COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D.V., 2025 ONCA 67[^1]

DATE: 20250130

DOCKET: M55088 (COA-22-CR-0147)

Sossin, Madsen and Pomerance JJ.A.

BETWEEN

His Majesty the King

Respondent/Respondent

and

D.V.

Appellant/Applicant

Andrew Furgiuele, for the appellant/applicant

Katherine Beaudoin, for the respondent His Majesty the King

Megan Stephens, for the respondent complainant

Heard: December 18, 2024

Pomerance J.A.:

INTRODUCTION

[1] Trials of sexual offences often engage competing interests: those of the accused and those of the complainant. These interests tend to clash when an accused seeks production of private records pertaining to a sexual assault complainant. Such applications are usually litigated at trial, with the trial rulings subject to appellate review. This case is unusual. There was no application for production of records at trial. Rather, the application for production has been brought, at first instance, before this court on appeal.

[2] The following will address the factual backdrop of the case before turning to a discussion of the framework that should govern third party records applications initiated on appeal. I will then turn to the merits of the application before the court, applying the framework as adapted to suit the appellate context.

[3] While the appellant was convicted at trial, I have used the word “complainant” rather than “victim” in these reasons, to mirror the language of the statutory regime.

FACTUAL BACKDROP

The Trial

[4] The charges against the appellant arose out of a series of events in 2013 and 2014. The complainant, the former spouse of the appellant, testified that she was frequently forced by the appellant to engage in sexual intercourse. She also testified to witnessing the appellant assault their two children.

[5] On May 19, 2022, the appellant was convicted by a jury of one count of sexual assault against the complainant, and two counts of assault against their children. The trial judge imposed a global sentence of five years imprisonment.

[6] The appellant filed a notice of appeal in late September 2022. On appeal, one ground has been raised, alleging ineffective assistance of trial counsel.

Discovery of Records

[7] In early October 2022, following conviction and just one day before a bail pending appeal application, the assigned Crown counsel contacted counsel for the appellant to report that she had received a number of “post-charge” occurrence reports from the police, none of which resulted in new charges. Two reports were disclosed to the appellant because they did not contain any private information about the complainant. The other reports were not disclosed because the Crown perceives them to be “records” as defined in s. 278.1 of the Criminal Code, R.S.C. 1985, c. C-46.[^2] The Crown says that it cannot disclose these reports because of the privacy interests held by the complainant in the documents. The Crown further asserts that, in any event, the reports do not meet the test for production set out by this court in R. v. Trotta (2004), 2004 CanLII 60014 (ON CA), 23 C.R. (6th) 261 (Ont. C.A.).

[8] Having learned of the existence of these reports, the appellant brought an application for production in this court. The matter first came before George J.A., who directed the matter to a full panel. The hearing before this panel was held on December 18, 2024.

The Conduct of the Hearing

[9] Both Crown and the appellant agreed that the hearing should be held in camera, consistent with s. 278.4 of the Criminal Code. In addition, it was agreed that counsel for the complainant should be heard on the application. All counsel made submissions on the procedure that should govern such applications brought in the appellate context. It was common ground that, while the Criminal Code provisions do not strictly apply to the appellate context, the spirit of those provisions should be respected, most particularly, those measures designed to protect the dignity and privacy of the complainant.

ANALYSIS

Application of the Statutory Regime

[10] The Criminal Code contains a comprehensive scheme governing production of private records in sexual offence prosecutions. Sections 278.1 to 278.97 set out the procedure to be followed, and the tests to be applied at each stage of the process. These provisions aim to strike a proper balance between competing interests: the right of an accused to full answer and defence and a fair trial; and the right of a complainant to privacy, dignity, and equality.

[11] When an application is brought at trial, it must comply with the rigours of the Criminal Code regime. Not so when the application is brought for the first time on appeal. The statutory scheme expressly restricts itself to applications heard by trial judges.

[12] The opening words of s. 278.2(1) of the Criminal Code are broad. The provision sets out a general prohibition on production of a record, except in accordance with the scheme, “in any proceedings in respect of” a designated offence:

278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: [Emphasis added.]

[13] While the prohibition on production applies to “any proceedings”, s. 278.3 provides that an application for production must be brought before the trial judge, the “judge before whom the accused is to be, or is being, tried”:

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

[14] Thus, the statutory regime contemplates that applications will be heard only by trial judges. This does not mean that such applications can never be brought on appeal. It simply means that, prior to conviction, trial is the venue of choice. Jurisdiction does not reside, for example, in a judge presiding over a preliminary inquiry.

[15] Because the statutory regime expressly refers to hearings before trial judges, it does not, on its face, purport to bind appellate courts. When it comes to appeals, the operative provision is s. 683(1)(a) of the Criminal Code. This provision empowers an appellate court to “order the production of any writing, exhibit or other thing connected with the proceedings”, where the court is satisfied that production is “in the interests of justice.” The “interests of justice” will vary according to context.

[16] The test for production under s. 683(1)(a) is well settled in Ontario. In Trotta, Doherty J.A. set out a two-part test to be met by the party seeking production. That test will be discussed below. For present purposes, it suffices to observe that the test in Trotta cannot, standing alone, govern this setting. That test must be modified and adapted to account for the special privacy interests that attach to complainants’ records in sexual offence cases.

[17] The necessary modifications to the Trotta test are to be found in the statutory framework set out in ss. 278.1 to 278.97 of the Criminal Code. The statutory regime does not, as a matter of law, apply to applications brought on appeal. However, it should, as a matter of policy, inform the process for determining whether production on appeal is in the interests of justice.

[18] There is much to commend the principles, policies, and practices reflected in the Criminal Code regime. Parliament tailored the scheme to address the exigencies of sexual offence prosecutions and to respond to historical mistreatment of complainants and witnesses. These animating objectives are as important on appeal as they are at trial.

[19] Historically, courtrooms were hostile environments for sexual assault complainants. This was attributable to anachronistic notions about gender, morality, and sexuality. Pernicious myths and stereotypes flourished as did offensive questioning techniques that improperly invaded the privacy and dignity of complainants.

[20] In some cases, defence counsel used tactics to demean, intimidate or otherwise discourage complainants from participating in the prosecution. Such tactics included unmeritorious requests to access private information of, or pertaining to, the complainant. These strategies not only deterred complainants who were involved in ongoing prosecutions. They had the ancillary effect of discouraging other individuals from coming report to report sexual violence. It verges on trite to observe that sexual offences are among the most underreported of all crimes. As the Supreme Court has observed, “[m]ost victims of sexual offences do not report such crimes; and for those that do, only a fraction of reported offences result in a completed prosecution”: R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577, at para. 2. See also R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at para. 42.

[21] It was in direct response to these tactics that Parliament enacted the statutory regime in the Criminal Code, originally consisting of ss. 278.1 to 278.91, and now consisting of ss. 278.1 to 278.97 of the Code. In R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, the Supreme Court upheld the provisions as constitutional, commenting, at para. 96, that: “In enacting Bill C-46, Parliament was concerned with preserving an accused’s access to private records that may be relevant to an issue on trial, while protecting the right to privacy of complainants and witnesses to the greatest extent possible.”

[22] The Supreme Court has since re-affirmed the importance of the regime and its underlying objectives. In J.J., Moldaver J. observed that this legislation “sought to restrict what had become a routine practice — defence counsel seeking production of complainants’ private records in order to engage in invasive attacks on their character”: at para. 6. Likewise, in Kruk, Martin J. described how “[a]mendments such as these appropriately balance respect for complainants’ dignity, privacy, and equality and the fundamental right of the accused to the presumption of innocence and a fair trial and they have been endorsed as constitutionally compliant by this Court”: at para. 40 (citations omitted).

[23] Since Mills was decided, the statutory regime has been augmented to offer additional protections to complainants in applications to introduce evidence of other sexual activity, under s. 276 of the Criminal Code, and applications to introduce records in the possession of the accused, under s. 278.92 of the Code. Those provisions are not before us, but they further exemplify the increased recognition of complainants’ rights in cases of sexual violence.

[24] To date, those cases that have considered the issue concluded that the statutory regime in the Criminal Code, while not technically applicable, should inform the process used on appeal. In R. v. Davies, 2022 BCCA 103, 412 C.C.C. (3d) 375, the appellant sought to adduce other sexual history of the complainant as fresh evidence on appeal. Bennett J.A., writing for the British Columbia Court of Appeal, ruled that, while the Criminal Code provisions, including s. 276, do not strictly apply on appeal, they should, in their purpose and effect, inform the process: at para. 18. More recently, in R. v. T.W.W., 2024 SCC 19, 437 C.C.C. (3d) 1, O’Bonsawin J. expressly adopted Bennett J.A.’s comment in Davies that the “substantive purpose” of the provisions, “protecting the dignity and privacy of complainants, is not limited to the trial process”: at para. 69 (internal quotations omitted; emphasis added by O’Bonsawin J.). O’Bonsawin J. added that “[t]he complainant’s personal interest privacy and dignity, and the public’s shared interest in the same, are still present on appeal”: at para. 69.

[25] Thus, the protections afforded complainants in sexual offence prosecutions, and the objectives they serve, extend beyond the trial context. In this case, the appellant acknowledged the special interests at play and agreed that certain features of the statutory scheme should apply. All counsel agreed that, whether at trial or on appeal, the competing interests of both the complainant and accused must be properly accounted for.

[26] As is often the case, the devil is in the details. Which features of the scheme should apply in the appellate context? How, if at all, should they be modified? Should hearings be held in camera? Does the complainant have a right of participation? I will address these and other questions below.

PROCEDURAL ISSUES

The In Camera Hearing

[27] Should hearings in the appellate court be conducted in camera, as dictated by s. 278.4 of the Criminal Code? To date, courts have said yes. In Davies, Bennett J.A. held that “the requirements of proper notice and providing detailed particulars of the proposed evidence and its relevance to an issue at trial in s. 278.93(3), and holding the hearing portion in relation to that aspect of the fresh evidence in camera in s. 278.93(3), are easily adapted in the appellate context”: at para. 38. Other courts have agreed: see R. v. S (D), 2022 MBCA 94, at paras. 60-62; R. v. S.C.C., 2022 YKCA 2, at para. 30. While these cases are about applications under s. 276, rather than s. 278.1 of the Criminal Code, the same reasoning applies to both.

[28] I agree that such applications should be heard in camera. Openness is a critical feature of our justice system, necessary for a well-functioning democracy. Yet, the open court principle must sometimes yield to other interests. The need to protect complainants’ privacy in sensitive records justifies a limited incursion into the presumption of public access. Once privacy is lost, it can seldom be regained: J.J., at para. 142. It would be illogical to say that the public can attend a hearing about whether the subject of the hearing should be public. Apart from being illogical, this approach would defeat the objectives underlying the statutory scheme.

Publication Ban

[29] On the other hand, it is questionable whether the publication ban on judges’ decisions, mandated in s. 278.95 of the Criminal Code, should govern appellate rulings.

[30] Section 278.95(1) provides:

(1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

[31] The publication ban, like the in camera hearing, aims to protect the privacy of complainants. However, within the appellate context, it conflicts with another interest, that being the use of appellate decisions to guide lower courts. A ban on publication would largely negate the precedential impact of appellate decisions, by preventing dissemination through the usual method of publication: Davies, at para. 39; T.W.W, at paras. 77-79.

[32] In T.W.W., the Supreme Court reviewed a s. 276 ruling made at trial. The Crown asked that all material relating to that issue be sealed to preserve the complainant’s privacy. The Supreme Court denied the request, citing the responsibility of the court to “provide clear and authoritative statements of law and guidance to lower courts”. O’Bonsawin J. explained at para. 79:

I have also considered the responsibility of this Court to provide clear and authoritative statements of law and guidance to lower courts, which supports judicial accountability in sexual offence trials. Reasons from, and hearings before, this Court provide not only an explanation of an appeal’s resolution to the parties but also give meaning to the judgment’s precedential value which, through the principle of stare decisis, binds and guides lower courts in the consistent application of the law. The interests of justice weigh in favour of court openness in this case because this appeal asks the Court to clarify the appropriate use of prior sexual activity evidence for context and credibility purposes. The law on sexual offences is quickly and ever-evolving, and guidance from appellate courts is important for the proper adjudication of these cases and to fulfill Parliament’s objectives to ensure fair sexual offence trials. In view of the alternative measures available, the benefits of the requested orders do not outweigh their negative effects on court openness.

[33] The Alberta Court of Appeal took the same approach in R.v.Bobrosky, 2024 ABCA 182, 73 Alta. L.R. (7th) 263. In that case, the court was asked to refrain from publishing its judgment reviewing a s. 276 trial ruling. In denying that request, the court said the following at para. 20:

With the guidance of TWW, we are directing the release of our conviction appeal judgment. We are satisfied that the complainant’s privacy and dignity interests, and the public’s shared interest in same, are protected by virtue of the s 486.4 publication ban. In addition, the interests of justice weigh in favour of release for two reasons. First, much of the evidence set out in the judgment formed the events surrounding the subject matter of the charge. Second, the evidentiary references provide the explanation for the judgment rendered, give meaning to the judgment’s precedential value, and assist in giving guidance to the trial courts in this complex area of criminal law.

[34] A similar approach was taken by this court in R. v. Reimer, 2024 ONCA 588. In Reimer, the crown asked for a publication ban because the appeal decision dealt with a s. 276 ruling made at trial. This court denied the request, noting that: “[t]he precedential value of the decision on this point will be largely undermined if the requested publication ban is granted”: at para. 7.

[35] It follows that, while protection of privacy is important, it is not the only interest at stake. There is a countervailing benefit in the development of the law through the dissemination of judicial opinions. The law governing sexual offences is complex and dynamic. Publication bans make it difficult to chart trends in the case law, as only certain decisions are available. It was open to Parliament to prioritize privacy over publication in the trial context. However, the balance of interests yields a different calculus when applied to judgments on appeal.

[36] The concept of stare decisis – central to the development of the law – presumes that courts have access to decisions that are binding upon them. The law develops organically and incrementally, as judicial pronouncements accumulate and assemble into precedential patterns. The process of change is sometimes more dramatic, as when Parliament enacts a new provision, or the courts endorse a new approach to an old problem. The point is that the law can only move forward if decisions are available to be read, understood, and applied in future cases. A presumptive ban on publication would impede this process, by limiting access to decisions with precedential or persuasive value.

[37] This is not to say that privacy interests are irrelevant. To the contrary, there is much to be said for curating the facts to avoid gratuitous references, and for ensuring that complainants’ anonymity, guaranteed by s. 486.4 of the Criminal Code, is protected. In this regard, I agree with Bennett J.A. in Davies that, absent the publication ban, care should be taken to ensure that judgments do not impinge on privacy any more than is strictly necessary.

Participation of the Complainant

[38] The next question is the extent to which complainants are entitled to participate in hearings raised for the first time on appeal. In this case, the Crown and the appellant agreed that counsel for the complainant should be given a right to be heard on the application to produce the records. We acceded to this position and therefore had the benefit of hearing from complainant’s counsel. She, like the Crown and the appellant, offered helpful submissions, not only on the merits of the application, but the broader questions of how such applications should be conducted.

[39] How should participation of the complainant be addressed in future cases?

[40] As a general rule, complainants have very limited participation rights on appeal. Where a criminal appeal is brought by the crown or defence, the complainant is not involved, even if the issue on appeal is the correctness of a ruling under s. 276 or s. 278,1, with implications for the complainant’s privacy interests. Even when the complainant is the one seeking review of a trial ruling, the options are limited. A complainant can apply for an extraordinary remedy if the trial was held in the provincial court, and they can demonstrate jurisdictional error. Where the ruling is made by a superior court judge, the complainant’s only route of review is to seek leave to appeal directly to the Supreme Court, under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26: see R. v. Jobin, 1995 CanLII 144 (SCC), [1995] 2 S.C.R. 78, at para. 28.

[41] While appeal routes are limited for complainants, appellate courts will usually have access to the complainant’s perspective by reviewing the trial record. Where a trial ruling is under appeal, the complainant will have had standing to make submissions in the court below and their position will be memorialized in the record before the appeal court. Not so when the issue is raised for the first time on appeal and there is no record at all from the court below.

[42] There will often be good reason to permit complainants to participate, at first instance, where the defence seeks production of private records. This was a considered choice by Parliament in the trial context and it makes good sense. First, the right to participate is inextricably linked to the other rights that Parliament sought to vindicate in the enactment of this legislation. It allows the complainant to defend her own rights to privacy, dignity, and equality, and in so doing, facilitates self-determination and autonomy. As a matter of policy, the person whose rights are at stake should have a say in whether those rights are infringed. Finally, the complainant will often be the only person in the courtroom, save for the custodian, who knows what is in the records (though in this case the Crown is also aware of the contents). In sum, there are many advantages, not only to the complainant, but to the court, in receiving the complainant’s perspective on these issues.

[43] In J.J., the Supreme Court identified the justifications that support complainant’s participation where the defence seeks admission of records in the possession of the accused. These include the unique perspective that complainant’s have on the privacy at stake in their own records. As the court noted at para. 179, “[f]ar from becoming a “second prosecutor”, a complainant’s contributions are valuable exactly because they are different from the Crown’s.” This is especially significant where the complainant and Crown differ on the issue of admissibility.

[44] At the same time, the Supreme Court noted that complainants do not necessarily have a right to participate in motions for directions, aimed at determining whether a document is a “record”. The presiding judges does, however, have a discretion to permit a complainant to participate in that process, which is a component of trial management: see J.J., at para. 105.

[45] In Davies, Bennett J.A. held that, generally speaking, complainants do not have a right of participation in s. 276 applications brought for the first time on appeal. She did, however, leave open the possibility that a court might wish to hear from the complainant and might grant standing on that basis, at para. 40:

Having said all that, there may be cases where an appellate court is of the view that it should embark on a hearing similar in nature to one pursuant to s. 278.94, perhaps, amongst other things, for guidance to the trial court. I would not foreclose a court from holding such a hearing in the appropriate circumstances and granting standing to a complainant to make submissions on appeal.

[46] I agree that, in the exercise of the appeal management power, an appellate court may decide to hear from a complainant where an application is brought for the first time on appeal. This is a case specific assessment that may require a motion for direction in the appeal court. While there is no presumption of participation by the complainant on appeal, an appellate court may well benefit from a consideration of the complainant’s perspective on the application (as distinct from the appeal). Whether the complainant is considered a party with limited standing or an intervenor is a question of characterization and, to some extent, semantics. Whatever the label, it is for the court to determine whether, in a given case, a narrow right of participation by the complainant should be granted in the interests of justice.

THE TEST FOR PRODUCTION

[47] Having addressed certain procedural issues, I will now turn to the test for production. The discussion begins with the reasons of Doherty J.A. in Trotta, where he summarized the test as follows, at para. 25:

To obtain production, the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce. The applicant must show that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence. By assist, I mean yield material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence.

The applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.

Unless the appellant can make both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and consequently, no reason for this court to require the Crown to disclose it. [Footnotes omitted.]

[48] At the first stage of the test, the applicant must demonstrate a connection between the request for production and a fresh evidence application. Doherty J.A. cautioned, at para. 26, that the applicant will often have very limited knowledge of what is in the material sought to be produced. The court should take that disadvantage into account when assessing the first limb of the test.

[49] As for the second limb, the applicant must demonstrate a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. It is here that the criteria from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, which inform the determination of whether evidence is capable of being admitted as fresh evidence on appeal, are engaged. Briefly put, the party seeking to introduce fresh evidence must show that the proposed evidence is credible, could not have been obtained through reasonable diligence before trial, and if admitted, would likely be conclusive of an issue in the appeal.

[50] While Trotta is the starting point for production requests, it does not address the special privacy interests that can arise in different contexts. These special interests were at stake in R. v. Jaser, 2023 ONCA 24. In Jaser, the appellant sought production of psychiatric records pertaining to his co-accused on the basis that this individual may have been unfit to stand trial. The appellant argued that he was entitled to the records on the basis that he was impacted by various decisions made by the co-accused. If the co-accused was unfit to stand trial, this would have implications for the appellant’s trial and conviction.

[51] In Jaser, at para. 17, this court modified the test in Trotta by incorporating the test governing production of third party records in non-sexual offence cases:

In addition, because the psychiatric assessment in issue is a report pertaining to Esseghaier, a non-party to the appeal, and Esseghaier’s privacy interests are engaged, the factors relevant to the production of a third-party record must also be considered: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 28-44.

[52] The court in Jaser found that the test from Trotta was satisfied. The report was the very fresh evidence that the appellant wished to tender on appeal, and applying Palmer, he demonstrated a prima facie entitlement to production of the psychiatric assessment. Having satisfied the foundational test in Trotta, the court went on to consider the co-accused’s privacy interest in his psychiatric evaluation. In particular, the court had to consider whether the co-accused’s privacy interest overrode the appellant’s interest in production, and further, whether there were available steps that could protect the co‑accused’s interests. Applying R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, the court in Jaser concluded that the evaluation should be produced to the court for its inspection to determine whether it should be produced and what steps, if any, should be taken to mitigate the impact of production on privacy: at paras. 29-30.

[53] The analysis in Jaser is directly relevant to this case. Like this case, it involved an application for production of private records. Like this case, the records had not been sought at trial, and were requested for the first time on appeal. Like this case, Jaser involved special privacy interests enjoyed by a third party who was not before the court.

[54] The fundamental difference between Jaser and this case is that, while Jaser concerned third party privacy interests, it did not engage the heightened protections enjoyed by complainants in sexual offences. In Jaser, the court supplemented Trotta by incorporating the common law procedure from McNeil. In this case, the pertinent authority is not McNeil, but rather, Mills, or more accurately, the statutory regime that was upheld as constitutional in Mills.

[55] The processes in McNeil and Mills are related but distinct, not only as it relates to process, but to the test for production. At common law, the first stage requires the party seeking production to establish that the records are “likely relevant.” If that test is met, the court will produce the records for its own review. In Jaser, satisfaction of the Trotta test was deemed the equivalent of likely relevance and justified a review of the record by the court.

[56] The test for production is more nuanced and multifactorial in the context of sexual offences. Pursuant to s. 278.5(2) of the Criminal Code, the court must consider a number of factors in determining whether to produce the records for review by the court. Some of these are case specific adjudicative factors. Others are policy-based considerations “tailored to counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings”: McNeil, at para. 31.

[57] For ease of reference, Section 278.5(2) of the Criminal Code is reproduced below:

(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.

[58] As is apparent, the Mills regime contemplates a more robust balancing of competing interests than the common law test does in McNeil. Therefore, when third party records are sought on appeal, in the context of designated sexual offences, the test in Trotta begins but does not end the analysis. An appellant seeking production in these circumstances must do more than establish likely relevance. Even when the Trotta test is met, the court must go on to consider the factors set out in s. 278.5(2) of the Criminal Code, modified to suit the appellate context. It is only where the balancing of all of these factors favours production that the court is at liberty to review the records and determine what if any portions should be disclosed.

[59] In sum, an appellant seeking production of private records, as defined under s. 278.1 of the Criminal Code, at first instance on appeal must satisfy the two-step framework established in Trotta. This requires the appellant to demonstrate: (1) a reasonable possibility that the request for production will assist their proposed fresh evidence application, and (2) a reasonably possibility that the records sought may be received as fresh evidence on appeal. If the test in Trotta is not satisfied, the request for production on appeal should be dismissed without the necessity of considering the statutory factors in s. 278.5. If the test in Trotta is satisfied, the court must then go on to weigh the various factors set out in 278.5(2) of the Criminal Code, modified to suit the appellate context. If those factors favour production, the court is empowered to review the contents of the records and, informed by the contents, repeat the balancing exercise to determine if production to the parties is warranted.

APPLICATION TO THIS CASE

[60] In this case, the procedural protections discussed above were implemented. The hearing was held in camera and the complainant was given a right to be heard, along with the appellant and the Crown. The question is whether the test for production, as discussed above, has been met in this case.

[61] The appellant was convicted of sexually assaulting his then wife by forcing her to engage in non-consensual activity, including intercourse, on regular occasions. He has raised just one ground of appeal. He alleges that his trial counsel failed to provide effective assistance and, on that basis, seeks a new trial.

[62] The appellant argued that he wishes access to the post-charge occurrence reports as he anticipates that such records will be relevant to the credibility and reliability of the complainant’s testimony at trial. It is on this basis that he seeks production of the occurrence reports. The appellant argues that these reports must pertain to him in some way, or they would have no relevance at all to the case. The appellant says that, to the extent that the Crown has notified him of the records’ existence, it can be inferred that the occurrences involve the complainant and him, rather than the complainant and some other person. He further argues that, if these are complaints that led to no charges, they may cast doubt on the complainant’s credibility and reliability. The appellant says that there could be statements in the occurrence reports that are relevant to a fresh evidence application. The appellant also argues that, because the documents are occurrence reports, they attract a lesser expectation of privacy than some other records, such as medical or psychiatric documents. The lesser expectation of privacy combined with the appellant’s wish to file fresh evidence weighs in favour of the court reviewing the records to determine whether and to what extent they should be disclosed.

[63] The Crown and counsel for the complainant forcefully resist the application for production. Both argue that the appellant has failed to identify any concrete basis on which to produce the records to the court. Both the Crown and counsel for the complainant argue that the application is fundamentally speculative, and the grounds asserted by the appellant amount to “insufficient grounds” as defined by s. 278.2(4) of the Criminal Code.

[64] We do not know what is contained in the occurrence reports. They may or may not concern occurrences between the complainant and appellant. Assuming that they do for the sake of argument, it is not clear to me that the test for production is met in this case. First, what we do know is that the reports postdate the charges that led to the convictions under appeal. Therefore, they are unlikely to shed any light on events leading up to the charges. Nor is there any basis for believing that the reports will cast doubt on the complainant’s testimony at trial. If the reports concern unrelated incidents, they are presumptively irrelevant: see R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 204. The fact that the occurrences led to no charges is of no moment, as we know nothing about why police were called. In essence, the appellant relies on the mere fact that the records exist, the mere possibility that they may contain prior inconsistent statements about the offence, and the mere possibility that they may provide information about the relationship between the appellant and complainant. However, these arguments are rooted more in speculation than in fact. They are, individually and cumulatively, “insufficient grounds” for production under s. 278.2(4) of the Criminal Code.

[65] One can add to the mix that, at present, there is only one ground of appeal: ineffective assistance of counsel. Whatever the merits of that ground, it is difficult to see how the occurrence reports, unknown to counsel at the time of trial, could support an allegation of incompetence.

[66] Therefore, viewed in the context of this appeal, neither limb of the Trotta test is satisfied. The appellant has not demonstrated a link between the occurrence reports and a proposed fresh evidence application. Nor has he established a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. In other words, the anticipated “probative value” of any evidence to be derived from the occurrence reports is minimal at best.

[67] As for the nature of occurrence reports, the appellant argues that, while they are “records” given the decision in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 2, they are generally not as private as some of the documents enumerated in s. 278.1 of the Criminal Code, such as therapy or counselling records. That may be so to some extent, but as noted by the Supreme Court, occurrence reports may contain highly sensitive information: see Quesnelle, at paras. 31-33. Even if one situates the records at the lower end of the privacy spectrum in this case, the interest in privacy still outweighs the largely speculative case for production advanced by the appellant.

[68] Finally, it is true that the appellant confronts a “catch-22” situation in this context. As observed in both Trotta and Jaser, it is a challenge for the appellant, not having seen the records, to identify a concrete basis for production. However, in the context of sexual offence cases, this is not unintended. It is, rather, a product of the policy choices made by Parliament in enacting the statutory regime: R. v. Huggins, 2010 ONCA 746, 326 D.L.R. (4th), at para. 12. By requiring an articulable link between the records and an issue in the case, Parliament set out to prevent unmeritorious fishing expeditions. Fishing is prohibited, particularly when dealing with “protected waters” – the sphere of privacy attaching to sensitive records that implicate the biographical core.

[69] The test for production has not been met in this case. For all of these reasons, the application is dismissed.

Released: January 30, 2025 “L.S.”

“R. Pomerance J.A.”

“I agree. Sossin J.A.”

“I agree. L. Madsen J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[^2]: Section 278.1 of the Criminal Code states: “For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.”