Mills was charged with one count sexual assault and one count of sexual touching .On the day of the trial, the accused received a copy of the statement of the complainant LC. His counsel also obtained a partial disclosure of therapeutic records of the complainant that were in possession of a counselling organization. Counsel later sought to obtain records of the complainant that were held by a psychiatrist and a child and adolescents services organization.
The judge informed the parties that a bill C-46 was proclaimed into force and amended the criminal code and had effect of altering the manner in which documents were produced in sexual offences.
Counsel for the accused brought a constitutional challenge attacking the validity of those section introduced by bill C-46 .Counsel submitted that the sections violated ss 7 and 11d of the Canadian Charter of rights and freedoms. The trial judge agreed with counsel for the accused and ruled that the impugned provision were not saved by s 1 of the charter.
An appeal on this decision by the trial judge was litigated at the Supreme.
Dissenting
The CJ in his dissenting judgment opined that the duty of disclosure has always been premised on the presumption that material in the Crown’s possession has probative value. He stated that the Charter emphasized the right to a fair trial.
In his view the requirement bill-46 for the accused to prove relevance is a serious incursion on meaningful exercise on the right to make full answer and defense.
He found that ss. 278.3(3)(b) and 278.5(1)(b) violate ss. 7 and 11(d) of the Charter
The decision of the majority
The judges stated thus ‘The notion that consultation with a psychiatrist is, by itself, an indication of untrustworthiness is a more recent, but equally invidious, example of such a myth. The purpose of s. 278.3(4) is to prevent these and other myths from forming the entire basis of an otherwise unsubstantiated order for genre production of private records’