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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

This hearing is governed by section 278.9 of the Criminal Code:

Publication prohibited

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

(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.

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

☒ An order has been made allowing these reasons to be published, broadcast or transmitted.

Court Information

Date: November 28, 2019

Ontario Court of Justice

R. v. J.M.

Counsel:

• E. Guimond, counsel for the prosecutor
• A. Chaisson, counsel for the complainant
• L. Scardicchio and E. Balapoulos, counsel for the Defendant/Applicant

Endorsement on s. 278 Application – Stage One

Introduction

[1] The applicant seeks specific school records of the complainant, A.M. The records sought relate to an inquiry by A.M.'s principal and/or teachers about an allegation that A.M. had been raped by her cousin, the nephew of the Defendant Applicant. The evidence on the Application established that A.M. was present at a meeting with the principal which was also attended by her cousin and his mother, the complainant's aunt.

[2] The viva voce evidence I heard was different from the documentary evidence filed with the Application. In the former, A.M. admitted that it was a "joke," whereas the affidavit of the complainant's uncle, R.M., included hearsay that A.M. had admitted that she was lying about the sexual assault allegation involving her cousin.

The Law

[3] The statutory regime governing third-party records is found in ss. 278.1 - 278.9 of the Criminal Code. At the first stage, the court will consider, in camera, whether the Application conforms to the requirements of the Code, and that it establishes the likely relevance of the material sought to an issue at trial, including:

• the unfolding of the narrative;
• the credibility of a witness;
• the reliability of other evidence; or
• the competence of a witness to testify.

[4] The jurisprudence makes clear that "likely relevance" is an appropriate first hurdle in order to protect complainants' privacy interests in confidential records kept by third-parties.

[5] Likely relevance is something more than Stinchcombe relevance. The Ontario Court of Appeal has instructed that:

…the applicable standard in the third party/ O'Connor production regime is more demanding than the "whether the information may be useful" criterion for first party/ Stinchcombe disclosure. That a more stringent standard applies is consonant with the underlying policy considerations and the gatekeeper function assigned to the trial judge.

[6] In the third-party records context, the demonstration of likely relevance is said to impose a "significant, but not an onerous, burden on an applicant." The "likely relevant" standard, "means that there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify. The credibility of witnesses and the reliability of other evidence are issues to which third-party records may be likely relevant.

[7] However, s. 278.3(4) of the Criminal Code lists items which on their own cannot satisfy the "likely relevant" test:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant's sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

In order for any of the above assertions to be sufficient to require stage one production of a third-party record to the court for review, the applicant must also be able to point to case-specific evidence or information that shows that the record is likely relevant to an issue at trial or the competence of a witness to testify.

Analysis

[8] For the following reasons, I find that the likely relevance threshold has not been met in this case:

i. The Applicant has failed to demonstrate case-specific information that shows that the record sought is likely relevant to an issue at trial; at best, the Applicant has asserted that the record may contain information that is similar in nature to the allegation before the court, and it involved a rumour at the complainant's school that she was sexually assaulted by her cousin, which the complainant acknowledged was not accurate;

ii. Likely relevance involves probability, rather than possibility, which is the threshold for Stinchcombe disclosure;

iii. Although it may be diminished in comparison to other types of records, a complainant would nonetheless have some reasonable expectation of privacy over school records relating to possible disciplinary processes or administrative inquiries involving her and rumours of sexual activity (consensual or not); and

iv. I am not satisfied on a balance of probabilities that the record sought has "some potential to provide the accused with some added information not already available to the defence or have some impeachment value."

[9] On the record before me, counsel for the Applicant can only suggest that there may be a record of the principal's inquiry, including the meeting with A.M., her cousin, and his mother, and that it may have information of value in making full answer and defence. Counsel suggests the record, if it exists, may go toward suggesting that the complainant has made an allegation of sexual assault in the past which she later referred to as a "joke."

[10] To be fair, the evidence adduced on the Application is inconsistent and insufficient to demonstrate that the content of the record sought, if it exists, will contain information of value to the Defendant.

[11] As always, it remains the case that the complainant may be cross-examined about the prior rumours and the incident involving her cousin, to the extent that the materiality of this type of questioning is established at trial.

Conclusion

[12] The Application for the third-party record of the notes of teachers or principal(s) at the complainant's school concerning an incident in March 2017 is dismissed at the first-stage.

Justice G. Paul Renwick

Footnotes

[1] R. v. Jackson, 2015 ONCA 832, [2015] O.J. No. 6274 (C.A.) at para. 84.

[2] See R. v. Stinchcombe, [1991] 3 S.C.R. 326.

[3] Jackson, supra, at para. 138.

[4] Jackson, supra, at para. 127.

[5] R. v. Batte, [2000] 49 O.R. (3d) 321 at paras. 72 and 75 (C.A.).