The decision by the divided Appeal Court underlines that therapy group sessions do not mitigate a medical professional’s confidentiality obligations, reaffirms that professionals may be relieved of the duty of confidentiality but only under specific circumstances, and provides guidance over the role the Charter plays in the application of the so-called Wigmore test which determines whether or not communications are privileged, according to criminal lawyers.
“No one is going to seek treatment if they know that every time they say something, it will be used against them,” noted Marie-Pier Boulet, a Montreal criminal lawyer who heads the Association Of Defense Counsel of Quebec. “Essentially, the Appeal Court wants to protect professional secrecy in a therapeutic setting. Just as we want to protect therapeutic privileges of complainants so that they continue to have confidence that their privacy will be respected, their right to therapy and their right to professional confidentiality, the accused too have that right. Otherwise, no one is going to get help.”
Montreal criminal lawyer Dylan Jones said the decision also draws attention to the importance of informed consent, particularly in situations where individuals believe that honesty and transparency are prerequisites for therapy. While health professionals can under certain circumstances released from their duty of confidentiality, Jones asserts they should inform patients from the outset of the process that this is a possibility.
“When you have people under the guise of confidentiality, inviting a person to give an entire story, knowing they may share it with authorities, without cautioning him, it’s extremely problematic,” said Jones, a partner with Boro Frigon Gordon Jones.
Olivier Chatillon was sentenced to 18 months in prison in 2021 after being found guilty of sexual assault by Court of Quebec Judge Serge Champoux. The 37-year-old voluntarily went to therapy in 2017 at the Institut de psychiatrie légale Philippe-Pinel, a Montreal psychiatric hospital, to treat drug addiction and sexual deviancy shortly after the sexual assaults. During therapy, Chatillon confessed that he sexually assaulted a child he was babysitting in two separate occasions during a two-week period. Health professionals then brought the matter to the attention of youth protection authorities, who in turn notified provincial police.
At trial Chatillon challenged the admissibility of his confession, filed a motion to exclude it as evidence, alleging a violation of sections 7 and 9 of the Charter, and argued that his confession was privileged under the Wigmore test. Judge Champoux rejected his arguments, and concluded that the medical professionals had an obligation to denounce the appellant’s behaviour to youth protection authorities in spite of professional secrecy obligations that characterizes therapeutic relationships.
The majority of the Quebec Appeal Court overturned the decision, concluding that the confession was privileged and inadmissible. Evidence revealed that Chatillon was never informed before making his confession that it could be used against him, pointed out Quebec Appeal Court Justice Martin Vauclair in Chatillon c. R., 2022 QCCA 1072, a decision issued on August 1st. Justice Patrick Healy concurred but Justice Robert Mainville did not.
“The majority judgment has the merit of confronting a delicate legal situation,” said Jean-Claude Hébert, a renowned Montreal criminal lawyer. “Justice Vauclair used the values inherent in the Charter of Rights and Freedoms, including the right against self-incrimination and the fair treatment of an accused, to set aside a person’s confession that was made as part of a therapeutic process.”
The majority of the Appeal Court also held that the trial judge erred in his analysis of the Wigmore test, which has come to govern the circumstances under which privilege is extended to certain communications that are not traditionally-recognized class privileges. Under the four-prong Wigmore test, the communications were shared confidentially with the assurance they would not be disclosed, that confidentiality is an essential element in maintaining a full and satisfactory relationship between the parties, that the relation must be one which in the opinion of the community should be assiduously maintained, and that the injury “inure” to the relation by the disclosure of the communications outweighs the benefit to be gained from a fair decision. The trial judge held that Chatillon’s confession did not pass the first and second criteria of the Wigmore test because he had both accepted to take part in group therapy and participated in the disclosure of his confession to youth protection authorities. The trial judge, while recognizing that the third element was met, held that the fourth or the one the Supreme Court of Canada said “does most of the work” was not satisfied either. In short, the trial judge held that Chatillon’s confession was not protected by privilege — a finding the majority of the Appeal Court overturned.
Justice Vauclair, in finding that the first three criteria of the Wigmore test were met, held that the possibility of disclosure to a third party does not “negate” the expectation of confidentiality. In examining the fourth part of the Wigmore test, Justice Vauclair noted that the SCC in M. (A.) v. Ryan, [1997] 1 S.C.R. 157 held that the common law must evolve to reflect new Charter values, and that the factors weighed under the fourth prong of the test for privilege should be updated to reflect the relevant Charter values. That is something that the trial judge did not do, held Justice Vauclair.
“It is undeniable that the fundamental Charter value of protection against self-incrimination must be considered in the exercise: ss. 7, 10, 11 and 13 of the Charter,” said Justice Vauclair. “Using confidential communications between a therapist and patient as the sole evidence of guilt certainly collides with Charter values.”
According to Boulet, that finding “reinforces” privilege afforded to individuals in a therapeutic setting because the Wigmore test has been updated to take into account the Charter’s fundamental rights. But it is not a free pass. Justice Vauclair also held that a health professional can be released from their obligation of confidentiality under certain circumstances, such as a when a child may be danger, as stipulated in the Quebec Youth Protection Act. The facts in this case revealed however that the child was no longer in danger. As a result his confession were privileged and inadmissible as evidence.
“It’s an interesting and tricky issue,” said Jones. “If you’re dealing with a certain type of clientele where what they are going to be discussing with the therapist or doctor has a high chance of criminal behaviour, then the cautions given to them should maybe be different than just a regular therapy meeting or regular doctor’s appointment. That’s clear from this decision.”
Justice Mainville would have rejected the appeal because he found that Chatillon consented to divulge his confession to provincial police when he signed a waiver, and as a result explicitly waived his confidentiality.
“The problem is that neither the form, nor those who advised him, notified the defendant of this implied waiver,” pointed out Hébert. “In short, the accused would have waived, without clearly knowing that he was waiving his protection against self-incrimination. Justice Mainville’s reasoning is weak and flawed.”
