WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 ..

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

COURT OF APPEAL FOR ONTARIO

DATE: 20210610 DOCKET: C67856

Fairburn A.C.J.O., Jamal and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

K.C. Appellant

Counsel: Geoff Haskell, for the appellant Samuel Greene, for the respondent

Heard: October 26, 2020

On appeal from the conviction entered by Justice J. Christopher Corkery of the Superior Court of Justice, on August 1, 2019, and from the sentence imposed on October 17, 2019.

Jamal J.A. (dissenting):

A. Introduction

[1] The appellant, K.C., was convicted following trial by judge alone of sexual assault and sexual interference of two young sisters, D. and S., and of invitation to sexual touching of D. The abuse was alleged to have occurred between February 2008 and August 2015, when the complainants were in the care of the appellant and his wife, J.C. The appellant was sentenced to five years in prison.

[2] The appellant now appeals his conviction and seeks leave to appeal his sentence. On the conviction appeal, he submits that the trial judge erred by dismissing his application for third-party records of the Ontario Children’s Aid Society (“CAS”) and in making credibility determinations. On the sentence appeal, he asserts that the trial judge erred in evaluating the mitigating and aggravating factors for sentence and by not explaining the reason for rejecting his submission for a three to four-year sentence.

[3] For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal the sentence, and dismiss the sentence appeal.

B. Background

(a) The complainants

[4] The complainants, D. and S., are sisters. Beginning in 2006 or 2007, the appellant and his wife looked after them periodically, initially as paid caregivers and later without payment. They continued to look after the complainants until 2015.

[5] D. testified that the appellant began sexually abusing her when she was about 8 years old or younger. S. testified that he began sexually abusing her when she was 9 years old and continued to do so until she was 11 years old.

[6] D. and S. were about 15½ and 14 years old at the preliminary inquiry and about 17 and 15 years old at the trial.

(b) The CAS investigation

[7] For almost a decade, the complainants went back and forth between their parents’ home and the home of the appellant and his wife. The complainants often stayed with the appellant and his wife for long weekends, holidays, and summers.

[8] In August 2015, when D. and S. were about 13 and 12 years old, the appellant and J.C. complained to the CAS that the complainants’ parents’ home was unsafe.

[9] What led to the CAS complaint was disputed. The appellant and J.C. testified that the complainants had objected to the poor living conditions at their parents’ home and had said that they wanted to stay permanently with the appellant and J.C. The appellant and J.C. referred to notes reflecting this perspective written by the complainants before their CAS interviews. The complainants, however, testified that J.C. made them write those notes to prepare for the interviews and pointed to language that only an adult would use.

[10] The CAS interviewed the complainants in August 2015. The CAS’s records of those interviews and the CAS’s follow-up was the focus of the third-party records application.

[11] At both the preliminary inquiry and trial, the complainants testified that they lied to the CAS during the interviews. They explained that J.C. was eavesdropping from the next room, so they told the CAS what J.C. told them to say — they lied about the degrading conditions in their parents’ home. They testified that they did not tell the CAS that the appellant sexually abused them. At the preliminary inquiry, D. testified that she did not disclose the abuse because J.C. was listening in the next room and “she would get mad at me if I told anything of that”. S. testified that she did not do so because the appellant and J.C. “scared me and they used to always tell us … what happens in this house stays in the house … they were very scary. They scared me.”

[12] Because the complainants did not disclose the sexual abuse to the CAS, no criminal investigation was launched at that time. The CAS concluded that the complainants’ parents’ home was safe and directed that the complainants be returned to them. The complainants never stayed with the appellant and J.C. again.

(c) The complainants’ allegations of sexual abuse

[13] About a year after the complainants returned to their parents’ home, they told their mother that the appellant had sexually abused them. In early September 2016, their mother went to the police. Each complainant gave a videotaped statement to the police, which they adopted at the preliminary inquiry and trial:

• D. told the police that the appellant would enter the complainants’ shared bedroom and bed at night. She said the appellant touched her breasts and the outside and inside of her vagina and once tried to remove her underwear and force his penis into her vagina. He only stopped when she kicked him away. She also said he once made her put his penis into her mouth and told her to “[s]uck it like a lollipop”. She said this incident happened in the basement of the appellant’s home.
• S. told the police that the appellant touched the outside of her vagina and once tried to remove her shorts, but she resisted by rolling onto her stomach.

[14] At the preliminary inquiry and trial, both complainants elaborated on their videotaped statements and disclosed more incidents of sexual abuse:

• D. testified about an incident when she woke up in the basement to the appellant watching pornography on television. She said the appellant moved towards her, “put his dick on [her] face”, and ejaculated on her face. He then “mov[ed] [his penis] all over [her] face”. She disclosed other incidents of the appellant forcing her to engage in oral sex on him, although she acknowledged that she had told the police this had happened only once. She explained she did not disclose all the abuse to the police because she had tried to block out painful memories and found it difficult to discuss these issues.
• S. also recalled waking up to the appellant watching pornography but was scared, froze, and eventually fell asleep.

(d) The trial judge’s ruling dismissing the third-party records application

[15] At the start of the trial, the appellant applied for production of the CAS records relating to its interviews of the complainants in August 2015 and any follow-up from those interviews, which occurred more than a year before the complainants told their mother about the abuse and the appellant was charged. The complainants and their mother opposed the application.

[16] On the application, the appellant accepted that the complainants did not disclose the sexual abuse to the CAS but submitted that the CAS records were essential for him to make full answer and defence. He claimed that the records were likely relevant to impeach the complainants’ credibility and to show that they had fabricated the allegations of sexual abuse after the CAS investigation. He claimed the records would allow him to compare the complainants’ testimony at the preliminary inquiry about what they allegedly told the CAS with what the CAS recorded. He argued there was an evidentiary basis to seek the records because at the preliminary inquiry the complainants admitted that they had lied to the CAS and said that they are suggestible because they suffer from fetal alcohol syndrome.

[17] In oral reasons, the trial judge dismissed the application. He concluded that the records were not “likely relevant” to an issue at trial and held that it was not “necessary in the interests of justice” for them to be disclosed to him for review. He ruled that the complainants’ admission that they had lied to the CAS about the living conditions of their parents’ home was not sufficient for the court to review those records.

(e) The reasons for conviction and sentence

[18] The trial judge reviewed the evidence of the four witnesses who testified: the complainants, the appellant, and his wife.

[19] The trial judge noted inconsistencies in the complainants’ evidence but overall was impressed by their testimony and found them to be credible and reliable. He found that although both complainants said they suffered from fetal alcohol syndrome, this did not affect their reliability. Both complainants testified in a way he found “compelling, candid, sincere, and believable”. Their evidence was “measured” and the “detail which they provided of what transpired in their young lives” was “persuasive”. They “acknowledged where there was an inconsistency and explained where their memory was not clear”. There was “no evidence of exaggeration or fabrication”. The trial judge found no evidence of collusion between the complainants and concluded that they had no motive to fabricate the allegations against the appellant more than a year after leaving his home for the last time.

[20] In their testimony, the appellant and J.C. denied the allegations outright, but the trial judge found them to be neither credible nor reliable. He viewed their attempts to address the several inconsistencies in their evidence as inadequate. He did not believe the appellant’s evidence or accept his denials. He also found that aspects of J.C.’s evidence made “no sense” and highlighted his concern that J.C. seemed aware of the complainants’ evidence as to where the sexual abuse occurred, suggesting she may have breached a court order excluding witnesses.

[21] Based on all the evidence, the trial judge found the appellant guilty beyond a reasonable doubt and convicted him of the offences with which he was charged. The trial judge sentenced him to consecutive sentences of 3½ and 1½ years for the offences against D. and S., respectively, for a total sentence of 5 years.

C. Analysis

[22] I will address the following three issues:

1. Did the trial judge err by dismissing the application for third-party records in the possession of the CAS?
2. Did the trial judge err in making his findings of credibility?
3. Did the trial judge err in imposing a five-year sentence?

Issue #1: Did the trial judge err in dismissing the application for third-party records in the possession of the CAS?

(a) Introduction

[23] The appellant’s first ground of appeal asserts that the trial judge erred in dismissing his application for third-party records in the possession of the CAS. To address this ground, I will first outline the statutory scheme for producing third-party records for sexual offences. I will then address the claimed errors in the trial judge’s analysis. As I will explain, although I agree with the appellant that the trial judge erred in part of his analysis, I conclude he did not err in dismissing the application.

(b) The statutory scheme

[24] Sections 278.1 to 278.91 of the Criminal Code, R.S.C. 1985, c. C-46, govern the production to an accused of a record in a prosecution for a sexual offence listed in s. 278.2. Under this statutory scheme, which was found to be constitutional in R. v. Mills, [1999] 3 S.C.R. 668, Parliament “sought to recognize the prevalence of sexual violence against women and children and its disadvantageous impact on their rights, … and to reconcile fairness to complainants with the rights of the accused”: Mills, at para. 59; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 30.

[25] The records subject to this scheme are defined broadly in s. 278.1 as any form of record containing “personal information for which there is a reasonable expectation of privacy”, including:

medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. [Emphasis added.]

[26] 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 (C.A.), at para. 49; McNeil, at para. 32; and Mills, at para. 99.

[27] A 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

[28] At 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 ss. 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] 3 S.C.R. 326, 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 (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] 4 S.C.R. 411, at para. 22, per Lamer C.J. and Sopinka J. (dissenting, but not on this point); R. v. L.M., 2014 ONCA 640, 122 O.R. (3d) 257, at para. 37.

[30] Section 278.3(4) lists eleven “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)).

[31] An 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.

[32] However, 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.

[33] In 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.

[34] As 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

[35] If 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: ss. 278.6(1)-(2).

[36] The 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).

[37] In 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.

(c) The appellant’s arguments

[38] The appellant asserts that the trial judge erred in dismissing the third-party records application by concluding that the appellant had not established the records were “likely relevant” and that disclosure to the judge was not “necessary in the interests of justice”. I will address each argument in turn.

(i) Did the trial judge err in concluding that the records were not “likely relevant”?

[39] The appellant argues that the trial judge misinterpreted the scope and purpose of s. 278.3(4) of the Criminal Code. He also submits he provided case-specific evidence or information to establish the likely relevance of the CAS records to challenge the complainants’ credibility because the complainants admitted at the preliminary inquiry that they had lied to the CAS.

[40] I agree with the appellant on these points.

[41] The trial judge erroneously interpreted the list of eleven “assertions” in s. 278.3(4) of the Criminal Code as a prohibited list of grounds that cannot be relied on to support production of third-party records, even if there is case-specific evidence or information to show that the records are likely relevant to an issue at trial or the competence of a witness to testify.

[42] In his oral ruling on the third-party records application, the trial judge first set out ss. 278.3(4)(d) and (e), which stipulate that assertions “that the record may disclose a prior inconsistent statement of the complainant or witness” or “that the record may relate to the credibility of the complainant or witness” are on their own insufficient to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify. He then stated that although the appellant had “established” that the records related to “credibility and inconsistency”, that could not meet the “likely relevance” standard because this conclusion was “precluded” by ss. 278.3(4)(d) and (e). He stated:

In this case, the accused has not established that beyond credibility and inconsistency, the material contained in the records would relate in any other way to the allegations before the Court. In my view, this is precisely the possible evidence that is precluded by sections 278.3(4)(d) and (e). [Emphasis added.]

[43] As explained at para. 31 above, the trial judge’s interpretation of ss. 278.3(4)(d) and (e) is wrong in law. The “assertions” in s. 278.3(4) are only “not sufficient on their own” to establish “likely relevance” — they do not preclude the disclosure of third-party records to the judge when there is case-specific evidence or information to show that the records are likely relevant to an issue at trial or the competence of a witness to testify: Mills, at para. 120.

[44] Even so, the trial judge’s finding that the appellant had “established” that the records “relate[d]” to “credibility and inconsistency” is supported on the record before him and strongly suggests that he would have found the records met the “likely relevance” standard but for his error in interpreting s. 278.3(4).

[45] The Crown, however, asserts that the appellant did not establish the “likely relevance” of the CAS records because the complainants already admitted at the preliminary inquiry that they lied to the CAS. The Crown states in its factum that “plumbing the precise details of the complainants’ statements to CAS on this collateral issue could provide nothing of value beyond that which the defence already had”.

[46] I do not agree with the Crown’s submission that the appellant failed to meet the “likely relevance” threshold.

[47] The following settled legal principles are not in dispute:

• Case-specific evidence establishing that the records relate to a complainant’s credibility at trial may meet the “likely relevance” threshold: see McNeil, at para. 33; R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at para. 82; L.M., at para. 37; and Batte, at paras. 53 and 64.
• To meet the likely relevance threshold on a matter potentially relevant to the complainant’s credibility, the accused must establish a reasonable possibility “that the records contain information not already available to the defence or information useful for impeachment”: see R. v. Sutherland (2001), 156 C.C.C. (3d) 264 (Ont. C.A.), at para. 14 (emphasis added), leave to appeal refused, [2002] S.C.C.A. No. 21; see also Batte, at para. 75 (“the records contain information which is not already available to the defence or has potential impeachment value”) (emphasis added); and L.M., at para. 37.

[48] Here, the appellant established a reasonable possibility that the CAS records had potential impeachment value. As already noted, the trial judge himself found that the appellant had “established” that the CAS records related to “credibility”, but he erroneously concluded that disclosure to him was precluded based on a misinterpretation of s. 278.3(4).

[49] The trial judge’s finding that the appellant established that the CAS records related to the complainants’ credibility was amply supported by the record and attracts appellate deference, despite his error of law in applying the “likely relevance” standard. The appellant adduced case-specific evidence or information that the records were likely relevant to the complainants’ credibility through the complainants’ admissions at the preliminary inquiry that they had lied to the CAS during their interviews in August 2015. This evidence established a reasonable possibility that the CAS records would have potential impeachment value because they would allow a comparison of what the CAS recorded with what the complainants testified they told the CAS. The potential impeachment value of the CAS records was therefore not speculative. As trial counsel for the appellant stated on the application for production, the appellant was seeking “verification” of what the complainants actually said to the CAS because they now acknowledged that they lied to the CAS. Trial counsel stated that “[t]his is an attempt to challenge the [complainants’] credibility regarding the evidence that the [complainants] have actually given about statements they’ve made to CAS”. The complainants’ admissions at the preliminary inquiry thus provided an evidentiary basis for a reasonable possibility that the CAS records would be logically probative of the complainants’ credibility, and met the likely relevance standard.

[50] As noted above, the Crown nevertheless asserts that the CAS records “could provide nothing of value beyond that which the defence already had” because the complainants had already admitted at the preliminary inquiry that they lied to the CAS. Moreover, the Crown notes that there was no suggestion that the records contained any information about the allegations against the appellant, as the complainants stated that they never told the CAS that the appellant sexually abused them.

[51] These considerations do not undercut the conclusion that the appellant had established a reasonable possibility, based on case-specific evidence, that the records contained information useful for impeachment. Even so, the points raised by the Crown are important. That the defence already knew that the complainants lied to the CAS and that the records contain no allegations of sexual abuse against the appellant should be considered in weighing whether disclosure is “necessary in the interests of justice”. Similarly, that the records contain no allegations of sexual abuse against the appellant means that the records may have low probative value and did not form part of the case he had to meet, factors that may be considered in weighing whether disclosure to the judge is “necessary in the interests of justice”. As I explain below, these are significant considerations that weigh against disclosure to the judge in this case.

[52] I would add that the Crown’s approach puts the appellant in an impossible situation: he needs case-specific evidence to establish the likely relevance of the records for impeachment, but the Crown says that same evidence undercuts his claim of likely relevance.

[53] I conclude that the trial judge erred in determining that the CAS records were not “likely relevant.” The appellant provided case-specific evidence to establish a reasonable possibility that the CAS records had potential impeachment value.

[54] Before turning to consider whether disclosure of the CAS records to the judge was “necessary in the interests of justice”, I wish to acknowledge that since preparing these reasons I have had the benefit of reading the reasons of my colleague Fairburn A.C.J.O. While I respectfully disagree with how she applies the statutory test and the governing jurisprudence for production of third-party records, I will not address our disagreements point by point as I believe my reasons, read as a whole, already explain our points of difference.

[55] I would note, however, that my colleague concludes that the appellant established the “likely relevance” of the CAS records partly on the basis that there is a reasonable possibility that they would show the complainants’ motive to fabricate the allegations of sexual abuse against him. Respectfully, I do not agree. Before this court, neither the appellant’s factum nor his oral argument addressed or even mentioned motive to fabricate as a basis for the “likely relevance” of the CAS records, nor was this issue mentioned in the Crown’s factum or oral argument. Instead, the appellant raised, and the Crown addressed, only the arguments that I have considered above. In these circumstances, I prefer to reach my conclusion on “likely relevance” based on the parties’ submissions to this court.

[56] I now turn to consider the appellant’s arguments on whether disclosure of the CAS records to the judge was “necessary in the interests of justice.”

(ii) Did the trial judge err in concluding that disclosing the CAS records was not “necessary in the interests of justice”?

[57] The appellant submits that the trial judge erred in interpreting and applying the standard of whether it was “necessary in the interests of justice” to disclose the CAS records to the judge by: (1) mischaracterizing the records sought as therapeutic counselling records; (2) failing to consider the appellant’s right to full answer and defence, in balancing the appellant’s right to full answer and defence against the complainants’ rights to privacy, personal security, and equality based on the factors in s. 278.5(2); and (3) conflating “likely relevance” with “necessary in the interests of justice”.

[58] I do not agree with these submissions.

[59] First, although the trial judge cited case law referring to “therapeutic” records as one type of highly private record “often” found in the possession of child welfare authorities, he did not suggest that all records held by a child welfare authority are necessarily therapeutic or counselling records or that the records here were therapeutic or counselling records. He understood that the appellant was not seeking therapeutic or counselling records: on the application, the appellant’s trial counsel confirmed that she sought only records relating to the interviews “in August of 2015 and any follow-up from that” and “no other involvement of this family” and, specifically, not records of “counselling being provided to the complainants or any member of this family”.

[60] I also see no error in the trial judge’s conclusion that the CAS records sought here attracted a high expectation of privacy, even though they were not therapeutic or counselling records. Parliament specifically listed “child welfare” records as a class of records that presumptively attract a reasonable expectation of privacy, whether or not they relate to counselling or therapy. Records in the possession of child welfare authorities can be “multifaceted” and “often involve documentation regarding counselling and therapy” (R. v. J.B., 2013 ONSC 481, at para. 28), but they need not do so to warrant high privacy protection.

[61] In this regard, I agree with the reasons expressed by Katarynych J. in R. v. T.F., 2009 ONCJ 656, [2009] O.J. No. 5802, at paras. 93-121, for rejecting the proposition that child welfare records attract lesser privacy protection when they do not relate to the children’s counselling or therapy. As Katarynych J. explained, child welfare records, even when not relating to counselling or therapy, can “overarch the whole of a foster child’s life in foster care” and include “particularly intrusive documentation of very personal information”: para. 97. They can “reach much deeper into a foster child’s life and times than records of a course of therapy”, and therefore deserve similar privacy protection to “thoughts laid bare during a course of therapy”: at para. 110. Trust-like relationships developed by children with child welfare authorities can be a “powerful endorsement of that child’s worth” and a key to the child’s “growth and development within the foster care system”: at para. 111. As Katarynych J. observed, “[a] foster child’s trust and communication to persons who have earned [the child’s] trust are deserving of protection. The communications within those trust-like relationships emerge from the trust, and establishing trust is tough in foster care”: at para. 114.

[62] Applications for production of child welfare records implicate not only the privacy but also the equality of the affected children because those children’s lives have been “heavily documented” by child welfare authorities: Mills, at para. 92; see also R. v. A.M., at para. 21. Through no fault of their own, such children are at risk of being treated with less dignity and as less worthy of respect and consideration than other children whose lives have not been heavily documented by the state.

[63] I therefore reject the appellant’s contention that the trial judge misunderstood the nature of the CAS documents at issue or that those documents were entitled to lesser protection than counselling records.

[64] Second, I see no basis to accept the appellant’s claim that the trial judge ignored the appellant’s right to make full answer and defence in balancing that right with the complainants’ rights to privacy, personal security, and equality based on the factors in s. 278.5(2). The trial judge noted that he had to be “satisfied that the records are likely relevant to an issue at trial and that production is necessary in the interest of justice”. He then said that he had “given specific consideration to the criteria set out in sub-section 278.5(2) of the Criminal Code and 278.3(4) of the Criminal Code”. He cited from Mills, at para. 61, which directs that the rights to be balanced include “full answer and defence, privacy, and equality”. Finally, he discussed the “very high” privacy rights attaching to CAS records and concluded that, although the complainants had admitted that they lied to the CAS, “investigating the records to determine the extent of their lies is insufficient for this Court to review the records”. The trial judge’s explicit statement and his process of analysis refute the claim that he ignored the appellant’s right to make full answer and defence.

[65] In effect, the trial judge ruled that because the complainants had admitted they lied to the CAS, the appellant had what he needed to challenge the complainants’ credibility without invading their privacy and equality rights. Whether the information sought from the third-party records is available from other sources is a proper consideration to weigh in determining whether disclosure is “necessary in the interests of justice”: see s. 278.5(2)(a); Clifford, at para. 65. In Clifford, at para. 65, Rosenberg J.A. noted that “[l]ikely relevance is not the sole consideration” in ordering disclosure of third-party records to the judge and that s. 278.5 “permits the judge to take into account a broader range of interests”, including “the privacy rights of the complainant” and whether “the information sought from [the third-party records] could be obtained from other sources.”

[66] Although the trial judge’s oral reasons are brief and somewhat conclusory, I read them as having determined that the CAS records affected the appellant’s right to make full answer and defence only marginally and that any impact was substantially outweighed by the impact disclosure would have on the complainants’ rights to privacy and equality. The records had limited impact on the appellant’s right to full answer and defence because: (i) the records were of relatively low probative value as they related to CAS interviews more than a year before the complainants first alleged that the appellant had sexually abused them; and (ii) the appellant already had what he needed to challenge the complainants’ credibility arising from those interviews because the complainants admitted at the preliminary inquiry that they had lied to the CAS.

[67] The trial judge’s approach reflected the observations in Mills, at para. 131, that “[w]here the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused’s right to full answer and defence and dismiss the application for production.” Because the records to which the appellant sought access were not part of the case he had to meet, the complainants’ significant privacy and equality rights weighed more heavily in the balance: see Mills, at para. 71. I therefore see no error in the trial judge’s conclusion. It attracts deference on appeal: Sutherland, at para. 13.

[68] Third, I reject the appellant’s assertion that the trial judge conflated the “likely relevance” threshold and the “necessary in the interests of justice” analysis. His argument relies on the following passage of the trial judge’s reasons, which he says shows the trial judge based his conclusion on “necessary in the interests of justice” entirely on his conclusion that the appellant had failed to establish “likely relevance”:

The accused has not satisfied me that apart from the possibility that the records would contain inconsistent statements by the complainants that the records are relevant to an issue at trial. Accordingly, I am not satisfied that production of the records is necessary in the interest of justice. Accordingly, the accused’s application is dismissed. [Appellant’s emphasis.]

[69] The appellant submits that this passage shows that “the trial judge saw ‘likely relevance’ as a prerequisite to meet the ‘interests of justice’ threshold”.

[70] I do not agree. Although I accept that this passage is poorly worded, I am satisfied that the trial judge considered whether disclosure was “necessary in the interests of justice” and weighed the factors listed in s. 278.5(2) — which is what he said he did. The trial judge’s reasons show that he weighed “the extent to which the record is necessary for the accused to make a full answer and defence” (s. 278.5(2)(a)), “the nature and extent of the reasonable expectation of privacy with respect to the record” (s. 278.5(2)(c)), and “the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates” (s. 278.5(2)(e)). He concluded that the significant impact of disclosure on the complainants’ rights to privacy and equality outweighed any minimal impact on the appellant’s right to full answer and defence. I see no basis to interfere with that conclusion.

[71] My colleague highlights that at trial the centrality of the CAS investigation played out exactly as the defence said it would on the third-party records application, though she notes this is not relied on to show why it was necessary in the interests of justice for the trial judge to review the records. The third-party records application must be reviewed on the basis of the information available to the trial judge at the time of the application. The appellant could have renewed the application as the trial unfolded: Mills, at para. 145; Clifford, at paras. 57, 64 and 67. He chose not to do so. In any event, the appellant’s right to make full answer and defence to the charges against him and to respond to the case he had to meet was not compromised. He received a fair trial.

[72] I therefore conclude that the trial judge did not err in refusing to order disclosure of the CAS records to the judge for review. I would dismiss the appellant’s first ground of appeal.

Issue #2: Did the trial judge err in making his credibility findings?

[73] The appellant’s second ground of appeal challenges the trial judge’s credibility findings, alleging uneven scrutiny of the evidence, insufficiency of reasons, and failure to reconcile inconsistencies in the complainants’ evidence. He asserts that the trial judge attacked his and his wife’s credibility mainly because they failed to remember immaterial details but ignored material inconsistencies between the complainants’ evidence.

[74] Given how trial judges must evaluate the credibility of child witnesses and the appellate deference owed to their credibility findings, each of these arguments faces significant hurdles on appeal.

[75] The applicable legal principles are not in dispute:

• Courts should adopt a common-sense approach when evaluating the credibility of child witnesses: R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134. Although the credibility of a child witness should be carefully assessed, a flaw in the evidence of a child witness should not be given the same effect as would a similar flaw in the testimony of an adult: R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 55. Inconsistencies, especially on peripheral matters like time and location, should be considered in the context of the age of the witness at the time of the events to which the witness is testifying: W.(R.), at p. 134; R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 11.
• Appellate courts give significant deference to credibility findings. Assessing credibility is “a difficult and delicate subject, often defying precise and complete verbalization”. Trial judges enjoy a unique position and the “inestimable advantage” of seeing and hearing the witnesses in evaluating their credibility: R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; see also W.(R.), at p. 131. The Supreme Court recently underscored that “a trial judge’s findings of credibility deserve particular deference” and that “in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial”: R. v. G.F., 2021 SCC 20, at para. 81.
• An argument based on “uneven scrutiny” of the evidence is difficult to make successfully. Credibility findings are the province of the trial judge and attract significant appellate deference. Appeal courts view this argument with skepticism because it is often “little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial”: R. v. Chanmany, 2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 88; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 30. Although a majority of the Supreme Court in G.F. expressed “serious reservations” about whether “uneven scrutiny” is a helpful or independent ground of appeal, the court did not decide the point: at paras. 100-1.
• “Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; see also G.F., at paras. 68-82.
• A trial judge need not review and resolve every inconsistency in a witness’ evidence, but they should address and explain how they resolved major inconsistencies in the evidence of material witnesses: A.M., at para. 14.

[76] When I evaluate the appellant’s arguments against these principles, I am not persuaded that appellate intervention is warranted.

[77] First, I reject the appellant’s argument that the trial judge erred by doubting the appellant’s credibility based on the appellant’s inconsistent evidence about a “‘bus stop’ incident” in May 2016, nine months after the complainants had returned to their parents’ home. The appellant gave this evidence in chief in response to a question about why the complainants might have fabricated the allegations of abuse against him. He said he and his wife stopped at S.’s bus stop and called her over to their car. He said she was crying and said her parents were saying the appellant and his wife were bad and evil people and she felt like her parents were brainwashing her. After giving this evidence, the appellant was impeached on cross-examination. He had told the police in his videotaped statement that he “ran into” S. at the bus stop, but at trial he admitted this was not true and he and his wife had gone to the bus stop specifically to see S., even though in 2015 he had been told by the complainants’ mother to have no further contact with them. He also acknowledged that he had intentionally withheld information from the police during his police statement about what S. had said at the bus stop to “see if it was useful … within the court”.

[78] The appellant says that the trial judge erred in treating this evidence as going to his credibility rather than his reliability. He claims the evidence had nothing to do with the allegations of sexual abuse. I disagree.

[79] The evidence on the bus stop incident occurred at a critical moment in the trial when the appellant was presenting his theory of the complainants’ motive to fabricate. The appellant was impeached on that evidence and he admitted that he had misled the police and intentionally withheld information from them. This evidence thus spoke directly to his credibility. The trial judge determined that the appellant’s evidence gave him “great concern” and was “confused at best, and wholly inconsistent, at worst”. I see no error in the trial judge relying on this evidence to evaluate the appellant’s credibility.

[80] I also disagree with the appellant’s claim that this evidence was immaterial to the sexual abuse allegations. The evidence spoke to the appellant’s credibility, the central issue at trial. The trial judge could consider that the appellant had been successfully impeached when trying to explain the complainants’ motive to fabricate and his reason for intentionally withholding information from and misleading the police.

[81] Second, the appellant claims that the trial judge improperly found him not credible in part by relying on inconsistencies in his wife’s evidence. Those inconsistencies related to when the appellant and his wife had tenants in their basement and when the appellant stopped storing his work clothes in the room where the complainants slept.

[82] I agree that the trial judge disbelieved aspects of the evidence of the appellant’s wife. He noted that she changed her evidence when advised of her husband’s evidence about when the appellant’s clothes were no longer stored in the complainants’ room and he found her evidence “made no sense”. He found “[m]ore troubling” her awareness of the complainants’ in-court testimony about the abuse having taken place in the basement, despite an order excluding witnesses. However, I do not read the trial judge’s reasons as having rejected the appellant’s denials based on having rejected his wife’s evidence. Instead, the trial judge properly addressed the wife’s evidence because that was part of the defence evidence before him. Far from disclosing error, the trial judge was simply weighing the evidence of all the witnesses in deciding whether he had a reasonable doubt as to the appellant’s guilt.

[83] Lastly, the appellant asserts that the trial judge failed to address material inconsistencies in the complainants’ evidence. He accepts that the trial judge said he was “[s]ensitive to the inconsistencies in their evidence” but claims that his analysis of the complainants’ credibility was “generic and vague”.

[84] I do not accept this submission. The trial judge amply explained his basis for believing the complainants’ evidence. After comprehensively reviewing their evidence, he explained that their “detail[ed]” and “measured” accounts were persuasive partly because they “acknowledged where there was an inconsistency and explained where their memory was not clear”. He found no material inconsistencies relating to the sexual abuse allegations. Both complainants testified that they were sexually abused by the appellant over several years. Both said he came into their room at night, touched their arms and legs, and sometimes touched their vaginas. Both said he did this when retrieving his clothes for work the next day. And both recalled an incident in the basement when he was watching pornography on the television.

[85] The trial judge’s reasons explain why he accepted the complainants’ evidence that the appellant had sexually abused them, why he rejected the appellant’s denials, and why the evidence as a whole did not leave him with a reasonable doubt. The trial judge examined the complainants’ evidence under a common-sense approach, mindful that they were recounting events that happened when they were young children and that any frailties in their evidence related to peripheral, not core, issues.

[86] I therefore conclude that the trial judge made no error in his credibility assessments. The appellant’s arguments on uneven scrutiny and insufficiency of reasons amount to mere disagreement with the credibility findings. The trial judge was entitled to disbelieve the appellant’s denials of the abuse and his reasons amply permit appellate review. I would dismiss this ground of appeal.

[87] I would therefore dismiss the conviction appeal.

Issue #3: Did the trial judge err in imposing a five-year sentence?

[88] Finally, on the sentence appeal, the appellant submits that the trial judge erred in his treatment of certain mitigating and aggravating factors and failed to articulate the basis for rejecting the defence’s position on sentence.

[89] I would not give effect to these submissions.

[90] An appellate court can interfere with a sentence in only two situations: (1) if the sentence is demonstrably unfit; or (2) if the sentencing judge made an error in principle that had an impact on the sentence: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41, and 44; and R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24.

[91] The appellant does not argue that the five-year sentence imposed for the serious sexual offences against two young complainants was demonstrably unfit. Instead, he asserts that the trial judge made several errors of principle that warrant appellate intervention.

[92] First, the appellant asserts that the trial judge improperly discounted the appellant’s prospects for rehabilitation and failed to give effect to mitigating factors because he noted that the appellant’s positive antecedents were “not at all unusual for sexual offenders in these circumstances”.

[93] I do not accept this argument. The trial judge did consider the appellant’s positive antecedents as mitigating factors. He noted that the appellant’s presentence report spoke well of him, he was a contributing member to his family and community, and he had no criminal record. But the trial judge gave these factors less weight, as he was entitled to do, because sexual misconduct involving children often occurs in private and will not be reflected in the offender’s reputation in the community. As the trial judge appropriately noted, citing R. v. G.W., 2017 ONSC 3149, at para. 27, “often those who commit such deplorable, deviant, self-gratifying sexual acts upon children as he has in private present as trustworthy and respectable publicly.” I see no error in that approach.

[94] Second, the appellant asserts that the trial judge erred by highlighting as an aggravating factor that the complainants were “much younger than 18 years of age”. The appellant says that because he was sentenced for convictions under ss. 151 and 152 of the Criminal Code, which require the Crown to establish that the victim was under 16 years of age, “[t]he fact that the victims were children cannot be an aggravating factor”.

[95] I do not accept this submission. In Friesen, the Supreme Court stated that “[t]he age of the victim is also a significant aggravating factor.… [C]hildren who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life”: at para. 134. The court held that the specific age of the victim is relevant “to both the gravity of the offence and the degree of responsibility of the offender” because the “power imbalance between children and adults is even more pronounced for younger children”: at paras. 134-35. The court also ruled that “the moral blameworthiness of the offender is enhanced when the victim is particularly young and is thus even more vulnerable to sexual violence”: at para. 135.

[96] It was thus entirely proper for the trial judge to consider as an aggravating factor that the complainants were young children when the appellant sexually abused them, beginning when they were less than 10 years of age. The trial judge was also entitled to find that the complainants “had [nowhere] to turn” while they lived with the appellant and his wife. As the Supreme Court has recognized, younger children are “often helpless without the protection and care of their parents” — their “dependency is usually total”: Friesen, at para. 134, citing R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66.

[97] Third, the appellant notes that the trial judge “did not refer to the defence’s position on sentence, not even in passing”. The defence had sought a sentence in the range of three to four years. The appellant asserts that the trial judge’s failure to mention the sentence sought by the appellant resulted in a sentence that “lacked sufficient analysis and now frustrates appellate review”.

[98] I disagree. The reasons must be read alongside the submissions of counsel, which clearly articulated the appellant’s position on sentence. Read as a whole, the reasons sufficiently explain why the appellant was sentenced to five years in prison given the prevailing case law. The sentence imposed heeded the “strong message” sent by the Supreme Court in Friesen, that “sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”: at para. 5. The Supreme Court directed that sentences for sexual assaults against children “must increase” and that “mid-single digit penitentiary terms” are “normal” and “upper-single digit and double-digit penitentiary terms” are “neither unusual nor reserved for rare or exceptional circumstances”: at paras. 5, 114.

[99] As a result, the reasons permit effective appellate review: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25; R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 53-54, leave to appeal refused, [2007] S.C.C.A. No. 69.

[100] I therefore see no basis to intervene with the sentence.

D. Disposition

[101] I would dismiss the conviction appeal, grant leave to appeal the sentence, and dismiss the sentence appeal.

“M. Jamal J.A.”

Fairburn A.C.J.O.:

A. Overview

[102] I have reviewed the reasons written by my colleague. I agree with my colleague’s conclusions concerning the trial judge’s credibility findings and the sentence appeal. Respectfully, however, I do not agree with my colleague’s determination of the third-party records issue.

[103] I accept my colleague’s helpful articulation of the legal principles governing third-party record applications, and I have nothing to add. I also accept the manner in which the trial judge’s error has been described in my colleague’s reasons. I read the trial judge’s reasons as suggesting that s. 278.3(4)(e) of the Criminal Code, R.S.C. 1985, c. C-46, precludes access to third-party records that are relevant only to a question of credibility. This is not so.

[104] As early as R. v. Mills, [1999] 3 S.C.R. 668, the law has provided that where there exists “case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify”, the statutory threshold of likely relevance under s. 278.5(1)(b) of the Criminal Code, which is the first step of the first stage of the third-party records analysis, may be within reach: Mills, at para. 120; R. v. L.M., 2014 ONCA 640, 122 O.R. (3d) 257, at paras. 36-37. Therefore, while a “mere assertion” that a record is likely relevant to an issue catalogued under s. 278.3(4) of the Criminal Code is insufficient to reach the necessary statutory threshold, “case specific evidence or information” justifying that assertion permits a finding of likely relevance, even where it pertains strictly to a question of credibility: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 75.

[105] My first point of departure from my colleague’s reasoning relates to the manner in which the likely relevance of the Ontario Children’s Aid Society (“CAS”) records should be articulated. When properly characterized, the likely relevance of the CAS records leads to my second point of departure, as I find that it was necessary in the interests of justice for the trial judge to review the CAS records.

[106] For the reasons that follow, I would set aside the convictions and order a new trial based solely on the third-party records issue.

B. The Likely Relevance of the CAS Records

[107] The case specific evidence informing the likely relevance of the CAS records can be traced to two sources: (1) a series of notes admittedly handwritten by one of the complainants, S., contrasting the unbearable conditions in the complainants’ parental home with the supposedly wonderful conditions in the home of the appellant and his wife; and (2) the viva voce testimony of the complainants and their mother at the preliminary inquiry.

[108] My colleague maintains, at para. 49 of his reasons, that the likely relevance of the CAS records arises from the reasonable possibility that they “would have potential impeachment value because they would allow a comparison of what the CAS recorded with what the complainants testified they told the CAS.” Respectfully, while the CAS records would certainly provide the opportunity for conducting this comparative exercise between what the complainants testified to and what they said on an earlier occasion, that could be said for many third-party records applications. In my view, something more is required to cloak the records in likely relevance. In this case, that something more came from S.’s handwritten notes and the evidence elicited at the preliminary inquiry.

(1) The Handwritten Notes

[109] The handwritten notes were written by one of the complainants, S., in preparation for the interviews with the CAS. At the preliminary inquiry, S. claimed to have written those notes at the behest of and with the assistance of the appellant’s wife. The defence counsel used the content of the handwritten notes at the preliminary inquiry to question the complainants during cross-examination.

[110] There was a stark contrast between what was contained in the notes and the sexual abuse that was reported only after the CAS investigation was complete and the complainants had returned to live at their parental home. Among other things, the notes suggested that the complainants were emotionally and physically abused in their parental home. They also suggested that the complainants were called highly derogatory names in that home, none of which are necessary to repeat in these reasons. In a different series of handwritten notes titled “What goes on in the [parental] house!”, S. also suggested that she and her sister were forced to take naked photos of their mother. S. also wrote that she was “scared to go [to the parental] home because they will keep and abuse me again and again”.

[111] Conversely, the handwritten notes suggested that the appellant and his wife made the complainants “feel safe” and that they had been with them for “10 ½ yrs [sic] and have yet seen [sic] them yell punch hit sware [sic] or abuse us in any way” (emphasis added). The notes also referenced the fact that the appellant and his wife would “take care” of the complainants and “support [them] all the way.”

[112] There is no dispute that the notes were written at a time when the sexual assaults, which had been allegedly occurring over many years, were said to be still taking place. Indeed, the indictment framed the offences as occurring between February 1, 2008 and August 31, 2015. The CAS investigation was commenced in August 2015.

(2) The Viva Voce Testimony from the Preliminary Inquiry

[113] The complainants and their mother testified at the preliminary inquiry. Their testimony formed the second piece of case specific evidence demonstrating the likely relevance of the CAS records.

[114] The defence counsel went into the preliminary inquiry armed with S.’s handwritten notes. The complainants were then questioned about what they had said to the CAS worker. They admitted to telling the CAS worker about the abusive conduct they said they were enduring in the parental home. They also admitted that they said nothing to the CAS worker about the sexual abuse perpetrated in the appellant’s home. Indeed, both complainants admitted that they had told the CAS worker that they did not want to return to their parental home, as they wished to reside with the appellant and his wife.

[115] While admitting they had said those general things to the CAS worker, the complainants attempted to distance themselves from those statements at the preliminary inquiry. The reversal of their position was dramatic. At the preliminary inquiry, both complainants said that they actually did not want to reside with the appellant and his wife. They suggested that some of the things they told the CAS worker were lies. In the case of D., she admitted that she knew that what she said could carry “consequences”, including that she could have been removed from her parental home.

[116] The complainants offered multiple explanations for why they said that they lied to the CAS worker, including that: (1) they had been “brainwashed” by the appellant’s wife into saying what they said; (2) S. admitted that she has a history of exaggerating and would sometimes “cry wolf” and lie; (3) D. admitted that she has memory problems; and (4) D. and the complainants’ mother testified that both complainants had fetal alcohol syndrome, with D. testifying that this condition made her “gullible … [and] easy to play with”. As well, both complainants suggested that the appellant’s wife, whom they said they were afraid of, was surreptitiously listening in on the CAS interviews from a different room in the appellant’s home, making it harder for them to tell the truth to the CAS worker.

[117] The complainants’ mother also testified at the preliminary inquiry. She explained how it first came to be that the complainants started staying with the appellant and his wife. The relationship commenced as one involving paid respite care for the complainants because their parents were struggling with so many children, many of whom had significant needs. It eventually turned into a more long-term relationship, one where the complainants had come to refer to the appellant and his wife as “Papa” and “Nana” and would frequently go stay at their home, including for long periods of time.

[118] The mother acknowledged also being swept up in the CAS investigation. She maintained that the allegations were unfounded. She further claimed that the complainants had told her that they made those allegations because the appellant and his wife had promised them electronics and shopping trips. The mother also maintained that the appellant and his wife wanted the complainants to be in their home to help with housework and grocery shopping.

[119] The complainants’ mother expressed the view that the appellant and his wife were using the CAS to attempt to keep her children: “they were using Children’s Aid to – to keep my children.” She admitted: “I was angry. I was upset. I was hurt. I wanted my girls home.”

[120] It was only after the CAS investigation was complete, and the complainants had been back in the parental home for about a year, that they raised the sexual assault allegations for the first time.

(3) The Appellant’s Third-Party Records Application

[121] The appellant argued at the third-party records application that the CAS records were relevant to two issues at trial: (1) to impeach the credibility of the complainants; and (2) to support the argument that the complainants had a motive to fabricate the allegations of sexual assault following the CAS investigation.[^1] The complainants and their mother were represented by counsel during the third-party records application, and they opposed the production of the CAS records. The Crown who appeared at the third-party records application took no position.

[122] At the third-party records application, the appellant pointed out that the complainants apparently went from expressing their desire to live with the appellant and his wife to claiming that they had been seriously sexually abused by the appellant in that home for many years. The only thing that had changed between the CAS investigation and the reporting of the allegations to the police was that the complainants had returned home to live with their parents.

[123] As the defence counsel put it in the third-party records application, “[s]uddenly, after CAS completes their investigation, the complainants completely change their story about their experiences with the [appellant and his wife].” The defence said that the records would reveal exactly what was said to the CAS worker by the complainants, and those details could be used to underscore the complete “change [in] their story”. In addition, the defence argued that the records would provide better insight into the scope of the CAS investigation, thereby underscoring the motive to fabricate that was said to arise from the mother’s anger over the fact of the CAS investigation.

(4) Analysis of the Likely Relevance of the CAS Records

[124] In my view, the CAS records were likely relevant to the issues of credibility and motive to fabricate. The CAS investigation stood at the heart of the appellant’s defence, and the CAS file on the matter constituted the only independent record of what actually happened in the investigation and what the complainants actually said to the CAS worker.

[125] The defence should not have been required to rely upon the testimony of the complainants for an accurate recounting of what they told the CAS worker. Whether they lied to the CAS or not was not the question requiring resolution on the third-party records application. While the complainants said they lied to the CAS worker, maybe they did lie or maybe they did not lie. That would be a question for the trier of fact.

[126] The sole question for the resolution of the first step of the first stage of the third-party records analysis – “likely relevance” – was whether there was a “reasonable possibility” that the information contained in the records would be “logically probative” to an issue at trial: Mills, at para. 45, citing R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 22, per Lamer C.J. and Sopinka J. (dissenting, but not on this point). In my view, the CAS records were logically probative for exactly the reasons the defence counsel said at the third-party records application. Perhaps most powerfully, there was more than a “reasonable possibility” that they would contain statements made to a CAS worker that were the exact opposite of what the complainants were going to testify to at trial. In my view, the defence should not have had to rely upon the complainants, who candidly acknowledged having some difficulty with truth-telling, to catalogue the things that they said to the CAS worker.

[127] While I do not suggest for a moment that statements of that nature cannot coexist with conditions of sexual abuse, and indeed they sometimes will, this does not undermine the fact that such statements can be logically probative of issues of credibility and reliability. Therefore, I see the likely relevance of the CAS records in this case as extending well beyond having some potential impeachment value arising from inconsistencies that may materialize through a comparative exercise between the CAS records and what the complainants testified they told the CAS.

[128] Moreover, the entire CAS investigation was said to be the catalyst for a motive to fabricate. As Doherty J.A. said in Batte, at para. 120: “It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence.”

[129] There is no magic in the use of the term “motive to fabricate” because, at its core, it just means that there exists a reason for why someone might lie. The trial judge dealt with the motive to fabricate/reason to lie defence position in his ruling, the ruling appealed from, referencing the fact that: “The defence argues on this application that the mother may have manipulated [the complainants] out of anger and frustration as a result of the CAS investigation.” There was an evidentiary foundation for that position, as reflected in the transcript of the mother’s testimony from the preliminary inquiry, which transcript formed part of the record placed before the trial judge during the third-party records application, and which transcript the parties agree is properly part of the record on appeal.

[130] As the appellant argued in his factum and in oral submissions on appeal, the evidentiary foundation on the third-party records application, including the preliminary inquiry evidence, demonstrates the “major concerns about [the complainants’] reliability and credibility”. In this regard, the appellant emphasized in his factum on appeal the following passage from the trial judge’s ruling:

In their preliminary inquiry evidence, the complainants testified that they spoke well of [the appellant] and his wife and poorly about their mother’s home. Then, when the CAS investigation was completed, the complainants suddenly and completely changed their story, raising new allegations against [the appellant]. [Emphasis in the appellant’s factum.]

[131] The “completely changed their story” language, located in the trial judge’s reasons, and emphasized by the appellant on appeal, is the very foundation of the fabrication argument at trial and on appeal: that the complainants fabricated the allegations only after returning to their mother’s home. Given the complainants’ acknowledgements that they had some difficulty with the truth, including that S. had a history of exaggerating and lying and that D. is “gullible … [and] easy to play with”, there was also an evidentiary foundation for this position. That evidentiary foundation was reinforced by their mother’s testimony, acknowledging that, given their fetal alcohol syndrome, the complainants were like “sponges” and would sometimes tell lies, as people could put words in their mouths.

[132] Coming to understand the depth of the complainants’ mother’s anger over the CAS investigation was critical to the defence counsel’s theory regarding a motive to fabricate. Without the CAS records, the defence was deprived of the most accurate insight into the factual underpinnings motivating that anger.

[133] In my view, the CAS records easily passed the likely relevance threshold under s. 278.5(1)(b) of the Criminal Code.

C. The Production of the CAS Records is Necessary in the Interests of Justice

[134] My colleague, at para. 66 of his reasons, characterizes the trial judge as having found that the “CAS records affected the appellant’s right to make full answer and defence only marginally and that any impact was substantially outweighed by the impact disclosure would have on the complainants’ rights to privacy and equality.” For the purposes of these reasons, I am prepared to accept this characterization of the trial judge’s finding. My colleague endorses the trial judge’s reasoning and conclusion on this point. Respectfully, I do not.

[135] I take no issue with the strong privacy interests contained in the CAS records and have nothing to add to my colleague’s helpful review of the legal authorities on this point. In these reasons, I have kept squarely in mind the privacy, personal security, and equality of children who come into contact with the CAS, many of whom already come from highly marginalized and difficult circumstances: Mills, at para. 92; R. v. A.M., at para. 21. As Wein J. noted in A.M., at para. 21, those who come into contact with the CAS are at risk of having their lives documented, which places “an already marginalized group at a further disadvantage by making them the subject of additional scrutiny”. I agree with that important observation, and I endorse the view that CAS records must be carefully guarded. Even so, they cannot be guarded at all costs.

[136] Section 278.5(2) of the Criminal Code provides a list of many factors to be taken into account when determining whether the trial judge should review the third-party records after the issue of likely relevance has been determined in the affirmative. While “the nature and extent of the reasonable expectation of privacy with respect to the record” and “the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates” are factors under ss. 278.5(2)(c) and (e) of the Criminal Code, there are others. For example, s. 278.5(2)(a) requires the judge to take into account “the extent to which the record is necessary for the accused to make a full answer and defence”. All of these factors and more are to be considered when determining whether it is necessary in the interests of justice that the “likely relevant” third-party records should be produced to the trial judge for review.

[137] As I read my colleague’s decision, at para. 66, the first reason given to explain why the appellant’s ability to make full answer and defence was outweighed by the complainants’ rights to privacy and equality is that the CAS records only had a “relatively low probative value”.

[138] The difference between third-party records that are found to be “likely relevant”, yet of only “low probative value”, is a nuanced one. I need not delve into that distinction because, in my view, the CAS records were not of low probative value. To the contrary, and for the reasons already expressed, the CAS records stood at the other end of the probity spectrum. The preliminary inquiry evidence demonstrated that there was a near certainty that the CAS records would contain reliable, independent evidence of what was said to the CAS worker, which would stand in opposition to what the complainants would testify to at trial. There was also a near certainty that the CAS records would contain reliable, independent evidence about the CAS investigation itself, something that would further inform the defence counsel’s allegation of a motive to fabricate.

[139] The second reason given by my colleague, at para. 66 of his reasons, to explain why it was unnecessary in the interests of justice for the trial judge to review the CAS records is that “the appellant already had what he needed to challenge the complainants’ credibility arising from those [CAS] interviews because the complainants admitted at the preliminary inquiry that they had lied to the CAS” (emphasis added).

[140] Respectfully, I do not agree with this reasoning because, in my view, it does not grapple with the true relevance of the CAS records. The fact that the complainants testified at the preliminary inquiry that they had lied to the CAS worker was not relevant to whether there was a “reasonable possibility” that the information contained in the CAS records would be “logically probative” to an issue at trial: Mills, at para. 45, citing O’Connor, at para. 22, per Lamer C.J. and Sopinka J. (dissenting, but not on this point). While the complainants’ evidence regarding their lies to the CAS worker and their reasons for having lied would no doubt weigh heavily in the assessment of their credibility at trial, that evidence did not serve to neutralize the probative value of what was very likely to be found in the CAS records. To suggest otherwise is the equivalent of saying that the complainants should be believed when they say they lied to the CAS worker. However, what if they told the truth to the CAS worker and were later lying at the preliminary inquiry about having not told the truth? Surely that was an issue for the trier of fact to sort out at trial.

[141] This is not a case where the defence was grasping at straws about what might be in the CAS records. It is a case where everyone knew that the CAS records likely contained references to what the complainants told the CAS worker, and that those things would stand as the antithesis to what they would testify to at trial. All the defence needed were the actual CAS records, which would have provided the most accurate look into the CAS investigation and the most precise description of what the complainants actually told the CAS worker.

[142] In short, the defence should not have been required to rely on the evidence of the complainants to recount with accuracy the things they said to the CAS worker or the circumstances surrounding the CAS investigation, both of which went to the very core of the appellant’s defence. This is particularly true given that the complainants had an admittedly difficult relationship with the truth.

[143] Accordingly, in my view, the appellant did not already have what he needed to challenge the complainants’ credibility because the complainants admitted that they had lied.

[144] Along these same lines, while I do not rely upon the trial record itself for the purposes of explaining why it was necessary in the interests of justice for the trial judge to review the records, it is worthy of mentioning that the centrality of the CAS investigation played out exactly as the defence counsel said it would at trial. So much so that the only thing missing from the trial were the actual CAS records that would have provided the most accurate account of the circumstances surrounding the investigation.

[145] Even the trial Crown appreciated the relevance of the CAS investigation to the appellant’s defence, asking the complainants questions about the following topics:

• How the CAS became involved;
• Why they had lied to the CAS worker about the conditions of their parental home and of the home of the appellant and his wife;
• Whom they spoke to at the CAS, the name of the CAS worker who interviewed them, and the spelling of her name;
• The locations where the interviews with the CAS worker took place and who was present at those interviews; and
• Why they no longer stayed at the home of the appellant and his wife after August 2015, which was the month that coincided with the CAS investigation.

[146] Notably, both the appellant and his wife testified at trial, denying having coached the complainants to lie to the CAS. They also denied being involved in the preparation of S.’s handwritten notes. While the appellant’s wife admitted at trial that she took the initial steps to get the CAS involved, she testified that she did so in consultation with a lawyer and only because the complainants were making so many concerning allegations about their parental home environment.

[147] Again, this was not your typical third-party records application. There was nothing collateral or peripheral about the CAS investigation or the records recording that investigation. Considered in its entire context, and as informed by how the trial unfolded, the CAS investigation was central to the appellant’s defence at trial. Consistent with how it was argued at the third-party records application, the appellant’s defence played through as expected. The only thing they did not have were the actual CAS records that would have provided an accurate look into what was actually said and what actually happened in that CAS investigation.

[148] In my view, it was necessary in the interests of justice for the trial judge to move to the second stage of the third-party records analysis and review the CAS records.

D. The Second Stage of the Third-Party Records Analysis

[149] The respondent argues that if this court finds a reversible error in the trial judge’s approach to the third-party records application, then rather than sending the matter back to a new trial, this court ought to receive and review the CAS records that were filed as a sealed exhibit at trial and conduct the second stage of the third-party records analysis. Only after that determination is made could this court decide whether a new trial is necessary.

[150] The respondent is proposing that we use this court’s power under s. 683(1)(a) of the Criminal Code to order the production of the sealed CAS records. While there is some authority for this court to conduct such an exercise, I would decline to do so here: see R. v. Bradey, 2015 ONCA 738, 331 C.C.C. (3d) 511, at paras. 72-74, 104-12.

[151] In my view, the likely relevance of the CAS records is clear in this case, as are the interests of justice. The trial judge should have looked at the CAS records, and the second stage of the analysis should have unfolded in accordance with the statutory scheme.

[152] I have little doubt that, subject to editing, the CAS records would have been released, in light of the evidence given at the preliminary inquiry and the central focus of the appellant’s defence at trial. Considering the entire context of this case, to embark upon the second stage of the analysis at this point would only serve to slow the new trial down.

E. Disposition

[153] I would set aside the convictions and order a new trial. Presumably, if the parties and the Superior Court of Justice were in agreement, the issue involving the third-party records could proceed directly to the second stage of the analysis at the new trial.

Released: “J.M.F. June 10, 2021”

“Fairburn A.C.J.O.”

“I agree. Coroza J.A.”

[^1]: The appellant’s Notice of Application sought “all records of the [CAS] in relation to [the complainants’ mother] and [the complainants]”. During oral submissions at the third-party records application, the defence counsel narrowed the application, targeting only the records related to the interviews conducted in August 2015 and any follow-up from those interviews. The defence counsel acknowledged that if, “by chance”, the CAS records contained reference to other involvement with the complainants or their family, that this was not something that the defence was seeking to have disclosed.