A man who confided to his medical team that he had committed sexual crimes against a 4-year-old child was acquitted by the Court of Appeal, which considers that his confession should have been kept confidential.
The Court of Quebec had found him guilty in 2020 of one count of sexual assault on a young girl.
The man appealed this judgment: he felt that he should not have been the subject of criminal proceedings because what he said should have remained confidential under the “patient-therapist privilege”. He claims to have made these confidences in order to receive adequate treatment for his sexual deviance and also so that his little victim can receive help, if necessary.
The majority of the Court of Appeal agreed with him: “Not recognizing that a privilege protects a confession in the circumstances of this case seems to me to go against common sense and discourages people struggling with deviance to seek the help required by their condition”.
This case gauges the balance between these two societal goals: to protect children and to promote therapy, which can prevent other victims in the future. She also asks this question: is what we entrust to a therapist always confidential?
The answer is no, recalls the Court of Appeal.
However, she suggests that if a person fears criminal charges, they may not show up for their therapy appointments.
In this case, the man’s confession should not have been admitted into evidence at his trial, she ruled, before acquitting him.
One of the three magistrates was dissenting and would have maintained the conviction of the man, whose identity is not revealed in order to protect that of his victim.
In this case, the man had voluntarily undertaken a therapeutic approach for his drug use. During this, he discussed with a doctor a possible sexual deviance. He was then directed to the National Institute of Forensic Psychiatry Philippe-Pinel.
At the time of his initial assessment, he described the whole situation, stating these facts: During his relationship with a woman in the past – a relationship that has since ended – he had performed sexual acts on two occasions on her daughter. During the first, he quickly rubbed his penis over the child’s private parts, over their respective clothes. On the other occasion, he put his penis on the girl’s tongue for a few seconds.
She is then encouraged to contact the Director of Youth Protection (DYP) to help the little victim, in the event that she had psychological after-effects. He consents to this. The DPJ reports the case to the police. He is stopped.
He maintains that neither the criminologist to whom he told these crimes nor the psychiatrist informed him that this information could be transmitted to the police. For him, everything was confidential, and he believed that confessing his actions was important for the success of the therapy.
At trial, he attempted to have the confessions excluded from the evidence, which was the only evidence of his guilt.
The Court of Appeal recalled the state of the law: the relationship between a patient and his doctor is generally the subject of a privilege.
But in certain specific cases, a person’s confession can be used against them, even when they are given within the framework of a therapeutic relationship.
For example, the law provides for cases where professionals, including those who work for the DYP under the Youth Protection Act, are authorized to free themselves from secrecy and confidentiality — in particular when the DYP considers that the safety of the child is compromised, when there is, among other reasons, a serious risk of physical or sexual abuse.
But here, no imminent danger required the “neutralization” of the man, or an immediate action, notes at the outset the Court, which is not convinced that there was a “reason for compromise” of the child. A conclusion which was also that of the intervener of the DPJ who had been in charge of the file.