Ruling on Third Party Records Application

Ontario Court of Justice

Date: October 15, 2019

Central East Region (Oshawa)

Court Information

Between:

Her Majesty the Queen

— and —

A.O. [1]

Before: Justice F. Javed

Heard on: October 5, 2019

Reasons released on: October 15, 2019

Counsel

H. Cook — counsel for the Crown

Margaret Bojanowska — counsel for the Applicant/Young Person

Joanna Birenbaum — counsel for the Third Parties

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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.

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, 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).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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.

F. Javed J.:

A. Overview

[1] This is a ruling on an application brought by the Applicant, A.O. who is a young person under the Youth Criminal Justice Act ("YCJA"). A.O. seeks production of records in possession of a third party, the Durham Children's Aid Society ("DCAS") pursuant to s.278.3 of the Criminal Code ("Code").

[2] A.O. is charged with criminal offences alleged to have been committed against a 13 year old complainant. In particular, the information alleges the offences of sexual interference contrary to s.152 of the Criminal Code and two counts of sexual assault contrary to s.271 of the Criminal Code. The allegations span the period from August 1 to December 31, 2017.

[3] The Applicant's trial is scheduled to commence before me on November 25, 2019. This third-party records application was accompanied with written materials setting out the statutory requirements in s.278.3 of the Criminal Code. Notice was given to all interested parties including the complainant and her parents as well as their worker from the DCAS. Counsel Ms. Birenbaum acts for both parties on this application.

[4] Ms. Bojanowska appears for the Applicant. She advised her client suffers from mental health issues and counsel had anticipated the hearing proceeding on consent, thus she sought leave for her client to be absent. Since the trial of the young person hasn't commenced within the meaning of s.650 of the Criminal Code, I'm satisfied it was appropriate to proceed in his absence during this in camera proceeding.

[5] Counsel agree on the legal principles that apply on this application. Because the young person is charged with sexual offences, the principles in s.278.3, along with the guidance by the Supreme Court in R. v. Mills, [1999] 3 S.C.R. 668 govern this application.

B. The First Stage of Mills

[6] Ms. Birenbaum did not file a formal response but instead took a reasonable position that the Applicant's written materials satisfied the first branch of the Mills analysis. In other words, the information sought is relevant to an issue at trial or the competence of a witness to testify and the production of the information is necessary in the interests of justice having regard to the factors in s.278.5(2) of the Criminal Code. I agree.

[7] Accordingly, Ms. Birenbaum invited the court to unseal the impugned records and produce some parts of the records to the Applicant. Ms. Birenbaum made submissions on what records should and should not be disclosed. Ms. Birenbaum, very helpfully, highlighted the information in different colors representing her position. On any pages with highlights, yellow represented what should be disclosed while orange was irrelevant and ought not be disclosed. Anything that was not highlighted was irrelevant.

[8] Ms. Bojanowska made submissions on the scope of the disclosure and submitted that the court should err on the side of disclosure where it was argued that records or part of them may not be relevant.

[9] I have completed my review of the records pursuant to s.278.7(2) of the Criminal Code. These are my written reasons for what can and cannot be disclosed pursuant to s.278.8(2) of the Criminal Code.

C. The Second Stage of Mills

[10] The records being sought by the Applicant involve alleged statements made by the complainant and her mother regarding the details of the criminal allegations and the circumstances of their disclosure. It is common ground that the criminal allegations surfaced after the complainant was interviewed by the DCAS who then reported the matter to the Durham Regional Police Service. The defence says based on the disclosure from the Crown, there exists prior inconsistent statements between the circumstances of the disclosure to the DCAS and the police. The defence says this would be relevant not only to the credibility of the parties but also to understanding the narrative of the events. It would appear that counsel for the complainant agrees with this submission. Without deciding if in fact the impugned utterances are prior inconsistent statements, I'm satisfied based on the consent of the parties who are privy to all the materials and applicable principles that the impugned records would have probative value and are therefore relevant. I am satisfied that this more than just a bare assertion of relevance: R. v. L.M., 2014 ONCA 640, 122 O.R. (3d) 257, at para. 36.

[11] Section 278.5(2) of the Criminal Code sets out the statutory criteria that a court must follow in deciding if the record or part of the record can be disclosed. It provides:

278.5(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), 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 and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors 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, s.278.7 provides:

278.7(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, subject to any conditions that may be imposed pursuant to subsection (3).

(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 and equality of the complainant or witness, as the case may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.

[12] The types of records being sought are records kept by a child protection agency, which have a high expectation of privacy. In R. v. H.F., [2017] O.J. NO. 1750, Justice Allen discussed the disclosure of CAS records. In that case, disclosure was not made because there was no evidence that the parties discussed the criminal allegations with the CAS. Of course, that is not the issue here. However, Justice Allen noted the following at para. 61 which I find as persuasive guidance on my task:

I must weigh the accused's right to a full answer and defence with a vulnerable child complainant's right to protection from incursions on the private and sensitive information held by the CAS. It is well established by the child protection scheme and by the Criminal Code's third party records regime, where CAS records are particularly identified as attracting protection, that a clear expectation of privacy exists in relation to the CAS records at issue in this case.

[13] I am reminded that CAS records often contain layers of hearsay as information is recycled among various members and branches of the CAS. On its own, this may have little probative value, although a careful assessment will be required as to the nature of the hearsay. For example, if a person provides inconsistent statements to different CAS workers, this may become relevant. Here, the records contain steps taken by the DCAS in furtherance of their mandate, that do not, on their own, have any value as potential evidence in this case. In conducting my review, I have considered the nature of the record, the degree to which a reasonable expectation of privacy attaches to it, the record-taking practices surrounding the record and the record's fidelity and accuracy. All of these factors address the probative value of the record that must be balanced with the statutory factors in the Mills regime.

[14] Ms. Birenbaum provided two packages of material to be reviewed. She referred to these as "Intake Case Information" documents. The first package is 8 pages ("Package 1"), while the second is 33 pages ("Package 2"). Ms. Birenbaum submitted nothing in Package 1 is relevant because it is largely narrative and already known to the Applicant through Crown disclosure. As for Package 2, she submitted information that relates to the disclosure of the events is relevant but anything that post-dates the involvement of the police isn't. Ms. Bojanowska agrees but submits the court should take an expansive definition of relevance even in narrative type information.

Package 1

[15] I am satisfied that the pre-printed section titled "Narrative" on page 1 which has a paragraph starting with "Referral:" is relevant because it contains the circumstances of the disclosure and a timeline of important dates. The rest of the record on page 1 is irrelevant and in some cases private.

[16] I agree with Ms. Birenbaum that the balance of Package 1, that is, pages 2-8 are not relevant. It contains CAS information and is largely record keeping type information. It has no probative value.

Package 2

[17] Ms. Birenbaum submitted pages 25-33 are irrelevant as they are administrative in nature. I agree. They are irrelevant to the issues in this case.

[18] The crux of the DCAS involvement in this case is found in pages 22-24. It involves a home visit with the DCAS on March 5, 2018. The police interview was on March 13, 2018. I agree with Ms. Birenbaum that an expansive view of disclosure in yellow highlights meets the Mills analysis, while the information in orange does not. My own review of this information in orange represents private information and has no bearing to the issues in this case. Accordingly, parts of pages 22-24 will be disclosed on this basis.

[19] Ms. Birenbaum submitted that pages 20-21 do not meet the Mills test but if the court disagrees, the items in orange should not be disclosed. I tend to agree that the items in yellow are relevant because it gives context to the circumstances of the disclosure. It is not necessarily private information. Context will be important and as such, parts of the record on page 21 will be disclosed, while page 20 will not as it contains administrative information.

[20] Moreover, I agree page 19 is irrelevant as administrative type information. Most of it will already be known to the Applicant. I also agree that pages 3-18 post-date the police involvement and don't touch upon the contentious issues in the litigation but are more oriented to the mandate of the CAS. They will not be disclosed.

[21] Finally, the parties disagree on disclosure of pages 1-2. Ms. Birenbaum submitted it contains a summary of the investigation which is hearsay and not relevant. Defence counsel says dates would be important for context and narrative. I tend to agree. Given the tender age of the complainant, the Supreme Court has recognized retention of dates may not be as important for child witnesses as it would be for adults. It may be helpful in the interests of justice to know key dates of information that has already been deemed relevant pursuant to the Mills regime, if there is disagreement. As such, I am ordering disclosure of parts of the record on page 1 that assists with dates of key events. All other hearsay information has no probative value. Similarly, I have reviewed page 2 and there is nothing that pre-dates police involvement that would assist with dates or other probative information. It is irrelevant and will not be disclosed.

D. Conditions on Disclosure

[22] I will make the appropriate redactions consistent with these reasons. Pursuant to s.278.7(3) of the Criminal Code, I will make the following orders regarding the edited records to protect against unnecessary incursions on privacy interests:

(a) A copy of the records as redacted, rather than the original, shall be produced to counsel for the Applicant and the Crown. The records shall not be disclosed to third parties such as parties assisting the witness in testifying except with approval of the court. For example, the office of the Victim Witness Assistance Program (VWAP) and their employees.

(b) Counsel and the Applicant shall not disclose the contents of the records to any other person except with approval of the court.

(c) No copies of the records shall be made except for trial use by counsel or with approval of the court.

(d) The disclosed records shall not be used in any other proceedings.

[23] The records as redacted and produced to counsel shall be sealed in the court file.

[24] The unredacted records shall also be kept in a sealed package by the court pursuant to the provisions of s.278.7(6) of the Criminal Code.

[25] These written reasons will be attached to the information to complete the court record.

Released: October 15, 2019

Signed: Mr. Justice F. Javed

Order: s.278.9 Criminal Code

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.

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

[1] There is a separate Order under s.278.9 of the Criminal Code relating to the publication or transmission of these reasons.