Ruling says client-therapist communications originated in confidence of non-disclosure
In a criminal case involving sexual assault allegations within a marriage, the Ontario Court of Justice determined that therapist-client privilege covered the communications between a marriage counsellor and the accused husband and the notes associated with their sessions.
In R. v. J.B., 2025 ONCJ 433, the parties had a long and turbulent marriage that included numerous disagreements.
They tried resolving their problems by consulting a couples therapist, who was a mental health practitioner and a registered psychotherapist certified by the Canadian Professional Counsellors Association and the International Association of Trauma Professionals.
During counselling sessions, the couple covered various issues, including the applicant husband’s alleged sexual assault of the complainant wife. He faced criminal charges relating to these allegations.
The applicant filed an application raising the issues of whether the Crown could access his admissions to the therapist during counselling and whether privilege protected these communications from the prosecution’s use.
The Ontario Court of Justice granted the application. It said privilege covered the communications between the applicant and the therapist, including the notes of the Feb. 22, 2024 session, which supposedly summarized the applicant’s discussion of the alleged sexual assault.
First, the court said the applicant did not consent to the disclosure of his communications with the therapist. The court inferred from the evidence that the applicant engaged in those discussions with the confidence that the therapist would keep them confidential.
The court noted that clients generally expected their communications to be confidential when consulting a therapist and participated in counselling to discuss intimate details regarding their lives with a trusted professional.
The court cited standard 3.1.1 of the Professional Practice Standards of the College of Registered Psychotherapists of Ontario, which prevented registrants from collecting, using, or disclosing client information without the client’s or their representative’s informed consent, except as the law permitted or required.
The court found that nothing in the record in this case would require the therapist to proactively disclose the applicant’s admissions to the authorities, unlike in situations involving suspected child abuse.
Meanwhile, standard 3.1.2 asked registrants to familiarize themselves with and abide by the applicable privacy laws.
The Crown questioned whether the mental health practitioner in this case was working as a psychotherapist when dealing specifically with the applicant.
The court treated the terms “therapist” and “psychotherapist” interchangeably here. The court noted that the applicant’s affidavit, filed in a pre-trial application, referred to “therapy” and a “couples therapist.”
The court found that the complainant’s presence during the counselling sessions did not equate to a third party attending a lawyer-client meeting and did not undermine the applicant’s expectations of confidence. The court noted that the couples therapist expected both parties to attend the sessions.
Next, the court held that it should protect and support the relationship between a couples therapist and their clients. The court noted the need for confidentiality to maintain this relationship satisfactorily.
The court explained that the therapeutic process required confidentiality and the client’s ability to speak freely without fear of self-incrimination and future legal reprisal so that it could be authentic and effective. The court said clients might withhold key perspectives without these assurances.
The court noted that the mental health practitioner described her work as personal and shared that she aimed to give clients a safe space, assure them that she fully supported them, and help couples “shift from destructive patterns to connecting experiences.”
Lastly, the court ruled that the interests of protecting therapist-client communications outweighed those of seeking the truth and attaining a just trial verdict. The court said recognizing this privilege would not jeopardize the criminal trial’s truth-seeking purpose.
The court pointed out that the complainant was available to provide evidence about the alleged sexual assault. The court added that the applicant admitted in his affidavit to sexually touching his wife while she slept.
The court accepted that the applicant’s affidavit was not a perfect substitute for his admissions to the therapist. However, the court noted that the Crown still had a case and could challenge the applicant’s defence at trial.
