WARNING

The court hearing this matter directs that the following notice be attached to the file: This hearing is governed by section 278.9 of the Criminal Code:

278.9 — Publication prohibited.

(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3;

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

(2) Offence. — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 — Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 — OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: June 1, 2017

Court File No.: Halton 15-3318

Between:

Her Majesty the Queen

— and —

Sean Walcott

Before: Justice D.A. Harris

Heard: March 31, 2017

Reasons for Ruling Released: June 1, 2017

Counsel:

• Amy Stevenson, counsel for the Crown
• Lynn Thompson, counsel for the accused Sean Walcott

Decision

HARRIS J.:

Introduction

[1] Sean Walcott is charged with sexual assault and assault with respect to KJ.

[2] At the beginning of the trial, Crown counsel applied for an order pursuant to section 278.3(1) of the Criminal Code for the production of certain joint counselling records of Mr. Walcott and KJ.

[3] Neither the record holder nor KJ participated in the arguing of the application.

[4] I ruled that part of the records would be produced, with reasons to follow upon the resumption of the trial. These are my reasons for that ruling.

The Two-Stage Process

[5] An application for third party records proceeds in two stages.

[6] In the first stage, I am to determine whether the records should be produced to me for review.

[7] It is essential to review the relevant sections of the Criminal Code in order to understand the issues present in this case. Those sections that relate to the first stage of the application are set out as follows:

Criminal Code Provisions

278.1 For the purposes of sections 278.2 to 278.9, "record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

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 or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3, or

(b) any offence under this Act, as it read at any time before the day on which this paragraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in paragraph (a) if it occurred on or after that day.

(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.

(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor's possession but, in doing so, the prosecutor shall not disclose the record's contents.

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

(3) An application must be made in writing and set out

(a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and

(b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

(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:

(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.

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 14 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

(2.1) The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.

(3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.

278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that

(a) the application was made in accordance with subsections 278.3(2) to (6); and

(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.

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account:

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society's interest in encouraging the reporting of sexual offences;

(g) society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

Analysis of the First Stage

[8] The test for production at this stage is set out in section 278.5(1).

[9] There is no disputing the fact that certain preconditions have been satisfied here.

[10] The application was made in accordance with subsections 278.3(2) to (6);

[11] The records sought fall within the category of records as defined in section 278.1.

[12] Sexual assault is a designated offence in section 278.2(1)(a).

[13] The records sought allegedly contain an admission by Mr. Walcott of engaging in non-consensual sex with KJ. I cannot imagine anything more likely relevant to the central issue at trial than that.

[14] The records sought also allegedly contain a prior consistent statement by KJ. It is not so obvious that this alone would render the records likely relevant, but that point is moot. The alleged confession already satisfied that prerequisite.

[15] It is settled law that joint counselling records can be ordered produced.

[16] I was satisfied that the production of the records was necessary in the interests of justice.

Jurisdictional Issue: Crown Application

[17] The only contentious issue as I saw it was whether the Crown could even bring this application and whether I had jurisdiction to make the order sought when it was the Crown who had brought the application.

[18] The sections of the Criminal Code are silent on this. They refer solely to an application by the accused.

[19] The sections also refer to records regarding "the complainant or witness" and make no mention of records pertaining to the accused.

[20] A reading of the sections in their entirety therefore reveals a statutory scheme whereby an accused can apply to the court for production of certain records pertaining to the complainant or witness.

[21] There is also very little case-law on point. Crown counsel referred me to R. v. K.L., a decision in the Superior Court of Justice where such an order was made. That case was very similar to the present case. Unfortunately there was no discussion at all as to jurisdiction. It seems to have been assumed that the court could allow the application by the Crown.

[22] I subsequently found R. v. Biddersingh, another decision by the Superior Court of Justice wherein the Crown applied for production of certain records based on the principles in R. v. O'Connor. In that case, Justice Trotter dismissed the application on the basis that the Crown had failed to establish likely relevance. Again, there was no discussion of jurisdiction beyond the following comments:

These records were subpoenaed at the preliminary inquiry. In the process of vetting these records, Crown counsel determined that the better course would be to re-seal the records and seek production on this application. I agree that this is the proper course of action.

[23] This decision is clearly distinguishable from the case here where the application clearly falls within the statutory regime. I have referred to it simply because it is one of only two prior decisions that come even close to addressing the issue before me.

[24] In R. v. K.L., supra, Justice Panet referred to R. v. Serendip Physiotherapy Clinic, but did not address the following passages:

21 Section 487 of the Criminal Code sets out minimal requirements that adequately balance, at the investigative stage, the state interest in law enforcement and the public interest in protecting the privacy of the patients and the targets of the search. The warrant can only issue where the informant has demonstrated in writing and under oath a credibly based probability that a crime has been committed and that evidence of that crime will be obtained by a search of the premises. The analogy used by the motion judge to therapeutic and similar records of sexual assault victims sought by an accused for use at the trial of a sexual assault is not an apt one. Section 487 sets out a code of procedure which, as I have said, requires a demonstration of credibly based probability before the material can be seized. The common law and now statutory regime for production of personal information records in sexual assault cases filled a gap in procedure. Before O'Connor and the Criminal Code amendments concerning personal information records, such records would be subject to production merely through issuance of a subpoena. No such gap exists where the state seeks to invoke the statutory search warrant procedures. The seizure of medical records by the police through execution of a warrant also does not implicate the kind of policy considerations at play where the alleged abuser seeks highly personal records from the alleged victim of a sexual assault.

22 Finally, I note that in O'Connor, the very case that established the common law procedure for production of therapeutic records in sexual assault cases, there is no suggestion that the ordinary search warrant process is not the appropriate vehicle where the state, rather than the accused, seeks to obtain records in which a third party may claim a privacy interest. To the contrary, in her discussion of the right to privacy, L'Heureux-Dubé J. makes reference to cases that support the use of search warrants to obtain documents and records in which a third party might have a reasonable expectation of privacy.

[25] This suggests that the Crown might have obtained the records pursuant to a warrant.

[26] The complicating factor here is that KJ, the complainant in this case, also has a privacy interest in the same records. That creates the following scenario. If the Crown obtained the records pursuant to a warrant, the Crown would then be obliged to disclose the records to Mr. Walcott. However, absent the order requested in this application the Crown would be precluded from doing this by virtue of section 278.2.

[27] I indicated earlier that I was satisfied that the interests of justice required that I order the records produced. In light of that, it struck me that it would be absurd for me to refuse to make the order simply because the Criminal Code does not specifically say that the Crown may bring such an application. The more important principle was the requirement for judicial authorization before either party has access to records in which the complainant has a privacy interest.

[28] Since I was satisfied that all of the prerequisites had been satisfied here, I made an order that the records be produced to me.

The Second Stage of the Application

[29] That then brought us to the second stage of the application.

[30] It was agreed by counsel that, if and when we reached this stage, I should review the records and determine what portions, if any, should then be produced to counsel. In that regard, I would redact anything that was not relevant but I would leave in both inculpatory and exculpatory statements by Mr. Walcott and any exculpatory statements made by the complainant.

[31] The following are the relevant portions of the Criminal Code regarding the second stage of the application:

Criminal Code Provisions — Second Stage

278.6 (1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused.

(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.

(3) Subsections 278.4(2) to (3) apply in the case of a hearing under subsection (2).

278.7 (1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).

(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.

(3) If the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions:

(a) that the record be edited as directed by the judge;

(b) that a copy of the record, rather than the original, be produced;

(c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;

(d) that the record be viewed only at the offices of the court;

(e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and

(f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record.

(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so.

(5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings.

(6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it.

278.8 (1) The judge shall provide reasons for ordering or refusing to order the production of the record or part of the record pursuant to subsection 278.5(1) or 278.7(1).

(2) The reasons referred to in subsection (1) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.

Disposition

[32] After reviewing the records and considering the above provisions, I was satisfied that parts of the records were likely relevant. Using a copy of the records, I redacted all other parts that I did not find to be likely relevant.

[33] Copies of the redacted records were given to the Crown and to counsel for Mr. Walcott.

[34] A copy of the original records reviewed by me, and a copy of the redacted records were sealed and attached to the Information, to be opened by judicial direction only.

[35] The above order was for production of the redacted records only. What use may be made of them during the trial has yet to be determined.

[36] Finally, I make an order pursuant to section 278.9(1)(c) of the Criminal Code, permitting the determinations by me pursuant to subsection 278.5(1) and 278.7(1) and the reasons provided pursuant to section 278.8, to be published, subject to the ban on publishing any information that could identify the complainant.

[37] Other than that, the contents of the application and any evidence taken, information given or submissions made at the hearing shall not be published in any document or broadcast or transmitted in any way.

Released: June 1, 2017

Signed: Justice D.A. Harris

Footnotes

[1] R. v. R.C., [2002] O.J. No. 865 (Ont. C.A.) per Rosenberg J.A.

[2] R. v. K.L., [2006] O.J. No. 5909 (Ont. S.C.J.) per Panet J.

[3] R. v. Biddersingh, 2015 ONSC 4375 (Ont. S.C.J.) per Trotter J.

[4] R. v. O'Connor, [1995] S.C.J. No. 98.

[5] R. v. Biddersingh, supra at para. 11.

[6] R. v. Serendip Physiotherapy Clinic, [2004] O.J. No. 4653 (Ont. C.A.) per Rosenberg J.A.

[7] Ibid, at paras. 21 and 22.

[8] Although counsel argued both stages together.