2022 QCCA 1072, 2022 QCCA 1072

Unofficial English Translation of the Judgment of the Court Chatillon c. R. 2022 QCCA 1072 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTRÉAL No.: 500-10-007350-208 (455-01-016160-180) DATE: August 1, 2022 CORAM: THE HONOURABLE MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A. OLIVIER CHATILLON APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT ORDER OF NON-PUBLICATION The order of non-publication issued at first instance remains in force. [ 1 ] Olivier Chatillon (“the appellant”) seeks to appeal from a judgment rendered on June 1, 2020, by the Honourable Serge Champoux of the Court of Québec, District of Bedford.

The judgment convicts him on one count of sexual assault against a child. [ 2 ] For the reasons of Vauclair, J.A., with which Healy, J.A. concurs, THE COURT : [ 3 ] ALLOWS the application for leave to appeal; [ 4 ] ALLOWS the appeal; and [ 5 ] ACQUITS the appellant. [ 6 ] Mainville, J.A. would have dismissed the appeal on the basis that the appellant’s admissions were admissible. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. PATRICK HEALY, J.A.

Mtre Nicolas Lemyre-Cossette POITRAS FOURNIER COSSETTE AVOCATS For the appellant Mtre Maxime Hébrard DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: June 7, 2021

REASONS OF VAUCLAIR, J.A. [ 7 ] Olivier Chatillon (“the appellant”) wanted help. He knew he was suffering from a substance abuse problem and a sexual deviance problem.

He undertook a completely voluntary effort to receive care and, at the urging of the professionals from whom he was receiving treatment, admitted to his problems, which were crimes under the circumstances. [ 8 ] The question in this appeal is whether admissions the appellant made to the medical team regarding his criminal conduct were protected by privilege in the criminal law context and, accordingly, whether those admissions were admissible in evidence against him.

In addition to his notice of appeal, an application for leave to appeal was referred to this panel. [ 9 ] The trial judge found that the prosecution’s case could validly be based on the admissions the appellant made to the professionals who were assessing him. The parties agree, as they did in the court below, that the appeal and the verdict hinge on this point. [ 10 ] For the following reasons, I would quash the trial judge’s decision, declare the appellant’s admissions inadmissible in evidence, and acquit him. Background [ 11 ] The appellant had an addiction problem involving certain intoxicating substances.

In August 2016, he had a short-term relationship with a woman. At two distinct times while alone with her 4-year-old child, he committed sexual acts upon that child. [ 12 ] It is admitted that, during the first incident, he rubbed his penis on the child’s genitals while the child was sitting on his lap. Both he and the child were clothed, and the conduct lasted only a few seconds.

In the second incident, he covered the child’s eyes and placed his penis on the child’s tongue, also for a few seconds. [ 13 ] Those are the appellant’s crimes (“the crimes”). [ 14 ] In late August, his relationship with the woman ended for other reasons, and from that point forward, he no longer had any contact with her household. [ 15 ] Soon thereafter, he voluntarily undertook treatment for his substance addiction. This was not his first time in treatment. The treatment took several months and included detoxification and gradual rehabilitation.

In the course of his treatment, he discussed a possible sexual deviance problem with a physician, who referred him to the professionals at the Institut Philippe-Pinel (“the Pinel institute”). [ 16 ] The first professionals he met there—this was in May 2017—were criminologist Geneviève Ruest and psychiatrist Benoit Dassylva. Neither of them testified. [ 17 ] As part of the intake assessment at the Pinel institute, he spoke about everything, including the two incidents described above (“the crimes”), which had occurred nine months earlier.

He felt he was imparting information to health care professionals that was to be kept confidential and was protected by professional secrecy; this was confirmed, in his view, by his past experiences with other workers. He did not believe it necessary to specify that his statements were confidential. He is categorical that Ms. Ruest, the criminologist, never told him that the information imparted to her could be provided to the police. [ 18 ] A few days later, the appellant met with Dr. Dassylva, who he says was in possession of the criminologist’s report. They spoke about the crimes. Dr.

Dassylva did not specifically tell the appellant he had a duty to make a report to the Direction de la protection de la jeunesse (“Youth Protection”). From Dr. Dassylva’s comments, the appellant took it that Dr. Dassylva was emphasizing the opportunity to help the victim, that this was a therapeutic process, and that he needed to be honest and transparent. The appellant hoped to be admitted so he could get the help he wanted. He felt he needed to put his cards on the table, and agreed to contact Youth Protection, in much the same way as he took

part in testing, such as a penile plethysmography, to secure his admission to treatment. When questioned, he said he could not recall whether the police were mentioned at this meeting. [ 19 ] The appellant’s understanding from Dr. Dassylva’s statements was that admitting to his crimes was important for his treatment. He concedes he was never told outright that this was a condition for entering the treatment; his understanding stemmed from the requirements of honesty and transparency, necessary for the therapy, that the clinicians expected him to meet.

Still, the appellant wanted to be honest and transparent, as was required from him. [ 20 ] With respect to this point, the trial judge seems to have agreed with the appellant’s point of view when he testified that honesty and transparency help therapy work. He asked: [ translation ] Q. So it’s normal and unsurprising that they were telling you to be honest and transparent? Am I mistaken? In order for treatment to be meaningful in any way?

[ 21 ] The appellant explained that, once his crimes were admitted to, he was told he would have to get in touch with Youth Protection on his own to help the victim, so that it could be ascertained whether she was suffering from psychological after-effects and whether she should be offered services. [ 22 ] The appellant was directed to a doctoral candidate in psychology named Jo-Annie Spearson-Goulet (“Ms. Spearson-Goulet”), who took charge of him for a [ translation ] “group pre-admission” assessment for the group therapy she was leading with another therapist. The meeting was held on May 23, 2017. [ 23 ] Ms.

Spearson-Goulet has few specific recollections of the discussions with the appellant at this meeting as they relate to the crimes or to the anticipated disclosure to the DYP. Since she was not involved at the appellant’s intake, all she could state was that the [ translation ] “usual” practice was to inform [ translation ] “patients of the limits to confidentiality”. Aware of the admissions made at the intake meeting with Dr. Dassylva, she explained that she wanted to work with the appellant to determine how to disclose the matter to Youth Protection. [ 24 ] Ms.

Spearson-Goulet explained to the judge that she gave the appellant three [ translation ] “choices”: she could report the crime to the Director of Youth Protection (“DYP”), he could do so on his own, or they could do so [ translation ] “together”. She does not recall much from her discussions with the appellant at the time.

She believed she had a legal obligation to report the matter to the DYP. [ 25 ] The appellant was amenable to notifying the DYP, but says that at the time the phone call was made, he was unaware his statements would end up in the police’s hands because that question had never been brought up, even in the conversation with Youth Protection. After the phone call, he learned the DYP would be notifying the police, but he says he thought this was for the purpose of providing help to the victim. [ 26 ] Youth Protection caseworker Gabriella Landry (“Ms.

Landry”) testified that she did indeed receive the report and that, in her view, there were no grounds to believe the child was now in danger. She added that, whenever she receives a report of sexual abuse, she must make a report to the police. [ 27 ] The appellant repeated that the police were never brought up during the call, that he was never cautioned, and that he would absolutely have not said a thing had he known the disclosed information could be used to incriminate him. [ 28 ] The police received the report from the DYP on June 21, 2017.

Nothing much happened until March 2018, when the detective took the first step of communicating with Ms. Spearson-Goulet directly to obtain her notes from her interview with the appellant. She obtained the appellant’s authorization to give the police the notes containing his admissions. The authorization document, signed on March 20, 2018, is a rather generic institutional form authorizing the institution to send the Sûreté du Québec the [ translation ] “May 23, 2017, psychological progress notes”. [ 29 ] Ms.

Spearson-Goulet recalls little of her discussion with the appellant in which she followed up on the detective’s request. She says she received the appellant’s consent after explaining the request by the “detectives” that [ translation ] “we could send the note confirming the information which together we had given to Youth Protection.” She testified: [ translation ] We—well, we notified Mr. Chatillon that the detectives had contacted us about their request.

We explained to him that we had complied with professional secrecy and had not disclosed that this matter involved a patient, but that we had asked for authorization in the event that it was a patient… this involved some hypotheticals, but it’s how we managed to avoid difficulties. We explained to him that we could send the note confirming the information we had together given to Youth Protection. We asked him if he would be OK with signing an authorization for this purpose, and he signed one. After that, from what I remember, we showed him the note that would be sent along so he would know, but… that’s it.

I must admit that this is far back. [ 30 ] On the other hand, according to the appellant’s recollection, Ms. Spearson-Goulet asked him to sign to confirm he was the one who had made the declaration to the DYP. He was not cautioned at that time. He would not have agreed to sign if he had known the police would charge him. He was unaware of any of the authorities’ activities, and he continued to believe the victim needed assistance. Once again, he admits that he did not ask questions, because he trusted his therapists. [ 31 ] Ms.

Spearson-Goulet cannot say whether the appellant understood the consequences of sharing the progress notes with the police; rather, she responded with a generality, saying he knew the information would be passed on to the police officers. [ 32 ] Following his arrest, the appellant made no statements. The motion and trial judgment [ 33 ] At trial, the appellant challenged the admissibility of his admissions. He filed a motion to exclude evidence, citing infringements of sections 7 and 9 of the Charter .

The body of his motion contains arguments that rely on the Wigmore privilege test with a view to protecting his relationship with the professionals of the Pinel institute. [ 34 ] The trial judge rejected all his arguments: R. c. Chatillon , 2020 QCCQ 2044 . His analysis of several of the issues involved is rather cursory. [ 35 ] The trial judge devoted more attention to the analysis of the Wigmore privilege test as it relates to respect for professional secrecy.

In this analysis, he found that the professionals had a duty to report the appellant’s conduct to the DYP, despite the professional secrecy characteristic of therapeutic relationships. [ 36 ] The judge analyzed the Wigmore criteria, which are the following: (1) the communications must originate in a confidence that they will not be disclosed, (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation

between the parties, (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) theinjury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for thecorrect disposal of litigation. [37] The trial judge found that the circumstances do not meet the first and second parts of the test, primarily because the appellantagreed to participate in group discussions and took

part in the reporting to the DYP: Chatillon, supra at paras. 55–59. He acknowledgedthat the third part of the test was met: Chatillon, supra at para. 60. He then concluded that the fourth part was not met. He stated that theevidence does not support the contention that it is preferable to enable an abuser to seek help than to search for the truth in a criminaltrial. He also noted that nobody forced the appellant to disclose the crimes.

He considered the argument akin to [translation]““blackmail” setting the possibility of therapy with no charges against the prosecution of people who commit assault,” and opined thatthe dangerousness of the abuser needs to be neutralized: Chatillon, supra at paras. 64–69. [38] Based on this, the trial judge rejected the contention that the appellant’s admissions were privileged. [39] In the course of his analysis, the trial judge accepted as a question of fact that [translation] “Olivier Chatillon confessed to acrime before knowing there was an obligation to report it”: Chatillon, supra at para. 65. [Emphasis in the original.] [40] He stressed that, in his view, the DYP did not unlawfully refer the matter to the police, since the DYP itself had closed the caseinternally.

He wrote that, although the child was not in danger, the appellant could pose a danger to other children: Chatillon, supra atparas. 75 and 77. [41] The judge was no more sympathetic to the argument that the law compelled the appellant to incriminate himself. Since thatargument has not been raised on appeal, it need not be further addressed. [42] The trial judge also rejected the idea that the professionals were people in authority, because the appellant himself believed theopposite and thought the professionals would not report on him.

He was satisfied that the appellant’s consent to the police being sent hispsychologist’s notes in March 2018 was valid. In his opinion, the psychologist’s testimony [translation] “is very clear with regard to thecircumstances of his signature and consent”: Chatillon, supra at para. 100. THE APPEAL [43] This appeal raises three questions: 1. Did the trial judge err in fact and in law in his application of the Wigmore criteria to determine whether the accused’s statements wereprivileged? 2. Did the trial judge err in law in refusing to make a determination about the claimed violation of the right to silence? 3.

Did the trial judge err in fact in finding that the appellant freely and voluntarily consented to his statement being provided to thepolice? ANALYSIS [44] Exhibit R-1 contains the appellant’s admissions; in conjunction with Ms. Spearson-Goulet’s testimony, it constitutes the onlyevidence of his guilt. [45] When Ms. Spearson-Goulet sought to testify about the admissions, counsel for the appellant chimed in to point out that thecrimes are described in the note (Exhibit R-1) and are not contested. [46] In addition, Ms.

Spearson-Goulet testified that when she contacted Youth Protection, she provided the information contained inExhibit R-1 as regards the crimes. Since the appellant made those admissions to professionals he had already consulted, she said she feltthis information remained hearsay until the appellant approved or confirmed his statements to her.

Also, she said the appellant activelyparticipated in the reporting to Youth Protection, initially with his general permission and later by providing a few details directly to Ms.Landry, the Youth Protection caseworker. [47] The appellant’s guilt, then, is based on the confirmation of the admissions made to his psychologist Ms. Spearson-Goulet onMay 23, 2017, and recorded in the note filed as Exhibit R-1. [48] Unlike the trial judge, I am not satisfied that the child was in a situation of endangerment.

Consequently, the professionals whowere consulted were not under a legal obligation to disclose the crimes to the DYP. In fact, Ms. Landry testified that there was noendangerment (appellant’s factum at 183) and Spearson-Goulet testified that [translation] “once there is no contact with… and the familyis not involved and there is no contact with the child, the DYP no longer needs to be on the case.” (Appellant’s factum at 100). Nor am Isatisfied that the law required the DYP to report to the police. In fact, Ms.

Landry testified that she is unable to provide a basis for anyobligation to do so (appellant’s factum at 182-183). [49] However, the admissibility of the admissions and therefore the outcome of this appeal do not depend on the findings regardingthe subsequent actions of the professionals, so I will consider the privilege claimed by the appellant, which he argues prevents theadmissions from being admitted in evidence. [50] It is not disputed that the approach propounded by Professor Wigmore is in issue in this case: J.H. Wigmore, Evidence in Trialsat Common Law, vol. 9 (Toronto: Little, Brown, 1961) at para. 2285.

As I note in paragraph [30] of these reasons, the trial judge wentover the [translation] “Wigmore criteria or test”: Slavutych v. Baker, (SCC), [1976] 1 S.C.R. 254; R. v. Gruenke, (SCC), [1991] 3 S.C.R. 263 at 282.

[51] Dealings between a patient and his or her physician, psychiatrist, psychologist, or therapist may be subject to a case-by-caseprivilege: R. v. McClure, 2001 SCC 14 , [2001] 1 S.C.R. 445 at para. 29. [52] The burden is on the party relying on the privilege to show that all the factors or criteria necessary to its application are met: R. v.National Post, 2010 SCC 16 , [2010] 1 S.C.R. 477 at para. 64; R. v. Gruenke, (SCC), [1991] 3 S.C.R. 263 at293. [53] In my opinion, the trial judge erred in his analysis of the first two criteria of the test, which he found are not satisfied.

Firstly, heconcluded that the appellant disclosed his crimes before knowing the therapists might send the information to a third party, namely theDYP. Then, he found that the appellant’s involvement in group therapy negates any expectation of confidentiality. However, thepossibility that evidence was disclosed to a third party does not necessarily rule out a breach of confidence: M.(A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157 at para. 24; R. v. S.(R.) (1985), (ON CA), 19 C.C.C. (3d) 115 at 131 (Ont. C.A.). [54] I find that the first three criteria of the test are met. The fourth must now be considered.

This criterion is case-specific, so theoutcome of its application does not establish an immutable or even general rule. Different facts can lead to different conclusions. [55] As the Supreme Court reminds us, “The fourth requirement is that the interests served by protecting the communications fromdisclosure outweigh the interest of pursuing the truth and disposing correctly of the litigation”: M. (A.) v. Ryan, (SCC),[1997] 1 S.C.R. 157 at para. 29. [56] The Supreme Court points out that “the common law must develop in a way that reflects emerging Charter values.

It follows thatthe factors balanced under the fourth part of the test for privilege should be updated to reflect relevant Charter values”: M.(A.) v. Ryan,supra at para. 30. [Emphasis added.] [57] With respect, the trial judge failed to take this factor into account. [58] Specifically, it is undeniable that in this exercise, the fundamental Charter value that protects against self-incrimination needs tobe considered: sections 7, 10, 11, and 13 of the Charter. Using confidential communications between a therapist and his patient as thesole evidence of guilt certainly offends Charter values. [59] In M.(A.) v.

Ryan, supra, the Court refers to the important value of privacy, reflected, inter alia, in

section 8 of the Charter, in acivil case where the medical records of a sexual assault victim were being sought. The Court imported this Charter value, which is notthe same thing as enforcing the Charter in a civil case. [60] In the case at bar, the Court should not apply the constitutional guarantees against self-incrimination in a context whereadmissions were made to non-government actors.

Nonetheless, the importance that the supreme law accords to protection against self-incrimination needs to be considered in assessing whether doctor-patient or more generally therapist-patient relationships are covered bya privilege. [61] The respondent relies on R. v. S.(R.) (1985), (ON CA), 19 C.C.C. (3d) 115 (Ont. C.A.). There, following twowaves of sexual abuse complaints against the appellant for acts alleged to have been committed on his spouse’s children, groupcounselling was recommended by the physicians consulted by their mother. The appellant attended the second counselling sessionsvoluntarily.

He knew the sessions were being recorded. He was confronted by the revelations and by the clinician who was leading thecounselling. He remained silent when faced with the accusations. The prosecution sought to use his silence as evidence at trial—asilence which, according to the trial court, spoke volumes. The Ontario Court of Appeal did not hesitate to find that the group therapy didnot defeat the appellant’s expectation of privacy: R. v. S.(R.), supra at 131.

In light of a lack of unanimity in scholarly writing regardingthe importance of confidentiality in the physician-patient relationship, which goes to the second factor of the Wigmore test, the Courtpreferred not to state an opinion: R. v. S.(R.), supra at 132. The third factor of the Wigmore analysis, the importance of preserving familytherapy, was conceded, but the Court also noted that divorce legislation encourages such sessions, reflecting their importance as asocietal objective. [62] The fourth part of the Wigmore approach was not met, however.

In general terms, the Ontario Court of Appeal found that, in acriminal trial for sexual abuse against children, the search for truth is more important than the need for family therapy. The Court notedthat several jurisdictions, including Ontario, had enacted laws compelling the disclosure of child abuse and neglect, which demonstratesthat the public interest outweighs the confidentiality of statements made to psychiatrists.

Lacourcière, J.A., speaking for the Court, wrote: It is sufficient to say that the information obtained in the course of psychiatric counselling or treatment where child abuse is involveddoes not meet the test adopted in Slavutych v. Baker et al. (1975), (SCC), 55 D.L.R. (3d) 224, [1976], 1 S.C.R. 254, 38C.R.N.S. 306. Society considers the detection and prevention of child abuse more important than the confidentiality of psychiatriccounselling. I would therefore conclude that the learned trial judge did not err in ruling that the evidence of Dr.

Sawa and the tapes andtranscript of the counselling session were admissible. I would not give effect to this ground of appeal. R. v. S.(R.) (1985), (ON CA), 19 C.C.C. (3d) 115 at 136 (Ont. C.A.). [63] I should note that the Ontario Court of Appeal did not engage in a weighing of Charter values in this 1985 decision, since it wasobviously speaking prior to M.(A.) v. Ryan, (SCC), [1997] 1 S.C.R. 157. [64] The respondent has marshalled some other case law to dispose of the fourth branch of the Wigmore analysis, certainly thehardest one to establish.

The first authority it cites in this regard is Verret, a decision of our Court where the controversy involved theconfidentiality of revelations, made in during treatment for alcohol addiction, about a murder committed decades earlier: R. c. Verret,2013 QCCA 1128 at paras. 21–33. In this regard, I should point out that the nature of that crime was different, that the appellant in thatcase had also made admissions to her roommate, and that DNA evidence was also available.

That said, the appellant in Verret admittedto her caseworker that she had been an accomplice to murders, and drafted a letter intended for her sister, who was one of the twovictims. The Court explained that the statements in the letter were reliable and, in combination with the caseworker’s testimony, decisive

for the prosecution’s case. It then noted that the first three criteria of the Wigmore test, but not the fourth, were met. And although thiswas not decisive, it took into account the fact the appellant had agreed to her caseworker sharing her confidence with her superior. Lastly,the Court approved of the trial judge’s analysis comparing the letter with a [translation] “writing that can be considered private and thatthe accused wrote in an intimate moment”: R. c. Verret, supra at para. 33. [65] I agree with the result to which the Court came in Verret.

For one thing, the connection between the therapeutic processundertaken as part of an alcoholism treatment plan and the admission to a murder is tenuous at best. It is much fairer to say that therevelation is quite peripheral. Furthermore, even if the evidence is significant, as any form of admission would clearly be, it remainedcircumstantial, and other kinds of evidence remained available. [66] The respondent also relies on R. v. Karasek, 2011 ABCA 161. In Karasek, the psychiatrist told the police about two recentinstances where an individual had re-offended.

He was already treating the individual for sexual deviance because of a sexual assaultagainst a child a few years earlier. [67] It is significant that Karasek had pled guilty, that he posed a danger to other victims, and that the psychiatrist was testifying inconnection with sentencing, specifically regarding a dangerous offender designation. Clearly the context of Karasek is markedly differentin that the appellant there pled guilty and the report to the police was due to his dangerousness—a recognized exception: Smith v. Jones, (SCC), [1999] 1 S.C.R. 455. [68] The other case the respondent cites is R. c.

G.D., (Que. C.A.), where our Court refused to recognize aprivilege covering an admission after a sexual assault to the murders of two children in 1979. At the time the admission was made, theappellant was serving a sentence in a penitentiary and had voluntarily undertaken sexual deviance therapy through the authorities—specifically, parole system professionals.

The Court noted that the appellant was speaking with an agent of the government who was toreport the admissions to the authorities with a view to assessing the terms and conditions of his parole; that he met directly withinvestigating police officers; and that he made a full and admissible written statement. It released the professionals who were treating theappellant from their obligation of professional secrecy. [69] Once again, the facts of R. c. G.D. are very different from those in this appeal.

While there were dealings with a professional whopromised confidentiality in that case, I doubt it was part of a genuine therapeutic process or that this process was central to therelationship. From the facts of that case, it seems more like the appellant was hoping to be paroled soon. Lastly, like the Ontario Court ofAppeal in R. c.

S.(R.), supra, our Court did not examine the impact of Charter values on the privilege. [70] I am not unaware of the importance of effective criminal trials, and I realize there will be cases where the admissions made by aperson will be used against them, even if given as part of a therapeutic relationship. The authorities cited by the respondent are examplesof these types of cases.

But in the case at bar, the situation leads me to conclude that the appellant’s statements were privileged andinadmissible in evidence. [71] I find it would be unjust and contrary to Charter values to use statements against the appellant that were made to discuss a matterof sexual deviance as part of a treatment process voluntarily undertaken with an organization that treats sexual deviance. While sexualdeviance is not always a crime, the fact remains that the very nature of the admissions in this case lie at the heart of the problem and ofthe help that was being sought for the problem.

This is an important contextual element in the case at bar. [72] Furthermore, the fundamentally personal therapeutic process in the case at bar, which was animated by no other objective but tosolve a grave problem, was undertaken in good faith and in a completely forthright manner. [73] Lastly, I note that the evidence reveals, and that the trial judge agreed, that before he made his admissions, the appellant wasnever cautioned they might be used to incriminate him.

It is stunning that the organization in question did not have a clearer protocol forprospective patients that its representatives could easily explain, knowing that while not all sexual deviants have committed crimes, therewill be others, like the appellant, who have. [74] Lastly, there was no danger requiring the neutralization of the appellant or immediate action. As the Ontario Court of Appealnoted in R. v. S.(R.), society’s interest in helping young victims who are in danger points to the importance of that objective.

However,one must take into account that legislation allows professionals to be released from secrecy and from the confidentiality of their dealingswith their patients only in specific circumstances. Endangerment of a child is the exception in the Youth Protection Act, CQLR, c. P-34.1(sections 38 and 39.1). It was not found to exist in the case at bar. Legislation also provides techniques to address the imminent dangerposed by certain people who consult professionals bound by secrecy, by enabling those professionals to address such danger: see, interalia,

section 60.4 of the Professional Code, CQLR, c. C-26;

section 18 of the Code of ethics of psychologists, CQLR, c. C-26, r. 212, andsection 20 of the Code of ethics of physicians, CQLR, c.

M-9, r. 17. [75] These provisions lend credence to the idea that our society considers the secrecy of professional-patient relationships important.And they are consistent with Charter values. [76] Failing to protect an admission made under circumstances such as these strikes me as contrary to common sense, and as adisincentive for people who are struggling with sexual deviance and who want to seek the help their condition requires.Although evidence cannot show with certainty that a candidate would not undertake therapy if it could lead to their being brought beforea criminal court, this would seem self-evident.

Unlike the trial judge, I believe it is a probable inference, justified by the evidence, andgrounded in common sense. [77] Since the prosecution concedes that the inadmissibility of the appellant’s admissions would require his acquittal, I would allowthe application for leave to appeal, allow the appeal, and acquit the appellant.

MARTIN VAUCLAIR, J.A. REASONS OF MAINVILLE, J.A. [ 78 ] I have read the reasons of my colleague Vauclair, J.A. but cannot concur. My reasons for this are as follows. [ 79 ] Four elements are decisive in the present case: (

a) As part of a therapeutic relationship initially undertaken to treat a substance addiction problem, the appellant admitted he sexually assaulted a 4-year-old child, notably by placing his penis on the child’s tongue. (

b) It is not contested that his admissions are truthful. (

c) The appellant agreed to his admissions being provided to Youth Protection and, in writing, authorized the transmission of notes containing those admissions to the Sûreté du Québec (“SQ”). (

d) The appellant’s conviction hinges on the admissibility of his admissions as part of a criminal trial. [ 80 ] As my colleague notes, this appeal essentially concerns the admissibility of the appellant’s admissions in light of the Wigmore analysis, which involves four criteria: (1) the communications must originate in a confidence that they will not be disclosed, (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties, (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [ 81 ] My colleague has concluded that the trial judge erred in the application of these criteria.

Firstly, he finds that the judge erred in concluding that the first two criteria of the Wigmore test have not been met.

With respect to the fourth criterion, my colleague is of the opinion that it would be unjust and contrary to the values of the Canadian Charter of Rights and Freedoms to use admissions against the appellant that were made as part of a voluntary therapeutic process. [ 82 ] Like my colleague, I accept that one can have doubts about the admissibility in a criminal trial of admissions made confidentially as part of a therapeutic process undertaken in good faith, despite the reporting obligation contained in Quebec’s Youth Protection Act .

However, it is not necessary to address or decide this question in this appeal. [ 83 ] This is because the appellant, in consenting to the disclosure of his admissions, including to the SQ, expressly waived their confidentiality. As a result, the Wigmore criteria, which if met would bar the admissions from being admissible in evidence in a criminal trial, have not been met. [ 84 ] It should be noted that the trial judge rejected the appellant’s assertions that his consent to the disclosure of his admissions was vitiated.

The trial judge found at paragraph 101 of the judgment that these assertions were [ translation ] “far-fetched” and therefore could not be believed. That finding of fact is based on the assessment of the credibility of the various witnesses heard at trial, and benefits from great deference on appeal. [ 85 ] Furthermore, this assessment of the credibility of the testimony is very reasonable, given that the appellant consented in writing to the disclosure to the SQ, that he knew the SQ is a police force that investigates crimes, and that the sexual assaults to which he admitted are crimes.

And it defies common sense to believe the disclosure of a sexual assault to the SQ could not lead to a police investigation and potential criminal charges. [ 86 ] In any event, even if the judge erred as to the foregoing, the appellant’s mere subjective belief that his consent to the disclosure to the SQ could not be the basis for criminal charges would be insufficient to prevent the admissions from being admissible in a criminal trial.

Apart from the fact that the consent to the disclosure, whatever the appellant’s subjective belief regarding the police’s use thereof may have been, is sufficient to find that the first two criteria of the Wigmore analysis have not been met, the fourth criterion is not met under these circumstances either. Indeed, I find it difficult to imagine how a mistaken subjective belief of such nature could constitute the kind of situation contemplated by the Wigmore analysis, such that a just decision based on the truth could be rejected. [ 87 ] For these reasons, I would dismiss the appeal. ROBERT M. MAINVILLE, J.A.