Question: Can the Defence Obtain the Complainant’s Counselling or Psychological Records?

Nurse Treating Teenage Girl Suffering With DepressionNote: Sexual Assault Lawyers require specialized experience, skill and expertise. The unique challenges created by this issue is but one example of why.

The short answer is “probably not”.  While psychological or counselling records can in many cases be a game changer that reveals key information regarding the origins of the accusations, this important information is often kept from the defence, even if the prosecution has it in their possession.  Here’s how it works.

As a general rule, an accused is entitled to disclosure in a criminal case according to the following rules:

1. If evidence like a document or record is in the possession of the prosecutor, the prosecutor must disclose it to the defence if there is a “possibility” that it may assist the defence. That “assistance” is broadly defined as including:

a) meeting the Crown’s case;

b) advancing a defence; or

c) otherwise making a decision which may affect the conduct of the defence.

2. If the prosecutor does not himself or herself have a document or record that might possibly assist the defence, but the police or other government agency does, the police are obligated to provide it to the Crown.

3. The defence can put the Crown on notice that there is reason to believe that relevant information in the hands of a government agency and, in that case, the Crown is required to take steps to obtain it.

The law generally poses a very low standard for an accused to obtain disclosure. This is the case for very good reasons. The ability to obtain disclosure of relevant information that might assist the defence is fundamental to Canada’s values of ensuring that criminal trials are fair and that a person accused of a criminal offence is not wrongfully convicted.

Where a person is charged with a sexual offence, however, the rules are very different.

That availability of disclosure is significantly restricted where an accused is charged with a sexual offence such as sexual assault, sexual interference, invitation to sexual touching, sexual exploitation, committing an indecent act, indecent exposure, procuring, or prostitution.

If you are charged with any of these sexual offences, it is very difficult for the defence to get access to any records of a complainant or witness, particularly psychological, psychiatric or counselling records.

That’s because in such cases, the criminal law recognizes that a complainant or witness has a “reasonable expectation of privacy” in these records. Despite the fact your very liberty is at stake, your right to make full answer and defence to the charge does not trump that right to privacy. Instead, your right to make full answer and defence is balanced against a complainant or witness’s right to privacy.

A person charged with a sexual offence is therefore at an immediate disadvantage compared to people charged with other offences. As sexual assault lawyers, we are not provided by right with the full arsenal of weapons to attack a witness’s credibility that we would have in a usual case. We have to fight to get access to that arsenal before we even begin to strategize as to how best to use it. And the decision as to whether to engage in that battle is a strategic decision in and of itself.

To give you some ideas of the hurdles that a sexual assault lawyer will face in trying to obtain these sorts of records, especially counselling, psychiatric or psychological records, here’s a brief outline of what has to be overcome before disclosure will be ordered:

First of all, you can’t even get access to records like psychiatric or psychological records until you are at the trial stage of proceedings. In most sexual offence cases, a preliminary hearing [LINK TO “Your Criminal Case – The Process” [LINK TO Your Criminal Case – The Process Page], is held before trial. That preliminary hearing is supposed to provide the defence an opportunity to test the strength of the Crown’s case and credibility of the complainant and other witnesses. However, if you are charged with a sexual offence, your sex assault lawyer isn’t permitted to even request this information until the preliminary hearing is over and there has been a committal for trial.

Secondly, it is not enough that the psychiatric or psychological records might be “possibly relevant” to the defence in some way, your criminal defence lawyer must show that the records are “likely relevant to an issue at trial”.

Thirdly, records like psychiatric or psychological records can only be disclosed by order of the trial judge on a formal written application made on two weeks notice. That written application must include the grounds on which the defence relies to establish that the records are “likely relevant to an issue at trial”.

Fourth, the Catch-22 that an accused person frequently faces, even in cases where it can be established that the records exist or probably exist, is this: you can’t get access to the records unless you can provide grounds to establish that the records are “likely relevant” to an issue at trial, but you can’t establish those grounds without seeing the records themselves. In other situations (such as access to wiretap affidavits in drug or murder cases) the courts have found that sort of dilemma to be unfair and unconstitutional. However, where a person is charged with sexual offences, the same type of barrier to making full answer and defence has been found to be acceptable.

Fifth, even if you are fortunate enough to have obtained some information that could support such an application, the standard you have to meet is prohibitively high. For instance, establishing one or more of the following factors is not enough:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant’s sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

Sixth, as a practical matter, in order to bring the application, your sexual assault lawyer has little choice but to set out in writing the defence theory, planned approach and cross-examination strategy and writing and provide a copy not only to the prosecutor, but to the complainant or witness who your lawyer is going to be cross-examining. It should appear obvious that this can significantly undermine the defence’s ability to fully and effectively cross-examine later. In the case of sexual offences, cross-examination is often the only tool that a criminal defence lawyer has to expose and undermine false sexual assault allegations. This ability, however, is limited by these onerous requirements; the judge or jury often never gets to hear information that could make all the difference between your being found guilty or not guilty.

Seventh, the complainant or witness is not only entitled to receive a copy of your written application, they are permitted to hire their own lawyer to speak for them in opposition to the defence application.

Eighth, you are not able to compel the complainant or witness to whom the record relates or the person who has the records (such as a psychiatrist or counsellor) to testify on the disclosure application. We must rely solely on other sources of information.

Ninth, even if we can show that the record is “likely relevant to an issue at trial”, that is not the end of the matter. Before any access to the record can be granted, and before a judge is even permitted to review it to decide if it should be disclosed, the judge must consider, among other things, “the extent to which (it) is necessary” to make full answer and defence, the prejudice to the complainant or witness’s right to privacy and “society’s interest in encouraging the reporting of sexual offences”.

Tenth, assuming that this hurdle can be cleared and judge is satisfied that he or she should look at the record, he or she must balance even more factors before ordering that the record or any portion of it should be disclosed, including the complainant or witness’s right to “privacy”, “personal security” and “equality”.

Finally, assuming that the judge, after this exhaustive exercise, decides to order disclosure, the judge may impose conditions on that disclosure.

So the answer to the question, “can my lawyer get access to a complainant’s or witness’s psychiatric or psychological records?” is a qualified “yes”. Even then, the decision whether or not to apply for this sort of disclosure often has a downside it terms of sacrificing the effectiveness of cross-examination. As you will have discerned from the above, such a decision must be carefully considered and if yours is an appropriate case in which to seek such an order, it should only be done using the expertise and specialized knowledge of an experienced sexual offence lawyer.

While the above is a general statement of law and practice, if you are charged with a sexual offence, you should seek legal advice from an experienced sexual offence lawyer regarding how it applies to the specific circumstances of your individual case.

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