M. (A.) v. Ryan [1997] 1 S.C.R. 157: -- Disclosure -- Counseling records -- Victim bringing civil action for damage allegedly caused by defendant's sexual conduct -- Defendant seeking production of psychiatrist's counseling records and notes -- Whether documents privileged

1996: October 2; 1997: February 6.

Present: La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Evidence -- Disclosure -- Counseling records -- Victim bringing civil action for damage allegedly caused by defendant's sexual conduct -- Defendant seeking production of psychiatrist's counseling records and notes -- Whether documents privileged -- Whether records and notes should be produced -- British Columbia Supreme Court Rules, Rule 26(11).

When the appellant was 17 years old, she underwent psychiatric treatment from the respondent R. In the course of treatment, R had sexual relations with her. He also committed acts of gross indecency in her presence. The appellant asserts that this conduct injured her and has sued R for damages. In order to deal with the difficulties allegedly caused by the sexual assault and gross indecency as well as other problems, the appellant sought psychiatric treatment from the respondent P. The appellant was concerned that communications between her and P should remain confidential, and P assured her that everything possible would be done to ensure that this was the case. At one point, the appellant's concerns led P to refrain from taking her usual notes. At the hearing before the Master of R's motion to obtain disclosure, P agreed to release her reports, but claimed privilege in relation to her notes. Counsel for the appellant was present. He supported P's objections to production, but did not assert a formal claim to privilege on behalf of the appellant. The Master found that P had no privilege in the documents and ordered that they all be produced to R. The British Columbia Supreme Court affirmed that decision. P's appeal to the Court of Appeal was allowed in part. The court ordered disclosure of P's reporting letters and notes recording discussions between her and the appellant. The disclosure ordered was protected by four conditions: that inspection be confined to R's solicitors and expert witnesses, and that R himself could not see them; that any person who saw the documents should not disclose their contents to anyone not entitled to inspect them; that the documents could be used only for the purposes of the litigation; and that only one copy of the notes was to be made by R's solicitors, to be passed on as necessary to R's expert witnesses.

Held (L'Heureux-Dubé J. dissenting): The appeal should be dismissed.

Per La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: The common law principles underlying the recognition of privilege from disclosure proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth. The common law permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate. It follows that the law of privilege may evolve to reflect the social and legal realities of our time, including the Canadian Charter of Rights and Freedoms. The first three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met in this case, since the communications were confidential, their confidence is essential to the psychiatrist-patient relationship, and the relationship itself and the treatment it makes possible are of transcendent public importance. The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation.

If the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust result, it must permit production to the extent required to avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure. An order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth. While a test for privilege which permits the court occasionally to reject an otherwise well-founded claim for privilege in the interests of getting at the truth may not offer patients a guarantee that communications with their psychiatrists will never be disclosed, the assurance that disclosure will be ordered only where clearly necessary and then only to the extent necessary is likely to permit many to avail themselves of psychiatric counseling when certain disclosure might make them hesitate or decline.

It is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. In order to determine whether privilege should be accorded to a particular document or class of documents and, if so, what conditions should attach, the judge must consider the circumstances of the privilege alleged, the documents, and the case. While it is not essential in a civil case that the judge examine every document, he or she may do so if necessary to the inquiry. A court, in a case such as this, might well consider it best to inspect the records individually to the end of weeding out those which were irrelevant to this defense, but the alternative chosen by the Court of Appeal of refusing to order production of one group of documents and imposing stringent conditions on who could see the others and what use could be made of them cannot be said to be in error and should not be disturbed.

The appellant's alleged failure to assert privilege in the records before the Master does not deprive her of the right to claim it. If the appellant had privilege in the documents, it could be lost only by waiver, and the appellant's conduct does not support a finding of waiver.

Where the doctrine of privilege applies, it displaces any residual discretion which might otherwise be thought to inhere in favor of the party claiming privilege. A two-step process which requires a judge to consider first privilege and then a residual discretion under Rule 26(11) would be redundant and confusing.

Per L'Heureux-Dubé J. (dissenting): Direct disclosure of all of the information shared in the course of therapy to defense counsel and professionals who are assisting the defense constitutes a very serious breach of the plaintiff's interests in privacy as regards these communications. While the plaintiff's privacy interests in the records may receive some protection under the doctrine of privilege, this is only to the degree they serve the greater purpose of promoting relationships sufficiently valued by the public. McLachlin J.'s approach to partial privilege is agreed with, but it cannot displace the residual discretion to order production of documents in a manner which effects an appropriate balance of the Charter values engaged in the appeal. The source of this discretion is a common law discretionary rule governing the exercise of powers established under the B.C. Rules of Court. Since the appellant has asserted her privacy interest in private records independently of her claim for privilege, it is necessary to determine whether this interest has received adequate attention.

The traditional common law approach to the power conferred upon the courts to order the production of documents for discovery in civil proceedings holds that all relevant documents which are not privileged must be produced. An alternative approach, that taken by the Court of Appeal in this case, is one which places an outer limit on this discretion, a limit which ensures that the discovery procedures not work injustice, even where a claim of privilege has not been successful and it appears that information in the document is relevant to an issue at trial. The latter approach is more consistent with the wording of the Rules governing discovery, the origins of the procedure, the common law discretionary rules governing information regarding non-parties, and the effect of the Charter on the exercise of common law and statutory discretion in civil proceedings. In any event, the court must ensure that the approach followed reflects an adequate balance of the values underlying the Charter.

As the records at issue here are of the same nature as those mentioned in O'Connor, the appellant has established a reasonable expectation of privacy in the records. Rather than having waived her right to privacy by instituting an action, the appellant has engaged a process where her reasonable expectation of privacy must be balanced against the society's need to ensure that such litigation be conducted fairly and effectively. The Charter-related value of a fair trial for all litigants, as a fundamental principle of justice, is also affected in such cases and must be balanced with the privacy interests of the appellant. The value of equality must further guide the procedure of discovery in tort cases involving sexual assault.

Given the distinguishing and shared features of the criminal and civil contexts for production of private records, the following procedure seems the appropriate one in the context of civil discovery. The party seeking production must notify those with an interest in the confidentiality of the records. Before a court may order production of private records to the defense for the purposes of discovery, it must first ascertain what documents are likely to be relevant to an issue at trial. In civil cases the required information will be provided by the affidavit of the party seeking the order. The court must then order production of the likely relevant documents to the court for screening and removal of any information which the court deems is not likely relevant or otherwise exempt from production given the balancing of the interests involved. A number of factors to guide in this evaluation are suggested. A judge may also ask the guardian of the documents for an inventory of those in his or her possession to assist in the screening process.

These additional procedures will not confuse trial judges. In many cases, such as the one before us, the privilege claim will be settled by the judge on the basis of affidavit evidence. Even where inspection may be required, the fourth branch of the Wigmore test should be applied to the documents as a whole. Once the privilege claim has been settled, the judge would then undertake the screening procedures described above to those documents which are not protected, provided their likely relevance has been established.

Here the Court of Appeal did not review the documents before ordering their production. By failing to screen private records in such cases, the court creates an impermissible hierarchy of Charter values, where interests in privacy and equality may be seriously affected for records or information which may provide very little if any benefit to the defense or be unnecessary to ensure the fairness of proceedings. The decision of the Court of Appeal should be set aside, except as regards the notes which were not disclosed, and the matter remitted to the Master for determination in a manner consistent with these reasons.

V. Privilege for Communications Between Psychiatrist and Patient

 The first requirement for privilege is that the communications at issue have originated in a confidence that they will not be disclosed. The Master held that this condition was not met because both the appellant and Dr. Parfitt had concerns that notwithstanding their desire for confidentiality, the records might someday be ordered disclosed in the course of litigation. With respect, I do not agree. The communications were made in confidence. The appellant stipulated that they should remain confidential and Dr. Parfitt agreed that she would do everything possible to keep them confidential. The possibility that a court might order them disclosed at some future date over their objections does not change the fact that the communications were made in confidence. With the possible exception of communications falling in the traditional categories, there can never be an absolute guarantee of confidentiality; there is always the possibility that a court may order disclosure. Even for documents within the traditional categories, inadvertent disclosure is always a possibility. If the apprehended possibility of disclosure negated privilege, privilege would seldom if ever be found.

 The second requirement -- that the element of confidentiality be essential to the full and satisfactory maintenance of the relation between the parties to the communication -- is clearly satisfied in the case at bar. It is not disputed that Dr. Parfitt's practice in general and her ability to help the appellant in particular required that she hold her discussions with the appellant in confidence. Dr. Parfitt's evidence establishes that confidentiality is essential to the continued existence and effectiveness of the therapeutic relations between a psychiatrist and a patient seeking treatment for the psychiatric harm resulting from sexual abuse. Once psychiatrist-patient confidentiality is broken and the psychiatrist becomes involved in the patient's external world, the "frame" of the therapy is broken. At that point, it is Dr. Parfitt's practice to discontinue psychotherapy with the patient. The result is both confusing and damaging to the patient. At a time when she would normally find support in the therapeutic relationship, as during the trial, she finds herself without support. In the result, the patient's treatment may cease, her distrustfulness be exacerbated, and her personal and work relations be adversely affected.

 The appellant too sees confidentiality as essential to her relationship with Dr. Parfitt. She insisted from the first that her communications to Dr. Parfitt be held in confidence, suggesting that this was a condition of her entering and continuing treatment. The fact that she and Dr. Parfitt feared the possibility of court-ordered disclosure at some future date does not negate the fact that confidentiality was essential "to the full and satisfactory maintenance" of their relationship.

 The third requirement -- that the relation must be one which in the opinion of the community ought to be sedulously fostered -- is equally satisfied. Victims of sexual abuse often suffer serious trauma, which, left untreated, may mar their entire lives. It is widely accepted that it is in the interests of the victim and society that such help be obtained. The mental health of the citizenry, no less than its physical health, is a public good of great importance. Just as it is in the interest of the sexual abuse victim to be restored to full and healthy functioning, so is it in the interest of the public that she take her place as a healthy and productive member of society.

 
It may thus be concluded that the first three conditions for privilege for communications between a psychiatrist and the victim of a sexual assault are met in the case at bar. The communications were confidential. Their confidence is essential to the psychiatrist-patient relationship. The relationship itself and the treatment it makes possible are of transcendent public importance.

 The fourth requirement is that the interests served by protecting the communications from disclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation. This requires first an assessment of the interests served by protecting the communications from disclosure. These include injury to the appellant's ongoing relationship with Dr. Parfitt and her future treatment. They also include the effect that a finding of no privilege would have on the ability of other persons suffering from similar trauma to obtain needed treatment and of psychiatrists to provide it. The interests served by non-disclosure must extend to any effect on society of the failure of individuals to obtain treatment restoring them to healthy and contributing members of society. Finally, the interests served by protection from disclosure must include the privacy interest of the person claiming privilege and inequalities which may be perpetuated by the absence of protection.

 As noted, the common law must develop in a way that reflects emerging Charter values. It follows that the factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values. One such value is the interest affirmed by s. 8 of the Charter of each person in privacy. Another is the right of every person embodied in s. 15 of the Charter to equal treatment and benefit of the law. A rule of privilege which fails to protect confidential doctor/patient communications in the context of an action arising out of sexual assault perpetuates the disadvantage felt by victims of sexual assault, often women. The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus placed in a disadvantaged position as compared with the victim of a different wrong. The result may be that the victim of sexual assault does not obtain the equal benefit of the law to which s. 15 of the Charter entitles her. She is doubly victimized, initially by the sexual assault and later by the price she must pay to claim redress -- redress which in some cases may be part of her program of therapy. These are factors which may properly be considered in determining the interests served by an order for protection from disclosure of confidential patient-psychiatrist communications in sexual assault cases.

 These criteria, applied to the case at bar, demonstrate a compelling interest in protecting the communications at issue from disclosure. More, however, is required to establish privilege. For privilege to exist, it must be shown that the benefit that inures from privilege, however great it may seem, in fact outweighs the interest in the correct disposal of the litigation.

 At this stage, the court considering an application for privilege must balance one alternative against the other. The exercise is essentially one of common sense and good judgment. This said, it is important to establish the outer limits of acceptability. I for one cannot accept the proposition that "occasional injustice" should be accepted as the price of the privilege. It is true that the traditional categories of privilege, cast as they are in absolute all-or-nothing terms, necessarily run the risk of occasional injustice. But that does not mean that courts, in invoking new privileges, should lightly condone its extension. In the words of Scalia J. (dissenting) in Jaffee v. Redmond, 116 S. Ct. 1923 (1996), at p. 1941:

It is no small matter to say that, in some cases, our federal courts will be the tools of injustice rather than unearth the truth where it is available to be found. The common law has identified a few instances where that is tolerable. Perhaps Congress may conclude that it is also tolerable. . . . But that conclusion assuredly does not burst upon the mind with such clarity that a judgment in favor of suppressing the truth ought to be pronounced by this honorable Court.

 It follows that if the court considering a claim for privilege determines that a particular document or class of documents must be produced to get at the truth and prevent an unjust verdict, it must permit production to the extent required to avoid that result. On the other hand, the need to get at the truth and avoid injustice does not automatically negate the possibility of protection from full disclosure. In some cases, the court may well decide that the truth permits of nothing less than full production. This said, I would venture to say that an order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth.

 In taking this approach, I respectfully decline to follow the all-or-nothing approach adopted by the majority of the Supreme Court of the United States of endorsing an absolute privilege for all psychotherapeutic records in Jaffee v. Redmond, supra. The Court of Appeals in the judgment there appealed from, 51 F.3d 1346 (1995), had held that the privilege could be denied if "in the interests of justice, the evidentiary need for the disclosure of the contents of a patient's counseling sessions outweighs that patient's privacy interests" (p. 1357). The majority in the Supreme Court, per Stevens J., rejected that approach, stating that to make confidentiality depend upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would be "little better than no privilege at all" (p. 1932).

 It must be conceded that a test for privilege which permits the court to occasionally reject an otherwise well-founded claim for privilege in the interests of getting at the truth may not offer patients a guarantee that communications with their psychiatrists will never be disclosed. On the other hand, the assurance that disclosure will be ordered only where clearly necessary and then only to the extent necessary is likely to permit many to avail themselves of psychiatric counseling when certain disclosure might make them hesitate or decline. The facts in this case demonstrate as much. I am reinforced in this view by the fact, as Scalia J. points out in his dissenting reasons in Jaffee v. Redmond, that of the 50 states and the District of Columbia which have enacted some form of psychotherapist privilege, none have adopted it in absolute form. All have found it necessary to specify circumstances in which it will not apply, usually related to the need to get at the truth in vital situations. Partial privilege, in the views of these legislators, can be effective.

 The view that privilege may exist where the interest in protecting the privacy of the records is compelling and the threat to proper disposition of the litigation either is not apparent or can be offset by partial or conditional discovery is consistent with this Court's view in R. v. O'Connor, [1995] 4 S.C.R. 411. The majority there did not deny that privilege in psychotherapeutic records may exist in appropriate circumstances. Without referring directly to privilege, it developed a test for production of third party therapeutic and other records which balances the competing interests by reference to a number of factors including the right of the accused to full answer and defense and the right of the complainant to privacy. Just as justice requires that the accused in a criminal case be permitted to answer the Crown's case, so justice requires that a defendant in a civil suit be permitted to answer the plaintiff's case. In deciding whether he or she is entitled to production of confidential documents, this requirement must be balanced against the privacy interest of the complainant. This said, the interest in disclosure of a defendant in a civil suit may be less compelling than the parallel interest of an accused charged with a crime. The defendant in a civil suit stands to lose money and repute; the accused in a criminal proceeding stands to lose his or her very liberty. As a consequence, the balance between the interest in disclosure and the complainant's interest in privacy may be struck at a different level in the civil and criminal case; documents produced in a criminal case may not always be producible in a civil case, where the privacy interest of the complainant may more easily outweigh the defendant's interest in production.

 My conclusion is that it is open to a judge to conclude that psychiatrist-patient records are privileged in appropriate circumstances. Once the first three requirements are met and a compelling prima facie case for protection is established, the focus will be on the balancing under the fourth head. A document relevant to a defense or claim may be required to be disclosed, notwithstanding the high interest of the plaintiff in keeping it confidential. On the other hand, documents of questionable relevance or which contain information available from other sources may be declared privileged. The result depends on the balance of the competing interests of disclosure and privacy in each case. It must be borne in mind that in most cases, the majority of the communications between a psychiatrist and her patient will have little or no bearing on the case at bar and can safely be excluded from production. Fishing expeditions are not appropriate where there is a compelling privacy interest at stake, even at the discovery stage. Finally, where justice requires that communications be disclosed, the court should consider qualifying the disclosure by imposing limits aimed at permitting the opponent to have the access justice requires while preserving the confidential nature of the documents to the greatest degree possible.

 It remains to consider the argument that by commencing the proceedings against the respondent Dr. Ryan, the appellant has forfeited her right to confidentiality. I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a license to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.

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