Court File and Parties
Date: 2019-11-26
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Yum Terrance To
Before: Justice L. Feldman
Heard on: October 22, November 7, 2019
Reasons for Judgment released: November 26, 2019
Counsel:
- J. McGrath, for the Crown
- A. Chow, for the accused Yum To
- D. Way, for the complainant Lai Shek
FELDMAN J.:
Introduction
[1] Yum To is charged with two counts of assaulting his spouse, Lai Shek, in addition to one of using a weapon in committing an assault, unlawfully pointing a firearm and two counts of failing to comply with a recognizance.
[2] Mr. To has lived with Ms. Shek in a common law relationship for 17 years. They have had two children, one of whom is deceased.
[3] Mr. Chow, for the defendant, brings a third-party records application pursuant to the O'Connor regime and ss. 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms. He asks for production and disclosure of the medical records, clinical notes, charts, tests and reports in the possession of Dr. Hung-Tat Lo that pertain to his treatment and care of Ms. Shek for a number of mental or emotional illnesses.
[4] In support of his application, Mr. To has filed Ms. Shek's drug prescriptions that he took from their home, likely without her permission, and that cover the period 2015-18. Listed are anti-psychotic, anti-depressant and anti-anxiety medications. According to the Centre for Addiction and Mental Health, anti-psychotic medication can reduce symptoms of psychosis, including delusions and hallucinations, in addition to having a calming effect on anxiety. As well, higher doses of anti-anxiety medication may cause confusion or disorientation.
[5] This application is governed by a two-stage process set out in O'Connor. At the first stage, the applicant has the onus of establishing the "likely relevance" of the evidence sought. If the onus is met, the court goes on at the second stage to examine the evidence and weigh the "salutary and deleterious effects" of a production order to determine if a non-production order would "constitute a reasonable limit on the ability of the accused to make full answer and defence".
[6] Mr. To says this information on psychiatric treatment is 'likely relevant' and therefore essential to his right to make full answer and defence. On the authorities, this means there is "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify". The information may concern the unfolding of events, in addition to "evidence relating to the credibility of witnesses and the reliability of other evidence in the case".
[7] More specifically, the applicant says that the offences never took place. He submits he needs this information to discover if Ms. Shek suffers from psychotic episodes that may include delusions, hallucinations or an inability to distinguish between what is real or not.
[8] He asks, do these purported disorders affect the complainant's ability to recall? Was she hallucinating when she reported divergent versions of the events over two days to the police? The applicant's hurdle is to establish that there is some "case specific evidence or information" that would support a finding of 'likely relevance'.
[9] Ms. Way, for the complainant, submits that there is an insufficient evidentiary basis for such a finding. She says, rather, that the application, on this record, relies on speculative, discriminatory and stereotypical reasoning. She asks that the application be dismissed at the first stage.
[10] Mr. Meagher, for the prosecution, supports the complainant's position. He says the restrictions in the sexual assault provisions regarding third party records production, while not binding, are instructive and inform the application of O'Connor principles.
The Evidence
[11] Ms. Shek and Mr. To have an 8-year old son who has been diagnosed with autism. They had another child who passed away several years ago. Ms. Shek suffers from depression and anxiety, likely in significant part because of the loss. It is also possible her failing marriage contributes to those conditions.
[12] On July 15, 2018, police attended their home in response to a 911 call from Ms. Shek. Using an interpreter, the complainant indicated that she and her son were afraid because her husband had a handgun on his desk. The police attended the home and found it to be a BB pellet gun. They returned it to him as its possession is not illegal. No charges were laid. In the course of the investigation, Mr. To told the police that he believes his spouse is mentally ill.
[13] Subsequently, on July 18, police were called by a representative of the Chinese Family Services of Ontario for Violence against Women on behalf of Ms. Shek regarding the July 15 incident. It was alleged by her that Mr. To punched her once or twice in the shoulder causing her to fall to the ground. She said the defendant prevented her from calling the police.
[14] On July 19, Ms. Shek met with a Cantonese police officer at 42 Division. She told him that she did not previously disclose that her husband pointed a gun at her and pushed her because she feared him. She said that on July 15, when she got through to the police on her second attempt, the defendant had warned her that if she told anyone what happened, he would take her son away and that "there would be no turning back". At the time, the complainant also described past emotional and physical abuse.
[15] Ms. Shek gave the officer a picture of Mr. To with a black handgun in his right hand that she says was taken on July 15. The complainant said he had another rifle in his possession. She indicated that he kept both his study and bedroom locked.
[16] On July 21, with the assistance of an interpreter, Ms. Shek provided a video statement to the police. She reported that on July 15, after she took a picture of Mr. To holding the pellet gun, he got up and pointed it at her and that the barrel touched her skin. She says he told her that if she spoke to the police, she would go to jail and her child would be taken away. She said she was afraid to go home.
[17] On July 21, the police found the pellet gun in Mr. To's bedroom. His study and bedroom had been locked. He was arrested.
The Principles that Structure the Two-Stage Process
[18] In the first stage, the applicant does not have an evidential burden, but must meet an "initial threshold" that the information is "likely to be relevant", that is, to establish that "the right to make full answer and defence is implicated by the information contained in the records".
[19] This burden is not onerous. As noted earlier, third party records may have relevance if they contain information that bears upon the "unfolding of events" or the complainant's credibility. The latter relates to one's perception of the events or their memory. A close temporal connection between the records and the offence is a relevant factor.
[20] If the applicant meets his or her onus regarding the claim of 'likely relevance', then the accused's right to make full answer and defence will likely "tip the balance" in favour of production of the materials so that the court may review them at the second stage.
[21] The court in O'Connor provides guidelines at this next stage for the reviewing judge in balancing the competing rights. These include: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; and (5) the potential prejudice to the complainant's dignity, privacy or security that would be occasioned by production of the record in question.
[22] Of significance, L'Heureux Dube J. made clear that a psychiatric record is not indicative of potential testimonial unreliability. Rather, such an inference need be informed by "cogent evidence, rather than stereotype, myth or prejudice". More recently, in W.B., as noted earlier, Justice Doherty, in similar vein, reinforced the requirement that rather than mere assertion, the applicant need provide "case specific evidence or information" to establish relevance to credibility.
[23] In R. v. Summerhayes, a sexual assault case, the complainant experienced hallucinations and delusions subsequent to the alleged offences that led to his committal for 5 days to a psychiatric unit for children. At the preliminary inquiry, he denied having a mental illness.
[24] Justice Trotter, as he then was, dismissed the application for production of medical records at the first stage, holding that it was "impermissible to draw a direct line between mental illness and testimonial unreliability" without evidence linking the two. In doing so, he relied on both the prohibition in Code s. 278.3(4)(f) that discouraged stereotypical reasoning about those carrying mental health challenges and a related admonition in O'Connor, referred to earlier, that such linkage must be based on 'cogent evidence'. He observed that psychiatric records carry a very high expectation of privacy.
[25] In another sexual assault case, I.W., Justice Doherty held that without sufficient evidence, it was not open to a court upon request to examine a complainant's psychiatric records to determine if they provided a basis for an expert opinion at trial that the complainant suffered from some psychiatric problems that could be relevant to his or her credibility or reliability.
[26] Mr. Chow submits that given the statutory regime for third-party records applications in the Criminal Code for sexual assault cases, the authorities relied on by the complainant's counsel do not apply here. I don't agree. Non-sexual assault cases are also rooted in the privacy principles set out in O'Connor that are at the heart of the s. 278 provisions and are informed by them. It is surely a matter of logic and common sense, particularly regarding questions of a complainant's mental status, that production at the first stage of such inordinately private information must not be premised, without case-specific information, upon discriminatory or stereotypical belief that a complainant's mental illness is linked to testimonial unreliability.
[27] This is made clear, in my view, in R. v. Bradley, an appeal from a murder conviction. There, Justice Watt reviews the governing principles in O'Connor regarding third-party applications that, he says, apply broadly to any record outside the possession or control of the prosecution. It is worth repeating that in O'Connor, the Chief Justice said explicitly that the request for production must be based on evidence, not on "speculative assertions or on discriminatory or stereotypical reasoning".
[28] The authorities relied on by the applicant to support production of third-party records, although not involving sexual allegations, are, in my view, of little assistance. In each case, unlike in the case at bar, there was clear and case-specific evidence to support a finding of 'likely relevance'.
[29] In R. v. Gallinger, a manslaughter case, the witness, a 'crack head' with cognitive deficiencies, testified at the preliminary hearing. Of significance, her case manager gave evidence of the witness's diagnoses that included three major mental disorders that were persistent. The court held that the 'likely relevant' onus was met.
[30] In R. v. Hunter, the accused were charged with three counts of assault. The defence was that the offences never occurred. In its application, the defence called evidence that the complainant had been diagnosed with schizophrenia for which he received regular injections and that he was using illicit drugs over the time frame of the allegations. The complainant had told his family doctor that his injuries were caused in a fall. The court held that the accused had met its 'initial threshold' onus.
[31] In R. v. Lafontaine, the complainant had been hospitalized at the time of the assault. Evidence was called that she was hallucinating and in a psychotic state at the time of the events. The onus was met.
Has the Applicant Met his Threshold Onus?
[32] The available information would indicate that Ms. Shek carries depression and anxiety arising from tragic loss and a troubled marriage. Her use of a variety of medications, including anti-psychotic medication, signals the possibility of a depressive or anxiety disorder, for which such medication has a palliative effect. On this record, there is no information, evidence or inference beyond speculation or discriminatory reasoning that the complainant has experienced a psychotic episode.
[33] The information, rather, permits the reasonable inference that Ms. Shek was an initially reluctant witness due to intimidation and fear of the consequences for her and her son should she report the allegations. She was more forthcoming after having been placed in a shelter and provided support. Her language deficiencies and poor hearing made her task more difficult. Her reluctance rooted in fear is regrettably all too common in situations of domestic conflict.
[34] Mr. To has not met his onus at the first stage. The application is dismissed.
[35] It remains open, however, for the defence to renew the application for production should further disclosure or cross-examination of Crown witnesses at trial provide information relevant to Mr. To's right to make full answer and defence.
[36] I am grateful to counsel for their assistance.
Released: November 26, 2019
Signed: "Justice L. Feldman"