Court File and Parties

Ontario Court of Justice

Date: January 26, 2017

Court File No.: Newmarket 15-08481

Between:

Her Majesty the Queen

— and —

J.F.

Third Party Records Application

Before: Justice Joseph F. Kenkel

Heard on: December 19, 2016

Ruling released on: January 26, 2017

Counsel:

• Mr. Paul Tait — counsel for the Crown
• Mr. Evan Chan — counsel for the accused/applicant J.F.
• Mr. David Butt — counsel for Z.F. and M.Y.
• Mr. Clive Algie — counsel for the Yellow Brick House
• Ms. Josephine Kiang — counsel for Child and Family Services for York Region

Decision

KENKEL J.:

Introduction

[1] J.F. is charged with Forcible Confinement s. 279(2) of the Criminal Code and Assault with a Weapon s. 267(a). The defence applies for disclosure of two sets of third party records:

• Counselling Records of the Yellow Brick House Shelter
• Children's Aid Records

[2] After a complaint of child abuse was made, Children's Aid of York Region (CAS) conducted a joint investigation with the York Regional Police. The parties have agreed that the portion of the CAS records that relates to the joint investigative file will be disclosed on the consent of all parties. No further action is required by the court.

[3] Disclosure of the Yellow Brick House records is contested. The court has been alerted that a portion of those records may be subject to solicitor-client privilege.

Third Party Records

[4] The defence seeks disclosure of counselling records in the possession of The Yellow Brick House, a shelter that housed the complainant and her mother for a time after they left the family home. The O'Connor test applies.

[5] The police were called to the shelter after M.Y. disclosed a complaint of child abuse. All parties agree that the applicant has met the initial burden to show that the records are "likely relevant" and should be reviewed by the court to determine whether production should be ordered. This determination requires a case-specific consideration and a balancing of many factors – R. v. Bradley, 2015 ONCA 738, at para. 85.

[6] The relevant factors include:

i. the extent to which the record is necessary for the accused to make full answer and defence;

ii. the probative value of the record;

iii. the nature and extent of the reasonable expectation of privacy vested in the record;

iv. potential prejudice to the dignity, privacy or security of the person of the individual who is the subject of the record; and

v. the effect on the integrity of the trial process of producing or failing to produce the record: R. v. Bradley, at para. 87.

[7] Production is only ordered where the records or parts of records have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice or by the harm to the privacy rights of the witness – R. v. Bradley, at para. 86.

Solicitor-Client Privilege

[8] The Yellow Brick House records regarding the mother M.Y. contain notes made by a social worker who attended a meeting between M.Y. and her lawyer. The social worker was there to translate and for support. Mr. Butt submits that portion of the record is subject to solicitor-client privilege. The defence concedes solicitor-client privilege applies, but submits that disclosure must be made pursuant to the "innocence at stake" exception.

[9] I agree with both parties that solicitor-client privilege applies. Where a person requires a translator or support person to help them access legal advice, that does not detract from the privileged nature of the communication.

[10] Solicitor-client privilege is as "close to absolute as possible" – R. v. Sinclair, 2010 SCC 35, at para. 88. The test for the innocence at stake exception is stringent. Privilege is only infringed where core issues going to the guilt of the accused are involved and there is a genuine risk of wrongful conviction. Before the test is considered the defence must show that the information sought is not available for any other source, and that the defence is otherwise unable to raise a reasonable doubt as to guilt in any other way – R. v. McClure, 2001 SCC 14, at para. 46.

[11] The defence submits that the witness M.Y.'s discussion with her family law lawyer might have involved a discussion about the events that led to the charges before the court. If those matters were discussed then M.Y. might have told her lawyer a different version of the events than disclosed to the police and CAS. With her own lawyer she would be more at ease and comfortable with giving a different version of events. If the notes of that conversation are disclosed there may be contradictions which could raise a reasonable doubt as to the accused's guilt. The defence submits that without that disclosure there is, "a genuine issue of a wrongful conviction."

[12] There are two stages to the innocence at stake inquiry. In the first stage the applicant must provide an evidentiary basis upon which to conclude that there's a communication that could raise a reasonable doubt. If that requirement is met then the court reviews the record to determine whether, in fact, there is a communication that is likely to raise a reasonable doubt. See: McClure, at para. 50. It is usually preferable to delay the "McClure Application" until the close of the Crown's case. That permits the court to determine whether the accused's innocence is in fact at stake and whether the accused has other means to pursue a defence – R. v. Brown, 2002 SCC 32, at paras. 52-57.

[13] In this case no delay is necessary. This application fails the first test. Speculation about what was discussed and further speculation that a witness may give a contradictory account to a lawyer merely because they might feel more free to do so is not a basis to set aside privilege. That type of reasoning would expose any solicitor-client communication to disclosure. Further, the defence has disclosure of the statements of two witnesses, disclosure of records related to the joint CAS/York Regional Police investigation, and disclosure of the relevant portions of the Yellow Brick House records. The defence has a number of other means to test the Crown's case.

[14] The application to set aside solicitor-client privilege is dismissed and that portion of the records was not reviewed.

The Yellow Brick House Records

[15] I've reviewed the Yellow Brick House records relating to M.Y. and Z.F. with the exception of those portions subject to solicitor-client privilege. I've reviewed a synopsis of the allegations provided by the Crown in order to determine the context of the allegations and the potential relevance of the records. I've applied the O'Connor framework as discussed above. I've found certain portions of the records related to M.Y. have probative value that is not outweighed by the danger of prejudice to the proper administration of justice. Disclosure of those portions of the records would have minimal impact on the privacy rights of the witnesses or to any claim of privilege. I find that disclosure of the following portions of the M.Y. records are necessary to enable the accused to make full answer and defence:

• Page 10 – details of the initial disclosure and complaint to police
• Page 53 – reference to M.Y. and Z.F. meeting with Y.R.P. about the investigation

[16] The records relating to the child Z.F. do not include any discussion with her about the offence. There's little or no probative value to the information contained in the records and the child's privacy interest would be harmed by their disclosure.

Conclusion

[17] The application is allowed with respect to the Yellow Brick House records relating to M.Y. The two portions of those records identified above will be disclosed to the Crown for vetting. The Crown will then disclose those records to the defence. The application with respect to the Yellow Brick House records relating to Z.F. is dismissed.

Released: January 26, 2017

Justice Joseph F. Kenkel