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

4. The Caselaw Review (cont'd)

4. The Caselaw Review (cont'd)

4.4 Findings

The findings that are presented in this review are consistent with previous studies.[109] For example, in a majority of cases, there was a relationship between complainant and defendant (familial or professional), the majority of defendants were male while the complainants were female; a large number of complainants were younger than 18; multiple records were often sought; and partial or full records were ordered disclosed/produced to the defence in approximately 35% of cases.

4.4.1 Cases by province/territory

A total of 48 cases (n=48) were reviewed from the time period of December 1, 1999, through June 30, 2003. Cases from Ontario represented 35% (17 out of 48) of these cases. There were no cases from Quebec, nor from Nunavut, nor Prince Edward Island. The absence of decisions in Nunavut and Prince Edward Island may be due to the small size of the jurisdictions; in Quebec, it may be due to reporting practices.[110]

Three out of the four cases reported in B.C. were at the appellate level, one to the Supreme Court of Canada. In Ontario, just less than one third of cases (5 out of 17 or 29%) were at the appellate level. Out of the total number of cases reviewed, 25% (12 out of 48) were at the appellate level.

Table 1: Cases by Jurisdiction and court level
Province/ territory No. of Cases No. of appellate level cases
Alberta 3 1
British Columbia 4 3
Manitoba 5 1
Newfoundland 9 0
New Brunswick 1 0
Northwest Territories 2 0
Nova Scotia 4 1
Ontario 17 5
Saskatchewan 2 1
Yukon 1 0
Total 48 12

4.4.2 Offence/s Committed

Many of the decisions, because they were decisions specifically about the s.278 application, did not include the specific Criminal Code sections involved. In the majority of cases where the offences were noted in the decision, the accused had been charged with more than one offence. All were offences that fell under those listed in s.278.2.[111] Offences that were listed included: sexual assault (s.265(1)); assault (s.265); sexual interference (s.151); administering a noxious thing (s.245); threats (s.264.1); mischief (s.430); forceable confinement (s.279(2)); sexual exploitation of a person with a disability (s.153.1); anal intercourse (s.159); incest (s.155).

4.4.3 Records

Table 2: Type of record and Number of Cases
Type of records Number of cases
Counselling records/ Therapeutic records 23
Medical records 14
Psychiatric records 10
Psychological records 4
Social services records 5
Child welfare records 8
Group home records 3
Personal records (eg.diary, notes) 6
Child and Family Services records 4
School records (incl. Letters to principal) 6
Other (VIS, testimony, work/personnel, discipline, custodial reports, Criminal Injuries, investigation records) 9
Total * 102

* Total adds up to more than 48, as many cases had multiple records.

Of interest is that in the top three categories of types of records (counselling/therapeutic, medical and psychiatric), one could argue that there is a high expectation of privacy. Records were sought from multiple sources in almost half of the cases (22 of the 48).

4.4.4 Location of Records

At the time of the actual records applications, records were in various locations: Crown (4), third party (32), and with others such as the defence, court, complainant, and police (11). The records had been destroyed in one case, and unknown in one case. Totals do not add up to 48 as in cases where there were multiple records, the records may have been in different locations.

4.4.5 How Defendant learned of the records

In more than half of the cases (56%), the decision was silent as to how the Defendant learned about the records being sought. In the other cases, in general the Defendant learned about the records in one of two ways. The first was through the criminal justice system itself: the preliminary inquiry (3 cases), disclosure by the Crown or another complainant, earlier testimony, statements by the Complainant or witnesses. The second situation was where the Defendant had personal knowledge of the records because he had worked at the site where the records were made (4 cases), or where he had been present for some of the counselling sessions (1 case).

What is apparent is that there are a number of ways in which the defendant learns of the presence of records.

4.4.6 Party Characteristics

The characteristics of the defendants and the complainants are consistent with trends noted in earlier caselaw reviews.[112]

4.4.7 Information about the Defendants

In all of the cases where the information was available (45 out of 48 cases), the defendant was male. At least four out of five of the cases (79%) surveyed, involved an adult defendant. Of the remaining 10 cases, 6 involved youths and in 4 cases, the age was not specified in the judgement. The ethnic background of the defendant was only mentioned in two of the forty-eight cases. Both cases involved Aboriginal defendants.

The defendant was a professional in 4 cases: a doctor, a lawyer, a graduate student in psychology and a psychologist. In all but the lawyer's case, the defendant's profession led to his relationship with the complainant(s). With respect to the lawyer, the complainants were his two children.

4.4.8 Information about the Complainants[113]

In 60% of the cases (28 out of 47), there was only one complainant (in 4 cases the complainant was a male and in the remaining 24, a female). The sex of the complainant was not identified in 5 cases. In almost a third of the cases (30% or 14), there was more than one complainant, ranging from 2 to 64 complainants.

The majority of cases examined involved young complainants. Three quarters of cases where the age was identified (29 out of 38, or 76%) complainants were younger than 18 years of age at the time of the alleged offence(s). Six cases involved adults. In 3 cases, there were both adult and young complainants.

Of the six cases studied involving adult complainants, 3 had developmental or cognitive delays. In one of these cases, the complainant was also blind. Another young child complainant was noted to have mental deficiencies, and in another case involving two teenaged girls, the facts proffered in the case suggest that the complainants had cognitive or developmental disabilities. In 4 cases, the complainant had a drug or alcohol dependency, although in one case the addiction developed subsequent to the alleged offence taking place.

Many of the complainants had some involvement with a child services agency. In 3 cases, complainants lived in group homes and in 5 cases, there was a history of Children's Aid Society (C.A.S.) involvement. Furthermore, social services, child welfare agencies, child and family services and like organizations had involvement with complainants in 11 cases.

4.4.9 Relationship between the Defendant and the Complainant

As previously noted, the majority of cases showed some form of prior relationship between the accused and the complainant(s).[114] There were 28 cases where it was possible to determine the relationship between the parties with certainty. In 5 cases the defendant was either the father or step-father of the complainant.[115] In 7 cases, there was an uncle-niece/nephew relationship. One case involved a brother and sister, another case involved a brother-in-law, and 3 cases involved a neighbour or family friend. Two cases involved spouses and another involved 2 youths that had a sexual relationship and, according to the complainant, had a boyfriend-girlfriend relationship. Seven other defendants had some form of professional relationship with the client.

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