Court Information

Ontario Court of Justice

Date: 2018-03-06

Court File No.: Brampton 3111 998 17 3727

Between:

Her Majesty the Queen

— and —

A.O.

Before: Justice G.P. Renwick

Heard on: 06 March 2018

Reasons for Judgment released on: 06 March 2018

Counsel

K. Holmes — counsel for the Crown

L. Seetahal — counsel for the Applicant A.O.

R. Sengupta — counsel for the Complainant

L. Shaw — counsel for the record holder Peel Children's Aid Society

K. Ismael — counsel for the record holder Dufferin-Peel Catholic District School Board

Judgment

RENWICK J.: (Orally)

Introduction

[1] The Applicant seeks school counselling records and Children's Aid Society records created once an allegation of a sexual nature was made by the complainant about three incidents which are alleged to have occurred at the hands of the defendant, in her home. The Applicant seeks both sets of records in order to make full answer and defence and insists that these records are likely relevant to an issue that relates to credibility but does not solely go to the complainant's credibility. There is no distinction in the application to the likely relevance of the records held by the school board and the child protection agency. For all purposes in the application, both sets of records are presumed to be similar.

[2] In R. v. A.M., 2014 ONCA 769, the Ontario Court of Appeal confirmed a number of basic principles relating to credibility assessments, and held:

…every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate:

….no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence.

…one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[3] I find that the credibility of the complainant is a very real concern in this case. The defendant should be in the best position to test the complainant's evidence, unless countervailing considerations, such as the privacy of the complainant, or any privilege attaching to the records of a therapeutic or special relationship displaces the general rule.

[4] In establishing likely relevance, the Applicant cannot rely on speculative or stereotypical assumptions. See R. v. Mills. I am also aware that the bare assertions of likely relevance of the factors enumerated in s. 278.3(4) of the Criminal Code are not a proper basis for ordering production of the records to the court, and specifically, s. 278.3(4)(e) of the Code reads:

(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.

[5] Counsel for the Applicant has attempted to connect the video statement evidence of the complainant's [female relative], that the complainant has animus for the defendant, as a basis to meet the threshold at the first stage.

[6] In response, on behalf of the complainant, counsel argues that the principles of fundamental justice do not entitle the Applicant to "the most favourable procedures that could possibly be imagined:" Mills, supra, at para. 72. Moreover, the right to make full answer and defence must be understood in light of other principles of fundamental justice including the security of the person and privacy rights of complainants of sexual offences. Counsel also submits that there are alternative sources of the same evidence, both in the notes of the school counsellor, which have been disclosed to the Applicant, and other witnesses who can testify about any animus as between the complainant and the Applicant.

[7] I may only order production of the records at issue for my review, if I am satisfied that the application is properly brought under s. 278.3(2)-(6), the Applicant has established that the record is likely relevant to an issue at trial, or to the competence of the witness to testify, which has not been raised by the Applicant, and my review of the record is necessary in the interests of justice.

[8] I must consider the salutary and deleterious effects of producing the record for my review on the Applicant's right to make full answer and defence and on the right to privacy, personal security, and equality of the complainant. In reaching a decision at this stage I must consider the factors listed in s. 278.5(2)(a)-(h).

[9] In discussing this issue in R. v. Batte, Justice Doherty wrote:

I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value. To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the purposes of determining the Crown's disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.

The determination of likely relevance under the common law scheme requires the same approach. The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.

[10] In respect of the records held by the school board I am not satisfied that the best interests test is met. Specifically, although I find that the likely relevance threshold is met for my review of these records, because the Applicant has met its onus of demonstrating that there is a likelihood that something more than credibility can be established by the production of the school counsellor's records, that is, the complainant's feelings toward the Applicant, for the following reasons, I am not satisfied that the best interests of justice test is met.

[11] First, there are multiple sources of the same information sought. Subject to hearsay, any witness, including the [female relative], upon whom the Applicant has relied in argument to support the theory of animus on the part of the complainant toward the Applicant, may testify about their observations of the relationship of the parties. Second, without the school board records, the complainant may nonetheless be asked about her feelings toward the defendant. If she denies any ill-will, her statements to others, including her [female relative] may be put to her. Third, even if the complainant denies having any animus toward the Applicant, the trier of fact can consider whether her evidence on the point is truthful, credible, plausible, consistent in relation to all of her evidence and the evidence of others, and ultimately believable. Finally, the Applicant is entitled to testify and rebut any of the complainant's evidence including her assertions of professed neutrality or affection for the Applicant.

[12] In respect of the child welfare agency records, much of the same can also be said. On the one hand there is no reason to think that the child welfare agent asked the complainant for her feelings toward the Applicant. One would expect that these records were made not in the course of a therapeutic-type relationship, but rather with a view toward the investigation of whether a child was in need of protection. So, despite the complainant counsel's fair concession that there is a diminished privacy interest in these records, they may not contain the same type of information as found in the school counselling records. That said, depending on the questions asked by the child welfare agent and the answers provided, there may be evidence of the complainant's feelings toward the Applicant.

[13] A material difference between this set of records and the school counselling notes is the level of confidentiality expected by the complainant in these records. The child protection worker was referred to speak to the complainant only after the complaints of sexual assault and sexual interference were made. Also, I find that one of the animating features of the legislative scheme in section 278 is the protection of special relationships involving therapy or medical treatment. It can hardly be argued that those types of relationships are akin to the brief relationship that arose in the course of commencing an investigation into allegations of sexual impropriety and the needs of the complainant for protection by the child welfare agency. I find that the complainant's diminished expectation of privacy in these records tips the balance in favour of producing the child welfare file for my review.

Conclusion

[14] In consideration of the potential of records to contain material that is likely relevant to the complainant's view of the Applicant, which I find is an issue that does not solely go toward her credibility but could surely help a trier of fact assess her evidence in terms of a motive to fabricate, and whether or not she is providing a balanced and accurate view of the events she describes, and in consideration of the privacy interests of the complainant and the potential prejudice to the personal dignity of the complainant and society's interest in encouraging the reporting of sexual offences and the provision of therapeutic treatment to complainants of sexual offences, I am satisfied that it is not in the best interests of justice to order production of the school counselling records at the first stage, however it is appropriate to order production of the child welfare agency's records for my review.

Released: 06 March 2018

Justice G. Paul Renwick

Footnotes

[1] The parties did not seek a publication ban, but given the age of the complainant and the offences alleged, I have not used any identifiers in order to protect the complainant's identity.

[2] 2014 ONCA 769, [2014] O.J. no. 5241 (C.A.) at paras. 9-12.

[3] [2000] O.R. (3d) 321 at paras. 73, 75.