Publication Warning and Order

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

This hearing is also governed by section 278.9 of the Criminal Code, which provides as follows:

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.

☒ An order has been made under s. 278.9(1)(c) allowing these reasons to be published, broadcast or transmitted.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 12 31 COURT FILE No.: Toronto 20-55001542

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DIEGO DONCEL

Before: Justice Peter N. Fraser

Heard on: November 18 & 22, December 7, 2021 Reasons for Judgment released on: December 31, 2021

Counsel: A. Rajan, counsel for the Crown D. Gravesande, counsel for the accused Diego Doncel S. Rahim, counsel for the complainant R.W.

Reasons for Judgment

Fraser J.:

[1] The applicant stands charged with committing a sexual assault against R.W. on May 27, 2020. He applies, pursuant to s. 278.3 of the Criminal Code, for production of various third-party records relating to the complainant. Counsel for the complainant, together with the Crown, oppose the production of any records to the defence.

[2] In cases of sexual assault, applications for production of third party records are governed by sections 278.1 to 278.91 of the Criminal Code, commonly known as the Mills regime. Production of such records follows a two-stage process under the statutory scheme: (1) disclosure to the judge pursuant to s. 278.5 and (2) production to the accused under s. 278.7: R. v. Mills, [1999] 3 S.C.R. 668 at para. 53; R. v. Quesnelle, 2014 SCC 46 at para. 15.

[3] On November 25, 2021, I ordered that a narrow subset of the records sought by the applicant be produced to the Court for review pursuant to s. 278.5 of the Code: R. v. Doncel, 2021 ONCJ 667. Specifically, I ordered production of any record of a formal assessment or diagnostic evaluation of the cognitive functioning of R.W. in the possession of the Centre for Addiction and Mental Health, Surrey Place or the Department of Neurology at the Toronto Western Hospital.

[4] I reviewed the materials produced by those record holders in the absence of the parties, as the legislative scheme directs. I also convened a hearing, pursuant to s.278.6(2) of the Code. As a result, I have the benefit of submissions from all counsel about which, if any, records ought to be disclosed to the defence and what conditions ought to be attached to that disclosure if ordered.

[5] On December 7, 2021, I released the following endorsement ordering certain records disclosed to the defence pursuant to s. 278.7(1) of the Code, with reasons to follow:

Pursuant to section 278.7(1), I will order part of the records from Surrey Place be disclosed to the defence.

I decline to order disclosure of any records from the Centre for Addiction and Mental Health to the defence in this case. Similarly, I decline to order disclosure of any records from the Department of Neurology at the Toronto Western Hospital to the defence.

Pursuant to section 278.7(3), I impose the following condition on the records which are disclosed: the accused and counsel for the accused must not disclose the contents of the records to any other person, except with the approval of the Court.

[6] These are my reasons for the foregoing decision, as mandated by section 278.8 of the Code.

[7] Stage two of the Mills regime is governed by section 278.7 of the Criminal Code, which provides as follows:

Judge may order production of record to accused

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).

Factors to be considered

(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, personal security and equality of the complainant or witness, as the case may be, and of 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.

[8] The factors referred to in s. 278.5(2) are as follows:

(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.

[9] The considerations at stage two of the Mills regime mirror those from stage one: R. v. K.C., 2021 ONCA 401 at paras. 35-37. In my previous ruling at stage one, I explained the basis on which I ordered records produced to the Court for review: R. v. Doncel, supra. I incorporate those reasons by reference into my decision here.

[10] In very brief summary, I found there was a live issue as to the complainant’s capacity to testify and that a narrow set of records were likely relevant to that issue. I defined that set to include any record of a formal assessment or diagnostic evaluation of the cognitive functioning of R.W. In addition, I found the same set of records were likely relevant to an issue at trial; namely the credibility and reliability of the complainant. I further found that production of those limited materials to the Court for review was necessary in the interests of justice.

[11] I must now re-evaluate the interests engaged, in light of the actual contents of the documents I have reviewed. I must also be mindful of the deeper intrusion into the complainant’s sphere of privacy that disclosure of these records to the defence would represent.

[12] Upon review of the records, I continue to be of the view that the materials identified in my previous order are likely relevant to the issue of the complainant’s capacity to testify, as well as to her credibility and reliability at trial.

[13] One record in particular, a psychological assessment report produced by Surrey Place in September 2010, falls squarely within the scope of my order. This record represents the result of a “neuropsychological assessment to determine cognitive strengths and weaknesses, and to identify potential executive functioning deficits” with respect to the complainant. The document reveals R.W.’s performance in a comprehensive series of clinical tests aimed at measuring various mental faculties. In my view, this information speaks directly to the issues engaged in this case. And while this assessment report is dated, there is no comparable document in the records that is more recent. Having considered all of the factors set out above, I conclude that disclosure of this record to the accused is necessary in the interests of justice.

[14] Some other items produced by Surrey Place could also be construed as assessments of R.W.’s cognitive functioning. However, these materials represent more brief and informal evaluations of the complainant. And they pre-date even the 2010 assessment by several years. In my view, these records have little relevance to the issues in question here and I decline to order their disclosure to the defence.

[15] The records produced by CAMH might be captured by a generous interpretation or my order; however, the contents are more in the nature of a clinical history than a formal assessment of the R.W.’s cognitive function. Moreover, the documents provided are very dated. This material offers little to no assistance in respect of the issues that I found justified production to the Court for review. As a result, the balance of interests I am tasked to consider weigh against disclosure to the accused.

[16] The records produced by the Department of Neurology at the Toronto Western Hospital do not properly fall within the ambit of my order. Those materials do not reflect formal assessments or diagnostic evaluations of the cognitive functioning of R.W. In the result, I decline to order disclosure of those records to the defence.

[17] In conclusion, I will release the 2010 psychological assessment report from Surrey Place to the defence. Pursuant to s. 278.7(3)(a) of the Code, I will redact some limited portions of the document for which disclosure to the defence is not necessary in the interests of justice.

[18] Pursuant to section 278.7(3), I order that the accused and counsel for the accused must not disclose the contents of the record to any other person, except with the approval of the Court.

[19] No further records will be disclosed to the defence in this case.

Released: December 31, 2021 Signed: Justice Peter N. Fraser