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:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: May 22, 2018

Her Majesty the Queen Respondent

- And –

Steven Ward Applicant

- And –

YMCA of Greater Toronto Respondent

Ruling on Application for Production of Third Party Records

Heard: 27 April 2018 Judgment: 22 May 2018

Counsel for Applicant: Wayne A. Cunningham

Counsel for Crown: Rebecca Law

Counsel for Complainant: Kelley Bryan

Counsel for YMCA of Greater Toronto: Alannah Fotheringham and Veronica Sjolin

Libman J:

Facts

[1] The accused in this case is charged with sexually assaulting a 13-year old boy, M.W.L., on 16 April 2017, in the men's locker room at the YMCA on Grosvenor Street in downtown Toronto. Both the accused and complainant are members of the YMCA. The incident was apparently observed, in part, by YMCA attendant, Emilliano Molina.

[2] In accordance with the protocol of the YMCA, an incident report of this matter was made by Mr. Molina, who is described as being the witness. It has been disclosed to the Crown and defence by the YMCA. It is a two page document, partly in writing and an accompanying printed page. It states, in part, that "Emilliano witnessed M.W.L. and Steven engaging in some inappropriate behavior". Through the assistance of a translator, Mr. Molina was stated to have seen "M.W.L. and Steven in the corner of the locker room" and that he saw "M.W.L. bending down and giving Steven a 'blow job'".

[3] The subject of this application is an order for production of other "incident reports" in possession of the YMCA which apparently involve misconduct by the complainant with other men on the premises of the YMCA. Mr. Molina is apparently aware of the existence of such reports, although not the contents, as unlike this incident, he did not personally observe or witness what these other reports document.

[4] It is unclear, in fact, if these other incidents, some of which are stated to have occurred a few months earlier, are of a sexual nature or not. They have been described as consisting of the complainant being warned not to linger in the shower area and sauna in the men's locker room, the latter being off-limits due to his age. Other incidents may well have occurred post-April, 2017.

Legal Framework

[5] It is agreed by all the parties that these records fall within the definition of "record" under s.278.1 of the Criminal Code, in that YMCA membership information and related documents about the person constitute "personal information for which there is a reasonable expectation of privacy." While such records may not contain confidential and sensitive information to the same degree as medical or therapeutic or counselling records, once it is determined that the subject records fall within the enumerated categories of records under s.278.1, the applicant must comply the provisions under the Code in order to gain access to them: see R v R.C. (2002), 58 O.R. (3d) 257 (C.A.) at para. 53.

Defence Position

[6] For the defence it is asserted that the production of such records meets the test of "likely relevance" under s.278.3 of the Criminal Code for a number of reasons. To begin, it is said, it will provide a context as to why a young person such as M.W.L. would be in the men's locker room of the YMCA with older males. It is the position of the defence that Mr. Ward "was being stalked by the complainant and that he rebuffed his advances."

[7] More particularly, the defence submits, these third party records will be relevant to any mistaken belief of the accused as to the complainant's age and consent to the sexual activity in question, as well as bolster any subsequent application for adducing evidence of previous sexual activity of the complainant, under s.276 of the Code, which I am advised will be subsequently brought.

[8] Finally, it is said by Mr. Cunningham, the records are relevant as to the evidence of the eyewitness attendant, Mr. Molina, whose observations of the matter may have been influenced, consciously or subconsciously, by his knowledge of these other incidents. As the defence puts it, any "preconceived notion" on his part as to his "awareness of the complainant's history of misconduct in the changeroom … could have influenced his brief observations."

Positions of Other Parties

[9] Counsel for the Crown and complainant have not taken a position opposing or supporting production of the third party records in question.

[10] On behalf of the YMCA, counsel are not opposed to production of the incident reports and internal correspondence which relate to the subject matter of this prosecution. However, counsel do resist production of any other incident reports related to the complainant, but not in response or otherwise related to the incident in question.

[11] In support of its position, counsel for the YMCA assert that there is no evidentiary or informational foundation supporting the applicant's request for production of any other records in possession of the YMCA regarding the complainant. To the extent that the applicant wishes to put forth a defence based on the complainant "stalking" the accused, it can do this through its cross-examination of Mr. Molina, particularly his knowledge or belief concerning any such prior incidents involving the complainant, as opposed to records documenting the incidents, as well as questioning the version of events during cross-examination of the complainant.

Legal Principles on "Likely Relevance"

[12] In R v Mills, [1999] 3 S.C.R. 668, the Supreme Court of Canada ruled that pursuant to s.278.3(4), the evidentiary threshold the accused must meet is to point to case-specific evidence or information to show that the record in issue is likely relevant to an issue at trial, or the competence of a witness to testify. The issue of "likely relevance" is a matter for the discretion of the trial judge. A finding that the applicant has not met the test of likely relevance entitles the court to dismiss the application without necessarily having to examine the records in issue.

[13] The impetus for the enactment of the Criminal Code's current production of third party records regime was the Supreme Court of Canada's decision in R v O'Connor, [1995] 4 S.C.R. 411. In R v Batte, [2000] O.J. No. 2184 (QL), the Ontario Court of Appeal observed that three features of the applicable law that have not changed are: (1) an application for production of records must be approached in two stages, by determining first whether to order production to the court, and, if so, determining whether to order disclosure to the defence; (2) it is a prerequisite to an order compelling production of records to the judge that the records be likely relevant to an issue at trial, a witness's credibility or competence to testify; and (3) the accused bears the onus to establish likely relevance and cannot rely on speculative assertions or stereotypical assumptions. (para. 53)

[14] Doherty JA, on behalf of McMurtry C.J.O. and Rosenberg JA, went on to comment in Batte that the fact the complainant's counselling records contained statements respecting the allegation of abuse by the accused and matters affecting the complainant's credibility was not sufficient to meet the test of likely relevance. Neither was the mere fact that the complainant had spoken to a counsellor or doctor about abuse, or matters touching on abuse, sufficient to make a record of conversations likely relevant to a fact in issue or to credibility. To pass the threshold of likely relevance, the accused must show a basis to conclude that the statements have "some potential to provide the accused with some additional information not already available to the defence or have some potential impeachment value." (para. 72)

[15] The "likely relevance" standard is not a high one. Moreover, accused persons who have not seen the records that are the subject of the application may be considered to be "at an obvious disadvantage in attempting to establish their relevance": R v I.W., [1999] O.J. No. 258 (QL) (C.A.) at para. 39. That said, as the Court of Appeal observed in this decision, "likely relevance" requires "more than a showing of a mere possibility that there may be something in the records which could be relevant to an issue in the trial."

Court's Analysis

[16] Based on the record before me at present, I am of the respectful view that the likely relevance standard has not been met. As a result, the application must be dismissed, subject to it being renewed at the trial proceedings should the circumstances deem it appropriate to do so.

[17] I reach this conclusion for a number of reasons. To begin, the defence argues that without granting the production order, there will essentially be three versions of what allegedly occurred in the YMCA locker room. First, there will be the complainant's version, which the defence will seek to challenge as to make him appear to be the initiator or aggressor when interacting with the defendant. I fail to see how non-disclosure of previous or subsequent incidents of misconduct by M.W.L. at the YMCA will hinder this course of action. To the contrary, it would serve only to further the stereotypical reasoning that because he was the aggressor with other men, he initiated a sexual encounter with the defendant. Indeed, there is no evidence before me that the defendant was even aware of such events with other men, nor the eyewitness Molina.

[18] I do not attach much weight to the defence argument that it is only the fact of such misconduct reports, and not all the details, that will be pursued at trial. This is not a tenable position: the reports are either relevant or not. Presumably if they were to meet the threshold relevancy standard, and subject to further production and editing, it would be open for the defence to use them in whatever manner that it saw fit and was legally permissible. The production materials cannot, effectively, be re-packaged and put away and ignored, once they are ordered disclosed and adduced into evidence when challenging the credibility of the complainant. To the contrary, the records would be used to support the defendant's central assertion that it is the complainant who initiated the sexual encounter in question.

[19] As for the second version of events, namely, that of the eyewitness, I have been furnished with a video transcript of a statement taken from him shortly after the alleged incident. In it, Mr. Molina states, through, an interpreter, that he has seen the complainant in the facility several times in the last two to three months, and that he was told "perhaps he should not have as long showers as he's been having" and that "no one under the age of 16 is allowed to use the saunas." Apart from the observations of the defendant and complainant which Mr. Molina did report, it is clear from his statement that he has no personal knowledge of other incident reports involving M.W.L., including sexual touching with other men. His knowledge of such apparently comes from speaking to others. If the defence wishes to adduce evidence as to the witness' subjective knowledge or belief about the conduct of the complainant, the objective records themselves would not tend to prove or disprove any such preconceived notions on his part.

[20] Consequently, I fail to see how the observations of the witness as to what he says he saw at the YMCA can be probed on the basis of hearsay evidence. The observations of the witness may be challenged and questioned; he appears to be describing a consensual act of fellatio between an older male and the complainant. Private records should not be ordered disclosed, as Allen J. observed in R. v F. (H.), 2017 ONSC 1897 at para. 49, "where information is otherwise available to the defence." In this case, the information of the witness can be fully examined and challenged through his observations, and the circumstances surrounding them.

[21] Conversely, to adduce evidence of other sexual acts of the complainant, with other males, that the witness has learned of second-hand – not even from seeing the subject incident reports – can hardly be said to further the accused's right to make full answer and defence, in my opinion. In other words, it is not open to challenge the reliability or credibility of Mr. Molina's observations based on incidents of which he is not himself aware, but has heard from others.

[22] Finally, there is the third version of events from the defendant. Upon being interviewed by the police, it is alleged that he made several utterances, including that the complainant was "stalking him" and that he "rebuffed" his advances. Whether this evidence will be elicited at trial by the prosecution, or given by the accused in his defence, remains of course to be seen. If the defendant indicates that the sexual encounter in question was either initiated by the complainant, or that he mistakenly believed M.W.L. was old enough to consent to the activity, that evidence can be led at trial. At present, however, there is no indication, that the defendant was aware of any such other sexual encounters. To the extent he was, or these other incidents with other men are relevant to his defence, he can renew this application for production of the records, or alternatively, bring an application to adduce evidence of previous sexual activity of the complainant, based on a proper evidentiary foundation.

[23] At this juncture, it appears to me that this application is a pre-emptive fishing expedition to seek production of records to cast the complainant as a purveyor of sexual acts with older men. Such assertions have precious little to do with the matters to be litigated at trial. Stated simply, they appear to be wholly unrelated to a material fact in issue or to credibility, or provide impeachment value to a relevant matter. They do not meet the standard of likely relevancy simply because there may well be more than one version given in evidence of the incident in question.

[24] Finally, as for the defence assertion that the records are necessary for narrative purposes– to explain why a young boy would be at the YMCA with an older man – I likewise consider this submission to be without merit in support of the threshold relevancy standard being met. Both parties belong to the YMCA, so there is no nefarious reason for either party to be on the premises or in the locker room. All of the witnesses can be asked, as I expect they will, why they were using the locker room facilities, and what they were doing there. The defence can clearly adduce this evidence without the necessity of evidence being disclosed to it, that months earlier, or afterward, the complainant was reported to management of the YMCA to have been in the same area with other men, of which neither the defendant nor Mr. Molina appears to be personally aware. The probative value of such evidence, for narrative purposes only, is significantly outweighed by the danger of prejudice to the administration of justice, and therefore falls far short of the standard of relevancy, much less likely relevancy.

[25] Reduced to its essentials, then, this application for production of records in the possession of the YMCA documenting "misconduct" of M.W.L. is to adduce evidence that he was engaged in previous sexual acts with other men at the YMCA, whether initiated by him or not, so as to support the defence position that this young person was the initiator of any sexual activity with the accused. This is the essence of the "speculative myths, stereotypes and generalized assumptions about sexual assault victims and classes of records" that the Supreme Court's decision in Mills is designed to protect against. (para. 119). Such evidence has no role "in assessing the relevance of evidence in the context of sexual assault trials": R v Quesnelle, 2014 SCC 46 at para.17.

[26] Stated shortly, the fact that the complainant may have initiated sex with other men at the YMCA, at some other time, does not support the foundation of the proposed defence that he initiated sex with the defendant, absent impermissible reasoning. In the words of Fragomeni J., in R. v D. (S.), 2007 CarswellOnt 5236 (S.C.J.) at para. 21, one of the cases relied upon by the applicant, the misconduct records of the complainant in possession of the YMCA are simply not likely relevant to the "critical issue" in this case.

[27] The trial of Mr. Ward has yet to commence. The complainant has not been questioned, nor has the eyewitness related his observations of the alleged sexual act. Both will doubtlessly be fully-examined on their observations and recollections of the events. To the extent that accused's interest in making full answer and defence appears to be impacted by the non-production of the records in question at that stage of the proceedings, or during any defence evidence, the application can be renewed.

[28] For present purposes, however, it appears to me to a thinly veiled fishing expedition to cast a young person alleging sexual assault to be an initiator, if not a "stalker" to use defence counsel's description, as the blameworthy party. Fishing season will not be opened in advance of trial for this reason.

Disposition

[29] The condition precedent of "likely relevance" having therefore not been established, the application is dismissed.

R. Libman, J.

22 May 2018