R. v. Chisholm

R. v. Chisholm

The application was dismissed because the applicant failed to establish likely relevance for the therapeutic/counselling and child protection records—there was no case-specific evidence that counselling precipitated, shaped or refreshed the complainant's memory, no evidence that the child protection file contained relevant disclosures, and the interests of justice balancing did not warrant displacing the complainant's significant privacy interests; by contrast portions of the complainant's manuscript were ordered produced by consent.

Citation
2020 NSSC 364
Parties
Crown: Her Majesty the Queen; Accused: Bernard Herman Chisholm; Complainant: Complainant; Third Party: Department of Community Services, Nova Scotia; Third Party: MacGillivray Injury and Insurance Law Inc.
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
10 December 2020
Procedural Posture
Criminal S.278 Third Party Records Application / Pre Trial Application Under S.278.3 (judicial Review for Production to Judge)
Outcome
Application dismissed in part; request for therapeutic and child protection records denied; portions of complainant's manuscript to be produced by consent
Legal Topics
Section 278 Criminal Code, Third Party Records, Disclosure, Therapeutic/counselling Records, Child Protection Records, Likely Relevance, Interests of Justice Balancing
Source Language
English
Criminal Law Evidence Privacy Law Child Protection Law Procedural Law Section 278 Criminal Code Third Party Records Disclosure +4 more

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Parties

Her Majesty the Queen

Crown

Bernard Herman Chisholm

Accused

Complainant

Complainant

Department of Community Services, Nova Scotia

Third Party

MacGillivray Injury and Insurance Law Inc.

Third Party

Procedural Posture

Criminal S.278 Third Party Records Application / Pre Trial Application Under S.278.3 (judicial Review for Production to Judge)

Legal Issues

  1. 1 Whether therapeutic and counselling records are likely relevant under s.278.5(1)(b)
  2. 2 Whether child protection records are likely relevant under s.278.5(1)(b)
  3. 3 Whether production is necessary in the interests of justice under s.278.5(1)(c) and s.278.5(2)

Ratio Decidendi

The application was dismissed because the applicant failed to establish likely relevance for the therapeutic/counselling and child protection records—there was no case-specific evidence that counselling precipitated, shaped or refreshed the complainant's memory, no evidence that the child protection file contained relevant disclosures, and the interests of justice balancing did not warrant displacing the complainant's significant privacy interests; by contrast portions of the complainant's manuscript were ordered produced by consent.

Court Disposition

Application dismissed in part; request for therapeutic and child protection records denied; portions of complainant's manuscript to be produced by consent

Orders

  • Application for production of therapeutic/counselling records dismissed
  • Application for production of child protection records (Department of Community Services) dismissed