The Production of Third Party Records Under the Mills Regime

THE STANDARD OF LIKELY RELEVANT

The production of records containing personal information in sexual assault proceedings is governed by sections 278.1 through to 278.91 of the Criminal Code (the Mills Regime)

See generally R. v. Mills  1999 CanLII 637 (SCC), 1999 CanLII 637 (S.C.C.), (1999), 139 C.C.C. (3d) 321; R. v. Batte 2000 CanLII 5750 (ON CA), 2000 CanLII 5750, (2000), 145 C.C.C. (3d) 449.

Production of third party records (most usually records pertaining to the complainant) under section 278 entails a two-step process:

 a) a determination as to whether the records are likely relevant to an issue in the trial;

 b) if relevant, a weighing of the salutary and deleterious aspects of a production order with respect to each likely relevant document in order to determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence:

Differences Between Likely Relevance under the O’Connor regime and Likely Relevance under the Mills Regime

It is important to note that the likely relevance threshold in O'Connor (the common law regime for production of third party records) differs significantly from the statutory likely relevance threshold set by Parliament for the production of records containing personal information in sexual assault proceedings under the Mills regime.

First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings. Such generalized views need not be countered at large in respect of all third party records that fall outside the Mills regime.

Second, while the Mills regime retains the two-stage framework set out in O'Connor, it differs significantly in that much of the balancing of the competing interests is effected at the first stage in determining whether production should be made to the court for inspection. This reflects Parliament's assumption that a reasonable expectation of privacy exists in the types of records targeted by the statutory regime.

R. v. McNeil, 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66 (S.C.C.), paras 30-32.

An equivalent presumption of privacy does not attach in respect of all third party records that fall outside the Mills regime. Hence, any balancing of competing interests is reserved for the second stage of the O'Connor regime, when the documents can be inspected by the court to better ascertain the nature of the privacy interest, if any.

The ‘Likely Relevant’ Standard Generally

The "likely relevance" standard is not a high one. Accused who have not seen the records are at an obvious disadvantage in attempting to establish their relevance.  However, it is clear from the cases interpreting the legislative provisions, particularly R. v. Batte, supra, that the accused must demonstrate likely relevance through evidence, and not through speculation or assumptions.

As Lamer C.J.C. and Sopinka J. said in O'Connor, at p. 19:

. . . the presiding judge must be satisfied there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of the witness to testify. When we speak of relevance to "an issue at trial" we are referring not only to evidence that may be probative to the material issues in the case (i.e., the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case . . .

Insufficient grounds to establish that the records are likely relevant to issues at trial

Section 278.3(4) of the Criminal Code, entitled “Insufficient grounds”, provides, inter alia, that: 

Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling…

In R v Mills, 1999 CanLII 637(SCC), [1999] 3 SCR 668, at para 118, the Supreme Court of Canada explained that this section “does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on bare assertions of the listed matters, where there is no other evidence and they stand on their own.”

Complainant has spoken to a counsellor/doctor

The mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant’s credibility. Without more, a request for the production of confidential records is nothing more than speculative.

R v Batte (2000), 2000 CanLII 5751 (ON CA), 145 CCC (3d) 449, at para 66, 77.

Complainant has psychiatric problems

The mere fact that a complainant has psychiatric problems does not suffice to pass the test for likely relevance.

Trotter, J. observed in R v Summerhayes, [2012] OJ No 236, at para 10, that, “To infer unreliability solely from the presence of mental illness is precisely the type of impermissible reasoning prohibited by s, 278.3(4)(f) and discussed in R v O'Connor.”

There must be something more than evidence of psychiatric problems or psychiatric care.  An application for disclosure must therefore fail where "there was nothing in the evidence to show that those problems could have had any impact on her credibility or the reliability of her evidence."

                      R. v. Snipe, 2003 CanLII 48238 (ON CA)

Complainant has received counselling for drug abuse

That the Complainant has received counselling for drug abuse does not alone make the records producible.

R. v. JM, 2017 ONSC 682, at para 12.

However, health and counselling records could be admissible if they disclose the pathology, or chemical state, of the Complainant’s mind at the time of the alleged sexual assault:

 R v Beckford, 2012 ONSC 7365 (CanLII), at para 37.

 Sufficient grounds to establish that the records are likely relevant to issues at trial

·         evidence that the Complainant’s narration of the sexual assault has changed over time in relation to her speaking with a therapist: R v MacArthur, 2014 ONSC 5583 (CanLII), at paras 7, 19, 26.

·         evidence suggesting that counselling contributed to the Complainant going to the police, or that counselling played a role in reviving, refreshing, or shaping her memory: Batte, at para 69.  

·         evidence of a specific credibility issue to which the records are likely relevant: R. v. R.L., 2012 ONSC 1401 (CanLII) [credibility, motive to falsely accuse].

·         health and counselling records could be admissible if they disclose the pathology, or chemical state, of the Complainant’s mind at the time of the alleged sexual assault: R v Beckford, 2012 ONSC 7365 (CanLII), at para 37.