R v O’Connor 
In 1991, Bishop O’Connor was charged with rape and indecent assault of four Indigenous women at a residential school in Williams Lake, BC. During the pre-trial process, the judge ordered the disclosure of all records of therapists, counselors, psychologists and psychiatrists who had treated the complainants in relation to sexual assault or sexual abuse. In December 1992, proceedings were stayed in part because the trial judge did not have confidence that full disclosure had been made by the Crown. The Crown appealed.
West Coast LEAF’s involvement
LEAF intervened at the BC Court of Appeal on behalf of a coalition that included LEAF, the DisAbled Women’s Network of Canada (DAWN), the Aboriginal Women’s Council (an umbrella organization for 12 BC aboriginal women’s organizations) and the Canadian Association of Sexual Assault Centres. The appeal was brought by the Crown from the stay of proceedings ordered at the trial of Bishop O’Connor.
The coalition’s argument focused on the scope of disclosure of sexual assault complainants’ mental health records, arguing that disclosure of therapists’ records fails to take into account women’s equality rights under the Canadian Charter of Rights and Freedoms.
Court of Appeal decision
The Court of Appeal ruled that the evidence sought by Bishop O’Connor was not relevant either to an issue in the proceeding or to the competency of the complainants to give evidence. The decision on the law and process of disclosure was postponed because the issue was considered to be moot.
The Court of Appeal rejected the pre-trial order that the complainants should provide defence counsel with all records concerning sexual assault kept by counselors, therapists, psychologists and psychiatrists. Although the coalition argued that complainants’ medical records are never relevant in sexual assault cases, the Court held that in some instances this information may be admitted. However, the Court set out a strict two-stage procedure for determining when medical records can be disclosed and established guidelines for the application process.
This decision makes BC the only province in Canada with an authoritative and clear process for the disclosure of records. According to the decision, defendants are now be required to demonstrate that the records they seek are likely to contain information relevant to an issue at trial and that without them, their ability to make full answer and defence would be adversely affected.
Supreme Court of Canada decision
Bishop O’Connor appealed the decision to the Supreme Court of Canada and LEAF intervened, again in coalition with DAWN Canada, the Aboriginal Women’s Council, and CASAC.
The Supreme Court of Canada dismissed Bishop O’Connor’s appeal. The court established a two-step process for determining the admissibility of complainants’ therapeutic records, declaring that the trial judge must balance the privacy interests of complainants and third parties with the accused’s right to a fair trial.
In response to the Supreme Court of Canada decision, the Federal Government amended the Criminal Code (Bill C-46) to set out a procedure for disclosure of personal records, including medical records, in all sexual offence cases.
LEAF, including members of West Coast LEAF, was very much involved in the Department of Justice consultations leading up to the introduction of Bill C-46. Bill C-46 became law on May 12, 1997, and specifically requires a court to take into account women’s right to privacy and equality before the law.
Factum – Court of Appeal
Decision – Court of Appeal
Factum – Supreme Court of Canada
Decision – Supreme Court of Canada