R. v. Osolin

This Court has recognized that the value of privacy is fundamental to the notions of dignity and autonomy of the person (R. v. Pohoretsky, [1987] 1 S.C.R. 945, and R. v. Dyment, [1988] 2 S.C.R. 417). Equally, privacy in relation to personal information and, in particular, the ability to control the purpose and manner of its disclosure, is necessary to ensure the dignity and integrity of the individual. In the words of La Forest J. in Dyment, supra, at pp. 429-30, while

[w]e may, for one reason or another, wish or be compelled to reveal such information, ... situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.

We also recognize that it is often important that privacy interests be respected at the point of disclosure if they are to be protected at all, as they often cannot be vindicated after the intrusion has already occurred (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and Dyment, at p. 430).

The importance of privacy as a fundamental value in our society is underscored by the protection afforded to everyone under s. 8 of the Charter "to be secure against unreasonable search or seizure". This value finds expression in such legislation as the Privacy Act , R.S.C., 1985, c. P-21 , which restricts the purposes for which information may be used to those for which it was received.

The question of privacy of medical information was extensively discussed in the reasons of La Forest J. in Dyment, supra. In that case, La Forest J. noted that the confidentiality of the doctor-patient relationship has long been respected as an important social value. Protection of information is necessary because persons are especially vulnerable in such circumstances; in order to protect their life or health, they are required to reveal information of an intimate character. La Forest J. also observed in Dyment, on the basis of the Department of Communications/Department of Justice Task Force report on Privacy and Computers (1972), that hospitals have been identified as a specific area of concern in the protection of privacy. As the Report of the Commission of Inquiry into the Confidentiality of Health Information (Ontario 1980) found, in vol. 2, at p. 91, there are concerns that persons in need of medical care might be deterred from seeking valuable and needed treatment if the exchange of information were routine and easily available. Thus, the report concluded that "physicians, hospital employees and other health-care workers ought not to be made part of the law enforcement machinery of the state". Not only would trust in the administration of justice be undermined by such practices, but so would the effective operation of medical care.

The decision in Dyment clearly establishes the commitment of this Court to the value of privacy of medical information. In addition, the Court has also recognized the fiduciary nature of the doctor-patient relationship and the special duties that arise from this relationship of trust and confidence in McInerney v. MacDonald, [1992] 2 S.C.R. 138, and Norberg v. Wynrib, [1992] 2 S.C.R. 226.

In light of these general principles, the Court has seen fit to protect privacy interests in relation to specific and limited medical activities such as the taking of a blood sample where the interests of the accused are at stake (see R. v. Dersch, [1993] 3 S.C.R. 768). There is no doubt that any attempt by the Crown to conduct a wide-ranging inquiry into the entire medical history of a criminal accused would be met with concerns about prejudice to the accused and irrelevance to the issue at trial.

However, while it was the rights of the accused that were at stake in Dyment, as well as in Dersch, supra, the interest in the privacy of medical records was recognized in the former case as a broad and independent value, separate and distinct from considerations about the fairness of the trial process. Thus, the privacy interest discussed in Dyment may be seen as an interest that pertains to all of us which may arise in a number of different circumstances. Indeed, it would be odd if the protection of medical records were to be available only to those accused of criminal offences. Such a finding could hardly inspire confidence in the administration of justice. In my opinion, the inescapable conclusion is that the arguments expressed in Dyment in respect of privacy interests are equally applicable, if not more compelling, in the case of witnesses called by the Crown in a criminal matter.

Because the trial judge in this case based the disclosure order on the following jurisprudence, I shall next turn to an examination of the rules governing the challenges to the competence and the reliability of witnesses.

In the present case, the trial judge, relying on the rule in Toohey, supra, followed by the Ontario Court of Appeal in Hawke, supra, ordered the disclosure of the complainant's records to the appellant in order to permit him to attempt to establish the unreliability of the complainant's testimony.

The basic rule as to challenges to the competency of witnesses is as follows. All witnesses, with the exception of children under a specified age, are presumed competent to testify unless and until found otherwise due to some condition which renders it unsafe for the trier of fact to rely on the testimony. A finding that the witness suffers from a particular mental or psychiatric condition does not necessarily or in itself disqualify a witness; in order to disqualify a witness, the witness's particular condition must be such as to substantially negative the trustworthiness of the evidence on the specific subject.

This issue was canvassed extensively by Dubin J.A. (now C.J.O.) in Hawke, supra. As he noted, citing McCormick's Handbook of the Law of Evidence (2nd ed. 1972), {SS} 45, at p. 93, "a distinction must be made between attacks on competency and attacks on credibility". Wigmore, for his part, has this to say:

This broad and rational principle -- that the derangement or defect, in order to disqualify, must be such as substantially negatives trustworthiness upon the specific subject of the testimony -- is now practically everywhere accepted.

...

First, the mere fact of derangement or defect does not in itself exclude the witness; the various forms of monomania are no longer treated as equivalent to complete lunacy;

Secondly, the inquiry is always as to the relation of the derangement or defect to the subject to be testified about. If on this subject no aberration appears, the person is acceptable, however untrustworthy on other subjects; [Emphasis in original.]

(Wigmore on Evidence (3rd ed. 1940), vol. 2, {SS} 492, at pp. 585-86.)

From these general principles, it is apparent that, in order to challenge the competency of a witness to testify, it must be established that the witness is unable to give reliable evidence on the specific issue in question. In addition, as an exception to the general rule which provides that an expert may not testify as to the credibility of a witness, expert testimony is permitted to establish that the witness suffers from some "hidden defect" which affects the reliability of the testimony. However, as both the trial judge and the Court of Appeal found in this case, this situation must be distinguished from that of calling an expert to establish that a witness, though capable of testifying reliably, chooses not to do so.

The general principle is set out as follows in Toohey, supra. In that case, Lord Pearce, speaking for all the law lords, held at p. 512 that:

Medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to a general opinion of the unreliability of the witness, but may give all the matters necessary to show not only the foundation of and reasons for the diagnosis but also the extent to which the credibility of the witness is affected.

In Hawke, the Ontario Court of Appeal followed Toohey and held that the trial judge had erred in rejecting psychiatric evidence given by the doctors of a crucial witness in a murder trial. At the time of the trial, the witness had been in the care of these doctors for over four years for treatment of serious psychiatric disturbance. The doctors testified in a voir dire, on the basis of an examination of her made the preceding evening, that the witness had been actively hallucinating while giving evidence on the stand during the trial. Moreover, they testified that the nature of the hallucination was such that it directly affected the truth of that testimony. As is apparent, such circumstances caused the case to fall squarely within the rule in Toohey.

However, such cases are clearly exceptional and this jurisprudence does not permit the exploration of the psychiatric history of a witness simply on the basis that the defence hopes such material may be relevant or useful to impugn the witness's testimony. Nor does it require the trial judge to order the disclosure of the complainant's medical records in order to permit the defence to attempt to establish that a witness's evidence may be unreliable. It is clear that the rule in Toohey is intended to ensure that, when there are serious concerns about the reliability of a witness due to mental or psychiatric disturbance, there is a mechanism by which those concerns can be brought to light at trial. Furthermore, it is also clear that expert evidence is permitted only for the limited purpose of establishing that some aspect of the witness's condition may affect the reliability of the witness's testimony on the issue in question; otherwise, such evidence, as both courts below found in the present case, may be inadmissible. Such evidence is not intended to provide easy access to fishing expeditions on the part of the defence where the psychiatric history of a witness may be marginal or totally irrelevant to the issue to be decided. Nor, in my opinion, can the rule in Toohey be used to provide a method of gathering all sorts of other information which, although, no doubt, of interest to the defence in its attempts to undermine the credibility of the witness, would otherwise remain beyond its reach.

Moreover, this jurisprudence does not mandate the disclosure of medical records to the defence in order to allow it to establish the unreliability of a witness's testimony. In the event that the defence has established that, for example, because of the demeanour or behaviour of a witness, such an investigation is crucial to the fairness of the trial, the usual method would be, as was the case in Hawke, to call evidence from the witness's own doctor to testify as to whether there is anything in the nature of the witness's psychiatric or mental condition which would bear specifically on her ability to give reliable evidence on the matter in issue.

In my view, in the event that disclosure is required, the limited purposes for which such evidence is available in the first place indicate that restrictions on the scope of cross-examination are also warranted. However, my colleague Cory J. found that, once a witness's medical records are admitted, cross-examination must then be allowed on any information garnered from the records which may be relevant to an issue in the case. Although my colleague himself finds that defence counsel's submissions as regards the purpose of cross-examination appeared "to be the very sort of improper purpose for which evidence cannot be adduced", (p. 673) he still finds that it was the duty of the trial judge "to permit cross-examination with regard to the July 9 record, particularly to determine if it would throw any light either upon a possible motive of the complainant to allege that she was the victim of sexual assault or with regard to her conduct which might have led the appellant to believe that she was consenting to sexual advances" (pp. 673-74). For the following reasons, I disagree.

Medical records only become relevant if there is serious reason to believe that the competence to testify, which we normally presume in all adult witnesses, is in question. To the extent that such records are necessary to establish that the witness is incapable of giving reliable testimony in relation to the specific matter in issue, they remain relevant. If the alleged unreliability cannot be established, then, once again, the information in the records becomes tangential and cross-examination on such information will be impermissible simply on the grounds that it is either clearly irrelevant or too remote and of scant probative value.

Given the limitations on the exploration of a witness's particular mental or psychiatric state I have discussed above in regards to Toohey and Hawke, in my opinion it follows that cross-examination on the medical records that extends beyond the scope of establishing the unreliability of the witness's testimony due to that mental condition should also be curtailed. In other words, cross-examination on medical records must be restricted to the purpose for which they were introduced. The defence may not argue that, because the medical records were relevant to the issue of the witness's competence to testify or reliability as to the issue to be decided, it may then cross-examine on all the information contained therein for whatever use it may be to the rest of the defence's case.

There may be instances, as in the present case, in which the defence argues that the records contain information that is relevant to the issues to be decided. In my opinion, both on basic evidentiary principles and for the policy reasons which I shall discuss below, cross-examination on such information should, except in extraordinary cases, nonetheless remain impermissible.

In the words of McCormick, supra, at p. 438, "relevance is not always enough". Trial judges possess the undoubted discretion to both exclude evidence and limit cross-examination on matters which, although arguably relevant to the issue, are outweighed by their potential to prejudice the trial of the issue. Central among these concerns are the following: such facts may unduly arouse sentiments of prejudice, hostility or sympathy; they may distract the trier of fact from the main issue to be decided; and the exploration of the issue may consume an undue amount of time. (See also: Wigmore on Evidence, vol. 1A (Tillers rev. 1983), at p. 969.)

In my opinion, the nature of medical records is such that all of these concerns would often be engaged by unlimited cross-examination. Such evidence is, in the vast majority of cases, completely marginal to the central issue of the trial. It may well invite prejudice against the witness by the trier of fact. Furthermore, the process of proof and counterproof to establish the reliability of the evidence entails large amounts of time and may potentially sidetrack the trial of the case. For these reasons, its prejudicial effect on the witness, and also in many cases on the trial process itself, will, even in the event that the medical records are relevant to the trial, outweigh its probative value. More specifically, particularly in the case of complainants in sexual assault trials, there is serious risk that such information will be used to draw impermissible inferences and encourage the trier of fact to rely on myths about the credibility of sexual assault victims to the prejudice of both the witness and the trial process.

As I have discussed above, this Court has already acknowledged in Dyment, supra, that there are serious dangers in the unrestricted use of information obtained in a doctor-patient or other form of therapeutic relationship. For the purposes of this discussion, it is important to explore the following concerns as they pertain to the initial disclosure of medical records and the limitations on cross-examination subsequent to any disclosure. These are but the most obvious concerns; further research and information may very well disclose other dangers.

First, common sense dictates that if people are aware that medical records can and may very well be obtained to attack the credibility of a witness, they may be reluctant to seek needed and valuable treatment if there is any prospect that they may be required to testify at trial, particularly if there is any connection between the events at trial and the subjects of discussion in the treatment process. Few people are comfortable with the public disclosure of such information, and many people may fear that such disclosure would not be entirely without effect on other areas of their lives.

In addition, routine disclosure of medical records and unrestricted cross-examination upon disclosure threaten to function very unfairly against anyone who has undergone mental or psychiatric therapy, whatever the precipitating event or nature of the treatment, as compared to other members of the public. Such persons would be subject to an invasion of their privacy not suffered by other witnesses who are required to testify. They may have to answer to details of their personal life reflected in their records and effectively overcome a presumption, most often entirely unfounded, that their medical history is relevant to their credibility and ability to testify on the matter in issue.

Moreover, medical records concerning statements made in the course of therapy are both hearsay and inherently problematic as regards reliability. A witness's concerns expressed in the course of therapy after the fact, even assuming they are correctly understood and reliably noted, cannot be equated with evidence given in the course of a trial. Both the context in which the statements are made and the expectations of the parties are entirely different. In a trial, a witness is sworn to testify as to the particular events in issue. By contrast, in therapy an entire spectrum of factors such as personal history, thoughts, emotions as well as particular acts may inform the dialogue between therapist and patient. Thus, there is serious risk that such statements could be taken piecemeal out of the context in which they were made to provide a foundation for entirely unwarranted inferences by the trier of fact.

Finally, credibility is an issue in many trials but particularly in trials involving sexual assault. In my view, if disclosure is accepted as relevant in such cases, in any such trial, nothing will prevent any accused from requesting in any case the medical and psychiatric records of the complainant and cross-examining her on all matters in the record.

In light of these concerns, courts must weigh carefully the cost of such disclosure, not only in personal terms to the persons subject to disclosure orders or cross-examination on information elicited from such records, but also to the effective prosecution of the very issue at hand. If the net result is to discourage witnesses from reporting and coming forward with evidence, then, in my view, it cannot be said that such practices would advance either the trial process itself or enhance the general goals of the administration of justice.

In addition to these general concerns which may affect all witnesses, in my opinion, it is important to look at the specific position of the complainant in a sexual assault trial.