WARNING

The court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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, as amended

Date: 2014-08-08

Between:

Her Majesty the Queen

— AND —

Y.B., a young person

Before: Justice M. L. Cohen

Reasons for Judgment released on: August 8, 2014

Counsel

L. Bridger ................................................................................................ Counsel for the Crown

J. Wilkinson ......................................................................................... Counsel for the Accused

J. Birenbaum ................................................................................ Counsel for the Complainant

Judgment

Cohen, M. J.:

[1] Introduction

[1] This is my ruling on the first stage of the application for production of medical records of the complainant pursuant to section 278.3 of the Criminal Code.

[2] Charge and Arraignment

[2] Y.B. is charged that sometime between April 1, 2012, and April 30, 2012, he committed a sexual assault on N.D.C. He was arraigned before me on June 2, 2014, and pled not guilty.

[3] Application Overview

[3] Y.B. has applied for production of the complainant's medical records. The application has proceeded in advance of the trial proper, which is set to continue in the fall of this year. The in camera hearing contemplated by section 278.4(1) proceeded on July 2 and 3, 2014. The Complainant is represented by counsel, and the complainant and the Crown oppose production. The records holder, the East York General Hospital, took no part in the proceedings.

[4] Records and Privacy

[4] The defence concedes that the medical records are records within the meaning of section 278.1 of the Code, and that they contain personal information of the complainant in which she has a reasonable expectation of privacy. The records were subpoenaed by the defence and have been lodged with the Court in a sealed envelope. Only the complainant and her counsel have had access to the records.

[5] Supplementary Argument

[5] On July 24, 2014, as a result of the release by the Supreme Court of Canada of its decision in R. v. Quesnelle, I heard supplementary argument.

[6] Issues to be Determined

[6] The issues to be determined at the first stage of the application are whether 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 whether the production is necessary in the interests of justice.

[7] Threshold Issues

[7] The complainant and the accused have raised threshold issues which must be determined before I rule on the substantive questions. The complainant's issue relates to waiver. The investigating police officer obtained the complainant's authorization to release her hospital records to the police. The officer then obtained a copy of the records from the hospital. The copy of the records has remained in the possession of the police. The complainant asks the court to find that the waiver is invalid. She does not consent to the production and disclosure of her records.

[8] Crown's Disclosure Obligations

[8] The defence issue relates to the duty of the Crown on the first stage of the application for production. The Crown in this case never obtained physical possession of the records from the police officer, and has not seen the records. The defence takes the position that records in the possession of the police are in the possession or control of the Crown. The defence asks the Court to order the Crown to review the records and to disclose "whether the documents in their possession meet the first stage likely relevant test." If this argument succeeds, the hearing must be adjourned to permit the Crown to obtain, review, and determine its position on likely relevance. On the return the Crown would give an assessment of likely relevance, indicate the basis of its relevance, and advise whether it intends to use information in the records as part of its case against the accused: R. v. Quesnelle 2014 SCC 46, par. 16

[9] Procedural Agreement

[9] On agreement of the parties, the threshold issues, and the issues of likely relevance, were argued at the same time. The evidence on the in camera hearing consisted of the testimony of the investigating officer, P/C Kempster, a copy of the police supplementary record of arrest, the authorization for the release of the records signed by the complainant, and the transcript of two police interviews, one with the complainant, and one with her boyfriend, C.T.

[10] Ruling Summary

[10] In the result, I have found that the waiver is invalid, I have rejected the defence argument regarding the Crown's disclosure obligations, and I have determined that the records are not likely relevant and should not be produced to the court for review. My reasons are as follows:

Evidence on the In-Camera Hearing

[11] The Incident and Charge

[11] The incident giving rise to the charge is alleged to have occurred in April, 2012. The complainant was 15, and the accused was 14 years of age, at the time. The complainant reported the incident to the police some seventeen months later. The accused was arrested and charged shortly thereafter.

[12] Complainant's Police Interview

[12] P/C Kempster, the only witness on the hearing, testified that he interviewed the complainant on October 1, 2013. In her interview, the complainant stated that she and the accused are childhood friends, and attend the same school. The complainant had broken up with her boyfriend shortly before the incident. She stated that on the day in question the accused was consoling her inside the school, and they began to kiss. The complainant was "fine" with the kissing. The complainant then told the accused she had to go home. The accused replied that he would walk her home, but first she had to come with him. The complainant agreed and they went to a secluded area behind the school portables.

[13] Alleged Sexual Assault

[13] The complainant stated that accused told her she had to do something for him, and she said "No – [she] had to go home". He then pulled her pants (leggings) down, and began rubbing her vagina underneath her underwear. The complainant pushed him off and tried to pull up her pants, telling the accused she had to go home. The accused said "No", grabbed her, pulled down her pants and her underwear, put his penis between her legs, and, "…he started, like, humping me." The accused told the complainant she could not go home until she did what he said. The complainant states that she then began to "fake moan" until the accused was able to ejaculate. The incident concluded and the accused walked the complainant part of the way home.

[14] Delayed Reporting and Psychological Impact

[14] The complainant did not report the incident at the time. In her statement she says that she was not bothered at first, but "…once I got a new boyfriend, it bothered me cause I'd wake up in the middle of the night, with, crying and like, I had nightmares and I just didn't want to go back to sleep cause I was scared, or in school, not concentrated [ sic ] cause I'm always thinking that I'm getting flashbacks cause I'm in the same school as him." The officer asked the complainant whether she had told anyone about the incident, and she replied:

…well, I was admitted to the hospital 3 weeks ago I guess….They would know, the people that, at Boost would know, my ex-boyfriend, or my boyfriend actually, yeah.

[15] Disclosure to Others

[15] The complainant stated she told her boyfriend, and some friends, about the incident, and provided the officer with names. The complainant told the officer that the accused "told the whole school" she had sex with him, and she "got a bad reputation because of him."

[16] Boyfriend's Interview

[16] P/C Kempster interviewed the complainant's boyfriend, C.T., on October 4, 2013. C.T. was 16 years of age at the time. He stated that he began his relationship with the complainant in June, 2012, and that in August, 2012, she told him about the incident in a text. The complainant described what had happened as a "rape". C.T. told the complainant that he did not consider what had happened a rape, and that the time for her to talk to the police was at the time the event occurred, not afterward. CT told the officer that his relationship with the complainant "got stronger," and continued for fourteen months. Ct said he and the complainant broke up, but the break up must have been brief, because CT and the complainant resumed their relationship two days before the police interview.

[17] Hospital Admission

[17] CT also told the officer that in September or October, 2013, the complainant told him she had been in the hospital. She stated that she had spoken about the incident at the hospital, that the doctors knew, and that she was "under a lot of stress because of the Y. incident".

[18] Authorization for Release of Records

[18] On October 7, 2013, PC Kempster attended at the complainant's school as a result of her information that she had been in the hospital. He asked the complainant to sign an "Authorization for Release of Records." The authorization was filed in evidence at the hearing. The authorization allows "the Toronto Police Service and all of its agents" to have access to the complainant's records held in the custody of Toronto East General Hospital "concerning treatment on July 1, 2013 – October 5, 2013, and/or information pertaining to the treatment." It also allows the hospital to provide the Toronto Police Service with copies of the records.

[19] Authorization Terms

[19] The Authorization also states the following:

• I understand that the information is to be used by the recipient for the purposes of Court, Evidence and Investigation.

• I understand that if a charge is laid or any other court proceeding commences as a result of this or other related investigation, that these records may be turned over to the defence so that the accused person and/or defendant(s) will have full disclosure.

• I also understand that the accused person(s) and or defendant(s) have the right to make application to the court for access to all files pertaining to the matter that may be in the possession of any person.

• I understand that I have the right to seek counsel and to have my privacy interest represented at any court proceeding.

• I understand that this authorization is valid for 90 days after the date of signature.

[20] Parental Signature

[20] The Authorization is signed by the complainant. Although there is a provision for "Signature of Parent, Guardian, Power of Attorney," no parent is named or signed.

[21] Officer's Testimony on Waiver Process

[21] P/C Kempster testified that he had only a brief conversation with the complainant when he asked her to sign the form. He did not recall his specific conversation with her, only his general practice. He stated that he told the complainant the records could be used as evidence. He also stated that:

• Although he had 9 years of experience as a police officer he had never applied for this type of record. He never turned his mind to the privacy interest in the record;

• The complainant's father, who is her guardian, was not present at the time. He did not obtain permission from her parent. Although he had spoken to the complainant's father, he did not specifically mention medical records in the discussion;

• He did not read the form to the complainant;

• He did not explain it in detail;

• He did not recall her asking any questions;

• He had no discussion with the complainant about who might see the records;

• He told the complainant he wanted the records "to provide disclosure," but he did not explain what disclosure was;

• He did not explain the provisions of section 278, nor did he explain to her how the statutory protections work, nor their purpose;

• He did not explain to the complainant that she had privacy rights and that they were protected by legislation;

• He did not explain the onus on the accused to apply for a court order for the records;

• He did not discuss privacy rights with the complainant.

[22] Obtaining and Handling of Records

[22] On January 29, 2014, P/C Kempster obtained the records from the hospital. I note in passing that, according to its terms, the authorization had expired by that date. In any event, P/C Kempster testified that there was a larger volume of records than he expected, and the volume stopped him from looking at the records in a detailed manner. He stated that he returned to his office and skimmed the documents for two or three minutes. He stated that he "then realized I shouldn't have them," and that he thought he had gotten "more than I thought I was entitled to." P/C Kempster stated that he placed the documents in a drawer. On February 3, 2014, he advised the Crown that he had the records, and took no further steps. The Crown never took possession of the records.

[23] Defence Notification

[23] At some point after the charges were laid, defence counsel met with the Crown for pre-trial discussions. The Crown advised the defence that the police were in possession of the complainant's records from East York General Hospital.

Constitutional Values

[24] Constitutional Framework

[24] Before turning to the threshold issues in this case, and the substantive issues on the application, I wish to briefly allude to the constitutional values informing the statutory scheme governing production of third party records.

[25] Three Constitutional Rights

[25] In approaching an application for production in sexual assault cases, the Court must be fully alive to the three constitutional rights that are implicated: (1) the right to full answer and defence; (2) the right to privacy; and (3) the right to equality without discrimination (O'Connor, par. 106).

[26] Non-Hierarchical Approach to Rights

[26] Canadian jurisprudence has rejected a hierarchical approach to rights, which places some rights over others. When a Court adjudicates a case where rights appear to be in conflict, its duty is to reconcile the competing rights and interests in a manner that fully respects the importance of each. Thus, in ruling on the constitutionality of Bill C-46, the Supreme Court in Mills states that:

At play in this appeal are three principles, which find their support in specific provisions of the Charter. These are full answer and defence, privacy, and equality. No single principle is absolute and capable of trumping the others; all must be defined in light of competing claims. (par. 61) (my emphasis)

[27] Reconciling Competing Claims

[27] This analysis has had significant implications for the adversarial system which governs criminal law. The court's task in an application under the Mills regime is to seek to reconcile the competing claims in a manner that avoids systemic bias. In this task it is assisted by the preamble to the legislation, and the legislative background summarized at paragraphs 58 and 59 of Mills:

…The history of the treatment of sexual assault complainants by our society and our legal system is an unfortunate one. Important change has occurred through legislation aimed at both recognizing the rights and interests of complainants in criminal proceedings, and debunking the stereotypes that have been so damaging to women and children, but the treatment of sexual assault complainants remains an ongoing problem. If constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament's attempt to respond to such voices.

Parliament has enacted this legislation after a long consultation process that included a consideration of the constitutional standards outlined by this Court in O'Connor. ... In the present case, Parliament decided that legislation was necessary in order to address the issue of third party records more comprehensively. As is evident from the language of the preamble to Bill C-46, Parliament also sought to recognize the prevalence of sexual violence against women and children and its disadvantageous impact on their rights, to encourage the reporting of incidents of sexual violence, to recognize the impact of the production … of personal information on the efficacy of treatment, and to reconcile fairness to complainants with the rights of the accused. Many of these concerns involve policy decisions regarding criminal procedure and its relationship to the community at large. Parliament may also be understood to be recognizing "horizontal" equality concerns, where women's inequality results from the acts of other individuals and groups rather than the state, but which nonetheless may have many consequences for the criminal justice system. It is perfectly reasonable that these many concerns may lead to a procedure that is different from the common law position but that nonetheless meets the required constitutional standards.

Threshold Issues

[28] Issues to Address

[28] Before I turn to the substantive issues in this application in this case, I wish to address the threshold issues raised by the defence, namely whether the complainant has expressly waived the application of sections 278.3 to 278.91, whether the records are in the possession or control of the Crown, and whether the Crown has an obligation to review the records and take a position with respect to "likely relevance."

[29] Waiver Question

[29] I turn now to the first of these questions, whether the complainant waived her privacy interest in the records.

WAIVER

[30] Mills Standard for Waiver

[30] In Mills the court states that:

Waiver should not be read in a technical sense. Where the complainant or witness, with knowledge that the legislation protects her privacy interest in the records, indicates by words or conduct that she is relinquishing her privacy right, waiver may be found. Turning records over to the police or Crown, with knowledge of the law's protections and the consequences of waiving these protections, will constitute an express waiver pursuant to s. 278.2(2). (Par. 106 – my emphasis)

[31] Consequences of Waiver

[31] Significant consequences attach to a finding of waiver in applications for production and disclosure of private records. In the context of the Mills regime, where a fully informed complainant has expressly waived the protection of the legislation, the section 278.2 procedure does not apply. The records will be producible as at common law: s. 278.2(2); Mills par. 106. Thus, what is at stake for sexual assault complainants in a waiver is

… the threat of disclosing to the very person accused of assaulting them in the first place, and quite possibly in open court, records containing intensely private aspects of their lives, possibly containing thoughts and statements which have never even been shared with the closest of friends or family. (O'Connor, par. 112)

[32] Scrutiny of Waiver Circumstances

[32] Appreciating these consequences, where the complainant raises the issue of the validity of her waiver, the court must carefully scrutinize the circumstances in which the waiver was obtained to determine whether the complainant executed it with knowledge that the legislation protects her privacy interests, as well as with knowledge of the law's protections, and the consequences of waiving these protections.

[33] Analysis of Officer's Conduct

[33] Earlier in these reasons I have set out the testimony of P/C Kempster relating to the issue of waiver. The officer had only a brief conversation with the complainant. He did not read the form to her. He never explained the terms of the authorization to her. He did not inform the complainant about the provisions of the Criminal Code which protect the privacy of her medical records. He did not explain how the statutory protections work, nor that the onus would be on the accused to apply to the Court for production of the records. He did not tell the complainant she had a choice about whether to sign the authorization. He did tell her the records were for full disclosure and could be used as evidence, but he did not tell her what "full disclosure" was, nor, for that matter, what "could be used as evidence" meant. He did not explain to her the consequences of waiving her rights to the statutory protections.

[34] Officer's Lack of Awareness

[34] PC Kempster had never applied for this type of record before this incident. He testified that he never thought of the complainant's privacy interests, and that he thought he had made a mistake in obtaining the authorization. He agreed it was a common procedure for him to obtain medical records in assault cases, and that since this incident he has learned about specific procedures to be followed in cases such as the one at bar. Given the officer's shock when he realized he had "overstepped the bounds" in obtaining and reviewing the records, it is doubtful that at the material time he was aware of the specific legislative restrictions governing access to third party records in sexual assault cases, and why those restrictions exist.

[35] Youth and Vulnerability

[35] Before leaving this issue, I wish to note that the complainant's age is also a significant factor in my analysis. The Youth Criminal Justice Act recognizes the heightened privacy interests of young people, and, at section 111 of the Act, restricts publication which might reveal the identity of young persons who are victims or witnesses. One reason for this provision is that young people are particularly vulnerable to intrusions into their privacy. In A.B. v. Bragg Communications Inc. 2012 SCC 46, Abella, J. makes the following observations, albeit in a different context:

Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people's privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child. …

[36] Special Responsibility

[36] The vulnerability of young people, and their heightened privacy interest, cast special responsibility on persons in authority who seek waivers of their privacy rights from young persons.

[37] Finding on Waiver

[37] Having considered all these circumstances, I find the young complainant in this case did not have knowledge that the legislation protects her privacy interest in the records, did not relinquish her privacy rights, and did not waive the protection of the legislation.

Duties of the Crown

[38] Crown's Disclosure Obligations

[38] The second threshold issue relates to the duties of the Crown in an application under section 278.3. The defence strenuously argues that the Crown is in possession of the records, and should be required by the Court to take a position on the issue of likely relevance and explain her reasons. To an extent, the Crown has taken such a position by supporting the arguments of the complainant. However the defence asks for a more intrusive approach, of the kind described in R. v. Plaunt, [2006] O.J. No. 2174 (Ont. S.C.J.), where the Court approved a practice of "requiring the Crown to disclose whether the records in its possession are likely relevant."

[39] Logical Problems with Defence Argument

[39] I do not find any support for the defence argument in the text of the legislation, nor in the legislative intent as expressed in the preamble to the legislation. Furthermore it seems to make no logical sense to require the crown to obtain and read private third party records in order to take a position on an application to determine whether third party private records should be read by anyone, including the judge deciding the application.

[40] Plaunt and Quesnelle

[40] Plaunt is a decision of the Superior Court sitting as a court of first instance. The decision is not binding on me, nor do I find it persuasive. However there may be support for the defence argument in the recent decision of the Supreme Court of Canada in Regina v. Quesnelle.

[41] Quesnelle Facts

[41] Quesnelle was a sexual assault case in which the accused applied for production of police occurrence reports involving the complainant. The reports were not made in the course of the investigation of the charges before the court, but had been reviewed by the lead investigator as part of her preparation for trial. The reports were not placed in the investigative file. They came to the attention of the defence by the happenstance of a television documentary in which the investigator was interviewed.

[42] Quesnelle Holding

[42] The question before the Court in Quesnelle was whether police occurrence reports, prepared in the investigation of previous incidents involving a complainant or witness, and not the offence being prosecuted, were "records" as defined in section 278.1 of the Code, such that the statutory disclosure limits apply. Justice Karakatsanis concluded that there was a reasonable expectation of privacy in such reports that had not been forfeited for all future purposes, and held that the Mills regime applied.

[43] Quesnelle on Crown Disclosure

[43] In the course of her reasoning in Quesnelle, Justice Karakatsanis reviewed the principles governing Crown disclosure in Stinchcombe, O'Connor, McNeil and Mills. In discussing the Mills disclosure regime she stated the following:

Once the Crown obtains a record and determines that it is covered by the Mills regime, it must give notice to the accused: Criminal Code, s. 278.2(3). While the Crown may not disclose the contents of the record, it should in appropriate circumstances give an assessment of the likely relevance of a record in its possession, as well as indicate the basis of its relevance. At a minimum, the Crown should advise if it intends to use any information contained in records protected by Mills as part of its case against an accused. The Crown's assessment that the record is relevant for a specific reason will likely establish a basis for the judge to order production to the court. (par. 16)

[44] Distinguishing Quesnelle

[44] On its face this passage appears to support the defence position. However, on reflection, I have concluded that the obligations ascribed to the Crown in Quesnelle have no application in the circumstances of the case before me.

[45] Crown Never Obtained Records

[45] In the case at bar, the Crown has never "obtained" the records in the sense that the Crown never took physical possession of them. This fact is not in dispute. The records were obtained by a police officer acting on an authorization/waiver which I have found to be invalid, and which the officer acknowledged was a mistake. Had the officer not obtained the records, they would have remained with the hospital, subject to subpoena by the defence for purposes of a records application. The records would have been beyond the control of the Crown. Both the Crown and the defence would have been aware of the existence of the records by virtue of the interview transcripts which formed part of Stinchcombe disclosure, and the defence would have had the right to seek production under section 278.3. In those circumstances, the records would have come before the court without any prior review by the Crown.

[46] Records Should Be Treated as Never Obtained

[46] In my view, it would be improper to require the Crown to "obtain" the records for purposes of review and assessment, when the Crown should not have had them in her possession/control in the first place. In the circumstances of this case, the records should be dealt with as if they had never come into the hands of the police.

[47] Transition to Substantive Issues

[47] Having disposed of the threshold issues, I now turn to the substantive issue on which I have determined the first stage of the application, the question of likely relevance.

The First Stage Hearing

[48] Two-Stage Application Process

[48] An application for production of third party records in a sexual assault case proceeds in two stages. At the first stage, the question is whether the records should be produced for the judge to review. Where the application has been made in accordance with the governing sections, as is the case here, the records will only be produced for review by the judge if, at the in camera hearing, the judge is satisfied that

(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.

[49] Failure to Establish Likely Relevance

[49] If the accused fails to establish that the records are likely relevant at trial, that will be the end of the inquiry.

Likely Relevance

[50] Definition of Likely Relevance

[50] As defined in R. v. O'Connor, "likely relevance" means that 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. An "issue at trial", refers 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.

[51] Assertions Not Sufficient for Likely Relevance

[51] Section 278.3(3) sets out a number of assertions by an accused that are not sufficient on their own to establish that the record is likely relevant to an issue at trial or 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.

[52] Bare Assertions Insufficient

[52] A bare assertion, standing on its own, of one or more of the matters described in section 278.3(4) will be insufficient to establish likely relevance.

[53] Purpose of Section 278.3(4)

[53] It is important to note that the wording of s. 278.3 does not prevent an accused from relying on the assertions set out in s. 278.3(4). The purpose of the section is to prevent speculative, unsubstantiated and unmeritorious requests for production of private records. Such assertions often invite reliance on

…myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records [that] have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences.: R v Mills, par. 118.

[54] Case-Specific Evidence Required

[54] For this reason, the mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion. The accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence, or has potential impeachment value. (Mills, par. 120; R.v.W.B., [2000] O.J. No. 2184 (Ont. C.A.) par.76.) The burden on the accuse is significant, but not onerous.

[55] Defence Argument on Credibility

[55] In this case, the defence argues that the records are likely relevant to the issue of the complainant's credibility. The defence submits that the records may contain evidence relative to the complainant's motive to fabricate. The defence relies for this conjecture on the statements given by the complainant and her boyfriend to the police.

[56] Temporal Context

[56] The complainant stated that the assault occurred in April, 2012. In June, 2012, CT became her boyfriend. The complainant told the officer that she had not reported the incident to the police at the time because it didn't bother her, but after she got her new boyfriend, things changed. She began to have nightmares and couldn't concentrate at school. Towards the end of the interview, the complainant stated that the accused "told the whole school" she had sex with him, and she "got a bad reputation because of him."

[57] Boyfriend's Account

[57] CT told the officer that in August, 2012, the complainant told him about the incident involving the accused. At the time the complainant and CT were having an argument, and the complainant was saying that she had been under a lot of pressure. CT asked her what was wrong, and she resisted telling him, but finally she described the incident. CT told her that "I don't consider that rape." He referred to it as "…something that happened in the past." He did not encourage the complainant to contact the police. He told her "You were supposed to tell the police when it happened, not afterward."

[58] Timeline of Events

[58] The relationship between the complainant and CT continued for fourteen months after the disclosure. They broke up and then got together 2 days before CT was interviewed by the police. On this time frame, the hospitalization, the break-up, the reestablishment of the relationship, and the police interviews all occurred in close proximity.

[59] Hospitalization

[59] The complainant was hospitalized three weeks prior to the police interview. She did not say to the police officer that she went to the hospital because of the sexual assault, but she did tell CT that she spoke about the incident when she was at the hospital, and that the accused was the reason for all her stress.

[60] Defence Theory of Motive to Fabricate

[60] From this information, the defence constructs a scenario in which, eighteen months after the incident, the complainant is having difficulties with her boyfriend, and is concerned about her reputation at school. According to the defence, in order to defuse the tension in her relationship with her boyfriend, and to defuse the rumours at school, she "paints herself as a victim" and goes to the police.

[61] Problems with Defence Scenario – Relationship Tensions

[61] There are some problems with this scenario. One is that there was no information that suggested that the complainant and CT had any particular tensions that needed to be defused to preserve the relationship. The complainant did not describe any tensions in her relationship with CT, and the most CT had to say on the subject was that he and the complainant had "stupid arguments". After the complainant disclosed the incident to CT (in a text conversation), the relationship continued for another 14 months. At the time of the disclosure CT did not seem to consider the event significant, or find in it a reason to pity the complainant. As he put it:

And that was pretty much everything that happened with that conversation, then we just went on with our days and I told her "oh, I'm on my way to my friend's house," stuff like that.

[62] Problems with Defence Scenario – School Reputation

[62] The suggestion that rumours at the school created a motive to fabricate is likewise weak for many reasons. Foremost is the fact that the complainant gave her statement 17 months after the incident. She has continued to attend the same school for the entire time since the incident. While the complainant did mention the issue of her reputation at school to the officer, this was initially in the context of being told by another student that the accused had taken advantage of other girls in the school. The complainant did not describe any specific problems or encounters she had with other students about her "reputation". She did not express any desire to change schools as a result of this issue. In fact she gave the impression she is quite comfortable at her school, and trusts the principal and guidance counsellor. She stated that she doesn't skip school, "I'm not like those rebels", and that, from a psychological perspective, she feels "well-monitored" at school. CT did not say anything about the complainant's reputation at school, as either an issue for the complainant or as a concern. There is no evidence in the statements that the complainant spoke to the doctors about the issue of her reputation. Thus the evidence on the application does not support the basis for relevance argued by the defence.

[63] Evidence Available Through Other Means

[63] In any event, both the issue of tensions in the complainant's relationship with CT, and the rumours at the school can, and likely will be, the subject of cross-examination of the witnesses at trial. Moreover, in addition to the complainant's conversations with her boyfriend, the complainant spoke to four girls about the incident, and she provided their names to the officer. All these potential witnesses are available to the defence. Private records will not be produced where the evidence is otherwise available. To justify production of the complainant's records the accused must be able to point to evidence on the application suggesting that the medical records contain information which is not already available to the defence - a free-standing piece of evidence going to the question of whether the abuse occurred.

[64] No Direct Relevance to Charges

[64] There is no suggestion that the records are directly relevant to the question of whether the accused committed the acts alleged against him. The medical records did not arise at the time of, and do not form part of, the case against the accused.

[65] Temporal Proximity and Treatment Process

[65] The defence argues that the fact that the report to the police was proximate to the admission to the hospital supports likely relevance. While there is a possibility of materiality because of the close temporal connection between the creation of the records and the decision to bring charges against the accused, the court should approach this argument cautiously. For the court to permit review of medical records solely because there is a temporal connection between the date of treatment and the date of reporting, would undermine society's interest in encouraging the obtaining of treatment by complainants of sexual offences. In this case, there is no evidence that the counselling process played any role in reviving, refreshing or shaping the memory of the complainant. (R. v. W.B.) Indeed the complainant's first report of the incident was made to her boyfriend over a year before she went to the hospital. To the extent the accused intends to raise the possibility that the treatment process affected the complainant's memory or account of the event for impeachment purposes, the accused has the complainant's statement to her boyfriend a few months after the event, and the statement she gave to the police after the hospitalization, for purposes of comparison and cross-examination.

[66] Reliability of Therapeutic Records

[66] While the complainant's statement does indicate that she spoke about the incident to the doctors in the hospital, the mere fact that she did so does not make the records likely relevant to a fact in issue, or to the complainant's credibility. In addition, although the complainant's hospitalization occurred close to the time she went to the police, it was long after the incident occurred. This gap in time raises the problematic issue of the reliability and probative value of therapeutic records, an issue which has been commented upon in the jurisprudence. (For example in Mills at par. 136: "Counselling or therapeutic records… can be highly subjective documents which attempt merely to record an individual's emotions and psychological state. Often such records have not been checked for accuracy by the subject of the records, nor have they been recorded verbatim.") These factors bear on the probative value of the record being sought by the accused.

[67] No Evidence of Mental Health Issues

[67] Finally, there is no support in the evidence before me that the complainant suffered from any pre-existing mental health or psychological issues that affect her competence to testify. There is also no basis in the record before me to find that, whatever the reason for her hospitalization, the complainant suffers from any mental or psychological conditions which would affect the reliability of her evidence.

[68] Conclusion on Likely Relevance

[68] In the result, I find the accused has failed to establish the likely relevance of the complainant's records. There is no reasonable possibility that the information is logically probative to an issue at trial. The young complainant has a high privacy interest in her medical records, and they should remain private, protected even from the scrutiny of the Court. They should not be produced to the court for review, and the application is dismissed.

Released: August 8, 2014

Signed: Justice M. L. Cohen