Court File and Parties

Ontario Court of Justice

Date: 2016-01-06

Court File No.: Peterborough 15-1469

Between:

Her Majesty the Queen

— and —

David Lafontaine

Before: Justice S. W. Konyer

Heard on: December 22, 2015

Reasons for Judgment released on: January 6, 2016

Counsel

Ms. A. Kok — counsel for the Crown

Mr. D. McFadden — counsel for the defendant David Lafontaine

Mr. M. Gonsolus — counsel for the complainant Fabienne Lehmann

Reasons for Judgment

KONYER J.:

[1] On December 22, 2015, I directed that records belonging to the Peterborough Regional Health Centre and the Brampton Civic Hospital relating to the complainant in this matter be produced to me for inspection pursuant to the first stage of the procedure outlined in R. v. O'Connor, [1995] 4 S.C.R. 411. I have now had the opportunity to review these records to determine whether any of the records ought to be produced to Mr. Lafontaine.

[2] In making this determination, I am guided by the subsequent decision of the Supreme Court in R. v. McNeil, 2009 SCC 3, where the court held that "a more useful starting point for courts in balancing competing interests at the second stage of an O'Connor application will be to assess the true relevancy of the targeted record in the case against the accused." [para. 39] In summary, unless the records are clearly irrelevant (and would thus not be disclosable under the Stinchcombe first party disclosure regime), the applicant's right to make full answer and defence will generally outweigh any competing privacy interest.

[3] As Charron J held for a unanimous court in McNeil:

If the court is satisfied that the documents are clearly irrelevant, there is no basis for compelling production to the accused, and the application can be summarily dismissed.

On the other hand, if the claim of likely relevance is borne out upon inspection, the accused's right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production.

[para. 41-42]

[4] In the case at bar, Mr. Lafontaine's claim of likely relevance has been borne out upon inspection of the records in question, which are replete with apparent inconsistencies in the complainant's account of criminal assaults by Mr. Lafontaine, as well as abundant evidence that the complainant was suffering from delusions at the time she claimed to have been the victim of assaults. Had this information found its way into the prosecution file, the Crown's first party disclosure obligations would clearly have been triggered. In those circumstances, Mr. Lafontaine's right to make full answer and defence outweighs any privacy interests which the complainant may have in the records, and I have determined that some of the records held by the Peterborough Regional Health Centre and the Brampton Civic Hospital ought to be produced to Mr. Lafontaine. I have removed portions of the records dealing with matters that do not relate to any identified issue likely to arise at Mr. Lafontaine's trial.

[5] I am ordering production of this material on the condition that these records be used only for the purpose of Mr. Lafontaine's defence to the criminal charges currently before this court and for no other purpose.

Released: January 6, 2016

Signed: "Justice S.W. Konyer"