Ontario Criminal


Accused not permitted to use inadvertently-disclosed videotape of complainant’s therapy session in support of application for production

 Ruling to address consequences arising from inadvertent disclosure of videotaped therapy session involving eight-year-old sexual assault complainant. Accused charged with four counts each of sexual assault, sexual interference, and sexual exploitation. Soon after abuse was disclosed, complainant began seeing therapist. Therapist forwarded confidential records to Crown, including DVD recording of therapy session, which was mistakenly disclosed to defence. Accused sought to rely on DVD to gain access to rest of complainant’s therapeutic file, pursuant to ss. 278.1 to 278.9 of Criminal Code. Crown argued that defence counsel was in “wrongful possession” of DVD as result of Crown’s negligence. Crown argued that, notwithstanding that DVD had already been disclosed, it was still “record” within meaning of s. 278.1 of Code and thus subject to procedure set out in ss. 278.2 to 278.9 of Code. Accused argued that ss. 278.1 to 278.9 of Code were only concerned with production and disclosure, not admissibility. Accused argued that he was entitled to use inadvertently-disclosed DVD in support of third-party records application, and to question complainant at trial. Alternatively, accused argued that complainant’s counselling records ought to have been disclosed to him because remaining materials available on application established that they were likely relevant. Accused was not permitted to use DVD in support of his application to obtain complainant’s therapeutic file. Conduct of defence counsel was blameless, but this did not mitigate serious and illegal violation of complainant’s privacy rights. Before any use could be made of DVD, whether at trial or as basis for obtaining further private records, DVD had to be returned and future production determined under ss. 278.1 to 278.9 of Code, thereby restoring privacy rights of complainant. Ruling placed accused in same position as any other person hoping to gain access to private records of his accuser. Accused was simply being denied that to which he was not entitled in first place, and there was no unfairness in this result. Once improperly-disclosed interview was removed from equation, accused was left to rely upon differences in complainant’s account from police interviews and her evidence at preliminary inquiry. Although allegations of complainant had broadened somewhat since starting therapy, that was not sufficient basis to order production of therapeutic records. It was mere speculation that materials would have been found in complainant’s therapeutic records that would have shed light on why her allegations had become arguably broader since attending therapy sessions. Incremental disclosure was quite common in case like this. Complainant’s expectation of privacy was extremely high.

R. v. Gray (May. 26, 2015, Ont. S.C.J., Trotter J., File No. null) 121 W.C.B. (2d) 553.

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