R. v. O'Connor [1995] 4 S.C.R. 411: -- Whether stay of proceedings appropriate remedy for non-disclosure by Crown of information in its possession

1995: February 1; 1995: December 14.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law -- Evidence -- Medical and counselling records -- Procedure to be followed where accused seeks production of records in hands of third parties.

The accused was charged with a number of sexual offences. Defence counsel obtained a pre-trial order requiring that the Crown disclose the complainants' entire medical, counselling and school records and that the complainants authorize production of such records. The Crown applied to a different judge for directions regarding the disclosure order and for the early appointment of a trial judge. After a trial judge had been appointed, the Crown again sought directions regarding the disclosure order. By this time many of the impugned records had come into its possession. The trial judge made it clear that he was to be provided promptly with therapy records relating to all four complainants. The accused later applied for a judicial stay of proceedings based on non-disclosure of several items. Crown counsel submitted that the two Crown prosecutors were handling the case from different cities, and that there were difficulties concerning communication and organization. She asserted that the non-disclosure of some of the medical records was due to inadvertence on her part, and that she had "dreamt" the transcripts of certain interviews had been disclosed. She submitted that uninhibited disclosure of medical and therapeutic records would revictimize the victims, and suggested that the disclosure order exhibited gender bias. The trial judge dismissed the application for a stay, finding that the failure to disclose certain medical records had been an oversight. He noted, however, that the letters written by Crown counsel to the counsellors had unacceptably limited the scope of the disclosure to only those portions of the records which related directly to the incidents involving the accused. This resulted in the full therapy records not being disclosed to the defence until just before the trial. He concluded that while the conduct of the Crown was "disturbing", he did not believe that there was a "grand design" to conceal evidence, nor any "deliberate plan to subvert justice". In light of the difficulties encountered during discovery, Crown counsel then agreed to waive any privilege with respect to the contents of the Crown's file and to prepare a binder in relation to each of the complainants containing all information in the Crown's possession relating to each of them. On the second day of the trial, counsel for the accused made another application for a judicial stay of proceedings based largely on the fact that the Crown was still unable to guarantee to the accused that full disclosure had been made. The trial judge stayed proceedings on all four counts. He noted the constant intervention required by the court to ensure full compliance with the disclosure order and found that the Crown's earlier conduct had created "an aura" that had pervaded and ultimately destroyed the case. The Court of Appeal allowed the Crown's appeal and directed a new trial. This appeal raises the issues of (1) when non-disclosure by the Crown justifies an order that the proceedings be stayed and (2) the appropriate procedure to be followed when an accused seeks production of documents such as medical or therapeutic records that are in the hands of third parties.

Held (Lamer C.J. and Sopinka and Major JJ. dissenting): The appeal should be dismissed.

(1) Stay of Proceedings
Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: There is no need to maintain any type of distinction between the common law doctrine of abuse of process and Charter requirements regarding abusive conduct. Where an accused seeks to establish that non-disclosure by the Crown has violated s. 7, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. Such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the trial. Once a violation is made out, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Where the adverse impact upon the accused's ability to make full answer and defence is curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to enable defence counsel to review the disclosed information, will generally be appropriate. There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy the prejudice. In those "clearest of cases", a stay of proceedings will be appropriate. When choosing a remedy for a non-disclosure that has violated s. 7, the court should also consider whether the Crown's breach of its disclosure obligations has violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable, having regard to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt or innocence.
While the Crown's conduct in this case was shoddy and inappropriate, the non-disclosure cannot be said to have violated the accused's right to full answer and defence. The whole issue of disclosure in this case arose out of the order requiring that the Crown "disclose" records in the hands of third parties and that the complainants authorize production of such records. This order was issued without any form of inquiry into their relevance, let alone a balancing of the privacy rights of the complainants and the accused's right to a fair trial, and was thus wrong. The Crown was ultimately right in trying to protect the interests of justice, and the fact that it did so in such a clumsy way should not result in a stay of proceedings, particularly when no prejudice was demonstrated to the fairness of the accused's trial or to his ability to make full answer and defence. Even had a violation of s. 7 been found, this cannot be said to be one of the "clearest of cases" which would mandate a stay of proceedings.
Per Cory and Iacobucci JJ.: While the actions of Crown counsel originally responsible for the prosecution of this case were extremely high-handed and thoroughly reprehensible, the Crown's misdeeds were not such that, upon a consideration of all the circumstances, the drastic remedy of a stay was merited.
Per Lamer C.J. and Sopinka and Major JJ. (dissenting on this issue): A stay of proceedings was appropriate here. The Crown's conduct impaired the accused's ability to make full answer and defence. The impropriety of the disclosure order if any does not excuse the Crown's failure to comply with it until immediately before the trial. The Crown never took proper action regarding the objections it had. If it could not appeal the order it should have returned to the issuing judge to request variation or rescission. The letters from the Crown prosecutor to the therapists narrowed the scope of the order. As soon as the order was clarified for the therapists, complete records were disclosed, suggesting that had the letters contained an accurate description of the order, compliance would have occurred at a much earlier time. The Crown also breached its general duty to disclose all relevant information. Each time disclosure was made in this case it was the result of the defence having to raise the matter in court. The conduct of the Crown was such that trust was lost, first by the defence, and finally by the trial judge. It is of little consequence that a considerable amount of the non-disclosed material was ultimately released piecemeal to the defence prior to the trial. The effect of continual discovery of more non-disclosed evidence, coupled with the Crown's admission that disclosure was possibly incomplete, created an atmosphere in which the defence's ability to prepare was impaired. The Crown's delay in making disclosure and its inability to assure the trial judge that full disclosure had been made even after commencement of the trial were fatal to the proceedings. The continual breaches by the Crown made a stay the appropriate remedy. Proceedings had become unworkable and unfair. Remedies under s. 24(1) of the Charter are properly in the discretion of the trial judge. This discretion should not be interfered with unless the decision was clearly unreasonable.
The same breaches of the disclosure order, the general duty of disclosure and the undertaking to disclose files to the defence which impaired the accused's right to make full answer and defence also violated fundamental principles of justice underlying the community's sense of fair play and decency. The trial judge showed admirable tolerance for the behaviour of the Crown but in the end had no choice but to order a stay. When a criminal trial gains notoriety because of the nature of the offence, the parties charged or any other reason, there is an added burden in the paramount interest of ensuring fairness in the process. In this case, the fact that the offences alleged were many years in the past and that the accused had a high profile in the community called for a careful prosecution to ensure fairness and the maintenance of integrity in the process. The conduct of the Crown during the time the trial judge was involved, as well as in the months before his appointment, was negligent, incompetent and unfair. The trial judge was in the best position to observe the conduct of the Crown and its effect on the proceedings. He found that the trial had become so tainted that it violated fundamental principles underlying the community's sense of fair play and decency and that the accused was impaired in his ability to make full answer and defence.

(2) Production of Records in the Possession of the Crown
Per Lamer C.J. and Sopinka J.: The Crown's disclosure obligations established in Stinchcombe are unaffected by the confidential nature of therapeutic records when the records are in the possession of the Crown. The complainant's privacy interests in therapeutic records need not be balanced against the right of the accused to make full answer and defence in the context of disclosure, since concerns relating to privacy or privilege disappear where the documents in question have fallen into the Crown's possession. The complainant's lack of a privacy interest in records that are possessed by the Crown counsels against a finding of privilege in such records. Fairness must require that if the complainant is willing to release this information in order to further the criminal prosecution, then the accused should be entitled to use the information in the preparation of his or her defence. Moreover, any form of privilege may be forced to yield where such a privilege would preclude the accused's right to make full answer and defence. Information in the possession of the Crown which is clearly relevant and important to the ability of the accused to raise a defence must be disclosed to the accused, regardless of any potential claim of privilege that might arise. While the mere existence of therapeutic records is insufficient to establish the relevance of those records to the defence, their relevance must be presumed where the records are in the Crown's possession.
Per Cory and Iacobucci JJ.: The principles set out in the Stinchcombe decision, affirmed in Egger, pertaining to the Crown's duty to disclose must apply to therapeutic records in the Crown's possession, as found by Lamer C.J. and Sopinka J.
Per Major J.: The Crown's disclosure obligations established in Stinchcombe are unaffected by the confidential nature of therapeutic records in its possession, as found by Lamer C.J. and Sopinka J.
Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: This appeal does not concern the extent of the Crown's obligation to disclose private records in its possession, or the question whether privacy and equality interests may militate against such disclosure by the Crown. These issues do not arise in this appeal and were not argued before the Court. Any comment on these questions would be strictly obiter.

(3) Production of Records in the Possession of Third Parties
Per Lamer C.J. and Sopinka J.: When the defence seeks information in the hands of a third party (as compared to the state), the onus should be on the accused to satisfy a judge that the information is likely to be relevant. In order to initiate the production procedure, the accused must bring a formal written application supported by an affidavit setting out the specific grounds for production. However, the court should be able, in the interests of justice, to waive the need for a formal application in some cases. In either event, notice must be given to third parties in possession of the documents as well as to those persons who have a privacy interest in the records. The accused must also ensure that the custodian and the records are subpoenaed to ensure their attendance in the court. The initial application for disclosure should be made to the judge seized of the trial, but may be brought before the trial judge prior to the empanelling of the jury, at the same time that other motions are heard. In the disclosure context, the meaning of "relevance" is expressed in terms of whether the information may be useful to the defence. In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. While "likely relevance" is the appropriate threshold for the first stage of the two-step procedure, it should not be interpreted as an onerous burden upon the accused. A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming requests for production.  Upon their production to the court, the judge should examine the records to determine whether, and to what extent, they should be produced to the accused. In making that determination, the judge must examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence. In balancing the competing rights in question, the following factors should be considered: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record; (3) the nature and extent of the reasonable expectation of privacy vested in the record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record. The effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome, is more appropriately dealt with at the admissibility stage and not in deciding whether the information should be produced. As for society's interest in the reporting of sexual crimes, there are other avenues available to the judge to ensure that production does not frustrate the societal interests that may be implicated by the production of the records to the defence. In applying these factors, it is also appropriate to bear in mind that production of third party records is always available to the Crown provided it can obtain a search warrant.
Per Cory and Iacobucci JJ.: The procedure suggested by Lamer C.J. and Sopinka J. for determining whether records in the possession of third parties are likely to be relevant was agreed with, as were their reasons pertaining to the nature of the onus resting upon the accused and the nature of the balancing process which must be undertaken by the trial judge.
Per Major J.: The substantive law and the procedure recommended by Lamer C.J. and Sopinka J. in obtaining therapeutic records from third persons were agreed with.
Per La Forest, L'Heureux-Dubé and Gonthier JJ. (dissenting on this issue): Private records, or records in which a reasonable expectation of privacy lies, may include medical or therapeutic records, school records, private diaries and social worker activity logs. An order for production of private records held by third parties does not arise as a remedy under s. 24(1) of the Charter since, at the moment of the request for production, the accused's rights under the Charter have not been violated. Nonetheless, when deciding whether to order production of private records, the court must exercise its discretion in a manner that is respectful of Charter values. The constitutional values involved here are the right to full answer and defence, the right to privacy, and the right to equality without discrimination.
Witnesses have a right to privacy in relation to private documents and records which are not part of the Crown's "case to meet" against the accused. They are entitled not to be deprived of their reasonable expectation of privacy except in accordance with the principles of fundamental justice. Since an applicant seeking production of private records from third parties is seeking to invoke the power of the State to violate the privacy rights of other individuals, the applicant must show that the use of the State power to compel production is justified in a free and democratic society. The use of State power to compel production of private records will be justified in a free and democratic society when the following criteria are met: (1) it is shown that the accused cannot obtain the information sought by any other reasonable means; (2) production that infringes privacy must be as limited as reasonably possible to fulfil the right to make full answer and defence; (3) the arguments urging production rest on permissible chains of reasoning, rather than upon discriminatory assumptions and stereotypes; and (4) there is proportionality between the salutary and deleterious effects of production. The measure of proportionality must reflect the extent to which a reasonable expectation of privacy vests in the particular records, on the one hand, and the importance of the issue to which the evidence relates, on the other. Moreover, courts must remain alive to the fact that, in certain cases, the deleterious effects of production may demonstrably include negative effects on the complainant's course of therapy, threatening psychological harm to the individual concerned and thereby resulting in a concomitant deprivation of the individual's security of the person.
The first step for an accused who seeks production of private records held by a third party is to obtain and serve on the third party a subpoena duces tecum. When the subpoena is served, the accused should notify the Crown, the subject of the records, and any other person with an interest in the confidentiality of the records that the accused will ask the trial judge for an order for their production. Then, at the trial, the accused must bring an application supported by appropriate affidavit evidence showing that the records are likely to be relevant either to an issue in the trial or to the competence to testify of the subject of the records. If the records are relevant, the court must balance the salutary and deleterious effects of ordering that the records be produced to determine whether, and to what extent, production should be ordered.
The records at issue here are not within the possession or control of the Crown, do not form part of the Crown's "case to meet", and were created by a third party for a purpose unrelated to the investigation or prosecution of the offence. It cannot be assumed that such records are likely to be relevant, and if the accused is unable to show that they are, then the application for production must be rejected as it amounts to nothing more than a fishing expedition. The burden on an accused to demonstrate likely relevance is a significant one. It would be insufficient for the accused to demand production simply on the basis of a bare, unsupported assertion that the records might impact on "recent complaint" or the "kind of person" the witness is. Similarly, the applicant cannot simply invoke credibility "at large", but must rather provide some basis to show that there is likely to be information in the impugned records which would relate to the complainant's credibility on a particular, material issue at trial. Equally inadequate is a bare, unsupported assertion that a prior inconsistent statement might be revealed, or that the defence wishes to explore the records for "allegations of sexual abuse by other people". Similarly, the mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of the evidence. Any suggestion that a particular treatment, therapy, illness, or disability implies unreliability must be informed by cogent evidence, rather than stereotype, myth or prejudice. Finally, it must not be presumed that the mere fact that a witness received treatment or counselling after a sexual assault indicates that the records will contain information that is relevant to the defence. The focus of therapy is vastly different from that of an investigation or other process undertaken for the purposes of the trial. While investigations and witness testimony are oriented toward ascertaining historical truth, therapy generally focuses on exploring the complainant's emotional and psychological responses to certain events, after the alleged assault has taken place.

If the trial judge decides that the records are likely to be relevant, then the analysis proceeds to the second stage, which has two parts. First, the trial judge must balance the salutary and deleterious effects of ordering the production of the records to the court for inspection, having regard to the accused's right to make full answer and defence, and the effect of such production on the privacy and equality rights of the subject of the records. If the judge concludes that production to the court is warranted, he or she should so order. Next, upon their production to the court, the judge should examine the records to determine whether, and to what extent, they should be produced to the accused. Production should only be ordered in respect of those records, or parts of records, that have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice or by the harm to the privacy rights of the witness or to the privileged relation. The following factors should be considered in this determination: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record; (3) the nature and extent of the reasonable expectation of privacy vested in the record; (4) whether production of the record would be premised upon any discriminatory belief or bias; (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record; (6) the extent to which production of records of this nature would frustrate society's interest in encouraging the reporting of sexual offences and the acquisition of treatment by victims; and (7) the effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome. Where a court concludes that production is warranted, it should only be made in the manner and to the extent necessary to achieve that objective.

A preliminary inquiry judge is without jurisdiction to order the production of private records held by third parties. The disclosure order in the present case did not emanate from a preliminary inquiry judge, but was issued in response to a pre-trial application by the defence. Even a superior court judge, however, should not, in advance of the trial, entertain an application for production of private third party records. Such applications should be heard by the judge seized of the trial, rather than a pre-trial judge. In addition, it is desirable for the judge hearing an application for production to have had the benefit of hearing, and pronouncing upon, the defence's earlier applications, so as to minimize the possibility of inconsistency in the treatment of two similar applications. More generally, applications for production of third party records should not be entertained before the commencement of the trial, even by the judge who is seized of the trial. First, the concept of pre-trial applications for production of documents held by third parties is alien to criminal proceedings. Second, if pre-trial applications for production from third parties were permitted, it would invite fishing expeditions, create unnecessary delays, and inconvenience witnesses by requiring them to attend court on multiple occasions. Moreover, a judge is not in a position, before the beginning of the trial, to determine whether the records in question are relevant, much less whether they are admissible, and will be unable to balance effectively the constitutional rights affected by a production order.

Since the right of the accused to a fair trial has not been balanced with the competing rights of the complainant to privacy and to equality without discrimination in this case, a new trial should be ordered.

Per McLachlin J. (dissenting on this issue): L'Heureux-Dubé J.'s reasons were concurred in entirely. The test proposed strikes the appropriate balance between the desire of the accused for complete disclosure from everyone of everything that could conceivably be helpful to his defence, on the one hand, and the constraints imposed by the trial process and privacy interests of third parties who find themselves caught up in the justice system, on the other, all without compromising the constitutional guarantee of a trial which is fundamentally fair. The Charter guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. What the law demands is not perfect justice, but fundamentally fair justice.

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