WARNING

PUBLICATION RESTRICTIONS IN EFFECT

This proceeding under the Youth Criminal Justice Act 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 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Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

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.

Court Information

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

Counsel:

• M. Townsend, for the Crown
• J. Markson and K. Robertson, for the Defendant

Heard: October 24, 2019

Reasons for Ruling (No. 2)

(Re Application of ss. 278.92 - 278.94 of Criminal Code to Third-Party Records Subject to s. 278.7 Production Order)

Justice Melvyn Green

A. Introduction

[1] J.P, the defendant, is charged with historical sex offences prosecuted under the Youth Criminal Justice Act. Pursuant to section 278.7 of the Criminal Code, on October 23, 2019 I ordered production to the defence of portions of third-party records in which the complainant has a reasonable expectation of privacy. Before commencing his cross-examination of the complainant, counsel for the defendant seeks a ruling as to whether the records ordered produced are subject to the admissibility framework set out in section 278.92 of the Criminal Code and recently enacted as part of Bill C-51.

[2] There is no doubt that the third-party documentation ordered produced to the defendant amounts to a "record", as broadly defined in section 278.1 of the Code to mean:

any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature …

[3] As it relates to the fact scenario before me, the rules governing admissibility, as prescribed by section 278.92 of the Code, renders a "record" in a defendant's possession presumptively inadmissible unless a judge, following observance of the application and hearing procedures set out in sections 278.93 and 278.94, respectively, determines that the tendered evidence is relevant and that its probative value is not outweighed by its prejudicial impact on the administration of justice. In conducting this final balancing a judge must, as directed by section 278.92(3), "take into account" a series of factors, including an accused's right to make full answer and defence, prejudice to a complainant's personal dignity and right of privacy, and societal concerns to preserve trial integrity and to encourage both sexual assault reporting and the treatment of the victims of such offences. The text of the here-relevant portions of the section 278.92 protocol read (emphasis added):

278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of [certain specified] offences [including those with which the defendant is charged] …

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(b) ... that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society's interest in encouraging the reporting of sexual assault offences;

(c) society's interest in encouraging the obtaining of treatment by complainants of sexual assault offences;

(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(e) the need to remove from the fact-finding process any discriminatory belief or bias;

(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(g) the potential prejudice to the complainant's personal dignity and right of privacy;

(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(i) any other factor that the judge, provincial court judge or justice considers relevant.

[4] Crown and defence counsel take diametrically opposed positions respecting the application of section 278.92 to the case at bar. The Crown says that so long as an "accused intends to adduce" its contents, a plain reading of the provision renders section 278.92 applicable to the determination of the trial admissibility of any record "in the possession or control of the accused". It matters not, he says, how the defendant assumed such possession. The defendant disagrees. He asserts that, on a purposive and contextual reading of the section 278.92 regime, it is inapplicable to cases where, as here, the defendant's possession of the only record at issue is the result of judicial order, following a screening process directed by section 278.2, at which the privacy and equality interests of the complainant and the fair trial interests of the defendant were already weighed, balanced and determined.

B. Procedural History

[5] In accordance with section 278.3 of the Criminal Code, the defendant brought an application (a "Mills application", in legal vernacular) for production of third-party clinical and counseling records in which the complainant, C.P., has a reasonable expectation of privacy and which clearly fall within the definition of protected "records" in section 278.1 of the Code.

[6] As is her statutory right (section 278.4(2.1)), the complainant retained counsel to represent her through the hearing stages of the production protocol. At the first or threshold stage, the complainant, through counsel, invited judicial inspection of the third-party records. As set out in subsection 278.5(1), the test for even such limited production is judicial satisfaction of the record's "likely relevance" to trial or witness competency issues and that it "is necessary in the interests of justice". This exercise involves judicial consideration of "the salutary and deleterious effects" of the decision "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" – a calculus that incorporates, "[i]n particular", taking a number of "factors into account". The enumerated factors include specified facets of fair trial and privacy rights, trial integrity, and societal interests in encouraging both the reporting of sexual offences and the "obtaining of treatment by complainants" of such offences.

[7] An in camera hearing followed my personal inspection of the record: section 278.6(2). Pursuant to subsections 278.7(1) and (2), the decision whether to order production, if any, to the defendant engages judicial consideration of exactly the same "salutary and deleterious effects" and enumerated "factors" as statutorily frame the decision-making process at the threshold stage and, again, the relevant standard is that of "likely relevance". The major difference is that the production determination is, at this stage, informed by a judicial review of the actual record at issue. Again most helpfully, the complainant, through counsel, proposed production to the defendant of itemized portions of the third-party records, effectively acknowledging that the value of these particularized excerpts to the defendant's right to make full answer and defence outweighed her claims to privacy and other statutorily protected interests. She resisted production of any larger tranche of the third-party records, a claim advanced by the defendant on the basis of his anticipation that the record could include information pertaining to the complainant's credibility at large and, as well, her motive to first approach the police some two decades after the alleged misconduct.

[8] As noted, on October 23, 2019 I ordered redacted portions of the third-party records produced to the defendant. Although modestly more expansive than the complainant's concessions, the contours of my ruling (for which reasons were released on November 7, 2019) hew closely to the scope and content of the production proposed by the complainant. Counsel for the complainant, her retainer then exhausted, withdrew from the proceedings.

[9] Sealed copies of the portions of the record ordered produced were distributed to the parties, thus placing the defendant in physical "possession" of a "record" for purposes of section 278.92. As earlier summarized, the latter provision renders any "record relating to a complaint that is in the possession of control of the accused" presumptively inadmissible unless a judge, following a threshold application under section 278.93, is first satisfied that the "evidence sought to be adduced is capable of being admissible" and, if so, then determines, at a subsequent hearing under section 278.94, that the "evidence, or any part of it" is admissible on application of the multifactorial assessment of probative value and prejudicial effect directed by section 278.92.

[10] Unlike some similarly-placed litigants (see, for example, R. v. R.S.(A.), 2019 ONCJ 645 and R. v. F.A., 2019 ONCJ 391), the defendant does not directly challenge the constitutional vires of the section 278.92 regime. Rather, as noted above, he says that the words "record … in the possession or control of the accused" in section 278.92 cannot, on a proper construction of the provision, include third-party records of which he has come into possession solely because a judge – having already entertained the submissions of counsel for the complainant and having weighed the likely relevance of those records against their infringement of the complainant's privacy and other protected interests – ordered them disclosed to him. Accordingly, the defendant seeks a determination of the applicability of the section 278.92 regime before his counsel commences cross-examination of the complainant.

C. Legislative Background

[11] Legislative initiatives to protect the privacy interests of sexual assault complainants can be traced to the mid-1970s. These efforts and the judicial response to them are helpfully detailed in R. v. R.S. (A.), supra, at paras. 8 to 27. Since the advent of the Charter, as there said by Breen J., at para. 8, "Parliament and the judiciary have engaged in an ongoing 'dialogue', seeking an appropriate balance between a complainant's rights to privacy and equality and an accused's right to a fair trial".

[12] The permissible use of three broad classes of potential evidence jeopardizing a complainant's privacy, security and equality interests have occupied the battlefield of this protracted "dialogue". One category, as addressed in Mills, supra, and section 278.2, comprehends the contents of records concerning the complainant that are held by the complainant, the Crown or, most commonly (as in the instant case), third parties. A second pertains to records lawfully in the possession or control of the accused in which a complainant maintains a reasonable expectation of privacy (as illustrated by the complainant's diary in R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58). By way of rhetorical shorthand, I refer, respectively, to these two categories as Mills records and Shearing records.

[13] A third privacy-sensitive category comprises information possessed by a defendant as to a complainant's extrinsic sexual history. This latter domain of protected complainant privacy – that is, his or her extrinsic sexual history – is defined in section 276(2) as "sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person". (Recent amendments, codified as section 276(4), extend this definition to "any communication made for a sexual purpose or whose content is of a sexual nature".) Prior to Bill C-51, the admissibility of such extrinsic sexual activity was governed by the application and hearing procedure set out in sections 276.1 and 276.2 of the Code. In contrast, the admissibility of any third-party records ordered judicially produced to the defence was determined through application of common law rules of evidence rather than any statutory protocol.

[14] Bill C-51 (now S.C. 2018 c. 29), enacted in December 2018, reflects Parliament's most recent effort to both safeguard and reconcile a complainant's and defendant's competing suites of constitutionally-entrenched rights. Bill C-51 repealed those provisions, sections 276.1 and 276.2, controlling the admissibility of extrinsic sexual activity. It replaced them with sections 278.93 and 278.94 which, as construed by Justice Breen in R.S.(A.), at para. 27,

… provide essentially the same procedure, but now apply to both sexual history and private records. [Italicization in original; underscoring added.]

Chapman J. adopts a similar interpretation of the effect of these amendments in R. v. M.S., 2019 ONCJ 670. And in R. v. Lebrun, 2019 ONSC 4251, at para. 15, Kane J. makes explicit his view that the section 278.92 admissibility protocol extends to "records" that have been judicially released to a defendant:

Even if a court pursuant to s. 278.7 orders that the records be produced to the defendant, such records remain presumptively inadmissible at trial pursuant to s. 278.92, unless the defendant successfully by application obtains leave to introduce such records into evidence pursuant to sections 278.92 to 278.94.

Despite their broad language, I note that in none of these cases was the admissibility of third-party records – the contested category of complainant-privacy sensitivity before me – the subject of the defendant's application or otherwise materially at issue.

[15] Although neither are binding precedents, there are two reported trial-level decisions that deal more directly with the application of sections 278.92 to 278.94 to the admissibility of third-party records. The first, R. v. Brown, [2019] O.J. No. 970, is readily distinguishable as the hospital records in question were already in the possession of the defence as a result of (likely inadvertent) Crown disclosure. Accordingly, there was no judicial production ruling, and thus no balancing of the competing interests before embarking on the admissibility application.

[16] The second decision is that rendered by Doody J. in R. v. Boyle, [2019] No. 1922. The case is factually much closer to the instant proceedings. In Boyle, as here, portions of a complainant's third-party therapeutic records were ordered produced to the defendant under section 278.7 of the Code. The defendant then challenged the application of the section 278.92 regime to these records, submitting that compliance was only required where he sought to admit the record itself into evidence; the statutory admissibility rules, the argument continued, were not engaged by merely asking the complainant questions pertaining to the content of these same records. Doody J. was unpersuaded. The "word 'record' in the context in which is used in section 278.92", he said at para. 38, is "the information contained in the record as defined in section 278.91" (emphasis added). He ultimately held, at para. 48, that,

The defendant cannot introduce into evidence, whether by cross-examination or otherwise, any information contained in the record of the health care provider without complying with the procedure set out in sections 278.92 to 278.94.

The exact interpretive challenge advanced by the defendant before me to the application of section 278.92 was not broached in the course of the Boyle proceedings. Nonetheless, it is clear that, as regards "records", Doody J. also subscribes to the view that section 278.92 is of universal application.

[17] In summary, there is a general judicial consensus as to the application of section 278.92 to all three of the categories of complainant privacy I have earlier identified. However, there appear to be no considered decisions on the core issue I am here asked to resolve: whether, as a matter of statutory interpretation, the sections 278.92 - 278.94 admissibility regime applies in those circumstances where, as here, the only "record" of which the defendant is in possession is that judicially produced to him following a two-stage application and hearing at which the balance of fair trial and privacy interests was already judicially settled.

D. The Parties' Positions

[18] To be clear, Bill C-51 has attracted several questions of statutory construction, of which those raised in the instant matter are only a small, if thus far unique, representation.

[19] To repeat, the defendant's argument is largely premised on redundancy and trial inefficiency: a judge – following a rigorous application process, private inspection of the third-party records at issue, and a hearing at which the complainant, represented by counsel, fully participated – has already determined, through of his or her production order, if any, the legally appropriate balance between the respective rights of the defendant and the complainant. In short, and with respect to those records ordered produced under section 278.7, the hearing process prescribed by the section 278.92 regime is superfluous, and thus violative of the presumption against tautology. (See Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3 S.C.R. 471, 2011 SCC 53, esp. at para. 38.) Properly construed, the words "record relating to a complainant that is in the possession or control of the accused", as used in section 278.92, apply only to Shearing records and not to third-party Mills records that, says the defendant, a court has already weighed for prejudicial effect to a complainant's privacy and equality interests before ordering them produced to the accused.

[20] Further indicia of Parliament's intention, says the defendant, can be drawn from the statutory history of the amendments leading to the enactment of section 278.92. Here the defendant relies on Breen J.'s surmise in R. v R.S. (A.), at paras. 97 and 23, that, "[g]iven the past dialogue between Parliament and the S.C.C. it is reasonable to view Bill C-51 as a codification of the procedure approved in Shearing", as "likely spurred" by the notoriety surrounding the defence use of Shearing-like records (complainants' emails and text messages in the possession of the accused) in the course of the widely publicized Jian Ghomeshi trial.

[21] As summarily expressed in the defendant's written submissions: like the admissibility framework in sections 278.92 to 278.94, the 278.7 regime that governs the production of third-party records,

already requires the Court to consider the "privacy, personal security, and equality" of the complainant when determining whether to review or produce records under the Mills framework. … This is a strong indication that the legislative intention in enacting s. 278.92 was to expressly require a balancing of the privacy, security, and equality interests of the complainant in respect of the admissibility of Shearing records [only] given [that] this balancing already automatically occurs in respect to Mills records produced to the defence, regardless of the enactment of Bill C-51.

… s. 278.92, properly interpreted, applies in respect of Shearing records in the possession of the defence. Mills records are already automatically screened in the manner that Parliament now requires in respect of Shearing records under s. 278.92.

[22] The Crown counsel's response to the defendant's argument is rooted in the "plain meaning" doctrine and contextual distinctions drawn between production and admissibility assessments. Modestly emended, the core paragraphs of the Crown submissions read:

[T]here is no distinction made in s. 278.92 with respect to how the accused came into possession of the records in question. It is often thought that this section of the Criminal Code was amended as a result of what happened in R. v. Ghomeshi, … . … While that may have been the impetus …, there is nothing in the wording of s. 278.92 that suggests that the admissibility application is restricted to these types of records.

The Applicant argues that s. 278.92 should not capture records produced via a 3rd party records application because 3rd party records have already undergone a screening process, [but] … the screening process in s. 278.7 and s. 278.92 are [not] the same.

[T]he standard for production is not the same as the standard for admissibility under s. 278.92. … In addition, the factors considered in s. 278.92(3) are not identical to the factors described in s. 278.5(2).

As a result, … s. 278.92 applies to all records that the accused possesses and wishes to adduce, including records obtained through a 3rd party records application.

E. Analysis

[23] Unlike Shearing records, at the point where judicially produced third-party records in a defendant's possession are tendered in evidence their relevance, relative probative worth and prejudicial impact have, for purposes of production, already been judicially reviewed and balanced to protect the respective fair trial and privacy interests of the defendant and complainant. The enumerated "factors" and other matters to be "considered" and "taken into account" differ somewhat between the section 278.7 production and section 278.92 admissibility regimes. And the standard of "likely relevance", as obtains under the production regime, is more relaxed than that of "relevance", as applies in the admissibility context. However, says the defendant, there is such close functional equivalence between the two screening mechanisms that, properly construed, the "record" subject to the latter provision cannot be read to include that already produced to a defendant. To do otherwise is to manufacture redundancy.

[24] I agree with the defendant that the inventories of protected interests that inform the two screening mechanisms, while not identically framed, are thematically very similar. My core difficulty with the defence argument for denying the applicability of the section 278.92 admissibility regime to third-party records produced to the defendant rests not with Parliament's variable phrasing of the interests, rights and other enumerated factors relevant to deciding whether, in any given case, to produce or admit any portion of the record. It is grounded, rather, in concerns regarding the validity of the claim of functional equivalence. Put otherwise, production and admissibility proceedings serve different forensic functions in the attainment of a trial that is fair to an accused, a complainant and society at large.

[25] In my view (echoing, here, that advanced by Crown counsel), one can readily imagine cases where there is a material difference between the balancing of those competing protected interests that occurs at a production hearing and that which prevails when it is the admissibility, rather than production of the record, that is at issue. Breen J. directly addressed the distinction in R. v. R.S. (A.), supra, at paras. 94 through 96. As there said, in part:

An application to introduce evidence of private records … is distinct from an application requesting court ordered production of records from third parties. In the context of an admissibility voir dire, the privacy and equality interests of a complainant relate to the impact of disclosure of highly personal information during a public trial. This impact is particularly acute where the defence seeks to introduce the evidence in cross-examination of the complainant.

[I]t is the judicial determination of admissibility itself that protects the privacy interests of the witness and the broader policy concern of encouraging complainants to come forward and/or seek counselling services. [Italicization in original; underscoring added.]

(Although there dealing more directly with allegations of extrinsic sexual conduct, see also R. v. M.S., supra, at paras. 91-93, where Chapman, J., clearly drawing on her extensive experience as both a prosecutor in sexual assault trials and counsel for complainants in such trials, poignantly discusses the "trauma associated with testifying" endured by sexual assault complainants.)

[26] Depending on circumstances specific to both the case and the complainant, there may well be personal, legally cognizable differences between the prejudicial impact of a production order (made following an in camera hearing that results in only the defendant having access to excerpts of a record in which a complainant reposes an expectation of privacy) and, on the other hand, the use of the such records for purposes of cross-examining the same complainant in the course of a public trial. Even if the records at issue involve intimate exchanges or disclosure invested with a high degree of expectational privacy, a production determination is largely an antiseptic exercise resulting in only limited exposure of whatever is ordered disclosed to the defence. A decision as to admissibility can well have greater visceral impact on a complainant. This latter assessment may turn on an individualized and more nuanced appreciation of the personal conditions, sensibilities and vulnerabilities of a complainant, as advanced through his or her counsel. These latter considerations could reset the fulcrum in the safeguarding of both defendant's and complainant's interests from that balance point which obtains on an application for production.

[27] In short, the Code's production and admissibility regimes are not necessarily duplicative. The risk of negative impact on complainant-protected rights and the integrity of the trial process may well engender, at a public trial, a recalibration of the tension between probative value and prejudicial effect directed by subsections 278.92(2)(b) and (3). The end result – production in one ruling and admission of the tendered evidence in another – may be same in any given case, but the determination of the first does not dictate the outcome, content or compass of the second.

F. Conclusion

[28] Consistent with these reasons, I conclude that the defendant, should he wish to adduce in evidence any portion of the third-party "record" he possesses as a result of the production I earlier ordered under section 278.7, must comply with the admissibility regime set out in sections 278.92 to 278.94 of the Criminal Code.

[29] There is no reason to prohibit publication of this ruling.

Released on November 22, 2019

Justice Melvyn Green