WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
( b ) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
The court hearing this matter directs that the following notice be attached to the file:
This hearing is governed by section 278.9 of the Criminal Code. This section reads as follows:
278.9 Publication prohibited. — (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:
(a) the contents of an application made under section 278.3;
(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or
(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.
(2) Offence. — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
[X] An order has been made under s. 278.9(1)(c) allowing these reasons to be published, broadcast or transmitted
ONTARIO COURT OF JUSTICE
DATE: 2022 03 07 COURT FILE No.: Hamilton Information No. 20-8189
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
L.S.
Before: Justice J.P.P. Fiorucci Heard on: December 9, 2021 Ruling re: Application for Disclosure and Production of Third-Party Records for Review by the Court pursuant to s. 278.5 of the Criminal Code released on March 7, 2022
Counsel: J. McKenzie, counsel for the Crown L. Adler, counsel for the accused L.S. P. Willis, counsel for the Complainant, F.F. M. Visentini, counsel for the Hamilton Police Service S. Edwards, counsel for the Catholic Children’s Aid Society
Introduction
1In July of 2020, the accused, L.S., and F.F. were living in a common-law relationship in an apartment with their biological daughter, M.F., and M.F.#2, F.F.’s daughter from a previous relationship. On July 16, 2020, L.S. left the apartment and did not return to reside there. It is unclear whether he decided to leave or F.F. kicked him out. It seems more likely to be the latter.
2On July 20, 2020, L.S. attended at the apartment with a police escort to retrieve his personal belongings. During this visit, F.F. told a police officer that she wanted to report an “historic sex assault”. On July 21, 2020, the police interviewed F.F. at the police station. She disclosed that, on July 15, 2020, she witnessed M.F. sitting on L.S.’s back in the living room and heard L.S. say “push like this”, motioning for M.F. to push harder with her legs. While this was happening, L.S. had one hand on the floor and was using his other hand to rub his genitals. F.F. observed that L.S.’s penis was erect through his pants and confronted him about what she had witnessed. The police interviewed M.F. about the July 15th incident. M.F. was unable to provide any information regarding the allegations made by F.F..
3The police charged L.S. with sexual assault and sexual interference of M.F. based on F.F.’s statement. These charges relate only to the July 15th incident set out above.
4On October 6, 2020, the police interviewed F.F. again because, at some point after her initial police interview, F.F. produced to a Hamilton Catholic Children’s Aid Society (CCAS) worker a video she made, which purportedly showed M.F. disclosing allegations of sexual abuse by L.S.. It is unclear when F.F. provided this video to the CCAS worker.
5No further charges arose out of the video of M.F. making utterances to her mother about sexual abuse by L.S.. Therefore, L.S. remains charged only with the offences relating to the July 15, 2020 incident. The Crown has disclosed to the Defence F.F.’s October 6th police statement and the video of M.F..
The Defence Application for Disclosure/Production of Records
6The Defence brought a pre-trial application for production of Hamilton Police Service (HPS) records and CCAS records. The Defence characterized its application as a Stinchcombe/Pascal disclosure application, or in the alternative, a request for production of third-party records, pursuant to s. 278.2 of the Criminal Code.
7F.F. is the primary witness for the prosecution. Indeed, at this stage, it appears quite likely that the fate of the prosecution will rest solely on F.F.’s evidence regarding her observations in the living room on July 15, 2020. Therefore, in this pre-trial application, the Defence stressed the importance of F.F.’s credibility and the reliability of her evidence. The Defence says that the records sought must be produced to ensure that the accused can make full answer and defence.
8In the materials filed by counsel, and in oral submissions, all counsel referred to F.F. as the complainant. When the term “complainant” is used in this ruling, I am also referring to F.F..
9The Defence seeks production of the following records:
(1) Police Records: In their application materials, the Defence asked for all police occurrence reports and other records relating to any interactions F.F. has ever had with any police service. However, the Defence subpoenaed only the HPS to bring records to Court. That subpoena requested that all documents and records pertaining to L.S., F.F., M.F., and M.F.#2 be brought to Court for the application. In oral submissions, however, Defence counsel confirmed that the focus of his request was any HPS records relating to F.F.. The HPS records brought to Court pursuant to the s. 278.2(1) subpoena were sealed and made Exhibit B on this application.
(2) CCAS Records: These records fall into two categories:
(a) The Crown provided a s. 278.2 Notice to the Defence advising that it was in possession of Hamilton CCAS records relating to this case which could not be produced except in accordance with an application brought pursuant to ss. 278.3 to 278.91. The Hamilton CCAS records in the possession of the Crown were sealed and made Exhibit D on this application;
(b) The Defence also seeks any records in the possession of the Hamilton CCAS regarding the allegations before the Court and “any other prior allegations referencing any of the children, the complainant, and/or the Applicant”. The Hamilton CCAS records brought to Court pursuant to the s. 278.2(1) subpoena were sealed and made Exhibit A on this application.
(3) Exchange of Information between the Crown, HPS, and CCAS: The Defence requested production of the following in their application materials: “Copies of any exchange of information between the Crown and Hamilton Police Service and CCASH regarding these allegations, and any prior allegations referencing any of the children, the complainant, and/or the Applicant”. Although Crown counsel was unsure exactly what the Defence was requesting, she collected exchanges of e-mails and correspondence between the Crown and the HPS and between the Crown and the Hamilton CCAS. These documents were made Exhibit C on this application.
The Statutory Regime that Applies to the Application
10As stated, Defence counsel characterized the application as a Stinchcombe/Pascal disclosure application, or in the alternative, a s. 278.2 Criminal Code application for production of third-party records.
11The accused is charged with sexual assault (s. 271 of the Criminal Code) and sexual interference (s. 151 of the Criminal Code). Both offences are enumerated in s. 278.2(1)(a) of the Criminal Code. Therefore, if the materials sought by the Defence fall within the definition of record in s. 278.1, their production to the accused can only be made in accordance with ss. 278.3 to 278.91.
12In R. v. Quesnelle, 2014 SCC 46, the Supreme Court of Canada held that police occurrence reports that are not directly related to the charges against the accused were records within the definition of s. 278.1 and thus subject to the Mills regime. [1] The HPS records relating to F.F. can only be produced to the accused pursuant to an application made in accordance with ss. 278.3 to 278.91.
13Child welfare records are enumerated in the definition of records in s. 278.1. In R. v. K.C., 2021 ONCA 401, the Ontario Court of Appeal stated:
By identifying certain records in s. 278.1, Parliament wanted to avoid a case-by-case reappraisal of the need to protect categories of records that could be presumed to be subject to a reasonable expectation of privacy. Absent evidence from the accused to the contrary, a trial judge may assume that a reasonable expectation of privacy attaches to the categories of records enumerated in s. 278.1: R. v. Clifford (2002), 58 O.R. (3d) 257, [2002] O.J. No. 865 (C.A.), at para. 49; McNeil, at para. 32; and Mills, at para. 99. [2]
14The Hamilton CCAS records can only be produced to the accused pursuant to an application made in accordance with ss. 278.3 to 278.91, including the CCAS records in the possession of the Crown since there is no evidence that the complainant expressly waived the application of ss. 278.3 to 278.91 in relation to those records. [3]
15I will deal with the Defence request for exchanges of information between the Crown, the HPS and the CCAS below. However, in brief I find that the request lacks specificity and that the Defence has failed to establish any basis for disclosure or production of the sealed records contained in Exhibit C.
16The statutory scheme in ss. 278.1 to 278.91 of the Criminal Code is a two-stage process that governs the production to an accused of a record in a prosecution for sexual offences listed in s. 278.2. In R. v. K.C., the Ontario Court of Appeal provided a helpful summary of the process:
27A two-stage process applies under this statutory scheme: (i) disclosure to the judge (s. 278.5); and (ii) production to the accused (s. 278.7): Mills, at para. 53.
(i) Disclosure to the judge
28At the first stage, under s. 278.5 the judge may order the record holder to produce the record to the court for review by the judge if the judge is satisfied that: (a) the application was made in accordance with s. 278.3(2) to (6); (b) the accused has established that the record is "likely relevant to an issue at trial or to the competence of a witness to testify"; and (c) the production of the record is "necessary in the interests of justice".
29"Likely relevance" in s. 278.5 is a threshold higher than the threshold for Crown disclosure under R. v. Stinchcombe, 1991 SCC 45, [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, where relevance means "may be useful to the defence": Mills, at para. 45. However, the threshold for "likely relevance" is not an onerous burden: see Mills, at paras. 46, 124 and 126; R. v. Batte (2000), 49 O.R. (3d) 321, [2000] O.J. No. 2184 (C.A.), at paras. 65 and 76. Under s. 278.5"likely relevance" requires "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify": Mills, at para. 45 (italics added; underlining in original), citing R. v. O'Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 22, per Lamer C.J.C. and Sopinka J. (dissenting, but not on this point); R. v. M. (L.) (2014), 122 O.R. (3d) 257, [2014] O.J. No. 4343, 2014 ONCA 640, at para. 37.
30Section 278.3(4) lists 11 "assertions" that, on their own, cannot meet the "likely relevance" threshold: s. 278.3(4); Mills, at para. 52. These assertions include, for example"that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving" (s. 278.3(4)(b)); "that the record relates to the incident that is the subject-matter of the proceedings" (s. 278.3(4)(c)); "that the record may disclose a prior inconsistent statement of the complainant or witness" (s. 278.3(4)(d)); and "that the record may relate to the credibility of the complainant or witness" (s. 278.3(4)(e)).
31An accused may nevertheless rely on these assertions if there is an "evidentiary or informational foundation to suggest that they may be related to likely relevance": Mills, at para. 120. The accused must point to "case specific evidence or information" to show that the record is likely relevant to an issue at trial or the competence of a witness to testify: Mills, at para. 120.
32However, just because an accused provides case-specific evidence or information to support an assertion in s. 278.3(4) does not mean that the likely relevance standard is met. That determination remains subject to the trial judge's ultimate discretion: Mills, at para. 120.
33In deciding whether to order disclosure to the judge, the judge must also determine whether disclosure is "necessary in the interests of justice": s. 278.5(1)(c). In doing so, the judge must weigh the accused's right to make full answer and defence against the complainant's rights to privacy, personal security and equality based on the factors in s. 278.5(2): Mills, at paras. 53, 85 and 126. These factors are as follows:
(a) the extent to which the record is necessary for the accused to make a full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society's interest in encouraging the reporting of sexual offences; (g) society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process.
34As explained in Mills, at para. 101"[t]he balancing process required at the first stage ensures that records are not needlessly or casually produced to the court for review".
(ii) Production to the accused
35If the first stage is met, the record is disclosed to the judge for review. At the second stage, the judge reviews the record in the absence of the parties to determine whether it should be produced to the accused and may hold a hearing if necessary: s. 278.6(1)-(2).
36The judge may order the record produced to the accused, subject to conditions, if, after reviewing the record, the judge is satisfied that the record is "likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice": s. 278.7(1).
37In making this determination, the judge must again consider the salutary and deleterious effects of production on the accused's right to make full answer and defence and on the rights to privacy, personal security and equality of the complainant or witness or any other person to whom the record relates based on the factors in s. 278.5(2): s. 278.7(2); Mills, at para. 54. [4]
Analysis
HPS Police Records:
(a) Positions regarding Production to the Court:
17Defence counsel wrote to the Crown on January 21, 2021, requesting disclosure. In the said letter, Defence counsel stated: “It is my understanding that the police have attended at the home of the complainant several times prior to this event, and I require production of the notes and reports and 911 calls, and any other materials related to those prior visits”.
18A Case Management Coordinator in the Crown’s office responded to the Defence request by e-mail on January 27, 2021, as follows: “The request were (sic) you seek material relating to all police attendances at the victim’s residence, the Crown’s position is this is not relevant and not a part of a Pascal request so we will not be in a position to request this material”.
19In his application materials, Defence counsel stated: “In addition, the Applicant seeks to know whether the complainant has ever been a witness or complainant in any other occurrence, such that an application would need to be sought pursuant to the Quesnelle decision”. [5]
20The evidentiary basis advanced by the Defence for production of the HPS records was set out in the affidavit of Defence counsel’s legal assistant, Sharon Gillespie, sworn on November 9, 2021, at paragraph 3: “On January 21st, 2021, Mr. Adler wrote to the Crown’s office requesting disclosure, and in particular, the police records and documentation pertaining to their attendance at the home of the complainant. … Mr. Adler’s request for disclosure is based on information that he received from his client, who was residing with the complainant and the children, regarding calls made to the police by neighbours and others regarding the complainant, her treatment of the children, and other matters”.
21During oral submissions, Defence counsel supplemented the information in Ms. Gillespie’s affidavit by stating that his client, L.S., advised him that he (L.S.) learned from neighbours that there were two or three attendances by the HPS within the period of 2017 to 2020, and when asked, the complainant said it was nothing.
22Defence counsel acknowledged that, as far as he was aware, the complainant was not charged with any offences arising out of these prior police attendances. However, Defence counsel maintained that production of any records pertaining to the prior attendances was important because the law permits cross-examination of a witness regarding outstanding charges or misconduct for which charges were not laid.
23In his oral submissions, Defence counsel went on to state that if the police attendances relate to his client or the children, they are relevant and should be produced. However, Defence counsel seemingly partially abandoned the request he had made in his application materials by stating that his client is not interested in production of any police records relating to the complainant as a victim or a witness. I note, however, that the subpoena served upon the HPS encompasses all records pertaining to F.F. (and the children and the accused), which would likely include any occurrences involving F.F. as a witness, a complainant, or the subject of a criminal investigation.
24The Crown has advised the Defence that F.F. has no criminal record or outstanding charges. With respect to the request for production of the HPS records, the Crown submits that the accused has provided “no case specific evidence or information on what is sought or why it might be likely relevant beyond the credibility of the complainant/witness”. [6]
25Crown counsel points to the fact that the Defence application contains a vague and unspecific suggestion that neighbours advised the accused that there were police attendances regarding the complainant, and that these attendances were possibly related to her treatment of the children. Even if one accepts that the police, at some point, attended about F.F's treatment of the children, it did not result in an investigation that warranted alerting the accused, the father of M.F., and does not appear to have resulted in a criminal charge.
(b) Ruling:
26In Quesnelle, the Supreme Court of Canada observed that, “[p]olice occurrence reports contain information disclosed to police by the persons concerned, by third parties, or obtained by police through search, seizure, surveillance, or information sharing”. [7] The Supreme Court of Canada, in R. v. McNeil, 2009 SCC 3, noted that, “[c]riminal investigative files may contain highly sensitive material including: outlines of unproven allegations; statements of complainants or witnesses - at times concerning very personal matters….”. [8]
27The Court in Quesnelle gave examples of personal information that may be contained in police occurrence reports, such as personal conflicts, details about relationships between individuals, the extent of an individual’s engagement in the criminal justice system, or previous instances where the witness or complainant has been the victim of criminal activity, including previous sexual assaults. [9]
28The focus of the accused’s application in this case is on any police occurrences that may reveal discreditable conduct on the part of F.F., including any misconduct relating to the children. F.F. has no criminal record and no outstanding charges.
29The charges against L.S. relate to the July 15, 2020 incident that F.F. spoke of in her July 21, 2020 police statement. M.F. was unable to provide any information about the July 15th allegation when the police interviewed her on July 21, 2020. In F.F,’s second police interview on October 6, 2020, she spoke about the video she made of M.F. which purports to show M.F. talking about sexual acts committed upon her by L.S..
30I pause here to comment on the evidentiary record that was placed before me. In their submissions, Crown and Defence counsel both referred to the July 21st and October 6th police statements of F.F. The police videotaped both statements. The Defence application materials contained only cryptic summaries of the statements that were prepared by the police. I was not provided with full transcripts of F.F.’s statements, or the actual videotapes of her statements.
31Furthermore, I was not provided with a copy of the video of M.F. that was the subject of F.F.’s October 6th police interview. Accordingly, I had to rely on counsels’ materials and submissions as to what M.F. said in the video. Unfortunately, there was a lack of clarity on this issue, notwithstanding the fact that both Crown and Defence counsel are in possession of the video of M.F.. This left me to resolve the issue as best I could, on the basis of the materials and submissions I received.
32The parties chose the evidence they placed before me on the motion, declining to put the statements or the video of M.F. in evidence. It was not appropriate for the judge to determine the evidence to be tendered on the motion. The parties chose the evidence to tender, and I am restricted to analyzing the issues based on the evidence they chose to tender and counsels’ submissions.
33Paragraph 19 of the Defence Application/Factum for Disclosure and Third-Party Records states: “Coincidentally, according to the complainant, a few days after this [non-productive] police interview, [M.F.] “disclosed” the assault to her, which she managed to tape on her phone in the middle of such disclosure-omitting the start of the conversation. Several months later, she provides the video to the police, after first reporting to the CCASH that she had such a recording” [emphasis added]. Therefore, the Defence application materials suggest that M.F. spoke about the July 15th incident in the video made by her mother, F.F..
34However, in her oral submissions, Crown counsel stated that the allegation that M.F. made in the videotape is of a different sort and a different kind than the July 15th incident and did not pertain to the July 15th incident. Crown counsel confirmed that the police chose not to lay any additional charges after F.F. provided her October 6th statement. In oral submissions, Defence counsel did not take issue with Crown counsel’s characterization of the M.F. video. That is, Defence counsel did not dispute the Crown submission that the sexual abuse allegations made by M.F. in the video did not relate to the July 15, 2020 incident reported by F.F.. Therefore, for the purposes of this application, I am proceeding on that basis.
35In R. v. Pascal, 2020 ONCA 287, the Ontario Court of Appeal reviewed the use that can be made of prior convictions and outstanding charges when cross-examining a non-accused witness. [10] Although it is not in dispute that F.F. has no prior convictions or outstanding charges, the principles in Pascal are instructive and assist in resolving the issue on this application.
36Section 12(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, permits questioning a witness on whether they have been convicted of any offence. The Court in Pascal reviewed the use that can be made of misconduct when cross-examining a non-accused witness:
109As a general rule, an ordinary witness, unlike an accused, may be cross-examined on unrelated misconduct which has not resulted in a criminal conviction. This includes cross-examination on conduct that underlies charges outstanding against a witness at the time of their testimony. The purpose of this cross-examination is to impeach the witness' credibility: R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.), at pp. 443-44, leave to appeal refused, [1974] S.C.R. viii; R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.), pp. 510-11; and R. v. Gassyt (1998), 127 C.C.C. (3d) 546 (Ont. C.A.), at para. 37, leave to appeal refused, [1999] S.C.C.A. No. 143, [1999] 2 S.C.R. vi.
110As a general rule, the mere fact that a witness is charged with an offence cannot degrade the witness' character or impair their credibility. Generally this rule would mean that a witness could not be cross-examined about whether they were then charged with a criminal offence. But this rule gives way and permits cross-examination for the purpose of showing that the witness has a possible motivation to seek favour with the prosecution. A circumstance that may permit cross-examination on the fact of outstanding charges arises when the same police service that laid the charges outstanding against the witness also laid the charges against the accused about which the witness testifies for the Crown: Gonzague, at p. 511; Gassyt, at paras. 36-38; and R. v. Titus, 1983 SCC 49, [1983] 1 S.C.R. 259, at p. 263. [11]
37In our case, the Defence has sought production of all previous police contact with F.F. hoping to find some evidence of misconduct, including misconduct relating to the children. The evidentiary basis for this request is deficient. The Defence did not file affidavits from “the neighbours and others” who purportedly told L.S. that they made calls to the police “regarding the complainant, her treatment of the children, and other matters”. Nor is there an affidavit from L.S. explaining how and when he received this information from the neighbours and others, and under what circumstances.
38There is no admissible evidence on the application regarding prior police contact with F.F. for mistreatment of the children “and other matters”. What has been placed before the Court is double or triple hearsay that, perhaps at some point between 2017 and 2020, there were two or three attendances by police at the home.
39In addition to the evidentiary deficiencies in the application, the Defence has failed to articulate how prior attendances by the police at the home of F.F., even for a report of mistreatment of the children, is likely relevant to an issue at trial, and particularly to the credibility of F.F., and the reliability of her evidence.
40At this point, there is no information that M.F. has made a statement supporting F.F.’s claim that L.S. sexually assaulted her on July 15th. The prosecution appears to rest solely on F.F.’s evidence about that date. Any prior police contacts with F.F. regarding her mistreatment of the children, therefore, would not assist the Defence in advancing a theory that F.F.’s relationship with her children, particularly M.F., influenced M.F. to falsely claim that her father committed the acts alleged on July 15th. M.F. has made no such claim at this point.
41The Defence may say that there could be other misconduct by F.F., unrelated to the children, contained in the police occurrence reports upon which the Defence could cross-examine F.F., even if the misconduct did not result in charges or convictions. If the Court in Pascal stated that, generally, the fact that a witness has outstanding charges cannot impair their credibility, it is difficult to see how alleged misconduct by F.F. which did not result in charges or convictions could in any way assist the Defence. Furthermore, its probative value would be of such nominal value that production to the Court of the HPS records for review to determine if such records exist would not be necessary in the interests of justice.
42If, at some point in the prosecution, M.F. or M.F.#2 were to provide a statement supporting F.F.’s claim that the July 15th incident occurred, the situation may be different. In that situation, F.F.’s relationship with the children and her potential influence on them while in her care, may become relevant. Prior allegations reported to the police regarding her treatment of the children may, in those circumstances, become more significant.
43Should that occur, even with the limited information currently in the possession of the Defence, the Defence could request that the Crown bridge the gap by making reasonable inquiries of the HPS to determine if potentially relevant material exists and should be obtained. The Court in Quesnelle discussed the interplay between the Crown’s McNeil duties and the Mills notice obligation:
The Crown's McNeil duty to make reasonable inquiries and the corresponding police duty to supply relevant information and evidence to the Crown apply notwithstanding the Mills regime. The Mills regime governs the disclosure of "records" in sexual offence trials, but does not displace the Crown's duty to make reasonable inquiries and obtain potentially relevant material (or the police duty to pass on material to the Crown) under McNeil. As an officer of the court and Minister of Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid wrongful convictions, in the prosecutions of all offences, including sexual offences. The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence: Criminal Code, s. 278.2(3). [12]
44The application for production of the HPS records (Exhibit B on the application) to the Court for review, pursuant to s. 278.5 of the Criminal Code, is dismissed.
CCAS Records in the Possession of the Crown:
(a) Positions regarding Production to the Court:
45In his letter to the Crown dated January 26, 2021, Defence counsel wrote: “Upon my review of the disclosure checklist, I note that on page 86 of 87, under the heading “Notes for the Crown”, Officer Moore has written the following: “Following the arrest of the accused CAS provided further disclosure that was obtained by the victim’s mother”. Defence counsel asked the Crown to provide this further disclosure.
46The Case Management Coordinator in the Crown’s office provided the following response to this request on January 27, 2021: “With respect (sic) your request for the material you referenced from PC Moore’s notes, please find attached our Notice pursuant to s. 278 of the Code”. The notice that the Crown provided to the Defence pursuant to s. 278.2 advised that the Crown was in possession of CCAS of Hamilton records that relate to the prosecution of L.S. and stated that s. 278.2 prohibits the disclosure of these records except in accordance with ss. 278.3 to 278.91.
47Crown counsel says that the contents of the CCAS records that are in the Crown’s possession are unknown to the Crown. There appears to be a pervasive misconception that records that come into the possession of the Crown are not to be reviewed by Crown counsel given the potentially sensitive nature of the records. I feel it is important to point out what the Supreme Court of Canada has said on this issue in Mills and Quesnelle.
48In Mills, McLachlin and Iacobucci JJ. stated:
The second aid to the accused is the requirement in s. 278.2(3) that the prosecutor notify the accused of the private documents in his or her possession. While the contents are not to be disclosed at this stage, the notification requirement reveals the existence of the record to the accused and allows the accused to make an application for production. When notifying an accused, the Crown should ensure that information as to date and context are provided so that the documents can be sufficiently identified. This will help furnish the accused with a basis for arguing that the documents may be relevant to the defence under s. 278.5: see Boudreau, supra, per Ewaschuk J.. [13]
49In Quesnelle, Karakatsanis J. went further and said the following:
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. [14]
50Therefore, when records that are governed by the statutory scheme in ss. 278.1 to 278.91 of the Criminal Code come into the possession of the Crown, at a minimum it is incumbent on the Crown to review the records to advise if it intends to use any information contained in the records and the Crown 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.
51Based on the description of the records in the s. 278.2 notice that the Crown provided to the Defence in this case, it is reasonable to infer that the CCAS records that have come into the possession of the Crown, are records that the CCAS has produced in its “joint investigation” with the HPS into the allegations of sexual assault from July 15, 2020. These records have been made Exhibit D on the application.
52The Defence relies primarily on the fact that the CCAS and HPS conducted a “joint investigation” into the allegations against L.S.. Therefore, the Defence says, the CCAS, HPS, and the Crown, collected and exchanged information about the July 15th allegation. The Defence submits that Stinchcombe mandates the disclosure to the Defence of the CCAS records in the possession of the Crown as first party disclosure.
53In addition, in his oral submissions regarding the CCAS records pertaining to the “joint investigation”, Defence counsel pointed out that, in her July 21st statement, M.F. made no statement about sexual abuse by her father, yet within a short time after that “non-productive” police interview of M.F., F.F. produced to the CCAS a video purporting to show M.F. making allegations of sexual abuse against L.S..
54The Defence has no information about when, and in what circumstances, F.F. disclosed the existence of the video to the CCAS. All that is known is that her disclosure of the video of M.F. to the CCAS prompted a second police interview of F.F. some time later, on October 6th. The Defence says that it has no means of knowing whether F.F. made any statements to the CCAS regarding this video that are inconsistent with what she said to the police about the video.
55The Crown says that the fact that the HPS and CCAS conducted a “joint investigation” does not satisfy the onus on the Defence to establish the likely relevance of the CCAS records. [15] The Crown submits that the Defence is seeking production of these records based on nothing more than a bald assertion that they are relevant to the complainant’s credibility. Furthermore, the likely relevance standard is not met by an assertion that there is a reasonable possibility that production of the CCAS records would provide an opportunity for conducting a comparative analysis between what the complainant told the police and what she said on an earlier occasion to the CCAS. [16] As Fairburn A.C.J.O. said for the majority of the Ontario Court of Appeal in R. v. K.C., “something more is required to cloak the records in likely relevance”. [17] The Crown says that the Defence has not pointed to any case specific evidence or information to show that the CCAS records of this investigation are likely relevant to an issue at trial or the competence of a witness to testify.
(b) Ruling:
56During the October 6th police statement, Detective Michelle Moore asked F.F. whether she spoke with M.F. about what M.F. “came to talk to [the detective] about what she said?”. F.F. replied, “she honestly did not tell me, I don’t know what she said”.
57However, the following is a cryptic summary of a portion of the beginning of F.F.’s October 6th statement:
after [M.F.] felt it was serious. Before when she started talking I think she thought he was playing with her. When he do something for her he tried to trick her and show her it was a game and not real. When we came here [M.F.] get stressed and say more something. One day I was down and she was sitting on my tummy saying that in the video. I right away grab my phone and start to record …..
58F.F. appears to be referring to M.F. being stressed when “we came here”, meaning the police station, after which she (M.F.) “say more something”. Based on the limited summary of the October 6th statement that has been provided to the Court, it is unclear to me whether F.F. is saying that, after M.F.’s police interview, M.F. said more than she said to the police. If so, how would F.F. know this if she did not know what M.F. told the police?
59Regardless, what is known is that, when M.F. was interviewed by police on July 21st she made no utterances to police regarding sexual abuse by L.S.. For instance, M.F. did not provide information to the police that would support F.F.’s claim regarding the July 15th incident. There may be many reasons why M.F. did not provide any information to the police, including the fact that she is a four-year old child who has difficulty communicating.
60However, after this “non-productive” interview with M.F., the four-year old child remained in the care of F.F.. A short time after M.F.’s police interview, F.F., the only witness to the alleged sexual incident on July 15th produced a video of M.F. to the CCAS purporting to provide confirmatory evidence from M.F. herself that L.S. does indeed sexually abuse her.
61In my view, whether M.F. speaks about the July 15th incident or other incidents of sexual abuse in the video is irrelevant to my analysis on the application for production of these CCAS records. F.F., the only witness who claims that L.S. sexually abuses M.F., made a video of M.F. and provided it to the CCAS. The video F.F. provided to the CCAS contained corroborative evidence of F.F.’s claim that L.S. sexually abuses M.F.. F.F. collected this potentially corroborative evidence a short time after M.F. failed to provide any information to the police about sexual abuse, and F.F. claims that, at the time, she did not know what M.F. told the police.
62The CCAS file pertaining to this investigation likely contains the only record of the circumstances surrounding F.F.’s production of the video to the CCAS. For instance, it likely contains statements made by F.F. to the worker(s) about how she recorded M.F.’s utterances, and a record of what F.F. said to the worker(s) when she provided the video to them. There is a reasonable possibility that F.F.’s statements to the worker(s), and the circumstances surrounding her disclosure of the video to the CCAS, are logically probative to the credibility of F.F.’s claim that she did not know what M.F. said, or did not say, to the police, and to the credibility of F.F.’s claim that L.S. committed the acts alleged on July 15th.
63I have considered the factors set out in s. 278.5(2) and I find that production of the CCAS records which relate to this investigation against L.S. is necessary in the interests of justice. The statements made by the complainant to the CCAS relate to the allegations in this case and would not be of a therapeutic nature. Accordingly, the privacy interest in the record is not as high as counseling records. [18] As stated above, the probative value of the record relates to the credibility of F.F. and production, in the circumstances I have outlined above, is necessary for the accused to make full answer and defence.
64I order that the CCAS records which were in the possession of the Crown, and which are now sealed as Exhibit D on this application, be produced to the Court for review, pursuant to s. 278.5 of the Criminal Code. If the CCAS records in Exhibit D do not contain all of the records relating to F.F’s disclosure and production to the CCAS of the video of M.F. disclosing sexual abuse by L.S., I order that any additional CCAS records pertaining to this issue be produced to the Court for review.
All CCAS Records Including Prior Investigations:
(a) Positions regarding Production to the Court:
65In addition to the records relating to the current CCAS investigation, the Defence seeks production of any records in the possession of the Hamilton CCAS regarding “any other prior allegations referencing any of the children, the complainant, and/or the Applicant”.
66During oral submissions, Defence counsel made representations to the Court that were similar to those he made for the police occurrence reports. Defence counsel said that L.S. advised him that he (L.S.) learned from neighbours that, on at least one prior occasion, possibly in November of 2018, when L.S. and F.F. were living together, the CCAS came to the home as a result of a complaint involving F.F.. L.S. knows nothing about the visit and claims that F.F. refused to tell him anything more, saying it was nothing. L.S. was not contacted about this CCAS involvement.
67The Defence states that the records of any prior CCAS investigations are relevant to F.F.’s treatment of the children. In oral submissions, Defence counsel expanded on this by saying that, if the Crown were to call either of the children to testify at the trial, the records of any prior CCAS involvement with F.F. would be relevant to her influence over the children, arising for instance from fear of abuse at the hands of F.F..
68Defence counsel acknowledged that the issue of influence over the children would lose its relevance if the Crown undertook not to call the children to testify at trial. In fact, Defence counsel said that he would withdraw his request for production of the records of prior CCAS investigations if the Crown made that undertaking.
69At this point in the proceedings, the Crown was not prepared to make an undertaking that the children would not be called to testify at the trial. Nonetheless, the Crown maintains that the Defence has not presented any case specific evidence or information to show that the records of any prior CCAS investigations are likely relevant to an issue at trial or the competence of a witness to testify.
(b) Ruling:
70I agree with the Crown’s submission. Again, the evidentiary record to support the Defence request is deficient and based on double of triple hearsay. The Defence did not file any affidavits from the neighbours or L.S. to explain how the information about a possible CCAS visit in November 2018 came to the attention of L.S.. If there was a prior investigation relating to F.F.’s treatment of the children, one would think that the CCAS would have notified L.S., who was living in the home at the time.
71In any event, in addition to the evidentiary deficiencies, the Defence has failed to articulate how the records of any prior attendances by the CCAS at the home of F.F., even for a report involving her mistreatment of the children, are likely relevant to an issue at trial, and particularly to the credibility of F.F. and the reliability of her evidence.
72I reiterate, at this point, there is no evidence that M.F. has made a statement supporting F.F.’s claim that L.S. sexually assaulted her on July 15th. Any prior CCAS contacts with F.F. regarding her mistreatment of the children, therefore, would not assist the Defence in advancing a theory that F.F.’s relationship with her children, and particularly M.F., influenced M.F. to falsely claim that her father committed the acts alleged on July 15th. M.F. has made no such claim at this point.
73As I indicated in my analysis relating to the police occurrence reports, if at some point in the prosecution, the children were to provide statements supporting F.F.’s claim that the July 15th incident occurred, the situation may be different. At this point, however, the Defence has failed to articulate any basis upon which the records of any prior CCAS investigations are likely relevant and has failed to point to any case specific information or evidence to establish their likely relevance.
74The application for production of the CCAS records contained in Exhibit A to the Court for review, pursuant to s. 278.5 of the Criminal Code, is dismissed.
Exchange of Information between the Crown, the HPS, and the CCAS:
75In its application materials, the Defence requested copies of any exchange of information between the Crown, the HPS and the Hamilton CCAS “regarding these allegations, and any prior allegations referencing any of the children, the complainant, and/or the Applicant”. This request is vague and Defence counsel did not clarify exactly what materials he sought under this heading. Furthermore, Defence counsel made no oral submissions on his request for these records.
76Crown counsel interpreted the request to mean any e-mail exchanges or correspondence between the Crown and the HPS or between the Crown and the Hamilton CCAS pertaining to this investigation. The Crown collected some documents, and they became Exhibit C on the application. The Crown claimed litigation privilege over the records contained in Exhibit C. Furthermore, Crown counsel advised that the Crown has complied with its Stinchcombe obligations by disclosing all information in its possession or control relating to this investigation.
77In my view, it is unnecessary to address and resolve the Crown’s claim of litigation privilege over these documents. The Defence has failed to articulate any basis for the disclosure of records of exchanges between the Crown, the HPS and the Hamilton CCAS pertaining to this investigation, beyond what the Crown has already disclosed to the Defence in accordance with the Crown’s Stinchcombe obligations. The Crown has provided the Defence with the fruits of the investigation.
78With respect to the Defence request for exchanges relating to “any prior allegations referencing any of the children, the complainant, and/or the Applicant”, the Defence has failed to adequately identify what prior allegations this request relates to and has failed to establish the likely relevance of any such exchanges, if they exist.
79The application for production of records of exchanges of information between the Crown, the HPS and the Hamilton CCAS (Exhibit C) to the Court for review, pursuant to s. 278.5 of the Criminal Code, is dismissed.
Conclusion
80Pursuant to s. 278.5 of the Criminal Code, I order that the CCAS records, which were in the possession of the Crown and were sealed and made Exhibit D on this application, be produced to the Court for review. If the CCAS records in Exhibit D do not contain all of the records relating to F.F’s disclosure and production to the CCAS of the video of M.F. purportedly disclosing sexual abuse by L.S., I order that any additional records pertaining to this issue also be produced to the Court for review.
81The application for production of the other records, the HPS records (Exhibit B), the Hamilton CCAS records relating to prior investigations (Exhibit A), and the records of exchanges between the Crown, the HPS and the Hamilton CCAS (Exhibit C) is dismissed.
82Pursuant to s. 278.9(1)(c) of the Criminal Code, I order that there will not be a publication ban in respect of these reasons. These reasons do not include personal information that would tend to identify the complainant, the children, or the accused. The s. 486.4 publication ban relating to any information that could identify the victim, or a witness, remains in place to protect the identities of the complainant and the children, and I have used initials for all names in these reasons, including the accused’s name, to protect their identities. The publication of Court decisions ensures that the processes of the Court remain transparent and is consistent with the open court principle. [19] I find that it is in the interests of justice to publish Court reasons made pursuant to s. 278.5(1) and s. 278.7(1), provided that doing so does not reveal information that could identify the victim, or a witness, or the person to whom a record relates.
Released: March 7, 2022 Signed: Justice J.P.P. Fiorucci