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Confessing ALL to your Therapist? R v Chatillon – Sometimes, Honesty Is Not the Best Policy

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By Joseph A. Neuberger

Neuberger & Partners LLP

From popular media, most people have some concept of the idea of attorney client privilege—the idea that everything that you say to your lawyer stays between you and your lawyer. Most people also have some concept of confidentiality in other relationships, such as between a priest and parishioner, or between a doctor and their patient. How far does the concept of confidentiality go in these other relationships? Can it keep statements that you make to other professionals from being inadmissible in court? In the recent case of R v Chatillon, 2023 SCC 7, the Supreme Court of Canada was called upon to discuss just such an issue with a person accused of Sexual Assault.

The accused in this appeal had substance abuse issues, as well as certain deviant sexual urges. He had rubbed his penis on a four-year-old child’s genitals, and on another occasion, put his penis on the child’s tongue.  These offences arguably constituted sexual interference or sexual assault of a person under 16.

The accused entered into treatment for his substance abuse issues. While undergoing therapy for those issues, he disclosed potential sexual deviances, after which he was referred to the Pinel Institute, a psychiatric hospital in Montreal. He spoke with a psychiatrist there, to whom he disclosed the sexual offences. The psychiatrist did not tell the accused that he had an obligation to report the offense to Quebec’s child protection agency. The accused understood that being open and honest was a precondition to receiving therapy for his sexual problems.

The accused was told that he had to contact the child protection agency, which he did, but did not know that his remarks would end up in the hands of the police. He was not cautioned on this call. Eventually the police sought the notes of one of his therapists which contained confessions to the crimes. She obtained the accused’s consent to send these notes on to Quebec’s provincial police force, the Sûreté du Québec. He stated that he would not have signed the consent if he knew that he would be charged with sex offences.

At trial for the sex assault offences, the accused challenged the admission of his confessions, but this was ultimately unsuccessful. He was convicted and appealed. The Court of Appeal allowed the appeal in their decision at 2022 QCCA 1072, with one judge dissenting.

To understand the judgment, we need to understand the difference between confidentiality and privilege, which are related but distinct. Confidentiality is essentially an obligation for a person, for one reason or another, not to disclose certain information that they receive. Privilege, on the other hand, is a rule of evidence, which bars certain information from being received by a court in its decision making process.

Confidentiality is a necessary element of privilege. But many confidential communications will not be privileged. The law recognizes several types of privilege which will always be there, or class privileges—the classic example being attorney-privilege. For other professional relationships, the court will need to evaluate on a case by case basis whether the communications are privileged. This will require the court to evaluate whether:

  1. The communications were made confidentially with the assurance that they would not be disclosed;
  2. That confidentiality is an essential element in the relationship between the client and the professional;
  3. That the relationship is of the nature where society at large would want it preserved; and
  4. That the permanent damage to the relationship that would be caused by the disclosure is greater than the benefit to be derived from disclosure.

The party claiming privilege must establish all of these elements in order to be successful in the privilege claim.

The trial judge held that the first two elements of the test were not met, because the accused should have known that the information could be transmitted onto a third party, the child protection agency. Second, given that the disclosure was made in the context of group therapy, this meant that the expectation of confidentiality was not there.

The majority of the Court of Appeal held that the trial judge had erred by holding that the first two criteria were not met. The majority held that the first three criteria were met and went on to analyze the fourth. The majority held that using confidential communications between a client and therapist did not accord with Charter value against self incrimination. The majority considered the Crown’s argument that the adoption of mandatory reporting legislation demonstrates that confidentiality can be overridden in some cases. But the majority thought it unfair to use the admissions of someone seeking treatment for sexual deviance to incriminate them.

The dissenting judge at the Court of Appeal disagreed. He held that the accused had consented to the disclosure of the communications, in writing, to the Sûreté du Québec, and as such any confidentiality claim that there may have once been was no longer there. He knew and consented to the confession being disclosed to a police force, who he knew investigated sex crimes against children.  His assertions at trial that the consent had been vitiated were found as “outlandish” by the trial judge.

The Supreme Court offered very brief reasons, agreeing with those of the dissenting justice at the Court of Appeal.

Overall, the takeaway from this case: while someone seeking treatment for sexual related issues can and should seek help with them, sadly they must also be very careful in terms of what they disclose to a therapist in the face of mandatory reporting legislation. While there may be an argument to be made that the communications should be privileged, this case sends an important signal that those claims may be unsuccessful. Someone who discloses themselves as acting on their sexual urges may very well be charged with a number of offences, such as sexual assault, sexual interference, or sexual exploitation. If you are seeking treatment for sexual urges and are unsure about how much and whether you can disclose to your therapist, it may be wise to consult with a criminal lawyer before hand.

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