Balancing the rights of the accused and those of the victims?

O'Connor, Carosella and Mills were all men who had been charged with sexual offences against young people. They all claimed that in or order to defend themselves they needed certain private information of the alleged victims. (We use the term "alleged victim" when someone steps forward and says that he or she is a victim of a crime, but the Court has not yet decided whether this is indeed the case. The person who is charged with committing a crime is called the "accused" because he or she stands accused of a crime.)

But some of the young people who claimed that they had been abused didn't like the idea of sharing their personal information with the very people who they said abused them. Their view was " Hey, this way a horrible experience for me. Now I have to go to court to tell my story, which will be very difficult for me. I have been going for counselling to help me deal with the effects and to get my life back together. What I said is very personal to me. I don't want the notes describing my feelings going to the same person who caused me so much pain. Don't you remember ---I am the victim here! Don't make me the victim again! "

These cases, the court decisions and the way in which Parliament changed the law shows how difficult it can be to balance the rights of different people.

O'Connor was a bishop who had been a priest and principal of a residential school for native Canadians in the 1960's. Years later, he was charged with committing sexual assault against some of the students there. His lawyer sought all of the documents that had been in the possession of the Crown counsel ( government lawyer – see Stinchcombe sidebar) . The Crown argued that the disclosure of all medical and therapeutic documents of the victims in its possession would further victimize the victims. The issue that the Supreme Court of Canada had to deal with was – what is the appropriate procedure to be followed when an accused wants to see all documents in the Crown file?

The Supreme Court said that if the victim is willing to disclose information to the Crown to prosecute the accused, then the accused must be entitled to use the information to defend himself or herself. The Court said that the right of the accused to "make full answer and defence" was greater than the victim's right to privacy ( to keep his or her personal information secret).

The Court recommended a procedure as follows: all relevant information in the Crown's possession must be given to the accused. If the records are in the possession of a third party , such as a doctor or counsellor, then the accused must apply to the court for production ( or handing over) of documents. The third party ( such as the doctor or counsellor) and the person who has a privacy interest in the document ( such as the alleged victim) are all told about the accused trying to get the information and are all given the chance to present arguments before the judge. The judge reviews the information and decides whether it could possibly be useful to the accused. If it could be useful to the accused, he or she gets a copy of the document. The reason why the judge looks at it first is to balance the privacy interests of the alleged victim with the need of the accused to all relevant information. The court also wants to make sure that the accused isn't just trying to stall the proceedings or to harass the alleged victim.

Two years later, in R. v. Carosella, the Supreme Court of Canada had to deal with the result of the O'Connor decision. Carosella had been a teacher. One of his former students claimed that Carosella had sexually abused her long ago. She went for counselling and spoke with a social worker. The crisis centre where the social worker worked had a policy of shredding all interview notes before a court could order that they be produced (or handed over to the court) for the court to determine if the accused needs to see the information. (Could it be because they were trying to get around the O'Connor decision?)

Well, the Court was not impressed. Especially when they found out that the former student had not wanted the notes destroyed. She would have liked to have been able to hand them over to the Crown, so that the Crown could prosecute Carosella.

The Supreme Court of Canada ruled that Carosella could not fully defend himself without those notes. The proceedings were stayed – which means that the court case could not continue. Carosella walked.

The Court also let it be known that the deliberate destruction of material in order to deny a court and the accused relevant evidence could not be tolerated. In short, the Court said, "Don't mess with the court system. We have told you the balance that has to be struck".

Well, now Canadians were upset. Some people were angry because they thought that the victims' rights weren't being respected. Others were upset because they thought that people accused of crimes should be able to get all information – how can the accused show that certain information is relevant if he or she does not know what it says.

In May 1997, Parliament amended the Criminal Code to include sections 278.1 to 278.91, which deal with the production of records in sexual offence provisions. The provisions differed significantly from the plan proposed by the Supreme Court in O'Connor. The procedure provides several different levels of a court determining whether the accused should have access to the personal information of an alleged victim. One major difference is the accused is no longer automatically entitled to all relevant information in the Crown's possession. Instead, the Crown must tell the defence counsel what documents it has in its possession, but not the content of the document. Then the accused must apply to see the information.

Right after they came into effect, these provisions were challenged in R. v. Mills. Mills was charged with sexually assaulting a 13 year old. He said that the new provisions of the Criminal Code infringed his right to make full answer and defence. Would the Supreme Court of Canada strike down the law because Parliament had not followed its instructions?

No. The Court recognized that there could be more than one way to make sure that the accused has the information that he or she needs, while at the same time recognizing the privacy interests of victims. The Court realizes that Parliament is the elected voice of the people and the Court should respect the laws put forward by Parliament when the law strikes a reasonable balance between the rights of different people, even if the Court would have done things a little differently. Mills had to go to trial for the alleged sexual abuse.