Loading...
HomeMy WebLinkAbout1993-2035.Atkins&Taylor.96-03-22 -~ -'--- ~ 't'/ \...'" ~' , " IT\ .~ " , ../' - ONTARIO EMPLOYES DE LA COURONNE \ .5fvi''' '''! ,/ , , CROWN EMPI.OYEES DE L'ONTARIO \jl.i?, .' , ~ \ . ! 1111 GRIEVANCE COMMISSION DE ' J- ,T i' SETTLEMENT REGLEMENT 'c" :y c~ (), .......~\ '\'-' BOARD DES GRIEFS .," tJ V. \)\J ~ , ' 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2935/93, 2036/93 OPSEU # 93E806, 93E807 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Atkins/Taylor) Grievor - and - The Crown in Right of ontario (Ministry of Transportation) Employer BEFORE S Kaufman Vice-Chairperson FOR THE N Roland GRIEVOR Barrister & Solicitor FOR THE S Patterson EMPLOYER Counsel Legal services Branch Management Board Secretariat HEARING May 9, 1995 August 18, 28, 1995 September 26, 1995 october 13, 19, 1995 November 2, 3 , 1995 February 6, 1996 I t'~' / J ! .r""....... 1 - ! INTERIM RlJLING This case concerns the grievances of Ron Atkins and John Taylor against a 3-day suspension without pay and an assign- ment to temporary headquarters and subsequent rearsignments to a new work location It has been alleged that the grievors had sexually harassed a co-worker and that the employer's act~ons were therefore justified On the second day of hearing, while the complainant was testifying, union counsel asked employer counsel to provide a written prognosis and diagnosis of the complainant's condi- tion, from a qualified medical practitioner. The complainant had testified that she felt that her health and safety would be jeopardized if the grievors returned to the location at which she works She had been seeing a psychologist The employer sub~equently produced a written report from that \ psychologist, dated August 9, 1995 The p~ycho~ogist, Ann Dyer, Ph D , was called to testify at this hearing by the employer, and gave evidence-in-chief on October 19, 1995 At the conclusion of Dr Dyer's evidence-in-chief, counsel for the union requested an order directing her to produce the entire clinical record, including clinical notes, test results and interpretations, pertaining to the complainant, and sought an adjournment to prepare a review of the record Dr Dyer advised that the complainant had authorized her to speak, but not to release the clinical record The psycholo- gist and counsel for the parties had further discussions and it was left in their hands on that occasion to determlne whether there would be consent or opposit~on to the order requested No agreement was reached and the matter was argued on February 6, 1996 Prior to argument as to whether production of the clin~- cal record should be ordered, argument was made in Dr Dyer's presence as to whether it was appropriate for her to be pre- ~ /' , ~ 2 ! i sent during the argument regarding production Mr Roland's position was that her presence was inappropriate because he planned to make submissions as to the relevance of the docu- ments and the reasons or uses to which he expected to put them, ~ e he expected to disclose his probable line of cross-examination Mr Patterson submitted that Dr Dyer should be permitted to remain and hear the argument regarding production, to ensure that as a professional with responsibi- lities to her College, she could be certain that the case had ibeen thoroughly and carefully argued, to enable her to serve her patient's and the College's interests. I ruled that Dr Dyer would be excused during the argu- :ments regarding production The reasons for so ruling, not fully stated at the time, were: 1 The arguments I was about to hear and the con- text in which they were about to be made were simi- lar to a voir dire as to admissibility Ordinari- ly, the witness whose proposed evidence is being examined in a voir d~re as to admissibility is ex- cused from that process, and not permitted to hear the submissions, regardless of their occupational status or professional obligations There were no compelling reasons in this case to depart from that convention 2 If a witness whose professional records are the subject of contention as to production is per- mitted to hear the arguments and submissions as to production, slhe may be viewed as having been in- fluenced in hislher subsequent evidence by those arguments and submissions Thus, if slhe is ex- cluded from that part of the process, the integrity of his/her subsequent evidence is protected, and it cannot be argued that his/her evidence was influ- ) ,,") ) . ;>' 4 ~ tion She had testified as to her diagnosis of the complai- nant and had given her opinion as to cause and effect leading to that diagnosis The underpinnings of her opinions will be found in the clinical records, including diagnostic tests and procedures Further, where the employer has obtained and introduced the opinion of an "expert witness" with special expertise, the opposing side must be permitted to obtain the same data I upon which the employer's expert witness relied, ;Ln order to consult its own expert and assess the validity of the em- ployer's psychologist's opinion without production of the psychologist's clinlcal records, union counsel's ability to prepare cross-examination in order(to challenge the opinions expressed will be severely impaired Dr Dyer's evidence as to the "stressor", result:i,.ng in her description of the complainant's condition and her assessment of her needs, and resulting in the diagnosis she provided, which she acknowledged was problematic in relation to the criteria in the D S M for the diagnosis, point to the relevance of the clinical records in determining the accura- cy and reliability of the opinions and assessment Dr Dyer admitted to certain limitations in how she arrived at her diagnosis and assessment in her evidence-in-chief~ the union has the right to productlon in order to go behind her evi- dence The unlon lS not engaged in a fishing expedition Its request for production is a direct response to the evi- dence given The evidence disclosed that the complainant advised Dr Dyer about earlier personal problems Dr Dyer discounted the impact of those problems upon how the complainant pre- sents at this time, and their impact upon her veracity The evidence-in-chief provided glimpses of what Dr Dyer observed to Justify her oplnions and conclusions Her opinions and '.(~ I 1 ",' 5 i t conclusions were predicated upon the existence of certain external stressors The records are likely to contain information as to whe- ther or not the workplace was causal of the grievor's condl- tion apd whether other possible causes of her condition were not explored which should have been Privacy was waived when the employer called this witness and introduced her report, Should production be refused, one side will have been able to pick and choose which information in the clinical record is before the board and to hold back other information in the record That constitutes an extreme unfairness In that event, Dr Dyer's evidence should be strlcken, as the union will have been denled a fair and proper crosls-examina- tion, and therefore a full and fair hearing Mr Roland referred me to Vancouver Community College v Ph~llips, Barratt, (1987) 20 B C L R ( 2d) 289 (B C S C ) and the recent Supreme Court of Canada decision in Hubert Patrick O'Connor v the Queen, et al dated December 14, 1995 Employer counsel submitted that in these circumstances the board has certain alternatives, the first is the employer's preference a) make no disclosure Order regarding 'the clini- cal records; b) adopt a two-step process, wherein the complete file may be disclosed to the arbitrator, but the union must identify specific relevant tOplCS that it is seeking in the clinlcal records and only the relevant material will be produced to the board, thereafter, arguable relevance must be determined, as well as materiality; ~. ] . ~. 6 ? c) any order of full or part disclosure of the record should be subject to extremely rigorous controls due to its confidential nature Mr Patterson provided the following material relating to disclosure of clinical records and to disclosure general- ly Statutory Powers Procedure Act, R S 0 1990, c S 22, s 12, Mental Health Act, R.S.O. 1990, c. M. 7 , s 35, as amen- ded, Regulated Health Professions Act, 1991, S 0 1991, c 18, as amended, and Schedule 1, SSe 1 1, 3 and 41 1, Slavu- tych v Baker (1975), 55 D L R (3d) 224 (S C C ) ; R v Gruenke [1991] 3 S C R 263; R v Thurlow (1993), 24 C R (4th) 166 (Ont Ct Prov Div ) ; R v O'Connor [1994] B C J No 1116 (B C C A ) , R v Coon (1991), 74 C C C (3d) 146 (Ont ct Gen Di V. ) , Harrop v Markham Stouffville Hospital et al (endorsement November 1, 1993) ontario Division Court, R v S T.L [1992] o J No 2809 (Ont Ct Prov Div ) ; R v J W [1994 ] O~J No 1282 (Ont Ct. Gen Div ) ; R V. Dar- roch [1994] o J No 63; R v M C [1993] o J No 1130, De- cision of CNO Discipline Committee re J Qaqish - Disclosure of PSYChiatric Records, May 6, 1994; Decision of CNO Discip- line Committee re J Qaqish - Disclosure of Psychiatric Re- cords, August 15, 1994, R v Barbosa, unreported, Ontario Court (General Division) August 25, 1994; KLV v D G R (B.C C A ), Unreported, [1994] B C J No 1978, May 26, 1994, R v St~nchcombe (1991), 68 C C C ( 3d) 1 (S C C ) , R v Schoffer [1993] O.J. No. 816 (Ont Ct. Gen. Di v. ) ; R. v. Gin- gras (1992), 71 C C C (3d) 53 (Alta C A ) , R v Johnston (1991), 64 C C C (3d) 233 (Ont C A ) He submitted that the provincial legislature and the cases have recognized the societal interest ln, the reasons behind, and the importance of the protection of clinical records The cases examine the four conditions necessary to establish whether communications are privileged, found in Wigmore on Evidence, cited in Slavutych, supra ~j I I ,~ 7 I t ( 1 ) The communications must originate in a confi- dence that they will not be disclosed (2 ) This element of confidentiality must be essen- tial to the full and satisfactory maintenance of the relation between the parties ( 3 ) The relation must be one which in the opinion of the community ought to be sedulously fostered (4 ) The lnjury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation The cases indicate that the effect of non-disclosure of the records is overriden where the interest in confidentiali- ty is of sufficient weight . . I Law and publlC POllCY suggest tof'....,.4~ that such clinical records should be produced in proceedings " of the nature before this board only in the most extreme cases In Gruenke, supra, L'Heureux-Dube stated: Courts and legislators have also been prepared to restrict the search for truth by excLuding proba- tive, trustworthy and relevant evidence to serve some overriding social concern or judicial policy In Thurlow, supra, the court stated " to understand the issue in the balance, one must have some sense of why a sexual assaul~ or rape victim talks to a counsellor Sexual assault is unique As a society we are just beginning to un- derstand the profound and often permanent trauma experienced by victims of sexual assault Unlike almost any other crime, sexual assault generates in the victim a confused mixture of shame, fear, an- ger, shock, inhibition and pain This may result ln the victim being unwilling to disclose the as- saultive incident, particularly where ~he perpetra- tor could be a friend of family member; or someone in a position of trust or authority such as a tea- cher, physician or priest The victim may realize that in disclosing the assault, she will be expec- ted to submit to extremely close and pesonal scru- tiny The court in Thurlow also quoted with approval from the affi- davit of the executive director of the local Rape Crisis Line, which included the following: ,i,:, ...... 8 I ~ Victims need to know, need to be guaranteed that nothing would ever be disclosed to anyone about their abuse and constantly need reassu- rance that their identity will be protected .I believe there is a strong likelihood that the number of adults who seek follow up as- sistance would drop dramatically if we could not guaraptee confidentiality [The percen- tage of victims who report the incidents to the police] fluctuates with the information that is heard in the media about the conse- quences of reporting the intense media exposure given to the striking down of the Rape Shield Law discouraged many victims from reporting their abuse to the police I be- lieve that if victims of sexual assault heard that their file information could be accessed by defence counsel, they would no longer feel safe at the Rape Crisis Line These considerations are no less true for complainants in a harassment situ~tion In view of the provisions in the Human Rights Code and the collective agreement, I the employer does not wish to discourage complainants from seeking thera- py The possibility that the records of their therapeutic relationship may be accessed by the people who have harassed them could prevent complainants from seeking treatment The right of full reply should be balanced against the right to maintain the patient-therapist relationship The B C Court of Appeal in O'Connor, supra, devised a two-stage review process in considering the production of such records The standard of "likely relevance" the court adopted in O'Connor is somewhat higher than the "arguably relevant" test used before this board It is insufficient for the union to merely allege likely relevance, The B C Court of Appeal stated at p 4, supra While a liberal interpretation of the word "relevant" is to be encouraged, it is not to be encouraged without due regard for other legitimate legal and societal interests, including the privacy interests of complainants in sexual assault cases ~' ~ 9 ! This view is also applicable to the interests of complainants in harassment cases This board should not unnecessarily open the record of a person's life simply on the standard of arguable relevance The B C Court of Appeal in O'Connor rejected the standard of "possible relevance [of medical records] to the credibility of the complainant" as patently inadequate to justify their production, in the absence of evidence indicating that there is likely to be something in those records. relevant to the credibility of the complainant with respect to a particular issue in the case Invoking credibi- lity "at large" is not sufficient to justify such an interference with the privacy interests of a complainant It said the party seeking production must point at something specific In R v S T L., supra, the court indicated that the trifling possibility of relevance is not a sufficient standard for the party seeking disclosure of clinical records and that the proper test for the court to examine the records is "a reasonable expectation that the information is rele- vant" The court in S T L. engaged in the process of balan- cing the various interests lnvolved in the issue In R v J W , supra, the court indicated that cogent evidence of relevance is required The matters a trial judge is required to take into con- sideration in determining the admissibility of certain evi- dence ln sexual assault cases under s 276(3) of the Cr~m~nal Code are reflected in the policy issues found in the Mental Health Act and the Regulation Health Professions Act, supra \ In R v Coon, supra, the court looked, at one end of the scale, at the seriousness of the offence and the ramifi- ~. cations of the proceedlng for the accused, and at the other end, the complainant's right to privacy and dignity and to not have one's life laid bare There are cases in which the charge being faced is murder or sexual assault, where the complainant's dignity is of such significance that it tips ,. 'r:j" 10 t the scale against disclosure In this case, the penalty was a 3-day suspension, not the loss of a career or a prison term When you place the penalty imposed on the grievors on the scale against the complainant's right to privacy and dignity, the complainant's right should weight more heavily The employer's concern is to avoid further victimization of the complainant In R v Barbosa, supra, the court stated the pursuit of full answer and defence on behalf of an accused person should be achieved without in- discriminately or arbitrarily eradicating the pri- vacy of the complainant. Systemic revictimization of a complainant fosters disrepute for the criminal justice system The same concern is applicable to the arbitration system In Barbosa, the court emphasized the importance of balancing the competing interests Th~re is no need for the disclosure of the clinical records The union has had full opportunity to examine the complainant regarding the factual basis of her complaints, and has full opportunity to cross-examine the psychologist To permit the union to view the entire clinical record in the hope that it may find some incidents which may discredit tpe complainant or the psychologist is abusive and simply too broad Disclosure should not be ordered in these circum- stances If disclosure is appropriate, the union should ~entify the issues lt feels are relevant, the records should be pro- duced to the arbitrator, and the records should not be re- leased unless they meet the test of materiality and there is a likellhood of a miscarriage of justice if they are not re- leased, Further, if disclosure is appropriate, it should be made available subject to the strictest privacy provisions Access to the records should be limited, and access to the information in them should also be strictly limited, to pre- - - .. :.. 1 1 t vent any discussion of the details of the complainant's pri- vate llfe in the workplace Mr Roland replied that the union was forced to seek productlon of the clinical records owing to the employer's decision to call Dr Dyer as its witness and the evidence glven to date The possibility that the clinical records would be requested should have been considered before the employer called her to give evidence Nevertheless, it is entirely artificial to separate the psychologist's written and oral evidence The union wishes to examine tpe records of the complainant's statements, to impeach their reliabllity and the conclusions drawn from them The union is entitled to production of the clinical records Dr Dyer relied upon them in giving her evidence and the union should not be deprived of sn opportunity to review them and challenge her evidence Further, Dr Dyer made certain assumptions as to the reliability of the information she was receiving from her patient She indicated that the complainant saw her as a result of events which are central to this case, that she has explored that and reviewed or analyzed the complainant's past history, all of which laid the groundwork for her conclusions as to causation and diagnosis Her entire file will be relevant The clinical records are clearly relevant to an lssue in this proceeding Consequently, this board does not have to determine their relevance and can by-pass the first step of the process advocated by employer counsel At the second stage the court determines the materiality of the records and releases it subject to the determinations it makes as to materiality and subject to the limitations it deems approp- riate to impose The topics which the employer argues the union is oblig- ed to disclose in order to justify production have been ~-~~ >. .... 1 2 ~ raised by the employer in calling this witness with respect to the employer's suggestion that the arbitrator review the records and determine their relevance, the parties are in a better position than the arbitrator to determine their rele- vance The clinical record deals with all the issues in dis- pute in this proceeding In seeking production, the union is I attempting to make full answer and defence to evidence which is relevant, and is defending against evidence which the em- ployer presumably views as relevant The union is seeking production of any and all documents upon which Dr Dyer based or could have based the opinions she expressed in her evi- dence to date The union does not request disclosure of the clinical record indiscriminately or arbitrarily or because evidence of harassment complainants is inherently unsafe It makes its request on the basis of the evidence provided by the complai- nant, and does not intend to revictimize the complainant It is prepared to accept certain limits on the sharing of the information in the records with the grievors It does not seek to provide the grievors a copy of the records or to read them to them verbatim It wants to be able to ch~ck the sub- stance of the records with the grievors, without disclosure of their contents to the grievors, and to disclose the records to its own psychiatrist The employer's cases are distinguishable from the one before this board The recent Supreme Court decision in O'Connor, supra, was decided on appeal from the B C Court of Appeal decision upon which the employer relied It is the Supreme Court's decision which should be given the most defe- rence Consideration should also be given to Sopinka J 's comments with respect to stereotypical and anachr9ristic myths impacting upon production of clinical records v <5' 13 t The Board's Considerations: The material supplied by counsel indicate that over the past approximately 15 years, the matter of the production to defense lawyers of clinical and other records compiled by psychiatrists, psychologists, social workers, rape crisis and sexual assault centre staff, and other counsellors has been carefully considered and developped by various courts, prima- rily in criminal law proceedings There has been some uncer- tainty as to when and whether those records will be produ- cible The opinions of the majority of the Supreme Court of Canada (L'Heureux-Dube, La Forest, Gonthier, McLachlin, Cory and Iacobucci) in O'Connor v R et al , supra, are the la- test and most compelling expression of the public interest and judicial considerations surrounding the production of I private or privileged documents or records in judicial pro- ceedings The variations in the decisions of the members of that court in that approximately 163-page decision reflect that the most highly regarded jurists in this country differ as to precisely how this issue should be approached Although the proceedings before me are administrative rather than criminal, the public policy considerations exa- mined in O'Connor are worthy of consideration in the labour relations/workplace context of this dispute L'Heureux-Dube J. , writing for the majority, at p 41, stated the principles and guidelines outlined herein are equally applicable to any record, in the hands 1 of a third party, in which a reasonabl~ expectation of privacy lies She identified and discussed the competing constitutional rights at issue regarding the production of such records as a) the right to a fair trial (p 45) b) the right to privacy (p 47) c) the right ~o equality without discrimination(p. 54) She indicated that in the context of criminal proceedings the constititional guarantee of the right to a fair hearing in- " ,,:. I 4 ! eludes the right to make full answer and defence, but "the most favourable procedures imaginable" are not necessarily part of the guarantee She remarked, at p 45 The principles of fundamental justice vary accord- ing to the context in which they are invoked She noted, ln her discussion of the right to privacy, at p 48, supra, that the right to security of the person encom- passes the right to be protected against psychological trau- ma She observed that the stigmatization and loss of privacy and psychological trauma experienced by the accused in crimi- nal proceedings is also potentially experienced by sexual assault complainants I agree with that observation and find it also applicable to persons who allege that they have been victims of harassment, particularly sexual harassment, in the workplace Depending upon the individual, there may be no less psychological trauma and loss of privacy experienced by victims of harassment as well as those accused of harassment, in the determination of whether the harassment alleged has occurred and other matters which may flow from the alleged harassment L'Heureux-Dube J also remarked that complainants must contemplate the threat of disclosing to the very person accused of assaulting them i,n the first place, and quite posssibly in open court, records containlng intensely prlvate aspects of their lives, possibly containing thoughts and statements which have never even been shared with the closest of friends and family Those observations apply equally to complainants of sexual harassment in the workplace L'Heureux-Dube J expressed the view that the right to liberty in s , 8 of the Charter includes the right to be free from unreasonable search and seizure, and that an essential component of what it means to be free includes respect for individual privacy She incorporated the views of Cory J in . ~... 15 t \ Hill v Church of Scientology of Toronto, [1995] 2 S C R 1130 at page 51 of her decision reputation is intimately related to the right to privacy which has been accorded constitututional protectlon In this case, the reputations of both the complainant and the grievors are at stake At this stage of the proceeding, it is the complainant's interest in maintaining her privacy that the employer legitimately seeks to defend The board must also be mindful of the grievors' privacy rights However, the therapeutic records and personal histories of the grie- vors have not beep put in issue to this point L'Heureux-Dube J observed at p 52, supra,' that "priva- cy can never be absolute" and "must be balanced against legi- timate societal needs" She observed that "the greater the reasonable expectation of privacy and the more significant the deleterious effects flowing from its breach, the more compelling must be the objective and the salutary effects of disc+osure of private records to justify inte~eference with this right", and said that in deciding whetper such re- cords should be produced, the degree of expectation and the significance of the deleterious effects must be balanced against the objective and the salutary effects of disclosure The process of determining whether disclosure of records in sexual harassment cases is warranted has already been seen by this board as a balancing of interests In B,asso (May 16, 1991) Kaplan (cited in Wharton, 2345/93 (Mikus) at p 4) , which dealt with the grievance of certaln employees discip- lined in respect of alleged harassment, Vice-Ch~ir Kaplan stated On the one hand it is necessary to ensure that obstacles to harassment complaints not be created It is essential that complainants feel free to complain, and that witnesses feel free to testify On the other hand, we must also ~nsure procedural fairness for a grievor seeking review 'of discipline .. ~... I 6 t in cases of this kind, and that is the objective or (sic) our disclosure order However, the Basso decision appears to have compelled the disclosure of documents underlying the investiga~ion of the complaint, and does not appear to have dealt with disclosure of complainant's clinical records in the hands o~ a third party The latter appears to be an "emerging issue" before this board In O'Connor, supra, L'Heureux-Dube J noted I The essence of privacy, however, is that once invaded, it can seldom be regained This observation applies equally to the complainant and the grievors in this case The grievors' reputation and privacy have arguably been damaged/invaded by the allegations and the actions of the employer in response They seek to regain their reputation in this process In their case, the horse is already out of the barn This board can at this point only guard against unnecessary and unjustifiable .invasion of the complainant's privacy, mindful that once violated, it can seldom be regained L'Heureux-Dube J said at p 53-54, a "reasonable system" of "pre-authorization" is required "to justify court-sanctioned intrusions into the private records of witnesses in legal proceedings", because the disclosure of such records displaces the reasonable expectation of privacy, and is an invasion of the individual's dignity and self- worth She also observed, at p 55, that disclosure rules or practices which make mental health or medical records routinely accessible in sexual offence proceedings will have disproportion- ately invasive consequences for women, particularly those with disabilities, and children and that in addressing disclosure the courts must take care not to create a class of vulnerable victims who have to choose between accusing their attackers and maintaining the con- fidentiality of their records " 17 t She said that ..a legal system which devalues the evidence of complalnants to sexual assault by de facto pre- suming their uncreditworthiness would raise . concerns (emphasis in original) that the complainants' s 15 Charter rights, to equality be- fore the law and the right to equal protection and benefit of the law without discrimination, was being violated She cau- tioned, at p 56 Routine insistence on the exposure of complainants' personal backgrounds has the potential to reflect a built-in bias in the criminal justice system against those most vulnerable to repeat victimiza- tion Such requests, in essence, rest on the assumption that the personal and psychological backgrounds and profiles of complainants of sexual assault are relevant as to whether or not the com- plainant consented to the sexual contact, or whe- ther the accused honestly believed that she consen- ted Although the defence must be free to demon- strate, without resort to stereotypical lines of reasoning, that such information is actually rele- vant to a live issue at trial, it would mark the triumph of stereotype over logic if cou~ts and lawyers were simply to assume such relevance to exist, without requiring any evidence t9 this ef- fect whatsoever. (emPhasis in original) She noted that in cases in which private files were sought by the defence in situations not involving sexual as~aults e g murder and assault, requests for the disclosure of files which might have enabled the defence to impeach the credibi- lity or establish the propensities of certain witnesses were declined, notwithstanding the seriousness of the offences Rather than assuming relevance, she said, the courts conclud- ed in one case that the request amounted to a fishing expedi- tion, and in another the "contents of the file were characte- rized as hearsay, as potentially based on unfounded allega- I tions, and as generally irrelevant". She concluded that the credibility and privacy rights of sexual assault complainants should be treated no differently than the credibility and privacy rights of witnesses in other offences She stated at p 58 that , 'i' ~ J 8 t a privacy analysis creates a presu~ption against ordering production of private records, but ample and meaningful consideration must~ be given to complainants' equality rights under the Charter when formulating an appropriate approach to the production of complainants' records These remarks should be born in mind when the production of clinical records of complainants in sexual harassment cases is requested It should be noted that where it is suggested that the acts alleged did not occur at all, or occured with consent and/or the complainant's conduct was such as to in- vite some or all of the behaviour now complained of, such posltions bear some parallels to the defences of consent or the honest belief of consent in sexual assault cases L'Heureux-Dube J was of the view that in determining whether production should be ordered, the competing interests of privacy and equality and the right to full ans~er and de- fence must be balanced so that they co-exist rather than any of them trampling upon the other At this point in the decision, she was discussing the criteria which would permit the court to consider whether to order production of the sought-after documents to the court, rather than to the parties, for further consideration at the second stage of the process She said that the applicant must show that the use of "State power to compel production is justifiediin a free and democratic society" in order to violate the privacy rlghts of others. In providing guidance to courts, L'Heureux Dube J said, at p 60-61, that when the following criteria are met, the use of compulsory production of private records will be justified in a free and democratic society 1 the information sought cannot be obtained by any other reasonably available and effectlve alternative means; 2 the production ordered is as limited as rea- sonably possible to fulfil the right to make full answer and defence, .- ~ 19 t 3 the argu:ments in support of production must rest upon permissible chains of reasoning, rather than upon discrimlnatory assumptions and stereotypes; 4 there is proportionality between the salutary effects of production on the accused's right to make full answer and defence as compared with the deleterious effects upon .the party whose private records are being p~oduced She said, at p 63, that where records are sought at the hearing, the judge should follow a two-stage approach. The applicant seeking production initially "must demonstrate that the information contained in the records lS likely to be relevant either to an issue in the proceedings or to the com- petence to testify of the person who is the subject of the records" (emphasis added) Where the information in the re- cords does not meet this initial threshold of relevance, a production order should not be made The decision of the minority of the Supreme Court of Canada in O'Connor concurred in the use of a two-step process to determine whether confidential records should be ordered, and concurred that at the first stage, a determination should be made as to whether the records should be produced to the court Lamer C J and Sopinka J disagreed with the majority as to the appropriate standard or threshold the applicant must meet to persuade the court to order production to the court at the initial stage At p 65 of the decision of the majority in O'Connor L'Heureux-Dube J stated the view of the minority, that the standard of "likely relevance"' should not be interpreted as an onerous burden and indicated why that view is not appropriate ln criminal proceedings She did not dispute that the minority's standard would apply in a CiVll proceeding I would begin by notlng that Carey arose in the context of a civil action in which neither the right to full answer and defence nor any constitu- tlonal right of privacy were engaged, it therefore has no application here ! ------- -- " 20 t The Chief Justice and Sopinka J stated at p 12 of their minority decision in O'Connor that the "likely rele- vance" test should be confined to the question of whether the right to make full answer and defence is implicated by information contained in the records Moreover, a judge will only be in an informed position to en- gage in the required balancing analysis once he or she has had an opportunity to review the records in question They said that at the stage of determining whether the re- cords should be disclosed to the court, the test of "rele- vance" is whether the information "may be useful to the de- fence" They described that as a lower threshold and, at p 14, described it as simply a requirement to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming' requests for production If the initial test of relevance is met, L'Heureux-Dube J stated, at p 63 the court must weigh the positive and negative con- sequences of' production in order to decide whether and to what extent production should be ordered At each stage counsel for all interested parties should be permitted to make submissions She described the above procedure as a second stage which has two parts (p 71) The "salutary and deleterious effects of ordering production of the records having regard to the accused's right to make full answer and defence, and the ef- fect of such production on the privacy and equality rights of the subject of the records" must be balanced by the decision- maker in determlning, at that stage, whether the records should be produced to the court for inspection She also said that claims of relevance should be carefully scrutinized "in a manner sensitive to the therapeutic context and the nature of the records created in that context" to avoid the danger that "records having no real relevance will be pro- ~ ;,'!' 21 ~ duced, the search for truth frustrated, and the rights of complainants needlessly violated" (p 69) She also said that "in borderline cases the judge should err on the side of production to the court" and will guard the witness's privacy to the best of his or her ability (p 72) L'Heureux-Dube J acknowledged at p 72 that. the minori- ty did not share her view as to the need to balance these intrests in the process of determining whether production to the court is warranted The Chief Justice and Sopinka J stated at p 11 of their dissenting decision that that balancing should be undertaken only after th~ test of likely relevance has been met and after the documents hav~ been ordered produced to the court McLachlin J , concurring with the decision of the majority, stated that the Charter guarantees not the fairest of all possible trials, but rather a trial which is fundamental~y fair R r Harrer, [1995] S C J No 81 (File No 24141) What consitutes a fair trial takes into account not only the perspective of the accused, but the prac- tical limits of the system of justice and the law- ful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suf- fered. Perfection in justice is as chimeric as perfection in any other social agency What the law demands is not perfect justice, but fundamen- tally fair justice Conclusions: A) Stereotypes underlying requests for disclosure In most cases of alleged sexual harassment, the complai- nant will be a woman and the alleged harasser a man In such cases, the rationale behind the request for production of clinical records pertaining to the complainant can easily be subjected to the allegation that it is founded upon sexual --.------ " '(il 22 t stereotypes of female victims, without a specific foundation for that allegation Without a specific foundatlon, a board of arbitration must bear in mind that sociological feature of the dispute and approach the request for production by consi- dering the evidence heard up to the point of the request and the submlssions supporting the relevance of the documentation requested and whether disclosure may be justified, and with- out viewing the documents at this stage, base its decision upon the information and rationale provided by both parties' representatives, rather than on submissions that the request is tainted by being predicated upon stereotypes As well, it must be born in mind that at this point, the contents of the records in question are in the hands of a third party, Dr Dyer, and not known by counsel for either party and therefore the submissions of both parties necessarily suffer from the disadvantage of being somewhat speculative B) The Wigmore Test: I conclude that the clinical records pertaining to the complainant meet the following requirements of the Wigmore test ( 1 ) The communications must originate in a confi- dence that they will not be disclosed ( 3 ) The relation must be one which in the opinion of the community ought to be sedulously fostered. It was not argued that disclosure would harm the speci- fic relationship between the complainant and her psycholo- gist As a result, some question remains as to whether the second requirement of the Wigmore test has been satisfied (2 ) This element of confidentiality must be essen- tial to the full and satisfactory maintenance of the relation between the parties However, it was not particularly disputed between the parties that the records ordinarily fall within the description, as . ~ 23 t therapeutic records, Df those in which a reasonable expecta- tion of priva~y lies The fourth element of the Wigmore test ( 4.) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation cannnot be fully and meaningfully determined in this case without knowledge of the contents of the records C) Further Applicable Law and Procedure: The majority and the minority decisions of the Supreme Court of Canada in O'Connor agree that in deference to and in furtherance of the privacy rights of alleged victims and their confidential relati9nships with their therapists, courts should adopt a cautious approach to requests for production This caution should be exercised through the use of a two-step process The party seeking production of re- cords in the hands of third parties should seek production initially to the court, rather than to the partie? or their representatives, for the court's inspection and further con- sideration as to relevance and the balancing of the various interests, before the court makes a further deciston as to what, if any, portions of the records will be produced to the parties, and if any, under what circumstances they may be re- viewed and used They agree that in view of the sensitive nature of confidential documents, particularly clinical re- cords, the conflicting rights of the victims and the accused, and the societal interest in limiting any invasions ~nto an alleged victim's privacy, production to the court should only be ordered where the court concludes that the doc~ments are likely to be relevant and the circumstances cause it to be reasonable in a free and democratic society to violate that privacy right with such an order They agree that if the court determines that the records meet the initial threshold test justifying production for inspection to the court and orders production, the parties and the person whose privacy i ~. 24 t interest is affected are entitled to notice of that decision and to make further representations as to whether it is jus- tifiable that any portion of the documents be viewed by the parties or their representatives, and if so, under what circumstances This board is mindful of a number of competing issues in this dispute over the production of the records in question a) the sensitive and private nature of the reco~ds of which the grlevors seek disclosure, b), the complainant's and the public's interest in protecting and fostering the patient-therapist relationship, which is predicated upon confidentiality, c) the seriousness of the allegations made against the grievors; d) the grievors' right to prepare a full and fair defense to the allegations; e) the labour-management community's interest in carrying out hearings of disputes of this nature with minimal intrusion upon the privacy rights of the complainant and the grievors, f) that community's interest in ensuring the f fairest hearing possible, while addressing those competing lnterests, g) that community's interest in ensuring that qom- plainants are not discouraged from bringing their complaints forward, h) the potential impact that this interim ruling I will have on future possible complainants and their therapists No findings have yet been made as to whether there has been sexual harassment in this case It is appropriate to bear in mind that sexual harassment in the workplace may have a different impact upon each victim In some cases the vic- tim experiences profound pain, embarassment and humiliation, " ~ 25 t I public and private, as well as the prospect of having to interact with the alleg~d harasser who may remain in the same workplace On the other hand, an employee who may have been wrongfully or mistakenly accused and determined by the em- ployer to have sexually harassed another employee is likely to experience similar pain, and public and private embarass- ment and humiliation, if not some ambivalence or opposition to remaining in the same workplace as the complainant At this stage of the proceedings, to determine whether the em- ployer's actions were justifiedl this board is engaged in a fact-finding exercise It has heard substantial evidence but has made no determination as to the credibility of either the complainant or the grievors or any other witnesses' and as to what occurred as between the complainant and the grievors \ The Grievance Settlement Board has the authority to or- der the production of documents under s. 48 ( 12 ) (a) and (b) of the Labour Relations Act, 1995, S 0 1995, C. 1 (formerly s 45 ( 8 1) , subpara 1 and 2 of the Labour Relations Act, R S 0 1990, C L 2), which provides (12) An arbitrator or the chair of an arbitration board, as the case may be, has power, (a) to require any party to furnish particu- lars before or during a hearing, (b) to require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing; The standard that is generally applied by this board in de- termining whether to order production of documents, including medical records, is that of "arguable relevance" Koonings/ Fromer 3483/92 etc (Stewart) , O'Brien 1948/93 etc (Finley) , Wharton 2345/93 (Mikus) Once the employer called Dr Dyer to testify and once she gave her evidence-in-chief pursuant to the complainant's - 26 I t partial consent "to speak", i e to testify, any right of privacy they wished to claim with respect to the clinical records was put at risk Vancouver Community College, supra Dr Dyer's opinions and observations expressed in her evi- dence-in-chief were in whole or in part based on her observa- tions and test results and other material contained in the clinical record To determine whether the action~ taken by the employer in respect of the grievors was justified or con- trary to the collective agreement or offended a fundamental principle of justice, this arbitration hearing is in the pro- cess of examining, among other things, the veracity of the complainant's allegations, her current psychological or psy- chiatric diagnosis and prognosis and needs for accomodation, if any, in the workplace A witness proferred as an expert with respect to any of these issues may not select which ob- servations and opinions s/he will share, but is ordinarily obliged, once s/he testifies, to disclose the entire basis of his or her opinion, i e the complete clinical record, and permit her opinions to be challenged through informed cross- examination, in order to enable the board to weigh and assess and determine whether to accept those opinions and observa- tions Further considerations with respect to th~ privacy and confidentiality of the records, their relevance, and the competing interests discussed above may, only in appropriate circumstances, llmlt that obligation An expert witness may be requested to attend a hearing before this board, in a summons issued by the board, at the request of either party and served upon him/her The summons may specifically request, by the insertion of appropriate words by the party requesting the summons, to bring to the hearing all books, records, documents, etc touching upon the matters in question in the proceeding Such a summons may serve as notice to the prospective witness that the clinical records may be subject to production The witness may then . .~ ~ 27 wish to consult with the party calling him/her as to the ad- visability of same and consult his/her own legal advisors Where the expert witness may object to or beiunable to consent to the disclosure of the records, the party request- ing the expert to testify should serve a summons and indicate in it that they are requested to bring the records underlying their evidence with them This will hopefully al~rt and in- vite the witness to disclose his/her position to the party calling them, which should then be disclosed to the other side at the earliest possible opportunity The issue of whether Dr Dyer had been so summoned was not explored in argument and the issue is not particularly material at this point These remarks are made with the intention of provid- ing guidance in future cases, to avoid delays The submissions proceeded informally on February 6, 1996 The Supreme Court of Canada has indicated that in pro- ceedings as to production of documents in which there is a privacy ~nterest to be protected, notice of those proceedings should be given to the party in possession of the records, and the person with a direct privacy interest in the records, in addition to the parties to the dispute As a matter of prudence, such notice should be given to those persons in proceedings before this board In keeping with the informal- ity of the proceedings before this board, the notice need not be in writing, dependlng on the circumstances, provided that the board receives as'surance from counsel that it has been 1 given I under,stand that the complainant was given notice of the request for production of the records made on October 18, 1995, within a reasonable period thereafter and that with her consent, counsel for the employer, rather than her own law- yer, represented her position when submissions were made on on February 6, 1996 I am satisfied that when I heard sub- missions on that date, all those entitled to notice that the board would be considering the issue were notified i ~ ~ 28 t The competing interests of the complainant and the grie- vors as well as the labour relations context requires this board to approach the issue of production of confidential re- cords with the caution and care described by the ~ustices of the Supreme Court of Canada The fact that this dispute as to productlon has arisen in a labour relations context rather than a criminal context does not suggest that any less cau- tion and respect for the competing interests of both parties should be used in dete+mining whether the records should be produced than was recommended by the Supreme Court of Canada in O'Connor While I recognize that such an approach will lengthen these proceedings, it must be recognized that this dispute has arisen between employees who are members of the same bargaining unit and who have an interest in seeing that their competing rights are respected in this process As well, how this determination is made will likely impact upon whether other complainants will wish to come forward in future In this context, it is important that the decision as to the requests for production of confidential records be made carefully, and be seen to be made fairly, without the appearance of arbitrariness, such that the employer and all members of the bargaining unit retain respect for the process I therefore conclude that this board should apply the two-stage approach described by the majority of the Supreme Court of Canada in O'Connor, with some modificatio~s in recognition of the fact that this is a civil proce~ding, and that these proceedings are intended to be informal I turn now to the first stage of the process At the point at which they are asking the board to order documents to be produced to the board, neither the applicant nor the responding party will necessarily have knowledge of the contents of the records, which have presumably remained private I conclude that the means by which an applicant can . '" t 29 ! demonstrate the relevance of confidential records in such circumstances is by reference to additional and/or alterna- tive facts of which it already has knowledge and which it intends to prove and/or by reference to the evidence given to that point, and to advocate that the records, to the extent that they likely deal with those facts or evidence, have a likely potential to shed light upon the issues predicated upon those facts I am supported in this conclusion by the remarks of the Chief Justice and Sopinka J at p 14 of their decision in O'Connor wherein they discuss prior Supreme Court of Canada decisions which commented upon the inability of the applicant to prove relevance of documents not seen prior to the application. They said, at p 15 the concern expressed in these cases applies with equal force in the case at bar, where the ul- timate goal is the search for truth rather than the suppression of potentially relevant evidence The proceedings before this board are civil proceedings The offence alleged has criminal overtones, but the actions of the employer, which are subject to review before this board in the context of this grievance, took place in a non- crimlnal, civil context, in the workplace In view of the remarks of L'Heureux-Dube J regarding the standard for production to the court in civil proceedings and the remarks of the minority, I conclude that the test that must be applied at this stage of the proceedings is that of "llkely relevance" as described by the minority decision of the Chief Justice and Sopinka J in 0' Connor, i.e whether the records "may be useful to the defense", in this case, the grievors I also conclude that for all practical purposes, that test of likely relevance and the test of arguable rele- vance used by this board, are indistinguishable -------- . ,., - ,,: 30 ~ Although these are civil proceedings and the test of "likely relevance" is somewhat lower than that set out in the judgment of L'Heureux-Dube J , in view of the potential inva- sion of the complainant's right to privacy, I agree with her view, that in determining initial relevance at the first stage of the process, "it cannot be assumed that such records are likely to be relevant" and that if the applicant fails to demonstrate that likely relevance, an appearance of a fishing expedition will arise and production should be refused How- ever, I agree with Lamer C J and Sopinka J that the burden of establishing likely relevance should not be onerous While the authorlty of an administrative tribunal is not entirely parallel to "State power" in a criminal proceeding, the legislature has empowered this board with a quasi-judi- cial authority to "require production" and thereby the poten- tial authority to violate privacy rights In my view, that authority should not be exercised lightly The decision of the majority in O'Connor indicated that to meet the threshold test for production of the records to the board, the board must be persuaded, through the consideration of 4 criteria that its use of its power to compel production is justified in a free and democratic society Although because this lS a civil proceeding, that threshold test may not be applicable, in my view the board should consider the 4 criteria in determining whether disclosure to the board is warranted with respect to the first criterion 1- the information sought cannot be obtained by any other reasonably available and effective alternative means, there does not appear to be any other reasonably available and effective means by which to obtain the information in Dr Dyer's records The information is unique to the confiden- tial relationship between her and the grievor, and could only possibly be obtained by means of a private investigator who ~, ~ . ti 3 1 ? undertook a study of the complainant's personal and social history Such an investigation has the potential of consti- tuting an even less discreet violation of the complainant's privacy than the production of the records to the board With respect to the second criterlon 2 the production ordered is ~s limited as rea- sonably possible to fulfil the right to ~ake full answer and defence, the entire clinical record has been requested, including test results In the absence of any indication that certain parts of the record have no bearing on these proceedings, and in the absence of an inventory of what the records contain, it is premature for the board to determine any limitations on production to itself, if it decides to order production With respect to the third criterion 3 the arguments in support of production must rest upon permissible chains of re~soning, rather than upon discriminatory assumptions and stereotypes; there have been no submissions by counsel for the grievors that would indicate that his request for productlon of the records is founded upon an assumption that the grievor, by virtue of being a female complainant, lS less than. creditwor- thy, or on an assumption that the existence of a therapeutic relationship signals that her testimony is unreliable It appears to be based on the nature and quality of certain aspects of the complainant's and Dr Dyer's evidence, which are unrelated to their sex or sexual stereotypes While there may be some concerns on the part of the employer that the request for production is fueled by discriminatory assumptions and stereotypes of the grievors, that is a matter that can be dealt with if the board directs production of the records for inspection by the board, and if production to counsel for the parties is ultimately warranted We are not at that stage yet. --.- - - ~ 0 ~ ~~ J~ t With respect to the fourth criterion 4 there is proportionality between the salutary effects of production on the accused's right to make full answer and defence as compared with the deleterious effects upon the party whose private records are being produced there is always a potential for harmful consequences where records in which an expectation of confidentiality was placed are ordered to be produced Complalnants and victims may decline therapy before litigation is resolved, and maintain an uncomfortable and unpleasant emotional state, with nega- tive impact upon themselves, the workplace and the employer The patient in therapy may lose confidence in the therapeutic process and discontinue it Therapists may be reluctant in future to maintain written records for patients caught in litigation, and their therapy may be less effective for the lack of a written record If the records are ordered pro- duced to the board, they can and will be maintained in a se- cure place and be viewed only by the board at this stage of the proceeding They may never be disclosed to c0unsel for the parties or anyone else, depending upon the outcome of the second stage of consideration Consequently, any salutary effect on the grievors' right to make full answer and defence if the records are disclosed only to the board remains to be seen There have been no submissions that the complainant would suffer any untoward effects if the clinical records were examined by this board There appears to be no lmmedi- ate benefit to the grievors if the board examines the clini- cal records I therefore conclude that the test of propor- tionallty is met In view of the foregoing, I conclude that the production of the records to this board in this case would constitute a limited violation of the grievor's privacy which is justified in a free and democratic society ,;~ .ij' ., ... ... .J ., t The next issue to be determined is whether the submis- sions and evidence heard to date establish a sufficient deg- ree of relevance of the records so as to justify their pro- duction to the board There is no requirement in the stan- dards established in O'Connor that union counsel identify each of the issues to which the records are relevant I am supported in that conclusion by the indication of L'Heureux- Dube J at p 77 that if, upon inspection, material is ~ound in the records "that is essential to the accused's ability to ij, even if it was not argued as make full answer and defence, a baSlS for production" that material should be disclosed She also remarked, at p 78 in some such cases, sensitivity to the complai- nant's privacy rights and security of the person might dictate that the plaintiff be given the option of withdrawing from the prosecution rather than facing production of the records in question In administrative proceedings such as these, in approp- riate cases, a complainant and/or employer counsel may have the option of withdrawing the evidence of an expert in whose hands rest records of a particularly sensitive nature The employer called Dr Dyer as its expert witness In doing so, it put her opinions, upon which it ostensibly relies, in issue in this proceeding Dr Dyer gave evidence as to her diagnosis of the grievor's current condition, which she acknowledged was somewhat at variance with the criteria in the D S M She also gave opinion evidence as to the eti- ology of some of the complainant's symptoms and ability to perceive and recall social interaction accurately Her opi- nions were based in part upon her understanding of the com- plainant's personal and social history If her understanding was ln error, or if she gave weight to certain aspects of that history and not to others, the opinions and conclusions that she stated in her evidence-in-chief may have been erro- neous and misleading It was.not disputed that in all proba- bility her clinical records contain her notes from her meet- ~ (~'" . 34 \ t ings and contacts with the complainant and others in the course of treating her, and test results and her interpre- tation of them, which formed the basis of her understanding of the complainant's history and symptoms and reliability as a witness, to which she testified I conclude, therefore, that the information in her records "may be useful" to coun- sel for the grievors and "implicates", in the words of the Chief Justice and Sopinka J , the grievors' right to make full answer and defence In view of the foregoing, I con-- elude that counsel for the grievors has satisfied the appro- priate test of likely relevance I therefore order Dr Ann Dyer to produce her complete original clinical records with respect to the complainant, including but not limited to all written notes, letters, papers, documents, tests, test results and interpretations, to the Registrar of the Grievance Settlement Board in a sealed envelope, where they will be kept in a secure place, for my inspection Dr Dyer may, of course, retain a photo- copy of the clinical records pending return of the originals This ruling has been written in a discursive manner to provide an understanding to the parties of the reasons behind it, and on the understanding communicated to me by counsel for the parties that it will be made available to counsel for the College of Psychologists of Ontario and th~t its contents will not be disclosed to Dr Dyer until after her evidence has been completed I believe at this point in the proceedings it will be useful for the parties, the complainant, and the College of Psychologists of Ontario to be aware of the approach approved by the Supreme Court of Canada in O'Connor, supra, to deter- mlne whether, after inspection and careful consideration of each document, dlsclosure to the party requesting same is warranted, and if so, under what terms and conditions I -.' " I ~ t~' -I;; 35 t therefore have provided a brief statement of that Court's recommended approach at the second stage, after production to the court has been ordered, in the attached Addendum After the clinical records have been produced to the board, the second-stage conslderations will be applied If any form or degree of disclosure of the records to the parties is ruled appropriate, the board will consider what limitations, if any, would be appropriate and effective in order to protect the privacy and integrity of the records The complainant and Dr Dyer or her representative, if any, and counsel for the parties, may request the opportuni- ty, after production of the records to the board, to make submissions as to these and any other matters of relevance in determining the matter, before a ruling at the second stage of the recommended process is made Dated at Toronto this 22nd day of March, 1996 .. ~_. . t..~~ ~ ,- (: ] t ADDENDUM TO INTERIM RULING L'Heureux-Dube J said at p 74 that if the court deter- mined that it was appropriate that the confidential material be produced to the court for inspection, having received and inspected the material, it should only order production of those "parts of the records that have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice or by the harm to the privacy rights of the witness or to the privileg- ed relation " She set out a "not exhaustive" list o'f factors at p 74-75 which should should be considered in deciding whether production is warranted ( 1 ) the extent to which the record is necessary for the accused to make full answer and defence, (2 ) the probative value of the record in question, ( 3 ) the nature and extent of the reasonable expectation of privacy vested in that record, (4 ) whether production of the record would be premised upon any discriminatory belief or bias; (5 ) the potential prejudice to the complainant's digni- ty, privacy or security of the person that would be occasioned by production of the record in question, (6 ) the extent to which production of records of this nature would frustrate soclety's interest in encou- raging the reporting of sexual offences and. the ac- qUlsition of treatment by victims, and (7 ) the effect on the integrity of the trlal process of producing, of failing to produce the recqrd~ having in mind the need to maintain consideration in the outcome She also stated, at p 77, that at this stage the court should lnquire into whether the issues to which the records are said to be relevant "are collateral to the real issues at trial" , and that as "the defence cannot pursue inconsisten- cies on collateral issues", production on collateral issues '. . i.!! ~.~ .i: ') i- ? does not advance its position and serves no useful purpose Consequently, she said, declining production of "information I relating only to collateral issues will not impair the ac- cused's right to full answer and defense" She stated that justice dictates production of material found by the inspec- ting court to be "essential to the accused's ability to make full answer and defence, even if this information was not argued as a basis for production". She stated, at p 78, that the court "should inspect each individual record for materiality", and "may, in certain cases, wish to hear submissions on whether the vetting of the records should be assisted by counsel for the complainant, or for the guardian of the records" She approved the review of the records in camera and keeping the records sealed and in the custody of the registrar, prohibitions on reproduction, and publication bans on such terms as are deemed appropriate, and keeping "all records produced to the court but not ultl- mately to the defence sealed and retained in the file in the event that they should need to be reviewed later" She sald In exceptional cases, the court may consider making an order prohibiting defence counsel from discuss- ing the contents of these records with the accused The Chief Justice and Sopinka J were of the view that the court's determinations as to the production of clinical records for the court's inspection and whether and to what extent disclosure should be permitted should be approached separately from the issue of admissibility of the records i~ the proceedings (p 13) They indicated that depending upon their temporal connection with the events in question; such records may be relevant to the unfolding of events leading to the complaint, the influence of therapy and other factors which bear upon the complainant's memory and quality of per- ceptlon of the events (p 17) They agreed that if the court was of the view at the first stage of the process that the .. I r ~ ~'4 .~ '" /ii .., .) t records were likely relevant and ordered them produced to the ! court, that the court should balance the competing'rights in question However, they limited their agreement to a consi- deration at that stage of the first five of the seven factors L'Heureux-Dube J recommended, and were of the view that the last two factors should be considered at the stage of deter- mining admissibility The Chief Justice and Lamer J said that at the second stage, in determining whether production should be ordered, the test should be higher, and that the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify , They stated that relevance to "an lssue at trial" includes "evidence that may be probative to the material issues in the case (i e the unfolding of events)" as well as "evidence relating to the credibility of witnesses" and the reliability of other evidence