Disclosure and Production in Sexual Violence Cases: Situating Stinchcombe

Abstract

This article examines the issue of disclosure and the legacy of Stinchcombe through a review of the history of disclosure and production in criminal sexual assault proceedings and an analysis of judicial decisions and legislative enactments in this context. The author presents a feminist analysis of the tension between those representing the rights of accused persons who seek to access a complainant's personal records and the voices of equality-seeking and anti-violence groups that challenge stereotypes about sexual violence against women. The author presents a comprehensive review of the louver court decisions in production applications since the Supreme Court of Canada decision in R. v. Mills. The author concludes that while Bill C-46 and Mills are positive developments, a great deal of discretion is left to trial judges to decide on the merits of production on a case-by-case basis, and such decisions are granted much deference by appellate courts. The exercise of discretion may encourage the application of stereotypes about women and sexual violence and is the reason an absolute ban on production is preferred by women's and anti- violence groups.