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, S.C. 2002, c.1 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

112. 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 Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

WARNING

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

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

Publication prohibited

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

( c ) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

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

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

ONTARIO COURT OF JUSTICE Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c.1, as amended.

DATE: January 20, 2022 Toronto

BETWEEN:

Q.F., a young person, Applicant

and

HER MAJESTY THE QUEEN, Respondent

Before: Justice Sheilagh O’Connell

Heard on: December 9, 2021 Reasons released on: January 20, 2022

Counsel: Allison P. Williams, Justice for Children and Youth……………………for the Applicant Sara De Filippis……………………………………………………………. for the Crown Dawne P. Way……………………………………………………for J.P., the Complainant

O’CONNELL, J.:

1. Introduction:

[1] This is a third-party records application. The applicant, Q.F., a young person, has brought an application pursuant to section 278.3 of the Criminal Code for the production of the therapeutic records of Dr. Michele Foster regarding the complainant J.P.’s past and current therapy sessions with Dr. Foster.

[2] The Applicant also seeks any relevant prior police occurrence reports regarding J.P.

[3] Q.F. is charged with sexually assaulting J.P. It is alleged that on March 6, 2020, Q.F. and J.P. attended a small party and while there engaged in sexual activity that was non-consensual. Several months later, in October of 2020, J.P. made a report to the police that she had been sexually assaulted. Q.F. was charged on January 5, 2021.

[4] This decision relates to the first stage of the analysis under the section 278 regime, that is, a determination of whether the production of the records are likely relevant to an issue at trial or to the competence of a witness to testify, and therefore, whether the disclosure of the record to the Court for review is necessary in the interests of justice.

[5] Argument of the first stage of the analysis took place on December 9, 2021. The hearing was held in camera in accordance with section 278.4 (1) and (2) of the Code. The second stage of the analysis was adjourned to December 17, 2021.

[6] On December 15, 2021, I delivered an endorsement dismissing the application at the first stage, with reasons to follow. These are my reasons.

2. The Position of the Parties:

[7] Q.F. submits that he requires access to the third-party records in order to have the opportunity to make a full and fair defence in accordance with his section 7 and 11(d) Charter rights. The documents are likely relevant to the issues at trial and the credibility of the complainant. The likely probative value of the records’ production and disclosure outweighs any deleterious effects.

[8] J.P. and the Crown submit that the application should be dismissed because Q.F. has not met the onus on him to demonstrate that the therapeutic records are likely relevant. There is no evidentiary basis that the records are likely relevant to the credibility of the complainant. There is no evidence that the counselling had any bearing on the complainant’s report of the allegations.

[9] Regarding the occurrence reports, J.P. submits that there is also no basis to meet the likely relevance test. The assigned Crown initially took the position that one of the two police occurrence reports relating to the complainant was relevant. Upon closer examination of the content of the occurrence report, the Crown now submits that it is completely irrelevant to any trial issue, as is the other report.

3. The Law and Governing Principles:

[10] Section 278 of the Criminal Code is the statutory regime for the production and disclosure of third-party records in sexual assault cases. It is a two-stage process. First, the judge must decide whether to order production to the court. If the judge orders production, then she must examine the records and then decide whether to order disclosure to the defence. See R. v. Mills, [1999] 3 SCR 668 at paragraph 45.

[11] It is not disputed that Q.F. seeks third-party records that meet the definition of “record” in section 278.1 of the Code. A “record” is defined as “any form of record that contains personal information for which there is a reasonable expectation of privacy” and includes “medical, psychiatric, therapeutic, counselling,” among several other enumerated categories. Further, in R. v. Quesnelle, 2014 SCC 46, [2014] 2 SCR 390 (SCC), the Supreme Court of Canada confirmed that police occurrence reports that are not directly related to the charges against the defendant are also records under section 278.1.

[12] The records are presumptively inadmissible. Subsection 278.2(1) provides that no third-party records relating to a complainant or a witness as defined above shall be produced to an accused in sexual assault proceedings, and other enumerated offences. The onus is on the accused to demonstrate that the records should be produced for review by the judge.

[13] Q.F. has followed the correct procedure under the statutory regime. The issue is whether Q.F. has met the legal threshold under subsection 278.5 (1). This section states that a judge may order the person who has possession or control of the record to produce the record to the court for review by the judge if, after the hearing the judge is satisfied that:

a. the accused has established that the record is “likely relevant to an issue at trial or the competence of a witness to testify”; and

b. the production of the record is “necessary in the interests of justice”.

Likely Relevance:

[14] In order to establish that a record is “likely relevant” an accused must show that there is a “reasonably possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.” See R. v. O’Connor, [1995] 4 S.C.R. 411, at paragraph 22; R. v. Mills, [1999] 3 SCR 668 at paragraph 124.

[15] Relevance to an issue at trial refers “not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events), but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case.” See R. v. O’Connor, supra, paragraph 22.

[16] While the “likely relevance threshold” is significant, it should not be overly onerous. See R. v. W.B., [2000] O.J. No. 2184 (O.C.A.) at paragraphs 53 [1]. However, the accused cannot rely on speculative assertions or stereotypical assumptions. See R. v. W. B., supra, at paragraph 65.

[17] As was noted by the Ontario Court of Appeal in R. v. M.L., 2014 ONCA 640 at paragraphs 44 and 45, the “likely relevance” test will be satisfied only if the accused is able to point to case-specific information that goes beyond merely establishing that the complainant spoke to a counsellor or therapist about the alleged assault or abuse.

[18] This is because it has long been recognized that counselling and therapeutic records are created by a third party for purposes unrelated to any police investigation or prosecution. Furthermore, there is a high expectation of privacy attached to records relating to therapeutic records. See R. v. O’Connor, [1995] S.C.J. No. 98 (S.C.C) at paragraphs 7 to 8.

[19] Subsection 278.3(4) provides that any one or more of the following assertions below 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.

[20] In R. v. Mills, supra, at paragraph 118, Justice McLachlin noted that subsection 278.3 (4) “does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on ‘bare assertions’ of the listed matters, where there is no other evidence and they stand ‘on their own’.”

[21] An accused is not prevented from relying on the assertions set out in s. 278.3(4) “where there is an evidentiary or informational foundation to suggest that they may be likely to relevance”. The mere assertion that a record is relevant to credibility is not enough. An accused must be able to point to something in the record adduced on the motion that suggests that the record contains information which is not already available to the defence or has potential impeachment value. See: R. v. W.B., supra, at paragraph 75; See: R. v. Mills, supra, at paragraph 120.

Necessary in the Interests of Justice:

[22] The accused must also satisfy the court that the production to the judge is necessary in the interests of justice. Subsection 278.5 (2) provides that in determining whether to order the production of the record for review, the judge shall consider “the salutary and deleterious effects of the determination of the accused’s right to make 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.”

[23] In particular, subsection 278.5(2) provides that the judge shall take the following factors into account when determining whether to order production for review:

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.

[24] The requirement that production be “necessary in the interests of justice” at this stage refers to whether production to the judge is necessary in the interests of justice. It permits the judge to look at factors other than relevancy, like the privacy rights of complainants and witnesses, in deciding whether to order production to himself or herself. Where the privacy right in a record is strong and the record is of low probative value, a judge may decide that non-disclosure will not prejudice the accused’s right to full answer and defence and dismiss the application for production. See R. v. Mills, supra, at paragraph 131.

[25] However, it can never be in the interests of justice for an accused to be denied the right to make full answer and defence and, pursuant to s. 278.5(2) the trial judge is merely directed to “consider” and to “take into account” the factors and rights listed. Where the record sought can be established as “likely relevant”, the judge must consider the rights and interests of all those affected by production and decide whether it is necessary in the interests of justice that he or she take the next step of viewing the documents. If in doubt, the interests of justice require that the judge take that step. See: R. v. Mills, supra, at paragraph 138.

[26] In the final analysis, as Justice McLachlin has stated, “the judge is free to make whatever order is ‘necessary in the interests of justice’-a mandate that includes all of the applicable principles of fundamental justice at stake.” R. v. Mills, supra, paragraph 134.

4. Analysis:

[27] I have carefully reviewed J.P.’s statements to the police and her mother’s statements to the police. I find that the applicant has failed to establish that the records being sought meet the ‘likely relevant’ test nor is it necessary in the interests of justice that the records be produced to the court.

[28] With respect to the request for both the therapeutic records and the police occurrence report, the applicant relies on the transcripts of the very detailed witness statements that J.P. and her mother provided to the police as evidence in support of its application. A summary of the relevant portions of the police statements relied upon by the applicant are as follows:

J.P.’s Police Statement:

1. J.P. has had some bad experiences with alcohol in the past, she has thrown up on two different occasions, so since then she has been very safe with it. She was sexually assaulted about two years ago, so she always made sure to be sober at parties and to be safe when she goes to parties.
2. She had talked to Q.F. about two days before the party about the possibility of having sex at the party. When she was talking to Q.F. about the possibility of having sex, she lied about being a virgin. She does not know why she said that she wasn’t a virgin. She felt social pressure and feels like none of her friends are virgins.
3. J. P. had been seeing her therapist for a while about “other stuff” and she and her therapist talked about whether she should have sex with Q.F. They talked about the “pros and cons”.
4. With the previous sexual assault [two years ago], she “kind of froze”. She always told herself that if she was in that situation again that she would “kick them in the balls and like run.” But it’s different when you are in the situation. Her therapist told her about “fight, flight, freeze.” J.P. stated that, “I guess I just kind of froze again.”
5. The officer asked her if she remembered everything. J.P. stated that, “some of the before or like afterparts that I’m not, like what exactly was said and like the messages and stuff. That’s what I’m not clear about, that I’m very certain about like what happened that night [indiscernible]. Especially because I went through it so many times in my mind and had nightmares about it. I talked about it with my therapist a lot. Written it down a lot. So I’m very clear about what happened.”
6. Certain acts were consensual.
7. When asked what her biggest reason was for coming forward now, J.P. stated that, “the main reason why I decided to come forward now instead of before is because I didn’t think anybody would believe me”. She explained that when she had been assaulted two years previously people at school didn’t believe her the first time. She worried that she was going to go through it all again for nothing.

J.P.’s Mother’s Police Statement:

[29] A summary of J.P.’s mother’s police statement relied upon by the applicant is the following:

1. J.P. disclosed to her mother the day after the assault.
2. The mother stated that J.P. previously had an experience in which other students, her friends, didn’t believe her and accused her of lying. J.P. was ostracized. That incident had a very negative impact on her. The parents were worried for her and initially discouraged her from going through that again and the stress of a police investigation. However, they thought she should seek support through her therapist. The mother told J.P. that if she decides that she wants to press charges, she and her father would support her in whatever she decides.
3. J.P. told her mother that the therapist explained the “fight flight freeze” response.

[30] It is clear from the above statements that J.P. spoke to her therapist about the allegations. However, as the Ontario Court of Appeal has held in R. v. W. B., supra, the mere fact that the complaint and discussed the allegations with her counsellor is insufficient to pass the first stage of relevance. The likely relevance test will only be satisfied if the accused is able to point to some case-specific information that goes beyond merely establishing that the complainant spoke to her therapist about the alleged assault.

[31] Here, there is nothing in the evidence supporting the application, namely the two transcripts of the police statements, that suggests that J.P.’s memory was influenced or changed by anything that she may have said or discussed in therapy. In her statement, J.P. is very clear that she did not drink much alcohol that night and her memory of what happened was clear and coherent. She does not say anything to undermine that characterization of her memory. She clearly states that she discussed what happened in therapy, but there is nothing in her statement that suggests that her memory has been changed at all or modified by those discussions.

[32] There is simply no evidence to suggest that the therapy received may have influenced J.P.’s recollection of the alleged events or that it caused her to change her recollection in any way. There is no evidence to suggest that by talking with her therapist about the alleged assault, the therapy caused J.P. to create false memories, or helped her revive or refresh or influence her memories. There is nothing in the evidence to suggest that the therapeutic record has “impeachment value.”

[33] J.P. and her mother both state that J.P. learned the “fight, flight, freeze” response in the therapy. But again, there is nothing at all in the transcripts that suggest that this changed J. P.’s memory of what happened, only that she had a better context for understanding why she reacted in the way she described.

[34] I agree with Ms Way’s submissions that this is a fishing expedition. The accused is asking the court to review the therapeutic record to see if there is anything of relevance in it. The statutory regime set out in the Criminal Code and the case law are clear that the likely relevance is to be established prior to reviewing a record, not as a result of reviewing the record in question. See R. v. J.F., 2019 ONSC 2626 (S.C.J.) at paragraph 34 of that decision.

[35] I also agree with the Crown that what the application amounts to, respectfully, are “bare assertions” under section 278.3(4) that J.P. went to counselling and discussed what happened with her counsellor. That is not enough to ground likely relevance.

[36] Regarding the police occurrence report of the previous incident involving the complainant, in R. v. Quesnelle, supra, the Supreme Court of Canada emphasized that the “mere fact that a police occurrence report concerns a complainant or a witness is not enough to make a report relevant to an otherwise unrelated prosecution. The Mills provisions echoes this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials.” paragraph 17 of that decision.

[37] The fact that a complainant has reported a sexual assault in the recent or distant past is not, without more, enough to render a police occurrence report relevant. However, occurrence reports that raise legitimate questions about the credibility of a complainant or a witness, or some other issue at trial, will be treated as relevant.” See R. v. Quesnelle, supra, at paragraph 17.

[38] In this case, the fact that some other students at J.P.’s school did not believe her report of sexual assault approximately two years ago does not mean that she is not a credible witness, nor does it make the occurrence report likely relevant. The defence is aware of this information from the transcript of J.P.’s lengthy and detailed police statement and can cross-examine her on this issue.

5. Conclusion:

[39] In this case, the privacy right in the records is strong and the probative value of the records, if any, is extremely low. I find that non-disclosure of the records will not prejudice the accused’s right to a full answer and defence.

[40] In particular, therapeutic records have a very high expectation of privacy. The production of these records, even to the court, is a significant intrusion on the privacy and personal security of the complainant. It could also undermine society’s interest in encouraging the reporting of sexual offences and in encouraging the obtaining of treatment by complainants of sexual offences.

[41] For the above reasons, I am not satisfied that the applicant has established that the records being sought are likely relevant to an issue at trial or the competence of a witness to testify, nor are the records necessary in the interests of justice.

[42] The application is therefore dismissed.

[43] I wish to thank counsel for their excellent submissions and the case law provided.

Released: January 20, 2022 Signed: Justice Sheilagh O’Connell

[1] Also known as R. v. Batte, same citation.