In Canadian sexual assault trials, a defence lawyer seeking a complainant’s private therapy or medical records must file a specialized statutory application under Sections 278.1 to 278.98 of the Criminal Code (the Mills regime) to convince a judge that these third-party records are highly relevant and necessary for a fair trial. In non-sexual offence cases, this process is governed by common-law O’Connor Applications.
Being accused of a sexual offence is an incredibly serious matter that can destroy your reputation and freedom. In many of these cases, the defence believes that the complainant’s private medical, psychiatric, or counselling records contain information crucial to proving the innocence of the accused. However, Canada places a massive priority on protecting the privacy of victims and encouraging them to seek help.
Because of this, defence counsel cannot simply subpoena a therapist’s notes. 🚨 For sexual offences, Parliament enacted a strict statutory regime under Sections 278.1 to 278.98 of the Criminal Code (the Mills regime, upheld in R. v. Mills) specifically to restrict and replace the common-law R. v. O’Connor rules. For other criminal trials, the common-law O’Connor framework still governs. Whether your trial is in Winnipeg, Halifax, or Regina, these applications balance the accused’s right to a fair trial against the third party’s fundamental right to privacy.
Step-by-Step Process for Accessing Third-Party Records in Canada
Accessing third-party records requires a strict, two-stage judicial process. If you are appearing in the Court of King’s Bench or a provincial court, here is how your law firm will proceed.
Step 1: Establishing Likely Relevance (Stage One)
Your lawyer must submit a formal written application outlining exactly what records they want (e.g., specific hospital records, psychologist notes) and why they are needed. The defence must prove to the judge that the records are “likely relevant” to an issue in the trial or to the competence of the witness to testify. You cannot go on a “fishing expedition” just hoping to find something useful.
Step 2: The Judge Reviews the Records (In Camera)
If the judge agrees the records are likely relevant, they do not hand them to the defence yet. 👀 Instead, the judge issues a subpoena to the hospital or therapist to bring the records directly to the court. The judge will then read the records privately in their chambers (known as an in camera review) to see what they actually contain.
Step 3: The Balancing Test (Stage Two)
After reading the files, the judge must apply a strict balancing test. They will weigh your constitutional right to make a full answer and defence against the complainant’s right to privacy and equality. The judge will consider whether releasing the records would cause severe psychological harm to the complainant or discourage others from reporting sexual assaults.
Step 4: The Final Ruling and Redactions
If the judge decides the records are absolutely necessary for a fair trial, they will order them released to your defence lawyer. ✂️ However, the judge will almost always heavily edit (redact) the documents, blacking out highly sensitive personal information that has nothing to do with the specific trial.
Understanding the Types of Third-Party Records
| Psychiatric & Therapy Notes | Highly protected under s. 278 of the Criminal Code. Exceptionally difficult to obtain as courts heavily protect therapeutic relationships. |
| Medical & Hospital Records | Also highly protected. May be released if the defence can prove the records relate to the complainant’s physical ability to recall the event. |
| Child and Family Services Files (CAS) | Frequently sought in historical abuse cases. Still requires the strict O’Connor/Mills framework to balance privacy and fair trial rights. |
How Much Does a Defence Lawyer Cost?
Running an O’Connor or Mills Application is incredibly time-consuming and requires highly specialized legal knowledge. 💵 If you are facing a sexual assault trial, standard legal fees often range from $15,000 to $40,000 CAD depending on the length of the trial. Adding complex pre-trial motions for third-party records will easily add several thousands of dollars to your legal bill.
How Long Does the Process Take?
Because multiple parties are involved-including the Crown, the defence, the record holder (like a hospital), and often independent counsel hired for the complainant-an O’Connor or Mills application can cause significant delays. Scheduling the hearings and waiting for the judge to review the records privately can delay the main trial by 3 to 6 months.
Frequently Asked Questions (FAQ)
Does the complainant get their own lawyer for this?
Yes. Under the Criminal Code, the complainant has the right to be represented by their own independent legal counsel during an O’Connor or Mills application to argue against the release of their private records.
What if the records are already in the hands of the police?
If the complainant voluntarily gave their medical records to the police, they are considered “first-party” records and are usually provided to the defence in standard disclosure. The O’Connor or Mills process only applies to records held by third parties (like a clinic or therapist).
Can I see the records once my lawyer gets them?
Typically, a judge will place strict conditions on the release. Often, the judge orders that the defence lawyer cannot give copies to the accused, and the accused can only review them in the lawyer’s office to prevent the files from being shared publicly.
Can the records be used to show the complainant is a liar?
Not generally. Canadian law strictly forbids using private records simply to attack a complainant’s general credibility or “twin-myth” stereotypes. You must show the records are relevant to a specific factual issue in the trial.
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