WARNING
This hearing is governed by section 278.9 of the Criminal Code:
Publication prohibited
Section 278.9(1) provides that 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.
Section 278.9(2) provides that every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.
☒ An order has been made under s. 278.9(1)(c) allowing these reasons to be published, broadcast or transmitted.
Non-Publication and Non-Broadcast Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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.
Court Information
Ontario Court of Justice
Date: November 1, 2020
Court File No.: Ottawa 19-SA4449
Between:
Her Majesty the Queen
— and —
K.T.
Before: Justice P. K. Doody
Heard: October 8, 2020 with additional submissions in writing
Reasons for decision on third party records application (s. 278.3 and O'Connor)
Released: November 1, 2020
Counsel
Miriam Fahim — counsel for the Crown
David Anber and Matthew Wolfson — counsel for the defendant
Kirstin Macrae — counsel for the complainant
Joanna Birenbaum — counsel for record holder Jennifer White
Roberto Ghignone — counsel for record holder hospital
Decision
DOODY J.:
Introduction
[1] The defendant is charged with one count of sexual assault between December 30, 2018 and January 6, 2019.
[2] Both the defendant and the complainant were employees at a hospital. The Crown alleges that on two occasions, the defendant touched the complainant in a sexual manner without consent in a stairwell at the hospital.
[3] The complainant made a complaint of sexual harassment/sexual assault against the defendant under the hospital's Workplace Harassment Policy. The hospital retained Jennifer White, a lawyer and workplace investigator, to conduct an investigation into her allegations.
[4] The defendant has applied for an order requiring production to the court of documents held by the hospital and the investigator relating to the allegations made by the complainant and the investigation conducted by Ms. White. If I order production to the court, I am required to review the documents and, if I conclude that the appropriate standard is met, produce all or some of the documents to the defendant.
[5] The application was made under both s. 278.3 and at common law as an O'Connor application (R. v. O'Connor, [1995] 4 S.C.R. 411), because there is an issue about which of those two production regimes applies to each of the types of documents at issue.
[6] The two regimes are similar in that both require an initial determination of whether the documents are "likely relevant" in order to determine whether they should be produced to the trial judge. If the judge rules that they should be produced, he or she is required to review them and decide whether to provide them to the defendant. The tests for production are somewhat different between the two regimes.
[7] There is another important difference between documents covered by the statutory regime under s. 278.1 to 278.9 of the Criminal Code and documents to which only the common law applies. Sections 278.92 to 278.94 provide that documents relating to the complainant which come in the former group cannot be admitted in evidence in certain sexual offences (including sexual assault) unless a two-stage procedure is followed.
[8] The first stage is a hearing under s. 278.93 to determine whether the evidence is "capable of being admissible". If so, the matter proceeds to the second stage of a hearing under s. 278.94 to determine whether the evidence is admissible. At the first stage, the complainant does not have standing. At the second stage, however, she has the right to retain counsel and "appear and make submissions".
[9] It is therefore important to determine as a preliminary issue whether the documents in issue are covered by the statutory regime.
Record and Process on This Application
[10] Section 278.3 requires the defendant seeking production of documents coming within the definition of "record" in s. 278.1 to serve an application in writing setting out particulars identifying the record sought to be produced and the name of the person in possession or control of it, together with the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify. The statutory provisions do not speak to the type of evidence required to provide the necessary factual basis. Without that factual basis, however, the application is unlikely to succeed, whether the documents in issue come within the definition of "record" in s. 278.1 or not. (R. v. Mills, [1999] 3 S.C.R. 668 at paras. 135 to 137, O'Connor, para. 146).
[11] The Supreme Court of Canada held in Mills at para. 135 that the necessary factual basis could be established through Crown disclosure, defence witnesses, cross-examination of Crown witnesses at the preliminary inquiry (if there is one) and the trial, and expert evidence. Such evidence can also be relied upon to support an O'Connor application seeking access to documents which are not "records" relating to the complainant as defined in s. 278.1. (O'Connor, para. 146).
[12] The record of the defendant seeking production of the documents in issue in this case was sparse. It consisted of factual assertions about the Crown's case and the documents in issue, and attached two documents. At the hearing of this application, the parties agreed on certain facts as set out in their respective written submissions for the purpose of the application. In addition, portions of the Crown disclosure were filed on consent. The facts I set out in this decision are based on those facts.
[13] This is not the way these applications should normally proceed. Respondents to such applications – the Crown, the complainant, and record holders – are entitled to know in advance the evidentiary basis relied upon by the defendant. It is also helpful to the court to be able to see the evidence in advance.
[14] Furthermore, the application was filed late. Sub-section 278.3(5) requires that an application be served at least 60 days before the s. 278.4 hearing (not 60 days before the trial). The Notice of Application was dated August 31, 2020 and was made returnable on October 8, the first day of trial. The trial was set to proceed October 8 and 9, 2020. The application was very late.
[15] It is unrealistic to expect such applications to proceed on the first day of trial. They should be scheduled sufficiently in advance of the trial that all issues which could be raised by the application can be resolved before the trial begins.
[16] If the first stage of the application is successful, the trial judge then has to review the documents to determine whether to produce them to the defendant. They could be voluminous. In this case, they include audio recordings of interviews for which there are no transcripts and therefore must be played in their entirety. The required review may not be able to be done quickly.
[17] If the documents are "records" within the meaning of s. 278.1 and are released to the defendant, they cannot be introduced into evidence until the two stage process set out in s. 278.93 and 278.94 is completed. At the first stage, the trial judge is required to determine whether the evidence is "capable of being admissible". If so, the matter proceeds to the second stage of a hearing under s. 278.94 to determine whether the evidence is admissible.
[18] If that process proceeds to a s. 278.94 hearing, the complainant is entitled to counsel. That requires that the hearing be set on a date at which complainant's counsel is available. That may well mean a further delay to accommodate all counsel's schedules. The judge may not be able to make a decision quickly on either the s. 278.93 or 278.94 stage.
[19] If the documents in issue come within the meaning of "sexual activity" in s. 276(4) – "any communication made for a sexual purpose or whose content is of a sexual nature" – and relate to sexual activity other than that which is the basis of the charge, an application will have to be made under s. 278.93 (and 278.94, if the first is successful) to allow the defence to adduce the document in evidence. The test under s. 278.92 for admission of defence led evidence of other sexual activity is very similar to, but not exactly the same as, the test under s. 276 for admission of "records". (s. 276 (2), and (3); s. 278.92 (2) and (3)).
[20] To the extent possible, all such applications should be heard pre-trial. The issues I must decide on a third party record application involve many of the same issues as on an application to adduce evidence of other sexual activity – weighing competing values including the defendant's fair trial rights, the complainant's right to privacy and personal dignity, and the public interest in encouraging the reporting of sexual offences and the obtaining of treatment by sexual offence complainants. Determining all such issues at once will have the "salutary effect of focussing all parties on the legitimate use of such evidence", as Moldaver J. held in respect of Crown and defence evidence of other sexual activity in R. v. Goldfinch, 2019 SCC 38 at para. 145.
[21] In some cases, the evidentiary issues must be decided in a certain order. In this case, for example, the issue of whether the documents in issue are "records" within the meaning of s. 278.1 must be decided before an application can be brought under s. 278.93 to have them admitted under s. 278.92, because no such application is required if they are not "records". And the s. 278.93 application must be heard before the s. 278.94 application, because the complainant is not entitled to standing at the s. 278.93 hearing, but may have counsel, appear and make submissions at the s. 278.94 hearing.
[22] I recognize that it is not always possible to resolve all such issues before trial. Issues can arise during a trial. The necessary evidence to support an application may not be available before a trial. Pre-trial rulings may have to be changed as a result of a change in circumstances. (R. v. R.V., 2019 SCC 41 at para. 74)
[23] Trials of sexual offences have become procedurally complex. That complexity requires management of the resolution of issues such as those before me. Counsel are expected to be alive to such issues and bring them to the attention of the pre-trial judge at the earliest opportunity so that a reasonable schedule can be either agreed upon or imposed. That schedule should take into account the procedural steps which are or may be required.
[24] The trial in this case was not able to start on October 8. While an attempt was made by the judge conducting a late pretrial to have it proceed in writing, that was not possible for a number of reasons. One of those reasons was the inadequate record, which could only be resolved at an oral hearing. The trial had to be adjourned. I expect counsel to come to the next appearance having had discussions among themselves about a timetable for the next steps.
Documents in Issue and the Parties' Positions
[25] These are the 5 groups of documents in issue, and the parties' positions with respect to whether they are "records" within the meaning of s. 278.1 and whether they should be produced to me for review and determination of whether they should be provided to the defendant:
(a) Audio Recording of Security Manager
An audio recording of the manager of security and parking at the hospital describing what is shown on a video recording of the complainant and the defendant leaving the stairwell in which the sexual assaults are alleged to have occurred on December 30, 2018 and January 1, 2019, held by Ms. White:
(i) the defendant submits that it is not a "record" and seeks its disclosure to me;
(ii) the Crown submits that it is not a "record" but concedes its likely relevance and consents to its disclosure to me; and
(iii) the complainant and Ms. White submit it is a "record" but concede its likely relevance and consent to its disclosure to me.
(b) Video Surveillance and Observation Tool
A form entitled "video surveillance and observation tool" completed by the security and parking manager in which he set out his observations of that video recording, held by the hospital and Ms. White:
(i) the defendant submits that it is not a "record" and seeks its disclosure to me;
(ii) the Crown and the complainant submit that it is not a "record" but concede its likely relevance and consent to its disclosure to me; and
(iii) the hospital and Ms. White submit it is a "record" but concede its likely relevance and consent to its disclosure to me.
(c) Audio Recordings of Interviews
Audio recordings of interviews by Ms. White of her interviews with the complainant and the defendant on March 4, March 12, and April 9, 2019:
(i) the defendant submits that they are not "records" and asks that they be disclosed to me; and
(ii) the Crown, the complainant, the hospital and Ms. White submit that they are "records" but concede their likely relevance and consent to their disclosure to me.
(d) Notes Taken During Interviews
Notes taken by Ms. White during those interviews, held by her:
(i) the defendant submits that they are not "records" and seeks their disclosure to me;
(ii) Ms. White submits that they are "records" and opposes their production to me; and
(iii) the Crown and the complainant submit that they are "records" but concede that they are likely relevant and consent to their disclosure to me.
(e) Workplace Harassment Investigation Form
The "Workplace Harassment Investigation Form" – the complaint form filled by an employee of the hospital and signed by the complainant, recording her complaint under the hospital's workplace harassment policy, held by the hospital:
(i) the defendant submits that it is not a "record" and seeks its disclosure to me; and
(ii) the Crown, the complainant, and the hospital submit that is a "record" but concede its likely relevance and consent to its disclosure to me.
Analysis of Whether the Documents in Issue Are "Records"
(i) The Definition of "Records" – s. 278.1 and s. 278.2
[26] The statutory definition results from reading both s. 278.1 and 278.2 of the Criminal Code.
[27] Section 278.1 is as follows:
For the purposes of sections 278.2 to 278.92, record means 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, but does not include records made by persons responsible for the investigation or prosecution of the offence.
[28] Section 278.2 provides that no record "relating to a complainant" shall be produced to an accused in any proceeding in respect of a number of sexual offences, including sexual assault, without following the procedure set out in sections 278.3 to 278.91.
[29] The documents in issue clearly relate to the complainant. The issues are whether they contain "personal information for which there is a reasonable expectation of privacy" and whether they are "records made by persons responsible for the investigation or prosecution of the offence".
(ii) The Documents Contain Personal Information About the Complainant for Which There Is a Reasonable Expectation of Privacy
[30] Although section 278.1 lists categories of documents which are included in the definition, documents which come within one of those enumerated categories are not "records" unless they contain "personal information for which there is a reasonable expectation of privacy". (R. v. Mills, [1999] 3 S.C.R. 668 at p. 721 and 730-731).
[31] However,
a trial judge is entitled to assume, absent evidence to the contrary, that a reasonable expectation of privacy attaches to any of the records falling within the enumerated categories and that, accordingly, the accused must comply with the provisions in order to gain access to the records.
(R. v. Clifford (2002), 58 O.R. (3d) 257 at para. 49)
[32] The defendant's counsel submits that there is no reasonable expectation of privacy in any of the records sought. He relies on the decision of my colleague Chapman J. in R. v. M.S., 2019 ONCJ 670. Chapman J. set out at para. 50 of her decision a list of factors to be considered in determining whether a document in issue was one in which the complainant had a "reasonable expectation of privacy". Those factors, along with other considerations, have been applied in a number of other decisions – R. v. Marello, [2020] O.J. No. 3617 (O.C.J.); R. v. A.M., 2020 ONSC 4541; R. v. B.H., 2020 ONSC 4533; R. v. T.A., 2020 ONSC 2613, among others.
[33] Defence counsel submitted, using the items on the list, that the expectation of privacy by the complainant in the documents in issue was necessarily limited. The information was voluntarily provided by the complainant. It was not a typical employment record, because it was not related to a hiring, firing, disciplinary or pay decision related to the complainant. The complainant knew that the information would be used by the employer in making a decision about her complaint.
[34] The parties submitting that the documents in issue are ones in which the complainant has a reasonable expectation of privacy assert that they are "employment" documents.
[35] All parties agreed that the following statements contained in the hospital's and Ms. White's responses to this application were accurate:
[The hospital's] Workplace Harassment Policy is designed to ensure that all complaints can be addressed in a confidential manner with all practicable steps taken to protect the privacy of the individuals involved and particularly the complainant.
The [hospital] Workplace Harassment Policy provides as follows with respect to the confidentiality of investigations into workplace harassment, including sexual violence:
Confidentiality:
All investigatory interviews will be held in a private area and all information obtained and recorded will be dealt with confidentially.
Confidentiality will be maintained to the extent practicable and appropriate in the circumstances of any complaint, recognizing that disclosure of sufficient information to the Respondent is required to allow for an informed reply. Unauthorized disclosure of facts or opinions regarding the complaint to individuals outside of those who have a need to know is prohibited and any breach of the obligation of confidentiality will be considered to be serious and will be managed in a disciplinary fashion.
In investigations undertaken by Ms. White, and in the investigation involved in the charges herein, witnesses either signed the confidentiality undertaking attached at Tab A hereto prior to being interviewed or confidentiality was discussed with them over the phone.
[36] The confidentiality undertaking included confirmation by the witness that he or she had been advised to keep confidential everything discussed in his meeting with Ms. White, including the fact that there was an ongoing investigation, the subject matter of their discussion, and the specific questions that were asked. The witness acknowledged that failure to maintain confidentiality could jeopardize the investigation process and may subject the witness to disciplinary sanctions.
[37] The hospital's Workplace Harassment Policy, and the investigation carried out by Ms. White, were mandated by law. Sections 32.01(1)(b), 32.0.6 and 32.07 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 require every employer to prepare a policy with respect to "workplace harassment" and develop a program to implement it. The program must include procedures for workers to report incidents of workplace harassment to the employer and set out how incidents of workplace harassment will be investigated and dealt with. Employers are required to ensure that an investigation is conducted into incidents and complaints of workplace harassment.
[38] "Workplace harassment" is defined by s. 1 of the Occupational Health and Safety Act to mean:
(a) Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or
(b) Workplace sexual harassment.
[39] "Workplace sexual harassment" is defined to mean:
(a) Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
(b) Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that he solicitation or advance is unwelcome.
[40] The complaint of "sexual assault/sexual harassment" made by the complainant to the hospital comes within the definition of "workplace harassment" in the Occupational Health and Safety Act. Paragraph 32.0.6(2)(d) of that statute mandates confidentiality for such complaints. It states that the required workplace harassment policy shall
set out how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law.
[41] The determination of whether documents are ones in which the complainant has a reasonable expectation of privacy is necessarily fact specific. In this case, I have no difficulty in concluding that the complainant has a reasonable expectation of privacy in the documents created because of her complaint under the policy.
[42] The policy was designed to ensure that all complaints can be addressed in a confidential manner with all practicable steps taken to protect the privacy of the individuals involved and particularly the complainant. She was told that all information she provided would be treated confidentially, that confidentiality would be maintained to the extent practicable and appropriate in the circumstances, and that unauthorized disclosure of facts or opinions regarding the complaint to individuals outside of those who have a need to know was prohibited. The provincial statute requires that "any information obtained" about a complaint not be disclosed unless necessary for the purposes of investigating or taking corrective action with respect to it or "is otherwise required by law".
[43] The privacy protections promised in the policy, and mandated by the statute, are not absolute. They recognize that the information may have to be disclosed in some situations. As the Supreme Court of Canada held in R. v. Quesnelle, 2014 SCC 46 at para. 37, however, dealing with police occurrence reports:
Privacy is not an all or nothing concept; rather, "[p]rivacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged" (Mills, [, [1999] 3 S.C.R. 668] at para. 108). Consequently, the fact that information about a person has been disclosed to a third party does not destroy that person's privacy interests. Because the contents of occurrence reports will be disclosed under certain circumstances does not mean that there is not a reasonable expectation of privacy in those records.
[44] In my view, the complainant has a reasonable expectation of privacy in these documents.
[45] I reach this conclusion in respect of all of the documents in issue.
[46] It was submitted that the complainant did not have a reasonable expectation of privacy in the documents in which the hospital employee described what was shown on the video of the complainant and the defendant exiting the stairwell, because they simply recorded what would have been apparent to anyone who was in the area at the time. The documents, however, were created because of the complaint, for use in the investigation. They contain "information about a complainant" relating to the complaint. That information comes within the confidentiality confines of the Occupational Health and Safety Act.
(iii) The Documents Are "Records Made by Persons Responsible for the Investigation or Prosecution of the Offence"
[47] Crown counsel submitted that the exemption "applies only to records made by the police or prosecution and in the investigation of the offence in question." (emphasis in Crown counsel's written submission).
[48] She relies on the decision of the Supreme Court of Canada in Quesnelle, in which the court held that police occurrence reports created during the investigation of offences other than the charge before the court did not fall within s. 278.1, because the exemption applied only to records made in relation to the "offence at issue". Crown counsel relies on paragraphs 50 and 51 of the decision, where Karakatsanis J. wrote that
the exemption applies to records made by police or prosecutors in relation to the offence at issue.
[49] Defence counsel did not accept Crown counsel's submission that the exemption applied only to records made by police. He submitted that the documents were "records made by persons responsible for the investigation or prosecution of the offence because Ms. White was a "person responsible for the investigation … of the offence."" She was, he submitted, investigating the offence because the factual allegations she was investigating were the same as those at issue in the criminal charge before me.
[50] He submits, relying on the principle of statutory interpretation set out in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 that Parliament uses words carefully and consistently, that the word "persons" must mean something different than "peace officer" or "police", both of which appear elsewhere in the Criminal Code ("peace officer" very frequently). Consequently, he submits, the excluding phrase is not limited to records made by police.
[51] The issue before the Supreme Court in Quesnelle was not whether the exemption applied only to police. It was whether all records made by police were exempted from the s. 278 regime, or whether it was only police records related to the offence in issue. The Court was not asked to, and did not, decide that the exemption applied only to police created records.
[52] Nor was that issue decided in any of the cases cited by Crown counsel for the proposition that the exemption applies only to records created by the police: R. v. Lockhart, 2018 NLCA 72; R. v. M.(L.), 2014 ONCA 640; R. v. N.(R.), 2017 ONSC 2446; R. v. Levin, 2014 ABCA 142; R. v. Leykin, 2010 ABQB 631; R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.); R. v. M.(D.) (2000), 37 C.R. (5th) 80 (ONSC); R. v. K.(A.J.), 23 O.R. (3d) 582; R. v. M.S., 2019 ONCJ 670.
[53] The only case I was able to locate on this issue was R. v. Oakes, 2020 SKPC 23. In that case, the Crown argued that it was prohibited by s. 278.2 from disclosing to the defence the sexual assault evidence kit prepared by medical professionals who examined the complainant, because the complainant had a reasonable expectation of privacy in those records. Kovatch Prov. Ct. J. held that the sexual assault evidence kit did not come within the s. 278 regime, and must be disclosed to the defence pursuant to the principles set out in R. v. Stinchcombe. He wrote at para. 18:
The underlined portion of section 278.1 clearly indicates that "records made by persons responsible for the investigation or prosecution of the offence" are not a record so that section 278.2 would have no application to them. The general occurrence report quoted at length above, clearly states that the nurse practitioner performed the sexual assault kit and that the entirety of the sexual assault kit was immediately turned over to Cst. Stregger of the Fort Qu'Appelle RCMP. It is my understanding (from another case) that the Police prepare and provide the sexual assault kits to the hospitals. Medical personnel complete the kits and turn them over to the Police. I do not know how it could be contended that this sexual assault kit was not prepared for a person responsible for the investigation or prosecution of this offence.
[54] This decision does not expressly conclude that a "person responsible for the investigation or prosecution of the offence" need not be a police officer. It rests on a conclusion that the medical professionals who compiled the record did so as agents of the police. The records in issue, however, were made by persons who were not police officers.
[55] It is useful to consider the purpose of the exemption. As Watt J.A. wrote in R. v. Stipo, 2019 ONCA 3:
175 It is well settled that statutory interpretation cannot be founded on the wording of the legislation alone. Instead, the approach is that advocated by Elmer Driedger in his Construction of Statutes (2nd ed, 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18.
176 This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu, at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.
[56] Karakatsanis J. explained the purpose of the exemption contained in the definition of "record" at paras. 54 to 56 of Quesnelle:
54 The Mills regime serves two goals: first, the regime protects the privacy of complainants and witnesses, and second, it preserves the fair trial rights of the accused.
55 The definition of "record" in s. 278.1 serves a gatekeeping function within the regime. The reasonable expectation of privacy test sweeps in records that merit the protection afforded by the Mills regime. The exemption further contributes to the gatekeeping role of the section by bypassing the balancing process for records that Parliament recognized should always be produced.
56 Records created in the investigation of the offence are presumptively relevant to an issue at trial and it is in the interests of justice for the case against the accused to be disclosed to the defence. There is no need to consider such records under the second step of Mills because they will always be produced anyway -- the exemption is eminently logical. However, for records unrelated to the offence at issue, the balancing exercise will often have important work to do. The rationale for the exemption does not apply, and to bypass the balancing process on the grounds that the document was made by the same police force that investigated the claim would not accord with the goals of the scheme.
[57] Defence counsel submits that Ms. White investigated the defendant and the complainant for what was a prima facie case of sexual assault – that "whether or not the primary purpose was pursuant to a policy of the [hospital], Ms. White made records in order to investigate a crime." He submits that the records created by Ms. White are directly related to the offence at issue and therefore should be produced because "they will always be produced anyway".
[58] I do not accept that submission. The records created by Ms. White, or another person appointed to investigate a complaint of sexual harassment which alleges facts which overlap those at issue in a criminal charge, will not "always be produced anyway". She was investigating an allegation of breach of the sexual harassment policy of the complainant's employer. While that would have included the facts at issue in the charge before me, it may well have involved other issues. The documents, in all likelihood, contain information which engages the interests protected by the s. 278 regime.
[59] The same is true for documents created by other persons who investigate allegations which overlap with those at issue in a criminal prosecution. As one example, the Children's Aid Society may investigate allegations that children are in need of protection which may involve what amounts to criminal offences, but may go well beyond those allegations.
[60] The question of whether such records should be produced to the defendant requires a balancing exercise like the one mandated by s. 278.5 and 278.92 – the balancing exercise which, as Karakatsanis J. wrote, is the purpose of the s. 278 regime.
[61] The same is not true for records created for the investigation which led to the charges against the defendant. The facts to which those records relate are, by their nature, the very issue before the criminal court and will, as Karakatsanis J. wrote, "always be produced anyway."
[62] I conclude that the determining factor in the issue of whether the exemption applies is, in deciding the issue before me, the same as it was for the issue before the Supreme Court in Quesnelle – the purpose for which the records were created. If the document in issue was made for the purpose of investigating the offence before the court – the criminal offence – it is exempted from the application of the regime which requires the particular scrutiny and procedures mandated by s. 278 to 278.92. If the document in issue was made for another purpose it is not exempted and will be subjected to that scrutiny and those procedures so long as it is a document in which the complainant has a reasonable expectation of privacy.
[63] I conclude, however, that if Parliament had intended to limit the exemption to the police, it would have said so. It used the word "person" rather than "peace officer" or "police". The purpose of the exemption does not require that it be limited to police.
[64] The documents in issue were not made for the purpose of investigation of the offence before the court. I conclude that they are not covered by the exemption. Since they are documents in which the complainant has a reasonable expectation of privacy, they are subject to the s. 278 regime.
The Law Relating to s. 278.3 Applications
[65] The process described in s. 278.1 to s. 278.9 is a two step process.
[66] This application is the first step. It is governed by subsection 278.5(1), which provides that the judge who hears the trial may order the record holder to produce the record for review by the judge if the judge is satisfied that "the accused has established that the record is likely relevant to an issue at trial" and "the production of the record is necessary in the interests of justice."
[67] If the applicant meets the first step, the records in issue are produced to the judge for his or her review. The judge may only order that the record be produced to the defendant if, after review of the records, the judge is satisfied that the record or part of the record is likely relevant to an issue at trial and its production is necessary in the interests of justice. We are not at that step.
[68] Subsection 278.5(2) provides:
(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, personal security and equality of the complainant or witness, as the case may be, and of 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.
[69] Sub-section 278.3(4) is important to any understanding of the statutory scheme. It provides:
(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:
(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.
[70] The process established by these provisions followed the decision of the Supreme Court of Canada in O'Connor, which established the common law rules governing applications by criminal defendants to records in the possession of parties other than the Crown. These provisions replace that scheme, but only for certain offences, including sexual offences and any trial in which a sexual offence is one of the counts.
[71] In R. v. Mills, [1999] 3 S.C.R. 668, the Supreme Court upheld the constitutionality of the legislative scheme. The court also provided guidance on the meaning of many of the provisions in issue. It held:
♦ In assessing applications for production, courts must determine the weight to be granted to the interests protected by privacy and full answer and defence in the particular circumstances of each case. Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high. A complainant's privacy interest is very high where the confidential information contained in a record concerns the complainant's personal identity or where the confidentiality of the record is vital to protect a therapeutic relationship. (para. 94)
♦ Subsection 278.3(4), and its list of "assertions" that "on their own" are not sufficient to establish that a record is likely relevant to an issue at trial do not prevent a defendant from relying on those assertions where there is "an evidentiary or informational foundation to suggest that they may be related to likely relevance". The provisions require only that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial. Even then, however, the trial judge has a discretion whether to order production to him or her for review – to decide whether production is "necessary in the interests of justice". (para. 120)
♦ Counselling or therapeutic records can be highly subjective documents which attempt merely to record an individual's emotions and psychological state. Often such records have not been checked for accuracy by the subject of the records, nor have they been recorded verbatim. These considerations may help a trial judge when considering the probative value of a record sought by an accused. (para. 136)
♦ Courts must as a general matter ensure that the defendant can obtain all pertinent evidence required to make full answer and defence, and must be wary of the danger of putting the defendant in a Catch-22 situation in seeking to obtain such evidence. Where there is a danger that the defendant's right to make full answer and defence will be violated, the trial judge should err on the side of production to the court. (para. 137)
[72] In Mills the Supreme Court mandated a nuanced interpretation of the statutory provisions, balancing the competing interests in protecting the innocent by ensuring access by the defendant to evidence which is relevant as a matter of logic (and not to evidence which is relevant only by outdated myths and assumptions) and protecting the complainant's legitimate and reasonable expectations of privacy.
[73] The Court of Appeal, in R. v. W.B. (2000), 49 O.R. (3d) 321, (also sometimes entitled R. v. Batte) provided further interpretation of the statutory provisions in light of the Supreme Court decision in Mills. W.B. was an appeal from conviction on charges of indecent assault and rape on two sisters in 1979, some 14 years before the allegations were brought to the attention of the police. The case turned almost entirely on the evidence of the complainants, who were 13 years old at the time of the offences. The trial judge refused to order production of records held by the Family Violence Treatment Center in Orangeville of various counselling sessions involving the two complainants. He applied the test set out by the British Columbia Court of Appeal in O'Connor, since the trial took place before the Supreme Court of Canada decision in that case (and before the enactment of the statutory scheme at issue here). In his reasons, Doherty J.A. dealt with the new statutory scheme as well.
[74] The court upheld the convictions, holding that the trial judge had not erred in refusing to order production of the records, although it was clear from the evidence that the records (at least with respect to one complainant) contained references to the alleged abuse and to factors which could impact on her credibility. The potential evidentiary value of the records lay in their potential to refresh the memory of the complainant or impeach her credibility. However, there was no evidence that the counselling process precipitated or contributed to the complainant's decision to go to the police; that it played any role in reviving refreshing or shaping the memory of the complainant; or that the complainant suffered from any emotional or mental problem which could have any impact on her reliability or veracity.
[75] Doherty J.A. wrote at paras. 70 to 72 of reasons concurred in by Chief Justice McMurtry and Justice Rosenberg:
70 The appellant's position with respect to the likely relevance of the records must come down to this. The records contained statements made by D.S.D. that referred to the alleged abuse and to matters affecting her credibility. Anything said by D.S.D. about the abuse or about a matter which could affect her credibility passes the likely relevance threshold, even absent any suggestion that the statements differ from or add anything to the complainant's statement and testimony at the preliminary hearing.
71 If the likely relevance bar is that low, it serves no purpose where the records relate to counselling or treatment connected to allegations of sexual abuse. It is impossible to imagine that such records would not contain references to the alleged abuse or matters that could affect the credibility of the complainants' allegation of abuse. In my view, the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.
72 I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold 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 have some potential impeachment value. To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the purposes of determining the Crown's disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.
[76] Justice Doherty stated the following at paragraphs 75 to 77 after citing the section in Mills which held that, under the new scheme, the defendant need only point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial:
75 The determination of likely relevance under the common law scheme requires the same approach. The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.
76 The requirement that an accused be able to show that the statements contained in the record have some potential to provide added information to the accused or some potential to impeach the credibility of the complainant is not an onerous one. For example, in this case, the appellant had the initial statement given to the police by D.S.D. before she commenced therapy. He also had a transcript of her lengthy examination-in-chief and cross-examination at the preliminary inquiry taken after she commenced therapy. Had counsel shown material differences between the initial statement and the preliminary inquiry testimony, these differences coupled with the fact that the complainant spoke to a therapist about these matters between the giving of the statement and giving any evidence at the preliminary inquiry may have established that statements she made to the therapist touching on matters relevant to her credibility had potential impeachment value and were, therefore, likely relevant. Similarly, had the appellant been able to produce evidence suggesting a connection between the evidence given by the complainant at the preliminary inquiry and the sessions with her therapist, this would also have established potential impeachment value.
77 It will not, however, suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant's credibility. The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value. In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant's statement will have some probative value in the assessment of her credibility.
[77] In R. v. P.E., [2000] O.J. No. 574, an earlier decision written by "the Court" with a different panel (Justices Weiler, Rosenberg and Feldman), the Court of Appeal held that a trial judge hearing an indecent assault trial did not err in refusing to order production of notes taken by a physiotherapist who had provided the complainant with counselling over a period of almost two years. The court noted that the Supreme Court, in Mills, held that the defendant could rely on the list of assertions set out in s. 278.3(4) "where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance." The Court wrote at para. 16:
There is no such foundation. As we have pointed out, there is nothing to suggest that the complainant had recovered these memories of abuse or that the counselling had influenced her memory. The submissions made on the application at trial and on this appeal amount to nothing more than bare assertions. There is, in the words of Mills, "no case-specific evidence or information to show that the record in issue is likely relevant to an issue at trial".
[78] Justice Casey Hill applied these principles in R. v. D.M., [2000] O.J. No. 3114, 37 C.R. (5th) 80 (S.C.J.). In a trial for sexual assault and sexual touching of the defendant's niece, allegedly occurring some 5 to 7 years before the trial, the defendant sought production of the complainant's diary and counselling records from Child and Family Services. After the alleged sexual abuse had concluded, the complainant had asked her mother's boyfriend whether a girl was still a virgin if she had been fingered or had a penis rubbed on her. He gave her the diary to record, if she was disposed to do so, anything that had occurred to her. The evidence presented also showed that she had seen a child and family counsellor, not a doctor, at some point. A synopsis of a statement from the counsellor indicated that the counsellor had told the complainant that only one in ten persons who had been sexually assaulted reported the crime and that, as a result, the complainant disclosed to the police so that no one else would be hurt by the applicant.
[79] Relying on the reasons of L'Heureux-Dubé J. in O'Connor, Justice Hill found that therapeutic records relating to the counselling of sexual abuse victims retain a high expectation of privacy. He held that unsupported at-large assertions that the counselling records are likely relevant to the complainant's credibility or to the discovery of a prior inconsistent statement fail to meet the threshold standard for review. He wrote:
59 The mere existence of counselling or treatment records does not clear the likely relevant hurdle certainly in the sense of an expectation that a therapist's notes will constitute an accurate record of a complainant's statements regarding the alleged abuse. This is especially so as the focus of therapy is not upon investigation but rather a process with emphasis on exploring a complainant's emotional and psychological responses to events: O'Connor v. The Queen, supra at 52, 64-5, 72.
60 I am unable, on the application record presented, to agree with the defence submission that there is a real possibility that Ms. Williamson's file will support a motive by D.G. to fabricate sexual abuse by the applicant.
61 In this case, the evidentiary record for production for review operates at the level of speculation not unlike the failing applications in Regina v. B.(W.) and Regina v. E.(P.), [2000] O.J. No. 574 (C.A.). To grant the order sought on the material presented would in effect condone routine production for review orders without a reasonable possibility of advancing full answer and defence while creating prejudicial consequences and possible revictimization for a sexual assault complainant.
Analysis of Whether the Records Should Be Produced for Review by the Court
[80] All parties, including the complainant and the record holders, have conceded that 4 of the 5 sets of records in issue are likely relevant and that they should be produced for me for review:
the audio recording of the manager of security and parking describing what is shown on a video recording of the complainant and the defendant leaving the stairwell in which the sexual assaults are alleged to have occurred on December 30, 2018 and January 1, 2019, held by Ms. White;
a form entitled "video surveillance and observation tool" completed by the security and parking manager in which he set out his observations of that video recording, held by the hospital and Ms. White;
audio recordings of interviews by Ms. White of the complainant and the defendant on March 4, March 12, and April 9, 2019, held by Ms. White; and
the "Workplace Harassment Investigation Form" – the complaint form filled by an employee of the hospital and signed by the complainant, recording her complaint under the hospital's workplace harassment policy, held by the hospital.
[81] I have decided that I will order those records produced to me for review because all of the parties have consented to that order. I note that arguments could have been advanced that those records are not "likely relevant" as that concept has been explained in the cases I have cited. The defendant proceeded on the basis that there was a consent to his application for production of those records. Had that not been so, he may well have led more evidence or made different submissions. In the circumstances, the only fair conclusion I can reach is that the records are likely relevant and their production to me is necessary in the interests of justice. I so order.
[82] The only record in issue on the first stage of this application is, therefore, the investigator's notes taken by her during her interviews of the defendant and the complainant.
[83] Counsel for Ms. White submits that the notes are superfluous. Her interviews with the defendant and complainant were recorded. The recordings will be produced. Ms. White's notes contain nothing which is not in the recordings. She also submits that even if her notes contained anything other than what had been recorded, they should not be produced. Unlike a police officer's notes, they were not made with the expectation that they would be produced or relied upon for factual determinations. They were made for Ms. White's own purposes and are like the notes made by a judicial officer during a trial. There was no requirement that they would be verbatim – that was why the interviews were recorded.
[84] Defence counsel submits that the notes made by Ms. White are relevant because they cover the same subject matter as the audio recording of the interviews. He asks, rhetorically, if the notes are the same as the audio what is the harm in letting us find out? He submits that she may have made notes of non-verbal things like one of the witnesses wagging their head or their demeanour which may be useful.
[85] I do not accept defence counsel's submissions. The onus is on the defendant to establish the likely relevance of the notes. Possibility of relevance does not meet the standard. The defendant can point to no case-specific evidence to support his assertion that the notes are likely relevant. The audio recordings will be produced. They are the best evidence of what the defendant and complainant said. Demeanour is of limited utility to assess credibility and reliability even for a judge who sees the witness testify. It is of even less use when it is a third party's assessment of those things, as contained in notes not intended to be used by someone else. I cannot find that the investigator's notes are likely relevant.
Conclusion
[86] All of the records in issue have been filed as sealed exhibits. I will review all of them except Ms. White's notes of her interviews with the defendant and the complainant to determine whether they should be produced to the defendant under s. 278.7.
[87] The parties are to appear before me on Thursday, November 5, for a case management conference. I will hear from them at that time as to whether I should hold a hearing under s. 278.6(2) to determine whether the records, or part of them, should be released to the defendant. I note that the parties would not be privy to the records for that hearing other than ones to which they already have access.
[88] I expect counsel to come to the case management conference with proposed dates for a s. 278.6 hearing if necessary, together with a s. 278.93 hearing and, if necessary, a s. 278.94 hearing if the defendant anticipates applying to admit in evidence under s. 278.92 any records I order be disclosed to him. These dates should be sufficiently far in advance that I will be able to have reviewed the records in issue, disclosed them to the defendant, and allowed his counsel to prepare a s. 278.93 application. They should also have obtained dates for trial sufficiently after the potential s. 278.94 hearing. This is necessary in order to get this trial back on track and expedite its conclusion.
[89] I have considered whether I should allow these reasons to be published as provided for in s. 278.9(1)(c). It is in the interests of justice that judicial decisions in this area, which is evolving as a result of the introduction of s. 278.92 by Bill C-50 in 2018, should be publicized so that the law will continue to evolve. I have been careful to ensure that no identifying information about the complainant appears in these reasons. I order that these reasons may be published.
Released: November 1, 2020
Signed: Justice P. K. Doody