R v Maessen, 2020 NSSC 80: Can an Accused Ask for the Name of a Complainant’s Therapist?

Overview

In R v Maessen, 2020 NSSC 80, the Supreme Court of Nova Scotia dealt with an important question: can an accused person force the Crown to ask the complainant for the name of their therapist? The decision shows how courts balance an accused’s right to make a full answer and defence with the strict privacy protections surrounding therapeutic records, and the limited circumstances in which a complainant may be asked to disclose personal information.

What happened?

The accused was charged with historical sexual offences allegedly committed between 2000 and 2001. Years later, the complainant posted publicly on Facebook that she had “recently started going to therapy to deal with being sexually groped” by the accused when they were kids.

The accused wanted to bring a s. 278.3 application to obtain the therapist’s records. But there was a problem: he did not know the therapist’s name, the Crown did not know it either, and only the complainant could provide it. The Court had to decide whether it could order the Crown to ask the complainant for the therapist’s name.

What is the fight about?

The issue was not about getting the therapist’s records, at least not yet. It was about the accused needing the therapist’s name before he could even start a proper s. 278.3 application.

Under the Criminal Code, if an accused wants the court to consider whether private therapeutic records should be reviewed, he must first serve notice on the person who holds those records. But here, the accused did not know who the therapist was. The Crown did not know either. Only the complainant had that information.

This created a procedural problem. Without the therapist’s name, the accused could not even begin the statutory process. But at the same time, the complainant could not be compelled to testify or provide information before trial. The defence argued that this gap made the s. 278 regime meaningless, because how can an accused follow the rules if he cannot identify the record‑holder?

The Crown disagreed. It said the defence had no foundation for a third‑party records application in the first place, so the therapist’s name was irrelevant. It also said that the Crown cannot disclose information it does not have, and that the complainant cannot be ordered to provide it at this stage.

So, in the end, the Court had to decide whether the therapist’s name was relevant enough that the Crown should ask the complainant for it.

Why does this matter?

On one hand, Parliament has created a strict privacy regime for therapeutic records in sexual‑offence cases. An accused cannot simply demand access to counselling notes. Before the court even looks at those records, the accused must show that they are likely relevant, and this is a high threshold designed to protect complainants from unnecessary intrusion.

But on the other hand, the law also requires the accused to serve notice on the person who holds the records before the application can even begin. That means the accused must know who the therapist is. Without that basic information, the entire statutory process becomes impossible to start.

This case shows how those two principles collide. The complainant cannot be compelled to provide information before trial. The Crown cannot disclose what it does not have. Yet the accused still has a constitutional right to make a full answer and defence, which includes the right to bring a proper s. 278.3 application if he can meet the legal test.

The Court’s ruling matters because it recognizes that the accused must at least be able to take the first procedural step. Knowing the therapist’s name does not give him access to any records. It does not weaken the complainant’s privacy protections. It simply allows the statutory process to function as intended.

The Court’s analysis

The Court began by confirming a foundational principle of criminal disclosure: the Crown cannot disclose what it does not have. Under Stinchcombe and McNeil (previous cases where questions about disclosure were answered), the Crown’s obligations extend only to information in its “possession or control”. The Honourable Justice J.M. Arnold stated that the therapist’s name was not part of the investigative file and therefore fell outside the Crown’s disclosure duties. As he explains, citing McNeil, the Stinchcombe regime “only extends to material in the possession or control of the prosecuting Crown entity” (para 15).

The Court also addressed the problem that the complainant cannot be compelled to provide information before trial. Section 278.4(2) expressly states that a complainant is not a compellable witness at the pre‑trial stage. However, the Court recognized that without the therapist’s name, the accused cannot even begin a s. 278.3 application, because the statute requires notice to be served on the record‑holder. The Court acknowledged this tension but noted that the Court cannot solve it by compelling the complainant to speak.

Instead, the analysis turned on relevance, because the Crown had taken a position where if the Court found the therapist’s name relevant, the Crown would ask the complainant for it voluntarily. This shifted the question to whether the therapist’s identity had any legitimate relevance to the trial.

The Court found that it did. The complainant had publicly stated on Facebook that she had recently starting going to therapy. The Court held that the defence would be entitled to test that assertion during cross‑examination. Knowing the therapist’s name is a straightforward way to explore whether she actually attended therapy as claimed. As the judge put it:

There might be multiple reasons why the complainant would be asked for the identity of the therapist on cross-examination at trial.  During cross-examination, simply in an effort to explore whether or not the complainant is telling the truth about having gone to a therapist, Mr. Maessen would be permitted to ask the complainant the therapist’s name.  I do not need to go any further to determine whether that question could be asked.  Having determined that the question would be relevant for that simple purpose alone, according to the proposal made by the Crown at the pre-trial hearing, the Crown will now ask the complainant for the name of her therapist.

This finding of relevance did not grant the defence access to any records. It simply triggered the Crown’s undertaking to request the information from the complainant.

Why is this decision important?

The Court stressed that the merits of any future s. 278.3 application remain entirely open, but at the same time ensured that the accused could take the first procedural step necessary to pursue his application.

Need Strong Defence in a Criminal Case?

If you are facing sexual offence allegations, access to third-party records, such as counselling or therapy notes, can become a critical issue in building your defence. Cases like R v Maessen show how important it is to understand the procedural steps required to protect your right to make a full answer and defence.

Disclaimer: This blog post is intended for general informational purposes only and does not constitute legal advice. Criminal law is complex and fact-specific. If you are facing criminal charges or have concerns about your legal exposure, you should consult a qualified criminal defence lawyer immediately.

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