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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

278.9…Publication prohibited. — (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.

☒ These reasons may be published, broadcast or transmitted.

Court Information

Ontario Court of Justice

Date: August 21, 2020

Court File No.: Simcoe 190842

Between:

Her Majesty the Queen

— and —

D.B.

Before: Justice A.D. Hilliard

Heard on: August 18, 2020

Reasons for Judgment released on: August 21, 2020

Counsel

• G. Romano — counsel for the Crown
• S. Swarts — counsel for the accused D.B.
• L. Edwards — counsel for The Children's Aid Society of Haldimand & Norfolk
• E.G. Dykstra — counsel for the complainant

Reasons for Judgment

Hilliard J.:

Overview

[1] This is an application brought by the accused for disclosure of records held by The Children's Aid Society of Haldimand & Norfolk (CASHN) regarding investigations undertaken in 2018 and 2019 with respect to allegations of sexual misconduct.

[2] The application also included a request for disclosure of the complainant's journal, however, during the course of argument that portion of the application was abandoned.

Factual Background

[3] The complainant made disclosures to a camp counsellor in the summer of 2018 regarding sexually inappropriate behaviour by her maternal uncle, the Applicant. Those disclosures led to the camp counsellor contacting CASHN. An investigation was commenced as a result of the referral.

[4] Some inquiries were made of the police in 2018 regarding whether the Applicant was the subject of any court orders, and if so, what the terms of such orders were. No charges were laid by the police in 2018. It does not appear that a general occurrence report was made or generated by police regarding the complainant's disclosures to her camp counsellor in 2018.

[5] In 2019, the complainant attended the same summer camp as the previous year and made further disclosures to a camp counsellor that included allegations of inappropriate sexual touching. A referral was again made to CASHN and on August 14, 2019, a call was made to the Norfolk OPP to report a historical sexual assault. A General Report was created on that date by the OPP and states in part:

The sexual assault was initially reported on August 22, 2018, while the youth was attending [camp] …The incident from last year was initially investigated by CAS and OPP and did not result in any charges. [The complainant] stated that she didn't feel believed, so she did not want to disclose any further details. The initial report was that her and [the Applicant] were painting naked and were painting on each other. Unknown whether [the Applicant] touched [the complainant] with a brush or with a body part, directly or indirectly. [The complainant] also reported that [the Applicant] asked her to bathe with him. This year at [camp], [the Complainant] made a further disclosure to the original incident.

[6] In 2019, the Applicant was charged with sexual assault, sexual interference, and invitation to sexual touching. This Application has been brought before me as the trial judge for determination prior to the commencement of the trial proper.

Analysis

[7] There is no dispute that the records for which disclosure is sought are subject to s. 278.2 of the Criminal Code. Production of third party records, as defined by s. 278.1, including child welfare records, can only be made in accordance with s. 278.3 to 278.91.

[8] An application must be brought in the form prescribed in s. 278.3. That has been done in this case.

[9] Production of the CASHN records is subject to a 2 stage inquiry: (1) should the records be ordered produced to me as the trial judge based upon the test as set out in s. 278.5; (2) should the records once reviewed be produced in whole or in part to the Applicant.

[10] The first stage of the inquiry involves a two-pronged test: (1) has the Applicant established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and (2) is production of the record necessary in the interests of justice. If either of the two prongs of the test are not met, the Application fails.

[11] Although the Applicant bears the onus of demonstrating likely relevance that burden is not meant to be significant, but rather as it was put so succinctly by Dellandrea, J. in R. v. Brown, "the likely relevance threshold in s. 278.5 is intended to prevent requests for production which are "speculative, fanciful, disruptive, unmeritorious, obstructive and time consuming." It must be demonstrated that there is "more than a reasonable possibility that a record could contain information that is logically probative. […] A record will be found to have achieved the requisite threshold of likely relevance only where it is established that it is admissible in its own right, or has some credible impeachment value."

[12] There is no issue as to the competence of a witness to testify. The argument of the Applicant is based solely on the records being likely relevant to an issue at trial.

Likely Relevance

[13] Section 278.3(4) of the Criminal Code particularizes what assertions, alone or in combination, are insufficient grounds to establish likely relevance, including:

(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 complaint or witness;

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

[14] The Applicant's position is that the records of CASHN are likely relevant because the initial investigation in 2018 did not result in the matter being referred to the police nor any criminal charges being laid. Therefore, in the Applicant's view, the only logical inference is that the complainant's statements to the investigating worker at CASHN were different in 2018 than what she stated to the worker in 2019, which investigation resulted in the charges before the court.

[15] In support of the proposition that records from a Children's Aid Society investigation into allegations of sexual offences are likely relevant, the Applicant relies on two cases – R. v. N.S. and R. v. T.Y.W.. However, both of these cases are distinguishable on the facts.

[16] In N.S., the record at issue was the complainant's diary not CAS records. Justice Weagant also noted in his decision that both Crown and defence counsel, as well as the police, had already seen the diary entry in question and therefore the privacy aspect of the content had already been compromised. Counsel on behalf of the complainant conceded that the diary excerpt should be provided to Justice Weagant for his review given that the excerpt had already been disclosed. Therefore the likely relevance analysis at the first stage was not undertaken by the Court.

[17] In T.Y.W., the charges against the Applicant were laid under the Immigration and Refugee Protection Act, not the Criminal Code. Justice Caldwell had to undertake an analysis to determine which legislative or common law scheme applied to the third party records application – the O'Connor regime or the Mills/s. 278 regime. Justice Caldwell ultimately determined that the CAS records in T.Y.W. fell under the O'Connor procedure rather than under s. 278 as the charges laid against the Applicant were not enumerated offences under s. 278.2. Justice Caldwell further noted at paragraph 25 of her decision, "[t]he O'Connor regime is less complex [than the 278 regime] as it does not carry with it the additional policy concerns that arise in sexual assault cases."

[18] The Supreme Court of Canada in R. v. McNeil clarified the distinction between the third party records regime under O'Connor and the Mills/278 regime as follows:

First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings. Such generalized views need not be countered at large in respect of all third party records that fall outside the Mills regime. The general common law threshold of likely relevance under O'Connor is intended rather to screen applications to ensure the proper use of state authority in compelling production of third party records and to establish the appropriateness of the application so as to avoid squandering scare judicial resources.

[19] It is not disputed that the records the Applicant is seeking to have produced relate to the subject matter of the proceedings, but by virtue of s. 278.3(4)(c) that in itself is insufficient to find likely relevance. Equally the fact that the CASHN records may contain a prior inconsistent statement from the complainant is insufficient by virtue of s. 278.3(4)(d) to ground a finding of likely relevance.

[20] The assertion that the records are likely relevant in relation to the credibility of the complainant, insofar as she may have provided a different account in 2018 than she did in 2019, is also not sufficient by virtue of 278.3(4)(e). The failure to disclose certain allegations in 2018 that were then disclosed in 2019 cannot be used to attempt to undermine the complainant's credibility, as such an assertion falls within the prohibited myths category regarding how and when complainants should make disclosures. It is well settled that the credibility of the complainant cannot be attacked on the basis of a failure to disclose at the time of the alleged offence or shortly thereafter, particularly as regards child complainants.

[21] The evidence is that the Applicant believes that the records may contain a prior inconsistent statement, not that such a statement is likely or probably contained therein. I am being asked to draw an inference from the differing outcomes of the investigations in 2018 and 2019 that the records must contain a prior inconsistent statement from the complainant. I cannot find any support for such an inference on the evidence before me. The evidence reveals that there were omissions in the complainant's disclosures in 2018, which in itself is not necessarily inconsistent with her disclosures in 2019.

[22] A finding of likely relevance cannot be based on mere speculation. As Justice Katarynych aptly wrote in R. v. T.F.:

It must be shown, in relation to confidential records, that the record contains statements made by a complainant to a therapist or counsellor on matters potentially relevant to the complainant's credibility. The "likely relevant" threshold is met only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or, alternatively that they have some potential impeachment value.

[23] In assessing the likely relevance of the CASHN records, I must also consider whether the records will likely disclose information that is not already available to the Applicant. In R. v. J.B., Justice DiTomaso confirms that the privacy interests in CAS records are high and, citing R. v. Batte, states that even where confidential records are shown to contain statements made by the complainant, disclosure will only be ordered if there is some basis for concluding that the disclosure will provide to the accused added information he does not already have.

[24] The Applicant is already aware that the complainant's disclosures in 2018 did not contain the detail disclosed in 2019. The omission of additional details in 2018 is set out in the General Report prepared by the OPP, already disclosed to the Applicant by the Crown. There is no evidence before me upon which I could reasonably conclude that the disclosure of the records will provide any other additional information to the Applicant.

Conclusion

[25] I find that the Applicant has not met his onus to demonstrate that the records of the CASHN are likely relevant to an issue at trial. Given my finding that the likely relevant prong of the test has not been met, it is not necessary for me to determine whether production is necessary in the interests of justice.

[26] Application dismissed.

Released: August 21, 2020

Signed: Justice A.D. Hilliard