WARNING
The court hearing this matter directs that the following notice be attached to the file:
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:
Criminal Code Provisions
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: January 8, 2018
Court File No.: Ontario Court of Justice-Old City Hall
Between:
Her Majesty the Queen
— AND —
George Kruzik
Third Party Records Application
Before: Justice S.R. Shamai
Heard on: January 3, 2018
Result released: January 4, 2018
Reasons released: January 8, 2018
Counsel
Ms. S. Orlando — counsel for the Crown
Mr. E. Glasner — counsel for the Applicant George Kruzik
Mr. C. Burkett and Ms. J. R. Bernardo — counsel for complainant C.B.
Decision
Shamai J.:
Application for Third Party Records
[1] George Kruzik has brought an application for production of therapeutic and counselling records relating to the complainant in this matter. As the records are in possession of the physicians and institutions which made them, it is a third party records application, governed by Sections 278.1 to 278.91 of the Criminal Code.
[2] Mr. Kruzik is co-accused with Mr. Turnbull on charges of human trafficking and related charges. Although the fact that Ms. B. had been in counselling was made plain by material disclosed in advance of trial, and was subject of questions to both Ms. B. and the other chief Crown witness, Ms. B.'s mother, Ms. R., it was not until sometime during the cross-examination of Ms. B. that the present application was put before the Court. The record, upon which Mr. Kruzik relies, is in part Ms. B.'s testimony and in part, statements she made prior to the laying of the charges.
[3] The existence of therapeutic and counselling records is well established in these proceedings. The records subpoenaed from Ms. B.'s psychiatrist, from the hospital where the psychiatrist worked, and from the Centre for Addiction and Mental Health were returned to this Court, and provided to counsel for Ms. B. As sealed exhibits, the records are Exhibits 1 and 2 on the Application. The specific dates, for which counsel seeks production of the records, is the time between Ms. B.'s arrest in April 2015, and the police interview in April 2016, when she made the complaint which underlies the criminal proceedings herein against Messrs. Turnbull and Kruzik.
[4] It is my understanding from the evidence of Ms. B. that she had mental health problems predating the allegation period, and in fact had medication to help her with symptoms relating to her condition. Evidence suggests that her adherence to the medication regime was inconsistent at best, and largely non-existent during the allegation period. The Applicant's theory is that as Ms. B. sought counselling during the time between her own arrest and her complaint against the accused in this matter, and as Crown (according to the Applicant) will rely on the mental health issues of the Complainant during the allegation period as having a key role in the alleged trafficking, the records are "likely relevant", and should be produced to the Court for review. Applicant alleges that only during counselling or therapy did she decide she had been victimized by the accused, and therefore made her complaint to police in April 2016. Applicant contends that given the timeframe, there must be relevance, at least to the reliability of the complainant's account, in the records relating to her treatment and therapy.
[5] In fact, Ms. B. was arrested with Mr. Turnbull and others in April 2015, on charges of human trafficking, relating to an underage woman. A few months after her release on bail on those charges, while residing in her family's home with her mother as surety, Ms. B. returned to her family doctor, and from there to a psychiatrist. In due course, the doctor referred her to the Centre for Addiction and Mental Health (CAMH), where Ms. B. underwent further therapy. These are the records sought by counsel. On behalf of the Applicant counsel says, this is not a fishing expedition, we know she had therapy and borderline personality disorder. Knowing that the records exist, counsel then links Ms. B.'s assertion in her police interview of April 2016 to the "likely relevance" of the records.
[6] That statement was made almost a year after her arrest, and at a point shortly before her preliminary inquiry, Ms. B. went to police to make a statement. I am advised that she had declined to make any statement at the time of her arrest, relying on the advice her lawyer gave her. In April 2016, however, she chose to go to police. She stated to the interviewing officer that she had experienced "a particularly bad patch of mental health" at the time she was introduced to Mr. Turnbull. She continued:
"okay well I have um borderline personality disorder which is similar disorder and it fluctuates in its severity and during the point in it um leads to um kind of irrational behaviour I suppose so I normally wouldn't have been in this situation where I was involved with someone like Nathan Turnbull, I suppose yeah" (P.6, April 2016 interview, Tab C, Applicant's Record)
[7] Applicant refers as well to a portion of Ms. B.'s testimony on the trial, where she was asked about her mother's response to the charges Ms. B. faced. Through pointed and persistent cross-examination, counsel pursued the proposition that through counselling, the Complainant "learned" that she had been victimized. The suggestion was made that her mother was trying to understand how her daughter became involved in the allegations then against her, "involving human trafficking, escorting etcetera", and influenced Ms. B.'s decision to seek counselling. The further suggestion was made that "in looking for answers, you went looking to go to a doctor to see if, maybe, a professional could help you understand". Ms. B. replied that she "didn't go because of that, I went there for my mental health." (Excerpt of transcript of proceedings October 27, 2017, p. 4; full excerpt attached as Appendix A) Thus the suggestion of counsel is not supported by the evidence.
[8] Applicant seeks production of the records of the treating physicians and counsellors during the period of time Ms. B. was on bail, prior to making the statement which led to the stay of proceedings against her and her involvement as the complainant in the present prosecution. He asserts that the records of treatment are necessary to the conduct of the defence as Crown's theory is that Ms. B.'s mental health caused her to become involved in activity she would not have engaged in, but for her "bad patch of mental health". The Applicant characterises the prosecution as relying on complainant's realization that she had been victimized by Mr. Turnbull and Mr. Kruzik, which realization came about through the process of treatment and counselling. Applicant seeks to discredit the complainant by accessing the records which reflect a process through which she turned from being "silent" as to this complaint at the time of her arrest in April 2015, to giving a statement which led to the charges before this Court, in April 2016. Ultimately, on behalf of Mr. Kruzik, the position is that Ms. B. concocted a story while in therapy in order to escape prosecution. Counsel argues that Mr. Kruzik's right to make full answer and defence turns on the production of the records, as they will assist him in undermining the reliability of her testimony.
[9] In large measure, Crown relies on the submissions of counsel for the Complainant. On the factual point made on behalf of Mr. Kruzik, Crown submits that the evidence does not support the position that the evidence shows Ms. B. "learned" she had been victimized through counselling. Crown refers to the passage of evidence tendered by Applicant, from October 27 2017 (Appendix A, referred to in paragraph 7).
[10] The complainant's position is that there is nothing showing "likely relevance" of the records, and the Application ought to be dismissed.
Legal Framework
[11] This Application is governed by Sections 278.1 to 278.91 of the Criminal Code. The enactment was brought into force on May 12 1997 after years of consultation, and importantly from my perspective, the decision of the Supreme Court of Canada in R. v. O'Connor in 1995. The constitutionality of the code within a code was tested, again at the Supreme Court, in the case of R. v. Mills, 1999. While the Criminal Code sections mirror in considerable measure the decision of the Court in O'Connor, with regard to the procedure and standards to be applied in relation to private records in the hands of third parties, an important new factor was added in order to effect what the Supreme Court characterised as a balancing exercise amongst facets of fundamental justice, with the fair trial rights of the accused on one hand, and the rights to remain secure against unreasonable search, on the other hand, with regard to the privacy interests of the person whose records might be divulged by the application. The right to make full answer and defence, along with privacy interests and equality interests are all described as facets of fundamental justice, which must be viewed as a spectrum, thus avoiding the need to see any particular principle in isolation from the others. (para 73, Mills)
[12] The codified procedure gives jurisdiction to the trial judge to consider an application, and directs that a series of "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:
Section 278.3(4) — Insufficient Assertions
278.3(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 activity with any person, including the accused;
(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.
[13] Subsection 278.5(2) sets out the criteria which shall be used by the judge in determining the balance to be effected between the accused's right to make full answer and defence, and the complainant's right to privacy, security and equality. The jurisprudence makes it clear that while the judge is not limited to these eight criteria, the statutory factors must be considered. The section reads as follows:
Section 278.5(2) — Balancing Test
278.5(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.
[14] Clearly, some of the factors are specifically directed to policy considerations affecting offences other than those before this Court. I note that the prostitution related charges were added in 2015 to the list of offences, where third party records application are governed by these sections, some years after the initial enactment.
Analysis of "Likely Relevance" Standard
[15] It is true, as the Applicant argues, that Justice Sopinka in O'Connor described the standard of "likely relevance" to be "not an onerous burden". (para 24) He refers to the absence of privacy interests at this stage, as a factor in the low threshold. Likely relevance continues to be a low threshold, but the determination of it changed with Parliament's enactment. Now, Section 278.5(1) requires compliance with stringent procedural safeguards to protect privacy, requires that the accused establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify, and requires that the production of the record is necessary in the interests of justice.
[16] The "likely relevance" threshold was described by the Court as "a requirement to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time consuming' requests for production".
Relevant Case Law
[17] Instances where production of third party records have been provided include R. v. Bell: a change in "story" occurred after therapy, as the record on the Application showed changes in the allegations between the original police report and the testimony on preliminary inquiry, therapy sessions having intervened. In R. v. A.M., there were conflicting statements from the complainant on a significant point, regarding sleeping arrangements in the house, where sexual abuse by a family member was alleged. In other cases, the nature of the records and a lower privacy interest or prior disclosure of records was a dominant factor in the release of records: R. v. L.F.; R. v. Manios; R. v. D.R..
[18] These cases illustrate the test concerning the interests of justice. Those interests accord the degree of protection of privacy depending on the expectation of privacy in the type of records. Some records are more likely to be protected. Records which have already been shared with others, or where there is an expectation of same, attract lesser protection. Those are records in the nature of school records, immigration or social service agency records. A hierarchy of privacy interests is created, according to Justice O'Connor in the L.F. decision, with therapeutic records attracting most stringent protection.
Application to the Facts
[19] Fundamentally, this Application for production of therapeutic records asserts that Ms. B. engaged in counselling and therapy during the time that she was on bail, that in speaking to police after several months of therapy, she referred to being in "a bad patch of mental health" at the time she was with Mr. Turnbull, and would not have engaged in certain behaviour if she was not in that "bad patch". (While she speaks specifically of Mr. Turnbull in the excerpt of the interview, it is clear that her allegations involve Mr. Kruzik as well.) The "likely relevance" of the records in the submission of the Applicant is to undermine the veracity or reliability of the complainant's account, that she was not well. He seeks to show with the records that in fact her complaint to police in April 2016 was simply an attempt to free herself from prosecution. As well, Applicant argues that "likely relevance" resides in the potential of the records to undermine the Crown theory, as Defence apprehends it. Defence argues that Crown relies on Ms. B.'s mental health issues as a key element in her victimization.
[20] To review the criteria which, standing alone, cannot support the release of therapeutic records, I note the following. Regarding subsection 278.3(4)(a) and (b), the records exist and they relate to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received. As to subsection (c), there is no basis to find that the record relates to the incident that is the subject-matter of the proceedings. As to subsection (d), there is no evidence whatsoever that the record may disclose a prior inconsistent statement of the complainant or witness. Similarly, there is no specified basis on which to find circumstances as referred to in subsection (e), regarding credibility, or reliability (f). Subsections (g) to (k) all are specific to the history of the law regarding sex offences, although the "absence of recent complaint" is an issue which may be of interest to academic writers in relation to human trafficking crimes.
[21] Thus two of the specified factors in 278.3(4) exist in this case: a record exists, and it relates to therapy or counselling of the complainant. That does not approach "likely relevance", in and of itself, nor does the Applicant rely solely on this.
[22] I understand the position of the Applicant to seek the records to undermine the reliability of the witness by unearthing some unspecified statement on her part, to her therapist, to show that she cannot be relied on in her complaint to police. I understand the Applicant to say that she concocted a false complaint to relieve herself of criminal jeopardy by speaking with the therapist. That is in effect what counsel suggests. The second aspect of counsel's position is that he needs the records to disprove the putative Crown theory, that Ms. B. was victimized because of a mental health condition which made her vulnerable.
[23] To provide the Court with some evidence, sufficient to discharge the onus of proof, a balance of probability, Applicant relies on the existence of therapeutic records during the stated period, together with the portion of Ms. B.'s statement of April 2016, where she refers to a "bad patch of mental health" during the allegation period, and her evidence at trial concerning her reasons for entering counselling and therapy, namely, "for [her] mental health".
Balancing Test Analysis
[24] Assessing the existence of records concerning therapy of counselling, along with the excerpts cited above, I then turn to the determination of the production of the record, or part of it, for review and potential release, as guided by the criteria set out in Section 278.5(2). This section requires me to 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…". In reviewing the mandatory considerations of this section, as set out earlier, I make the following observations:
The extent to which the record is necessary to make full answer and defence is purely speculative. The probative value of the record has not been established, as there is no more than speculation at best that a relevant record exists. The reasonable expectation of privacy is high in therapeutic records. The Supreme Court in Mills, paragraphs 82 to 94 affirms this. While there is no basis for thinking the production of the record is based on a discriminatory belief or bias (per (d)), the potential prejudice to Ms. B.'s dignity and her right to privacy is very significant. Seeking help for a mental health issue is a process which ought to been valued, and accorded necessary privacy, not carelessly delved into without a serious basis being established. Subsections (f) and (g) were not argued as they appear to relate to other types of offences.
[25] As to the final criterion for consideration under Section 278.5(2)(h), while no submissions were specifically addressed to this issue, there is nothing other than conjecture and speculation which might link the records to the issues at trial, including the reliability of the Crown witnesses' testimony. In terms of the integrity of the trial, certainly this Court would make every effort, even mid-trial, to ensure that the accused Mr. Kruzik has access to all information in third party records, likely relevant to his defence. As I see no such relevance, there is no reason to further chop up this already unwieldy trial process.
Disposition
[26] I am therefore dismissing the Application. The exhibits will be returned to the Court by counsel for the Complainant, to remain sealed in this Court's record.
Released: January 8, 2018
Signed: Justice S.R. Shamai