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Criminal Reports. Volume 44 (1996), p. 152-165.


The newspaper headline read: "Court rules against rape victims: Advocates shocked as judges give accused right to demand private counselling records." I Once again, members of the public are left with the impression that the Supreme Court of Canada has awarded the spoils of battle to the accused at the expense of sexual assault complainants. In this comment, I hope to demonstrate two critical points. First, in fairness to the court, it cannot be asserted that the court has afforded sexual assault victims less protection than other victims and/or witnesses who have legitimate expectations of informational privacy which they wish to assert as a shield to prevent public dis- closure of this information in the context of a criminal trial. Second, despite the best intentions of the court, its proposed resolution of the battle between full answer and defence and the complainant's privacy interests are fraught with pitfalls and shortcomings. Nothing short of legislative intervention can establish a meaningful and coherent framework for applications for production of sensitive/confidential material in the hands of third parties.

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