Court File and Parties

Court File No.: 11-2835 Date: March 1, 2013 Ontario Court of Justice

Between: Her Majesty the Queen — and — Eric Patrick Blair

Before: Justice Gregory A. Campbell

Heard: February 7, 2013

Counsel:

• B. Manarin for the Crown
• G. Goulin for the Accused

RULING

THE PROCEEDING

[1] On April 2, 2012, Eric Patrick Blair (hereafter "the offender") was found guilty of armed robbery, assault with a weapon and breach of probation for having possessed a knife that was used during the robbery. After entering findings of guilt, the crown moved for a remand assessment. I remanded the offender to the custody of Dr. Komar, a psychiatrist, to conduct the assessment and prepare a report to be used on sentencing or as may be required on the dangerous offender application.

[2] On May 15, 2012, Detective Chris McKenzie of the Windsor Police Services swore an information, pursuant to s. 487.012 of the Criminal Code of Canada, to obtain a production order in regard to documents in the possession of the Windsor-Essex Children's Aid Society. The Justice of the Peace granted the order. Included among the terms and conditions for production and release of the documentation was the requirement that the 3rd party records be retained in the custody of the officer and not opened before 14 days from execution of the warrant and further provided that if no application is brought on two days notice to the Crown and third party within the 14 days, the package will be unsealed.

[3] On May 16, 2012, counsel for the offender gave notice that his client objected to opening the sealed package of materials and for corollary relief, including production of the information to obtain the order and leave to examine the contents or records obtained from the Windsor-Essex Children's Aid Society in advance of any ruling concerning disclosure of the sealed package. An interim order for the corollary relief was allowed on consent and the offender's counsel was afforded an opportunity to review the documentation obtained and the information to obtain the order. A formal application to exclude from evidence on the dangerous offender application the materials seized under the production order, was filed on grounds indicating that the disclosure of the records seized would be contrary to the common law and s. 8 of the Canadian Charter of Rights and Freedoms.

POSITION OF THE PARTIES

[4] Counsel for the offender essentially argued that the production order should not to have issued because the Justice of the Peace could not reasonably have believed the documents sought would afford evidence respecting the commission of the offences, which included all five charges, insofar as the accused had already been found guilty of counts one, three and five.

[5] Moreover, counsel for the offender also submitted that the records were sought for the purpose of assisting Dr. Komar with his report, and insofar as the report had been completed and filed in accordance with the timelines prescribed by statute, the purpose for which the records were sought was no longer a valid concern.

[6] The Crown argued that the court has embarked upon a sentencing hearing that includes an application that will require it to consider whether Mr. Blair is a dangerous offender and as such, the documentation is relevant and ought to be released.

[7] The Crown further argued that while the form and content of the order indicates there were grounds to believe the documentation will afford evidence respecting the commission of the offence(s), the order should not be considered a nullity as any error in this regard is technical in nature and, in the circumstances, even if the production order should not have issued because of this irregularity, any breach or violation against the accused's right to be secure against unreasonable search and seizure is, because of its technical nature an insufficient reason to exclude the evidence from the hearing. Rather, counsel urged me to find that records should be produced and admissible under s. 24(2) of the Charter of Rights and Freedoms as it would not bring the administration of justice into disrepute.

ANALYSIS

[8] The order is presumed to be valid. It is the moving party's onus to demonstrate otherwise.

[9] The information to obtain was sought under s. 487.012 of the Code. The informant said he had reasonable grounds to believe and did believe that certain offences were not only committed but that the documents sought would afford evidence that would assist in sentencing of the offender. A review of the information to obtain the warrant reveals that the informant disclosed the material facts that led to the conviction, including the commencement of the preliminary hearing followed by guilty pleas entered to counts one, three and five.

[10] The informant set out a summary of prior convictions and indicated that the Crown Attorney had taken steps to embark upon a dangerous offender hearing.

[11] The informant disclosed that a remand assessment was ordered and went on to indicate that in the informant's opinion, the psychiatrist should have the benefit of the historical records in the possession of the Children's Aid Society but indicated there were time constrains insofar as the remand assessment had to be completed within 60 days. Additional information is provided in regard to the dangerous offender proceeding, relevance and a summary of case law addressing these issues which apparently the informant reproduced from a working template.

[12] It is clear from a review of the information to obtain the warrant, notwithstanding the order indicating it was granted on the basis there were reasonable grounds for believing the documents and/or data would afford evidence of the offences, the Justice of the Peace fully appreciated that findings of guilt had been made and that the reason for the request was to assist in regard to sentencing and a dangerous offender application. I am of the opinion that the use and reliance upon s. 487.012 for this purpose was valid and appropriate.

[13] I adopt the decision and reasoning of D.J. Gordon J. in R. v. Middeljans, [2009] O.J. No. 5028, following the decision of his brother Langdon J. in the Superior Court of Justice in R. v. Ongley, [2003] O.J. No. 3934, concluding that a broad interpretation ought to be given to s. 487.012 for the purpose of obtaining records relevant to sentencing, and especially when it involves a dangerous offender application.

RELEVANCE

[14] In and as part of the underlying concern about privacy counsel indicated that the production order equates to a fishing expedition insofar as it is impossible to make any determination as to relevance insofar as the records are sealed and the court is without the benefit of any insight in regard to what information is contained within the documentation that has been produced by the Society.

[15] Insofar as privacy is concerned, it is important to appreciate that Mr. Blair has been found guilty of the offences. While his rights under the Charter are not negated, his privacy interests must be measured against relevant considerations associated with sentencing. The Supreme Court of Canada addressed this in R. v. Jones, [1994] 2 S.C.R. 229. In Jones, the accused was remanded for a capacity assessment following the laying of charges for sexual assault. The accused later plead guilty and a dangerous offender proceeding followed. Counsel relied on s. 7 of the Charter and argued that the psychiatric assessment as to capacity should not be admissible in the dangerous offender proceeding, insofar as the accused had not been warned and did not appreciate the report could be used for that purpose. At paragraph 119 of the decision the Court stated the following:

"Full s.7 protection in the pre-trial phase is essential to ensuring that an accused is not found culpable as a result of non-voluntary statements made against himself. That logic cannot easily be transferred to the post-trial phase. Given that guilt has conclusively been determined by that time, I do not believe the logic of Hebert applies. As this court held in Lyons, ss.7 to 14, protection has a more limited scope when applied to the sentencing process. Once guilt has been established, our fundamental principles of justice dictate a focus on the most appropriate sentence for the guilty party. To assume that s. 7 post-trial protection should be identical to pre-trial and trial protection ignores a rather critical intervening fact: the accused has been found guilty of a crime. Having so found, the court places greater emphasis on the interests of society in developing a sentence that is appropriate to the guilty party. Evidence introduced at trial may be used in this assessment. I would argue that evidence emerging from a psychiatric evaluation should be similarly treated."

[16] The documentation at issue does not arise from pre-trial activities but was procured from a third party by a valid production order. The records sought were for the purpose of assisting the psychiatrist with the remand assessment. What is important to my mind is that while the impetus for the request at the time may have been to provide the Dr. with the records, there can be no doubt that the information to obtain the order was in the broader context for the purpose of gathering information believed to be relevant to the sentencing/dangerous offender proceeding that was then and is currently ongoing.

[17] At paragraph 14 of the information to obtain the order, the affiant confirmed that he spoke with the Windsor-Essex Children's Aid Society intake worker and confirmed the offender had been a client on several occasions and that there was a file in existence about the offender as a child and other entries for him as an adult.

[18] The Child and Family Services Act allows the Minister of Community and Social Services to designate and approve agencies as Children Aid Societies. Windsor-Essex Children's Aid Society is a designated and approved agency. Section 1 of the Act describes the paramount purpose of the legislation, and accordingly the responsibility of the approved agencies, to promote the best interest, protection and well-being of children. The Act describes the functions of the Society at s. 15 to include, amongst other things, "investigating allegations that children are in need of protection" and to "provide guidance and counselling services to families for prevention." Produced as Exhibit Nos. 1 and 2 on the application were letters from the Children's Aid Society to Windsor Police Services from 2003 involving Mr. Blair and an ongoing investigation.

[19] In R. v. Jones, supra, at paragraphs 123 and 124, the court stated the following:

"As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender.

In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety. If there is, the dangerous offender sentencing allows the justice system to more precisely tailor the actual time served by the offender to the threat that he poses to society."

[20] And at paragraph 125:

"The sentencing stage places a stronger emphasis on societal interest and more narrowly defines the procedural protection accorded to the offender. If the sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information."

[21] In light of the defining responsibilities and mandate of the Windsor-Essex Children's Aid Society, as defined in the Child and Family Services Act, the facts set out at paragraph 14 of the information to obtain and the letters filed all indicating that the Society has in its possession records in regard to Mr. Blair, both as a child and as an adult, I am satisfied that the records of the society under seal are at least logically relevant to the issue of sentencing and the dangerous offender hearing. And from the foregoing, it is likewise reasonable for me to conclude that the records would have probative value, at least to the extent of providing additional information for review and consideration by the expert or experts who may be called at the hearing to testify.

[22] I appreciate that business records of this nature may contain hearsay information. Experts are, of course, entitled to consider hearsay for the purpose of providing their opinion and to that extent may of course be challenged in cross-examination. Certainly, a wholesale ruling by me to allow the filing of this documentation at the hearing, notwithstanding s. 30 of the Canada Evidence Act and the common law dating back to Ares v. Venner, could prove problematic so I do not propose to rule on the admissibility of the documentation at this juncture. I am, however, satisfied that the sealed records are relevant and ought to be produced, subject to rulings on admissibility as documentary evidence, if it should prove necessary. Having regard to the cooperation between counsel to this stage and their knowledge and expertise, I anticipate the need for any further rulings in this regard would likely be limited.

CONCLUSION

[23] The production order was essentially, and in material ways, valid as it addressed the production of documents relevant to sentencing. To the extent there were technical irregularities, as I have discussed, I believe the decisions in R. v. Ongley and R. v. Middeljans adequately addressed similar concerns. However, those decisions both being trial decisions and not the subject of any review, I would add only this. If it were necessary, I would redact the Production Order to remove the phrase, "one or more offences contrary to an act of Parliament, have been committed" and excise from the record there were reasonable grounds for believing that the documents and/or data "will afford evidence of the said offence(s)" and concurrently amplify the order to provide that there were "reasonable grounds for believing that the Windsor-Essex Children's Aid Society had in its possession documents and/or data that will likely afford evidence that will assist in sentencing the offender." Authority for this step is found in R. v. Garofoli, [1990] 2 S.C.R. 1421, at paras 56, 83-89; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras 57-60; and R. v. Bisson, [1994] 3 S.C.R. 1097 at para 2.

[24] I am therefore satisfied and hereby direct that the documentation, data and records under seal shall be unsealed and made available to the Crown as relevant documentation for consideration in the context of the sentencing/dangerous offender hearing. The documentation may be reproduced and disclosed to expert witnesses and to the extent necessary relied on or considered for the purpose of providing evidence to the court at the hearing. However, the admissibility of the documentation alone will be dealt with either by consent of counsel or, if contentious, by a ruling of this court.

CHARTER S. 24(2)

[25] Counsel suggested that I ought to address s. 24(2) of the Charter regardless of my ruling.

[26] There can be no doubt that if there was an infringement of the accused's right to be secure from unreasonable search and seizure that the infringing state conduct was not serious. The officer who swore out the information to obtain the order for production set out all the necessary and salient facts suitable for the Justice of the Peace to rely upon for granting the order. Notwithstanding an indication that the records were being sought for the purpose of investigation of offences, the materials made it clear that the accused had been found guilty of the offences and no further evidence was being sought for the purpose of prosecuting the offender but rather the focus of the request was to obtain records relevant to sentencing. Moreover, counsel acknowledged during submissions that the officer at all times acted on good faith.

[27] The offender's concern was not only in regard to the information and procedure, but also in regard to privacy rights. The impact of any breach on the offender's Charter protected interests in privacy must be measured, as I indicated earlier in these reasons, against the fact that this is a sentencing hearing coupled with the dangerous offender application in respect of a person who has already been found guilty. It is necessary for the court to have full access to Mr. Blair's background to fashion a just and fit sentence, having regard not only to his interests but also the security and protection of society as a whole.

[28] It was not unreasonable for the State to seek production of the records. It was not as if the officer was on a frolic of his own. He not only had good reason for requesting copies of the agencies files, but he had documentation and information from and directly connected to the agency confirming the existence of documentation that would likely serve to provide insight in regard to Mr. Blair's past involvement with an agency that is charged with the protection of children and providing support to families involved with children in need of protection.

[29] Finally, it may be worth stating the obvious. Society has a vested interest in seeing that this sentencing hearing, which includes a dangerous offender application, is fairly and properly adjudicated. Just adjudication requires the court to have as complete as possible the historical background of Mr. Blair which ought to include his family history and involvement with the Windsor-Essex Children's Aid Society as a community agency.

[30] To the extent there may have been a Charter violation, I am satisfied that the records at issue are relevant and should be produced for review and consideration in this sentencing hearing and dangerous offender application. I am also satisfied that disclosure of these records will not bring the administration of justice into disrepute.

Released: March 1, 2013

Gregory A. Campbell Justice