Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
David Lafontaine
Before: Justice S. W. Konyer
Heard on: December 22, 2015
Reasons for Judgment released on: December 22, 2015
Counsel
Ms. A. Kok — counsel for the Crown
Mr. D. McFadden — counsel for the defendant David Lafontaine
Mr. M. Gonsolus — counsel for the complainant Fabienne Lehmann
KONYER J.:
1David Lafontaine is charged with assaults and similar offences against the complainant in this matter, Fabienne Lehmann, which are alleged to have occurred on three different dates: March 1, 2013; January 1, 2015; and March 8, 2015. I understand that Mr. Lafontaine and Ms. Lehmann were involved in a domestic relationship at the time of the alleged offences. I also understand that Ms. Lehmann reported these matters to the police in July 2015.
2Mr. Lafontaine's matters are scheduled for trial before me at a future date. Mr. Lafontaine has brought an application for production of records held by two distinct third parties – the Peterborough Regional Health Centre and the Brampton Civic Hospital. In accordance with the procedure set forth in R. v. O'Connor, [1995] 4 S.C.R. 411, the defence has filed a written application and has subpoenaed the holders of the records in question. The Crown takes no position on the application. Ms. Lehmann has retained counsel and resists the application, arguing that Mr. Lafontaine has not met the "likely relevance" threshold which is necessary before the court can order production of the records for its own inspection.
3The undisputed facts that are relevant to my determination of this issue are found in the affidavit of Mr. Lafontaine. No other evidence was called on this application. Ms. Lehmann did not challenge the factual claims made by Mr. Lafontaine through cross-examination on his affidavit, nor did she put forward any evidence of her own.
4The relevant and undisputed facts are:
On March 8, 2015, one of the dates where Mr. Lafontaine is alleged to have assaulted her, Ms. Lehmann was hospitalized at the Peterborough Regional Health Centre. This occurred after she left the family home, and crawled across ice to a neighbours home wearing only a t-shirt. She was covered in cuts and bruises and had frost bitten hands and feet, and the neighbours apparently called 911 on finding her.
Prior to her discovery by the neighbours, Ms. Lehmann was exhibiting bizarre behaviour at home. She told Mr. Lafontaine that she was "leaving this planet" and that she had been "having an affair with a genetically modified cyber soldier who was in prison in the U.S.A." Their son reported hearing banging noises coming from her room shortly before it was discovered that she had jumped out a window and run away.
When Mr. Lafontaine was informed that Ms. Lehmann had been taken to hospital, he attended with their son. He claims that she did not recognize either of them due to the fact that she was hallucinating and in a psychotic state. They were subsequently informed that Ms. Lehmann had been committed to the psychiatric ward of the hospital where she remained for several weeks.
Mr. Lafontaine was arrested by members of the Peterborough Police Service on March 8, 2015, questioned and released the following day.
In May 2015, Ms. Lehmann, who was by then living back at the matrimonial home, had another psychotic episode witnessed in part by Mr. Lafontaine and her son. This apparently involved her waking in the middle of the night and accusing Mr. Lafontaine of being her "ex-boyfriend's twin lover" and accusations that he "had a knife". The following day, Ms. Lehmann left the house without notice and was reported missing. She was eventually located by police at Pearson Airport in Toronto and taken to the Brampton Civic Hospital as a result of apparently delusional behaviour. Mr. Lafontaine was informed by a doctor that she had been diagnosed with psychosis and had experienced hallucinations.
Legal Principles
5The principles that apply to this application are well known. At the initial stage, to warrant production of the records to the court for inspection, Mr. Lafontaine, as the applicant, must satisfy me that the records sought are likely relevant to an issue at trial. As the Ontario Court of Appeal held in R. v. Jackson, 2015 ONCA 738"an applicant must establish a basis that could enable the presiding judge to conclude that there is actually further material in existence that may be useful to the applicant in making full answer and defence, in the sense that the material is logically probative" [para 79]. The material must be likely relevant to an issue in the proceedings, which may include substantive issues, the credibility of witnesses, or the reliability of evidence.
6The burden on the applicant to demonstrate likely relevance has been described as significant but not onerous. It is significant in order to weed out unmeritorious applications, but it is not onerous since it would be unfair to require an applicant to point to the specific use to be made of material he has not seen.
7What will not suffice to pass the test of likely relevance is a mere assertion that a complainant has received treatment or counseling, or a mere assertion that a witness is unreliable simply because they have been treated for a mental illness. Something more is required: see R. v. Summerhayes, [2012] O.J. No. 236, at para. 10.
Application to Peterborough Regional Health Centre Records
8In this case, the records from the Peterborough Regional Health Centre relate to treatment following an apparent psychotic break including hallucinations on the very date that Mr. Lafontaine is alleged to have assaulted her. Ms. Lehmann's grasp of reality at the time the Crown alleges she is the victim of a crime is relevant to her credibility as a witness and to the reliability of her evidence that she was the victim of an assault. This is so not merely because there is evidence that she suffered from a mental illness, but rather on the basis of the case-specific evidence before me that this illness appears to have caused Ms. Lehmann to suffer hallucinations on the date that she claims Mr. Lafontaine assaulted her.
9Accordingly I am satisfied that the applicant has met the onus of establishing the likely relevance of the records belonging to the Peterborough Regional Health Centre as a result of the admission of Ms. Lehmann on or about March 8, 2015. I will therefore order production of those records to the court for inspection.
Application to Brampton Civic Hospital Records
10The records from the Brampton Civic Hospital stand on a different footing and relate to a subsequent psychotic episode apparently suffered by Ms. Lehmann in May 2015, some months after the alleged March assault, and some months before her July statement to the police which resulted in Mr. Lafontaine being charged. Her counsel correctly points out that the mere fact that Ms. Lehmann was treated for mental illness on a date unconnected to either the offences or her complaint is not sufficient to satisfy the "likely relevance" threshold. As Trotter J held in Summerhayes, supra"without more, it is impermissible to draw a direct line between mental illness and testimonial unreliability" [para 8].
11What I have in evidence before me, however, is that Ms. Lehmann has alleged a pattern of domestic violence by Mr. Lafontaine over an extended period of time. There is also evidence before me that Ms. Lehmann has periodically suffered delusional breaks from reality which are linked to at least some of the allegations against Mr. Lafontaine. Although he is not charged with any offences arising from the May occurrence, it appears as though Ms. Lehmann still made allegations against him, including an allegation that Mr. Lafontaine had a knife and a request to her son to call 911.
12It may be open to Mr. Lafontaine, in order to make full answer and defence to the charges he is facing, to establish a link between Ms. Lehmann's delusional episodes and her claims of criminal assault by him. In this sense, the records from the Brampton Civic Hospital are likely relevant to her credibility and to the reliability of her allegations. Mr. Lafontaine has established a case-specific link between the material sought and an issue at trial. Accordingly, I am also ordering production of the records from the Brampton Civic Hospital as a result of Ms. Lehmann's admission in May 2015 to the court for inspection.
Released: December 22, 2015
Signed: "Justice S.W. Konyer"