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 486.5(1) or (2) of the Criminal Code . These subsections 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 486.5(1) or (2) , read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 12 30 COURT FILE No.: 21-45000561 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Martin NGIGI

Before: Justice Cidalia Faria

Heard on: December 9, 2022

Reasons for Ruling Stage 1 of O’Connor Application

Released on: December 30, 2022

Counsel: Tara Brun, counsel for the Crown Laura Remigio, for the defendant Martin NGIGI Kelley Bryan, for complainant J.G.

Faria J.:

I. Introduction

[1] Martin Ngigi is charged with Assault and Assault Bodily Harm on a nine-year-old boy, J.G., by allegedly breaking his arm on February 2, 2021. The child had been left with the Applicant for a short period of time while his mother went out. J.G. lives with muscular dystrophy. The Defendant is making an application for the disclosure of all J.G.’s medical records in the possession of his family physician and treating specialist.

[2] The Applicant seeks to obtain:

“Any and all medical records relating to the complainant, J.G., including any records relating to the muscular dystrophy diagnosis, ongoing prognosis, prescriptions, medication, and any other cognitive medical conditions.” [1]

[3] After argument on December 9, 2022, I provided brief oral reasons with written reasons to follow. These are my written reasons for stage one of the third-party records Application.

II. Issue

[4] I must determine whether the Applicant has established all J.G.’s medical records are “likely relevant” to an issue at trial in the first stage of the O’Connor [2] analysis.

III. Position of the Parties

The Applicant

[5] In oral submissions, the Applicant narrowed its original application for all J.G.’s medical records to those regarding J.G.’s muscular dystrophy condition including records “likely relevant to the credibility and reliability of the complainant and could shed light on the unfolding of the events that led to these allegations.” [3]

[6] In oral submissions, Counsel added that the mechanism of injury would be an issue at trial.

[7] Also in oral submissions, Counsel referred to a conversation she had with a physician who provided her with examples of information that may be in J.G.’s medical records that she submits are likely relevant to full answer and defence and the mechanism of injury.

[8] Regarding a cognitive diagnosis, Counsel submitted the prosecution’s synopsis of the allegations that contain an experienced officer’s opinion that J.G. “suffers from a cognitive medical condition” provides an evidentiary basis for her request. If such a diagnosis exists, Counsel argued it is “likely relevant” to the child’s credibility, reliability, and competence to testify.

[9] The Applicant submitted that the entirety of J.G.’s subpoenaed medical records are “likely relevant” and should be produced to the court for review and determination at stage two of the O’Connor analysis.

The Complainant

[10] On November 4, 2022, Counsel for J.G., received and then reviewed approximately 1200 pages of medical records from two sources, J.G.’s family physician (200 pages) and his muscular dystrophy specialist (1000 pages).

[11] Counsel conceded about 100 pages of the records proximate to the date of the allegation, February 2, 2021, met the “likely relevance” test, which included prescriptions, dosage and timing of medication, as wells as the muscular dystrophy condition referred to in the already disclosed 37 pages of medical records from the North York General Hospital.

[12] Counsel for the complainant child opposes the disclosure of “any and all medical records relating to J.G.”, his “ongoing prognosis”, “medical records post dating”, the date of the allegation and medical records relating to any “other cognitive medical conditions”. [4] She submitted that there is no medical or other evidence before the court to suggest that there is any relevance of these records to an issue at trial.

The Crown

[13] The Crown agreed with and adopted the position of the complainant. She submitted the medical records sought do not meet the “likely relevance” stage one test and should not be disclosed to the court for a step two review. She filed in support of her position:

• The prosecution synopsis.
• The 37 pages of medical records dated February 2, 2021, from the North York General Hospital pertaining to J.G. and disclosed to the Applicant.
• A one-page note from investigating Officer Balachorek.

[14] The Crown elaborated on two points. First, she referred to the evidence of the child’s mother, who stated to the investigating officer that J.G. has no other physical or mental health concerns besides muscular dystrophy. She followed up the interviewing officer’s comment in the synopsis and filed his response that he had no diagnosis upon which to base his view. The Crown characterized the interviewing officer’s remark as “unfortunate and incorrect”.

[15] Second, the Crown submitted it is the trier of fact who will evaluate the child witness’ ability to observe, recall, understand, and respond to questions and, therefore, determine reliability and credibility. The Applicant has filed no evidence of any cognitive diagnosis that is likely relevant to that determination.

IV. Legal Principles

[16] The applicable regime to this third-party record application is the common law procedure provided by the Supreme Court of Canada in O’Connor, as the record application does not relate to a sexual assault offence.

[17] The Applicant must first secure the production of the records sought from a third party via subpoena with notice to anyone with an interest in the confidentiality of the record. [5] Then the Applicant must file a formal written application “supported by an affidavit setting out the specific grounds for production”. [6]

[18] The analysis is a two-stage process:

Step 1: The Applicant bears the burden of demonstrating the information contained in the records is “likely relevant” to either an issue in the proceeding or to the competence of the subject of the records to testify.

• If the Application does not meet this threshold of likely relevance, the Application is dismissed.
• If the Application does meet the threshold of likely relevance, the records are produced to the court for review, and the analysis proceeds to the second stage.

Step 2: The court reviews the records and determines whether and the extent to which, the records should be produced to the Applicant. The court must balance competing interests and weigh the salutary effects of ordering the documents produced against the harmful effects when such records are produced. [7] In making this determination, the court is to consider:

• The extent to which the record is necessary for the Applicant to make full answer and defence.
• The probative value of the record in question.
• The nature and extent of the reasonable expectation of privacy vested in that record.
• Whether production of the record would be premised upon any discriminatory belief of bias.
• The potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question. [8]

[19] At stage one, there is no balancing of competing interests. “Likely relevant” means that there is a “reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” [9] and may assist the Applicant in the exercise of their right to make full answer and defence. [10]

[20] The information “must have some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence.” [11]

[21] An “issue at trial” includes material issues concerning the unfolding of events which form the subject matter of the proceedings and “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.” [12]

[22] “Likely relevance” in the third-party record analysis is higher than the disclosure threshold of whether information may be useful to the defence, but lower than true relevance. The Applicant’s onus is low and need not demonstrate the use of information sought, as it is still unknown, thus avoiding a “Catch-22” situation. [13]

[23] However, the Applicant’s onus to meet the “likely relevance” threshold is a “significant” one. It “allow[s] the courts to act as gatekeepers, preventing speculative, fanciful, disruptive, unmeritorious, obstructive, and time-consuming requests for production”. [14]

V. Analysis

[24] The evidence is that J.G. is a nine-year-old who lives with muscular dystrophy. He uses a wheelchair. The Crown alleges that he was sitting on the couch when his mother left him to go to the store. When she returned, she found him on the floor with a fractured arm. During this period, J.G. was under the care of the Applicant.

[25] No evidence was filed concerning the definition of muscular dystrophy, its nature, its effects, or any other feature of the diagnosis.

i. The Unfolding of Events & Mechanism of Injury

[26] Counsel referred to a conversation she had with a physician. The physician told her that the type of muscular dystrophy diagnosis, the pace and progression of the disease, the age of the complainant at the time of first diagnosis, and whether the complainant has suffered any other fractures since the date of the allegations are likely contained in the medical records. The physician stated that this information is “likely relevant” to full answer and defence and to understanding the mechanism of injury.

[27] During reply, Counsel described muscular dystrophy as “the deterioration of the skeletal structure, and the muscles relating to the skeletal structure.” [15] She stated that she googled ‘”muscular dystrophy and bone density” and what pops up is “a boy with Duchenne Muscular Dystrophy who cannot walk, has advanced Scoliosis, and has a higher risk of vertebrae fractures due to significant reduced bone material density.” [16] She suggested that there is a connection between muscular dystrophy and scoliosis for bones, and “it could all affect bone density”. [17]

[28] These were assertions of a medical nature without evidentiary support.

[29] It is the Applicant’s position that an affidavit providing any such evidentiary support is not necessary at the stage one inquiry into “likely relevancy” and her submissions about a conversation with an unidentified, unretained physician are sufficient to enable the court to determine 1200 pages of medical records are ‘likely relevant” to the mechanism of injury issue at trial. Further, she submitted that she is only obligated to provide expert evidence after the Crown’s case is complete. [18]

[30] This is incorrect. The Supreme Court states in O’Connor that, “the accused must bring an application supported by appropriate affidavit evidence showing that the records are likely to be relevant either to an issue in the trial or to the competence to testify of the subject of the records”. [19]

[31] I have no evidence, in affidavit form or any other form, from a layperson or a medical professional, that the disease of muscular dystrophy is likely related to, in any way, to bone density, or a bone fracture as alleged in this case. I have no evidence it is likely relevant to the unfolding of events or the mechanism of injury.

[32] As a result, I find the Applicant did not meet his onus of “likely relevance” at the first stage of the O’Connor analysis for the disclosure of “all” or “any” of J.G.’s muscular dystrophy medical records to the court for a second stage inquiry.

ii. Cognitive Disorder & Competence to Testify,

[33] The officer who interviewed J.G. wrote that J.G. “suffers from a cognitive medical condition” in the prosecution’s synopsis but made no note of that observation in his memo book. [20] . Counsel for the Applicant submitted she agreed with the officer’s view from her observations of J.G.’s audio statement.

[34] The Applicant did not file J.G.’s audio statement and it is not evidence before the court.

[35] The Crown filed an email wherein the Officer stated that this belief was “based on his experience interviewing children” but that “he doesn’t recall there ever being a diagnosis from a doctor.” [21]

[36] J.G.’s mother told the investigating officer that something like this has never happened before, and he has no other mental/physical health concerns. [22]

[37] The 37-page medical record of J.G.’s admission on February 2, 2021, does not note any cognitive disorder or mental health condition. No observations of any such concerns are noted by any of the treating medical professionals who dealt with J.G. [23]

[38] Counsel referred the court to R. v. Doncel [24] wherein the trial judge ordered the release of medical records of a sexual assault complainant pursuant to s. 278.3 , the Criminal Code regime for such offences. The trial judge reached his conclusions based on the evidence led in that case, namely from statements of the complainant’s father, her personal support worker, and his own observations of the complainant’s videotaped statement to police. There is no comparable evidence in the case before me and therefore Doncel is not helpful.

[39] There is no evidence before me that J.G. has any cognitive disorder or cognitive dysfunction other than a comment made by an officer in a prosecution summary. There is no evidence before the court that muscular dystrophy affects cognitive function or competence to testify.

[40] Counsel’s submission of her observations of audio evidence not before the court and a one-line lay opinion in a synopsis is not a sufficient evidentiary basis to meet the onus on the Applicant of likely relevance, low as it is.

iii. Credibility and Reliability

[41] There is no evidence J.G. has a cognitive condition or that muscular dystrophy affects J.G.’s ability to observe, recall, or communicate an experience or a narrative.

[42] I agree with the crown’s submission that it will be up to the trier of fact to determine J.G.’s ability to observe, recall and provide testimony and evaluate his credibility and reliability.

[43] There is no basis upon which to find there is any likely relevance of any information in J.G.’s medical records to the issue of credibility and reliability.

iv. Prescriptions, Medications, Status of Muscular Dystrophy at Proximate Time of Allegations.

[44] J.G.’s medical records already disclosed to the Applicant, from his North York General Hospital admission at the time of his arm fracture on February 2, 2021, refer to the pre-existing of condition of muscular dystrophy, prescribed medication, and a muscle relaxant. [25]

[45] The disclosed records do not provide any specifics about the prescription, the dosage, or the timing of these medications.

[46] There is also no information about J.G.’s muscular dystrophy condition at the time of the fracture.

[47] Counsel for the complainant informed the court that she had received medical records from J.G.’s family physician spanning from 2017 to 2022. She estimated 233 pages in hard copy. She further informed the court the last time J.G. saw his family doctor prior to the date of the allegations was in March 2020. This was some 11 months before the date of the allegations and pertained to an unrelated medical issue. [26]

[48] These records are neither related to J.G.’s muscular dystrophy or any medical status or condition he was experiencing at the time of the allegations. They are also not proximate to the date of the fracture. For these reasons, they do not meet the “likely relevance” test and will not be produced to the court for review.

[49] Counsel for the complainant informed the court that she had received over 1000 pages of hard copy medical records from J.G.’s muscular dystrophy specialist spanning from 2013 to 2022. There are two outpatient records, one from November 25, 2020, less than 3 months before the allegations, and another from January 4, 2021, about a month before the allegations.

[50] These two outpatient records are likely to contain information related to the prescriptions, dosage, and timing of medications that J.G. was taking on the date of the allegations. Medication is referred to in the disclosed medical records, but specifics are not provided. Medication may affect a person, particularly in a nine-year old child, in several ways depending on the type, dosage and timing. As a result, this information is “likely relevant” to the Applicant’s ability to evaluate the complainant’s medical status at the time of his statement to the police and medical staff, which is relevant to his full answer and defence.

[51] In addition, the disclosed medical records do not have any basic information on the status of J.G.’s muscular dystrophy condition at the time of his treatment on February 2, 2021. Given the proximity in time between two outpatient medical consultations with his muscular dystrophy specialist and the medical treatment he received on February 2, 2021, wherein he was likely on medication prescribed by that specialist, the medical records of those two consultations are likely relevant to the Applicant’s ability to ascertain J.G.’s medical status on the date of the fracture.

[52] As a result, I find the medical records of November 25, 2020, and January 4, 2021, to be “likely relevant” to the Applicant’s full answer and defence. They are to be disclosed to the court to be reviewed and subject to a stage two inquiry.

VI. Conclusion

[53] The matter will proceed to the second stage of inquiry regarding J.G.’s medical records in close proximity to the February 2, 2021, allegations.

[54] There is one additional note. Counsel for the Applicant repeated during oral argument that “should the court require” an affidavit outlining the likely relevance of the medical records sought, then Counsel would seek to adjourn the Application to obtain an affidavit. However, she submitted the court had a sufficient basis to rely on and rule that all the subpoenaed medical records should be released for review in their entirety for a stage two analysis.

[55] The burden is on the Applicant to file the material he deems sufficient to meet its onus per the applicable jurisprudence. I set the dates for this hearing some time ago, and the Applicant has had full disclosure of the prosecution’s case. Both the Counsel for the complainant J.G., and the Crown responded to the Application as it was filed. To permit the Applicant to adjourn the motion to augment the application in a manner well known to have been required would be unfair to the parties and the process.

[56] Nonetheless, should there emerge a basis upon which the Applicant can file another third-party records Application with a different evidentiary basis, the court will hear the Application. All parties are well aware of the trial timelines set in this matter.

Released: December 30, 2022 Signed: Justice Cidalia C. G. Faria

[1] Notice of Application, October 4, 2022, paragraph 9. [2] R. v. O'Connor, [1995] 4 SCR 411 [O’Connor]. [3] Notice of Application, October 4, 2022, paragraph 10. [4] Responding Factum of the Complainant, October 28, 2022, paragraph 6. [5] O’Connor, supra note 1, at paras 20, 136-137. [6] Ibid at paras 20 and 96. [7] Ibid at para 21. [8] Ibid at para 156. [9] Ibid at para 22. [10] R. v. McNeil, 2009 SCC 3 at paras 28 and 33 [McNeil]. [11] R. v. White, 2011 SCC 13 at para 36. [12] O’Connor, supra note 1, at para 22. [13] McNeil, supra note 10, at para 29. [14] R. v. Gubbins, 2018 SCC 44 at para 26. [15] Transcript, December 9, 2022, page 45. [16] Transcript, December 9, 2022, page 50. [17] Transcript, December 9, 2022, page 50. [18] Transcript, December 9, 2022 at page 50. [19] O’Connor, supra note 1, at para 134. [20] Responding Application Record, Tab 1, Synopsis. [21] Responding Application Record, Exhibit 1, Email October 31, 2022, at 11:51:47am from DC Stephanie Danson #10513 to Assistant Crown Attorney, Tara Brun, filed during oral submissions relaying information from synopsis author, Officer Ryan Braganza #10461. [22] Responding Application Record, Tab 3, Memo Book Notes of PC Balachorek #11519. [23] Responding Application Record, Tab 2, Medical Records [24] R. v. Doncel, 2021 ONCJ 667 [Doncel]. [25] Responding Application Record, Tab 3, Medical Records, Emergency Physician Assessment, page 27 and Procedural Sedation Medical Assessment, page 17. [26] Transcript, December 9, 2022, page 23.