The court’s view of the public and private
interests advanced by the proceedings and their potential impact on the defendant
may affect the choice of remedies and procedures, the impact of the Canadian Char-
ter and the settling of conflicts between norms. It will certainly influence the manner
in which the balancing calculus is conducted.
Clearly, different kinds of interests are advanced and threatened by criminal, civil
and administrative proceedings. For example, a criminal prosecution is initiated by
the Crown in order to denounce, deter and prevent offending. The interests of the
complainant, the putative victim, are not irrelevant to the criminal process. The com-
plainant will be seeking to establish the truth of her complaint and looking for respect
for her position within that process. She will be seeking to prevent harm to other po-
tential victims and punishment and retribution in relation to the offender. But the
principal purpose of the presentation is not to advance the complainant’s individual
interests. The prosecution is not initiated by the complainant nor is the Crown her
agent. A prosecution is brought to advance societal interests above all.
This has a number of consequences. First, it means that a criminal prosecution is
considered a form of government action to which the Canadian Charter applies.28 A
prosecution is brought by the Crown against the defendant whose interests in liberty
and security are plainly implicated. Faced with this government action and infringe-
ment of interests, the defendant may invoke the due process guarantees of the Cana-
7The author is indebted to Professor Morissette for his comments on this point.
28See infra note 39.
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dian Charter.29 A different conclusion might be reached with regard to civil litigation
instigated by the complainant for ostensibly private purposes. Private proceedings
might not be considered government action to which constitutional norms apply, a
distinction which flows from the different nature of the interests advanced. This dis-
tinction might also affect the choice of remedies when voluntary disclosure of records
is refused. The usual remedial choice facing the court is between a stay of the pro-
ceedings and an order for the records’ production. The choice arises when the court,
having assessed the balance of interests between the parties, decides that the defen-
dant’s interests should prevail. Those interests may then be promoted by the court ei-
ther through an order for production of the records to the defense or by a stay until the
records are disclosed by the complainant.”
Considering the public interests involved, the order for production will usually be
the remedy of choice in a criminal case, even if the complainant would prefer the en-
try of a stay. In the above scenario, a criminal court entertaining the prosecution for
sexual assault would have in view not only the position of the complainant, but also
the position of other patients who might become the defendant’s victims in the future.
Safety in hospitals, the need for ethical professional conduct, and the concerns of pa-
tients’ families might all be considered worthy of promotion by the court, which will
cast its gaze well beyond the position of the patient who has made the initial com-
plaint. However, these wider interests may not be successfully promoted if the pro-
ceedings are permanently stayed, no verdict or formal adjudication is reached, or no
action is ever taken against the defendant – who may in fact have abused the com-
plainant as alleged. Thus, to ensure the prosecution continues to a verdict, an order for
production might be made in a criminal case even if the complainant would rather see
the prosecution cease than be forced to disclose intimate information. This choice of
remedy would be grounded in the view that the principal purpose of criminal proceed-
ings is to advance social, not individual, concerns. To express this another way, one
could say that the policies which support Tarasoff obligations” in the United States –
requiring disclosure of confidences without the consent of the patient to protect other
people’s safety – may also support compelled production in criminal proceedings of
the medical records of the complainant, when the court might otherwise halt the pro-
ceedings with a stay.
Quite a different conclusion might be reached in private litigation. In tort, an ac-
tion in trespass to the person is initiated by the complainant herself, not by the gov-
ernment. 2 The principal purpose of such proceedings is a vindication of the com-
‘9 Supra note 12, ss. 7-14, especially ss. 9-12.
On the stay as a remedy in criminal proceedings seeR. v. Carosella, [1997] 1 S.C.R. 3 at 80, 142
D.L.R. (4th) 595 [hereinafter Carosella cited to S.C.R.] (stay of proceedings ordered when sexual as-
sault counselling centre shredded notes of interview between the complainant and counsellor, thereby
depriving the defendant of access for the purposes of informing cross-examination of the complain-
ant).
‘ Tarasoff v. Regents of the University of California, 551 P. 2d 334 (Cal. S.C. 1976).
32The private litigant does not, however, waive or forfeit a right to confidentiality or privilege sim-
ply by commencing the proceedings: Ryan, supra note I at 168 and 180.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
35
plainant’s own interests such as to obtain compensation. This difference in purpose af-
fects the choice of remedies. In contrast to the criminal case, no overriding public
policy reasons exist in such private litigation to compel the disclosure of records to
the defendant in order to ensure that the proceedings continue. Whether private pro-
ceedings go forward is a matter for the private litigant, not the government, which
will not compel their continuation against the wishes of the plaintiff. Faced with the
prospect of an unwelcome court order for the production of her records, the private
plaintiff may be permitted to allow her suit to lapse.3 The complainant is able to make
that choice based on private, not public, considerations. She would thereby retain a
degree of control over the course of the proceedings, brought to vindicate her inter-
ests, control which she would not retain over the progress of a criminal prosecution, a
legal process of a different kind.
Assessing the potential impact of the proceedings on the defendant will also in-
fluence the analysis; it will affect the extent of procedural fairness extended. In accor-
dance with the usual approach to fairness, ‘ the defendant’s interests in mounting a full
defense will carry greater weight when the impact of the proceedings on him may be
particularly serious. This may lead to a greater willingness on the part of a court to
grant access to the records and to allow a wider extent of disclosure.” In addition, be-
cause the defendant is protected by the principles of fundamental justice under section
7 of the Canadian Charter only if the result of the proceedings may deprive him of
life, liberty or security of the person, the characterization of the effect on the defen-
dant will determine whether the Charter applies and therefore whether the defen-
dant’s procedural entitlements are enhanced by this form of constitutional protection.
Assessing the impact of the proceedings on the defendant will also affect non-
constitutional procedural arguments, such as the application of the principles of natu-
ral justice, and the interpretation of any ruling procedural code.
To summarize, the resolution of a dispute concerning the compelled production of
medical records must commence with a careful analysis of the interests advanced and
threatened by the particular proceedings. How those interests are characterized will
determine the relevance of constitutional norms, will affect the extent of procedural
fairness extended to the defendant, and will influence the manner in which the defen-
dant’s rights to mount a full defense are weighed against the complainant’s rights to
privacy. The assessment of the interests may affect the construction of doctrine as a
whole and the interpretation of legislative and constitutional instruments. Where there
is a high degree of public interest in the proceedings and the possibility of a severe
impact on the defendant, disclosure of confidential or private information is more
likely to be compelled by a court. Where there is little public interest in the proceed-
” An analogy may be drawn with the approach in personal injury litigation when the complainant
declines a medical examination of a reasonable character required by the defendant: the complainant
must agree to undergo the examination, with the results communicated to the defendant, or a stay will
be entered: Edneades v. Thames Board Mills, [1969] 2 Q.B. 67 (C.A.).
‘ See J.M. Evans et aL, Administrative Law: Cases, Text and Materials, 4th ed. (Toronto: Emond
Montgomery, 1995) c. 3.
‘- A point made by McLachlin J. for the majority in Ryan, supra note I at 178-79.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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ings and the likelihood of a lesser impact on the defendant, compelled disclosure is
less likely, although the defendant may still benefit in these circumstances from the
entry of a stay.
C. The Application of the Canadian Charter
One function of the Canadian Charter is to provide a means of categorizing fun-
damental interests of the person. Generally speaking, in a medical records production
dispute if either party’s interests are Charter-protected then these interests would
carry greater weight in the balancing process and could be vindicated through consti-
tutional remedies. Moreover, it would be more difficult to justify infringement by the
legislature of interests that are constitutionally protected.
Constitutionalizing the complainant’s privacy rights is likely to have a limited ef-
fect on the analysis. It will be limited because privacy rights in medical records are
well recognized in other sources within the legal system. A court faced with a deci-
sion to compel production should already have those privacy rights in view, whether
constitutionalized or not. The courts should be interpreting or developing those other
sources of law in a manner that is consistent with Charter values.” Moreover, even
when privacy rights are constitutionally protected, they may still be compromised or
subject to reasonable limits.”
Grounding privacy rights in the Canadian Charter may still have some conse-
quences, particularly when the predominant metaphor for judgment is a careful bal-
ancing of interests. Constitutional rights are likely to carry more weight than other
3 See Ryan, ibid at 171-72; Dagenais v. C.B.C., [1994] 3 S.C.R. 835 at 876-77, 120 D.L.R. (4th)
12 at 36-37 [hereinafter Dagenais cited to S.C.R.] (injunction was granted to prevent the screening of
a television mini-series presenting a fictionalised account of events that were the subject of forthcom-
ing criminal trials); Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at 1159-72, 129
D.L.R. (4th) 129 at 148-58 [hereinafter Hill cited to S.C.R.], Cory J. (application of the Charter to the
common law of defamation in proceedings between private litigants).
The precise significance of the Charter’s application is very difficult to determine. It appears to af-
fect the form of legal analysis a court should adopt. Cory J. declares in Hill that:
it is important to distinguish between those cases in which the constitutionality of gov-
ernment action is challenged, and those in which there is no government action in-
volved. It is important not to import into private litigation the analysis which applies in
cases involving government action …. Care must be taken not to expand the application
of the Charter beyond that established by s.32(1), either by creating new causes of ac-
tion, or by subjecting all court orders to Charter scrutiny (ibid. at 1169-70)
and that:
The Charter represents a restatement of the fundamental values which guide and shape
our democratic society and our legal system. It follows that it is appropriate for the
courts to make such incremental revisions to the common law as may be necessary to
have it comply with the values enunciated in the Charter (ibid. at 1169).
This seems to suggest that the important distinction between government and private action is actu-
ally one without a difference.
17 Canadian Charter, supra note 12, s. 1.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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forms of legal entitlement when balanced on the scales. The priority accorded privacy
rights with respect to other interests may be altered by giving them a constitutional
status. For example, details of the production procedure, down to the burden of proof
on the party seeking disclosure, might be adjusted.
A situation in which constitutionally entrenched privacy rights might have made a
difference is the case of Frenette, ” involving private proceedings on a contract of life
insurance. If the record holders had been able to assert a constitutional right to pri-
vacy, the Supreme Court might not have concluded so readily that disclosure should
be ordered of the complete hospital records of the insured man. In the Court’s view, a
mere power to summon documents found in a provincial code of civil procedure was
sufficient to authorise a judicial order of disclosure. Such a power might not be suffi-
cient to trump a constitutional right. At the least, the court’s weighing of patient pri-
vacy concerns against the rights of the defendant to present a full defense to the insur-
ance claim, or the scope of disclosure ordered by the court, might have changed.
Constitutionalizing the right to obtain access to medical information as an ele-
ment of full answer and defense may similarly alter the balancing process. It would
also mean that any clear statutory rule which appeared to preclude production of
medical records to the defense, or appeared to grant those records a privileged status,
could be the subject of a constitutional challenge.
1. The Element of Government Action
The Canadian Charter applies only to government action which affects certain
protected rights and freedoms. There are two main preconditions to the application of
the Charter. there must be an element of government action and that government ac-
tion must adversely affect the rights and freedoms protected by the Charter. Whether
these preconditions are met in a dispute over the compelled production of medical re-
cords will depend on the nature of the legal proceedings and their potential impact on
the person who is seeking to invoke constitutional protection. For not all production
disputes involve government action, nor do all forms of legal process threaten to de-
prive a person of life, liberty or security of the person which are the only interests
protected by section 7, the relevant Charter provision.
To determine whether the Charter applies to a production dispute, consideration
must be given to the government action itself, whom that action affects, and how it af-
fects them. On the facts of the above scenario, the analysis must be made with regard
to criminal, civil and administrative proceedings and with regard to the distinct posi-
tions of the complainant and the defendant within those contexts. This presents six
different situations for analysis:
” Frenette, supra note 20.
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Application of Section 7 of the Canadian Charter
to the scenario
Complainant
Defendant
Criminal Proceedings Government action present;
Government action present;
Privacy affected;
Criminal penalties;
liberty, security implicated;
Liberty, security implicated;
Section 7 applies.
Section 7 applies.
Private Proceedings
Government action might be present;
Privacy affected;
Liberty, security implicated;
Section 7 may apply.
Government action unlikely if suit based on
common law or Civil Code;
Liberty, security not implicated;
Section 7 does not apply.
Disciplinary Process
Government action present;
Government action present;
Privacy affected;
liberty, security implicated;
Section 7 applies.
Liberty, security possibly implicated when
serious allegations made;
Section 7 may apply.
The principle that the protection of the Canadian Charter can be invoked only
against government action is found in section 32(l).’ As L’Heureux-Dub6 J. ex-
pressed in Young v. Young, “the sine qua non to any application of the Charter is the
presence of state action, whether by legislation or other means.”” The point to deter-
mine is the range of proceedings in which judicial action, in the form of a court order
for the production of medical records may be considered government action, render-
ing it subject to the principles of the Canadian Charter.
The leading authority on the effect of section 32 is the decision of the Supreme
Court in Dolphin Delivery.” The Court was emphatic that not all forms of judicial ac-
9 Supra note 11, section 32(1) provides: ‘This Charter applies (a) to the Parliament and government
of Canada in respect of all matters within the authority of Parliament …; and (b) to the legislature and
government of each province in respect of all matters within the authority of the legislature of each
province.” See also Constitution Act, 1982, s. 52(1), being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11.
40 [1993] 4 S.C.R. 3 at 90, 108 D.L.R. (4th) 193 at 251 [hereinafter Young cited to S.C.R.] (court or-
der to father not to discuss his religion with his children, in the context of a custody and access dis-
pute).
41R.WD.S.U.v. Dolphin Delivery, [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174 [hereinafter Dolphin
Delivery cited to S.C.R.] (injunction granted to prevent union picketing, in litigation concerning
common law tort of inducing a breach of contract).
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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tion are necessarily government action. Action taken by the executive or legislative
branches of government is open to Charter review, but some forms of judicial action
are exempt. In general, “the Charter does not apply to private litigation”‘2 and a judi-
cial order made in the course of a private legal dispute does not become government
action simply because, in political theory, the judiciary is described as a branch of the
government. According to McIntyre J., in disputes between private persons, courts
“act as neutral arbiters,”‘” not as government.
There are some situations in which judicial orders are connected sufficiently to
some “element of governmental intervention”
to make the Charter applicable. It will
apply to a court order, for instance, if the litigation itself involves some action of the
executive branch, whether that action is based on legislative authority or the common
law, as here independent government action can be found. The Charter will also ap-
ply to any judicial order authorised by legislation –
even an order made in private
litigation –
if the empowering legislation itself “specifically” violates the Charter;
in such a case the empowering legislation may itself be impugned as an action of the
legislature to which the Charter expressly applies.
In general, however, the Charter does not apply to private litigation unless some
“element of governmental intervention necessary to make the Charter applicable in
an otherwise private action”
is involved: that is, unless some “direct and precisely-
defined connection” 7 can be found between executive or legislative action and the
judicial order sought or resisted by the private party. What exactly will be sufficient to
constitute that element of governmental intervention has not been fully defined.
Later decisions have added further principles. The Charter will apply to any order
made by a court for predominantly public purposes; for example, an order made to
protect the administration of justice, even if that order is based on common law and
not legislative sources, and regardless of whether it was made at the court’s own ini-
tiative or at the behest of a private litigant.’ The crucial factor is the public purpose
for which such an order is made.’ In addition, private citizens may act as agents of the
government, making their actions subject to the Charter.”
The residual class of judicial orders which remain exempt from Charter review is
therefore rather narrow: that is, orders made for private purposes in private litigation
2 IbiL at 597, McIntyre J. (“s. 32… is conclusive on that issue”).
4 Ibid at 600.
“Ibid. at 602.
,Ibid at 603.
at 599.
4IbiL
4′ Ibid at 601.
” B.C.G.E. U. v. British Columbia (A.G.), [1988] 2 S.C.R. 214,53 D.L.R. (4th) 1 (injunction issued,
ex parte and of the court’s own motion, based upon the inherent jurisdiction to prevent contempt of
court, to restrain picketing of the court by union representing court employees).
,Dagenais, supra note 36.
5o See e.g., R. v. Dersch, [1993] 3 S.C.R. 768, 85 C.C.C. (3d) 1 (admissibility of analysis of blood
sample taken despite the accused’s specific objection).
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and then perhaps only orders made without reliance on a legislative or executive
source of authority. The category is restricted, but some judicial orders for the pro-
duction of medical records may remain in this category.
If the validity of the Supreme Court’s government action jurisprudence is ac-
cepted, then both a criminal prosecution and a medical disciplinary process involve
government action vis-a-vis the complainant and the defendant. A criminal prosecu-
tion is initiated by the executive for public purposes and is governed largely by a
statutory code. The prosecution is clearly government action on a number of counts,
and the right to make full answer and defense is asserted against the prosecution, not
the private complainant, allowing Charter rights to be asserted by the defendant. This
conclusion is elementary. As I,’Heureux-Dub6 J. declares in Carosella: “the Charter
is engaged by the fact of the prosecution itself. Where the Crown pursues a prosecu-
tion which would result in an unfair trial, this constitutes state action for the purposes
of the Charter.”5′
The position is less obvious when a criminal court orders the production of medi-
cal records at the request of the defendant. This could be viewed as a dispute between
private persons in which the judge acts as a neutral arbiter. The prosecution has not
requested disclosure of the complainant’s records, nor is she being prosecuted. It is
the private defendant that has requested access for his purposes. Where is the connec-
tion between government action and a judicial order for disclosure in these circum-
stances?
It is essential to the conclusions reached in O’Connor and Beharriell that the
Charter does apply to such an order made by a criminal court. It is only on this basis
that the complainant’s constitutional privacy rights could have been asserted and rec-
ognised by the Supreme Court in these cases. Presumably, the Charter applies be-
cause the judicial order is made in the public context of enforcing the criminal law.
The order to produce the complainant’s records is made at the behest of the defendant,
who is not connected to the government, but the order permits the prosecution to con-
tinue, for public purposes, and it prevents the entry of a stay. The order protects the
defendant’s Charter rights and coercive remedies exist for its enforcement. The order
is also made under statutory authority, although similar orders might be based on the
common law. It is possible that the order might have been made at the request of the
prosecution. Taken together, these features establish a sufficient governmental nexus
for the Charter to apply. This is the conclusion reached in Dagenais, where McLach-
lin J. writes: “court orders in the criminal sphere which affect the accused’s Charter
rights or procedures by which those rights may be vindicated must themselves con-
form to the Charter.”2 So the order to produce the complainant’s records in a criminal
case to protect the rights of the defendant could be challenged by the complainant on
Charter grounds.
51 Supra note 30 at 119.
5′ Supra note 36 at 944 [emphasis added].
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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Similar reasoning will lead to the identification of government action vis-a-vis
both the complainant and the defendant in most administrative proceedings. Medical
disciplinary proceedings exist to regulate the conduct of a profession within a statu-
tory scheme. The disciplinary process is initiated by the profession itself or by a
statutory delegate, not by a private complainant. The disciplinary tribunal is a creature
of statute with no inherent powers; it may not be controlled or funded by the govern-
ment, but it acts for predominantly public purposes. The tribunal has the power to de-
register a physician, preventing further practice, due to the statutory monopoly of
registered practitioners under the scheme. These are numerous features of govern-
ment involvement which affect the defendant. As for the complainant, the order of a
disciplinary tribunal for disclosure of her medical records must be considered a pro-
cedure through which the rights of the defendant are vindicated in that process. It
would not be the order of a neutral arbiter standing between two private parties. The
element of government action is again present, as in the criminal sphere.
2. The Judicial Order Based on Legislative Sources in Private
Proceedings
It is more difficult to locate the element of government action with respect to ju-
dicial orders made in private legal proceedings. If the complainant were to initiate a
tort action based on the common law there would seem to be no element of govern-
ment action permitting the defendant to assert the rights of procedural fairness from
the Canadian Charter. The court would act as a conduit for the complainant’s suit
against the defendant, and the proceedings may conclude with a judicial order capable
of coercive enforcement; but according to Dolphin Delivery, the judge acts as a neu-
tral arbiter in the private enforcement of the common law, not as a government actor
to which the Charter applies. It would seem, therefore, that the defendant could not
rely directly on the Constitution as a means of enhancing his informational entitle-
ments in the context of a tort action, although he may rely on common law fairness
principles or legislation.
The most difficult of the six situations to resolve is determining when there is a
sufficient element of government action to apply the Charter to a court order for the
production of records by the plaintiff in private litigation’ What if the defendant, in a
private tort action, seeks a judicial order for the production of the records and an order
for discovery is made based on legislative sources, although the cause of action ad-
vanced by the plaintiff lies in the common law? Would legislative authorisation of that
judicial order for discovery be a sufficient element of government involvement to
render it subject to Charter review, even if the empowering provision on which the
judge relies is not specifically offensive, but simply authorises the discovery of any
relevant evidence? This form of judicial action falls within the interstices of current,
murky government action doctrine.
” See Young, supra note 40.
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In the scenario under discussion, the proceedings are between private persons and
the judicial order is procedural. The order would be authorised by the legislature,
though the same kind of order might lie within the pre-existing inherent powers of the
court. The empowering provision may not offend the Canadian Charter specifically,
but through an exercise of judicial discretion, the power would be applied in a way
that offends privacy rights.’
According to Peter Hogg’s reading” of Dolphin Delivery, the Canadian Charter
would apply to such a judicial order, because the order, based on a code, is founded
on legislative action which is itself subject to the Charter. Hogg writes: “[t]he Charter
applies to the exercise of statutory authority regardless of whether the actor is part of
the government or is controlled by the government. It is the exertion of a power of
compulsion granted by statute that causes the Charter to apply.””6 He uses the term
“statute”, but the same logic would apply to any source of authority with legislative
origins. It is to the legislature that the Charter applies. In effect, Hogg presents an ul-
tra vires form of analysis: the legislature cannot authorise a judge to make an order
contrary to the Charter, so any order of a judge based on such legislative sources may
be challenged on Charter grounds as being made without lawful authority, whether or
not it involves an exercise of discretion on the part of the judge. The difficulty with
this argument is that it produces unprincipled distinctions. Its logic would apply the
-, An analogous situation is presented in Ryan, supra note 1, where the defendant, in the context of
private litigation against him for damages for sexual assault, successfully sought a judicial order for
the production of the plaintiff’s psychiatric records. The order was based upon the B.C. Supreme
Court Rules, B.C. Reg. 221/90, which were enacted by the B.C. Executive Council pursuant to the
Court Rules Act, S.B.C. 1989, c. 22 through an Order in Council (O.C. 1039/90, B.C. Gaz.
1990.11.440). McLachlin J., for the majority, considers the application of the Charter in these circum-
stances, but addresses her analysis to the application of the Charter to the “common law rule of
privilege” (privilege in the records being claimed by the plaintiff) (ibid. at 167-72). Whether the
Charter applies to an order of the court grounded in such an Order in Council is not directly consid-
ered by the majority, though perhaps it should have been. McLachlin J. simply concludes:
In view of the purely private nature of the litigation at bar, the Charter does not
“apply” per se. Nevertheless, ensuring that the common law of privilege develops in
accordance with “Charter values” requires that the existing rules be scrutinised to en-
sure that they reflect the values the Charter enshrines (ibid at 172).
In a similar vein, L’Heureux-Dub6 J. (in dissent) declares: “The exercise of a judicial discretion,
whether common law or statutory in origin, must comport with the values underlying the Charter”
(ibid at 184).
Puzzling as this approach seems (it comes so close to collapsing the public/private distinction in
Canadian constitutional law as to suggest Dolphin Delivery is now an endangered species, or of very
limited effect) its implication is, again, that the significance of the Charter’s application should not be
overemphasized in this context. L’Heureux-DubM J. is still able to conclude that in civil cases involv-
ing private parties and the exercise of judicial discretion, “the balancing of values may be somewhat
more flexible than in those [cases] involving the state as a party” (ibid. at 192).
‘5 P.W. Hogg, Constitutional Law of Canada, 4th student ed. (Toronto: Carswell, 1996) at 645ff.
5 Ibid at 650.
[hereinafter Hogg].
1998]
J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
43
Canadian Charter to every judicial order made under the Civil Code of Quebec,7 to
every order made under a legislated code of civil procedure, and even to former
common law procedural powers which happen to have been codified. This would be
the consequence of using the source of the authority for a judicial order as the test of
government action.
The principle that every judicial order based on legislative sources is subject to
the Canadian Charter is not widely accepted in Quebec!’ It would create unsatisfac-
tory distinctions between the reach of the Canadian Charter in Quebec and in the
common law provinces, between codified and uncodified judicial powers, and be-
tween causes of action based on statute and on the common law. Moreover, given the
pervasiveness of legislative action even in the private litigation field, applying the
Charter to all forms of judicial order based on such sources would subvert the pri-
mary principle, stated by the Supreme Court in Dolphin Delivery, that litigation be-
tween private persons should not be Charter-regulated.
Even if the current framework of principles concerning government action is en-
dorsed, some intermediate position should be found to avoid these kinds of difficul-
ties –
a position in which some judicial orders based on legislative sources are not
considered government action in the context of private litigation due to their legisla-
tive authorisation alone. The extent of government involvement might remain the test,
as suggested in Dolphin Delivery, but the legislative origins of judicial authority
would be only one indicator of government involvement, not a sufficient test
57The C.C.Q. is not a statute, but it is of legislative origins.
See e.g., J.-D. Gagnon, “l’arrat Dolphin Delivery: La porte est-elle ouverte ou fermte?” (1987)
32 McGill LJ. 924.
“‘ Hogg recognises that the source of the judicial power cannot be a sufficient test of government
action when he states that judicial orders made under the civil law of Quebec are not subject to the
Charter (Hogg, supra note 55 at 658 n.84). This subverts his general thesis because much civil law is
of legislative origins. Hogg’s suggestion that the Canadian Charter does not apply to the C.C.Q. is
not fully supportable in any case. He finds support for it in Tremblay v. Daigle, [1989] 2 S.C.R. 530,
62 D.L.R. (4th) 634 [hereinafter Tremblay cited to S.C.R.], but the matter is not decided there. Trem-
blay argued that his rights or the rights of his unborn child would be violated if an injunction were not
issued to prevent termination of the mother’s pregnancy without his consent. The court held that no
legal rights of Tremblay or the foetus were implicated. The failure of a court to make an order protect-
ing non-existent legal rights could not constitute government action. Nor did any existing law infringe
Canadian Charter rights in the manner argued. That is what the Court decides in Tremblay (ibid. at
571). The relationship between the Canadian Charter and the Civil Code of Lower Canada was raised
by the mother’s argument that the injunction granted in the court below, purportedly based on the
C.C.L.C., infringed her section 7 rights. That point was never addressed because the court resolved
the case another way. It held there was no authority under the C.C.L.C. or the Quebec Charter to
grant the injunction and no independent source of authority for it in the Canadian Charter. Therefore,
no conflict between an exercise of authority under the C.C.L.C. and a Canadian Charter right was
presented for decision. The Supreme Court’s government action doctrine appears to support the posi-
tion that judicial orders under the C.C.Q. should be reviewable under the Canadian Charter, if a suf-
ficient element of government involvement exists.
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The test of the Canadian Charter’s application might be the level of government
involvement as a whole, and a list of indicators of government involvement could in-
clude:
the nature of the underlying cause of action;
” the extent of legislative involvement in authorising the judicial order;
” the nature of the interests advanced by the order;
” the identity of the litigants and the nature of their aims;
” the extent of government regulation in the field;
any collateral forms of government involvement;
* the existence of other means of vindicating the rights asserted.
the nature of the remedies available for the order’s enforcement;
Some critical mix of these features, established on a case-by-case basis, would
establish the existence of government action for Charter purposes in the private liti-
gation field. Applying this approach may result in different conclusions on the Char-
ter’s application to judicial orders for the production of medical records in various
forms of private litigation. For example, in proceedings in the tort of trespass, a judi-
cial order based on a code of civil procedure might not be subject to the Charter, even
if it does infringe privacy interests. On the other hand, in proceedings concerning the
private enforcement of a human rights code – where the allegation is one of a human
a
rights violation by way of sexual harassment and the cause of action is statutory –
different approach may be appropriate.
3. Defendants’ Interests in Disciplinary Proceedings
For the Canadian Charter to apply, the element of government action must be
found. For the section 7 guarantee of fundamental justice to apply, that government
action must threaten to deprive a person of life, liberty or security. This poses no diffi-
culty with regard to the complainant in the above scenario. The Supreme Court has
recognised that privacy interests may be an aspect of liberty or security of the per-
son,’ which would seem to be threatened by an order for the production of medical
records in virtually any form of legal process.
The defendant’s life, liberty and security of the person are also clearly threatened
by a criminal prosecution, especially by one that may lead to imprisonment. However,
the life, liberty and security of the defendant may not be threatened in civil or admin-
istrative proceedings in which damages, fines or other economic penalties are the
principal remedies. In these contexts, the defendant may be unable to invoke the en-
hanced procedural protections or informational entitlements that a successful applica-
tion of section 7 might provide.
‘ See infra note 78 and accompanying text.
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Whether section 7 guarantees a floor of procedural fairness to defendants in pro-
fessional disciplinary proceedings which may affect their right to practise is yet to be
resolved.” One view is that practice of a profession involves purely economic inter-
ests, deliberately excluded from the scope of section 7 whose coverage is limited to
personal interests in physical integrity or bodily security. Another view is that liberty
should be given a generous reading to embrace the freedom to practise a profession,
which is as much a way of life as a source of income.’2 Hogg concludes:
[d]espite some lower court decisions to the contrary, which emphasize the role
of work as an instrument of self-fulfilment, the regulation of trades and profes-
sions should be regarded as restrictions on economic liberty that are outside the
scope of s. 7.,
The better view may be that defendants’ rights in some kinds of professional discipli-
nary proceedings are protected by section 7, where the allegations are on the same
plane of seriousness as in a criminal prosecution.”
The outcome of this analysis of the application of section 7 of the Canadian
Charter to the position of the complainant and the defendant in this scenario is illus-
trated in the chart above. It shows the possibility of a constitutional imbalance,
whereby the complainant’s privacy rights may be protected by the Canadian Charter
in proceedings in which the defendant’s rights to information may not be –
in private
litigation and disciplinary proceedings.
II. Some Features of the Balancing Calculus
Turning from the general form of the analysis, a number of particular aspects of
the balancing calculus should be considered. In this section, an attempt is made to
determine more precisely the meaning attributed by the courts to the interests weighed
in the balance. Next, the requirement of relevance is addressed: that is, the necessity
that any information whose production is sought be relevant to some matter in dispute
in the litigation. Such a requirement acts as a threshold both to compelled disclosure
and to any subsequent admission of the material in evidence. Finally, attention is
given to the capacity of a court to minimise intrusions upon privacy by limiting the
6 The matter was left open by lacobucci J. in Pearlman v. Manitoba Law Society Judicial Commit-
tee, [1991] 2 S.C.R. 869, 84 D.L.R. (4th) 105 [hereinafter cited to S.C.R.], despite his remark that
“whether the right to practise [a profession] is embraced by the ‘right to life, liberty and security of
the person’ in s. 7 is an extremely important question, with equally important consequences” (ibid. at
881). See the discussion in Evans, supra note 34 at 186-99.
62 See Wilson v. British Columbia (Medical Services Commission) (1988), 53 D.L.R. (4th) 171,
[1989] 2 W.W.R. 1 (B.C. C.A.); Harvey v. Law Society of Newfoundland (1992), 88 D.L.R. (4th) 487,
2 Admin. L.R. 306 (Nfld. S.C. (T.D.)); and Reference re Ss. 193 and 195(1)(c) Criminal Code (Man.),
[1990] 1 S.C.R. 1123 at 1170,56 C.C.C. (3d) 65 at 100, where Lamer J. was unwilling to extend sec-
tion 7 to cover every activity that might affect a person’s “sense of identity, self-worth and emotional
well-being”.
Hogg, supra note 55 at 833.
,See R. v. Wigglesworth, [1987] 2 S.C.R. 541,45 D.L.R. (4th) 235, in relation to a different Char-
ter right.
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scope of any disclosure that is ordered and by controlling the extent of the material’s
circulation, strategies a court will take into account in deciding whether production
should be ordered at all.
A. Confidentiality and Privacy
1. The Two Conceptions
It is possible to generate from the leading cases concerning medical records a
clearer conception of privacy and confidentiality as legally protected interests. Pri-
vacy and confidentiality are usually considered distinct conceptions, though they are
easily blurred.’ Confidentiality is associated with fiduciary and other special relation-
ships which involve an element of reliance or trust on the part of one person (often
described as the vulnerable party) in relation to another. The purpose of the duty of
confidence is to support the development of such trusting relationships for the social
and personal benefits they provide.” Where such a confidential relationship exists, in-
formation that has been revealed, collected or generated within its course should not
be used in a manner adverse to the interests of the vulnerable party without that
party’s authorization. The usual clinical relationship between a patient and a therapist
is a confidential relationship of this kind.
A wide range of material may be covered by a duty of confidence or non-
disclosure in these circumstances. Not only may the revelations or communications
made by a patient to a therapist be protected, but also independent observations by the
therapist. Even information provided to the therapist by third persons outside the rela-
tionship may be included, provided the material has been collected in the course of
the special relationship with the expectation that it would not be disclosed. In these
circumstances, the courts may rely on equitable principles to prohibit the material’s
unauthorised use.’
The right to privacy is said to be an individual interest not dependent on the exis-
tence of a special relationship for its genesis, and should be respected even by strang-
ers and especially by the government. Material created without association with any
other person may have privacy implications, as is the case with personal diaries or
photographs. Therefore, the purpose of protecting privacy is not to promote special
relationships; it is to maintain personal dignity, individual integrity, self-respect and
autonomy by permitting individuals to maintain some measure of control over inti-
mate material. The focus is on the effects that disclosure may have on a person.
“See D. Gibson, ed., Aspects of Privacy Law: Essays in Honour of John M. Sharp (Toronto: But-
terworths, 1980).
6See E Gurry, Breach of Confidence (Oxford: Clarendon Press, 1984).
6 Slavutych v. Baker (1975), [1976] 1 S.C.R. 254, 55 D.L.R. (3d) 224 [hereinafter cited to S.C.R.]
(admissibility in dismissal from employment proceedings of a confidential tenure assessment form
completed by the dismissed professor in relation to a colleague).
1998]
J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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Within therapeutic relationships, confidential material is revealed which also has
privacy implications. In this case, its disclosure to others without authorisation might
be restrained either as a breach of privacy or as a breach of confidence. Privacy must
often be respected within a confidential relationship, even if a confidential relation-
ship is not necessary to protect privacy; but not all material collected within a confi-
dential relationship has privacy implications, some material, if released, would pose
no threat to personal dignity.
In assessing these interests courts are concerned not only with threats to the dig-
nity of the patient whose records are at risk of exposure in the instant case, nor only
with relations between that patient and the therapists. They are also concerned with
the consequences of ordering disclosure for all those who might seek assistance in the
future and with all potential therapeutic relationships: that is, the general effects of
acting on a disclosure rule are an important part of the analysis.” It may not even be
necessary for a person opposing production to establish that the patient whose records
are under consideration will be harmed by their disclosure. It may be sufficient to ar-
gue that harm may accrue to others in similar circumstances in the future.
The consequences for both patients and therapists are relevant. To the extent that
disclosure to outsiders is possible, patients may be less willing to present themselves
for treatment, they may be less candid and they may end treatment more readily –
difficulties compounded in relation to health conditions which carry a heavy stigma.
Therapy may be abandoned if confidential material is released, adversely affecting the
patient’s health.” Clinicians who are aware of the possibilities of forced disclosure
may feel obliged to warn patients at the outset, compromising communication be-
tween them. Note-taking may be affected, even to the extent that a therapist refuses to
keep official records. If a professional is subpoenaed to testify, the expert may be
forced to choose between the health needs of a patient and imprisonment for con-
tempt.
The prospect of compelled production may strongly discourage the reporting of
offences or the commencement of legitimate proceedings. A complainant, already re-
luctant to initiate litigation, may be even more hesitant to proceed in the knowledge
that her intimacies may be exposed to her abuser, who may then use that information
to attack her credibility or to contradict her testimony at the trial.”0
” See L’Heureux-Dub6 J.’s analysis of the values promoted by the religious communications privi-
lege, dissenting in R. v. Gruenke [1991] 3 S.C.R. 263 at 297ff., (sub nonrn R. v. Fosty) 6 W.W.R. 673
at 695ff. [hereinafter Gruenke cited to S.C.R.] (extent of privilege attaching to communications be-
tween defendant and church pastor and counsellor).
“Once psychiatrist-patient confidentiality is broken and the psychiatrist becomes involved in the
patient’s external world, the ‘frame’ of the therapy is broken” (Ryan, supra note I at 173, McLachlin
J.).
7 See the opinion of L’Heureux-Dub6 J. in R. v. Osolin, [1993] 4 S.C.R. 595 at 621-22, 109 D.L.R.
(4th) 478 at 495-96 [hereinafter Osolin cited to S.C.R.] (ability to cross-examine complainant upon
her mental health records, when the records were potentially relevant to her credibility as a witness).
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I’Heureux-Dub6 J. has also pointed to the misuse of psychiatric material to stig-
matise witnesses.7′ Myths without empirical foundation may be promoted which mask
subtle forms of discrimination, such as myths connecting certain forms of mental dis-
order with the reliability of testimony. Instead of suggesting that the complainant con-
sented because of the kind of woman she is, a tactic now largely prohibited, the psy-
chiatric record may be used to suggest that she is an unreliable witness because of the
kind of disorder she has. Such tactics may impact disproportionately on women, the
complainants in sexual assault cases in which access to this kind of material is fre-
quently sought.’
This concem about reasoning from particular kinds of myth” is shared in
O’Connor by other members of the Court4 who are aware that requests for intimate
information may be used as a deliberate strategy to seek a stay or the withdrawal of a
complaint. Certainly all members of the Court would endorse the view that a com-
plainant “should not be unduly harassed and pilloried to the extent of becoming a vic-
tim of an insensitive judicial system.”‘
2. Constitutional Protection
The duty of health professionals to maintain the privacy and confidentiality of
patient information is both a legal and an ethical duty. Its sources in legislation, pri-
vate law principles, ‘ and the law of evidentiary privilege or professional secrecy” are
well known. It is the constitutional protection of privacy that is novel.
7 Ibid. at 621-25.
71 McLachlin J. states for the majority in Ryan: “She is doubly victimized, initially by the sexual as-
sault and later by the price she must pay to claim redress” (supra note 1 at 175). See s. 278.5(2)(d)
Criminal Code, supra note 5, per Criminal Code amendments, supra note 8 (the factors to consider in
deciding whether the record should be produced to the court for review to include “whether produc-
tion… is based on a discriminatory belief’).
7′ See s. 276 Criminal Code, ibid.
74 See O’Connor, supra note 6 at 442-43, Lamer C.J.C. and Sopinka J.; R. v. Seaboyer, [1991] 2
S.C.R. 577, 83 D.L.R. (4th) 193; R. v. Crosby, [1995] 2 S.C.R. 912,98 C.C.C. (3d) 225.
7S Osolin, supra note 70 at 669, Cory J.
76 Duties of non-disclosure are established by various means. The law of torts or obligations: Fur-
niss v. Fitchett, [1958] N.Z.L.R. 396 (S.C.); in Quebec, art. 1457 C.C.Q. The law of equity or breach
of confidence: Mclnerney v. MacDonald, [1992] 2 S.C.R. 138, 93 D.L.R. (4th) 415. Through privacy
codes or other legislation conceming health or mental health records: in Quebec, ss. 5, 9 Quebec
Charter, supra note 4; art. 35 C.C.Q.; An Act respecting Health Services and Social Services, R.S.Q.
c. S-4.2, s. 19. Under ethical codes having the force of delegated legislation: Code de diontologie des
midecins, R.R.Q. 1981, c. M-9, r. 4. In addition, ethical obligations may be enforced through legal
mechanisms such as disciplinary proceedings: Duncan v. Medical Practitioners Disciplinary Commit-
tee, [1986] 1 N.Z.L.R. 513 (C.A.).
” The class of information covered by usual privilege principles is particularly narrow. It may ex-
tend only to communications (and not independent observations or formulations) which occur within
a recognised form of special relationship and which are covered by an obligation of confidence:
Trempe v. Dow Chemicals of Canada Ltd, [1980] C.A. 571 [hereinafter Trempe].
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J. DAWSON- COMPELLED PRODUCTION OF MEDICAL RECORDS
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The Supreme Court of Canada has determined that the right to privacy is pro-
tected by sections 7 and 8 of the Canadian Charter. A limited right to privacy –
which was initially seen as the constitutional value behind the ban on unreasonable
search and seizure –
is now considered an aspect of the liberty or security of the per-
son, secured against deprivation except in accordance with the principles of funda-
mental justice.” In O’Connor, the Chief Justice and Sopinka J. concluded that “all
individuals have a right to privacy which should be protected as much as is reasona-
bly possible” and “a constitutional right to privacy extends to information contained
in many forms of third party records.”‘ Any attempt to demand the production of pri-
vate records through government action engages the Canadian Charter’s protection
and “s. 7 requires a reasonable system of ‘pre-authorization’
to justify court-
sanctioned intrusions into the private records of witnesses in legal proceedings.”‘” In
Dynent, La Forest J. accepted that “privacy is at the heart of liberty in the modem
state”‘” and expressed the view that protecting privacy requires individual control over
the purpose and manner of disclosure of personal information at the point of disclo-
sure, not merely through retrospective remedies.’
The core concept in the Court’s approach is one of “psychological security”” or
“protect[ion] against psychological trauma.”8 The flow of reasoning is from the posi-
tive protection in the Canadian Charter of personal liberty and security, to the consti-
tutional purposes of protecting dignity, integrity and autonomy, to the particular ex-
pression of those values through a “reasonable expectation of privacy against gov-
ernmental encroachments.”‘ The Court is explicit in holding that this derived right is
enhanced in medical contexts due to the social significance of the doctor-patient rela-
In Rodtiguez, supra note 15 at 587, Sopinka J. for the majority, citing Dickson C.J.C. in R. v.
Morgentaler, [1988] 1 S.C.R. 30 at 54-57, 44 D.L.R. (4th) 385 at 400-02, states that “security of the
person” relates to “one’s physical or mental integrity and one’s control over these,” to “serious state-
imposed psychological stress” and to “emotional integrity”. Determining whether state interference
with such interests is “in accordance with the principles of fundamental justice” demands a balancing
of the interests of the state and the individual. A balancing of both substantive and procedural con-
cems is required as the “principles of fundamental justice are concerned with more than process”
(Rodriguez, ibid. at 607, Sopinka J.).
O’Connor, supra note 6 at 434, a view endorsed by a majority of the Court.
“Ibid at 487, L’Heureux-Dub J., a view endorsed by the majority.
R. v. Dynent, [1988] 2 S.C.R. 417 at 427, 55 D.L.R. (4th) 503 at 512 [hereinafter Dyment cited to
S.C.R.], LaForest J. (doctor taking blood sample at own initiative and passing to the Police for use as
evidence of drnk driving).
” Ibid. at 430; see also O’Connor, supra note 6 at 486-87, L’Heureux-Dub6 J.
83 R. v. Morgentaler, [1988] 2 S.C.R. 30 at 163,44 D.L.R. (4th) 383 at 484, Wilson J.
“, O’Connor, supra note 6 at 483, L’Heureux-Dub4 J; and her dissent in Ryan, supra note 1 at 199-
200.
“Supra note 81 at 426. In R v. Plant, [1993] 3 S.C.R. 281 at 293, 84 C.C.C. (3d) 203, in the context
of section 8, a majority of the Court found:
the Charter should seek to protect a biographical core of personal information which
individuals in a free and democratic society would wish to maintain and control from
dissemination to the state. This would include information which tends to reveal inti-
mate details of the lifestyle and personal choices of the individual.
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tionship, the special vulnerability of the patient and the common need to reveal in-
formation of an intimate character. The hospital has been identified as a special area
of privacy concern.”
In the Court’s analysis, the Canadian Charter’s protection of privacy represents a
condensation of the numerous means through which this value is recognised else-
where in the law.” Nevertheless, the value of privacy must be balanced against other
fundamental societal concerns.”
3. Statutory Authority for Disclosure
There is considerable strength to the obligation of non-disclosure imposed on
health professionals in both judicial and extra-judicial contexts –
by the civil law,
statute, and in certain cases, the Constitution. Disclosure of patient information by
therapists should usually be authorised by a clear form of statutory authority which it-
self can withstand constitutional scrutiny. Numerous statutes provide authority or
support for access to medical records in judicial or complaint proceedings. Codes of
criminal and civil procedure routinely empower adjudicative bodies to summon all
relevant witnesses and documents. Statutory inquiries, human rights tribunals and
health commissioners may be entitled to access as well. Privacy and health informa-
tion legislation invariably contemplates release in accordance with the law.
Access without the consent of the subject of the records will not be authorised by
a contract or arrangement to which the subject is not a party. In the above scenario, a
contract of employment may exist between the defendant and the hospital which ap-
pears to guarantee procedural fairness to employees in the processing of any com-
plaint against them. That contractual arrangement cannot authorise access to a pa-
tient’s records, however, when the complainant, whose consent to access is required,
is not a party to the agreement. Nor do the hospital’s property rights in the records
permit the management to grant access to a clinician not involved in the complain-
ant’s treatment. Their property rights are encumbered by the obligation of confidence
which can be waived only by the complainant or her agent. Neither will the authority
to grant access be provided by a hospital code of employees’ or patients’ rights,” un-
less perhaps the hospital is expressly empowered by statute to make rules of this kind
which may prevail over privacy legislation and the general law.’
6 Dyment, ibid. at 432-34, LaForest J.
s7Osolin, supra note 70 at 613-15, L’Heureux-Dub6 J.
Dyment, supra note 81 at 428, LaForest J.; L’Heureux-Dub J. in O’Connor, supra note 6 at 485.
See the comments of the Supreme Court in Frenette, supra note 20 at 671-73, concerning the in-
effectiveness of hospital regulations to control the circumstances in which a patient may waive the
right to have confidentiality maintained.
90 In an analogous context, the Supreme Court of Canada determined that the Canadian Labour Re-
lations Board had no inherent powers to compel the production of documents for the purposes of its
proceedings. Unlike a Superior Court, an administrative agency has no inherent authority, legislation
alone delineates its powers. The functional requirements of an agency do not generate specific coer-
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B. Full Answer and Defense
The need for litigants to obtain full access to information is a powerful counter-
principle which may prevail over a duty of confidence or a right of privacy. This
statement requires little explanation. Accurate and reliable fact-finding on the basis of
all relevant evidence is a fundamental objective of litigation. Any rule of evidentiary
privilege or non-disclosure which prevents relevant material from coming into the
hands of the parties or the court “acts as an exception to the truth-finding process.”‘ It
may conflict with the right of the defendant to make full answer and defense, a right
described by the Supreme Court in Stinchcombe as “one of the pillars of criminal jus-
tice on which we heavily depend to ensure that the innocent are not convicted.’ 2
There will usually be a duty to disclose medical information to the defendant when
“the right to make full answer and defence is implicated by information contained in
the records.”’93 Non-production or exclusion from evidence will be the exception.
Lamer C.J.C. refers in Gruenke to the “fundamental ‘first principle’ that all relevant
evidence is admissible until proven otherwise,”9 while L’Heureux-Dub6 J. writes that
“highly probative and reliable evidence is not excluded from scrutiny without com-
pelling reasons.”95
Where there is no public policy exception, these principles translate into rules of
procedure which permit the defendant to obtain a court order for the production of
any relevant information for inspection. This information might later be used either
directly or indirectly in litigation: as evidence, to identify potential witnesses, to de-
velop cross-examination, or to attack the competence or credibility of the complainant
or any other witness.’ In default, the proceedings should be stayed.
There are analogous consequences for the disclosure obligations of the Crown in
criminal proceedings. It was determined by the majority
in O’Connor that
“information in the possession of the Crown which is clearly relevant and important
to the ability of the accused to raise a defence must be disclosed to the accused, re-
gardless of any potential claim of privilege which might arise.”9 Compelled disclo-
sure is necessary to satisfy these defense interests only if the information cannot rea-
sonably be obtained by other means. Those seeking access may be required to satisfy
a court that other avenues are not available or have been attempted unsuccessfully. In
criminal proceedings, the defendant’s information rights are protected by legislation
governing criminal procedure and by the inherent powers of courts to ensure fairness
cive powers overriding the general law: Canadian Pacific Airlines v. Canadian Air Line Pilots Assn.,
(1993] 3 S.C.R. 724, 108 D.L.R. (4th) 1.
9′ Beharriell, supra note 7 at 559, L’Heureux-Dub6 J.
9’R. v. Stinchcombe, [1991] 3 S.C.R. 326 at 336,68 C.C.C. (3d) 1 at 9, Sopinka J. (extent of Crown
obligation to produce the fruits of the police investigation to the accused, including statements made
by witnesses and notes of interviews); Seaboyer, supra note 74; Carosella, supra note 30.
9 O’Connor, supra note 6 at 436, Lamer C.J.C. and Sopinka J.
94Gruenke, supra note 68 at 288.
931bi. at 296.
96 See e.g., Carosella, supra note 30 at 108-10, Sopinka J.
97O’Connor, supra note 6 at 431, Lamer CJ.C. and Sopinka J.
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in trials. In addition, “Stinchcombe set out the general principle that an accused’s abil-
ity to access information necessary to make full answer and defence is now constitu-
tionally protected under s. 7 of the Canadian Charter of Rights and Freedoms.””
The defendant’s rights in private proceedings are covered by the law of civil pro-
cedure and in disciplinary proceedings by the relevant legislation, supplemented if
necessary by principles of administrative fairness. Pre-trial discovery on both sides
has long been a feature of civil procedure to eliminate any element of surprise and to
specify the issues to be contested at the trial. The guarantee of a fair hearing in section
23 of the Quebec Charter may further elevate duties of disclosure to the defense in
that province.
C. The Meaning of Relevance
It is relevance and not admissibility that is the key to the production of medical
records. Material may be compelled which is later found inadmissible, and the appli-
cant for production need not show that a document would be admissible to justify its
disclosure. Information which would be found inadmissible may lead the defense to
material that may be legitimately presented in evidence. For example, a therapist’s
notes of a conversation with the spouse of the complainant may be hearsay in that
form, but an alerted defendant may call the spouse to give direct testimony.” Prior to
trial, the issues may be poorly defined in any case and the question of admissibility
premature.
The meaning of relevance is not fixed. The context determines how relevant the
material must be, and to what it must relate. The Crown’s duty of disclosure in crimi-
nal cases is particularly onerous. This means material of less direct relevance may
have to be disclosed by the Crown than is the case for disclosure by private litigants
or third parties. The distinction is one of degree. In the context of Crown disclosure,
the Supreme Court decided in Stinchcombe that the test of relevance is one of poten-
tial usefulness in making a full answer to the allegations made, in terms of assisting
the case for the defense or damaging the prosecution.”‘ The onus rests on the prose-
cution to justify non-disclosure of information in its possession.
Information in records may be useful in a way that does not require its admission.
It may be relevant for cross-examination or for the identification of witnesses.
Whether material is actually used or presented for admission is a matter for the de-
fense, whose strategic decisions will be pre-empted if all access is denied.
“Ibid at 433.
“Ibid at 437-38, Lamer CJ.C. and Sopinka J., citing R. v. Preston, [1993] 4 All E.R. 638 at 664
(H.L.), Lord Mustill.
… Stinchcombe, supra note 92; see also R. v. Egger, [1993] 2 S.C.R. 451, 103 D.L.R. (4th) 678
(availability to defendant of blood samples and analysis to be used as evidence of drunk driving);
Carosella, supra note 30; L. Colton, “R. v. Stinchcombe: Defining Disclosure” (1995) 40 McGill L.J.
525; L. Stuesser, “General Principles Concerning Disclosure” (1996) 1 Can. Crim. L.R. 1.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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Relevance is defined differently when the information is in the hands of third
parties, who are not in the same position as the Crown.”‘ According to the Supreme
Court, third parties may only be ordered to produce material that is likely to be used
for evidential purposes, not merely strategic or tactical ones. The test is one of proba-
tive value.”5 The private litigant is likely to fall in an intermediate position between
the Crown and third parties. Private plaintiffs do not act as agents of the government,
but they are under obligations to permit discovery which would not apply to mere
witnesses. A prosecuting authority before a disciplinary tribunal and the tribunal it-
self, as public bodies, seem analogous to the Crown.
Generally, any patient-related medical information may be considered relevant
where it relates to:”‘
* an element of the case against the defendant, such as “the unfolding of
events underlying the criminal complaint”” and consent to physical
contact;’
” the competence, credibility or reliability of a witness’ testimony;
*
the quality of a witness’ perception and the influence of medication;”‘
”
*
the process through which a witness recovered his or her memory of
events and the use of therapy in that process;”
the cause and the assessment of damage suffered by the victim.”‘
01 For the reasons, see O’Connor, supra note 6 at 436-37.
‘0o Ibid at 437.
’03 R. v. Marquard, [1993] 4 S.C.R. 223, 108 D.L.R. (4th) 47 (expert evidence of physicians con-
cerning competency, credibility and memory of a child witness); R. v. Lavallee, [1990] 1 S.C.R. 852,
55 C.C.C. (3d) 97; O’Connor, supra note 6 at 439-41. No doubt there is a heightened probability the
defense will seek to admit psychiatric information for such purposes when the complainant is, at the
time of the relevant events, under treatment in a hospital.
O’Connor, ibid at 441; Carosella, supra note 30.
” Toohey v. Metropolitan Police Commissioner, [1965] 1 All E.R. 506 (H.L.); Marquard, supra
note 103; R. v. Hawke (1975), 7 O.R. (2d) 145 (C.A.), 22 C.C.C. (2d) 19; R. v. French (1977), 37
C.C.C. (2d) 201 (Ont. C.A.), aff’d (sub nom. French v. R.) [1980] 1 S.C.R. 158,98 D.L.R. (3d) 385.
” Marquard, ibid.; Carosella, supra note 30; Lowery v. R. (1973), [1974] A.C. 85 (P.C.); R. v.
Norman (1993), 16 O.R. (3d) 295 (C.A.), 87 C.C.C. (3d) 153 [hereinafter Norman]; R. v. R.(L)
(1995), 127 D.L.R. (4th) 170, 100 C.C.C. (3d) 329 (Ont C.A.). In Toohey, the House of Lords said
psychiatric evidence may be relevant because “[t]he witness may, through his mental trouble, derive a
fanciful or untrue picture from events while they are actually occurring, or he may have a fanciful or
untrue recollection of them which distorts his evidence at the time when he is giving it” (ibid. at 511,
Lord Pearce). On warning a jury of the potential unreliability of a mentally disordered witness, see
also R. v. Spencer and Smails (1986), [1987] A.C. 128 (H.L.); R. v. Harawira, [1989] 2 N.Z.L.R. 714
(C.A.). On competency, Baron Alderson wrote in 1851 that the question is whether the potential wit-
ness is “non compos mentis quoad hoc, or non compos mentis altogether” (R. v. Hill (1851), 169 E.R.
495 at 497 (C.A.), 2 Den. 254 at 259).
207 R. v. R.(L), ibid; R. v. Ross (1993), 119 N.S.R. (2d) 177 (S.C. (A.D.)); R. v. Ross (1993), 121
N.S.R. (2d) 242 (C.A.).
“‘ Norman, supra note 106.
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To give a number of recent examples, in R. v. Mandeville the complainant in a
sexual assault case had been under hospital treatment for alcoholism. Clinical obser-
vations in her records might establish that she suffered from Korsakoff’s psychosis, a
psychiatric syndrome associated with memory deficiency and confabulation.”‘ The
court ordered the hospital to produce the records to the defense. In R. v. R.(L.), both
the defendant and the two complainants were under in-patient treatment for depres-
sion, one patient being accused of aiding the others’ suicide attempts. The complain-
ants’ psychiatric records were found admissible as they might “bear on the victims’
credibility, including testimonial factors such as the quality of their perception of
events at the time of the offence, and their memory since.””‘
R. v. Ross is a case in which the absence of psychiatric evidence concerning reli-
ability may have produced a serious injustice. After the defendant had been convicted
on a charge of sexual assault and imprisoned, the complainant’s psychiatrist, who had
treated her for eight years and had read of the trial in the press, approached the prose-
cution. He informed counsel that the complainant’s early experiences –
perhaps in-
cluding witnessing incidents of sexual assault as a child – may have led her to mis-
construe the lawful advances of the accused. This evidence would have corroborated
the defendant’s account. The psychiatrist “saw a possibility that the complainant’s
testimony could really be wrong even though she believed it to be true.””. A new trial
was ordered at which the psychiatrist could testify. Ross also highlights the incompa-
rability of the interests in the balance. Is it really possible to “weigh” the effects on a
young student of what may have been his wrongful conviction and imprisonment
against the intrusion on the complainant’s privacy which will flow from her psychia-
trist’s testimony at the trial? A court can choose between these interests. It chose,
rightly in this case, informed fact-finding.
L’Heureux-Dub6 J. is also correct to warn in Osolin of the dangers of accepting
too readily psychiatric challenges to the credibility of complainants in sexual assault
cases.” Victims must be free to seek assistance without it counting against the verac-
ity of a complaint and without their records being subject to “fishing expeditions”.
The court must stand between the parties, filtering out requests for information that is
not sufficiently relevant, while ordering production when access is necessary and it
would be unfair to refuse examination by the defense. The criterion of relevance and
the production process are the necessary means of separating legitimate requests from
fishing expeditions and conjecture.”‘ But the court must not insist that the defense
provide a detailed justification for the disclosure of records whose contents are as yet
“‘ Ryan, supra note 1.
” R. v. Mandeville (1993), [1994] N.W.T.R. 126 (S.C.), 21 C.R. (4th) 272 [hereinafter cited to
N.W.T.R.].
“‘ R. v. R.(L), supra note 106 at 180.
112 (1993), 121 N.S.R. (2d) 242 at 243 (C.A.).
“‘ Osolin, supra note 70 at 623-25.
‘R. v. Chaplin, [1995] 1 S.C.R. 727 at 746,96 C.C.C. (3d) 225 at 237, Sopinka J. (The Crown has
no duty to disclose evidence to the defendant where the Crown has established the evidence is beyond
the control of the prosecution, is clearly irrelevant or privileged, or where the existence of the material
has not been sufficiently established by the defendant).
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J. DAWSON- COMPELLED PRODUCTION OF MEDICAL RECORDS
55
unknown. As the majority in O’Connor identified, the problem for the defendant who
has not yet had access to the detailed data a medical record might provide, is how to
get beyond assertion and speculation concerning the potential usefulness of the rec-
ords to evidence. Requiring evidence to justify disclosure to the defense in these cir-
cumstances may act as a prohibition on disclosure, contrary to the principles of fun-
damental justice.”‘
Viewed in this light, the constitutionality of the recent amendments to the Crimi-
nal Code is doubtful. Section 278.3(4) attempts to limit the range of assertions that
may be “sufficient on their own to establish the record is likely relevant.'”” For in-
stance, an assertion that “the record relates to medical or psychiatric treatment, ther-
apy or counselling that the complainant … has received” is declared to be insufficient
for this purpose. This provision may be contrary to the principles of fundamental jus-
tice if it is has the effect of placing an unrealistic burden on the defendant.”‘
D. Limiting the Extent of Disclosure
When the compelled production of medical records is considered, the weight ac-
corded to the complainant’s confidentiality or privacy concerns will be influenced by
the extent of disclosure contemplated. The order may relate only to limited parts of a
record and a restricted set of people may be granted access.”‘ In many cases, judges
have pointed to such conditions as a reason to discount privacy objections. This may
easily swing the balance in favour of production.”‘
The information in the record must be classified and considered separately. In-
formation found irrelevant or privileged may be sealed to prevent its inspection, while
the remainder is exposed.'” Inspection by the defense may be permitted only in the
presence of a judge or registrar with copying prohibited. Initially, access may be
“‘ See Carosella, supra note 30 at 100, 135-38.
“‘ Supra note 5, per the Criminal Code Amendments, supra note 8.
“.. This was one of the reasons for striking down Bill C-46 advanced by the Alberta Court of
Queen’s Bench in an early constitutional challenge. Beizil J. declared the Bill unconstitutional be-
cause it “creates a legislative regime which is presumptive against disclosure even though the Su-
preme Court of Canada majority in O’Connor stated that such records are often relevant in criminal
proceedings” (R. v. Mills, [1997] AJ. No. 891 (Q.L.) at para. 83). Mills was followed in Ontario in R.
v. Lee, [1997] O.J. No. 3795 (Q.L.) (Gen. Div.). No final resolution of this issue seems likely before it
arrives, again, before the Supreme Court of Canada. See also D. Paciocco, “Bill C-46 Should Not
Survive Constitutional Challenge” (1997) 3 Sexual Offences L.R. 185.
“. For the conditions which may be placed on disclosure in criminal proceedings, see ss. 278.7(3),
(6) Criminal Code, supra note 5, per the Criminal Code Amendments, supra note 8.
“9 See R. v. Ryan (1991), 107 N.S.R. (2d) 357 at 360 (C.A.), 69 C.C.C. (3d) 226 at 230, approved
by Lamer C.J.C. and Sopinka J. for the majority in O’Connor, supra note 6 at 443; L’Heureux-Dub6
J. in O’Connor, ibid. at 506-07. Where the contest concerns the admissibility in a criminal trial of the
oral testimony of a witness, which may be privileged, the witness may be heard initially “within the
sanctuary of a voir dire;” i.e., by the judge and counsel, in camera and in the absence of the jury. The
testimony will be heard by the jury only if the claim of privilege is dismissed.
‘2 In Ryan, supra note I at 18, McLachlin J. describes this as a situation of “partial privilege”.
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granted to defense counsel only for the purposes of informing legal argument, which
will take place in chambers or beyond the public gaze. If access to the defendant is
not then granted, counsel may be prohibited from discussing the material with their
client. In certain circumstances, as in administrative proceedings, providing the de-
fendant with an account of the substance may suffice, with original documents with-
held.’ ‘
When access is granted, courts have further discretionary means to limit permis-
sible uses of the material and its circulation. Some legal proceedings are conducted in
private with the participants bound to confidence.'” In cases heard in public –
such
as criminal trials –
the court may be authorised to clear spectators from the court to
prevent the diffusion of confidential information,'” and may prohibit reporting in the
media of private material or any means of identifying the complainant. The defense
may be permitted to use the material for limited purposes only. For example, in
Mandeville, the court directed that “the defence be restricted from reproducing or re-
leasing this material except for the purpose of instructing its expert witnesses” and
that the “material not be disclosed to the accused except for the necessary solicitor-
client communications.’ 2 In R. v. Ross it was determined that any order for produc-
tion should be “as restrictive as possible.”‘” Initial examination of the complainant’s
psychiatrist and the file was to take place in camera before a chambers judge, a re-
strictive publication ban was imposed, and an order was made that at the conclusion
of the proceedings “all material relating to the examination, including transcripts, af-
fidavits or other documentation be sealed up by the court.’ ‘.. McLachlin J. states in M.
v. Ryan that: “Disclosure of a limited number of documents, editing by the court to
remove non-essential material, and the imposition of conditions on who may see and
copy the documents are techniques which may be used to ensure the highest degree of
confidentiality and the least damage to the protected relationship, while guarding
against the injustice of cloaking the truth.”‘”
The nature of the relationship between the parties should still be considered when
deciding whether privacy concems should be discounted due to the limited nature of
disclosure contemplated. Confidential material may be used in legal proceedings
without unnecessary exposure beyond the confines of the forum. However, for the
complainant it may be disclosure to the defendant, her alleged abuser and the person
,21 Masters v. Ontario (1994), 18 O.R. (3d) 551 (Div. Ct.), 115 D.L.R. (4th) 319 (defendant entitled
to be provided with summary only of investigators’ interviews with complainants of sexual harass-
ment, in the context of dismissal from discretionary employment by the Crown in right of Ontario).
12 See the comments concerning in camera hearings in the course of a statutory inquiry in Canada
(Solicitor-General) v. Royal Commission (Health Records), [1981] 2 S.C.R. 494, 128 D.L.R. (3d)
193.
‘3 A proposition approved by the majority of the Supreme Court of Canada in O’Connor, supra
note 6 at 442-43.
124 Supra note 110 at 130; and see the conditions imposed in the context of civil proceedings in
Ryan, supra note I at 166-67.
‘ Ross (1991), 119 N.S.R. (2d) 177 at 180 (S.C.(A.D.)).
’12 Ibid.
‘ Supra note 1 at 177.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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to whom production is most likely to be granted, that is most resented and feared.
Limiting wider circulation may do nothing to alleviate that concern.
IIl. Privilege and Professional Secrecy
The discussion so far has been concerned mainly with the production of medical
records as a matter of pre-trial procedure and with the balancing of interests that
dominates that decision. Now more attention must be given to the admissibility in
evidence of confidential medical information at the trial or hearing itself.
When medical information is tendered in evidence, whether in oral or documen-
tary form, the issue is not whether the material should be produced to the defendant.
The concern is no longer the limits of discovery or pre-trial access to information on
the part of the defense, which is usually thought of as a matter of procedure; the issue
at the trial is whether the material may be put before the court itself (including any
jury), and whether it may be relied upon in the reasoning of the court. This is usually
thought of as a matter of evidence. Can the material be presented and used by the
court or should it be found privileged and therefore inadmissible in order to uphold an
obligation of confidence or of professional secrecy, or to respect a right to privacy?
To resolve both the procedural and the evidential issues the balancing calculus is
employed, but at different moments and in different contexts, so the outcome may not
be the same. It is possible that an application by the defense for pre-trial production of
the complainant’s records will be granted, yet the records will still be excluded at the
trial.
This section considers in greater depth the common law of evidentiary privilege
and the law of professional secrecy in Quebec which govern the decision concerning
the admissibility of medical information. Two outstanding problems receive attention:
the law concerning the compelled oral testimony of a physician in Quebec, and the
uncertain relationship between the production and admission decisions. In particular,
there is an analysis of whether some arguments which might support the existence of
an evidentiary privilege, precluding the admission of the medical records at a trial,
might be undermined by the earlier breach of confidence involved in compelled pre-
trial production of the records to the defense.
A. Confidentiality and Privilege under the Common Law
Under traditional common law principles, medical confidences enjoy absolutely
no special protection from the law of privilege. The rules of privilege, which apply
only to legal proceedings, are distinct from other principles which may impose ethical
or civil obligations of confidence on health professionals prohibiting the release of
patient information in non-judicial circumstances.2 ‘ The result is that a professional
,28 See J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada (Toronto: But-
terworths, 1992) at 623-771.
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may be under an obligation to maintain patients’ confidences in extra-judicial con-
texts, but this would not prevent a judge from compelling their testimony in court.
In the civil law tradition, inherited in part by Quebec, principles of evidence and
civil obligation are not distinct, but are submerged in a broader conception of profes-
sional secrecy. When confidential information is covered by professional secrecy
there is both a general obligation of non-disclosure on the part of the professional and
the material is barred from admission in legal proceedings.'” Not even the patient can
waive this secrecy. Breach of it has even been considered a crime.”‘
Neither the common nor the civil law position is now maintained in its pure form.
The common law has been modified in some jurisdictions by the creation of statutory
privileges governing confidential physician-patient communications, and by a judicial
discretion to grant a privileged status to patient information on a case-by-case basis.
Under this discretionary approach, information is not found privileged simply be-
cause it is ordinarily covered by a duty of confidence in extra-judicial circumstances,
nor does a class privilege attach to patient information as a whole. Rather, confidential
communications within special relationships may be considered privileged on a case-
by-case basis.’
This was resolved with regard to third party therapeutic records in Beharriell.”
Such records may be privileged and may be excluded from admission when the
Wigmore criteria apply.’ 3 In relation to the balancing test in the fourth element of the
Wigmore test, the onus is on the party advocating exclusion of confidential informa-
tion to satisfy the judge that the balance of interests favours exclusion.
In the Court’s opinion in Beharriell, extending a class privilege to counselling re-
cords would create too great an impediment to “the truth-finding process of our ad-
versarial trial procedure'”” and to the accused’s right to make full answer and defense.
The criterion of relevance, the balancing of interests and the production procedure
established a sufficient level of protection. The class approach had not been widely
supported in other common law jurisdictions. The decision has confirmed that the
Wigmore criteria constitute the general framework in Canada for the common law
privilege analysis in respect of confidential material.” This approach, which was
‘This approach is criticised by Y-M. Morissette & D.W. Shuman, “Le secret professionel au Qu&
bec: une hydre
trente-neuf ttes rode dans le droit de la preuve” (1984) 25 C. de D. 501.
3 Archambault, supra note 22.
‘ On the distinction between class and case-by-case privileges, see Gnienke, supra note 68 at 286,
Lamer CJ.C. The nub of the distinction is a shifting of the onus of proof.
‘ Supra note 7.
… The full criteria are: “(1) The communications must originate in a confidence that they will not
be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory mainte-
nance of the relation between the parties. (3) The relation must be one which in the opinion of the
community ought to be sedulouslyfostered. (4) The injury that would inure to the relation by the dis-
closure of the communication must be greater than the benefit thereby gained for the correct disposal
of litigation” (Wigmore, supra note 25 at 527, para. 2285) [emphasis in original].
Supra note 7 at 575, L’Heureux-Dub6 J. (approved by all on this point).
,’See Gruenke, supra note 68 at 289-90, Lamer CJ.C.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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originally developed in the administrative context in Slavutych v. Baker,’3′ is applied
in both criminal and civil proceedings.’
B. Professional Secrecy in Quebec
The civil law tradition has also been modified. The core provision in Quebec is
now section 9 of the Quebec Charter.’3′ This applies to physicians and numerous
other health professions:’ 9
Every person has a right to non-disclosure of confidential information.
No person bound to professional secrecy by law and no priest or other
minister of religion may, even in judicial proceedings, disclose confidential in-
formation revealed to him by reason of his position or profession, unless he is
authorized to do so by the person who confided such information to him or by
express provision of law.
The tribunal must, ex officio, ensure that professional secrecy is respected.
This provision may appear to affirm a single conception of professional secrecy,
subject to exceptions, but its interpretation has established that different principles of
professional secrecy apply in judicial and extra-judicial contexts, similar to the com-
mon law. The distinction between civil obligations in extra-judicial contexts and rules
of evidence also exists in Quebec.
Section 9 affirms the obligation to maintain professional secrecy in extra-judicial
contexts, but the obligation is flexible: it may be waived by the patient or by express
provision of law. The conception of professional secrecy applied in judicial contexts
is even more relaxed.” The range of material that may be excluded from admission
on the ground of professional secrecy is particularly narrow,” and secrecy may be ab-
rogated by express provision of law.”2 Even a procedural power to summon docu-
‘ 6Supra note 67.
,”Ryan, supra note 1; M. v. Martinson (1993), 81 B.C.L.R. (2d) 184 (S.C.). See also the new posi-
tion in the United States, where the U.S. Supreme Court recently recognised a powerful form of psy-
chotherapist-patient privilege under federal law in Jaffee v. Redmond, 116 S. Ct. 1923, 135 L. Ed. 2d
337 (1996). The majority of the S.C.C. in Ryan, ibid. at 177, preferred the dissenting approach of
Scalia J.
‘3sSupra note 4.
See generally L. Ducharme, L’administration de la preuve, 2d ed. (Montreal: Wilson & Lafleur,
1995) at 72ff., para. 209ff. [hereinafter Ducharme].
” In neither context may professional secrecy be waived at the discretion of the physician, as sec-
tion 9 imposes an obligation to maintain it unless it is waived by the patient or contradicted by ex-
press provision of law. It also imposes a duty on the court or tribunal itself to enforce the obligation.
‘ E.g., only “communications” within professional relationships: Trempe, supra note 77; Cordeau
v. Cordeau, [1984] R.D.J. 201 (Que. C.A.); and Ducharme, supra note 139 at 81ff., para. 237ff.
“‘ See e.g. section 19 of An Act Respecting Health Services and Social Services, supra note 20,
which permits disclosure of a user’s health record to outsiders “with the authorization of the user … on
the order of a court or a coroner” and section 7 of An Act Respecting Health Services and Social
Services for Cree Native Persons, R.S.Q. c. S-5, where disclosure is allowed “with the express or
implied consent of the beneficiary, or on order of a court, or the coroner.”
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ments on the part of a court or a tribunal may be sufficient to dispel professional se-
crecy if the balance of interests favours disclosure.”‘ It may also be waived by the pa-
tient even with respect to information to be collected in the future.'” That the Quebec
position resembles the common law in these respects was affirmed by the Supreme
Court of Canada in Frenette.”‘
1. Frenette v. Metropolitan Life Insurance
In these Quebec proceedings, an insurance company sought production of the
medical records of an insured man when, after his decease, his relatives brought an
action against the company to recover under his life insurance policy. The company
had refused to pay, saying that the likely cause of death was either suicide or the in-
gestion of unprescribed drugs, causes which were expressly excluded from coverage
under the policy. The insured man was found dead in a river, apparently drowned, but
the precise cause of death could not be established. On the night of his disappearance,
he had been treated in the emergency ward of a Montreal hospital, possibly after an
overdose, and there was a previous history of similar treatment at the hospital. The in-
surance company sought access to all the man’s medical records held by the hospital,
a third party, to assist the company in its defense. The Supreme Court of Canada,
overruling the lower courts of Quebec, ordered the complete records produced.
Writing for a unanimous court, L’Heureux-Dub6 J. concluded that, although the
right to professional secrecy has a quasi-constitutional status in Quebec, the legisla-
ture has chosen a relativist, not an absolutist, approach to its protection.”‘ Therefore, a
restrictive approach to professional secrecy is justified in judicial contexts where it
has the effect of an evidentiary privilege.’ Disclosure of the records to the insurance
company could be justified on both grounds contemplated by section 9: with the con-
sent of the insured and through a court order authorised by an express provision of
law.
An expansive view is taken of the circumstances in which professional secrecy
may be waived by the patient. It can be waived at the time a contract of insurance is
signed, even in respect of future medical consultations. Waiver may also be implied,
when the health of the patient is put directly in issue in litigation or where the records
are relevant to liability.”‘ Such a waiver is “deemed to have been made” at the time of
the contract’s formation.”‘ Here, the insured’s consent was in the form of an explicit
waiver of confidentiality in the signed contract of insurance. His agreement to permit
3 Archambault, supra note 22 at 185-86.
”
“‘ Frenette, supra note 20.
145 Ibid.
‘ Ibid at 673-74.
“4 Ibid at 675-76.
“‘ However, a person would not be considered to put their health directly in issue simply by making
a complaint or commencing legal proceedings, even if their competence or credibility is likely to be
challenged.
” See Frenette, supra note 20 at 681-85.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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access to records for the purpose of loss analysis expressly authorised disclosure to
the company.
In any case, L’Heureux-Dub6 J. noted that a court order for production was
authorised by the Code of Civil Procedure of Quebec, which permitted the compelled
production of all documents relevant to civil litigation, including medical records in
the hands of third parties.'” The court had a discretion to compel production in the
interests of justice, even in the absence of a waiver. The court should exercise this
discretion “according to the degree of relevance and importance of the information
sought relative to the issue between the parties,”” . and should “weigh the interests in
conflict..”.. As Frenette’s records might provide the best evidence concerning a central
issue in the litigation, the cause of death, the information should be disclosed.
The approach strongly resembles that adopted in the criminal context in Osolin
and O’Connor.”‘ The reasoning is cast in the common law mould’ and its effect is to
apply different principles to professional secrecy in judicial and non-judicial con-
texts.” There is no reference to the history of the civil law conception of professional
secrecy, although this would explain the restrictive approach to the doctrine of waiver
adopted by Baudouin J.A. in the Court of Appeal. In Baudouin’s view, for a waiver to
be effective it must be “clear, express and limited.”” In addition, although the court
possessed a discretion to order production, this was constrained by the privacy and
secrecy guarantees of the Quebec Charter. The Supreme Court did not agree. In its
view the Quebec Charter’s guarantees did not limit the court’s discretion to order the
production of medical records because section 9 itself refers to release being author-
ised by “express provision of law” and the powers of the court to order discovery
were provisions of this kind. Similarities between Quebec law and the common law
are repeatedly emphasized by the Court in its unanimous judgment. Therefore,
Frenette confirms that Quebec law permits the compelled production of the com-
plainant’s medical records to the defendant when the balance of interests favours the
defense.
2. Compelling the Oral Testimony of a Physician in Quebec
The reasoning in Frenette might also permit a Quebec court to compel a physi-
cian to give oral testimony through the power of a court to summon relevant wit-
, See arts. 20,400,402 C.C.P.
151 Frenette, supra note 20 at 685.
“. IbiL at 678.
“‘ See ibid. at 685 and the discussion of balancing at 666.
,5 Lord Denning is quoted by L’Heureux-Dub6 J., ibid. at 666, to emphasize the priority accorded
to disclosure in legal proceedings of all material facts “to find out the truth and do justice according to
law” –
the central plank of the common law tradition; citing Jones v. National Coal Board, [1957] 2
Q.B. 55 at 63 (C.A.).
“‘See Frenette, ibid at 675-77.
” Mdtropolitaine (La), Cie d’Assurance-We v. Frenette (1989), [1990] R.J.Q. 62 at 67 (C.A.):
“claire, prdcise et limitde.”
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nesses.’ 7 If a physician’s record of a consultation can be compelled, then why not the
physician? Frenette does not decide this matter directly as the case did not concern
oral evidence. It is not even clear that the insured man’s records would have revealed
communications made to a physician at the hospital which would ordinarily be cov-
ered by professional secrecy. Nevertheless, the full record of his treatment was com-
pelled.
To determine whether the oral evidence of a physician may be compelled, the re-
lationship between section 9 of the Quebec Charter and section 42 of the province’s
Medical Act must be settled.”‘ Section 42 provides: “No physician may be compelled
to declare what has been revealed to him in his professional character.” This would
seem to preclude a court order that a doctor testify concerning matters covered by
professional secrecy. However, section 9 provides that physicians cannot (“ne peu-
vent”) disclose matters covered by professional secrecy, unless this is authorised by
express provision of law. This suggests that an express power to summon all wit-
nesses would permit a court to subpoena a physician to testify. The proviso to section
9 may prevail over the apparent prohibition in section 42.
The two provisions and the decision in Frenette might be reconciled if section 9 is
read to establish a permissive rule only in this context: a physician may breach pro-
fessional secrecy by giving oral testimony when it is authorised by an express provi-
sion of law, but cannot be compelled to do so.'”‘ This position may sit more com-
fortably within the traditions of the civil law.
But where would that leave the rights of defendants who are unable to compel
medical evidence essential to their defense? What if there had been no records in
Frenette, or inadequate records, and the insurers wished to call a physician from the
emergency department to give oral evidence? Why should the form in which the evi-
dence is to be presented make such a vital difference?
Section 23 of the Quebec Charter might be critical at this point in the argument
since it would prevail over section 42 in case of conflict. It guarantees a right to a full
and equal, public and fair hearing, and the procedures this demands may be similar to
the procedures required for compliance with the principles of fundamental justice un-
der section 7 of the Canadian Charter. Section 23 may guarantee to the defendant a
,It is said in Frenette, supra note 20 at 677: “The duties pertaining to and the principles governing
the confidentiality of hospitals are analogous to professional secrecy between physician and patient.”
’58 Supra note 20. The author is not aware of a case in Quebec law in which a court has compelled a
physician to testify in the face of section 42. However, a civil court enjoys a more powerful authority
to order the medical examination of a litigant than is usual in common law jurisdictions, where con-
sent is crucial: see art. 339 C.C.P. This power may be used instead, though it could not resolve a case
like Frenette, where the person concerned was dead.
‘” It might even be argued that a physician could not be compelled to testify when professional se-
crecy is waived by the patient. That would be a significant departure from the common law, and it
would be contrary to the view, implicit in section 9, that rights to privacy and professional secrecy are
personal rights of the patient: see Ducharme, supra note 139 at 97ff., para. 285ff.
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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right of access to all information necessary to make a full defense, even information
in the mind of a physician.
The approach to Quebec law taken by the Supreme Court in Frenette certainly
suggests that this line of argument would receive a sympathetic hearing at the highest
level. Indeed, the expansive and unanimous approach of the Supreme Court of Can-
ada suggests that the fundamental principles governing both privilege and the pro-
duction of confidential medical information are the same, and that they apply in civil,
criminal and administrative proceedings, in Canadian common and civil law jurisdic-
tions alike.”w
C. Privilege and Privacy after Production
Further analysis is required of the difficult relationship between the production
and admission decisions. They are not the same decision, but how does one affect the
other? The courts are usually careful to distinguish between an order for the produc-
tion of confidential material and its admissibility at a hearing. Documents do not be-
come admissible evidence simply because a court has ordered them produced to an-
other party. The material may still be found irrelevant, or hearsay, and may therefore
be excluded.” However, an order for production to the defendant may preclude any
later objection by the complainant to admission of the same material on the usual
privilege grounds.
Privilege principles currently apply to confidential communications within special
relationships. Such material may be excluded by a court on a discretionary case-by-
case basis. What if confidentiality has already been breached? The production of a
document to another party upon the order of a court would seem to preclude any later
claim that that material should still be excluded on the ground of privilege because the
material has ceased to be confidential in relation to the party to whom the court has
ordered it disclosed. The courts have sometimes relied on equitable principles to ex-
clude previously confidential material (which has been disclosed to another party)
when its admission would reward an unauthorised breach of confidence.’ 2 However,
equitable principles would not apply where the material has been disclosed upon the
order of a court for the very purposes of the proceedings. When that material is later
tendered in evidence no unauthorised breach of confidence has occurred to which
equitable principles could apply.
This does not mean that a remedy of exclusion in these circumstances is fore-
closed. Canadian Charter-based privacy rights might still enter the equation.”‘ Pri-
tWA similar conclusion was reached in 1987 by Shuman & Weiner, supra note 3 at 64.
Though some medical records may also be covered by an exception to hearsay principles: see
Ares v. Venner, [1970] S.C.R. 608, 14 D.L.R. (3d) 4; and Rozovsky & Rozovsky, supra note 10 at 53-
68.
162 See Slavutych, supra note 67.
‘” See the approach of L’Heureux-Dub6 J. in dissent in Ryan, supra note 1 at 198: “where a plaintiff
is unsuccessful in her privilege claim [based on confidentiality] she may still suffer a serious incur-
sion upon her privacy.”
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vacy and confidentiality are different concepts and confidentiality is not a pre-
condition of the protection of privacy. Therefore, it may be possible to assert privacy
rights even when confidentiality of the record has been fundamentally breached by
compelled production. Personal interests in privacy are not dispelled by disclosure of
intimate information. They are of a continuing nature and may not be extinguished by
the production decision. As a result, a different ground for exclusion might still be
advanced: the existence of a privacy privilege with a constitutional basis.”
The common law of privilege may itself expand to accomodate privacy rights. It
was said in Gruenke that the Wigmore criteria are not “carved in stone”,’. and
McLachlin J. recently declared that “the common law permits privilege in new situa-
tions where reason, experience and application of the principles that underlie the tra-
ditional privileges so dictate.”” Further criteria could be added to protect privacy on a
case-by-case basis, leading to exclusion of evidence which has privacy implications
but which does not concern a confidential communication within a special relation-
ship.
Sections 7 and 24 of the Canadian Charter might also be invoked to support ex-
clusion of evidence where it is necessary to defend privacy rights. Claims might be
made that material in medical records should be excluded to protect privacy, even
when that material would not ordinarily be covered by the law of privilege or the
material is already in the hands of the other party. In the end it does not matter
whether the term “privilege” is used. What is important is the possibility that the ma-
terial which was subject to compelled production might still be excluded from presen-
tation in evidence. It could be excluded when its admission would involve an interfer-
ence with privacy not justified by the need to protect some other overriding value.
Conclusion
A conclusion will be drawn by returning to the situation presented by the above
example of the patient who has made a complaint of sexual assault against a hospital
clinician. Whether disclosure of the patient’s psychiatric record will be required in the
course of determining her complaint will depend on the nature of the proceedings; the
relevance of the information to the dispute; and the balancing of confidentiality and
privacy against fairness concerns. The patient should be advised that the need for
fairness may require that the defendant and his lawyers have the opportunity to view
otherwise confidential material in her record, and that they may then use it to attack
her credibility at a hearing.”7 The complainant should be informed that even if she
does not consent to the production of her record, it may still be ordered by a court or
“‘ This would require a rebalancing of the complainant’s privacy rights against the interests of the
defendant at the time the material was tendered in evidence. If the material was then excluded from
direct admission any remaining uses of the material by the defense would have to be determined.
165 Supra note 68 at 290, Lamer CJ.C.
Ryan, supra note 1 at 170-71.
“7 The point is made by the majority in O’Connor that there is “an onus upon the Crown to inform
the complainant of the potential for disclosure” (supra note 6 at 430, Lamer C.J.C. and Sopinka J.).
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J. DAWSON – COMPELLED PRODUCTION OF MEDICAL RECORDS
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her complaint may be permanently stalled. This advice need not be given in a manner
that is intimidating or in a fashion designed to discourage the complaint proceeding.'”
The complainant should be informed that various factors moderate the effect of dis-
closure, such as the mediating role of the judge and the imposition of conditions. Ac-
cess may be granted only to a limited class of people who may be under an obligation
not to disclose the material beyond the confines of their forum and there may be a re-
straint on publishing identifying particulars. The patient is entitled to be represented,
to be heard and to have her privacy concerns properly evaluated. Although this may
not allay the patient’s legitimate fears, it is better that she should make the decision to
proceed with the complaint properly advised: absolute confidentiality is unlikely to be
maintained, and private information can be used in legal proceedings without its un-
necessary exposure to the world.
‘, In Ryan, supra note 1 at 167, McLachlin L writes, in a slightly different context: “A plaintiff
should not be ‘scared away’ from suing by fear of disclosure.”
