Court File and Parties

COURT FILE NO.: CR-16-40000399-0000 DATE: 20170327

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – H.F. Accused

Counsel: Geleta McLoughlin, for the Crown Margaret Osadet & David D’Intino, for the Accused/Applicant Joanna Birenbaum, for the Complainant/Respondent

HEARD: March 10, 2017

Publication Restrictions Notice

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.

B.A. ALLEN J.

Reasons for Decision

(Application, Third Party Records, Criminal Code, s. 278)

Overview

[1] On June 16, 2015 HF was charged under the Criminal Code on three counts of sexual assault (s. 271), three counts of sexual interference (s. 151) and on one count of invitation to sexual touching (s. 152) in relation to the complainant, LFR, HF’s stepdaughter.

[2] Before trial the Defence filed an Application for production of Children’s Aid Society (“CAS”) records which was abandoned on the first day of trial. The trial commenced on February 27, 2017. The Crown called LFR, the Complainant, as a witness. She was undergoing cross-examination when the Defence requested to re-institute the Application for the production of the CAS records. The Defence stopped short in its cross-examination short of asking LFR questions that would bear on the CAS records.

[3] In 2012 HF was the subject of a CAS investigation in relation to LFR’s sister, RR. In the context of the child protection proceedings, he requested through his family law counsel and obtained the records pursuant to the Child and Family Services Act (“the CFSA”). HF is therefore in possession of the records that are sought in this Application. Among those interviewed by the CAS were HF, LFR and LFR’s aunt, MLC, who reported child protection concerns related to HF and LFR.

[4] The first step in the voir dire was commenced on March 1, 2017 where HF was called by the Defence to give evidence about the CAS investigation and his acquisition of the records. HF testified he applied for the 2012 records after he had been charged with the offences related to LFR. He stated that the report in the CAS records concerning LFR had no bearing on the allegations before this court. HF also testified that the incidents underlying the allegations before the court appear to have occurred at the same time as the CAS investigation.

[5] The second step in the voir dire involves a determination on whether the CAS records or any part of the records will be available to the Defence to cross-examine LFR.

[6] The Defence takes the position that HF is in lawful possession of the CAS records in that he sought and obtained possession as a subject in the child protection proceedings. In other words he already has possession of the records and in the Defence’s view he need not seek production through the third party records disclosure regime under s. 278.1 to s. 278.91 of the Criminal Code. The Defence seeks to use the records to continue cross-examination at trial to impeach the credibility of LFR about her allegations of sexual abuse.

[7] The Complainant and Crown (collectively, “the Respondents”) take positions in common. They take the view that HF is not in lawful possession of the CAS records for the purpose of use in the criminal proceeding.

[8] They further submit that the Defence is required to bring an application pursuant to the two-stage procedure under s. 278.1 and following for a determination on whether the CAS records or any part of them can be disclosed. The Defence’s position in the view of the Respondents is contrary to the protective scheme under s. 278 and its purpose to protect the privacy of sensitive records in the custody of third parties. Among the enumerated classes of records set out under the s. 278 scheme are CAS records.

The Issues

1. The issues at this step in the voir dire are: a) whether HF is in lawful possession of the CAS records for the purpose of use in the criminal proceedings; or alternatively b) whether a determination on the disclosure of the CAS records is subject to the regime at s. 278.1 to s. 278.9 of the Criminal Code;

2. If the answer to issue 1b) is affirmation, a) whether under 278.5(1)(b) the CAS records can be produced to the judge for review on the basis they may contain information that is “likely relevant” to an issue at trial; and if the answer to that question is affirmative, b) whether under s. 278.7 (1) the records are necessary to be produced to the accused “in the interests of justice”.

[9] I gave an oral ruling on those issues at the conclusion of the voir dire, with more fulsome reasons to follow. I find for the following reasons that: the Defence is not in lawful possession of the CAS records for the purpose of the criminal proceedings; the records are subject to the s. 278.1 disclosure scheme; the information in the records is not likely relevant to the issues at trial; and that I need not decide whether the records should be disclosed to the accused.

Analysis

Lawful Possession

[10] Section 76 of the CFSA allows a parent to consent to the disclosure of information in CAS records. As noted above, in 2015, through his family court counsel, HF obtained the CAS records in relation to the child protection proceedings related to LFR’s sister, RR. The records are redacted to protect disclosure of private information such as names of involved persons, including LFR’s name.

[11] At the voir dire HF testified he was aware that the CAS records were confidential and that the names of children and other involved persons were not to be disclosed. It became evident that neither he nor his family law counsel indicated an intention that the records were going to be sought to be used in the criminal proceeding. HF was therefore in legitimate possession of the records in the sense they were not obtained by illegal or fraudulent means.

[12] This is not what is alleged by the Respondents. Their view is that the records were in HF’s lawful possession only for the purposes of the family protection matter. The Respondents refer to the intention of the CFSA to protect the private information of vulnerable children involved in the child protection process. Section 45(8) prohibits, absent a court order, any publication of information that would identify a child who is a witness, participant or subject of a proceeding, or the child’s parents or members of the family.

[13] The Respondents cite a decision of this court in this regard. This court has held that different considerations apply to CAS notes of interviews with complainants, except as they relate to the charges before this court, which have already been released to the defence. The court concluded that the notes of caseworkers investigating child protection issues cannot be voluntarily given up by the CAS: R. v. L.F., [2006] O.J. No. 172, at para. 23 (Ont. S.C.J.). That proposition, according to the Respondents, is fortified by s. 45(3) which provides that child protection and criminal proceedings are to be held separately, and by s. 45(4) which provides that proceedings are closed to the public and only to be held otherwise by order of the court.

[14] I accept the Respondents’ view that whether or not an accused person may be in possession of records by virtue of his being the subject of a child protection investigation or hearing, or by virtue of being a parent who may consent to the release of such records, these records are not available for use in a criminal proceeding absent an order under s. 278.

[15] HF is therefore not in lawful possession of the CAS records for the purpose of the criminal proceedings before this court.

The Applicability of the Regime under s. 278 to the CAS Records

[16] Whether records came into possession lawfully or unlawfully the records cannot be used in a criminal proceeding absent a court order under s. 278.1. Hence, more important is the question of whether the CAS records are subject to the third party records provisions under s. 278.1 of the Criminal Code.

[17] The Defence points out that s. 278.1 and following deal with production of third party records not admissibility. What follows in the Defence’s opinion is that records already lawfully in the hands of an accused person raises a question not of admissibility of those records but of production − that is, production to the court at the first stage under s. 278.5 and production to the accused at the second stage under s. 278.7.

[18] The Defence relies on the Supreme Court of Canada case in R. v. Shearing in support of that proposition: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 (S.C.C.).

[19] In Shearing, a personal diary kept by a complainant over two decades, years before the criminal proceeding, was found by a later occupant of the house where the complainant had resided. The diary was given to defence counsel who sought to use the diary to cross-examine the complainant in the criminal proceedings on inconsistencies in her examination in-chief. The complainant asserted a privacy interest over the diary. A voir dire was conducted into the admissibility of the diary. The court affirmed the trial court’s decision that the s. 278 regime does not apply to the diary as it was already in the possession of the accused: R. v. Shearing, at paras. 96 and 97.

[20] The Defence also relies on the Court of Appeal decision in R. v. T.C. and a decision of this Court in R. v. Gray: R. v. T.C., 2004 O.J. No. 4077 (Ont. C.A.) and R. v. Gray, [2015] O.J. No. 2633 (Ont. S.C.J.).

[21] T.C., decided at trial before the decision in Shearing, involves an accused charged with sexual offences in relation to his stepdaughter. The complainant made a statement to the police. The complainant’s testimony at trial was found in parts to be contrary to what she told the police. The complainant underwent counselling from a social worker in relation to the sexual assault. A report was generated for use in child protection proceedings. The defence sought to cross-examine the complainant on the report. There is no issue of unlawful possession of the report.

[22] The trial judge found the report was governed by the s. 278 scheme. In balancing the privacy rights with the right to full answer and defence, the trial judge found the report was not necessary for full answer and defence.

[23] The Court of Appeal in T.C. upheld the trial judge’s decision to exclude the report due to its limited probative value: R. v. T.C., at para. 29. The Defence in the case before me relies on a comment in obiter where the court states that it has no doubt that the s. 278.1 scheme does not apply to records already in the lawful possession of the accused: R. v. T.C., at para. 28. The Defence also referred to Shearing for the proposition that s. 278.1 concerns production not admissibility. That is, HF came into possession of the CAS through legal means. It is the Defence’s view that the court is bound by the obiter dicta.

[24] In Gray the accused was charged with sexual offences against a child. A DVD of the child in a therapeutic session with a therapist was mistakenly disclosed to the Crown. The defence sought disclosure of the therapeutic file to cross-examine the complainant at trial. The court held the DVD should be returned and subjected to disclosure determination under sections 278.1 to s. 278.9. The defence, the court found, should not be allowed to bypass the protective scheme. For to allow this would be to encourage unscrupulous conduct: R. v. Gray, at paras. 19 and 22. Ultimately, the court denied disclosure on the basis there was no more than speculation that the DVD contained probative information.

[25] The court in Gray noted that since the Appeal Court in T.C. decided the trial judge was correct to exclude the evidence, the statement by the Appeal Court that the s. 278.1 scheme does not apply to records already in the lawful possession of the accused is obiter dicta, that is, not binding: R. v. Gray, at para. 17.

[26] The Respondents posit that Shearing can be distinguished from the case before this court principally based on the nature of the document sought to be used by the defence.

[27] The Respondents pointed to the fact that disclosure of CAS records is subject to the dictates of state power. Shearing makes a distinction between those records that are affected by “compelled production” and documents like a personal diary that are not. Shearing references wording in the preamble of Bill C-46 (the precursor to the enactment of regime under s. 278.1 to s. 278.91) and the importance of a framework of laws consistent with principles of fundamental justice. The preamble expresses Parliament’s grave concern about sexual violence against women and children and recognizes how the “compelled production” of documents related to such offences detrimentally affects the victims.

[28] The Court in Shearing concluded that the coercive power of the state is not invoked to compel the production of the diary – “Here the state is not using coercive power to compel production in ways which invoke s. 8 of The Charter (unreasonable search and seizure)”: R. v. Shearing, at para. 95.

[29] The Respondents draw an analogy I find is appropriate in the circumstances. They take the view that the information provided by parents and children in child protection investigations is “compelled information” analogous to the “compelled production” by the state referred to in the preamble of Bill C-46. Basing her submission on the child protective provisions in the CFSA, the Complainant put it this way in the Supplementary Factum of the Complainant Respondent:

CAS records, particularly in this case where the family itself did not reach out to the CAS for support but were involved in a CAS investigation because of a report made by the school principal, were created in a context of the state exercising its power under legislation which mandates it to protect the safety and best interests of children. A parent may, in theory, refuse to speak to a CAS worker, but they do at the risk of triggering apprehension proceedings. The nature of the interests at stake in CAS records and the power of the state in their creation (and release), is entirely factually distinct from the question of the diary in Shearing and very much engages the core concern expressed by the Supreme Court, of judicial oversight in criminal proceedings over production and release of information that engages the power of the state.

[Supplementary Factum of the Respondent Complainant, at para. 26]

[30] It is clear that Shearing did not involve the engagement of state power to investigate the release of private and sensitive information of a child without her consent. I accept that information provided to the CAS is analogous to compelled statements and must fall within the protective regime of s. 278.1 to s. 278.9.

[31] The Respondents also addressed the T.C. and Gray cases. I accept the Respondents’ view, supported by Gray, that the obiter dicta in T.C. is not a binding precedent. The Respondents referred to another decision by the Court of Appeal where the court found that the trial judge erred in holding that production of therapy records did not fall under s. 278.1. That case involved a situation where the accused was present during the complainant’s therapy sessions where the Appeal Court found, in spite of the accused’s presence, the complainant had maintained a reasonable expectation of privacy. Section 278.1 therefore applied to joint counselling records; R. v. R.C. (2002), 163 C.C.C. (3d) 3, at para. 53 (Ont. C.A.).

[32] Applied to the case before me, the fact that both HF and LFR were interviewed by the CAS and both have an interest in the records does not detract from LFR’s own reasonable expectation of privacy.

Whether the CAS Records are Disclosable under s. 278.1 of the Criminal Code

Context to the Sexual Assault Allegations

[33] LFR’s mother brought her and her younger sister from the Philippines to Canada in 2010. LFR lived with her mother, younger sister RR, her stepfather HF and HF’s two children at a home in Toronto and later in a home in Pickering. LFR alleges that between 2010 and 2012 HF touched her sexually on more than one occasion. She moved in February 2015 at age 16 to live with a cousin. In February 2015 LFR verbally disclosed sexual abuse by HF to her female cousin and by email disclosed the abuse to a male cousin. On April 23, 2015 LFR provided a videotaped interview to the police.

[34] LFR’s aunt, MLC, made a report to CAS in 2012 regarding concerns about HF’s conduct in relation to LFR. The aunt also reported the alleged sexual abuse to the principal of LFR’s school who also made a report to CAS.

[35] LFR testified she was not told what her aunt reported to CAS. She also testified why she did not report the sexual abuse. She indicated that her mother told her bad things would happen, that she and her sister would be taken away. She said she was scared for that reason to tell “social services” about the abuse.

[36] LFR did not report sexual abuse to any child welfare agency in 2012. The CAS records at issue pertain to LFR’s sister and do not involve an investigation of the allegations of abuse that are before the court.

The Two-Stage Process

[37] Section 278.1 of the Code provides a two-stage process:

• first, the judge considers whether to produce the record to the court for review (s. 278.5);
• then second, if the record, or parts of it, is produced to the court, the judge reviews the record to determine if the record, or parts of it, should be produced to the accused (s. 278.6).

Whether to produce the record to the court for review

[38] Section 278.5(1) provides:

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.

The Likely Relevant Test

[39] The court must determine, pursuant to s. 278.5(1)(b), whether the accused has established the record is “likely relevant” to an issue at trial. This is a fact-driven exercise, each case being decided on its own particular facts.

[40] It is the defence’s burden to demonstrate there is evidence that meets the test. The Supreme Court of Canada held that at the first stage the burden should not be interpreted as onerous on the accused, although the court did call it “a significant burden”: R. v. O’Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 161, at para. 24 (S.C.C.) and R. v. Batte, [2000] 45 C.C.C. (3d) 449, at para 53 (Ont. C.A.).

[41] Section 278.3(4) enumerates factors which in themselves are not sufficient to establish the “likely relevance” of the record. The factors among those enumerated which are possibly applicable to this case which are insufficient on their own to permit disclosure are:

• that the record exists;
• that the record relates to the incident that is the subject-matter of the proceedings;
• that the record may disclose a prior inconsistent statement of the complainant or witness;
• that the record may relate to the credibility of the complainant or witness;
• that the record relates to the presence or absence of a recent complaint; or
• 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.

[42] Courts have held the test has been satisfied if “…there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”: R. v. O’Connor, at para. 22. The accused cannot succeed on an application by making vague assertions about the existence of a record. The accused must be able to point to case-specific evidence or information to demonstrate the record is likely relevant to an issue at trial: R. v. Mills, [1999] 3 S.C.R. 668, at para. 120 (S.C.C.). Nor can the accused rely on speculative assertions or stereotypical assumptions: R. v. Batte, at para 66.

[43] The Defence submits that the CAS records were prepared in 2012 during the currency of the sexual abuse. The Defence seeks the records to establish that when LFR was interviewed she did not complain about sexual abuse.

[44] The Defence further submits that the records will contain information on which LFR can be impeached through cross-examination on inconsistencies in the evidence she has given at trial before this step in the voir dire. The Defence pointed to inconsistencies in LRF’s evidence for instance: in relation to the change in the year of sexual abuse from the police statement to the preliminary inquiry from 2010 to 2012; whether she was asleep or awake during one incident; and whether she had stayed home from school or not on the day of another incident.

[45] The Defence also asserts that the records will contain information about the chronology of the CAS’s investigative process as well as the basis for the closure of the investigation.

[46] I accept the Respondents’ position that the Defence has not satisfied the likely relevant test.

[47] The Respondents point to the fact that LFR did not report to CAS the incidents of sexual abuse against HF. For that reason there would not reasonably be information in the record about the incidents of sexual abuse before the court. The Defence seeks the CAS records to impeach LFR’s credibility on inconsistencies in the evidence she gave to the police, at the preliminary inquiry and at trial. However, the areas of inconsistency to which the Defence alludes relate to the alleged sexual abuse of LFR, information which would not be in the CAS records. Further, the CAS records concern LFR’s sister.

[48] The Respondents also challenge the Defence’s position that the records will reveal information about LFR not reporting the abuse in 2012 during the currency of the abuse − that her mother said she and her sister would be taken away. Since LFR did not report the abuse it does not stand to reason that any information about why she did not report it would be contained in the records.

[49] The Respondents rightly point out that in any event the Defence does not require the CAS records to obtain evidence in this area. The Defence is at liberty to call LFR’s mother and question her about what she might have said to her daughter about making a report to CAS. Further, LFR is still under cross-examination and can be subjected to further questioning about this short of referring to the CAS records. The Defence does not need disclosure of the CAS records to inquire into this. Private records should not be produced where information is otherwise available to the defence: R. v. Batte, at para. 72; R. v. Sutherland, [2001] O.J. No. 1963 (Ont. C.A.), at para. 13.

[50] There is also the concern about the purpose for seeking information about LFR’s non-report of the sexual abuse to the CAS in 2012. Delay and absence of complaint of sexual abuse by a child has been the subject matter of considerable judicial comment.

[51] It has been recognized that the failure of a child complainant to make timely disclosure of sexual abuse “must not be the subject of any presumptive adverse inference based on now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse”. Embarrassment, fear and lack of understanding or knowledge are all reasons children might delay in disclosing or not disclose at all: R. v. M (P.S.) (1992), 77 C.C.C. (3d) 402, at p. 4 (Ont. C.A.); and R. v. D.D., 2002 SCC 43, [2002] S.C.J. No. 44, at para. 65 (S.C.C.).

[52] The Defence submitted that it does not seek the CAS records based on improper biased reasoning. I accept that. It has already been established in the evidence that LFR did not disclose until 2015. It is not clear what information about LFR’s delay would be contained in the record that is likely relevant to her allegations of abuse.

[53] Regarding the Defence’s contention that the records will disclose information about the chronology of the investigation and why the investigation was closed, the Defence did not make it clear, and I cannot see, how information in those areas would be material to the allegations of sexual abuse.

[54] For the above reasons, I find the Defence failed to meet the burden of establishing the likely relevance of the CAS records.

Necessary in the Interest of Justice

[55] Section 278.5(1)(c) involves weighing the interests of a complainant and an accused to determine if on balance the record is necessary in the interest of justice. An accused’s right to make full answer and defence must be weighed against a complainant’s right to privacy of their personal information. The court must have in mind the deleterious effects on the rights of both parties when considering whether private records should be disclosed.

[56] The decision to order production of records must be made based on the particular facts before the court on a particular case. There must be an evidentiary basis to substantiate a request for production. R. v. Mills sets down some factors to consider in the balancing of the competing rights:

(a) the extent to which the record is necessary for the accused to make 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.

[57] R. v. Mills expresses the balancing exercise as follows:

The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in private records of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in the record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

R. v. Mills, at para. 94

[58] I again accept the position of the Respondents on the minimum probative value of the CAS records. The CAS records do not contain information material to the issues at trial. That is, evidence upon which the Defence seeks to impeach LFR about her allegations of sexual abuse by HF, is not contained in the records since LFR testified she did not disclose the abuse in 2012.

[59] Further, the CAS records contain third and fourth-hand hearsay. The aunt reported information about the abuse by HF to the CAS, information she apparently received form someone else. The aunt also reported the abuse to the principal of LFR’s school. The principal reported to the CAS what the aunt told him. The CAS investigators then prepared a report in part based on that evidence. The diminished probative value of increased levels of hearsay requires no explanation.

[60] Again, the Defence has available to it other avenues of information to pursue, for instance, through Crown disclosure, through the evidence of witnesses like LFR’s mother and through further cross-examination of LFR.

[61] I must weigh the accused’s right to a full answer and defence with a vulnerable child complainant’s right to protection from incursions on the private and sensitive information held by the CAS. It is well established by the child protection scheme and by the Criminal Code’s third party records regime, where CAS records are particularly identified as attracting protection, that a clear expectation of privacy exists in relation to the CAS records at issue in this case. The question is whether the probative value of the records to promote a full and fair defence outweighs LFR’s privacy interest. I find the probative value does not outweigh LFR’s interest.

[62] I need not go further and decide under s. 278.6 of the Criminal Code as to whether the records should be released to the accused.

Disposition

[63] I deny the Application. The records of the Children’s Aid Society are not admissible at trial.

B.A. ALLEN J. Released: March 27, 2017

COURT FILE NO.: CR-40000399-0000 DATE: 20170327 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – H.F. Accused REASONS FOR DECISION (Application, Third Party Records, Criminal Code, s. 278)

B.A. ALLEN J. Released: March 27, 2017