WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended
Parties
Between:
Her Majesty the Queen
— and —
N.S., a young person
Before: Justice B. Weagant
Heard on: June 1, 2016
Reasons for Judgment released on: August 11, 2016
Counsel
Ms. Sarah De Filippis counsel for the Crown
Mr. Eric Neubauer counsel for the accused
Ms. Robin Parker for Ms. Angela Chiasson counsel for the complainant
Decision
Introduction
1N.S., a young person within the meaning of the Youth Criminal Justice Act, stands charged that he assaulted S.C., criminally harassed her, and sexually assaulted her. The assault and sexual assault are alleged to have been committed on separate dates, the allegations regarding sexual assault occurring a month after the alleged assault.
2After arraigning the accused young person, N.S., I commenced an in camera hearing wherein the defence made application to have excerpts of the complainant's diary produced pursuant to section 278 of the Criminal Code. The complainant, S.C., was represented in this hearing and has been represented at all material times in the narrative. The importance of this becomes clearer below.
3Both the defence and the complainant take the position that the excerpts sought are governed by the two stage process in section 278, and urged me to apply R. v. Mills, [1999] 3 SCR 668. The complainant takes the position that the excerpts are not producible and Crown counsel supports this position.
4The facts leading to this hearing and how I propose to dispose of the application, became clearer during the argument, with an all-important fact reaching the light very late in the afternoon. Arguments closed and I left the courtroom to deliberate on the matter, my deliberations to be informed by the Supreme Court decisions in Mills (above), R. v. O'Connor, [1995] 4 S.C.R. 411, R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 and to a lesser extent R. v. Seaboyer, [1991] 2 S.C.R. 577, R. v. Osolin, [1993] 4 S.C.R. 595 and R. v. Stinchcombe, [1991] 3 S.C.R. 326.
5Having reviewed the argument and the caselaw, I am convinced that Shearing provides the determining guidance in this matter. For what I say below, I am dismissing the 278 application, ordering re-disclosure by the Crown of the excerpts pursuant to Stinchcombe, all without prejudice to the Crown to raise Seaboyer and Osolin (if applicable) and advance a 'probative versus prejudicial' objection, should the defence seek to use the disclosure in cross-examination or have it admitted into evidence.
The History of the Matter
6The defence brought the application based on knowledge received when the Crown turned a copy of the diary excerpts to him. He could see immediately that the diary entry detailing the events left out a major fact that is central to the narrative reported to the police: the complainant describes being choked and being held by the throat in her statement to the police. Nowhere in the diary excerpt is choking mentioned and nowhere in the excerpt is the sexual assault mentioned at all.
7After realizing the potential importance to the defence of this excerpt, counsel returned the diary to the Crown and commenced the 278 application"diary" being a record defined by 278.1 in a case where one of the charges on the Information is 'sexual assault' (section 278.2(1)(a)). Counsel assumed the Mills regime would have to be invoked.
8Shortly after argument commenced before me, as Mr. Neubauer began articulating the possible relevance of the lack of description of the choking and the sexual assault, Ms. DeFilippis rose to her feet to clarify the following. The diary entry under discussion was for an assault that occurred some one month before the sexual assault allegations.
9At that moment two things became clear. First, the diary entry's relevance, if any, had to do with the assault charge only. Section 278 would still be the operative section because the assault charge appears on an Information with a charge of sexual assault. Second, it became clear that Madame Crown was well aware of the details contained in the diary entry. The police, Crown and Defence all had seen the entry. The privacy aspect of the contents was now effectively compromised.
10All parties agreed that since there was no proper waiver of privacy rights by the complainant, there was no legal way, short of the process in 278, for the defence to have possession of the excerpts. However, during the complainant's argument, it became clear that the all-party assumption about waiver of privacy rights may have been the subject of miscommunication between the police and the Crown, or between the police and the complainant's lawyer.
11The investigating officer contacted the complainant's counsel and enquired about the presence of a personal journal or diary. The complainant, on advice from counsel, agreed to turn the diary over to the investigating officer on the understanding that no privacy interest in the record was waived. It was counsel's opinion that this protected the complainant's privacy rights, and if the police turned the document over to the Crown, the record would only be disclosed after a successful s. 278 application.
12At this point in the argument, I stood down so that all counsel could meet to see if the facts changed anyone's position. When I returned, I was informed by Madame Crown that she had taken the opportunity to go through old emails during the break. She informed the Court that she was given a copy of the diary excerpt by the police investigator and because of its potential relevance to the defence, she supplied a copy of the excerpt in fulfillment of the Crown's Stinchcombe obligation. She was unclear in her remarks to the Court about the information that accompanied the disclosure to her office.
13Counsel for the complainant immediately conceded that it was hard to argue against the Court receiving a sealed copy of the excerpt in order to do the second part of the analysis in s. 278. Even if Mr. Neubauer had never seen anything, the investigating officer and Crown both took the procedural position that there was something of potential relevance to the defence of this matter.
The Position of the Parties
14Counsel for the complainant takes the position that there was a section 8 violation of the complainant's privacy right and for the purposes of this hearing, the defence should be precluded from relying on information he knew only because he was mistakenly (and in violation of the complainant's rights) in possession of the document. Although counsel for the complainant's argument about the first part of the 278 process was defused somewhat by the admission of the Crown, counsel maintained that the defence could never get over the hurdles in the second part of the s. 278 test.
15Counsel for the defence argued that he should be able to rely on what he knows about the entry. His client did not ask to have the document mistakenly produced, but once it was, it makes no sense that he should be deprived of his ability to make full answer and defence given that everyone in the room now knows there is potential relevance in the entry.
Analysis
Application of Shearing
16The Supreme Court decision in Shearing provides me with the necessary framework to decide this matter. In that case, the accused was charged for sexual offences alleged to have occurred between 1965 and 1990 while he resided in a religious cult. One of the complainants, at the time a minor, kept a diary for 8 months in 1970. When that complainant left the cult premises in 1977, her mother packed up some of her belongings in a cardboard box and stored it on the premises. The mother moved in 1995, leaving the box behind. Another resident of the cult found the complainant's 27 year old diary among the belongings and gave the diary to the accused.
17Among the many issues in that case was the applicability of section 278.
18Mr. Justice Binnie, speaking for the majority, found that the possession of the diary as property was of no moment. However, the status of the information contained in the diary was the true focus of the enquiry. In a minority opinion, Madame Justice L'Heureux-Dube proposed that the trial judge should have ordered the diary returned to its proper owner and the appellant should seek production thereof through proper legal channels. However, the majority concluded that this was an incorrect procedure: "Return of the diary .... would seem to me to shut the barn door after the horse had escaped" (at paragraph 90). Justice Binnie did conclude that in spite of losing the physical possession of the diary, the personal interest in the information contained in the diary was not defeated. Justice Binnie agreed with the trial judge, that even if the property could be considered abandoned, the complainant never waived her privacy interest in the information contained therein.
19Justice Binnie then goes on to analyze Parliament's intention in enacting the scheme in s. 278. He concluded that s. 278 concerns itself with the compelled production of documents in the hands of third parties. If privacy rights have to be breached in order to satisfy an accused's right to make full answer and defence, then the section further concerns itself with the potential need to order production subject to careful scrutiny.
20Justice Binnie then squarely addresses the arguments advanced in that case (as advanced here) that the machinery of 278 could be put into reverse: that "... it contemplates taking documents already in the hands of the defence and restoring these to the complainant, thus requiring the defence to make a fresh application for the document just removed from its possession" (at paragraph 95). He concludes that this interpretation is unduly contrived and does violence to the statutory language. Justice Binnie then recognized that the machinery in s. 278 sprang from a recognition of privacy and equality interests previously outlined at common law and in cases such as O'Connor, Seaboyer and Osolin. The principles in those cases are still apt, but there must be no confusion that O'Connor concerned itself with a test for production, while Osolin concerned itself with admissibility. Section 278 concerns itself with compelled production of undisclosed materials in the hands of a third party.
21In my view, the present facts are covered by Shearing.
22When counsel for the complainant turned the diary over to the investigating officer, she correctly reserved her client's privacy rights. Indeed, Shearing makes it clear that privacy rights, not specifically waived by the complainant, continue to attach to certain information and documentation. The confusion in this case, obviously, was whether counsel for the complainant was waiving the specific privacy interests protected by s. 278.2(2):
Application of Provisions
23Section 278.1, sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
24The original email exchange between counsel for the complainant and the police investigator has been lost in an office relocation. We do not know with certainty what the police officer investigating the case passed on to the Crown, or if the instructions were 'lost in translation'. We do know that Madame Crown in this case acted as if she was in possession of materials that no longer had the protection of 278.2(3):
Duty of Prosecutor to Give Notice
25In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor's possession but, in doing so, the prosecutor shall not disclose the record's contents.
26In retrospect, if there was no waiver of s. 278, then the defence should have been given notice of the excerpt. However, in this case the defence was actually apprised of the contents of the excerpt. Justice Binnie's 'barn door' was now open.
27Since I have concluded that this case ceased to be about "production of third party records" (as it was produced), the question arises, since the complainant never abandoned her privacy interest in the contents of the diary, where do those interests become relevant? Again, Shearing provides the answer. Once the case ceases to be about production, it then becomes about use and admissibility.
28I point out that Osolin may be of limited ongoing use in the protection of privacy. That is because we now know that the information here relates to a charge of simple assault. It would be hard to predict how guarding against the myths regarding the victims of sexual assault would play a role in any future argument on a simple assault charge.
29The complainant's un-abandoned and legally recognized privacy interests in the information contained in the excerpts will certainly become relevant once I see to what use the defence may choose to put that information. Subject to an objection by the Crown, the complainant's privacy interests will continue to inform any balancing of probative value versus prejudice. As Justice Binnie said"admissibility is properly left to be determined later when the matter is ripe for decision" (Shearing at paragraph 96).
30In summary, invoking the section 278 test for production is senseless once the information has already been produced.
Section 278 Analysis
31If I am incorrect that Shearing provides a complete solution on these facts, then it would be prudent to see what an analysis under section 278 would yield.
32The first issue that arises stems from the simple fact that the defence had possession of the diary, and although returned it, retained 'possession' of the information contained in the excerpt.
33It was argued by Ms. Parker that since the defence came into this knowledge mistakenly, or illegally, or extra-legally or even accidentally the result must be the same: the defence cannot use this information to demonstrate likely relevance and that production is necessary in the interests of justice (278.5(1)(b) and (c)), such that the court receives the record for review. The only possible argument here is that the disclosure of information breached the complainant's section 8 (Charter) rights and that she is entitled to a remedy. It very well may be that the complainant is entitled to some kind of remedy against someone, but it certainly is not the accused. He was given possession of information by the Crown acting in good faith (but probably mistakenly). Everyone in the courtroom at the time of argument knew of the contents of the excerpt, and pretending we did not in no way restores the complainant's privacy.
34Further, the 278 regime does not purport to speak to use or admissibility; it speaks solely to the issue of production of private documentation and the protection of the information contained therein if produced. Leaving aside for the moment the fact that the document was already produced, it is impossible to protect the privacy interest in the information once it has been disclosed, regardless of whether I permit the accused to use it in a 278 application.
35In my view, the fact that the investigating officer and the Crown viewed the excerpt as being potentially material to the defence and acted on that by producing it, is evidence of likely relevance. This was all but conceded by Ms. Parker in argument.
36"Likely relevant", for my purposes, has been defined in O'Connor at paragraph 22. The presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. This is a higher burden that relevance in the disclosure context, but is not an 'onerous burden' upon the accused. I need not be concerned with ultimate admissibility, nor should the defence have to demonstrate the specific use to which he might put the information (that he is presumed not to have ever seen – although not in the present case).
37In any event, there is authority now that would suggest that once the Crown takes or has possession of the record at issue, the Crown should give an assessment of the likely relevance of the record. Justice Karakatsanis said in R. v. Quesnelle, [2014] 2 SCR 390, 2014 SCC 46 at paragraph 16:
Once the Crown obtains a record and determines that it is covered by the Mills regime, it must give notice to the accused: Criminal Code, s. 278.2(3). While the Crown may not disclose the contents of the record, it should in appropriate circumstances give an assessment of the likely relevance of a record in its possession, as well as indicate the basis of its relevance. At a minimum, the Crown should advise if it intends to use any information contained in records protected by Mills as part of its case against an accused. The Crown's assessment that the record is relevant for a specific reason will likely establish a basis for the judge to order production to the court.
38The absence of a central fact in a diarized account of an assault, is likely relevant to an issue at trial or the competence of a witness to testify. I take into account the salutary and deleterious effects on both the accused's right to make full answer and defence and the right to privacy and equality of the complainant. Of importance in this case, Parliament's specific concerns in 278 about protecting the confidential relationship of a patient-therapist, or the encouragement of victims of sexual assault to seek professional treatment and in turn not to discourage the reporting of sexual offences, are less engaged when the allegations are about behaviour unrelated to sexual assault.
39It is my view that I should receive the record under s. 278.6 to determine whether the record or part of the record should be re-produced to the accused.
40In anticipation of this, the parties agreed that I could receive a sealed copy of the excerpt, should I enter this stage of the enquiry.
41The first hurdle being passed, I must determine whether it is in the interests of justice that the excerpt be produced to the defence. I must be satisfied that the records are "likely relevant" and that production, this time to the accused, is necessary in the interests of justice. In making this decision, I must again consider the factors set out in s. 278.5(2).
42The diary appears to be a detailed account of how the complainant remembers the physical assault, although until the underlying assumption that she was intending it to be an accurate recording is explored, we cannot know for sure. At stake here is the defence's choice to explore or not. The defence is in a position to make that decision. It is for the defence to decide whether it has the facts it needs to use the entry without relying on innuendoes and assumptions. To my mind, this is about admissibility and that is not something that section 278 covers.
43It is clear that the entry is likely relevant to an issue at trial. When I take into account the enumerated factors in s. 278.5(2)(a) to (h), I conclude that it would be in the interests of justice to produce the excerpt to the defence. Presumably, the accounting here is enhanced by the fact that the impact on privacy is different when production to the accused is being made, as opposed to the Court itself (as in the first step). I am content that I can protect the interests of justice in this case through the imposition of restrictions on the production of the excerpt.
44If the Mills regime does apply, I would order disclosure to the defence of the diary excerpt. The defence can make no copies of the excerpt without specific permission from the Court. At the conclusion of the process, the original exhibit is to be resealed in the evidence folder.
Released: August 11, 2016
Signed: Justice B. Weagant