Court File and Parties

Ontario Court of Justice

Date: 2016-04-21

Court File No.: Toronto 4817 998 14-75002846

Between:

Her Majesty the Queen

— and —

Charlotte Mardonet

Before: Justice Richard Blouin

Heard on: April 18, 2016

Ruling on an Application for Third Party Records: delivered on April 20, 2016

Written Reasons: released on April 21, 2016

Counsel

Mr. John Scutt — counsel for the Crown

Mr. Paul Stern — counsel for the defendant Charlotte Mardonet

Ms. Jill Presser — counsel for the Ontario Psychological Association

BLOUIN, J.:

[1] Charlotte Mardonet makes application for the production of the third party records held by the Ontario Psychological Association (OPA). The application makes reference to two distinct categories of records:

1. E-mails to which the defendant was a party as a sender, a receiver or a person copied.

2. AccPac (accounting records) for the period outlined in the indictment of January 10, 2003 to June 13, 2013.

[2] The application, without an affidavit, was filed by defence on March 24, 2016, which was the last juridical day before the trial was to re-convene on March 29. Evidence had already been taken from four witnesses over four days in January, 2016. The OPA quickly filed a Notice of Intention to Oppose the Application. Both the defendant and the OPA made submissions March 29. I adjourned the application to allow the defendant to properly perfect the application by including an affidavit, and then, to allow time to assess its merit. The case returned April 18, where I heard further submissions from both parties, and the Crown. The issue of any privilege attaching to the documents sought was discussed. Given the limited timeframe, the OPA was unable to review the documents (there are over 37,000 emails) sufficiently to allow a position to be taken on privilege. I reserved for two days and told the parties I would rule on "likely relevance" – the first step in the O'Connor third party records application – on today's date, Wednesday, April 20 at 2:15.

Third Party Records

[3] The law applicable in an application such as this is fully explored in R. v. O'Connor, 1995 SCJ 98, and further expanded upon in R. v. McNeil, 2009 SCC 3, 2009 SCJ 3. Justice Charron in McNeil lays out the procedure to be followed in a third party record application at paragraph 27. Numbers 1 to 3 of paragraph 27 have been covered. This application requires me to consider 4 and 5.

(4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused's innocence is at stake, the existence of privilege will effectively bar the accused's application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O'Connor process.

(5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O'Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused.

[4] On the issue of privilege, given the timeframe, the OPA has not assessed the documents to claim "a well-founded" privilege. I will deal with that issue at the conclusion of my assessment regarding likely relevance.

Likely Relevance

[28] The first step in any contested application for production of non-privileged documents in the possession of a third party is for the person seeking production — in this case the accused — to satisfy the court that the documents are likely relevant to the proceedings. This threshold burden simply reflects the fact that the context in which third party records are sought is different from the context of first party disclosure. We have already seen that the presumptive duty on Crown counsel to disclose the fruits of the investigation in their possession under Stinchcombe is premised on the assumptions that the information is relevant and that it will likely comprise the case against the accused. No such assumptions can be made in respect of documents in the hands of a third party who is a stranger to the litigation. The applicant must therefore justify to the court the use of state power to compel their production — hence the initial onus on the person seeking production to show "likely relevance". In addition, it is important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in "fishing expeditions" for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function.

[29] It is important to repeat here, as this Court emphasized in O'Connor, that while the likely relevance threshold is "a significant burden, it should not be interpreted as an onerous burden upon the accused" (para. 24). On the one hand, the likely relevance threshold is "significant" because the court must play a meaningful role in screening applications "to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming' requests for production" (O'Connor, at para. 24, quoting from R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32). The importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminal proceedings remains a pressing concern, more than a decade after O'Connor. On the other hand, the relevance threshold should not, and indeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that may assist in making full answer and defence, "to demonstrate the specific use to which they might put information which they have not even seen" (O'Connor, at para. 25, quoting from R. v. Durette, [1994] 1 S.C.R. 469, at p. 499).

[33] "Likely relevant" under the common law O'Connor regime means 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" (O'Connor, at para. 22 (emphasis deleted)). An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case" (O'Connor, at para. 22). At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position.

Crown's Case

[5] The Crown's case was outlined in an opening address. Ms. Mardonet, as office administrator, was essentially in charge of the OPA's bookkeeping, and diverted funds to her personal benefit by cheques payable to herself, cheques to cash, and electronic fund transfers. She also used OPA funds to pay personal credit card balances of her husband and herself. She also made ATM cash withdrawals and debit purchases using an OPA debit card. All of these alleged transactions occurred during a 10½ year period from 2003 to 2013 and numbered in the thousands.

[6] Mr. Stern submitted in his opening remarks that his client admits that she used OPA accounts to pay personal bills, but that there will be an evidentiary record that confirms that she did not try to hide that reality. The funds were often to reimburse herself or her husband for OPA expenses they incurred. Cash was necessary to pay for mass postage mailings. Detailed records were kept on a computer that was open to all staff. A portable hard drive which also stored records was returned to the OPA after her termination.

RULING

[7] In my view, the documents sought by defence are likely relevant. There exists a reasonable possibility that the information is logically probative to an issue at trial. In fact, the emails will likely assist regarding the unfolding of events which form the subject matter of the proceeding.

[8] Since the case is about allegations of possibly thousands of examples of alleged impropriety, over many years, by a person entrusted to deal with the financial transactions of the association, I could not possibly conclude that the content and chronology of e-mail communications involving Ms. Mardonet, and the potential narrative connected to the accounting records, are not likely relevant. I am satisfied that some communications, and some accounting narratives, will likely be relevant, and many others (of both) will not. Let's not forget that we are dealing with the defendant's e-mails that she kept electronically in files. While not in any fashion commenting upon the equities regarding her swift termination on November 20 of 2013, she might well have this information in her possession today, but for that swift termination.

[9] I feel that I must deal with the timing of this application coming, as it did, in the middle of the trial. Although Ms. Mardonet warrants in her affidavit that she had the impression that e-mails were not retrievable, and found out differently at trial, it is difficult to understand why an application was not made before trial. That applies regarding the AccPac narrative as well. The parties agree that nothing the Crown did left Ms. Mardonet with that impression. She must have known that her e-mails possibly existed. However, my finding of likely relevance, and the right of the defendant to make full answer and defence, must supersede that concern. Suffice to say, that, at least at this point in the proceedings, the issue of mid-trial delay that results here, lies at the defendant's feet.

[10] Before requiring the OPA to produce the records to me, I will allow the OPA to review them, and assert privilege to those that are privileged.

Released: April 21, 2016

Signed: "Justice Blouin"