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

4. The Caselaw Review (cont'd)

4. The Caselaw Review (cont'd)

4.8 Independent Counsel

In criminal proceedings, Crown counsel represent the state and the public, not the complainant. Whereas defendants have their own counsel to advocate on their behalf, this is not the case for complainants. There are times when the interests of the state and those of the complainant are not the same. Furthermore, the complainant may incorrectly believe that Crown counsel is her lawyer. For records applications, both complainants and third party record keepers have standing and the right to counsel, though not necessarily state-funded counsel. The term "independent counsel" is used here to denote an advocate for the complainant only.

The caselaw review indicated that independent counsel for the complainant was present in almost half of the cases (23/48 or 48%). There was not a strong relationship between the presence of independent counsel for the complainant and whether records were ultimately produced/disclosed to the court and/or defence. There were some jurisdictional trends. For example, there were no cases in which there was independent counsel in Saskatchewan, Northwest Territories, New Brunswick, Nova Scotia. In contrast, independent counsel was present in all cases but one in Newfoundland (8/9), and in almost half of the cases (8/18) in Ontario.

This issue was raised directly in Mohr's key informant study and interviews were conducted with independent counsel. Crowns who were interviewed stated that, "…everyone takes it more seriously"[179] when there is independent counsel for the complainant. All those interviewed agreed in the importance of having independent counsel for the complainant on applications for disclosure of third party records, particularly Crown counsel and the third party record keepers themselves (ie. counsellors).

Ontario is the only jurisdiction where legal aid is provided for complainants in applications for third party records. In fiscal year 2003-04, 40 certificates were granted for independent counsel for complainants in applications. Legal Aid Ontario believes that all those who apply and are financially eligible are receiving a certificate.[180] Training on "O'Connor applications" has also been offered as Continuing Legal Education seminars in Toronto. Mohr's study revealed that the availability of legal aid was not always known to Crown or to judges. As well, the study revealed geographic differences: in Ottawa, it was very rare for counsel to represent complainants, whereas in Toronto it seemed to be more common. Toronto Crown counsel raised concerns about the difficulties inherent in the procedures to get legal aid certificates or a court order for independent counsel.[181]

Independent counsel in Mohr's study believed that independent representation should be automatically provided for all complainants.[182] The idea of some form of readily accessible and permanent (ie. a non-profit organization such as a legal clinic with staff lawyers and other services for victims) has been raised by advocates such as Fiona Sampson.[183] Further research that explored the impact for complainants of having independent counsel in terms of decreasing anxiety and safety fears around applications hearings and other aspects of the trial would be insightful.

4.9 Costs

A recent case out of Ontario, R. v. J.G.C.,[184] dealt with costs incurred by the third party to respond to the defendant's s.278 application. McIsaac J. awarded the third party, the Children's Aid Society, $1500 in costs after examining whether the court had jurisdiction to grant the relief requested, and if so, whether it should be granted.

The judge found that superior courts have long had the power to award costs. Section 278.4(3) states that no order for costs can be made against a third party as a result of their participation in the hearing, but is silent as to awarding of costs. The judge dismissed arguments on the basis of fault or misconduct on the part of the defendant and found that he did have jurisdiction.

In his reasons, McIsaac J. found that normally defence counsel further the accused's entitlement to full answer and defence. The Crown cannot be expected to fund counsel for complainants and third parties, although there have been "court appointed counsel" in several instances. He also found that self-representation is not an ideal manner in which to advance the interests of third parties, nor does it advance the quality or administration of justice. McIsaac J. rejected the argument of a chilling effect on the launching of meritorious records applications because the litigation costs of any decision are always subject to a cost/benefit analysis which legal aid plan administrators must also undergo.

In support of such a remedy, the judge found that the Children's Aid Society was being forced to divert its scarce resources from its mandated work (child protection) in order to respond adequately to the application. The judge found that a fair balance between competing interests had been reached, if not a perfect balance.

The Criminal Lawyers' Association was invited to intervene and declined while reserving the right to participate at a higher level. This case is the first of its kind, but signals an important development in third party records applications.

In Mohr's study, defence counsel commented that applications are "expensive, cumbersome, and time-consuming," and represent a "series of burning rings through which you incinerate your client's retainer." They also indicated, however, that such applications would be filed as a matter of course where money was not at issue.[185] Third party record keepers who were interviewed believed that applications for records will be made "depending on how much money the accused has."[186]

Clearly, the costs involved for such applications are considerations for the defence, and indeed, for whether third parties and complainants are able to retain independent counsel. The decision in R. v. J.G.C. may lead to a more rigorous cost/benefit analysis on the part of defence counsel and the accused prior to launching such applications. Third parties and complainants may ultimately benefit.

4.10 Caselaw

It is difficult to distinguish the importance of the caselaw and the legislation itself. In general, those interviewed felt that Mills significantly strengthened the importance of the legislation. Since those interviewed were from Ontario, the Ontario Court of Appeal case of Batte was cited even more widely than Mills as having had a significant impact in setting the standard of likely relevance. Batte represents a very strong statement from the Court. Neither the court decisions, nor the legislation have trickled down to the average person. This is hardly surprising.

4.11 Myths and Stereotypes

The caselaw review also revealed that the myths and stereotypes that have historically pervaded sexual assault proceedings are still prevalent. All the grounds for seeking production of the records were founded on such myths and stereotypes. One such stereotype is that a psychiatric record suggests that the complainant is not stable, or has been on medication that would impair memory.

While the legislation itself has not changed the stereotypes, it has provided a procedure for challenging them. Changing stereotypes can best be achieved through public education and awareness-raising, as the case of drunk driving has demonstrated.

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