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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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: February 7, 2017

Court File No.: Toronto No. 15 Y 134116

Parties

Between:

Her Majesty the Queen

— and —

N.S. a young person

Before: Justice B. Weagant

Heard on: February 1, 2017

Reasons on Application Released on: February 7, 2017

Counsel

Sarah de Filippis and Cara Sweeney .................................................... counsel for the Crown

Megan Savard and Andrew Guaglio ................................................................ counsel for N.S.

Decision

WEAGANT, B. J.:

[1] Application Overview

[1] This is an application by the defence for an order 'directing' that Counsel for the accused is properly in possession of materials the complainant produced to the accused in an ongoing parallel civil proceeding and that the production regime in s. 278 of the Criminal Code does not apply to the production materials currently in the possession of counsel for the accused.

[2] Background and Procedural History

[2] At the outset, I must say that this is an unusual application. The genesis of the presenting problem is a result of a question being put to the complainant in this case during her cross-examination. The defence was attempting to put information to the complainant in an attempt to impeach her credibility. I now know that the proffered information was contained in a medical record that the defence had obtained from the accused's civil counsel in a parallel civil proceeding at the Superior Court of Justice. The Crown objected and suggested the Court have a voir dire on the legality of the questioning. Immediately the issue crystalized: given the nature of the information, can counsel for the defence legitimately have the information in his possession and use it in cross-examination?

[3] The next significant legal event was a motion at the Superior Court for declaratory relief regarding the deemed undertaking rule (S.C. v. N.S, 2017 ONSC 353, [2017] O.J. No. 206). The evidence in the possession of defence counsel was part of compelled production in the civil proceeding and civil counsel sought a declaration that the defendant/accused had not breached the implied undertaking rule by giving it to defence counsel in the parallel criminal proceeding, and in the alternative, an order that the deemed undertaking did not apply in the particular circumstances of this case, nunc pro tunc.

[4] Madame Justice Matheson ruled that the use of the civil production materials in the criminal trial was an incorrect deployment of the impeachment exception in the deemed undertaking rule in that oversight by the Superior Court was not sought before using the productions, and thereby the undertaking was breached.

[5] Justice Matheson declined to make a ruling on the "wholesale exclusion" from the deemed undertaking rule, having been told that only a few pages of the materials produced were relevant and a blanket ruling on the entire production "goes well beyond what could be justified at this stage and does not really respond to what has transpired."

[6] Justice Matheson was asked to decide on the legal propriety of relying on the exception contained within Rule 30.1.01 in the context of the civil proceeding. The deemed undertaking rule is that the disclosure obtained in the civil action cannot be used for any purpose other than those of the proceeding in which the evidence was obtained. The rule contains the exception that the rule itself does not prohibit the use of evidence obtained being used to impeach the testimony of a witness in another proceeding. Her decision, from my point of view, establishes that disclosing the entirety of the civil production to defence counsel for use in the criminal proceeding, as was done in this case, is an incorrect deployment of the noted exception to the deemed undertaking rule as civil counsel failed to seek judicial oversight before so doing. This constitutes a breach. Justice Matheson adverted to the fact that a sanction or remedy could be imposed by her court, but she did not so impose. She also does not say anywhere that the parties must disabuse themselves of their knowledge about the production when seeking relief in the criminal trial.

[7] The final paragraph of Justice Matheson's decision is particularly relevant. She writes: "This is not a determination of whether the documents can be used in the criminal trial. That is properly decided by the criminal trial judge." This is consistent with other statements by Justice Matheson which reflect her care in ruling on precisely the issue in front of her and not purporting to reach into the criminal court's jurisdiction to make rulings in the context of its own proceeding. Justice Matheson says at paragraph 31:

A number of sub-issues arose before me, including the inter-relationship between Rule 30.1.01 and rights and obligations in the criminal proceedings. While I have considered those submissions, any issued regarding ss. 278.1 to 278.9 of the Criminal Code, the admissibility of evidence, the scope of cross-examination or any other matter regarding the conduct of the criminal proceedings are properly before the criminal trial judge.

[8] And at paragraph 102:

The criminal trial is now at a materially different stage. Based on the argument before me, there are significant issues regarding whether an application under ss. 278.1 through 278.9 application (sic) should have been brought in the criminal proceedings in respect of the medical records in question, and issues regarding the scope of the cross-examination and admissibility of the evidence obtained through the civil products. These issues are properly for the criminal trial judge.

[9] And at paragraph 103:

While I understand the criminal trial judge may (or may not) factor in the events and obligations in the civil proceeding in the determination of the issues in that trial, those matters are sufficiently described in these reasons for decision.

[3] Impact of Superior Court Ruling

[10] Given that civil counsel's distribution of the materials to defence counsel for this purpose has now been found to be a breach of the deemed undertaking given to the Superior Court in the context of its litigation, how is a ruling on the Crown's objection to the questioning of October 6, 2016 impacted?

[11] I will say at the outset of my reasons that I do not view anything in the reasons of Justice Matheson that preclude me from considering any particular argument or avenue of reasoning in what I have to decide. I find the opposite: as quoted above, Justice Matheson at several points in her ruling stressed she was expressing no opinion as to how I approach my task. The only real issue for me to decide today is whether the defence in the criminal matter is entitled to a ruling on the objection of the Crown to its question. A collateral issue is whether the defence is required make an application to me under the s. 278 regime for an order for the production of documentation the defence already has in its possession.

The Position of the Parties

[12] The Crown argues that the defence is not in lawful possession of the evidence it wishes to use to impeach the complainant. The Crown contends that the only way to come into lawful possession of the production is through an application under s. 278. It is unclear if the Crown also objects to the defence knowing the contents of the documents for the purposes of establishing an evidentiary basis for arguing an application under s. 278. In any event, the Crown argues that the protections afforded the complainant by the s. 278 process are effectively defeated if the defence does not have to bring a s. 278 application. The documentation in issue is exactly the type of evidence s. 278 was created to protect. Further, the complainant would have notice of the application.

[13] The defence position is that the materials are not improperly in the possession of the defence. Mr. Neubauer, referred to in Justice Matheson's decision as a "non-party" to the civil litigation, is not subject to the deemed undertaking rule, according to the defence. In any event, once the documents are in the hands of the defence, s. 278 cannot be used to 'shut the barn door'. S. 278 is a mechanism to compel production of evidence that the defence does not have in its possession.

[14] As a preliminary matter, the Crown asked the Court to grant standing to the complainant on this application. The argument advanced by the Crown was that since the complainant would be receiving notice of a s. 278 application, it makes sense to hear from the complainant when deciding whether there will be a s. 278 application. The Crown argued that since the complainant would be affected by the ruling, this should lead to her having standing.

[15] I denied the motion. At this stage, I am dealing with an objection by the Crown to a question asked during cross-examination. At this point, the arguments for my consideration are entirely about which procedure I should be following in order to properly dispose of the objection of the Crown to a question asked in cross-examination. While I acknowledge that complainants regularly are represented in motions to compel production, this is not the issue in front of the court. I am being asked to rule on the procedure we will follow.

[16] Should the scope of the argument expand to include the precise privacy and equality rights of a witness, we can revisit the request at that time. Further, if we embark on a s. 278 application, proper notice must be given to the complainant.

Legal Analysis

R. v. Shearing Framework

[17] On the issue I have to decide, the leading case that guides me is the Supreme Court of Canada decision in R. v. Shearing (2002), 165 C.C.C. (3d) 255 (S.C.C.). That case involved the accused in a criminal matter accidentally finding the diary of the complainant in a storage box. He then wished to use it in the cross-examination of the complainant. The evidentiary issue involved whether the accused could properly use the diary for this purpose. The Court decided that the s. 278 regime does not apply to records already in the possession of the accused. The s. 278 legislation is concerned with the production of personal information records and not with admissibility.

[18] Whether or not the possession of the diary was lawful was the subject of differing opinion on the court. The majority on this point found the possession to be not "wrongful" in any legal sense, but made it clear the case did not turn on the characterization of the legal propriety of the evidence being in the hands of the defendant. Justice Binnie writes:

I do not propose to pursue the property ownership debate. The issue for present purposes is not the "ownership of the diary" (which could be the subject of a civil cause of action) but the status of information contained within the diary. Return of the diary, as proposed by my colleague L'Heureux-Dube J. at para. 161, would seem to me to shut the barn door after the horse had escaped.

[19] The Court went on to say that the real issue for the trial judge was admissibility, which is a different matter than production, but pointed out that privacy protections for the complainant still obtain. The court noted that any privacy or equality issues of the complainant would have to be revisited at the time the admissibility of the evidence is the "... matter ripe for decision."

[20] The issue for the trial judge in Shearing, therefore, was whether cross-examination on the diary would create prejudice to the complainant that 'substantially outweighed' its potential probative value to the appellant, and in that regard whether cross-examination on the absence of entries recording abuse relied upon "rape myths" or the equivalent.

R. v. Gray and the Competing Approach

[21] The Crown argues that Shearing does not apply to the facts in front of me and that I should proceed to apply s. 278 should an application to produce be brought by the defence. The main support for the Crown's argument that the next step here is an application under s. 278, is the reasoning in the case R. v. Gray, [2015] O.J. No. 2633, a trial level decision by Justice G. Trotter of the Ontario Superior Court of Justice. In that case, the therapeutic records of a child complainant were forwarded to the Crown in the context of a prosecution for sexual offences. The Crown disclosed a DVD of a therapeutic session to the defence, in direct contravention of s. 278.2 (2). The defence then sought to rely on the DVD. Justice Trotter found that counsel had the DVD in his possession unlawfully. He then reasons that the regime in s. 278 remains available "… to rectify situations when private records have been illegally disclosed". The court ordered the DVD be returned to the Crown and ordered that any future production be determined under the regime in s.278. Further, the defence was not allowed to rely on the contents of the improperly disclosed DVD. Justice Trotter writes: "Mr. Gray is simply being denied that to which he was not entitled in the first place. I see no unfairness in this result".

[22] Justice Trotter, in Gray, decided that Shearing does not categorically oust the application of ss. 278.1 to 278.9 when private records have already been disclosed. Justice Trotter was of the opinion that Shearing operated on the assumption that some types of wrongful taking or illegal deprivation may entitle a complainant to the protection of ss 278.1 to 278.9. He illustrates his point with the example of an accused or third party obtaining records by breaking into a therapist's office and stealing private records. Justice Trotter found it inconceivable that a complainant would lose the protection of ss 278.1 to 278.9 under those circumstances.

Spectrum of Impropriety

[23] If Justice Trotter is correct, it remains difficult to extract a formula that would apply to all of the various ways private documents or evidence may find their way into the possession of an accused or her lawyer. Indeed, the cases under discussion present instances that vary widely, but do share the common characteristic that the propriety of the possession is arguable. At one end of the spectrum is the fact situation in Shearing, where the accused finds the diary of the complainant and converts it to his own use. It would be hard to say categorically that reading the diary of someone else, even if found accidentally, is an act that is completely stripped of any kind of moral ignominy, simply because the diary wasn't stolen. It bears acknowledging that two Justices would have returned the diary on the basis that the possession of the diary was illegitimate, as the complainant could not be said to have abandoned her property interest in the diary.

[24] At the other end of the spectrum, we have the hypothetical posed by Justice Trotter, of the stolen evidence taken from the therapist's office in a break-in.

[25] In between, we have a DVD that is negligently disclosed to the defence by the Crown, as in Grey. It must be noted that the disclosure was a contravention of ss 278.2 (2), within the context of the case in front of the Court. Under those circumstances, a return of the DVD could be ordered by the court hearing the application as part of its ability to control its own process. This type of remedy is unavailable to me in the present case, as the documents were produced outside of the process I control and in quite different circumstances.

[26] I point out the fact that these types of cases are few and far between. The paucity of guidance in the caselaw leads me to conclude that if I were to follow the reasoning in Grey, I would need to articulate a principled approach in order to apply the reasoning.

[27] Do I have to first identify the delict or impropriety (if any) that puts the evidence in the hands of the accused, and then assign a value to it for the purposes of applying Gray? If it is a serious impropriety, does that trigger a finding that the evidence is, for the purposes of the process, not really in the possession of the accused and therefore s. 278 applies? I keep in mind that the regime in s. 278 is about compelled production of something that the accused does not already have.

Application to Present Facts

[28] It was established in the ruling of Justice Matheson that a breach of the deemed undertaking rule was committed by civil counsel by providing the production obtained in the civil case to Mr. Neubauer for the purposes of impeachment in the criminal trial without a prior application for judicial oversight by the Superior Court. Since Justice Matheson's decision breaks new legal ground, the actions of civil and criminal counsel in the present case could legitimately be characterized as an honest error in interpretation by the lawyers, made in an area of law where the caselaw gives little guidance. In this regard, it must be acknowledged that the lawyers involved were actually following a procedure previously adopted in at least one known case. As I note below, there was precedent for the criminal trial court to make the determination that the exception to the deemed undertaking rule could be invoked for the purposes of deciding an objection to a question posed for impeachment (Nedelcu, below).

[29] Should I conclude that the actions of counsel in this case morally taint Mr. Neubauer's possession of the evidence to the extent that it is tantamount to theft of a therapist's records, as in Justice Trotter's hypothetical? I cannot.

[30] Since Justice Matheson's ruling seems to stand on her finding of procedural shortcomings and not on the actual merits of an argument concerning the actual exception, can I conclude, and Justice Trotter did, that Mr. Neubauer is in possession of something he wasn't entitled to in the first place? I cannot. No one can say how the Superior Court application might have turned out if this had been done earlier and, procedurally speaking, correctly. We do know that Justice Matheson has acknowledged that at this stage of the proceedings, a 'blanket ruling' on all the disclosure goes well beyond what could be justified, and such an order would not really respond to what has transpired. She immediately follows these words with the statement that she was not determining whether the documents could be used in the criminal trial. According to her, that is properly my decision.

[31] I cannot conclude that this is one of those cases where it is "inconceivable" that a complainant would lose the protection of ss 278.1 to 278.9, based on the behaviour of civil counsel. It must be reiterated that any determination of admissibility or use in the criminal proceeding is subject to the fundamental requirement that the probative value of the evidence must be weighed against its prejudicial effect. The privacy and equality interests of the complainant can be advanced in the course of that argument.

[32] I cannot conclude that a breach of the deemed undertaking rule must inevitably lead to non-application of the principle in Shearing. Two trial court decisions are instructive in this regard. In R. v. Nedelcu, the Crown in a criminal prosecution was given a copy of the transcript of Mr. Nedelcu's examination for discovery from the parallel civil proceedings. The trial judge ruled that the "impeachment exception" applied, and further found that since the Crown was not a party to the deemed undertaking, the propriety of the Crown's possession was not in question. This matter was appealed, and one judge on appeal doubted the correctness of this decision, on the basis that the Crown actions might be in breach of s. 13 of the Charter. On further appeal to the Supreme Court of Canada, the trial judgment was restored, but no comment was made about the deemed undertaking issue.

[33] In the case of R. v. Prosa, [2015] O.J. No. 7134 (S.C.), the Crown prosecutor received a copy of the examination for discovery of an accused via subpoena. The court ruled, following Nedelcu, that although a likely violation of Rule 30.1.01 had occurred, the Crown was not a party to the undertaking in any event.

[34] I appreciate that neither of these two cases involved highly personal information comparable to the sensitive personal information that is at stake in the present case. However, both demonstrate that the impropriety of the behaviour that violates Rule 30.1.01 may be a matter for the court in the civil action to sanction, not the court the criminal case. Justice Binnie, in the passage quoted above, suggests that the conversion of the diary may be a matter for a civil cause of action.

[35] I consider one last factor when determining whether the facts of this case would attract the approach in Gray. Here, the defendant in both actions is the same person, N.S. He became aware of the contents of the production within the civil action, by that court's order. At the moment he was given access to the disclosure, at least as between him and the complainant, the complainant's privacy interests in the produced documents effectively evaporated. Justice Matheson recognized that the defendant was not prohibited from sharing his knowledge of that evidence with criminal counsel. The breach by civil counsel occurred when criminal counsel took a next step with information he was entitled to have but, without prior oversight by the Superior Court, not entitled to use in that next step.

Conclusion

[36] I conclude that Shearing applies in this case. As the documents involved are already in the possession of the defence, I do not require an application under s. 278. I am prepared to hear argument as to whether the defence can proceed with its questioning.

Released: February 7, 2017

Signed: Justice B. Weagant