Court File and Parties

Ontario Court of Justice

Date: 2016-10-07

Court File No.: Toronto 12-12-10018064

Between:

Her Majesty the Queen Respondent

— AND —

T.Y.W. Applicant

— AND —

T. Third Party Complainant

— AND —

Children's Aid Society of Toronto Third Party Record Holder

— AND —

Toronto Police Service Third Party Record Holder

Before: Justice Caldwell

Heard on: August 15, 2016

Reasons for Judgment released on: October 7, 2016

Counsel

Ms. Vanita Goela — counsel for the Crown

Mr. Corbin Cawkell and Ms. Sarah Malik — counsel for the Applicant Mr. T.Y.W.

Ms. Renatta Austin — counsel for the Third Party Complainant T.

Ms. Karen Freed — counsel for the Third Party Record Holder Children's Aid Society of Toronto

No one attending for the Toronto Police Service

Judgment

K. Caldwell J.:

Introduction

[1] Mr. Y. W. is charged with both human trafficking and misrepresentation to immigration authorities. Both charges are laid under the Immigration and Refugee Protection Act.

[2] Mr. Y. W. has brought a third party records application to obtain both the Toronto Children's Aid Society ("CAS") records and unrelated police records involving the complainant, T.

Overview of the Allegations

[3] The allegations are unusual. T. was born in Myanmar and then came to Canada from Singapore with Mr. Y. W. and his family approximately eight months before these charges were laid.

[4] T. claimed that she worked as a servant for the family for three years prior to coming to Canada. Mr. Y. W. and his wife brought T. into the country as their daughter, however. Further, T. claims that Mr. Y. W. and his wife falsified the documents used to substantiate the familial relationship.

[5] CAS became involved because T. stated that she was fifteen years old. Mr. Y. W. contends that T. intentionally noted a false age in her Canadian legal documentation and that she is in fact over eighteen.

The Requested Third Party Records

[6] Mr. Y. W. is applying for the following records:

• T.'s CAS case file;
• Police records of an unrelated sexual assault allegation made by T. involving an unrelated individual. The charges were subsequently withdrawn.

Format of the Application

[7] There are two different yet related third party records regimes that govern depending upon the nature of the charges and the nature of the records – the "O'Connor regime" and the "Mills regime".

[8] There was much debate at the outset of this application about the applicable format. I have concluded after further consideration that both regimes apply – the O'Connor regime for the CAS records, and the Mills regime for the police records. My reasons for this conclusion are as follows.

[9] The Supreme Court of Canada reiterated the history of the Mills regime in its recent R v Quesnelle decision. The Court noted that it became usual in sexual assault trials for the defence to seek the complainants' private records in order to question the complainant "through invasive (and often inappropriate) credibility probing". Parliament responded by enacting sections 278.1 through 278.91. These sections became known as the Mills regime in reference to the Supreme Court of Canada R. v. Mills decision ruling on the constitutionality of the sections.

[10] As stated in Quesnelle:

The regime reflects Parliament's intention to accommodate and reconcile the right of the accused to make full answer and defence with the privacy and equality rights of complainants in sexual offence cases….the Mills provisions echo this Court's frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials.

[11] The Court in Quesnelle also clarified that the section 278.1 definition of "records" included police files and occurrence reports relating to sexual assault complainants.

[12] Section 278.2(1) reads in part:

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…(a list of sexual offences follows, including sexual assault)

[13] The portion that I find ambiguous is "in any proceedings in respect of any of the following offences". Does this phrase limit the prohibition's applicability to cases in which the accused is charged with a sexual offence, which is the usual section 278 application scenario, or does the provision also apply if the records themselves relate to a sexual offence but the accused is charged with an unrelated, non-sexual matter? I find that the provision, standing alone, could be read interpreted both ways.

[14] In R. v. C.D.; R. v. C.D.K., Justice Bastarache stated:

27 In order to determine the meaning of an undefined term in a statute, it is now well established that a court is to read the words making up the term "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.

[15] The purpose of the legislation, as illustrated in the quote from Quesnelle above, is to balance the accused's rights with the privacy and equality rights of sexual assault complainants. It stands to reason that those privacy and equality rights are equally important whether the records pertain to a sexual assault complainant in the matter directly before the court or whether they pertain to prior sexual assault proceedings.

[16] I therefore find that the application for the police records falls within the section 278 production scheme.

[17] It is clear, however, that the CAS records fall within the O'Connor procedures which govern the release of third party records that do not fall within the section 278/ Mills regime given that the offences which Mr. Y. W. faces are not offences enumerated in the section 278 provisions.

Police Records Production

[18] The Application Record notes that T. made a complaint of a sexual assault by a Mr. D.B. Mr. B. was a fellow high school classmate of T. and is not known to Mr. Y. W. T. told one of her teachers and the teacher advised T. to go to the police. This information and full details of the allegation are contained in the synopsis which has been disclosed to Mr. Y. W.

[19] Also disclosed is a transcript of the final court proceeding regarding Mr. B.'s charges – it is very brief. The Crown simply stated that there is no reasonable prospect of conviction and withdraws the charge. No further comments are made.

[20] Mr. Y. W. wishes production of the remainder of the police file. The basis is that "the criminal involvement of a complainant may be relevant to assessing the credibility and reliability of the complainant….[the records] may further be relevant for use to impeach the credibility of the complainant".

[21] There are a multitude of reasons why the Crown may withdraw charges due to "no reasonable prospect of conviction". A complainant lacking in credibility is but one possible reason. There is nothing to suggest that this was the case – it is a matter of pure speculation. On this basis alone, I find that the Applicant has not established that the record is "likely relevant".

[22] Further, section 278.3(4) states:

(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:….

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

[23] The only basis put forth by the Applicant is that the record may relate to T.'s credibility. Section 278.3(4) makes it clear that the application must fail as a result.

The CAS Records

[24] I find that the CAS records are "likely relevant".

[25] As I noted above, the CAS records are subject to the O'Connor regime as opposed to the Mills/ section 278 regime. The O'Connor regime is less complex as it does not carry with it the additional policy concerns that arise in sexual assault cases.

[26] The Ontario Court of Appeal in the recent decision of R. v. Gravesande reiterated the O'Connor test and procedure as follows:

51 If the record holder or some other interested party opposes the application, then the trial judge must determine whether production should be compelled in accordance with the two-stage test established in O'Connor. At the first stage, the trial judge must determine if the records are "likely relevant" to the proceedings and if they should be produced for the court's inspection. At the second stage, the trial judge examines the documents to determine whether, and to what extent, production to the accused should be ordered: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 27.

52 Likely relevance in this context means "a reasonable possibility that the information is logically probative to an issue at trial": O'Connor, at para. 22. An "issue at trial" 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: McNeil, at para. 33.

53 "Likely relevant" is not to be interpreted as an onerous burden on the accused. Considerations of privacy and admissibility are not relevant at this stage: O'Connor, at para. 24. As indicated in O'Connor, at para. 24: "A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming' requests for production."

[27] The Applicant outlined a number of bases upon which he is claiming that the CAS records are "likely relevant". I will focus on the one basis that I find to be determinative.

[28] Ironically, much of the file appears to have been disclosed already. In my view, what was being requested was not the CAS file in totality – as so much had been disclosed – but the parts of the file that had not yet been provided to the defense. If I had reached the conclusion that the relevant part of the file had been provided already, then there was no point in reopening the file, particularly given the privacy interests at stake. I reached the opposite conclusion, however. A bit of case history is necessary to explain that conclusion.

[29] This case unfolded in an unusual manner. A third party contacted the CAS alleging that Mr. Y. W. and his wife were mistreating T. CAS investigated and then contacted the Toronto Police Service ("TPS") which became involved that day or very shortly thereafter.

[30] The police laid charges against both Mr. Y. W. and his wife. T. was apprehended by CAS and placed in foster care. Importantly, at this stage the police ended their involvement. After the TPS exited the picture, the Canada Border Services Agency ("CBSA") commenced its investigation that resulted in these charges.

[31] What was initially unclear to me was the extent of the file contents that had already been disclosed and the reason for that initial disclosure – at first blush it seemed odd that third party records would have been handed over in the first place.

[32] I then came to learn that there is quite a lengthy protocol entitled the "Protocol for Joint Investigations of Child Physical and Sexual Abuse: Guidelines and Procedures for a Coordinated Response to Child Abuse in the City of Toronto" that has been signed by both the TPS and CAS. Part II of that Protocol outlines a team approach and dictates that both parties "shall disclose" to one another "any and all relevant information related to the investigation" and that interviews are to be conducted together.

[33] It is my understanding that the case notes and other relevant materials in the CAS file that were obtained during the joint TPS/CAS investigation were provided by CAS to TPS. That production in turn resulted in disclosure to Mr. Y. W.'s counsel.

[34] Ms. Freed, counsel for CAS, quite candidly admitted, however, that the same disclosure policies would not have applied once TPS ceased its involvement and the CBSA became involved because the CBSA is not a signatory to the Protocol. CBSA did conduct a full investigation including interviews that involved CAS personnel. Any case file notes and other associated documents that were made and compiled in the CAS file as part of that joint investigation would not be provided to CBSA and thus not disclosed to Mr. Y. W.

[35] There is no question, in my view, that those materials compiled by CAS during that joint investigation are "likely relevant" to these proceedings as it was that joint investigation that led to the charges before the court.

[36] I therefore find that the Applicant has satisfied the first part of the O'Connor test. I must turn next to the second part of the test which involves opening the CAS file and a review by me to determine whether and to what extent production should be ordered.

[37] I will discuss separately with counsel the time that will be required for this review. Further, the possibility of judicial summaries can be canvassed if I find that such a process is necessary.

Released: October 7, 2016

Signed: "Justice K. Caldwell"