What is the test for production and disclosure of therapeutic records in a sexual assault case?

The following is a summary of the majority decision in O’Connor v. The Queen, supra: Production and disclosure of therapeutic records in the possession of third parties ­ A constitutional right to privacy extends to information contained in many forms of records in the possession of third parties. Thus, in cases involving the production of information which is in the hands of a third party, the court is concerned with the competing claims of a constitutional right to privacy in the information on the one hand and the right to full answer and defence on the other. Where the defence seeks production and disclosure of records in the possession of a third party, a two-stage procedure is involved. At the first stage in the production procedure, the onus is on the accused to satisfy a judge that the information is likely to be relevant. The onus on the accused is not an evidential burden requiring evidence and a voir dire in every case. It is simply an initial threshold to provide a basis for production which can be satisfied by oral submissions of counsel. Evidence and a voir dire may, however, be required in situations in which the presiding judge cannot resolve the matter on the basis of the submission of counsel. To initiate the production procedure, the accused must bring a formal written application supported by an affidavit setting out the specific grounds for production. A notice must be given to third parties in possession of the documents as well as to those persons who have a privacy interest in the records. The accused must also ensure that the custodian and the records are subpoenaed to ensure their attendance in the court. The initial application for disclosure should be made to the judge seized of the trial, but may be brought before the trial judge prior to the empanelling of the jury, at the same time that other motions are heard. In the context of production, the test of likely relevance requires that the judge be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. The issues at trial include not only the matters in issue in the case, but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case. This burden on the accused should not be interpreted as an onerous one and it cannot be assumed that private therapeutic or counselling records are irrelevant to full answer and defence. Such records may be relevant in sexual assault cases because they contain information concerning the unfolding of events underlying the criminal complaint; they may reveal the use of a therapy which influenced the complainant’s memory of the alleged offence; or, they may contain information that bears on the complainant’s credibility including testimonial factors such as the quality of the complainant’s perception of events at the time of the offence and their memory since. At the second stage, after the records have been produced to the court the judge should examine the records to determine whether, and to what extent, they should be produced to the accused. In making this determination the judge must examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence. In some cases, it may be possible for the presiding judge to provide a judicial summary of the records to counsel to enable them to assist in determining whether the material should be produced. In balancing the competing rights in question, the judge should consider the following factors: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant’s dignity, privacy or security of the person what would be occasioned by a production of the record in question.