Bill C-46: Records Applications Post-Mills,
A Caselaw Review

1. Introduction

…sexual assault is not like any other crime.[1]

As criminal law has developed in Canada over the past decades, the criminal justice response to the offence of rape or more recently, sexual assault, has been fraught with tensions, both in the legal and in the political realm.[2] In the 1990s, a number of changes were implemented including a codified definition of consent, the removal of the defence of mistaken belief, and establishing parameters around evidence that can be introduced.[3] Bill C-49 was passed in August 1992 and introduced provisions that limit the admissibility of information in sexual assault trials on the sexual background or history of victims of sexual assault.[4] In October 2000, the Supreme Court of Canada upheld these provisions as constitutional in R. v. Darrach.[5]

In 1997, legislative amendments were introduced on the issue of access to complainants' personal records. These amendments were in response to widespread consultations, as well as a number of Supreme Court of Canada decisions that supported the rights of the accused, the first being R.v. Seaboyer, but also widely cited is O'Connor, and Osolin and Carosella.[6] With significant discussion on the impact of these decisions and consultations with equality-seeking groups, Bill C-46 was enacted in May 1997 and amended the Criminal Code to include specific provisions regarding the production and disclosure of third party records in sexual assault proceedings (s.278.1).[7] The provisions were challenged on constitutional grounds in R. v. Mills and in November 1999, the Supreme Court upheld the legislation.[8]

This caselaw review examines the reported decisions on production and disclosure of third party records applications, also referred to as "O'Connor applications," in the years following the Mills decision. At issue in these applications, is whether a complainant's personal records that are in the hands of a third party should be produced for the defence.

This report is divided into three sections: the first provides a brief background on Bill C-46, on the case of R. v. Mills, and on research and writing that has flourished over the years on the issue; the second section provides statistical data to provide a context for the number of sexual assaults that occur and are reported in Canada each year; and finally, the third section is the caselaw review itself with a description of the methodology, its limitations, the findings and some suggestions for further work.

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