Court Information

Ontario Court of Justice

Date: April 23, 2019

Court File No.: Guelph Y223/17

Between:

Her Majesty the Queen

— and —

R.D.

Before: Justice M. K. Wendl

Heard: April 16, 2019

Reasons for Judgment Released: April 23, 2019

Counsel

Tom Meeham — Counsel for the Crown

Matthew Stanley — Counsel for the Accused

Angela Chaisson — Counsel for the Complainant

Judgment

WENDL J.:

Introduction

[1] R.D., hereinafter the applicant, is charged with three counts of sexual assault and one count of interference. The applicant seeks production of records pursuant to section 278.3 of the Criminal Code. Those records are in possession of D.M. of Family and Children's Services in the Waterloo region. The basis for the application are notes provided to the applicant in disclosure. They are the notes of D.M.

[2] The most significant notes for the purposes of the application are:

i) "worker advised worker converted given history of false allegations, and also reminded L. that in March S. talked about J. but that had also been previously investigated years ago."

ii) "worker advised over all concerned about two things – either S. has a very concerning imagination, or people were repeatedly hurting her and she wasn't talking about it."

[3] Counsel for the complainant opposes the application. The issue the court needs to determine, at this point, is whether it will order production to itself for review. The test for determining whether the court will release the documents for its own review is "likely relevance" and if it is in the "interest of justice" to do so.

The Law

[4] Dellandrea J., in the recent case of Brown, provided an excellent summary of the procedure for the first step for the production of records under section 278.3.

[5] The applicant is charged with one of the enumerated offences in section 278.2(1)(a), thereby triggering the application of the procedure outlined in s. 278.3. The provisions outline a two-stage process.

[6] At the first stage of the application, the trial judge must consider whether the applicant has laid a proper foundation for the production of the records to the court for examination. Section 278.5 requires the applicant to establish that the record is likely relevant to an issue at trial or the competence of a witness to testify, and that the production of the record is necessary in the interests of justice.

[7] If the court concludes that the applicant has met its onus under the first stage, the records are produced to the judge who then examines them to determine if it is in the interests of justice that they be produced to the defence. Once more, the test is whether the records on review are "likely relevant," and that their production, this time to the accused, is necessary in the interests of justice.

[8] While not a significant or onerous burden, the likely relevance threshold in s. 278.5 is intended to prevent requests for production which are "speculative, fanciful, disruptive, unmeritorious, obstructive and time consuming." What is contemplated by the provisions is a balancing of the salutary and deleterious effects of the determination on the accused's right to make full answer and defence and the witness's right to privacy and equality.

[9] Section 278.3(4) lists a series of assertions which cannot on their own establish that a record is likely relevant. In Mills, the court explained that this section does not entirely prevent an accused from relying on the factors listed, rather it prevents reliance on bare assertions of those factors, in the absence of other evidence. The section requires the accused to point to "case-specific evidence or information that shows that the record is likely relevant to an issue at trial."

[10] At the initial stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The test is not so stringent. Yet the law requires more than a reasonable possibility that a record could contain information that is logically probative. This requirement is not meant to be an onerous one. A record will be found to have achieved the requisite threshold of likely relevance only where it is established that it is admissible in its own right, or has some credible impeachment value.[1]

[5] In addition to that, the Supreme Court in McNeil clarified the distinction between the purpose of general third party records application procedure under O'Connor and that of the Mills regime.

[31] First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings. Such generalized views need not be countered at large in respect of all third party records that fall outside the Mills regime. The general common law threshold of likely relevance under O'Connor is intended rather to screen applications to ensure the proper use of state authority in compelling production of third party records and to establish the appropriateness of the application so as to avoid squandering scarce judicial resources.[2]

Analysis

[6] First, the applicant has advanced case specific information. Namely, the two quotes mentioned above. Second, I find that the application, at this point, does not run counter to the purpose of the Mills regime. Essentially, the applicant is not seeking the records to pursue a line of attack anchored in the speculative myths, stereotypes and generalized assumptions about sexual assault victims.

[7] Counsel for the complainant argues that the material is not "likely relevant", in support of that assertion she relies strongly on the case of R. v. J.B. In that case, the complainant stated, during the police interview, that she had been assaulted previously by the accused. She indicated that it happened a lot. She also stated that a lot of things happened with her dad and big brother when she was little. Counsel for the accused was seeking production of records that revealed prior abuse of the complainant by people other than the accused and their ultimate outcome. The complainant in J.B. opposed production of the records.

[8] The applicant's position in J.B. was that the records may contain evidence of prior sexual abuse by others and, might also, reveal that those allegations of sexual abuse did not result in any charges or criminal convictions. If that was so, the defense argued, T.H. fabricated allegations of abuse against J.B. and those allegations had no merit.

[9] The respondent in J.B. strenuously argued that the application was founded on a bald assertion.

[10] DiTomaso J. agreed with respondent in J.B. and refused production. The court found that applicant was only making a bald assertion in support of its application. DiTomaso J. specifically found there was no evidence of fabrication put forward by the applicant:

[38] On our evidentiary record, this is exactly the type of bald assertion which intrudes upon impermissible areas specifically identified at s. 278.3(4)(c)(d)(e) and (f). No specific facts have been presented by Mr. J.B. that would suggest fabrication on the part of T.H. either in respect of prior allegations of sexual abuse or in respect of the charges before this court. There is no evidence in respect of fabrication whatsoever by T.H. or any motive for fabrication regarding Mr. J.B.'s present charges. Neither is there any evidence of recantation on the part of T.H. regarding sexual abuse past or in respect of charges presently before this Court.[3]

[11] I wholeheartedly agree with DiTomaso's J. decision in J.B. However, those are not the facts before me. In front of me, I have evidence of fabrication. As stated above, the threshold for "likely relevance" is not an onerous one. In addition to that, I find that the case specific information pointed at by the applicant can provide him with some added information not already available to him and/or can have potential impeachment value.

[12] Since I have found that the information sought by the applicant is likely relevant, I must still determine if it is in the "interests of justice" to do so.

[13] It is my view that the information sought, namely a past history of fabrication, is potentially of central importance to a defense. Therefore, it is necessary for full answer and defense and is in the "interests of justice".[4]

Conclusion

[14] As a result, since the information sought by the defense is "likely relevant" I shall release the documents to myself for review because it is in the "interest of justice" that I do so.

Released: April 23, 2019

Signed: Justice M. K. Wendl

Footnotes

[1] R. v. Brown, 2019 ONCJ 94 at paras. 5-10

[2] R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 31

[3] R. v. J.B., 2013 ONSC 481 at para. 30

[4] R. v. Mills, [1999] 3 S.C.R. 668 at para. 132