The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213,
271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step- daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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.
Toronto
O N T A R I O C O U R T O F J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
— AND —
ROBERT COUSINEAU
Before Justice Mara Greene
Reasons for Judgment released March 23, 2026
S. Rothman………………………………………………………………………………………..……………..for the Crown
J. Berkes……………………………………………………………………………………..………….for Robert Cousineau
1On February 4, 2024, Mr. Cousineau was charged with numerous offences. After trial, he was found guilty of four of the offences, all of which related to making and possessing child pornography. Upon being convicted, Crown counsel notified the court that he would be seeking an assessment to determine whether to bring a dangerous offender application. Counsel for Mr. Cousineau advised that he would be seeking bail pending sentence. A date was set to hear both applications.
2Prior to the bail hearing that was scheduled for August 14, 2025, Crown counsel filed extensive materials including records pertaining to Mr. Cousineau that the Crown had obtained from youth and adult correctional facilities. All this material was received prior to Mr. Cousineau’s trial. The adult records had been received by the Crown in September 2024. The youth records were received by the Crown on January 5, 2025. All this material was received pursuant to a memorandum of agreement that permitted the Crown to obtain these records for the purpose of an application for dangerous offender assessment only.
3The youth records included psychiatric information about Mr. Cousineau and his childhood diagnoses which included ADHD and Fetal Alcohol Syndrome.
4Given the fact that this material was in possession of the Crown, defence argued that this material ought to have been disclosed. Mr. Cousineau sought a stay of proceedings as a remedy for the section 7 violation. In the alternative, counsel argued that the nondisclosed material could not be used for any purpose related to the Dangerous Offender application. I dismissed the application with reasons to follow. These are my reasons.
Position of the Parties
5Counsel for Mr. Cousineau argued at trial that the material in the possession of the Crown was not clearly irrelevant and as such ought to have been disclosed. He further argued that his ability to make full answer and defence was impacted by the Crown’s failure to disclose because the information in the youth records about his mental health issues may have impacted his decision to concede voluntariness of a statement the Crown elected not to lead at trial. He further argued that this material could reasonably have assisted with an application he had previously made for exclusion of Mr. Cousineau’s cellular telephone or a stay of proceedings as a remedy for a breach of Mr. Cousineau’s right to remain silent which was dismissed earlier in these proceedings.
6Crown counsel, on the other hand, argued that the material, while technically in the possession of the Crown, was only in their possession for a limited purpose not linked to the trial. It was only relevant to a potential application for an assessment under s.752 of the Criminal Code, if Mr. Cousineau was convicted after trial. This material only related to past conduct in state facilities and as such was not relevant to any issue at trial. In these circumstances, there was no obligation on the Crown to disclose this material to the defence. Moreover, since this material was not relevant to any issue at trial, Mr. Cousineau suffered no prejudice.
Relevant Legal Principles
7There is no dispute that the Crown has an obligation to disclosure all material in their possession that is not clearly irrelevant or privileged (R. v. Stinchcombe 1991 45 (SCC), [1991] 3 S.C.R. 326). This obligation to disclose is protected under section 7 of the Charter and is linked to an accused person’s right to make full answer and defence and to know the case he has to meet.
8The obligation on the Crown to disclose all material in its possession is not a new concept. It is entrenched in the Charter and also forms part of the Crown policy manual. While there may be occasions where disclosure can be delayed, these are rare circumstances and must be justified.
9In relation to potential remedies for a failure to disclose, in R. v. Barra, 2021 ONCA 568, the Court of Appeal for Ontario held that to obtain a 24(1) remedy for a breach of disclosure post- conviction, the applicant must also show on a balance of probabilities that the right to make full answer and defence has been violated. The Court of Appeal held as follows,
[138] The right of an accused to disclosure is but one component of the right to make full answer and defence protected by s.7 of the Charter. No bright line rule equates a violation of the right to disclosure with a breach of the right to make full answer and defence: R. v. Dixon, 1998 805 (SCC), [1998] 1.S.C.R. 244, at para.31; R. v. Bjelland, 2009 SCC 38; [2009] 2 S.C.R. 411 at para. 21. It follows that an accused must do more than show a breach of the right to disclosure to obtain a remedy under s.24(1) of the Charter ; Bjelland, at para 21, citing R. v. O’Connor, 1995 51 (SCC, [1995] 4 S.C.R. 411, at para 74. That something more is to establish, on a balance of probabilities, that their right to make full answer and defence has been violated; Dixon, at para. 32; Bjelland, at para 20.
10In order to establish that the failure to disclose affected the applicant’s right to make full answer and defence, the applicant must show that there is “a reasonable possibility the non-disclosure or delayed disclosure affected the outcome at trial or the overall fairness of the trial process” (see R. v. Dixon, supra at para 33 and R. v. Barra, supra, para 139). This reasonable possibility must not be speculative. It must be “grounded on reasonably possible uses of the non- disclosed or untimely-disclosed evidence, or reasonably possible avenues of investigation that were closed to the appellant because of the non-disclosure or late disclosure” (See R. v. Barra, supra, at para 140).
11Once the applicant overcomes this threshold, the Applicant is entitled to any remedy that is just and appropriate in the circumstances (R. v. Bara, supra).
Application to the Case at bar
(a) Was there a breach of the obligation to disclose ?
12In the case at bar, in preparation for an application for an assessment under section 752.1 of the Criminal Code, Crown counsel obtained Mr. Cousineau’s files from a youth facility and from correctional facilities. The sole purpose of obtaining this information was to prepare for the above noted assessment application. The Crown had no intention of using this material at trial. The information included in this material was limited to conduct and assessments made while Mr. Cousineau was in correctional and youth facilities. It related to past conduct and risk assessment and had nothing to do with the charges before the court. Once the conviction was registered the Crown disclosed the material to counsel for Mr. Cousineau. In light of this, Crown counsel argued that the material was clearly irrelevant. He further argued that the material was only received by way of a memorandum of understanding between the Ministry of the Attorney General, the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services dated April 29, 2009. Crown counsel argued that had he reviewed this material prior to a conviction, this may have also led to a further breach of Mr. Cousineau’s rights.
13In support of his argument, Crown counsel cited a host of cases where other courts have addressed, with approval, Crown counsel’s decision to obtain this same kind of material prior to conviction. For example, in R. v. Notfall 2019 ONSC 4241, Molloy J., in dealing with the validity of a production order, commented with approval on the Crown’s use of the MOU to obtain this material. In R. v. Charley 2019 ONCA 726, the Court of Appeal commented that the Crown obtained material pursuant to the MOU prior to conviction and did not express any concern about this process. In that case, however, the issue was whether an 11(b) violation occurred. The Court was not asked to address the issue of whether this material ought to be disclosed prior to trial.
14In my view, none of the cases the Crown provided specifically address whether this material ought to be disclosed, and as such do not provide real guidance on this issue. I do note, however, that the cases do identify the value the obtaining this information early on in the process. Dangerous offender hearings are time consuming, lengthy and often result in significant delays in sentencing. In part because the assessment process takes so long but also because the collection of material can also be time consuming. The court should encourage Crowns to be efficient and collect material as soon and as quickly as possible. There is an overall benefit to the system and the accused for the Crown to obtain this material early.
15In my view two issues arise when addressing the issue of whether this material ought to be disclosed prior to trial. First of all, as Crown counsel identified in his material, according to the MOU which permits the Crown to even access this material, it is only for an application pursuant to section 752.1 of the [Criminal ]Code. As such, it may very well be improper for the Crown to review this material prior to a conviction being entered. Secondly, in the vast majority of cases this material will be completely irrelevant to any issue at trial. This is important to keep in mind when one considers the time associated with disclosing this material prior to trial. Correctional records can be voluminous, and the Crown is required to vet the material prior to disclosing it. This is because the records may include privileged information or private information about other inmates. Given the volume of material involved, requiring disclosure prior to trial could significantly delay the trial over material that in most cases is clearly irrelevant.
16In the unique facts of this case, I cannot find that that the material in question was clearly irrelevant. Counsel for Mr. Cousineau argued that had he had the youth reports about his client’s diagnosis of ADHD and FASD prior to trial he would not have conceded voluntariness of a statement the Crown ultimately chose not to tender at trial. Counsel, as an officer of the court made this submission and as such, I accept that he may have taken a different position at trial if he had this material. In light of this, I cannot find that the material was clearly irrelevant. This, is my view, leads to a finding of a breach of the obligation to disclose.
17Having said that, while there is a disclosure breach in the case at bar given the unique facts of this case, in the vast majority of cases, there will be no disclosure obligation. This is because in the vast majority of cases this material will be completely irrelevant to the trial proper. As a result, I do not want this judgment to be read as requiring the Crown to always review, vet and disclose these records prior to trial. In my view, the Crown will meet its disclosure obligation by alerting defence counsel to the fact that this material is in their possession but will not be reviewed or disclosed prior to a conviction being entered. This allows for the defence to bring a pre-trial request/application for the material if counsel is of the view that it might be relevant to fact in issue at trial without requiring the Crown to unnecessarily vet a large volume of material before trial.
Was Mr. Cousineau’s ability to make full answer and defence impacted by the failure to disclose?
18In the case at bar, counsel for Mr. Cousineau argued that the non-disclosed material was relevant to the trial because it included refence to the fact that Mr. Cousineau was diagnosed with FASD and ADHD as a young person. Counsel argued that had he possessed this material he would not have conceded voluntariness of a statement that the Crown did not adduce at trial. To understand this argument, it is helpful to review the history of these proceedings.
19At the beginning of the trial, Crown counsel indicated his intention to introduce at trial a statement made by Mr. Cousineau to the police at the time of his arrest. Counsel for Mr. Cousineau conceded voluntariness of this statement but argued that Mr. Cousineau’s section 10(b) Charter rights were violated. After hearing all the evidence on the application, the Crown advised the court that he was no longer going to rely on this statement at trial. This made the section 10(b) argument moot since the remedy counsel sought was exclusion of the evidence.
20A short time later, counsel for Mr. Cousineau brought an application for a stay of proceedings (or in alternative exclusion of a cell phone) in light of a violation of Mr. Cousineau’s section 7 rights in relation to this same statement. Counsel argued that the police intentionally engaged in trickery when they elicited a statement from Mr. Cousineau without him understanding the full extent of his jeopardy. Since the Crown was no longer seeking to tender Mr. Cousineau’s statement, counsel for Mr. Cousineau argued that the appropriate remedy for the Charter breach was either a stay of proceedings or that the cellular telephone seized by police be excluded. I dismissed this application on the basis that Mr. Cousineau’s admission that the statement was voluntary was dispositive of the issue. This is because in R. v. Singh 2007 SCC 48, the Supreme Court of Canada held that in these circumstances the section 7 right to silence and voluntariness are “functionally equivalent” (R. v. Cousineau 2025 ONCJ 425). In relation to this disclosure application, Mr. Cousineau argued that a different ruling may have resulted from the first section 7 breach allegation application (the right to silence) had he not conceded voluntariness. In this context, the failure to disclose did impact his ability to make full answer and defence.
21Respectfully, I disagree with this submission. I note that in my original section 7 ruling, I held that even if I was mistaken about the section 7 breach, the remedy sought by counsel was still not available. I conducted a full analysis under section 24(1) and 24(2) of the Charter (R. v. Cousineau, supra, at paras 25-43). In my view, while the voluntariness concession may have impacted the section 7 breach finding, it would not have resulted in a stay of proceedings or the exclusion of any evidence other than the statement, had the Crown sought to tender it. It is therefore my view that the failure to disclose did not and could not have impacted Mr. Cousineau’s right to make full answer and defence.
22Crown counsel further argued that there was no impact on Mr. Cousineau’s ability to make full answer and defence because he was well aware of his client’s mental health diagnoses prior to trial. During his statement to police, Mr. Cousineau stated that he suffered from FASD. Counsel for Mr. Cousineau responded by arguing that his client’s utterances to police are significantly different from the kind of information about Mr. Cousineau’s mental health issues that were included in the youth records. I agree with counsel for Mr. Cousineau that there is a material difference between having a written report confirming a diagnosis and a client’s assertion that diagnosis exists. It does not, however, necessarily follow that his right to make full answer and defence was affected by the non-disclosure.
23When I look at this case in its entirety, the only identifiable issue that the non-disclosed material could have even remotely been relevant to was voluntariness of a statement the Crown elected not to introduce at trial. In my view, counsel’s concession on voluntariness would not have impacted the outcome of trial or any of my rulings at trial. I further find that the failure to disclose this notionally relevant material did not affect the fairness of the trial. The material was obtained solely for the purpose of a post-conviction application, it was not held back for a nefarious purpose and the non-disclosure that did not impact Mr. Cousineau’s ability to make full answer and defence. In my view, Mr. Cousineau has failed to establish on a balance of probabilities that the fairness of the trial or his right to make full answer and defence was affected by the non-disclosure. As such I find that no remedy is required in the case at bar.
Released March 23 2026
Justice Mara Greene