Advocacy group petitions to protect confidentiality of counselling records in sexual assault court cases

A petition addressed to the House of Commons is advocating for revisions to Section 278 of Canada’s Criminal Code, citing it as detrimental to sexual assault survivors and a breach of privacy.

Section 278 permits defense lawyers representing individuals accused of sexual assault to request access to the alleged victim’s confidential counseling records for use as evidence in court proceedings.

“It’s supposed to be a screening process that only permits records when they're necessary for the accused to get a fair trial,” explained UBC law professor Janine Benedet.

The defense would file an application to prove the records are relevant to the issue at trial and are important to the ability of the accused to make a full defence. A judge would make a decision on whether to grant the defence access to the private records.

“It’s not supposed to permit a fishing expedition, not to permit relying on stereotypes. Unfortunately, what we're hearing is that screening mechanism is not working as it should,” said Benedet.

Originally established in the 1990s to safeguard victim privacy, Section 278 is now criticized for potentially being exploited as an intimidation tactic by defense counsel. This misuse has led some survivors to withdraw their charges out of concern that their private counseling notes may be disclosed publicly.

Sex charges stayed after defence subpoenas therapy records

Tanya Couch, of Caledon, Ont., decided to walk away from a sexual assault case against her former military reserve commanding officer after the defence requested access to seven years’ worth of her counselling records.

“A court can order my safe records to be given over to someone who had harmed me,” said Couch.

In 2021, the Canadian Forces National Investigation Services filed three counts of sexual assault against Couch’s commanding officer, a former major with the Cadet Organizations Administration and Training Service.

The defence requested five sets of Couch’s records under Section 278 of the Criminal Code.

“It took me three months to get in to see a long term counselor after the sexual assault was reported. By then I couldn't function, I had taken time off work. The counsellor was trying to help me feel safe. I wasn't thinking about whether this would be something that would end up going to the accused. No one thinks that,” said Couch.

Ultimately, she decided to abandon the case over concerns of privacy and the prospect of her alleged perpetrator gaining access to intimate details contained within her counseling sessions.

She says the experience caused her to stop counselling, cutting off a line of support.

“It makes me feel like all this time my counsellor has been collecting evidence for the defence and it broke my trust,” said Couch.

Petition to the House of Commons

Couch's experience prompted her to co-found Survivor Safety Matters, an advocacy group that has initiated a public petition urging the House of Commons to amend Section 278.

Their goal is to stop individuals charged with sexual assault from obtaining their victims’ personal records. They believe the accused should be tried based on the evidence of the case, as gathered by police to support the charges that were laid. The petition states victim's personal records, unless part of the original evidence, are not relevant to the crime that was committed against them.

“We are calling on the Government of Canada to unconditionally protect the privacy of victims who report sexual assault. Bringing these records into the court process is undeniably harmful and is not conducive to creating a fair trial for both the accused and the victim,” said Alexa Barkley, co-founder of Survivor Safety Matters.

The petition remains open for signatures until May 12, requiring 500 endorsements for certification and presentation to the House of Commons.