DATE: 20010716
DOCKET: M27329 (C29974)
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. KENNETH ELVAN REID (Appellant/Applicant) and JOAN GLOVER (Respondent)
BEFORE:
DOHERTY, ROSENBERG and MOLDAVER JJ.A.
COUNSEL:
Anil K. Kapoor, for the appellant Reid
D. J. Catalano, for the respondent Glover
Christine Bartlett-Hughes, for the respondent Her Majesty the Queen
HEARD:
July 12, 2001
RELEASED ORALLY:
July 12, 2001
E N D O R S E M E N T
[1] Assuming that the procedure in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 applies in this case, we received Mr. Finley’s affidavit, the Crown not strenuously arguing that stage one of O’Connor had not been met. Counsel for the witness adopted the Crown’s position in this respect and also adopted the Crown’s submissions on the second stage.
[2] We have now read Mr. Finley’s affidavit. In our view, the information in his affidavit should be disclosed. The information relates to the mental state of the principal Crown witness. Her mental state was put in issue at trial by the Crown to support her credibility. The information in Mr. Finley’s affidavit suggests that Dr. Jaffe’s diagnosis of post-traumatic stress disorder may have been in error. Disclosure is thus necessary for the applicant to make full answer and defence at the appeal. While the probative value of the information is somewhat weak, since it is hearsay from a layperson about a medical diagnosis, other information in the possession of the Centre referred to in the Finley affidavit suggests that this diagnosis is legitimate.
[3] The expectation of privacy is tenuous. The witness’ mental state has already been explored at trial in great detail, apparently with the witness’ consent. The production is not based on any discriminatory belief or bias. There is no suggestion that the application is based on any stereotypical belief about the credibility of persons with mental disabilities.
[4] As to the fifth criterion, given that the witness' mental state has already been dealt with at trial, we do not think that the prejudice to the complainant’s dignity, privacy or security of the person outweighs the importance of disclosing potentially important evidence respecting the validity of a conviction for second degree murder.
[5] Accordingly, the information will be disclosed to Mr. Kapoor on condition that it only be disclosed to his client, the staff in Mr. Kapoor's office and any expert retained by Mr. Kapoor, subject to further order of this court.
(signed) "Doherty J.A."
(signed) "M. Rosenberg J.A."
(signed) "M. J. Moldaver J.A."