Summary of a Presentation from NAWL’s 14th Biennial Conference
During the 1990s, the scope of access to complainant’s confidential records was radically widened in a series of decisions of the Supreme Court of Canada that relied upon an almost inviolable interpretation of the right to a fair trial (R. v. Osolin,  4 S.C.R. 595; L.L.A. v. A.B.,  4 S.C.R. 536; R. v. O’Connor,  4 S.C.R. 411; R.v.Carosella,  1 S.C.R. 80). This liberalized disclosure regime made Canada unique in comparative terms, allowing for almost routine legally sanctioned intrusions into the extra-legal domains where complainants have chosen to tell their stories of assault. As several analysts have demonstrated (Gotell 2001; Busby, 2000; Aboriginal Women’s Council et al., 1995), liberalized disclosure increased the vulnerability and decreased the protections afforded to those with mental health histories and to those who had been extensively documented by state agencies, including aboriginal women, women living in poverty and women with disabilities.
Bill C-46, passed by the federal government in 1997, sought to restrict access to private records and to affirm the equality and privacy rights of complainants. Yet the ink on this legislation was barely dry before a series of controversial lower court decisions struck down the bill, finding that it violated defendants’ legal rights. The issue of disclosure was thrust back to the Supreme Court in R. v. Mills ( 3 S.C.R. 668). Some Canadian feminists have hailed the resulting decision as a victory because it upheld the statutory test for disclosure set out in Bill C-46. However, careful analysis of Mills reveals its ambiguity. While the effect of the Court’s decision in Mills is to require the defence to establish an evidentiary foundation to ground any assertion of the likely relevance of confidential records, the decision also privileges defendant’s rights and emphasizes the importance of judicial discretion in decisions about access to complainant’s records.
The workshop explored issues involved in access to complainants’ records post-Mills in 15 trial and appeal level decisions on records disclosure and production since December 1999. The analysis revealed:
* The tactic of “whacking the complainant” through records applications has remained a widespread defence strategy. According to an article in the Criminal Lawyers’ Association Newsletter, “the importance of pursuing these applications. . . cannot be overstated.” (For the Defence, Vol 21:2, March-April 2000, p. 32)
* Most of post-Mills cases involve child sexual abuse, and nearly all of the accused are adult men. There are no cases of stranger rape among the cases analyzed. This suggests that the strategy of records applications is highly likely in cases where the accused and complainant have a close personal relationship.
* In the post-Mills cases reviewed, there is a complete silence on the race of complainants and in only one case was the race of the accused noted. Two cases involved complainants with developmental disabilities. It is, however, clear from the decisions that many of the complainants are or were vulnerable children and adolescents with child welfare records. Previous research has established that those who have been extensively documented are particularly vulnerable to records applications, including, children in care, people with disabilities, people with mental health histories, aboriginal women and women of colour.
* The post-Mills cases that were reviewed suggest a reduced likelihood of successful applications. In 3/10 cases where production/disclosure was at issue, the records were found to be “likely relevant.” Many trial and appellate level decisions follow the Mills requirement of an evidentiary foundation, and this appears to have reduced successful applications based upon mere assertion.
* Mills is a contradictory decision and in cases where records are found to be likely relevant, judges have relied upon those elements of Mills that stress judicial discretion and the importance of erring on the side of the accused in unclear cases. In cases where records have been produced, these elements of Mills are used to justify disclosure. But ithese decisions are also based upon rape myths.
* The suggestion of “memory manipulation” seems to be a key factor that demarcates findings of “not likely relevant” from “likely relevant.”
* The most-positive aspect of the post-Mills case law — the requirement of an evidentiary foundation for assertions of likely relevance — has led to a new defence strategy that holds the potential to undermine the thrust of Bill C-46. Defence counsel has sought to establish this foundation through extensive questioning of complainants on records at the preliminary inquiry. The ability for defence to cross-examine on records has been affirmed in two significant post-Mills cases: R. v. B.(E.),  O.J. No. 75 (C.A.) and R. v. Kasook,  2 W.W.R. 683 (N.W.T.S.C.).
Overall, the findings of this study suggest that complainants are still vulnerable post-Mills. Resisting disclosure remains a crucial site in the struggle against coercive sexuality. At issue is our very ability to speak about and understand sexual violation outside the narrow confines of legal discourse.
Lise Gotell is an associate professor of Women’s Studies at the University of Alberta.