WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

M.S., a young person

Before: Justice Marion Cohen

Counsel:

• Ms. Jody Milstein, for the Crown
• Mr. Boris Bytensky, counsel for the accused M.S.

Judgment

Cohen, J.:

[1] This is a ruling on an application by the accused for an order pursuant to section 278.1 of the Criminal Code for production of the school records of the complainant in a sexual assault trial. The complainant alleges that sometime between January 2, 2011 and January 6, 2011, the accused had sexual intercourse with her, without her consent, while she was in what she described as a paralytic state induced by the consumption of alcohol. The trial has commenced and the Crown has concluded her examination in chief.

[2] At the time of the incident, the complainant and the accused attended the same high school. The complainant testified that in the months following the incident she did not attend school "for a bit" because she did not want to see the complainant in the hall or have to sit through a class with him. The complainant testified that in the period following the incident, and as a result of the incident, she was severely depressed and did not want to attend school. She described locking herself in a room and experiencing night terrors. She stated she was "completely destroyed."

[3] The complainant's school records are in the possession of the complainant's school. They have been produced to the Court by the school principal pursuant to subpoena. The records consist of the complainant's Ontario Student Record, her attendance records, and records produced by the school social worker.

[4] The Ontario Student Record contains a student's accumulated school records, including academic records, psychological reports, reports of support services, individual education plans, reports of suspensions, and other like documents.

[5] The attendance records are the complainant's daily attendance records, and show whether she was present or absent for each period. They do not contain any notations by teachers. In the words of the school principal, they are "pure record-keeping." The principal testified that the teachers are diligent in maintaining the records but that errors can happen.

[6] The complainant testified that she started seeing the school social worker when she first told the school about the incident, and "they pointed me in her direction." The social work records have been reviewed by counsel for the complainant, Ms. Hill. These records consist of a file opening referral document, and a file closing summary document authored by the school social worker. There are no session by session notes of meetings or interviews.

[7] It is clear that all of these records are records within the meaning of section 278.1 of the Criminal Code. The records contain personal information for which there is a reasonable expectation of privacy and cannot be produced to an accused unless ordered by a court on application under section 278.3. The application proceeds in two stages. In the first stage, the judge must decide whether to order production for inspection by the court. This stage of the application is governed by subsections 278.3 to 278.5. The following subsections are relevant:

Application for Production

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.

Insufficient Grounds

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

(a) that the record exists;

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

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

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

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

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

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

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

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

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

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

278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

[8] Section 278.5 sets out the circumstances under which the court may order production of the records for review.

Judge May Order Production of Record for Review

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

(a) the application was made in accordance with subsections 278.3(2) to (6); and

(b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

(c) the production of the record is necessary in the interests of justice.

Factors to be Considered

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and 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.

Legal Framework

Likely Relevance

In Regina v. W.B., Doherty, J. states that:

The likely relevance of the records to an issue at trial, a witness' credibility, or the competence of a witness to testify is a prerequisite to an order compelling production of the records to the judge.

And that:

The onus is on the accused to establish likely relevance. In doing so, the accused cannot rely on speculative assertions or stereotypical assumptions. (par. 53)

The Court in W.B. cited Regina v. O'Connor for the meaning of likely relevance:

the presiding judge must be satisfied 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. When we speak of relevance to "an issue at trial", we are referring not only to evidence that may be probative to the material issues in the case (i.e., the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case. [Emphasis added.]

[9] In establishing likely relevance, the accused is precluded from relying on bare assertions of the matters listed in section 278.3(4). In addition, the mere fact that the complainant has said something that could be the subject of cross-examination is not sufficient. The accused must point to some case specific evidence or information in the record on the motion, which in this case includes the evidence received thus far on the trial, that suggests that the records contain information which is not already available to the defence, or that has "impeachment value."

[10] Doherty, J.A. states that, while significant, the likely relevance threshold should not be overly onerous. The purpose of the threshold test is:

... to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming requests for production.

Necessary in the Interests of Justice

[11] In addition to likely relevance, the accused must satisfy the court that the production of the record is necessary in the interests of justice. The meaning of this phrase was articulated in Regina v. Mills, as follows:

131 The requirement that production be "necessary in the interests of justice" at this stage refers to whether production to the judge is necessary in the interests of justice. That is a phrase capable of encompassing a great deal. It permits the judge to look at factors other than relevancy, like the privacy rights of complainants and witnesses, in deciding whether to order production to himself or herself. Where the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused's right to full answer and defence and dismiss the application for production.

132 However, pursuant to the first factor of s. 278.5(2), the judge must consider the accused's right to make full answer and defence. If the judge concludes that it is necessary to examine the documents at issue in order to determine whether they should be produced to enable the accused to make full answer and defence, then production to the judge is "necessary in the interests of justice".

The Court also states that:

If a record is established to be "likely relevant" and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document. As L'Heureux-Dubé J. stated in O'Connor, supra, at para. 152, "[i]n borderline cases, the judge should err on the side of production to the court". The interests of justice require nothing less.

Balancing

[12] Finally, to determine whether the records should be produced for review by the court, the court must balance 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 and equality of the complainant. The court must consider and take into account the factors enumerated in section 278.5(2).

[13] I turn then to the application of this test to the records which are the subject of this application.

Analysis

Attendance Records

[14] In this case, on the issue of likely relevance, the defence argues that two fact-specific reasons support the production of the attendance records for review by the Court. The complainant testified that as a result of the alleged sexual assault, she stopped attending school for a period of time. The defence submits, and it is not specifically disputed, that the Crown will be relying on the complainant's unwillingness or inability to attend school as evidence of:

1. Trauma occasioned by the alleged sexual assault and therefore as evidence supporting the complainant's credibility; and

2. Circumstantial evidence that a sexual assault occurred since the complainant's behaviour indicates trauma.

[15] If the Crown will be making this argument as part of its case, the defence argues that the records meet the threshold of likely relevance, since there is a reasonable possibility that the information in the records may be logically probative of an issue at trial.

[16] On the issue of the complainant's privacy interests, the defence argues that a student's privacy interests in such records are very low. Indeed in Mills, the court states that:

136 The nature of the records in question will also often provide the trial judge with an important informational foundation.

And by way of example states that:

…with respect to the privacy interest in records, the expectation of privacy in adoption or counselling records may be very different from that in school attendance records.

[17] In addition, the defence argues that the complainant herself testified to her failure to attend school, thereby indicating that she did not regard her attendance records as private.

On the question of whether the production of the records is necessary in the interests of justice, the defence argues that the attendance records are required to enable the accused to properly cross-examine the complainant on the attendance issue. Furthermore, the defence has filed an affidavit of an associate in counsel's office deposing on information and belief that the accused observed the complainant miss "a significant number" of school days prior to the date of the alleged assault. In Mills, the Court states that:

a consideration of the probative value of records can often be informed by the nature and purposes of a record, as well as the record taking practices used to create it.

[18] The attendance records are likely the most reliable evidence of the complainant's attendance, and could, subject to weight, assist in establishing whether the complainant did miss school in the times she indicated, whether her missing school was consistent with her prior attendance history, and whether her evidence is credible on this circumstantial issue.

[19] The Crown argues that the Attendance records are collateral and do not meet the threshold for likely relevance. Nonetheless, the Crown stated in argument that she could not guarantee that she would not "mention" the complainant's decision not to attend school after the incident in her closing submissions. In my view, the crown cannot have it both ways. If she intends to rely on the attendance evidence as probative of an issue at trial, she is conceding likely relevance.

[20] On the question of the privacy and equality of the complainant the crown asserts in essence that the complainant has a reasonable expectation of privacy in the records.

[21] On behalf of the complainant Ms. Hill concedes that the complainant's privacy interest in the records is low. Nonetheless she argues that the production of the records will inevitably lead to an examination of why the complainant missed school in the past, and that the result of such an inquiry will be to impact in a deleterious way, the privacy and the equality of the complainant. She also argues that the likely relevance of the records is low, since the records cannot tell the court whether the incident occurred.

[22] Having considered these arguments, I conclude that the defence has met the threshold for establishing likely relevance. It is reasonable to expect, and not denied by the Crown in her submission, that the Crown will be relying on the complainant's unwillingness or inability to attend school as evidence of:

1. Trauma occasioned by the alleged sexual assault and therefore as evidence supporting the complainant's credibility; and

2. Circumstantial evidence that a sexual assault occurred since the complainant's behaviour indicates trauma.

[23] Thus there is a reasonable possibility that the information in the records is logically probative to an issue at trial. I also agree with the submission that the privacy interest in attendance records is low because of the notorious nature of the information. I wish to make clear however that I do not accept the submission that because the complainant testified that she stopped attending school as a result of the incident, she thereby "opened the door", or waived her privacy interest in the attendance records. I have no reason to believe the complainant gave any consideration to, or would have understood, her privacy interests on this issue when she testified. Finally, I find on the evidence before me that judicial examination of the records is necessary in the interests of justice to ensure the right of the accused to make full answer and defence.

[24] In the result, having considered, at this stage of the inquiry, 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 and equality of the complainant or witness, and having taken into account the factors set out at section 278.5(2), I am ordering that the attendance records may be produced for review.

The Ontario Student Records

[25] Defence counsel concedes there is a high privacy interest in an OSR, and that he is unable to point to case specific evidence or information in the record that suggests that the Ontario Student Record contains information which has likely relevance or "impeachment value." Relying on this concession, the Crown did not argue the point. In these circumstances it would be improper for the court to conduct the fishing expedition. The application for the court to review the OSR is dismissed.

Heather Johnson's Reports

[26] I am advised that the records produced by the school principal include two reports by Heather Johnson, the social worker at the school attended by the complainant. One report was produced in December, 2011, when the social worker opened a file concerning the complainant. This record predates the offence. The second report was produced when the social worker closed her file some time in the new year.

[27] In this matter as well I find that the Crown is making inconsistent submissions. Despite submitting that production of the records would be highly invasive of the complainant's privacy, the Crown intends to call Ms. Johnson as a witness. The Crown advises that she expects to ask Ms. Johnson what advice she gave the complainant subsequent to the incident, and what observations led her to take the complainant to hospital, among other possible questions. In addition, if it is not comprised by these questions, and it may be, the defence suggests that the Crown will be examining the witness with respect to her observations of the complainant's demeanour in January, 2012. This suggestion was not disputed by the Crown.

[28] The defence argues that the threshold of likely relevance has been met. The Crown will use Ms. Johnson's testimony with respect to demeanour as circumstantial evidence supporting the conclusion that a sexual assault had occurred. Although the Crown asserts that the social worker's reports do not meet this threshold, the assertion is belied by the fact that the crown clearly considers and intends to use Ms. Johnson's evidence probative of material facts in issue.

[29] On the issue of privacy and equality, the defence concedes that there is a high privacy and equality interest in therapeutic records. The defence argues that it is the Crown who seeks to call evidence derived from a confidential relationship, and the interest of justice requires that the defence have access to the records for purposes of cross-examination. The defence additionally argues that, for purposes of comparison, both records should be produced.

[30] Finally, on the question of production of the social work reports for judicial review, counsel for the complainant takes issue with both the Crown and the defence. In her submission, demeanour evidence is not relevant to an issue at trial since its relevance relies on "dangerous stereotypes" about the behaviour of victims of sexual assault. If there is some relevance to this evidence, Ms. Hill argues that the evidence can be elicited through examination and cross-examination of Ms. Johnson without reference to the notes. In any event, Ms. Hill argues, the marginal relevance of this evidence is overwhelmed by the deleterious effects on the complainant's privacy interests which are indisputably high. In support of her argument she draws a compelling portrait of the young complainant who turns to a social worker for help and finds her private records be examined by strangers.

[31] I find that the defence has established the existence of a reasonable possibility that the information in the records will be logically probative to an issue at trial, namely whether the assault occurred, and whether the accused perpetrated the assault, as well as to the credibility of the complainant. This is likely relevance. The defence has also established that access to the record is required to make full answer and defence by way of cross-examination of the witness. "Where there is a danger that the accused's right to make full answer and defence will be violated, the trial judge should err on the side of production to the court" (Mills, par. 137).

[32] At this stage I am considering likely relevance, not true relevance. Furthermore, should the court order production, the court may impose limits on cross-examination to protect the complainant's privacy and equality interests from the jeopardy suggested by counsel for the complainant, including the right of the complainant to a truth finding process which does not entail reliance on discriminatory or biased assumptions.

[33] Accordingly the records will be produced to the court for review.

Released: November 10, 2012

Justice Marion Cohen