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Digest of the Week — Effect of Mistaken Disclosure

R. v. Gray |
2015 CarswellOnt 7613 |
Ontario Superior Court of Justice

Criminal law | Pre-trial procedure | Disclosure of evidence | Disclosure | Miscellaneous

Accused was charged with four counts each of sexual assault, sexual interference, and sexual exploitation — Soon after abuse was disclosed, complainant began seeing therapist — Therapist forwarded confidential records to Crown, including DVD recording of therapy session, which was mistakenly disclosed to defence — Accused sought to rely on DVD to gain access to rest of complainant's therapeutic file, pursuant to ss. 278.1 to 278.9 of Criminal Code — Crown argued that defence counsel was in "wrongful possession" of DVD as result of Crown's negligence — Crown argued that, notwithstanding that DVD had already been disclosed, it was still "record" within meaning of s. 278.1 of Code and thus subject to procedure set out in ss. 278.2 to 278.9 of Code — Accused argued that ss. 278.1 to 278.9 of Code were only concerned with production and disclosure, not admissibility — Accused argued that he was entitled to use inadvertently-disclosed DVD in support of third-party records application, and to question complainant at trial — Alternatively, accused argued that complainant's counselling records ought to have been disclosed to him because remaining materials available on application established that they were likely relevant — Hearing took place to determine whether material should be disclosed — Accused was not permitted to use DVD in support of his application to obtain complainant's therapeutic file — Conduct of defence counsel was blameless, but this did not mitigate serious and illegal violation of complainant's privacy rights — Before any use could be made of DVD, whether at trial or as basis for obtaining further private records, DVD had to be returned and future production determined under ss. 278.1 to 278.9 of Code, thereby restoring privacy rights of complainant — Ruling placed accused in same position as any other person hoping to gain access to private records of his accuser — Accused was simply being denied that to which he was not entitled in first place, and there was no unfairness in this result — Once improperly-disclosed interview was removed from equation, accused was left to rely upon differences in complainant's account from police interviews and her evidence at preliminary inquiry — Although allegations of complainant had broadened somewhat since starting therapy, that was not sufficient basis to order production of therapeutic records — Complainant's expectation of privacy was extremely high.
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