1995]
L. COLTON – R. V STINCHCOMBE
R. v. Stinchcombe: Defining Disclosure
Loretta N. Colton*
In R. v. Stinchcombe, the Supreme Court of
Canada held that the accused in criminal cases has a
constitutional right to full and complete disclosure of
the Crown’s case. The Crown therefore has a legal
obligation to disclose all relevant information in its
possession. The author argues, however, that the
judgment provides little guidance as to the meaning of
“relevance” and thus gives the Crown wide discre-
tionary powers to withhold information.
In situations where the subject of disclosure is a
person’s sexual history, one must also consider the
admissibility of the information in light of section 276
of the Criminal Code. Given that this provision pro-
hibits evidence of the complainant’s sexual history to
support an inference as to the complainant’s character
or to the likelihood of consent, it is suggested that the
onus is on the defence to make aprimafacie case that
renders the information admissible.
Non-disclosure is justified where privilege ap-
plies, subject to the reasonableness of the limitation
on the accused’s right to make full answer and de-
fence. However, protection of this right is inherent to
the law of privilege itself. It is thus unclear in which
instances privileged information would not constitute
a reasonable limit on the right to make full answer and
defence. Consequently, the author suggests
that
Stinchcombe did not change the meaning and scope
of the right to make full answer and defence, nor did it
add to the law with respect to situations where, de-
spite the existence of a privilege, information should
be disclosed in the interests of justice.
Dans
le
‘affaire R. c. Stinchcombe, la Cour su-
preme du Canada a conclut que l’accus6, dans des af-
faires criminelles, avait droit A la divulgation entire et
complete des arguments de la Couronne. En effet, Ia
Couronne a l’obligation 16gale de divulguer toute in-
formation pertinente qu’elle poss~de. L’auteure sou-
tient
jugement donne peu
d’6claireissement en ce qui a trait A la signification
que l’on doit donner au terme (pertinente>>, laissant
ainsi une grande discrdtion A ]a Couronne pour laisser
sons silence certaines informations.
toutefois que
Dans des cas ok le sujet de ]a divulgation est
‘histoire sexuelle d’une personne, en vertu de l’article
276 du Code criminel, on doit aussi prendre en
compte la recevabilit6 de l’information. ttant donn6
que cet article interdit toute preuve concemant le
comportement sexuel du plaignant qui servirait A
maintenir une inf&ence quant A sa rdputation ou A la
possibilit6 de consentement du plaignant, on suggre
que le fardeau de la preuve repose sur la defense qui
devrait faire un argument qui prima facie rendrait ce
type d’information admissible.
L’interdiction de divulguer est justifi6e lorsque
le privil~ge est applicable, sujet A ]a nature raisonna-
ble de Ia limite imposfe au droit de l’accus6 d’avoir
une defense complete. Cependant, ]a protection de
celui-ci est inclue dans le droit concemant ce privi-
lfge. Ainsi,
il n’est pas clair dans quels cas
l’information privil6gife ne constituera pas une limite
raisonnable au droit t une ddfense complte. C’est
done pourquoi l’auteure sugg~re que l’arrat Stinch-
combe n’a pas chang6 ]a signification et l’6tendue du
droit a une ddfense complete et n’a pas non plus
ajout6 au droit dans les cas oti, malgr6 l’existence
d’un privilege, l’information devrait 6tre divulgude
dans l’intfret de la justice.
“The author would like to thank Professor Patrick Healy of McGill University, Faculty of Law,
for his support and insightful comments during the preparation of this paper.
McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 40 McGill LJ. 525
Mode de rf&ence: (1995) 40 R.D. McGill 525
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 40
Synopsis
I.
Introduction
A. The Problem
1.
The Scenario
B. The Applicable Law: Stinchcombe
C. The Issues: Relevance, Admissibility, Privilege and Policy
II. Relevance
A. Who Decides Relevance and How?
1.
2.
Crown Discretion
a)
b)
c)
The Principles Set Out in Stinchcombe
The Meaning of Relevance
Relevance and the Right to Make Full
Answer and Defence
Review at Trial: How Does the Judge Decide?
a)
The Burden of Proof
LII. Admissibility, Disclosure and Relevance
A. Societal Relevance
B. Section 276 of the Criminal Code: Presumptive
Inadmissibility of Sexual History
1.
The Connection Between Relevance and Admissibility for
Purposes of Disclosure
Disclosure and the Administration of Justice
2.
IV. Privilege and Policy: The Outer Boundaries of Disclosure
A. Privilege: General Principles
B. The Common Law Privilege: Considerations of Policy
Conclusion
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L. COLTON – R. V STINcHCOMBE
I. Introduction
A. The Problem
The Supreme Court of Canada held in R. v. Stinchcombe’ that the ac-
cused in criminal cases has a constitutional right to full and complete disclo-
sure of the Crown’s case. According to the principles set out by Sopinka J.
in the unanimous judgment of the Court, this encompasses more than just
the information which will be used by the Crown as part of its case. The
Crown is obliged to disclose all information in its possession which is rele-
vant, or at least not clearly irrelevant, and which is not subject to privilege.
The Crown retains a discretion to determine relevance and withhold privi-
leged information. This includes discretion with respect to the timing and
manner of disclosure in certain circumstances.
Stinchcombe lays out only the general parameters of how disclosure will
operate in concrete situations. This paper will center the discussion of
Stinchcombe around two particular problems: psychiatric information and
sexual history. Two recent Canadian decisions have brought these issues into
sharp focus. In Osolin v. R.,’ a majority of the Supreme Court of Canada
decided that a trial judge’s refusal in a sexual assault case to allow the cross-
examination of a complainant on her psychiatric records was a denial of the
accused’s right to make full answer and defence. The British Columbia
Court of Appeal also addressed these issues in the O’Connor decisions, in
which the Court set out principles and procedures to guide counsel and
judges in situations where the disclosure of medical records, including psy-
chiatric records, is in issue.’
The following hypothetical fact pattern provides a framework for the dis-
cussion that follows. An examination of how the general principles would ap-
ply in this particular context provides a starting point for a more critical exami-
nation of the general principles laid out in Stinchcombe.
‘ [1991] 3 S.C.R. 326, 8 C.R. (4th) 277 [hereinafter Stinchcombe cited to S.C.R.].
2 [1993] 4 S.C.R. 595, 86 C.C.C. (3d) 481 [hereinafter Osolin cited to S.C.R.].
R. v. O’Connor (1994), 89 C.C.C. (3d) 109, 29 C.R. (4th) 40 (B.C.C.A.) [hereinafter
O’Connor No. 1 cited to C.C.C.] dealt with the appropriate remedies for a breach of the Crown’s
disclosure obligations. In R. v. O’Connor (1994), 30 C.R. (4th) 55, 90 C.C.C. (3d) 257
(B.C.C.A.) [hereinafter O’Connor No. 2 cited to C.R.], the Court addressed the separate issue of
when medical records should be disclosed. Notice of an appeal as of right to the Supreme Court
was filed April 29, 1994 from O’Connor No. 1.
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1.
The Scenario
John Doe had been charged with sexual assault. In the course of the pre-
liminary inquiry, it emerged that the complainant, Mary D., had been undergo-
ing psychiatric treatment since the alleged assault and had also sought thera-
peutic help prior to the events in question. Upon learning of this history, de-
fence counsel demanded disclosure of the names of all the psychiatrists, thera-
pists, counsellors and others who had treated the complainant at any time in the
past, as well as the contents of any of their files which were in the Crown’s
possession. As it happened, the Crown, with the complainant’s consent, had
acquired substantial portions of these records. The investigating officers re-
quested the information when they discovered that the complainant had under-
gone therapy. They were interested in the material to the extent that it could
help them assess the strength of the case against the accused before deciding to
lay charges. When the charges were laid, the police routinely turned the mate-
rial over to the Crown, along with all other material gathered during the inves-
tigation.
The complainant refused to consent to the disclosure of these records to the
defence. The Crown prosecutor also objected, claiming that the material was
clearly irrelevant to the issues before the Court and that its non-disclosure was
thus within the Crown’s discretion. The response of the defence was that it
wished to make an application under section 276 of the Criminal Code4 for a
hearing regarding the admissibility of the complainant’s sexual activity; those
portions of the file which dealt with the sexual history of the complainant, if
any, would clearly be relevant for the preparation of that application. The
Crown responded that even if the information were to be considered relevant
despite its presumptive inadmissibility, it should nonetheless be excluded as
privileged information. In this situation, the accused could not demonstrate that
the right to make full answer and defence should override that privilege.
B. The Applicable Law: Stinchcombe
Since Stinchcombe, there have been several cases where the defence re-
quested disclosure of complainants’ or witnesses’ psychiatric records! It must
4 R.S.C. 1985, c. C-46, as am. by An Act to amend the Criminal Code (sexual assault), S.C.
1992, c. 38 [hereinafter Criminal Code).
5 R. v. Mandeville (1993), 21 C.R. (4th) 272 (N.W.T.S.C.) [hereinafter Mandeville]. The ac-
cused, charged with sexual assault, sought the disclosure of records from a hospital and an addic-
tion treatment centre regarding the complainant’s alcoholism.
R. v. Wittrup (26 February 1993), Vancouver CC911246 (B.C.S.C.). The accused wanted dis-
closure of records held by the Ministry of Scial Services and Housing, and by Chesterfield
1995]
L. COLTON – R. V STINCHCOMBE
be pointed out, however, that such records were not usually in the Crown’s pos-
session, but were more often in the hands of third parties, such as hospitals or
doctors, who were “strangers” to the litigation. Some courts have held that
Stinchcombe applies only to situations where the requested material is actually
in the possession of the Crown6 (which includes the police)7 and that it does
House, a society that provided treatment to sexually abused children. The accused had been
charged with the sexual assault of two sisters, eight and ten years old respectively.
R. v. S.T.L. (9 November 1992), Brampton 200146 (Ont.Ct. (Prov.Div.)) [hereinafter S.T.L.
The accused was charged with sexually assaulting his younger sisters. The defence requested
disclosure of notes and records held by a psychologist in relation to one of the younger sisters, as
well as the sister’s personal journals.
R. v. Ross (1993), 79 C.C.C. (3d) 253, 18 C.R. (4th) 122 (N.S.S.C.A.D.) [hereinafter Ross cited
to C.C.C.]. After the accused was convicted of sexual assault, the defence sought disclosure of
the complainant’s psychiatric records in order to appeal the conviction on the grounds of miscar-
riage of justice. Note that this case was not decided under the Stinchcombe principles.
R. v. Learn (31 March 1992), Cranbrook SC 2301 (B.C.S.C.) [hereinafter Learn]. Facing
charges of first degree murder, sexual assault, and unlawful confinement, the accused sought dis-
closure of medical and psychiatric records of the complainant in the sexual assault and confine-
ment charges, who was also the key Crown witness to the murder charge.
R. v. Coon (1991), 74 C.C.C. (3d) 146 (Ont. Ct. (Gen. Div.)) [hereinafter Coon]. The accused
subpoenaed clinical records of the complainant in a sexual assault case. Again, this was not a
motion for disclosure under the Stinchcombe principles.
R. v. O’Connor (1992), 18 C.R. (4th) 98 (B.C.S.C.). Disclosure was ordered of all psychiatric
records of each of the four complainants in various sexual assault charges. For subsequent treat-
ment of the case, see supra note 3.
R. v. Nickerson (1993), 21 C.R. (4th) 262 (N.S.S.C.A.D.) [hereinafter Nickerson]. The Court
dismissed a motion on appeal from a conviction for two counts of sexually assaulting a mentally
handicapped person, where an order was sought requiring a hospital psychiatrist to release all re-
cords regarding the complainant.
Children’s Aid Society for the Districts of Sudbury and Manitoulin v. G.M. (6 January 1992),
Sudbury C178/91 (Ont. Ct. (Prov. Div.)). In a pre-trial hearing regarding child protection proceed-
ings, the respondents sought disclosure of records, which included psychological evidence, held
by the Children’s Aid Society. Although this was not a criminal proceeding, the Court discussed
Stinchcombe.
R. v. M.K. (10 June 1994), Toronto OCJ 7772/93 (Ont. Ct. (Gen. Div.)). The accused was
charged with sexual assault, touching for a sexual purpose a person under 14 and abuse of a posi-
tion of trust. He sought disclosure of medical records and therapy records from hospitals and a
birth control clinic.
R. v. Darby (24 February 1994), New Westminster 35588 (B.C. Prov. Ct.). The accused,
charged with sexual assault, indecent assault and gross indecency, requested at the preliminary
inquiry disclosure of records from the Superintendent of Child Welfare.
R. v. R.M. (10 March 1994), Vancouver 10199 (B.C. Youth Ct.). A young offender charged with
sexual assault and sexual touching of younger children sought disclosure of records of the com-
plainants, who had been undergoing treatment prior to the alleged assaults.
6 See e.g. R. v. Gingras (1992), 11 C.R. (4th) 294 at 298,71 C.C.C. (3d) 53 (Alta. C.A.).
See Stinchcombe, supra note 1 at 345, where Sopinka J. includes “all statements from persons
who have provided relevant information to the authorities.”
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not extend to cases where materials are held by other government departments
or ministries, or by other parties generally. The British Columbia Court of Ap-
peal in O’Connor No. 2,8 however, appears to have greatly expanded the scope
of pre-trial disclosure by recognizing that third parties may be compelled to
disclose information in order for the court to determine its relevance. There is
thus conflicting case law on this particular point. In any event, it is clear that
the principles enunciated in Stinchcombe apply to our hypothetical scenario,
which highlights some of the key problems and uncertainties regarding issues
of disclosure and the right to make full answer and defence.
In Stinchcombe, the Crown refused to disclose statements made by a wit-
ness who gave testimony favourable to the accused at the preliminary inquiry.
At trial, the Crown would not call the witness to testify. Defence counsel re-
quested that the witness be called, either by the Crown or by the Court, or at
least that her statements be disclosed. The trial judge dismissed the motion, and
Stinchcombe was found guilty of criminal breach of trust, theft and fraud. The
Supreme Court of Canada unanimously overturned that decision, holding that
the Crown did have a legal obligation to disclose the material to the defence.
The judgment does, nevertheless, allow for Crown discretion with respect
to the timing of disclosure for the purposes of witness protection. It also allows
for discretion with respect to the timing required to complete an investigation,
although in this case the discretion is somewhat narrower.9 The Crown also
enjoys a degree of discretion with respect to the relevance of information:
“[W]hile the Crown must err on the side of inclusion, it need not produce what
is clearly irrelevant.”‘ The exercise of such discretion by the Crown, however,
is always reviewable by the trial judge, and on review, “the Crown must justify
its refusal to disclose. Inasmuch as disclosure of all relevant information is the
general rule, the Crown must bring itself within an exception to that rule.””
The reviewing judge’ 2 must base his or her decision on the general principle
See also Hartman v. Tisdel (26 May 1993), Saskatoon 1555 (Sask. Q.B.); R. v. Burke (14 De-
cember 1992), Prince George 58482 (B.C. Prov. CL) [hereinafter Burke]; R. v. Dikah (5 March
1993), Toronto 8376 (Ont. CL (Gen. Div.)) [hereinafter Dikah].
‘ Supra note 3 at 65.
9 Stinchcombe, supra note 1 at 336, 339.
‘0Ibid. at 339.
“Ibid. at 340.
32 It should be pointed out that, notwithstanding Sopinka J.’s references to “the trial judge”, the
issue of non-disclosure will usually arise in a pre-trial context first. The presiding officer with ju-
risdiction over those proceedings (whether the preliminary inquiry or other pre-trial motions)
must also have jurisdiction over disclosure requests and the review of Crown discretion to with-
hold information. This was also recognized in O’Connor No. 2, supra note 3 at 65.
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L. COLTON – R. V. STINCHCOMBE
that “information ought not to be withheld if there is a reasonable possibility
that the withholding of information will impair the right of the accused to make
full answer and defence unless non-disclosure is justified by the law of privi-
lege.””3 Even that privilege may be overridden if the trial judge finds that it
constitutes an unreasonable limit on the accused’s constitutional right to make
full answer and defence. Sopinka J. asserted that disputes regarding disclosure
will be infrequent “when it is made clear that counsel for the Crown is under a
general duty to disclose all relevant information.”‘4 When disputes do arise, the
trial judge must resolve them. This may require submissions by counsel, as
well as inspection of documents or even viva voce evidence.
With respect to the issue of what information should be disclosed, Sopinka
J. stated clearly that the obligation extends to all relevant information, including
that which the Crown does not intend to introduce into evidence because “[n]o
distinction should be made between inculpatory and exculpatory evidence.”‘ 5
Regarding statements made by witnesses, the Court concluded that, subject to
the Crown’s reviewable discretion,
all statements obtained from persons who have provided relevant informa-
tion to the authorities should be produced notwithstanding that they are not
proposed as Crown witnesses … [A]l information in the possession of the
prosecution relating to any relevant evidence that the person could give
should be supplied. … If the information is of no use then presumably it is
irrelevant and will be excluded in the exercise of the discretion of the
Crown. If the information is of some use then it is relevant and the deter-
mination as to whether it is sufficiently useful to put into evidence should
be made by the defence and not the prosecutor. 16
C. The Issues: Relevance, Admissibility, Privilege and Policy
This paper will focus on the issues arising from the above hypothetical sce-
nario. We will attempt to solve the problems raised by looking at how the prin-
ciples enunciated in Stinchcombe apply, and by identifying the issues not ad-
dressed in the decision. An appropriate framework for dealing with those issues
will then be suggested. The first issue to examine is that of relevance in the
context of disclosure: when can the Crown withhold information on the ground
that it is irrelevant, and what procedures and standards should be applied on a
review by the trial judge? Although Stinchcombe lays the groundwork for the
‘3 Stinchcombe, supra note 1 at 340.
“Ibid. at 340.
5Ibid. at 343.
16 Ibid. at 34546.
532
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answers to these questions, large areas of uncertainty remain. A related issue is
the link between relevance and admissibility. What effect does the presumptive
inadmissibility of particular kinds of information have on the standards re-
quired to obtain or withhold disclosure? Should admissibility be considered an
aspect of relevance, or a separate issue with separate tests and standards to
demonstrate disclosability? We must also ask how far the privilege exception to
disclosure extends, and again, what standards and procedures are required to
establish disclosability. Finally, given the particular nature of sexual assault and
evidence about sexual history, we must examine the extent to which policy
considerations can guide decisions on disclosure. Does Stinchcombe leave that
door open, or must policy decisions about non-disclosure be made within the
rubric of the established exceptions of relevance and privilege?
The theme running throughout this inquiry is the scope and meaning of the
right to make full answer and defence, which, according to Stinchcombe, is the
underlying concern in defining the right to disclosure.
II. Relevance
A. Who Decides Relevance and How?
1.
Crown Discretion
a) The Principles Set Out in Stinchcombe
Stinchcombe sets out the nature and extent of the Crown’s discretion to
withhold material from the defence:
The discretion, which will be subject to review, should extend to such
matters as excluding what is clearly irrelevant, withholding the identity of
persons to protect them from harassment or injury, or to enforce the privi-
lege relating to informers. The discretion would also extend to the timing
of disclosure in order to complete an investigation.’7
Later, Sopinka J. again stated that the obligation to disclose is not absolute
but rather “is subject to the discretion of counsel for the Crown. This discretion
extends both to the withholding of information and to the timing of disclo-
7 Ibid. at 336. Although in this passage Sopinka J. referred only to the “privilege relating to in-
formers”, in an earlier passage he stated that “any rules with respect to disclosure would be sub-
ject to [the informer privilege] and other rules of privilege” (ibid. at 335).
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L. COLTON – R. v STINCHCOMBE
sure.””8 He then reasserted the existence of a discretion relating to privilege and
the protection of witnesses, and stated that
[a] discretion must also be exercised with respect to the relevance of in-
formation. While the Crown must err on the side of inclusion, it need not
produce what is clearly irrelevant. … The initial obligation to separate the
“wheat from the chaff’ must therefore rest with Crown counsel.’ 9
Gerry Ferguson characterizes this discretion as an exception to the general
duty to disclose all relevant information. 20 The Crown is given very little guid-
ance, however, as to the determination of relevance. Relevance is a term which
has meaning only in context; facts are relevant to other facts, and any one fact
standing alone may mean nothing at all. In leaving this discretionary power
with respect to relevance open-ended, the Court may simply have been recog-
nizing that the defence should have access to almost everything in the Crown’s
possession. If the Crown is given extensive powers to withhold, the right to
make full answer and defence may be impaired, even though lip service is be-
ing paid to the principle of full disclosure. This is clearly the concern behind
the statement that the Crown must err on the side of inclusion. The flaw in this
argument is that the lack of guiding principles to contain the exercise of the
discretion potentially gives such broad withholding powers to the Crown as to
virtually empty the right to disclosure of any real meaning. What does full dis-
closure really stand for if a mere assertion of irrelevance by the Crown can op-
erate to withhold information from the defence unless the latter can demon-
strate the relevance of that information without having been granted access to
it?
b) The Meaning of Relevance
Relevance is not a term which lends itself to precise and clear definition.
Simply put, a fact is relevant “when it is so connected with a fact in issue,
whether directly or indirectly … that evidence given respecting it may reasona-
bly be expected to assist in proving or disproving the fact in issue.” 2′ Further,
according to a Canadian text, “the relevance of evidence has to be determined
in reference to all the issues which have to be established by the prosecution for
‘s Ibid. at 339.
19 Ibid.
2 G. Ferguson, “Judicial Reform of Crown Disclosure” (1991) 8 C.R. (4th) 295.
“J. Burke, ed., Jowitt’s Dictionary of English Law, vol. 2, 2d ed. (London: Sweet & Maxwell,
1977) at 1533.
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the particular offence charged and any defences raised by the defence. 22
Disclosure requests will arise at a very preliminary stage of the proceed-
ings, whether in the context of a preliminary inquiry or a pre-trial motion. At
this stage, the defence simply wants to know if the information could be rele-
vant to the accused’s case and thus will not argue the specific relevance of the
information. Stinchcombe sets the threshold for the Crown’s discretion to with-
hold at materials deemed “clearly irrelevant”. A determination of “clear irrele-
vance”, though, is difficult to justify in the pre-trial context of most disclosure
requests. It is unclear, at this point in the proceedings, what information will be
relevant because the parties do not yet know which facts will be in issue at trial.
The term relevance must thus almost be read to mean potential relevance. Even
then, it will be very difficult to definitively, or even on a balance of probabili-
ties, exclude anything as clearly irrelevant.
This leaves us in a position where the defence has a right to the disclosure
of all relevant information, or of all information which is not clearly irrelevant
but we do not know what relevance means. This is the most difficult prob-
–
lem posed by Sopinka J.’s judgment in Stinchcombe: the lack of content in the
terms he uses to define the defence’s right of disclosure. The determination as
to relevance is left, at least initially, to the prosecutor, who has the discretion to
withhold “clearly irrelevant” evidence. Aside from the only moderately helpful
assertion that Crown counsel must err on the side of inclusion, no principles or
boundaries are set out to guide the exercise of that discretion as it applies to
relevance. The content of the right to disclosure thus remains extremely vague
where relevance is in issue. Where information is clearly relevant, the duty ex-
ists and breaches will be sanctioned. However, there are many situations where
the relevance of information is unclear given the pre-trial context in which the
discretion must be exercised. This is especially true, since the information is in
the hands of Crown counsel who camot evaluate the information’s relevance
from a defence point of view. In these cases, the principle that one should “err
on the side of inclusion” is not a very convincing enunciation of a supposedly
constitutionally entrenched right. The problem is exacerbated by the fact that
the defence does not know what the information is, what it contains or even
whether the Crown has any information at all. Stinchcombe imposes no obliga-
tion on the Crown to state what it is not disclosing.2
=’ J. Sopinka, S.N. Lederman & A.W. Bryant The Law of Evidence in Canada, 2d ed. (Toronto:
Butterworths, 1992) at 23.
See Ferguson’s comment on this problem, supra note 20 at 304.
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L. COLTON – R. V STINCHCOMBE
Brian Gover’s comment on Stinchcombe24 examines the problems of the
definition of relevance and the scope of the Crown’s discretion. Gover asks the
key question of how prosecutors will comply with the duty to disclose all rele-
vant information.2 Since Sopinka J. does not require that “relevance be deter-
mined with reference to a particular defence or to any defences theoretically
available to the accused, ‘ 26 Gover suggests that “[t]he duty to assess relevance
of information should not … extend to divining speculative, yet possible, de-
fence theories” while at the same time recognizing that “the judgment poses no
such limit.”27
Gover’s concern is that Stinchcombe will be read too broadly and will al-
low the defence access to information based on purely “speculative” consid-
erations. The concern outlined above, however, is in direct juxtaposition: the
lack of restriction on the exercise of discretion will lead to extensive withhold-
ing of information which could prove useful to the defence and, arguably,
should be disclosed. For example, suppose that in our hypothetical fact pattern
it comes to the attention of the prosecutor that Mary D. was also sexually
abused as a child, and that during the course of her therapy prior to the events
at issue, she had expressed “revenge” fantasies. On its own, this information
would mean nothing, and a Crown prosecutor could very easily and in good
faith regard it as clearly irrelevant: it related to her recovery from her childhood
experiences and did not have any bearing on the issues raised in the case at
hand. But if Mary D.’s behaviour was investigated and it was discovered that
she had actually taken certain steps towards carrying out some of these fanta-
sies (for example, making plans or purchasing materials), we would be closer
to the threshold for relevance. In the hands of the defence, that kind of infor-
mation could, at the very least, open doors. For example, the psychiatric rec-
ords alone would not be sufficient to found a claim that the accused is the hap-
less victim of the complainant’s plot. They would, however, provide a starting
point from which the defence could begin gathering evidence sufficient to sub-
stantiate such a claim or at least to create a reasonable doubt. The question re-
mains whether or not the initial records should be disclosed.
The answer lies in determining the scope of the right to make full answer
and defence. Clearly, it includes at least the right to be informed of all the ele-
ments of the Crown’s case, as well as the right to information which could
14 B. Gover, “Stinchcombe: Bad Case, Good Law?” (1991) 8 C.R. (4th) 307.
” Ibid. at 311.
6 Ibid.
27 Ibid. However, subsequent cases have, in certain circumstances, required the defence to lay a
foundation for disclosure. This is discussed in detail in Part IVA, below.
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serve to impeach or question aspects of the Crown’s case. As several cases, in-
cluding Stinchcombe, have asserted, the right to make full answer and defence
includes the right to be fully informed about witnesses and their testimony so as
to be able to fully prepare for their cross-examination.28 This right is impaired if
information is disclosed too late, or not at all. It thus seems clear that the right
to make full answer and defence includes disclosure of information which is
susceptible of being placed into evidence at trial, whether directly or as part of
the cross-examination of a witness. This begs the question whether it includes
the right to obtain access to information which, although it could not be entered
at trial (e.g. the revenge fantasy statements alone), could lead to an exculpatory
claim if followed up by the defence.
c) Relevance and the Right to Make Full Answer and De-
fence
According to Gover, Sopinka J. defined relevant material as “inculpatory or
exculpatory information which, if withheld, would give rise to a reasonable
possibility of impairment of the right of the accused to make full answer and
defence.” 29 Gover contrasts this interpretation with the approach of the United
States Supreme Court, which has held that, in the context of a post-verdict re-
view of disclosure,
[t]he evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defence, the result of the proceeding
would have been different A “reasonable probability” is a probability suf-
2 Stinchcombe, supra note 1 at 287. “[S]ome of the information will be in a form that cannot be
put in evidence by the Crown but can be used by the defence in cross-examination or otherwise.”
(ibid.) [emphasis added]. The scope of these last two words is an issue of considerable impor-
tance and uncertainty, and is discussed more extensively in Part HI.B., below.
See also, with respect to cross-examination, the comments of Thackray J. in R. v. O’Connor,
supra note 5 at 109-10:
[T]hese [undisclosed] diagrams might have affected the preparation of the case by
the defence. They might change the cross-examination of P.B. … [I]t is unaccept-
able that defence counsel was put in the position of preparing [for cross-
examination] without all of the relevant documents. Good cross-examination does
not just happen. It is … a product of meticulous effort on the part of counsel.
In Osolin, supra note 2, the central issue was whether the complainant could be cross-examined
by defence counsel on her medical records, and on one notation in particular. The records had al-
ready been disclosed to the defence. Cory J., for the majority, found that to refuse cross-
examination in that case would constitute a denial of the right to full answer and defence. He also,
however, set out guidelines as to what issues could appropriately be addressed by such cross-
examination. See also Burke, supra note 7.
” Gover, supra note 24 at 310.
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L. COLTON – R. v STINCHCOMBE
ficient to undermine confidence in the outcome.30
The United States thus seems to have taken an approach which evaluates
disclosure in terms of the potential outcome of the case. The Canadian ap-
proach, as evidenced by Stinchcombe, seems to be more removed and abstract,
asking instead whether the right to make full answer and defence was impaired.
It is therefore necessary to evaluate whether that right includes only the right to
obtain information that may make a difference in the outcome of a trial (i.e. the
concrete determination of guilt or innocence), or whether the right allows the
defence to examine and evaluate material for its usefulness. Sopinka J. appears
to favour this latter approach, at least with respect to the relevance of informa-
tion. Regarding statements given to the authorities, he stated:
If the information is of no use then presumably it is irrelevant and will be
excluded in the exercise of the discretion of the Crown. If the information
is of some use then it is relevant and the determination as to whether it is
sufficiently useful to put into evidence should be made by the defence and
not by the prosecution.’
Echoes of this sentiment can be heard in the dissenting opinion of Marshall
J. of the United States Supreme Court in Bagley. He would not have required
as rigid a standard for the disclosure of evidence as that established by the ma-
jority of the Court:
Once the prosecutor suspects that certain information might have favorable
implications for the defense, either because it is potentially exculpatory or
relevant to credibility, I see no reason why he should not be required to
disclose it. After all, favorable evidence indisputably enhances the truth-
seeking process at trial. And it is the job of the defense, not the prosecu-
tion, to decide whether and in what way to use arguably favorable evi-
dence.”
Marshall J. also addressed a key problem in the standard endorsed by the ma-
jority of the Court, a problem which Sopinka J. avoided in Stinchcombe. Mar-
shall J. pointed out that
the Court relies on this review standard [that the result of the proceedings
would have been different] to define the contours of the defendant’s consti-
tutional right to certain material prior to trial. … [T]he Court permits
prosecutors to withhold with impunity large amounts of undeniably favor-
3 United States v. Bagley, 473 U.S. 667 at 682, 87 L. Ed. (2d) 481 (1985) [emphasis added,
hereinafter Bagley cited to U.S.].
3′ Stinchcombe, supra note 1 at 292 [emphasis added].
32Bagley, supra note 30 at 698.
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able evidence, and it imposes on prosecutors the burden to identify and
disclose evidence pursuant to a pre-trial standard that virtually defies
definition.33
Marshall J. fears that it will be extremely difficult to make any truly in-
formed or rational decision as to whether information could affect the outcome
of a trial when the issues and facts which will be addressed at trial have yet to
be identified. The use of relevance alone as the pre-trial standard has its own
difficulties, as we have seen, but at least it does not require the Crown prosecu-
tor to play the role of fortune-teller with respect to the outcome of the trial.
There do not appear to be any cases decided since Stinchcombe which di-
rectly address the scope of the right to make full answer and defence and there-
fore of disclosure.T The question usually arises when a claim of privilege is
being made with respect to certain information. The courts then balance the
relevance, or potential relevance, of the information with countervailing policy
concerns, such as the protection of witnesses or, more generally, privacy inter-
ests. The conflict between the right of the accused to disclosure and other social
interests will be discussed in more detail below. However, for our immediate
purposes, it could be suggested that although Sopinka J. appears to advocate an
expansive notion of the right to make full answer and defence, at least with re-
spect to disclosure, by focusing on the “usefulness” of the information, he also
uses the notions of relevance and privilege to circumscribe that right. Generally
speaking then, where the only concern is one of questionable relevance, as
Sopinka J. asserted, the Crown should err on the side of inclusion. But where
there are other interests at stake, those interests must be taken into account and
balanced with the tenuous relevance of the information and the right to make
full answer and defence.
We have thus seen that the Crown’s discretion regarding the relevance or ir-
relevance of information is very vaguely defined. The key issues are therefore
the trial judge’s role in reviewing the exercise of the Crown’s discretion and the
manner in which the judge reaches a decision as to whether or not the informa-
tion should be, or should have been, disclosed.
33Ibid. at 700 [emphasis added].
However, in O’Connor No. 1, supra note 3, the Court addressed the relationship between the
right to full answer and defence and the remedies available when the Crown had breached its
disclosure obligations. The Court stated, ibid. at 148, that, following Stinchconbe, “the right of an
accused to full disclosure by the Crown is an adjunct of the right to make full answer and de-
fence. It is not itself a constitutionally protected right.”
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L. COLTON – R. V STINCHCOMBE
2.
Review at Trial: How Does the Judge Decide?
a) The Burden of Proof
The Court stated clearly in Stinchcombe that “[i]nasmuch as disclosure of
all relevant information is the general rule, the Crown must bring itself within
an exception to that rule”35 when the Crown’s exercise of discretion is reviewed
by the trial judge. Sopinka J. offered a series of principles to guide the judge in
reviewing non-disclosure by the Crown, all of which relate to information the
non-disclosure of which is purportedly justified by the rules of privilege.36 With
respect to relevance, Sopinka J.’s only guide to the trial judge is his assertion
that he is
confident that disputes over disclosure will arise infrequently when it is
made clear that counsel is under a general duty to disclose all relevant in-
formation. The tradition of Crown counsel in this country in carrying out
their role as “ministers of justice” and not as adversaries has generally been
very high. Given this fact, and the obligation on defence counsel as officers
of the court to act responsibly, these matters will usually be resolved with-
out the intervention of the trial judge. When they do arise, the trial judge
must resolve them. This may require not only submissions but the inspec-
tion of statements and other documents and indeed, in some cases, viva
voce evidence. A voir dire will frequently be the appropriate procedure in
which to deal with these matters.37
We still do not know how far relevance extends, however. The same problem
arises here as did with respect to relevance. The trial judge must attempt to
formulate the appropriate standard without guidance.
A preliminary question of onus arises, however, which is linked to the cen-
tral issue of determining relevance. According to the Supreme Court, the obli-
gation to disclose all relevant information places the burden on the Crown to
justify withholding any materials in its possession. The question, though, as to
who must justify the relevance or irrelevance of information remains unan-
swered. Prima facie, since the Crown has the initial obligation of separating
“the wheat from the chaff’,38 and has an apparently onerous duty to disclose all
relevant information and err on the side of inclusion, it follows that the onus
should fall on the defence to show that the information is in fact relevant. R. v.
” Stinchcombe, supra note 1 at 340.
See Part IVA., below.
31 Stinchcombe, supra note 1 at 340-41.
” Ibid. at 339.
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Mandeville,39 applying Stinchcombe, takes precisely this approach. In that case,
the Court required the defence to explain to what the information was relevant,
in other words, to identify which claims the information could support or re-
fute.
Mandeville had been charged with sexual assault against and unlawful
confinement of the complainant. The defence made a pre-trial motion for dis-
closure of documents, which consisted of records maintained by Stanton Yel-
lowknife Hospital and by Northern Addiction Services on treatment of and
consultations with the complainant regarding alcohol abuse and addiction. In
this instance (somewhat exceptionally), the records in question were actually in
the possession of the Crown. The Crown had already provided some of the in-
formation in edited form to the defence, but had objected to the disclosure of
the unedited documents and of any other documents. The defence argued that
they required the information in order to instruct expert witnesses. They said
that they intended
to call expert evidence at trial relating to the complainant’s alcoholism and
the effect of that alcoholism on the reliability of her evidence. Specifically
… on the theories of “confabulation” (the notion that one starts to believe as
true things that one thinks may have happened but has no actual memory
of) and the effect of alcohol on the ability to recollect at all as a function of
brain damage ( … Korsakoff’s syndrome).40
Vertes J. reviewed the allowable uses of expert evidence, and articulated a
concern for the complainant’s right to privacy as well as her expectation that
her records would be kept confidential. He also concluded that “[w]ithout the
medical data provided by these records the defence expert cannot begin to for-
mulate a knowledgeable opinion. For these reasons I believe the defence has
established a foundation for disclosure.”41 Vertes J. then reviewed the records in
question and ordered the disclosure of specific documents from the hospital re-
cords, which consisted primarily of data and clinical observations. The judge
refused to order disclosure of the records maintained by Northern Addiction
Services, however, as they were “made up more of subjective comments as op-
posed to clinical and objective data.’ 42 Vertes J. did not find these documents
“material” to the defence’s case.4 3
9 Supra note 5.
40 Ibid. at 274.
4 1 Ibid. at 275 [emphasis added].
41 Ibid. at 276.
43ibid.
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L. COLTON – R. V STINCHCOMBE
In this instance, the onus lay on the defence to argue for disclosure of the
evidence. Vertes J. had to be satisfied that there was more going on than a
“fishing expedition”.”4 The defence thus had to show a sufficient foundation for
the evidence by explaining its relevance (to credibility) and that it would be
used at trial for the information and instruction of expert witnesses.
Vertes J. did acknowledge that the applicable authority in this situation was
Stinchcombe and stated the guiding principle: “Disclosure of all relevant in-
formation is the rule and information ought not to be withheld if there is a rea-
sonable possibility that the right of the accused to make full answer and de-
fence will be impaired.”45 That was, however, the extent of the discussion of
Stinchcombe in Mandeville. Clearly, according to Vertes, J., the Crown did not
have to justify its exclusion of the information, but rather, the defence had to
show the information’s relevance.
O’Connor No. 2 seems to have brought some much-needed procedural
clarification to this problem. In that case, the Court suggested a two-step ap-
proach. At the first stage, the applicant
must show that the information contained in the medical records is likely to
be relevant either to an issue in the proceeding or to the competence of the
witness to testify. If the applicant meets this test, then the documents
meeting that description must be disclosed to the court.
The second stage involves the court reviewing the documents to determine
which of them are material to the defence, in the sense that, without them,
the accused’s ability to make full answer and defence would be adversely
affected. If the court is satisfied that any of the documents fall into this
category, then they should be disclosed to the parties, subject to such con-
ditions as the court deems fit.
The Court also observed that, in many cases, the only point in the trial at
which relevance and materiality could ultimately be determined would be when
the issue to which the information relates is addressed. In cases where disclo-
sure could be decided earlier, however, it could be ordered by a pre-trial judge.
Such an order would be subject to appropriate safeguards for the reasonable
protection of privacy interests. The Court also paid some attention to the notion
of “relevance’ itself, stating that
” Ibid. at 274.
45 Ibid.
‘6O’Connor No. 2, supra note 3 at 58-59.
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[w]hile a liberal interpretation of the word “relevant” is to be encouraged, it
is not to be encouraged without due regard for other legitimate legal and
societal interests, including the privacy interests of complainants in sexual
assault cases.”
Lee Stuesser’s comment on O’Connor No. 248 points out that, in the above
passage, the Court appears to be confusing “relevance” with “admissibility”.
According to Stuesser, the first stage of the process should deal with relevance
alone and any balancing of interests should take place at the second stage. This
paper will follow Stuesser’s approach, by separating the two concepts and ad-
dressing the societal interests at stake in a later section.
O’Connor No. 2 also sets out several grounds for disclosure which do not
meet the test for relevance: credibility of the complainant; recent complaint;
prior inconsistent statements; and the inference that having undergone thera-
peutic treatment renders the testimony unreliable. 49 The common theme under-
lying these insufficient grounds, it is suggested, is the oft-asserted principle that
the right to make full answer and defence does not include a right to go on un-
founded “fishing expeditions”.50 Moreover, in many situations, the defence re-
quests information not because it is aware of leads which can be followed up
but because it is simply hoping for anything that could prove useful to its case.
We must remember that at this stage the defence knows nothing about the con-
tents of the records. Few defence counsel have the time to work extra hours as
private investigators, and most accused do not have the resources to hire a pro-
fessional. But does that general incapacity and ignorance mean that the Crown
is not obliged, as a matter of law, to disclose information regarding speculative
defences? The answer to this question will again turn on our understanding of
relevance itself, particularly in the context of the right to make full answer and
defence.
O’Connor No. 2 explicitly places the onus on the defence to establish, at
the first stage of the disclosure process, the “likely relevance” of the informa-
tion sought.5’ At the second stage, the court itself will review the material and
ultimately decide whether or not disclosure to the defence should ensue. The
4, Ibid. at 59.
48 L. Stuesser, “Reconciling Disclosure and Privilege” (1994) 30 C.R. (4th) 67.
49 O’Connor No. 2, supra note 3 at 63-65.
E.g., in Coon, supra note 5 at 157, Then J. stated: “In my view, while the sufficiency of the
foundation will of course vary from case to case the right to full answer and defence cannot be-
come synonymous with a fishing expedition.”
“‘ O’Connor No. 2, supra note 3 at 58.
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L. COLTON – R. V STINCHCOMBE
Court of Appeal pointed out that the standard should be “less stringent 52 at the
first stage than at the second, as the information contained in the records will
likely not be known to anyone except the witness and the physician, psychia-
trist or therapist.
It is a general principle of the Canadian Charter of Rights and Freedoms 3
that the person alleging a violation of his or her rights must establish the in-
fringement.54 It thus appears that an accused who suspects that the Crown is
holding something back must bring forward evidence to that effect. But how
can any defence counsel possibly meet that burden? At best, they might be able
to establish that the Crown has information that has not been disclosed to the
accused. Sopinka J. seemed to contemplate that once such an assertion has been
made, the Crown will have to explain its non-disclosure of relevant material.
What is not made clear, however, and what may well be crucial to whether or
not the defence obtains access to records or information held by the Crown, is
the extent to which the Crown must justify non-disclosure of purportedly ir-
relevant material. The language used in Stinchcombe could support the ap-
proach taken by Vertes J. in Mandeville: “Inasmuch as disclosure of all relevant
information is the general rule, the Crown must bring itself within an exception
to that rule.”55 The burden with respect to relevant evidence should clearly be
on the Crown. Sopinka J., however, did not establish where it should lie when
relevance itself is in issue. Mandeville placed the burden on the defence: Vertes
J. required the defence to establish the “usefulness”, to use Sopinka J.’s lan-
guage,56 of the information to the accused’s case. O’Connor No. 2 appears to do
the same, although the test at the first stage is “less stringent”. Is this appropri-
ate?
This trend of requiring the defence to explain why it wants disclosure of
particular records can be seen in several other related situations, most notably
those in which there is an issue of privilege. In R. v. Learn,57 the Court refused
to order disclosure of the medical records of a crucial Crown witness since the
only basis for the request was the fact that, under cross-examination in the pre-
liminary inquiry, the witness admitted that she had undergone psychiatric
2Ibid. at 59.
‘3Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter Charter].
4 Canada (Director of Investigations & Research) v. Southam, [1984] 2 S.C.R. 145, 41 C.R.
(3d) 97; Operation Dismantle v. R., [1985] 1 S.C.R. 44, 13 C.C.R. 287; R. v. Collins, [1987] 1
S.C.R. 265,56 C.R. (3d) 193.
“Stinchcombe, supra note 1 at 340 [emphasis added].
“If the information is of some use then it is relevant’ (ibid. at 345).
‘ Supra note 5.
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treatment. Melnick J. stated that “it is not sufficient, in my view, for an accused
to seek the extraordinary rights here pursued simply on the basis of the sub-
missions of counsel, without any factual relevancy being established.”’58 Most
of the cases which address the issue of disclosure do so not in the context of
Crown disclosure, but on a request or subpoena for information from third par-
ties to which a claim of privilege or confidentiality is attached. Privacy rights
are protected to a degree by the requirement that the person seeking the infor-
mation must show its relevance by laying a “substantial foundation”.”9 The is-
sues of privacy and privilege will be discussed more fully below, but for now it
is sufficient to point out that Mandeville applied this requirement in the context
of a Stinchcombe request for disclosure. The appropriateness of that require-
ment must again be questioned.
It has thus been at least tentatively established that where the Crown has
exercised its discretion to withhold clearly irrelevant information, it is up to the
defence to demonstrate the “likely relevance” or “usefulness” of the informa-
tion. This is so notwithstanding that the burden is on the Crown to justify any
withholding of relevant information on grounds such as privilege or witness
protection concerns. It is almost trite to say that the right to make full answer
and defence does not extend to allowing mere “fishing expeditions”. In order to
assert a claim for disclosure, the courts have therefore found it reasonable to
require defence counsel to show the potential usefulness of the information and
their intended use of it.
If we now reconsider our hypothetical fact pattern, a serious problem arises
with the requirement. How can the defence show the potential relevance of in-
formation about which it knows little or nothing? This issue has already been
addressed by the Supreme Court with respect to wiretap evidence and the
sealed packet.60 In the past, the law required the defence to justify its request for
access to the materials contained in the sealed packet by showing prima facie
police misconduct, such as material non-disclosure or fraud. However, it was
impossible for the defence to make that claim because any potential supporting
evidence was contained in those sealed records. In Dersch, it was held that the
above burden on the defence constituted a denial of the right to make full an-
“‘ Ibid. at 7 (integral text of judgment).
‘9 In R. v. Lyons (1981), 64 C.C.C. (2d) 73 at 76 (Ont. H.C.J.) [hereinafter Lyons], Smith J.
stated: “It is clear that some foundation must be laid.” In Mandeville, supra note 5 at 275, Vertes
J. stated: “For these reasons I believe the defence has laid a foundation for disclosure.” In Coon,
supra note 5 at 157, Then J. stated: “[I]f a sufficient foundation is laid then the privacy interest
must yield to the accused’s right to full answer and defence”.
WDersch v. Canada (A.G.), [1990] 2 S.C.R. 1505,80 C.R. (3d) 299 [hereinafterDersch cited to
S.C.R.]. The sealed packet contains the affidavits filed in support of the wiretap authorizations.
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L. COLTON – R. V STINCHCOMBE
swer and defence. Is denying disclosure of information, the potential relevance
of which the defence cannot demonstrate, a fortiori a denial of the right to
make full answer and defence?
The problem in Dersch lay in the restrictive interpretation of section 178.14
of the Criminal Code by the courts. The provision did not seem to limit the dis-
cretion of the trial judge in deciding whether to open the sealed packet to the
defence. The Supreme Court held that, in light of the Charter, such a restrictive
interpretation was unconstitutional, although the legislation itself was valid.
The terms of Stinchcombe are also open enough as to be susceptible to an
analogously restrictive interpretation of the principles of disclosure. This ap-
pears to be the direction in which the courts are headed: when relevance is in
question, disclosure will not be ordered unless the defence can show why it
should be.
In Dersch, the denial of the right to make full answer and defence lay in the
fact that the accused would never be able to test the admissibility of informa-
tion obtained by a wiretap authorization. He or she would simply not have ac-
cess to that authorization, and would therefore be unable to determine whether
the search warrant was obtained lawfully or in violation of section 8 of the
Charter. According to Sopinka J. in that case:
The right to full answer and defence does not imply that an accused can
have, under the rubric of the Charter, an overhaul of the whole law of evi-
dence such that a statement inadmissible under, for instance, the hearsay
exclusion would be admissible if it tended to prove his or her innocence …
But it does provide, in my view, that the accused be given the opportunity
to test the admissibility of a piece of evidence according to the ordinary
rules that govern the admissibility of evidence.61
To the extent that the non-disclosure of information will preclude the de-
fence’s ability to test the information’s admissibility, it would appear that a re-
strictive interpretation requiring the defence to identify specifics of the infor-
mation it wants would violate the constitutional right to make full answer and
defence. The defence is being asked to explain why it needs disclosure of in-
formation the content of which it may know next to nothing about. This is an
absurd position in which to place the defence when there is a supposedly con-
stitutionally entrenched right to full disclosure. Although there may be situa-
tions where material is sensitive and where other interests may come into play,
such as privacy or social interests, a more appropriate analysis would consider
those interests not with respect to the relevance of information, but rather as
61 Ibid. at 1515.
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related to the exceptions to disclosure, such as privilege.
But does this mean that the defence should get absolutely everything it asks
for? Such an assertion implies that all information in the hands of the Crown is
presumptively relevant. This does not appear an attractive alternative either,
since much of the information may actually be clearly irrelevant. If, as we have
seen, the constitutional difficulty lies in the lack of opportunity to test the ad-
missibility of the information, then an acceptable middle ground may be to re-
quire the defence to assert the non-disclosure it suspects as well as the reason
for the disclosure request. In other words, the defence must establish the prima
facie relevance or usefulness of the information. Having demonstrated that
there may be a need for the information, the defence will then have to establish
the admissibility of the information at the appropriate point in the proceedings.
If the information turns out to be irrelevant, then the defence will not be able to
use it to its advantage at trial. If it is relevant, however, the accused will not
have been denied the constitutional rights to a fair trial and to make full answer
and defence.
There will be many situations, though, where the interests of people other
than the accused will be affected by the disclosure of information. Depending
on the circumstances, the analysis of these situations may turn on the privilege
exception to disclosure, which we will examine below. First we will consider
the nature of the connection between relevance and admissibility of informa-
tion.
MI. Admissibility, Disclosure and Relevance
A. Societal Relevance
A broader concern which arises from our hypothetical fact pattern stems
from the nature of the offence of sexual assault. The common law once consid-
ered evidence of sexual activity of the complainant in rape cases highly rele-
vant. In essence, its relevance was based on two common assumptions: the be-
lief that “unchaste” women were dishonest and thus less credible on the witness
stand; and the universally accepted idea that a woman who had previously con-
sented to sexual activity was more likely to have done so on the occasion in
question.2 The Canadian legislature has attempted to defeat this presumed
z For a full discussion of the history and impact of these principles, see L’Heureux-Dubi J.’s
dissenting judgment in R. v. Seaboyer, [1991] 2 S.C.R. 577, 7 C.R. (4th) 117 [hereinafter
Seaboyer].
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L. COLTON – R. V STINCHCOMBE
relevance by expressly disallowing evidence which would be used solely to
perpetuate stereotypes.
63
At issue here is the social, contextual and political meaning of “relevance”.
On a broad scale, relevance pertains not only to the connection of one fact to
another, but also extends to attitudes, beliefs, stereotypes and unspoken as-
sumptions. The “outdated” connections between sexual activity and dishonesty,
or between past consent and present proclivities are only two examples. The
legislature, moreover, has expressly prohibited this line of reasoning. Thus
when defence counsel argues that the psychiatric record of the complainant is
relevant to her credibility –
even putting aside the sexual history aspects of
those records –
is counsel not drawing on another societal assumption of rele-
vance? Such an assumption might be that people who see psychiatrists have
“mental problems”, are disturbed, and cannot be believed. It follows that such
people may not be lying on purpose, but that their “mental illness” could affect
their view of the world, and that their statements and testimony should there-
fore be viewed with suspicion. Like sexual history, this assumption of rele-
vance is circumscribed by the conditions of admissibility of this kind of evi-
dence.6’
The claim that sexual history and psychiatric history are relevant is based
on generalizations and assumptions which may have no validity in the particu-
lar case. Given these concerns, as well as the conditions of admissibility of
these forms of evidence, we must ask whether the complainant’s sexual and
psychiatric past is sufficiently relevant to be routinely disclosed to the defence.
In addition, we must consider the countervailing policy concerns that may op-
erate to preclude disclosure of the information despite its relevance. Of crucial
interest here is the interplay between the principles of disclosure and those of
admissibility.
‘3 See Part IHI.B., below.
‘ This is one of the grounds for disclosure discredited by the Court in O’Connor No. 2, supra
note 3. For a recent discussion of these conditions and their application, see Nickerson, supra
note 5. See also the dissenting judgment of L’Heureux-Dub6 J. in Osolin, supra note 2 at 616-17.
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B. Section 276 of the Criminal Code: Presumptive Inadmissibility of
Sexual History
The Canadian legislature has made it clear that, in the context of sexual
crimes, the stereotypes and myths connected with complainants and their sex-
ual histories will not be tolerated. An examination of the legislative history of
Canada’s “rape-shield” law is beyond the scope of this paper; the discussion
here will thus be limited to the present provisions of the Criminal Code. Sub-
section 276(1) prohibits the use of evidence
that the complainant has engaged in sexual activity, whether with the ac-
cused or with any other person … to support an inference that by reason of
the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the
subject-matter of the charge; or
(b) is less worthy of belief.
A procedure is set out in sections 276.1 and 276.2 whereby the accused can
make an application to bring forward evidence of sexual history, the admissi-
bility of which will be determined at a voir dire. Subsection 276(2) lists the
criteria for the admissibility of the information: the judge must determine that
the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed
by the danger of prejudice to the proper administration ofjustice.
Subsection 276(3) lists the factors to be taken into account in determining
whether evidence is admissible under subsection 276(2). The factors include
(a) the interests of justice, including the right of the accused to make a
full answer and defence; …
(d) the need to remove from the fact-finding process any discriminatory
belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice,
sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right
of privacy;
(g) the right of the complainant and of every individual to personal se-
curity and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice con-
siders relevant.
1995]
L. COLTON – R. V STINCHCOMBE
The first stage of our analysis of relevance dealt with the legal concept as
generally understood and applied. The so-called “rape-shield” provisions ad-
dress the problem of “social” or “stereotypical” relevance based on inferences
which ensue from unfounded beliefs about women who “cry rape”. Those
provisions create a prima facie presumption of the inadmissibility of sexual
history, since sexual history is generally irrelevant to the issues before the court,
and is always irrelevant to the likelihood of consent and credibility.
Certain types of evidence (such as hearsay, opinion and character evidence)
are generally excluded because they “possess inherent unreliability, lack of
probative worth and susceptibility to fabrication.” 65 Evidence of sexual history
is primafacie inadmissible for this reason. There are also separate exclusionary
rules “based upon social values, external to the trial process,” 66 rendering in-
admissible evidence which is otherwise relevant, probative and trustworthy.
The privilege rule belongs to this latter category. We will be considering here,
from both angles, evidence of sexual history in the context of pre-trial disclo-
sure. We will look first at its general irrelevance and lack of probative worth as
factors militating against disclosure, particularly in light of the legislative rein-
forcement of that premise in section 276. Second, we will examine the privi-
lege which arises from the doctor-patient relationship.
1. The Connection Between Relevance and Admissibility for Pur-
poses of Disclosure
The first question is whether, according to the procedures and standards
previously laid out, evidence of past sexual conduct is “potentially relevant” or
clearly irrelevant. If there were no prohibitive restrictions, would the defence
be entitled to such information?
In the absence of legislative intervention, the defence would be required to
demonstrate the prima facie usefulness of the information. In other words, the
defence would have to show that, without the information, the accused’s ability
to make full answer and defence would be hampered. To justify the asserted
relevance and usefulness of the information, the accused would claim that he
had believed in the complainant’s consent because he knew of her past sexual
activities, whether with others or with himself. The evidence would clearly be
disclosable if this were the only issue. Upon review, even a judge who is con-
scious of the prejudicial effect of unfounded stereotypes would be forced to
consider the evidence relevant. This would be the case because, prior to the en-
6′ Sopinka, Lederman & Bryant, supra note 22 at 623.
6 Ibid.
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actment of section 276, an accused charged with sexual assault could invoke
the defence of honest belief in consent,67 even though this belief was based en-
tirely on a stereotypical notion of the sexual behaviour of women. Therefore,
refusing the defence access to the information would, even by the most strin-
gent standards, be a clear violation of the right to make full answer and de-
fence. This is particularly true in light of the fact that the defence of honest be-
lief in consent cannot be put to the jury unless there is an “air of reality” to it.
“Air of reality” means that the honest belief in consent must be supported by
actual evidence. 68 If the only available evidence lies in the records of the com-
plainant to which the accused is denied access, then the accused’s right to make
full answer and defence will obviously be violated.
The current state of the law in Canada has been changed by Bill C-49,69 en-
acted in response to Seaboyer and codified in section 276 of the Criminal
Code. The Supreme Court struck down the previous “rape shield” law on con-
stitutional grounds because the law allowed the exclusion of evidence poten-
tially relevant to the defence and thus violated the right to make full answer and
defence. Bill C-49 not only enacted a new rape shield law, but also codified the
concept of consent in sexual assault and, more particularly, set out circum-
stances in which, from a legal perspective, there would be no consent. These
provisions, when read together with the preamble of Bill C-49, speak elo-
quently of the policy behind this legislation: sexual assault, in all its various
forms, is a crime which is intolerably pervasive in Canadian society, and one
which is fuelled and perpetuated by myths and stereotypes about the sexual be-
haviour of men and women. This legislation proposes to defeat the effect of
these societal biases by barring them from the courtroom. Section 273.1 stipu-
6’R. v. Pappajohn, [1980] 2 S.C.R. 120, 14 C.R. (3d) 243.
6′ Osolin, supra note 2 at 609.
69 An Act to amend the Criminal Code (sexual assault), 3d Sess., 34th Par., 1992 (assented to
23 June 1992, S.C. 1992, c. 38).
70 Ibid., preamble:
Whereas the Parliament of Canada is gravely concerned about the incidence of
sexual violence and abuse in Canadian society and, in particular, the prevalence of
sexual assault against women and children; … [and] recognizes the unique charac-
ter of the offence of sexual assault and how sexual assault and, more particularly,
the fear of sexual assault affects the lives of the people of Canada; … [and] wishes
to encourage the reporting of incidents of sexual violence or abuse, and to provide
for the prosecution of offences within a framework of laws that are consistent with
the principles of fundamental justice and that are fair to complainants as well as to
accused persons; … [and] believes that at trials of sexual offences, evidence of the
complainant’s sexual history is rarely relevant and that its admission should be
subject to particular scrutiny, bearing in mind the inherently prejudicial character
of such evidence…
1995]
L. COLTON – R. V STINcHCOMBE
lates specific situations in which “no consent is obtained,” and section 273.2
reinforces the requirement that consent must now be obtained expressly and
cannot merely be assumed. Honest belief in consent will no longer be a defence
when the accused’s belief is due to recklessness or wilful blindness. Nor will it
be a defence when “the accused did not take reasonable steps, in the circum-
stances known to the accused at the time, to ascertain that the complainant was
consenting.”
Both the substantive law and the applicable evidentiary principles have thus
been radically changed. The court must not, in general, allow “outmoded”
stereotypical assumptions into the courtroom. In the exceptional case, however,
assumptions of this nature may be permitted when their factual relevance is
demonstrated.
The position of the law with respect to the admissibility of evidence of
prior sexual conduct now appears to be settled. What then is the position, and
what should it be, with respect to the disclosure of such information to the de-
fence? Is it relevant because it will assist in drawing up the application for a
hearing to determine its admissibility? On the other hand, is it “clearly irrele-
vant”, both as a matter of common understanding and public policy, because it
is presumptively inadmissible? Or is there a middle ground of potential rele-
vance? Here, the policy concerns animating the Criminal Code provisions
would militate against wholesale disclosure of the information. The defence
would have to show something beyond the mere existence of prior sexual con-
duct to demonstrate the information’s relevance and to invoke the right to make
full answer and defence. This approach would in effect shift the analysis from
“relevance” to considerations of policy and the effective administration of jus-
tice. In essence, this approach parallels a privilege argument. The public inter-
est in the administration of justice operates to deny disclosure unless infringe-
ment of the right to make full answer and defence can be demonstrated.
We have already argued that the appropriate burden to impose on the de-
fence to justify a request for disclosure is one of prima facie relevance. In the
context of information about sexual history, however, we must ask whether that
prima facie standard is appropriate, given the clear policy reflected in section
276 that such information is generally irrelevant, often highly prejudicial, and
should be considered very carefully before being admitted. The issue here is
whether the same disclosure standard for relevance is appropriate when evi-
dence is primafacie inadmissible. How much influence should presumptive in-
admissibility have on disclosure?
Since the withholding of the information would thus be based on policy
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concerns external to the information’s actual content, the defence no longer has
to demonstrate the relevance of information about which it knows nothing. Ac-
cording to Sopinka J. in Dersch, the right to make full answer and defence does
not require that all information be rendered admissible.7’ The defence would
therefore have to show that the accused’s right to make full answer and defence
was being impaired not by the prima facie inadmissibility of the information
but in spite of it. In other words, where the public interest dictates the inadmis-
sibility of information, it seems reasonable to assert that it would be equally
prohibitive of disclosure unless the defence could show that the information is
susceptible of being rendered admissible. Although this may seem a very low
threshold, there will be circumstances, which would not violate the right to
make full answer and defence, where the defence will be unable to meet this
threshold. For example, in the context of sexual assault, section 276 has
changed the very nature of the relevance of sexual history. There will be in-
stances where sexual history is “clearly irrelevant”, most notably when the de-
fence of honest belief in consent has been precluded by the operation of section
273.2. Conversely, there will be many cases in which the key issue is the op-
eration of that provision, and the trier of fact will have to determine whether the
accused was intoxicated, reckless or wilfully blind, or whether he had taken
sufficient steps to ascertain the existence of consent. Where the defence has an
interest in the information for these purposes, then the right to make full answer
and defence must be respected by disclosing the information.
We therefore suggest the following analysis. Information which is of no use
to the defence is clearly irrelevant and can be withheld by virtue of the Crown’s
discretion. Here, the defence would not be able to meet the minimum threshold
of demonstrating the usefulness of the information. When the information
could be of some use but is presumptively inadmissible, however, the defence
must satisfy the threshold test. The information’s presumed inadmissibility
places it in the same category as information the relevance of which is unclear,
and the threshold onus to justify non-disclosure is thus placed on the defence
rather than on the Crown. This threshold test, where admissibility is at stake,
would require the defence to make the prima facie case that the information
could be rendered admissible. Finally, information may be absolutely inadmis-
sible for certain uses; for example, evidence of previous sexual conduct as
showing likelihood to lie. This information may be admitted, however, if the
defence can show that it could be subject to one of the given exceptions.
There may still be situations in which the defence knows so little about the
content of the information that it is simply unable to demonstrate anything
7 Dersch, supra note 60 at 1515.
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L. COLTON – R. V STINCHCOMBE
about it. In that circumstance, the right to make full answer and defence can
only be adequately preserved by disclosure of the information, or of at least
sufficient portions of it. This would be within the trial judge’s discretion on re-
view. We have suggested a threshold analysis in recognition of the legitimacy
and importance of the policy goals in the particular context of sexual assault.
There must be room in the judicial process for consideration of these interests
even in preliminary arguments regarding disclosure. It would not be appropri-
ate for the courts to read Stinchcombe so restrictively as to render meaningless
the right to disclosure. But Stinchcombe should not, nonetheless, be used to
justify an abdication of the court’s responsibility to make difficult decisions in-
volving the public interest, by a blanket requirement that all information be
disclosed. The defence should not have access to information which it will
clearly not be able to use. Where a potential use can be demonstrated and ad-
missibility must be determined, the defence should have access to the informa-
tion to enable it to make that determination. 72
2. Disclosure and the Administration of Justice
A broader issue remains, however, which is less likely to arise in the con-
text of evidence of sexual conduct but which may be even more acute in other
situations, such as those in which the information is inadmissible as hearsay. If
such a statement were disclosed to the defence, it could perhaps investigate
further and obtain the evidence in an admissible form from the original source.
The defence may even be able to use the information for the purpose of prepar-
ing for the cross-examination, to damage the credibility of Crown witnesses. A
variation on the same problem is our “revenge fantasy” example. How exten-
sive is the right to make full answer and defence?
Civil discovery requires that all relevant information be disclosed, regard-
less of its admissibility, subject to claims of privilege.73 On one hand, the consti-
tutional right to make full answer and defence in the criminal context, where a
liberty interest is at stake, would seem to strongly support adoption of that same
principle. There is, however, a fundamental difference between civil and crimi-
7
‘ Another possible approach is that suggested in O’Connor No. 2, supra note 3. The documents
are disclosed to the court once the defence has demonstrated their “likely relevance.” The court
then reviews the documents to determine which are material to the defence. However, the Court
of Appeal in that case was not addressing the admissibility of such documents. When admissibil-
ity is an issue, the defence will have to establish it and will generally not be able to do so without
access to the information. Review of the documents by the court in such a case will not, generally,
be sufficient to protect the right to make full answer and defence.
7′ Law Reform Commission of Canada, Discovery in Criminal Cases (Study Report) (Ottawa:
Information Canada, 1974) at 40.
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nal procedure. In civil cases, the adversarial process dictates that there are gen-
erally two individuals in direct conflict, one claiming to be wronged by the
other. The criminal law is concerned not with conflicts between individuals, but
rather with the state regulation of conduct considered detrimental to the public
interest. As Sopinka J. emphasized in Stinchcombe, the role of the prosecutor is
not purely adversarial, but also representative of the public interest:
[Tihe role of prosecutor excludes any notion of winning or losing; his
function is a matter of public duty than which in civil life there can be none
charged with greater personal responsibility.’
Further on he stated that
the fruits of the investigation which are in the possession of counsel for the
Crown are not the property of the Crown for use in securing a conviction
but the property of the public to be used to ensure that justice is done.7′
In a criminal procedure, the complainant is not suing the defendant for
reparation although the defendant may have caused suffering to the complain-
ant. The complainant, unlike the plaintiff in a civil case, has no control over the
process in which she or he may be the key witness. Given this reality, the
prosecutor, in his or her role as representative of the public interest, should ac-
cord some value to the protection of the integrity and privacy of those indi-
viduals who are relied upon to further the pursuit of justice. The discretion of
the Crown prosecutor would then include the consideration of these interests
when withholding information.
In addition to the individual interests of complainants, there are more
amorphous, but nonetheless crucial, public interests at stake. These include:
avoiding the creation of disincentives to the reporting of sexual assaults or
other crimes where witnesses or complainants have undergone psychiatric
treatment; preventing the perpetuation of stereotypes or prejudices that impede
the truth-seeking process; and attempting to ensure that the individual rights of
those other than the accused are recognized and accorded value in the judicial
process. These arguments are but a facet of the concern expressed above that
the procedure for disclosure should allow broader social and individual inter-
ests to be taken into account in conjunction with the accused’s right to make
full answer and defence.
74 Stinchcombe, supra note 1 at 333, quoting Rand . in R. v. Boucher (1954), [1955] S.C.R. 16,
20 C.R. 1.
7″Stinchcombe, ibid.
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L. COLTON – R. V STINcHCOMBE
555
IV. Privilege and Policy: The Outer Boundaries of Disclosure
A. Privilege: General Principle6
In his discussion of the guiding principles for a review of the Crown’s ex-
ercise of its discretion, Sopinka J. stated that “information ought not to be
withheld if there is a reasonable possibility that the withholding of information
will impair the right of the accused to make full answer and defence unless the
non-disclosure is justified by the law of privilege. ’77 Where a privilege does
apply, it is still within the judge’s powers to order the disclosure of information
if he or she concludes that “the recognition of an existing privilege does not
constitute a reasonable limit on the constitutional right to make full answer and
defence.” 78 Similarly, the decision to withhold information on grounds of the
safety of the witness may also be reviewed by the trial judge. According to
Sopinka J., in these circumstances,
while much leeway must be accorded to the exercise of the discretion of
the counsel for the Crown with respect to the manner and timing of the
disclosure, the absolute withholding of information which is relevant to the
defence can only be justified on the basis of the existence of a legal privi-
lege which excludes the information from disclosure.’
The first problem is to determine what Sopinka J. meant when he stated that
“the law of privilege” will justify non-disclosure. What constitutes “privileged
information” 8
It is clear that the most important form of privilege or immunity is that ac-
corded to those who have provided information to the prosecution. Their need
for protection, and the broader concern of ensuring the efficient administration
of justice, are two of the most compelling reasons for recognizing that in cer-
tain circumstances relevant evidence should be withheld. Notwithstanding
The particular common law privilege which was recognized in R. v. Gruenke, [1991] 3
S.C.R. 263, 67 C.C.C. (3d) 289 [hereinafter Gruenke] will be discussed in the following section
regarding policy grounds for denying disclosure.
“Stinchcombe, supra note 1 at 340.
78 Ibid.
79 ibid.
‘ The only specific example provided is the informer privilege. Interestingly, Sopinka, Leder-
man & Bryant, supra note 22 at 805, characterize the informer “privilege” as an immunity, but
that distinction is not relevant for our purposes. Sopinka J. in Stinchcombe apparently contem-
plates the extension of the Crown discretion to privileges other than the informer privilege (see
supra note 17).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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these concerns, Sopinka J. gives precedence to the right to make full answer
and defence. If the privilege is not a reasonable limit on that right, disclosure
will be ordered.
The protection provided by the rules of privilege has never been absolute.
Exceptions have always been admitted in criminal proceedings when the right
to make full answer and defence could have been impaired by the non-
disclosure of information. What remains unclear is “the required degree of
materiality to justify disclosure.”‘” Unfortunately, Stinchcombe does nothing to
clarify the issue, but merely restates the general principle that the privilege
must not unreasonably restrict or impede the right to make full answer and de-
fence. However, with respect to the “material witness” exception to the in-
former privilege, it has been noted that
despite these rather broad expressions of the exception, the courts have not
held that disclosure is required for the defence in all cases where the ac-
cused has simply alleged that the information could potentially assist in the
defence. In many of those cases where disclosure has been required the in-
formant had witnessed or been involved in the commission of the offence82
Here we encounter again the question of burden of proof. Stinchcombe asserts
that it is up to the Crown to justify exceptions to the principle of full disclosure
which are based on privilege. The rules of privilege, however, require more
than a simple claim of necessity of disclosure before they will allow the privi-
lege to be set aside.
A privilege is, by definition, an exclusionary rule of evidence based on so-
cial interests external to the particular trial. The privilege makes inadmissible
otherwise relevant, probative and trustworthy evidence. In their discussion of
the “innocence at stake” exception to the informer privilege, Sopinka, Leder-
man & Bryant point out that
[r]eference to the statements from Rideout and Roviaro suggests that
whenever the information is “relevant” to the defence the evidence would
be necessary for the full defence of the accused. On the other hand, the last
paragraph of Sopinka J.’s comments retreats from the view that the excep-
tion would always apply in such cases. He suggests that even if the infor-
mation is relevant some weighing of the accused’s need for the evidence
against the public interest in law enforcement would have to be made by
the trial judge. If relevance were the only criterion then there really would
be no special police/informant rule in criminal cases. An accused should
S, Sopinka, Lederman & Bryant, ibid. at 809-10.
‘2 Ibid. at 810.
1995]
L. COLTON – R. V STINCHCOMBE
not be entitled to the information simply on the basis that it is relevant. ‘
The exclusion exists because a policy choice has been made which recog-
nizes a
social interest in preserving and encouraging particular relationships that
exist in the community at large, the viability of which are [sic] based upon
confidential communications.'”
Sopinka, Lederman & Bryant further state that, in general, “Anglo-
Canadian law has … given priority to the administration of justice over external
social values. In fact, the trend in Canada is to limit the recognition of privi-
leges in favour of the search for truth in the judicial process.””s
In Stinchcombe, Sopinka J. claims that imposing an obligation of full dis-
closure will further, rather than impede, the pursuit of truth. 6 The trial judge is
given the discretionary power to weigh privilege against the right to make full
answer and defence according to the criteria set out by Sopinka I. However,
since the rules of privilege already provide for exceptions, how does the trial
judge know when the non-disclosure of privileged information is not a reason-
able limit on the right to full answer and defence? The rule of privilege with re-
spect to informers was developed in conjunction with the right to make full an-
swer and defence, and exceptions were established to protect the rights of the
accused. Therefore, aside from those cases already provided for within the
privilege rule, it is unclear when (at least in the context of the police informer
privilege) the privilege will be unreasonable.
It is beyond the scope of this paper to discuss all the types of privilege, but
one which is particularly relevant to our hypothetical situation is that between
doctor and patient. Despite ethical and professional obligations to maintain
confidentiality with their patients, doctors are compellable to divulge informa-
tion before the courts.87 Nonetheless, the importance of protecting confidential-
ity has been recognized with respect to the particular relationship involved in
psychiatric treatment.” Thus a “qualified privilege for psychiatric communica-
13 Ibid. at 813 [emphasis added].
I Ibid. at 623.
‘5 Ibid. at 623-24.
Although it may well be argued that a reciprocal disclosure obligation would provide, to the
extent possible in an adversarial process, the most complete picture of the truth.
‘ Sopinka, Lederman & Bryant, supra note 22 at 712.
“8lbid. at 713.
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tions [has] gained a tentative foothold in Canada.” 9 This privilege has been
discussed in several cases where disclosure of psychiatric records in the hands
of third parties (the doctors or hospitals holding the records) was requested.90
In R. v. Learn, Stinchcombe was considered even though the material re-
quested was not in the possession of the Crown. The motion –
a blanket re-
quest for the names and records of all physicians who had treated the Crown’s
key witness – was based on an admission by the witness at the preliminary in-
quiry that she had received “psychiatric help” in the past and was currently un-
dergoing treatment. Melnick J. reviewed the conditions for the admissibility of
such evidence, but stated that
there is nothing in the evidence at the preliminary inquiry … which shows
that her psychiatric history either makes her more likely to have committed
the crime or is someone who has a hidden propensity to lie. It is not suffi-
cient, in my view, for an accused to seek the extraordinary rights here pur-
sued simply on the basis of the submissions of counsel, without any factual
relevancy being established.9’
Learn also cites the decision of the Ontario Court of Appeal in R. v. Lyons,9
which is consistently repeated as an elaboration of the general principle that
in the appropriate case … of an accused person’s attention being drawn to
the psychiatric history of the key witness for the Crown, he ought to be
entitled to an order for the production of the records so that same may be
inspected under, of course, supervision, in an attempt to steer a course be-
tween the right for an accused to be made aware of any mental, personality
disorder that may affect the reliability of the evidence of an important
Crown witness and this applies directly, I suppose, to the credibility of the
complainant in a rape case, and on the other hand, the right to privacy and
confidentiality possessed by our citizens in this country … It is clear that
some foundation must be laid.93
“Ibid. at 715.
90 Some cases have also discussed this type of information in the context of the common law
privilege recognized in Gruenke. These will be discussed in more detail in Part IV.B., below. A
recent decision of the British Columbia Court of Appeal, AM. v. Ryan (21 October 1994), Van-
couver CA017610 (B.C.C.A.), seems to indirectly recognize this privilege, but only when in-
voked by a party to the civil action. In that case, the privilege was invoked by the psychiatrist
who had treated the plaintiff when the defendant sought production of the records. The Court or-
dered that the records be disclosed.
9 Learn, supra note 5 at 7 (integral text of judgment).
9Supra note 59.
‘” Ibid. at 76 [emphasis added].
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L. COLTON – R. V STINCHCOMBE
R. v. Coon,94 a case of sexual assault involving an on-duty police officer, states
the issue somewhat more elegantly. The defence in that case requested disclo-
sure of the psychiatric records of the complainant, who had been an in-patient
. states two “important propositions”
at the time of the alleged assault. Then
governing the disclosure of such records:
First, in ordering production a balance must be struck between the right of
the accused to full answer and defence and the right of the complainant
(the disclosure of whose records are at issue) to privacy and confidentiality
which is embodied in the legislation. Secondly, the right of the accused to
full answer and defence will prevail if a sufficient foundation is laid to en-
able the judge to determine that disclosure is necessary in the interest of
justice.”
It should be noted that in these cases the court was dealing with a statutory
privilege that limited disclosure of hospital records. Nonetheless, the basic
principle remains clear: in light of a) the existence of a right to privacy and
confidentiality; b) the intensely personal nature of psychiatric evidence; c) the
generally questionable or tenuous relevance of such information; and d) the
conditions attached to the admissibility of such information, the onus is on the
defence to show that the records are relevant and potentially necessary to en-
sure complete protection of the right to make full answer and defence.
We are once again faced with the problem of who should bear the burden
of proof. When the Crown claims privilege, it must justify withholding evi-
dence, but the defence, in order to defeat the privilege, is required to show the
relevance of the information. In this privilege, as in the police informer privi-
lege, the rule protecting confidentiality is itself balanced with considerations of
the right to make full answer and defence. We therefore question whether
Stinchcombe contributed to this area of the law. Granted, it established the new
obligation of full disclosure, but the purported “exception” to the disclosure
principle, limited by the right to make full answer and defence, has always been
circumscribed by the same consideration. If we interpret Stinchcombe such that
the exceptions to disclosure must be read more restrictively and the right to
make full answer and defence read more expansively, the law of privilege will
be reduced to a mere incantation without practical significance. Stinchcombe
did not change the meaning of the right to make full answer and defence; it
clarified the obligation of the Crown to behave consistently in regard to it.
Therefore the rules of privilege should continue to apply as they always have,
in constant tension with the rights of the accused and the broader interests of
9, Supra note 5.
“‘ Ibid. at 152.
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the community. In other words, once a privilege has been established by the
Crown, disclosure will not be ordered unless an exception to the privilege can
be claimed. If the exception does not exist within the rules applicable to the
privilege, then the inquiry should go no further. It is not necessary to repeat the
analysis to determine whether, under Stinchcombe, the right to make full an-
swer and defence is impaired by non-disclosure.
This exception analysis works most visibly in the context of the police in-
former privilege because it is subject to a number of exceptions. In the context
of the doctor-patient privilege for psychiatric information, however, the ap-
proach is more fluid. The information is privileged unless the accused can
demonstrate that the information is sufficiently relevant to affect the right to
make full answer and defence. As such, the defence must demonstrate that the
complainant’s privacy and personal security interests are outweighed by the
fact that disclosure of these personal records is required to safeguard a consti-
tutional right. When the requested information is privileged, however, the bal-
ance of interests is altered. Because the fundamental nature of the interests
militate against disclosure, the defence must show more than the prima facie
possibility that the information deemed irrelevant by the Crown may indeed be
relevant. The defence must demonstrate that the accused’s interest actually
outweighs those interests protected by the privilege.
B. The Common Law Privilege: Considerations of Policy
There is, however, another type of privilege which may be invoked: the
“common law” privilege recognized by the Supreme Court in Gruenke. The
Court noted in that case that, unless there are compelling policy reasons, the
first principle, that all relevant evidence is admissible until proven otherwise,
will take precedence. The majority drew a distinction between a blanket or
class privilege, such as the informer privilege, and a case-by-case privilege
which the court may recognize if the communications in the particular case
meet the “Wigmore criteria”:
(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 satisfac-
tory maintenance 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 disclosure of the
communication must be greater than the benefit thereby gained for the cor-
1995]
L. COLTON – R. V STINCHCOMBE
rect disposal of litigation.9
So far, we have focused on disclosure in the context of the right to make
full answer and defence. Countervailing rights or interests, most notably those
of privacy and fairness to “victims” or complainants, have also been discussed.
It is now appropriate to address those concerns in light of the potential case-by-
case privilege mentioned above, and to examine their impact on the application
and interpretation of disclosure principles.
The right to privacy has always been considered fundamentally important,
and it forms the basis for the class privilege accorded to communications in the
psychiatric or counselling relationship. In that context, the right to make full
answer and defence of an accused facing a criminal charge is in direct conflict
with a complainant’s expectation of the confidentiality and privacy of her per-
sonal history. Moreover, psychiatric records extend beyond the objective facts
of someone’s life: to be effective, psychiatry, and therapy in general, requires
thorough, painful probing of the most intimate aspects of the self. Once a
criminal charge is laid, however, the pursuit of justice sometimes necessitates
that the complainant’s psychiatric records be claimed as relevant to the trial.
Despite the fact that the decision to lay charges may not even be within the
complainant’s control but is entirely a matter of Crown discretion (as is the rest
of the judicial process), the complainant’s mental and emotional history is sub-
ject to analysis and discussion not only in open court, but by the very person
who has allegedly committed the assault. The importance of the right to pri-
vacy has often been invoked by the courts in confronting this dilemma:
There is no doubt that privacy “ranks high in the hierarchy of values merit-
ing protection in a free and democratic society” and is essential for the
well-being of the individual.’
The courts have, and should continue to recognize the personal affront to
human dignity that obtains as a result of intrusion into private matters and
personal information and the embarrassment, grief or loss of faith that can
flow from the use and dissemination of the particulars of one’s intimate
private life. The law is designed to afford protection against the personal
anguish and loss of dignity that may result from having the intimate details
J.H. Wigmore, Evidence in Trials at Common Law, rev. J.. McNaughton, vol. 8 (Boston:
Little, Brown, 1961) at par. 2285, p. 527.
‘ Ross, supra note 5 at 255, quoting Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R.
1326, [1990] 1 W.W.R. 577 [hereinafter Edmonton Journal] and R. v. Dyment, [1988] 2 S.C.R.
417, 55 D.L.R. (4th) 503 [hereinafter Dyment].
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of one’s private life publicly exposed.9″
In Coon, following People First, Then J. affirmed that the court must at-
tempt to strike a balance
between the right of the accused by cross-examination to test motive, dis-
position, veracity and reliability of the witness and the witness’ right to pri-
vacy and confidentiality in respect of medical records … [I]f a sufficient
foundation is laid then the privacy interest must yield to the accused’s right
to full answer and defence.”‘
relevance, admissibility, privacy –
This statement shows the extent to which all of the issues discussed in this
paper –
intertwine and commingle. The
O’Connor decisions recognized the complainant’s privacy interest in her medi-
cal records, and emphasized that any disclosure order should take those inter-
ests into account by placing conditions on the order, banning publication, or
selectively disclosing only relevant portions. O’Connor No. 2 attempted to
provide guidance as to how to reconcile the competing interests of privacy and
the right to make full answer and defence.
L’Heureux-Dub6 J.’s dissenting opinion in Osolin also canvassed the pri-
vacy interest. After reviewing some of the case law on the issue, most notably
Dyment, she concluded that a privacy interest in medical records has been rec-
ognized as an independent value separate from the particular concerns regard-
ing the fairness of a trial. She stated:
In my opinion, the inescapable conclusion is that the arguments expressed
in Dyment in respect of privacy interests are equally applicable, if not more
compelling, in the case of witnesses called by the Crown in a criminal
matter.’O
There are, however, other policy interests at stake. The judgments of the
Supreme Court in Osolin provide a thorough review of some of these concerns
in sexual assault cases where psychiatric records are requested. In Osolin, the
complainant alleged that she had been kidnapped and sexually assaulted by the
accused, while he claimed that she had been a willing, if passive, participant.
The complainant had a history of psychiatric treatment, and during the trial her
mental health records were admitted so that an expert could evaluate her com-
9′ People First of Ontario v. Porter (1991), 5 O.R. (3d) 609 at 632, 85 D.L.R. (4th) 174 (Div.
Ct.), Donnely J. [hereinafter People First], summarizing the views of the Supreme Court in Dy-
ment and Edmonton Journal.
9’ Coon, supra note 5 at 157.
‘ Osolin, supra note 2 at 616.
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L. COLTON – R. V STINCHCOMBE
petence to testify. The defence failed to establish that the complainant was an
unreliable witness. However, counsel for the defence sought leave to cross-
examine the complainant on these records. Defence was particularly interested
in one notation mentioning that after the incidents at issue, the complainant had
expressed concern to her doctor that “her attitude and behaviour may have in-
fluenced the man to some extent,” and that she was “having second thoughts
about the entire case.”10’ The purpose of this cross-examination, according to
counsel, was to “show what kind of person the complainant is.”
The trial judge refused to allow cross-examination on the medical records
as they had been admitted only for the narrow purpose of determining compe-
tence; any further exploration would therefore be a violation of the complain-
ant’s right to privacy. The British Columbia Court of Appeal found that the trial
judge had erred in basing his refusal on the right to privacy and that, if the
cross-examination went to the complainant’s credibility, it should have been
permitted. The Court of Appeal nonetheless denied this ground of appeal as
there was no record of the questions defence counsel had intended to ask.
A majority of the Supreme Court of Canada held that the accused’s consti-
tutional rights had been violated by the refusal to permit cross-examination.
Cory J. emphasized the importance of cross-examination in the adversarial
system as the ultimate means of demonstrating truth and testing veracity, and of
ensuring that the accused is able to make full answer and defence. He also
stressed, however, that there were limits to cross-examination; in particular, that
the information must be relevant to be admissible. The trial judge was thus cor-
rect in finding that defence counsel’s stated objective of “showing what kind of
person she was” was not a proper foundation. However, Cory J. held that,
notwithstanding defence counsel’s submissions, the trial judge should have en-
sured that the accused’s rights with respect to cross-examination were pro-
tected. It would have been appropriate to permit cross-examination on the rec-
ords to see if there was any motive to fabricate, or if the complainant’s conduct
could have led the accused to believe she consented. In the result, the accused
was denied a fair trial.
Cory J. did recognize, however, several particular concerns which arise in
sexual assault cases. He pointed out, relying on Seaboyer, that
eliciting evidence from a complainant for the purpose of encouraging in-
ferences pertaining to consent or the credibility of rape victims which are
,o Ibid. at 661.
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based on groundless myths and fantasized stereotypes is improper.’n
Cory J. then summarized the principles that should guide the cross-examination
of complainants in these circumstances:
Cross-examination for the purposes of showing consent or impugning
credibility which relies upon “rape myths” will always be more prejudicial
than probative. Such evidence can fulfil no legitimate purpose and would
therefore be inadmissible to go to consent or credibility. Cross-examination
which has as its aim to elicit such evidence should not be permitted …
In each case the trial judge must carefully balance the fundamentally
important right of the accused to a fair trial against the need for reasonable
protection of a complainant, particularly where the purpose of the cross-
examination may be directed to “rape myths…. As a general rule the trial
of an accused on a charge of sexual assault need not and should not be-
come an occasion for putting the complainant’s lifestyle and reputation on
trial. The exception to this rule will arise in those relatively rare cases
where the complainant may be fraudulent, cruelly mischievous or mali-
ciously mendacious.'”3
In dissent, L’Heureux-Dub6 J. stated that the medical records should never
have been disclosed to the defence in the first place, an issue which was not ad-
dressed by the majority. L’Heureux-Dub6 J. addressed several problems which,
in her view, militate against both the disclosure and use of medical records in
sexual assault trials. If victims of sexual assault are aware that their medical re-
cords can be placed into evidence at trial, those victims might be deterred from
seeking professional assistance after they have been sexually assaulted.
L’Heureux-Dub6 J. also stated that
routine disclosure of medical records and unrestricted cross-examination
upon disclosure threaten to function very unfairly against anyone who has
undergone mental or psychiatric therapy, whatever the precipitating event
or nature of the treatment, as compared to other members of the public.
Such persons would be subject to an invasion of their privacy not suffered
by other witnesses who are required to testify. They may have to answer to
details of their personal life reflected in their records and effectively over-
come a presumption, most often entirely unfounded, that their medical
history is relevant to their credibility and ability to testify on the matter in
issue.” 4
Medical records are also problematic because they are hearsay and because
they are created in a context entirely different from that of a trial. As such, there
“2 Ibid. at 670.
‘0’ Ibid. at 671-72.
… Ibid. at 622.
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L. COLTON – R. v STINCHCOMBE
is a serious risk that statements made in therapy “could be taken piecemeal out
of the context in which they were made to provide a foundation for entirely
unwarranted inferences by the trier of fact.”” 5 L’Heureux-Dub6 J. also pointed
out that credibility is at issue in many criminal trials and particularly in sexual
assault cases. Therefore, using “credibility” as the ground for disclosure means
that medical records will inevitably be disclosed to the defence, and nothing
would prevent defence counsel from using those records for purposes of cross-
examination. In addition, the particular nature of sexual assault has an impor-
tant effect on the context of the analysis. L’Heureux-Dub6 J. stated that
because of the beliefs which have typically informed notions of relevance
and credibility in sexual assault trials, the mere existence of challenges to
credibility on mental or psychiatric grounds in a sexual assault trial raises
serious questions about the persistence of rape myths. ….
[M]yths about the extraordinary need for caution with respect to the
credibility of complainants continue to play a role in the prosecution of
sexual assaults. To illustrate their persistence, it is only necessary to point
out that, apart from cases of sexual assault, it is rare to encounter a sugges-
tion that the psychiatric history of a witness is at all relevant to the trial of
the issue.”
Finally, she invoked the cost both to witnesses and to the trial process of
admitting medical reports and allowing cross-examination. Disincentives are
created both to the reporting of assaults and to the seeking of professional assis-
tance after an assault, and the health of a witness will be adversely affected by
the disclosure of medical records. She thus concluded that “the compulsion to
disclose such records may only occur where there is serious reason to believe
that, absent such disclosure, a miscarriage of justice is likely.”’07
In light of these statements by the Supreme Court, the case-by-case privi-
lege recognized in Gruenke should be considered carefully with respect to the
use of psychiatric records in sexual assault trials. Given the nature of the rela-
tionship between a doctor, psychiatrist or therapist and his or her client, it
seems fairly clear that the first three criteria set out by Wigmore would be met.
The fourth requirement states that “the injury that would inure to the relation by
the disclosure must be greater than the benefit thereby gained for the correct
disposal of the litigation.”’08 The injuries potentially caused by such disclosure
“‘ Ibid. at 623.
‘o6 Ibid. at 624, 625.
‘,o Ibid. at 630.
0 Wigmore, supra note 96 at para. 2285, p. 527.
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are canvassed in detail in L’Heureux-Dub6 J.’s dissent. Perhaps most impor-
tantly for future consideration, the Court unanimously recognized that not all
uses claimed for disclosure will be beneficial to “correct disposal of the litiga-
tion”. For example, the information may not be used for irrelevant or prejudi-
cial purposes, such as the perpetuation of, or reliance upon, myths or stereo-
types concerning rape. Thus, unless defence counsel can demonstrate that the
need for disclosure is well-founded, it would appear that a privilege may be in-
voked to prohibit the disclosure of such information.
Conclusion
As we have seen, Stinchcombe does not change the meaning or scope of
the right to make full answer and defence, and the principles enunciated in the
case with respect to the Crown’s discretion to withhold privileged information
add nothing new to the law of privilege. Stinchcombe entrenches the general
principle that the Crown must provide to the defence all relevant information
that is not otherwise protected by privilege.
It would appear that the “privilege” mentioned, but not precisely defined, in
Stinchcombe is one of the case-by-case privileges now available under Gru-
enke. In other words, the Crown has a discretion to exclude on policy grounds
information which satisfies the criteria elaborated in Gruenke. In some situa-
tions, the case-by-case privilege will be used where information is clearly rele-
vant, and in those situations, the policy consideration must be of primary im-
portance to override the right to make full answer and defence. The police in-
former privilege, for example, is crucial to the very existence of a judicial sys-
tem which seeks to administer justice effectively while protecting people’s
safety and lives. In other situations, however, the relevance of the material may
be marginal at best. This is true, generally speaking, of psychiatric records, and
almost always true of sexual history. Here it is appropriate, and most conducive
to the efficient administration of justice, to require the defence to demonstrate
the basis for its belief that this information could assist its case. If the informa-
tion is neither relevant nor useful, and its disclosure would be a painful intru-
sion into someone’s privacy, the right to make full answer and defence never
even comes into play. Although the light is constitutionally-entrenched and
historically long-standing, it is hardly violated by the non-disclosure of infor-
mation which has no impact, effect or relevance to the defence. Since the right
is a principle of courtroom procedure, it should not extend to sources of inves-
tigation. Such an extension would arguably open the floodgates because it
would then be impossible to say with certainty or high probability that a piece
of information would not be useful to the defence at some point in the investi-
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gation process. The chain of causation must end somewhere. With respect to
Crown disclosure, it must end at irrelevant material or at privileged informa-
tion, where the social interest in non-disclosure outweighs the information’s
usefulness to the defence. That balancing exercise will often be difficult, but it
must always be done carefully and conscientiously, taking full account of all
the factors involved.
There are several forces at work, even with respect to the preliminary
question of disclosure: the interests of the accused and the right to make full
answer and defence; the complainant’s right to privacy; respect in the judi-
cial process; and the State’s interest in the fair and efficient administration
of justice. All of these interests must be recognized and given their due
weight. When the only issue is the relevance of information, the accused
must be given access in order to demonstrate its prima facie usefulness.
When other interests are at stake, these too must be weighed in the balance.
There can be neither categorical exclusions nor absolute freedom of access.
The conflicting interests are most acute with respect to psychiatric evidence
and sexual history. The traumatic effects of sexual assault and abuse are a socie-
tal phenomenon requiring strong remedial measures. Nevertheless, allowing
concern for victims or complainants to override an individual’s right to defend
himself to a criminal charge would be an equally grave injustice. The courts
must thus explicitly take all of these factors into account and weigh them
against each other, as the criminal law has done for centuries.
The judicial system has not always been sympathetic to survivors of sexual
assault, but attempts have been made to change that. Some would argue that
allowing access to psychiatric records is a large step backwards because it pro-
vides yet another way to blame the victim, question his or her credibility, and
discourage him or her from bringing the assailant to justice. There can be no
doubt that these are significant and pressing concerns which must be consid-
ered by the courts during evaluation of disclosure requests. These interests,
however, must always be weighed against the right to defend oneself. Sexual
assault is a significant problem in Canadian society, but we must not deny the
right of the accused to attempt to establish his or her innocence. The sugges-
tions made in this paper attempt to establish guidelines which respond to both
the pressing importance of state concerns and the individual’s right to answer
the case against him or her. In the majority of cases, the disclosure of certain in-
formation would probably be of no assistance to the defence and would be ei-
ther irrelevant or inadmissible. The judiciary must diligently monitor the uses
sought for such information, particularly in light of the Supreme Court’s rec-
ognition in Osolin of the dangers of stereotypes which, unfortunately, persist.
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While there can be no black and white answers to this problem, situations do
arise where such information may be relevant and thus essential to a full an-
swer and defence. To hold otherwise would violate fundamental principles of
justice and fairness.