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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(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.
Ontario Court of Justice
DATE: 2025-02-28
COURT FILE No.: Toronto 24-48108627
BETWEEN:
HIS MAJESTY THE KING
— AND —
ASA FORDE
Ruling on Mills Application
Stage 1
Criminal Code Sections 278.93 – 278.95
Before Justice Brock Jones
Heard on January 24 and February 25, 2025
Written Reasons for Judgment released on February 28, 2025
Approved for Publication: Criminal Code section 278.9(1)(c)
Counsel:
M. Tchivtchibachieva — counsel for the Crown
D. Embry and P. Socka — counsel for A. Forde
A. Dresser — counsel for S.N.
Introduction
[1] Asa Forde is charged with one count of sexual assault. On his behalf, Mr. Embry brought an application to produce third-party records held by Covenant House.
[2] The application sought the production of “all documentation in possession of Covenant House related to an incident that took place [between the parties] on February 29, 2024, and, in particular, any incident report relating to those parties on that date.”
[3] Ms. Dresser, on behalf of S.N., opposed the application. The Crown made no submissions but adopted the position taken by Ms. Dresser.
[4] For the following reasons, I found that the application failed to pass the Stage 1 “likely relevance” test and was therefore dismissed.
Factual Background
The Alleged Offence
[6] The Applicant was a resident of Covenant House in early 2024. Ms. S.N. was familiar with him. She did not reside at Covenant House but availed herself of the organization’s services regularly.
[7] On February 29, 2024, while at Covenant House, Ms. S.N. alleges that she kissed the Applicant in a stairwell. While this was on consent, what happened next was not. The Applicant touched her body in various areas and placed her hands on parts of his body. The details are not necessary to review for the purposes of this judgment.
[8] On March 5, 2024, Ms. S.N. gave a videotaped statement to investigating officers from the Toronto Police Service about the alleged sexual assault. She informed the officers that she told a few friends and staff at Covenant House about the incident before speaking to them.
The Records of Covenant House
[9] No affidavit or other evidence was provided by the Applicant respecting any features of Covenant House. I am prepared, however, to take judicial notice of the following. Some of this information I have obtained from Covenant House Toronto’s website. [1]
[10] Covenant House Toronto is a nonprofit organization that serves at-risk, homeless and trafficked young persons and young adults between the ages of 16 and 24. The Toronto location serves as many as 300 persons daily. Covenant House also offers services such as education, after-care, counselling, health care, employment assistance, and job training.
[11] Young adults who rely upon Covenant House for support are typically vulnerable and in need of care and protection.
[12] No affidavit was provided as part of the application materials to establish that an “incident report” was created due to Ms. S.N. speaking to staff at Covenant House about the assault. It seems this fact was assumed. [2] However, Ms. Dresser did not dispute that something of that nature likely existed. A subpoena was served on Covenant House, and some documents were provided to the court under seal in response to it. I did not review those documents for the Stage 1 hearing.
Position of the Parties and the Complainant
[13] Mr. Embry and Mr. Socka submit that the third-party records should be produced and disclosed as they are “likely relevant” to issues at trial. Specifically, the credibility of the complainant. The records are necessary to make full answer and defence. They are not being sought for any improper purpose. On balance, whatever privacy rights Ms. S.N. may have in the records, those are outweighed by the Applicant’s entitlement to any relevant information necessary to defend himself.
[14] If an incident report existed, it would contain a statement by the complainant about what she alleged occurred. It would constitute her first formal statement and could provide important information for possible impeachment purposes at the Applicant’s trial.
[15] Ms. Dresser submits on behalf of Ms. S.N. that the application should be dismissed as the Applicant has not provided a sufficient evidentiary basis to establish that the records are “likely relevant” to an issue at trial. This application is best characterized as a fishing expedition.
[16] She notes that unlike the disclosure of Crown evidence, there is no assumption of relevancy in respect of documents sought in a section 278 application. The mere fact that some records exist and are in Covenant House’s possession does not establish “likely relevance.” Far from it. The Criminal Code is explicit that more is needed.
[17] In the absence of evidence that the records have potential impeachment value, there is no basis to continue with the application. Ms. Dresser pointed me to several reported decisions which stand for the proposition that a prior statement by the complainant about the subject matter of the offence is not, by itself, a basis to conclude that they have probative value.
[18] Ms. Dresser further submits that the Applicant must establish that the records have some added information not otherwise available to him through the disclosure materials provided by the Crown. She takes the position he has failed to do so.
Law and Analysis
[19] Sections 278.1 to 278.9 of the Criminal Code create the applicable regime for the disclosure of third-party records where an accused is charged with sexual assault. There is no dispute that the documents in question are “records” as defined by section 278.1 and that the complainant has a privacy interest in them.
[20] At the first stage of the application, the onus is on the Applicant to demonstrate that the sought-after records are “likely relevant to an issue at trial” and that “production of the records is necessary for the interest of justice”: see Criminal Code sections 278.4 and 278.5.
[21] This threshold requirement ensures that the court, in its gatekeeper function, focuses the trial on the necessary issues to be tried. In R. v. McNeil, 2009 SCC 3, the Supreme Court explained the significance of this threshold burden and the difference between the first-party disclosure obligations of the Crown and information contained in third-party records at para. 28:
This threshold burden simply reflects the fact that the context in which third party records are sought is different from the context of first party disclosure. We have already seen that the presumptive duty on Crown counsel to disclose the fruits of the investigation in their possession under Stinchcombe is premised on the assumptions that the information is relevant and that it will likely comprise the case against the accused. No such assumptions can be made in respect of documents in the hands of a third party who is a stranger to the litigation.
[22] In R. v. Mills, the Supreme Court of Canada held that the standard of “likely relevance” is determined by whether there is a “reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”: see para. 124. Records that contain a prior statement of the complainant about the allegations before the court do not necessarily pass this test. Rather, as held by the Ontario Court of Appeal in R. v. Batte, there must be “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”: see para. 72.
[23] Section 278.3(4) of the Criminal Code sets out a series of assertions by the Applicant which are insufficient on their own to establish “likely relevance.” I have emphasized, in bold, those subsections of particular importance to this application.
(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.
[24] The Applicant must satisfy the court that there is a “sufficient, case specific evidentiary or informational foundation” to meet the likely relevance test: see R. v. K.C., 2021 ONCA 401, at para. 31.
[25] Importantly, the “mere fact that a witness has said something in the past about a subject matter on which the witness may be properly cross-examined at trial does not award that prior statement any relevance”: see R. v. L.G., [2003] O.J. No. 4974 (S.C.J.), at para. 18.
[26] Furthermore, the existing authorities have been clear that even if the records sought include a report by the complainant that constitutes “first disclosure” of the incident, that is insufficient, without more, to pass the likely relevance test. In R. v. Duncan, [2019] O.J. No. 5986, the accused was charged with sexual assault. The accused sought production of “all records of any statements made by the complainant to a Child Youth Worker ("CYW")” at the complainant’s school. The records included the first statement made by the complainant about the incident.
[27] Justice Renwick dismissed the application, noting that “the fact that the school CYW received the first disclosure of any impropriety is an insufficient basis to require production of the school records”: see para. 13. A police investigation commenced after this initial disclosure to the CYW, and there was no evidence in the application record to establish that anything relevant would be found within the sought-after records. It was “purely speculative” that the “first-disclosure records” would provide information not otherwise available to the Applicant.
[28] In R. v. D.D., [2008] O.J. No. 2781 (O.C.J.), the accused was charged with sexual assault for an incident that occurred where both he and the complainant were employed. The complainant came forward with her allegations months after the incident. She first disclosed to her psychologist what happened. After that, she disclosed what happened to other persons and organizations, and provided a statement to the Toronto Police Service.
[29] The accused brought an application to access the complainant’s counselling records with her psychologist. Justice Libman denied the application, noting that even if the counselling records contained the complainant’s first statements about the incident underlying the charge, that does not establish “likely relevance”: see para. 15. It only establishes a timeline for the statements subsequently made by the complainant to the police. The Applicant needed to point to something more than the fact that the complainant made a statement about the same event and that the statement “could” be the subject of cross-examination at trial.
[30] Similarly, this application fails to pass the threshold requirement of “likely relevance.” Taken at its highest, the Applicant has established that the records exist and they probably include a statement from the complainant about the incident before she provided a statement to the police. Even if this is the “first disclosure” of what she alleges happened, that is insufficient.
[31] By contrast, where applications of this nature have passed the threshold test at Stage 1, evidence was presented that following the complainant’s “first disclosure”, something different appeared in a subsequent police statement. For example, if no allegations were made against the accused in an initial statement, but then he was later accused of misconduct by the complainant, that would be a basis for production. Another example is where the Applicant can demonstrate there were some expected material inconsistencies between the complainant’s different statements. Ms. Dresser provided me with the cases of R. v. Silvester, [2015] O.J. No. 4779 (S.C.J.), at paras. 28-40; and R. v. R.N., [2017] O.J. No. 2517, at paras. 3 and 21.
[32] There is no evidence before to conclude that the records sought in this case would provide the accused with “added information not already available to the defence” or that otherwise have some “potential impeachment value.”
[33] It is important to remember that the test for producing third-party records is higher than the test for disclosure under Stinchcombe. This is because the records are not part of the Crown’s case. As explained by D. Brown and Justice Witkin, the authors of Prosecuting and Defending Sexual Assault Cases, Third Edition (Emond Publishing: Toronto, 2024):
It is not enough that the record may be useful to the defence or that it might assist in the cross-examination of a victim or witness; rather, there must be a reasonable possibility that the information is logically probative to an issue at trial the competence of the witness to testify. Further, likely relevance must be demonstrated through evidence, not speculation, and the accused must demonstrate that the records have the potential to provide the accused with some added information not already available to them or have some impeachment value. [3]
Conclusion
[34] The application is based on speculation that the records would provide information otherwise unavailable to the defence simply because they probably contain the complainant’s first statement about the alleged assault. The application is dismissed at Stage 1.
Released: February 28, 2025
Signed: Justice Brock Jones
Footnotes
[1] https://covenanthousetoronto.ca/. Covenant House was represented by counsel but they declined to participate in the hearing despite being notified of the February 25, 2025 hearing.
[2] The application materials include a statement that “[i]t is believed that this investigation included an interview with the complainant.” The source of this belief was never formally clarified, but I accept it was a good-faith submission by counsel for the Applicant.
[3] Page 340. My emphasis added.