WARNING

PUBLICATION RESTRICTIONS IN EFFECT

THIS IS A PROCEEDING UNDER THE YOUTH CRIMINAL JUSTICE ACT

This proceeding is subject to the following provisions:

Section 110(1) — Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110(2) — Subsection (1) does not apply:

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

Section 110(3) — A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

Section 111(1) — Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Section 138(1) — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985:

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

THE FOLLOWING CRIMINAL CODE PUBLICATION RESTRICTIONS ALSO APPLY

Sections 486.4(1) and (4) and s. 486.6(1) and (2) of the Criminal Code provide:

Section 486.4(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).

Section 486.4(4) — An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18(1), (2), (4).

Section 486.6(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.

Section 486.6(2) — For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Section 278.9 of the Criminal Code further provides:

Section 278.9(1) — No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3;

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

Section 278.9(2) — Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Between: Her Majesty the Queen — And — J.P.

Counsel:

• M. Townsend, for the Crown
• J. Markson and K. Robertson, for the Applicant/Defendant
• A. Nathan, for the Respondent/Complainant

Heard: October 17, 21, 23, 2019

REASONS FOR RULING

(Re s. 278.7 Application for Production of Third-Party Records)

MELVYN GREEN, J.:

A. BACKGROUND

[1] J.P. is about 8 or 9 years older than the complainant, C.P. They are second cousins. As adolescent and child, respectively, they both attended extended family gatherings at J.P.'s grandparents' home. The complainant alleges the defendant, J.P., sexually molested her on several occasions during these gatherings. She first reported these allegations to the police in 2018, approximately two decades after the complainant says they transpired. As a result, J.P. is charged with three offences said to have occurred during the four-year period between January 1, 1996 and December 31, 1999: sexual assault, sexual interference and invitation to sexual touching. The materials filed in support of this application admit to no greater exactitude as to the dates of the alleged offences or the ages of the complainant or the defendant at the relevant times. The proceedings are conducted pursuant to the Youth Criminal Justice Act.

[2] As drawn from the motion record, the complainant first shared her allegations respecting the defendant's sexual improprieties with her uncle and, later, her mother some years after the events at issue. Later, in 2008, she advised her family physician, Dr. T.M., in whose routine care she continues to this day. She also attended for counseling services at Black Creek Community Health Centre and, later, The Gatehouse. As acknowledged in her police interviews, the defendant's alleged misconduct and its purported sequelae were only some of multifarious reasons advanced by the complainant for accessing counseling.

B. PROCEDURAL HISTORY

[3] The "third-party" records maintained by Dr. T.M. and the two above-named counseling facilities fall squarely within the definition of "record" in s. 278.1 of the Criminal Code: "any form of record that contains personal information for which there is a reasonable expectation of privacy". A defendant seeking lawful access to such records must proceed by way of an application (commonly styled a "Mills application": R. v. Mills, [1999] 3 S.C.R. 668), statutorily governed by s. 278.2 to s. 278.8 of the Code, for a judicial production order.

[4] J.P. (hereafter, the Applicant) has applied for such order. Although somewhat oversimplified, for purposes of this ruling the application at issue relates only to those third-party records maintained by Dr. T.M. and the two above-named counseling facilities.

[5] The complainant shared a few pages of the records in question with the investigating officer who, in turn, conveyed them to the Crown's office. Other than these, Crown counsel has not had possession of or access to the complainant's clinical or counseling records, nor does he take any position with respect to the disposition of this application.

[6] As directed by s. 278 of the Code, an application for production of third-party records in sexual assault and related prosecutions comprehends, inter alia, a two-stage hearing process. The first or threshold stage involves a determination of whether, as contemplated by s. 278.4(1), "to order the person who has possession or control of the record to produce it to the court for review by the judge". Where such judicial review is sanctioned, the judge, after reviewing the record in the absence of the parties, "determine[s] whether the record or part of the record should be produced to the accused": s. 278.6(1). To this end, the judge has a discretion to hold a hearing (the second stage) "if the judge considers that it will assist in making the determination": s. 278.6(2).

[7] As authorized by s. 278.4, the complainant, through counsel, fully participated in the production hearing. She concedes that the first stage of the s. 278 regime is satisfied and, accordingly, agreed to my judicial inspection of the third-party clinical and counselling records subpoenaed by the Applicant. As this concession effectively silenced the Applicant's threshold submissions, I exercised my discretion to order an in camera hearing at a second-stage hearing, as authorized by s. 278.6(2), following my review of these records.

[8] What remains at issue is which, if any, of the above-noted records should be produced to the Applicant, pursuant to s. 278.7. In this regard, the complainant takes no objection to the release to the Applicant of itemized portions of the records which, on her balancing of the statutorily protected interests, she says favours production. While helpful in reducing the range of potential contestation, the ultimate decision as to production remains, as always, with the court charged with exercising this discretion.

[9] I turn to the relevant legal scaffolding. My reasons, as prescribed by s. 278.8, for ordering partial production of the records at issue then follow.

C. LEGAL FRAMEWORK

[10] Subsections 278.7(1) and (2) of the Code describe the nature of the balancing exercise and applicable standards controlling the hearing judge's discretion to order production:

(1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, … .

(2) In determining whether to order the production of the record or part of the record to the accused, 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 others potentially affected by such order] and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.

As to the s. 278.5(2) "factors" that are to be "take[n] … 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.

Further, any order for production may be subject to conditions intended "to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant" or other affected parties: subss. 278.7(1) and (3).

[11] To be clear, the application judge is tasked to determine the production, rather than the admissibility, of the third-party records at issue. Accordingly, in assessing a defendant's right to make full answer and defence in the context of a production determination, a judge applies a more liberal screening standard than at trial: that is, one of "likely relevance" rather than "relevance". Nonetheless, the threshold for production is more demanding than that which obtains on "Stinchcombe" disclosure applications where the test, in essence, is merely whether information in the possession of the Crown "may be useful to the defence". As put by the Supreme Court in R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 22 (and affirmed in R. v. Mills, supra, at para. 45):

In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. [Emphasis in original.]

By relevance to an "issue at trial", the Court continued:

… we are referring not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.

D. ANALYSIS

[12] The charges faced by the Applicant are historical. The complainant was a child when she says the Applicant molested her. She cannot recall the years, let alone the dates, of these events with any specificity. She told no one about her allegations for several years. Her recall, on her own assessment, is vague and incomplete. She first reported her allegations to the police approximately two decades after the incidents were said to have occurred. The accounts she shared with family members more than ten years earlier are in some ways inconsistent with that conveyed to the police. There is no direct testimonial, physical or other corroborative evidence of the complainant's incriminatory claims. The clinical and counseling records in question begin long before the complainant first contacted the police. They also include references to the Applicant and to the alleged misconduct.

[13] The complainant, through counsel, accepts the potential probative value of those portions of the third-party records referable to the dates of the alleged misconduct and the ages of the protagonists at the time. Without extending credit to the Applicant's claims, the complainant also acknowledges a basis for legitimate defence concerns respecting the reliability of the incriminatory account she provided the police and that likely previews her testimony. She recognizes, as well, the extensive passage of time: the third-party records at issue were, for the most part, created long before the complainant's first contact with the police and thus contain earlier documentation of her allegations. While not abandoning personal or societal rationales for maintaining the privacy of the complainant's clinical and therapeutic records, her counsel realistically acknowledges, as said in R. v. Mills, supra, at para. 94, that:

where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

Accordingly, the complainant does not object to production to the Applicant of identified portions of the records that substantively reference the incidents or events that now ground the criminal allegations.

[14] The Applicant, not surprisingly, argues that a proper balancing admits to a more capacious production order than that effectively conceded by the complainant. The defence theory, as currently advanced, rests not only on the unreliability of the complainant's memory but, as well or in the alternative, on the honesty axis of the complainant's credibility. In short, the Applicant contends that the impugned acts simply did not happen and that the complainant has, in effect, either fabricated or confabulated their occurrence. Accordingly, the defence also seeks production of those, if any, facets of the records that bear on the complainant's motive to contact the police and that attribute her acknowledged issues of anger and interpersonal dysfunctionality to the Applicant.

[15] In reviewing the records, I have applied the directives set out in s. 278.7(2), including assessing the factors there imported from paras. 278.5(2)(a) to (h). In conducting this exercise, I have scrutinized the third-party records for content probative of the concerns flagged by the Applicant. While these considerations inform my determination and lead me to a somewhat more expansive view of the proper scope of production than that proposed by counsel for the complainant, in the end I essentially agree with the complainant's calculus of the appropriate balancing of interests protected by the production regime.

[16] Copies of the sometimes-redacted pages of the third-party records that are the subject of my production order have been distributed in sealed envelopes to counsel for the Applicant, Crown and complainant. This production is subject to conditions restricting copies and sub-distribution, and commanding the destruction of the produced materials upon the ultimate disposition of this matter. Further, if only by way of forceful reminder, I note that s. 278.7(4) of the Code directs that the record produced to an accused "shall not be used in any other proceedings".

[17] I appreciate that trials are dynamic, the unfolding of which cannot always be accurately anticipated. However unlikely, mid-trial developments could compel reconsideration of the balance struck by this production order. Although here speaking of an admissibility ruling regarding a different provision of the regime governing the protection of trial integrity and personal privacy in sexual assault prosecutions, the Supreme Court's recent comments in R. v. Barton, 2019 SCC 33, at para. 65, are instructive:

Finally, a ruling on the admissibility of prior sexual activity evidence under s. 276 is not necessarily set in stone. There may be circumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence.

As I have the only full complement of third-party records, I shall bear in mind the Supreme Court's advice as the trial progresses, and invite renewed submissions should changing circumstances so dictate.

E. CONCLUSION

[18] Consistent with these reasons, limited production of third-party records pertaining to the complainant have been ordered produced to the Applicant.

[19] Having considered the interests identified in s. 278.9(1)(c), the production determination made on this application may be published.

Released on November 7, 2019

Justice Melvyn Green