WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

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

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

This hearing is also governed by section 278.9 of the Criminal Code, which provides as follows:

278.9…Publication prohibited.— (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

(2) Offence. — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

☒ An order has been made under s. 278.9(1)(c) allowing these reasons to be published, broadcast or transmitted.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 12 21 COURT FILE No.: Toronto 20-55001542

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DIEGO DONCEL

Before: Justice Peter N. Fraser

Heard on: November 18 & 22, 2021 Reasons for Judgment released on: December 21, 2021

Counsel: A. Rajan, counsel for the Crown D. Gravesande, counsel for the accused Diego Doncel S. Rahim, counsel for the complainant R.W.

Fraser J.:

PART I – Overview

[1] The applicant stands charged with committing a sexual assault against R.W. on May 27, 2020. He applies, pursuant to section 278.3 of the Criminal Code, for production of various third-party records relating to the complainant. R.W., who was represented by counsel on this application, resists production of the records in their entirety. The Crown adopts and amplifies the position taken by complainant’s counsel.

[2] On November 25, 2021, I released the following endorsement with reasons to follow:

Pursuant to section 278.5(1) of the Criminal Code, I will allow the application in part, and order that only a specific subset of the records identified in the Notice of Application be produced to the court for review.

I will order production of any record of a formal assessment or diagnostic evaluation of the cognitive functioning of R.W. as may be in the possession of the following record holders:

• The Centre for Addiction and Mental Health 1001 Queen Street West Toronto, Ontario
• Surrey Place 2 Surrey Place Toronto, Ontario
• Department of Neurology Toronto Western Hospital 399 Bathurst Street Toronto, Ontario

With respect to records in the possession of the Toronto Police Service, the application is denied. No records will be ordered for review by the Court.

With respect to records in the possession of the Crown Attorney, the application is denied, and no records will be ordered for review by the Court.

[3] These are my reasons for the foregoing decision, as mandated by section 278.8 of the Code.

A. Factual Background

[4] R.W. suffers from a severe mental disability, which has been characterized variously on this application as global developmental delay, developmental disorder and intellectual cognitive disorder. She also suffers from epileptic seizures. R.W. was 39 years old at the time of the alleged offence. Her cognitive abilities do not correspond accurately to any one particular age range, as her strengths are greater in some areas than others. In many respects, her abilities are akin to those of a young elementary school child. In other ways, her deficits are even more profound.

[5] On May 27, 2020, the complainant was with her father at a Shoppers Drug Mart in Toronto. A young man on a bike, alleged to be the applicant, engaged her in conversation and asked if he could take her for ice cream. The complainant’s father requested a name, phone number and address from the man and took a photo of him on his cellular phone. He then permitted R.W. to accompany the man on the bike.

[6] According to R.W.’s videotaped statement to police, the young man lead her into an alley and sexually assaulted her. She returned home after the incident and disclosed the sexual assault to her father.

B. Scope of the Application

[7] The application, as framed, casts an extremely wide net. The records fall broadly into two categories: (1) medical and therapeutic records, and (2) records relating to an unrelated criminal charge in which R.W. was the complainant.

[8] With respect to medical and therapeutic records, the applicant seeks the following records:

• From the Centre for Addiction and Mental Health: “any and all records” related to psychiatric or psychological treatment, therapy or counselling received by R.W. since 2011.
• From Surrey Place: “all medical records” relating to any treatment regime, therapy, counselling, psychiatric or psychological services received by R.W. All notes, reports or statements of R.W. relating to the allegations before the Court or any prior assault or sexual assault allegations.
• From the Department of Neurology at the Toronto Western Hospital: “any and all records” of any treatment of R.W.

[9] With respect to the unrelated criminal charge, the applicant seeks the following records:

• From the Toronto Police Service: any occurrence reports and any statements made by R.W. or any other witness in connection with allegations of assault or sexual assault against R.W. made prior to May 27, 2020. The name of the accused person, information number and the courthouse where the information was filed.
• From the Crown: the information number in connection with allegations of assault or sexual assault between 2016 and 2018 in which R.W. was the complainant.

PART II – The Statutory Scheme

[10] In cases of sexual assault, applications for production of third party records are governed by sections 278.1 to 278.91 of the Criminal Code, commonly known as the Mills regime. The regime reflects Parliament's intention to accommodate and reconcile the right of the accused to make full answer and defence with the privacy and equality rights of complainants in sexual offence cases: R. v. Quesnelle, 2014 SCC 46 at para. 14. Records are defined broadly in s. 278.1 to include any record that contains personal information for which there is a reasonable expectation of privacy.

[11] Production of such records follows a two-stage process under the statutory scheme: (1) disclosure to the judge (s. 278.5) and (2) production to the accused (s. 278.7): R. v. Mills, 1999 SCC 637, [1999] 3 S.C.R. 668 at para. 53; R. v. Quesnelle, supra, at para. 15. These reasons relate to the first stage of the application.

[12] Section 278.5 of the Criminal Code provides as follows:

Judge may order production of record for review

278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that

(a) the application was made in accordance with subsections 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.

Factors to be considered

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account:

(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.

[13] The phrase “likely relevant” in s. 278.5 connotes “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”: R. v. Mills, supra, at para. 45, 124; R. v. K.C., 2021 ONCA 401 at para. 29, 126. This is a higher threshold than that which applies to Crown disclosure under R. v. Stinchcombe, 1991 SCC 45, [1991] 3 S.C.R. 326, but it is not an onerous burden: R. v. Mills, supra, at para. 46, 124, 126; R. v. Batte, 2000 ONCA 5751, [2000] O.J. No. 2184 at para. 76; R. v. K.C., supra, at paras. 29, 103.

[14] In addition, s. 278.3(4) provides a list of grounds which are not sufficient on their own to establish likely relevance:

Insufficient grounds

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant’s sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

[15] While none of the mere assertions listed above are capable of establishing likely relevance, an accused may rely on them if there is an “evidentiary or informational foundation to suggest that they may be related to likely relevance”: Mills, supra, 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: R. v. K.C., supra, at paras. 31-32, 103-104.

Part III – Likely Relevance to the Complainant’s Capacity to Testify

[16] The applicant argues, pursuant to s. 278.5(1)(b) of the Code, that records sought via this application are likely relevant to the question of the complainant’s competence to testify. This prong of his argument relates only to therapeutic records in the possession of CAMH, Surrey Place and Toronto Western Hospital.

[17] The Crown and complainant submit there is no legitimate issue as to R.W.’s testimonial competence and, therefore, the records sought fail to meet the threshold of likely relevance. In the alternative, the respondents argue that production of the record is not necessary in the interests of justice.

[18] I would stress that I make no finding here with respect to the complainant’s capacity to testify. I examine this question only insofar as to determine whether the issue is sufficiently engaged as to be capable of supporting the applicant’s request for therapeutic records.

A. The Test for Capacity

[19] Capacity to testify is governed by section 16 of the Canada Evidence Act, which provides as follows:

Witness whose capacity is in question

16 (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and

(b) whether the person is able to communicate the evidence.

Testimony under oath or solemn affirmation

(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

Testimony on promise to tell truth

(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

No questions regarding understanding of promise

(3.1) A person referred to in subsection (3) shall not be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

Inability to testify

(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

Burden as to capacity of witness

(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

[20] Section 16(3) above represents the minimum standard for testimonial competence involving an adult witness with a mental disability. The section imposes two requirements: (1) the ability to communicate the evidence and (2) a promise to tell the truth. There is no additional requirement that the witness demonstrate, in the abstract, an understanding of the nature of the obligation to tell the truth. The inquiry into the witness’ ability to communicate the evidence requires the trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions: R. v. D.A.I., 2012 SCC 5 at paras. 64, 74, 82.

[21] The Supreme Court has held that the phrase “communicate the evidence” in s. 16 of the Canada Evidence Act indicates more than a mere verbal ability. Instead, testimonial competence requires: (1) the capacity to observe (and interpret); (2) the capacity to recollect; and (3) the capacity to communicate. The threshold is not a high one. What is required is the basic ability to perceive, remember and communicate regarding the contentious parts of the witness’ evidence with some independence and not entirely in response to suggestive questions. This being established, deficiencies of perception and recollection of the events at issue may be dealt with as matters of weight: see R. v. D.A.I., supra, at para. 72; R. v. Marquard, 1993 SCC 37, [1993] 4 S.C.R. 223 at paras. 13-14; R. v. Parrott, 2001 SCC 3 at para. 56, R. v. Caron, [1994] O.J. No. 1591 at para. 12.

B. The Evidence in This Case

[22] In my view, the evidence led on this application establishes that there is a potential issue as to the complainant’s capacity to testify. This comes from the statements of her father, H.W., her personal support worker, C.N., and from my own observations of the complainant’s videotaped statement to police on May 28, 2020.

[23] According to the complainant’s father, R.W. has an “uneven mixture of maturity and immaturity.” Her reading capability falls at a grade four or five level, but she cannot understand what she reads beyond a single sentence. He reports that, “Her long-term memory is foggy” and that “things shift around.” She can “exaggerate sometimes and can get things mixed up”, but she has no history of lying to him or making up stories. He asserts that the complainant knows right from wrong.

[24] The complainant’s father also states that R.W. “cannot relate to abstract questions.” He has explained that, “she doesn’t have a great imagination in that way, but she does tell me what goes on in her life.” He reports that she is “terrible with time and places. She couldn’t tell you where she lives, her address.” He has likened the process of communicating with the complainant to putting together a puzzle. In order to understand her narrative of events, one has to listen to her for a long time and put the pieces together.

[25] The complainant’s personal support worker also identified issues surrounding R.W.’s memory. C.N. reports that R.W. is not able to say what she had for lunch the day before, but she is able to remember important events and certain obscure details. She also alluded to R.W.’s difficulty with abstract questions.

[26] My own observations of R.W.’s videotaped statement accord with the information supplied by the complainant’s father and personal support worker. There were obvious cognitive deficits.

[27] R.W. was able to answer certain simple questions in a manner that was responsive and indicated her understanding. However, many other answers were not responsive to the questions asked and raised serious concern about her comprehension. For example, R.W. was asked when in the sequence of events she was pushed down and she answered, “It was the very corner of the wall.” She was asked how long the man’s penis was in her mouth and she answered, “At twelve o’clock in the afternoon.” When asked if it was a short time or a long time, she answered it was “four times.” When asked how tall the man was she answered, “He’s white.” And she provided a long series of unresponsive answers to repeated questions about how the assault ended.

[28] In general, the complainant had a very difficult time describing events in any kind of chronological sequence. She did not appear to know how old she was, as she deferred this question to her father. Some issues with vocabulary were also apparent. R.W. did not know what the word detective meant. She appeared to confuse the words insult and assault. And she did not appear to understand the distinction between breasts and nipples.

[29] In view of the foregoing, there is an issue as to the complainant’s capacity that is rooted in case specific information and is not reliant on any stereotypical assumptions connected to the complainant’s mental disability.

C. Likely Relevance of the Records

[30] The next question I must address is whether any of the records being pursued are likely relevant to the issue of testimonial competence. In my view, the application is far too broadly conceived in this respect. Essentially, the applicant seeks “any and all records” related to any psychiatric or psychological treatment, therapy or counselling from CAMH, Surrey Place and the Department of Neurology at Toronto Western Hospital. Given her condition, these are service providers with whom R.W. has been associated for many years. The application as drafted would implicate numerous records only tangentially connected to the issue here and many more with no connection at all.

[31] In my view, only a narrow subset of the requested records meet the threshold of likely relevance to the issue of R.W.’s testimonial competence. I would define that subset as any record of a formal assessment or diagnostic evaluation of the cognitive functioning of R.W. Materials of this nature are likely to contain formal diagnoses of R.W.’s mental disability. This information would offer clarity about her cognitive condition. Materials of this nature are also likely to provide reliable and measurable data about the way R.W. observes, recollects and communicates. This information would have a direct bearing on the issue of testimonial capacity as defined above.

[32] The respondents, relying on R. v. Parrott, supra, argue that expert evidence is not generally receivable at a competency inquiry under s. 16 of the Canada Evidence Act and, therefore, records produced by expert medical professionals should not be produced pursuant to s.278.5. I read Parrott as standing for the proposition that trial judges must not normally cede the assessment of testimonial competence to expert witnesses without hearing from the complainant directly (which occurred in that case). The Supreme Court observed that trial judges are well positioned to assess testimonial competence, but did not preclude the possibility that expert evidence might be called to assist them in their determination. In fact, that scenario was expressly contemplated in the decision: R. v. Parrott, supra, at paras. 52 & 63; see, also, R. v. D.A.I, supra, at para. 80.

[33] Nor should relevance be equated with admissibility in the context of this inquiry. In my view, records may be relevant to the question of testimonial capacity without being admissible at the hearing itself. The materials may assist counsel in preparing to litigate the issue or lead to additional avenues of inquiry. If admissibility was a requirement at this stage of the proceedings, the subsequent application contemplated under s.278.92 of the Code, which deals with the admissibility of records in the possession of the accused, would be superfluous.

Part IV – Likely Relevance to an Issue at Trial

[34] The applicant also submits that the records he seeks are likely relevant to an issue at trial; namely the credibility and reliability of the complainant. In appropriate cases, these issues can serve as the basis for production under s. 278.5 of the Code: R. v. K.C., supra, at para. 103. The Crown and complainant, however, argue that the records fail to meet the threshold of likely relevance in this case. In the alternative, the respondents submit that production to the Court is not necessary in the interests of justice.

[35] The applicant’s position can be distilled to three main arguments. First, he argues that R.W.’s counselling and therapeutic records will yield information about her cognitive functioning. Second, he argues that counselling and therapeutic records may contain inconsistent statements about the allegations before the Court, which could be used to impeach the complainant. And third he argues that records in the possession of the police and the Crown pertaining to an unrelated criminal charge in which R.W. was the complainant may provide information relevant to her credibility or reliability.

A. Cognitive Functioning

[36] On the first point I agree with the applicant in part. I have already found that a narrow subset of the records sought by the applicant are likely relevant to the issue of testimonial competence; specifically, any record of a formal assessment or diagnostic evaluation of the cognitive functioning of R.W. I find that same group of records is likely relevant to the complainant’s credibility and reliability at trial.

[37] I am mindful of the Supreme Court’s admonition in R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411, at paragraph 143, against stereotypical assumptions about people with mental disabilities:

[T]he mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of his or her testimony. Any suggestion that a particular treatment, therapy, illness, or disability implies unreliability must be informed by cogent evidence, rather than stereotype, myth or prejudice. For these reasons, it would also be inappropriate for judicial notice to be taken of the fact that unreliability may be inferred from any particular course of treatment.

[38] In this case there is cogent evidence, as summarized at paragraphs 22-29 above, that R.W.’s cognitive deficits impact her ability to perceive, interpret, recall and communicate with respect to the events in issue. These faculties are integrally connected to the issue of reliability. They may apply also to the closely related issue of credibility. R.W.’s mental disability will present unique challenges to the parties when conducting their examinations, and to the Court when evaluating her evidence. In my view, the limited records I have identified are likely to assist with these tasks.

[39] I do not find that any records, beyond the narrow scope I have defined, meet the standard of likely relevance in this case. I am not otherwise persuaded that R.W.’s years of counselling, therapy and treatment have any material bearing on the issues of her credibility or reliability at trial.

[40] The applicant has outlined the basis for relevance in very general, and at times speculative, terms. For example, he argues that counselling and therapy records from CAMH and Surrey Place may reveal, “how the nature of the therapy and its objective is related to the complainant’s aptitude or lack thereof in recalling occurrences…”. He further submits that records from CAMH, “may also reveal other mental health issues besides those already disclosed.”

[41] With respect to records from Toronto Western Hospital, he submits that the records will yield information about the complainant’s difficulty with balance and movement. This, he argues, is relevant because the complainant has indicated she was pushed to the ground and at another point said she tripped and fell. The line of reasoning through which these medical records would become useful is tenuous at best.

[42] Likely relevance is not an onerous standard, but it does require something concrete in the evidence demonstrating that the record sought actually contains the information indicated and that the information is, in turn, relevant to an issue at trial.

[43] The fact that R.W. suffers from cognitive deficits is not enough to permit the Court to peruse her entire therapeutic history in search of relevant material. A mental disability must not serve as a wedge that opens the door to a host of private records and personal information. Based on this part of the applicant’s argument, I am persuaded that only records of a formal assessment or diagnostic evaluation of R.W.’s cognitive functioning meet the threshold of likely relevance.

B. Potential for Impeachment

[44] The applicant’s second argument is that therapeutic records will yield inconsistent statements from R.W. about the present charge. This argument hinges principally on a series of alleged inconsistencies in the complainant’s reporting of the alleged sexual assault to various people. In its responding materials, the Crown has revealed many of the alleged inconsistencies to be trifling or non-existent. I do accept that the application record indicates inconsistencies on a few points, most prominently with respect to whether or not anal penetration occurred. In other areas, R.W.’s difficulties communicating make it unclear what her evidence really is.

[45] In my view, inconsistencies in the complainant’s disclosed statements do not go very far on their own toward justifying the production of therapeutic records. And as the Supreme Court observed in O’Connor, supra, at para. 144:

[I]t must not be presumed that the mere fact that a witness received treatment or counselling after a sexual assault indicates that the records will contain information that is relevant to the defence. The focus of therapy is vastly different from that of an investigation or other process undertaken for the purposes of the trial.

[46] In this instance, there is no case specific information indicating the allegations were discussed at all by the record holders in question. Even if a record is likely to contain a statement about the events in question, that does not mean it is likely relevant. The Ontario Court of Appeal made this observation in R. v. Batte, supra, at para. 71:

…the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.

[47] In the instant case, there is no basis to suggest that R.W.’s statements about the incident, if they exist at all, would be inconsistent with her anticipated testimony at trial. In R. v. K.C, supra, the complainants’ own testimony at the preliminary inquiry revealed that they had “completely changed their story” from what they had previously told the Children’s Aid Society. In other cases, a material difference between the complainant’s initial statement and her evidence at a preliminary inquiry, coupled with the fact the complainant had spoken to a therapist about the case in between those events, has served to establish likely relevance: R. v. Batte, supra, at para. 76; R. v. MacArthur, 2014 ONSC 5583. There has been no comparable foundation established in this case.

[48] I am not satisfied that any records requested by the applicant meet the threshold of likely relevance based on their potential to contain inconsistent statements about the incident in question.

C. Unrelated Criminal Charges

[49] The applicant seeks a wide range of information from the Crown and police in connection with a previous criminal charge for which R.W. was the complainant.

[50] The complainant’s father indicated in his statement that R.W. was assaulted some three years earlier. The accused in that case was an elderly neighbour, who completed counselling and apparently plead guilty; though the complainant’s father also reported that R.W. had a “restraining order” against him. Factually, there is no apparent connection to the circumstances of the case before me.

[51] In R. v. Quesnelle, supra, the Supreme Court ruled that the Mills regime contained in s. 278 of the Code applies to police occurrence reports not directly related to the charges against the accused. There is a reasonable expectation of privacy in these records. Regarding the question of relevance, the Court observed the following at paragraph 17:

The mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution. The Mills provisions echo this Court's frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials. For example, the fact that a complainant has reported sexual violence in the recent or distant past, provides sexual services for money, or suffers from addiction is not, without more, enough to render a police occurrence report "relevant".

[52] The applicant suggests there may be similarities between the prior incident and the case at bar, which may in turn bear on the question of the complainant’s credibility. I find this submission to be speculative. The applicant further submits that, if the prior charge was not prosecuted, that decision might have been informed by a recantation or loss of memory by the complainant. This is pure speculation. In my view, there is no case specific information indicating the prior charge has any relevance to an issue in this case. Records relating to this incident in the hands of the police or the Crown are not, therefore, likely relevant to an issue at trial.

[53] In the alternative, the applicant seeks disclosure of the name of the accused person in the prior case, the information number, and the courthouse where the information was filed. The applicant’s purpose here is to obtain a copy of the information, which is a public document, from the office of the court clerk. This may provide him with the details he needs to order transcripts or copies of any exhibits filed concerning the other matter, all of which are matters of public record. The Crown counters that the identifying details being sought are part of the very “records” at issue here and should not be disclosed other than via the Mills regime.

[54] I agree with the Crown. In my view the defence should not be able seek, by way of disclosure, certain discrete pieces of information contained in records it has failed to obtain pursuant to s. 278.5 of the Code.

[55] The applicant relies on R. v. Bartholomew, 2017 ONSC 3084, for the proposition that an information is a public document and is therefore not subject to the Mills regime. In that case, Campbell J. found that access to a psychiatric report concerning a sexual assault complainant, which had been filed as an exhibit in another case where the complainant stood accused of a crime, was not governed by ss. 278.1 to 278.91 of the Code. Instead, the usual test governing access to court exhibits, established by Dagenais v. Canadian Broadcasting Corp., 1994 SCC 39, [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, applied.

[56] Under the Dagenais/Mentuck framework, the “open court principle” is the starting point and access to court proceedings in criminal cases is presumed. As Campbell J. explained, any restrictions on access can only be ordered where the party seeking such a restriction is able to establish, through convincing evidence, that: (1) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the restriction outweigh the deleterious effects on the rights and interest of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice: R. v. Bartholomew, supra, at para. 11; Dagenais v. Canadian Broadcasting Corp., supra, at para. 98; R. v. Mentuck, supra, at paras. 23-39.

[57] In my view, Bartholomew does not assist the applicant in this instance. I agree that the Dagenais/Mentuck standard would govern access to the charging document in the other case involving R.W.; however, the applicant is not seeking access to the document here. He is seeking information that will allow him to find the charging document (and the transcript and exhibits thereafter). This may seem a fine distinction when the defence may well be entitled to those materials, regardless of relevance. However, the fact that the applicant is entitled to fish in the pool of public documents does not mean the Court’s power to order disclosure and production can be used to assist in the expedition. The identifying details the applicant seeks are contained in records governed by ss. 278.1 to 278.91 of the Code; records which I have found do not meet the standard of likely relevance. I decline to order disclosure on this basis.

[58] In the further alternative, the applicant argues that he must be granted disclosure of the name of the accused from the other proceeding in order to fulfil his obligations under s. 278.3(5) of the Code. That section provides:

The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 60 days before the hearing referred to in subsection 278.4(1)

[59] The applicant relies on R. v. Shaughnessy, 2012 ABQB 399, a decision of the Alberta Court of Queen’s Bench, for the proposition that in order to serve his application on “any other person” to whom the record relates, he must be advised as to whom the records relates. I find that this interpretation runs contrary to the plain language of the section, which limits service to “any other person to whom, to the knowledge of the accused, the records relates.” This caveat expressly acknowledges that the accused may not know all the parties implicated in the record. And it clearly provides that his obligations regarding service are satisfied nonetheless.

[60] In the case of police occurrence reports, the identity of the accused person is a material particular that is capable, all on its own, of deep intrusions into the protected sphere of a complainant’s right to privacy and personal dignity. By way of example, the name of the accused could reveal that sexual violence was committed against the complainant by an intimate partner, a colleague, or even a family member. This type of information should not be disclosed as a matter of course simply to facilitate service of the application. That practice could potentially circumvent the broader purpose of the Mills regime.

[61] I would also observe that police occurrence reports regularly contain the names of a great many people. Disclosure of all their names (and presumably addresses) for the purpose of serving the application is both impractical and unnecessary. The Mills regime is focussed on the difficult balance between the right of the accused to make full answer and defence and the privacy and equality rights of complainants in sexual offence cases: R. v. Quesnelle, supra, at para. 14. These purposes should not be encumbered, or worse frustrated, by the mechanistic expansion of protected interests to peripheral figures to the proceeding. If some other person’s privacy interests are meaningfully engaged, for example where an occurrence report contains information about another sexual assault complainant, both the Crown and the Court are well positioned to raise the issue.

[62] I respectfully decline to follow the reasoning in R. v. Shaughnessy, which is not binding on me. For the reasons stated, I decline to order disclosure of the accused’s name in the unrelated proceeding involving R.W.

PART V – Whether Production is Necessary in the Interests of Justice

[63] Having found that some records are likely relevant to an issue at trial and to the competence of the complainant to testify, I must now consider whether production of those records to the court for review is necessary in the interests of justice.

[64] I am guided by the factors contained in s. 278.5(2) and in subsections (a) to (h) therein. I do not propose to address each factor expressly in these reasons, but I have carefully considered each of them. The Supreme Court in R. v. Mills, supra, at paragraph 133, held that “The criterion in s. 278.5 that production must be ‘necessary in the interests of justice’ invests trial judges with the discretion to consider the full range of rights and interests at issue before ordering production, in a manner scrupulously respectful of the requirements of the Charter.”

[65] If a record is established to be "likely relevant" and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document: R. v. Mills, supra, at para. 132.

[66] The credibility and reliability of the complainant are no doubt central issues in this case. There is no other direct evidence of the acts alleged. Given the challenges associated with R.W.’s cognitive deficits, the narrow set of records I have identified are potentially highly probative.

[67] I am mindful of society’s broader interest in encouraging the reporting of sexual offences and encouraging complainants to seek treatment. Given the very limited scope of the records I have found to be likely relevant, I believe these interests would be minimally impacted by their production to the court. I note that the review contemplated at this stage is done by the Court alone and occurs in the absence of the parties. There is no question the complainant enjoys a high expectation of privacy with respect to these records and that any intrusion into them risks prejudice to her personal dignity. Such spheres of privacy are to be jealously guarded by the Court, but cannot be guarded at all costs.

[68] Weighing all of the factors engaged in this case, I find that production of the narrow set of records identified here for review by the Court is necessary in the interests of justice.

Released: December 21, 2021 Signed: Justice Peter N. Fraser