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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

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:

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.

Court Information

Ontario Court of Justice

Date: October 8, 2025

Court File No.: Barrie, #24-81301542

Between:

His Majesty the King Respondent

— AND —

B.G. Applicant

Before: Justice C.A. Brannagan

Heard on: 19 September 2025

Reasons for Ruling on Stage 1 Mills (s. 278.3) Application

Approved for Publication: s. 278.9(1)(c) of the Criminal Code

Counsel

Mr. E. Ashurov — counsel for the Applicant

Ms. C. Mazgarean — counsel for the Complainants

Ms. A. Meiners — counsel for the Crown

C.A. Brannagan J.:

I. OVERVIEW

[1] B.G. is charged with three counts of exposure to persons under the age of 16, three counts of sexual assault, three counts of assault, three counts of sexual interference, two counts of invitation to sexual touching, and one count of sexual exploitation against the various Complainants (S.T., A.T., and U.T.) contrary to ss. 173(2), 271, 265, 151, 152, and 153(1), respectively, of the Criminal Code.

[2] B.G. is the father of the three Complainants: S.T. is 25, A.T. is 16, and U.T. is 14 years of age.

[3] B.G. applies, under s. 278.3 of the Criminal Code, for an order for production of records in possession of Simcoe Muskoka Family Connexions ("SMFC").

[4] Simcoe Muskoka Family Connexions is a non-profit multi-service agency operating in the District of Muskoka and Simcoe County. The organization is mandated, as a Children's Aid Society, under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 ("CYFSA") to provide child protection services to children under the age of 18 years: CYFSA, s. 35.

[5] There are four sets of records in the possession of SMFC that are at issue in the present case, identified by the years of the agency's involvement with B.G.'s family: 2016, 2018, 2022, and 2024.

[6] The Stage 1 hearing was held in this matter, pursuant to s. 278.4(1), on September 19, 2025. The court heard full submissions from counsel for the Applicant, the Complainants, and the Crown, concerning the question of whether the SMFC records at issue should be produced to this court for inspection.

[7] I was told that the 2024 records speak directly to SMFC's involvement regarding the subject-matter of the charges faced by the Applicant. Counsel for the Complainants conceded that I had authority, under s. 278.5, to order production of these records.

[8] The Crown joined the Complainants in this submission.

[9] The court then asked the Applicant whether he was satisfied with the concession made by the Complainants and the Crown, or whether he still wished to seek production of the 2016, 2018, and 2022 records. The Applicant confirmed that he wished to proceed.

[10] This is my ruling in relation to the balance of the records sought by the Applicant, at Stage 1 of this application.

II. THE APPLICANT'S APPLICATION

i. The Records Sought

[11] The Applicant seeks production of records in possession of SMFC from 2016, 2018, and 2022. B.G. claims that "[e]vidence contained in SMFC records may include any statements of the complainants pertaining to the Applicant's alleged misconduct or absence thereof which can directly impact on their credibility and reliability at trial": Applicant's Application Record, Grounds, at para. 6.

[12] The basis for this application revolves around the dates of B.G.'s alleged sexual offending against his children and the timing of SMFC's interventions with the family.

[13] B.G.'s daughter, S.T., was the original complainant in this matter. She disclosed her father's alleged sexual abuse – towards her brothers, between 2022 and 2024 – to SMFC in October of 2024. SMFC, in turn, alerted the police to these allegations, which then led to the Applicant being criminally charged. These are the records that the Complainants concede may be produced to the court for review at Stage 1.

[14] During this interaction with SMFC, S.T. did not make any allegations against her father in relation to the sexual abuse said to have been perpetrated against her; those allegations only arose later, once the police became involved.

[15] As stated, SMFC was involved with B.G.'s family on four occasions – during the years of 2016, 2018, 2022, and 2024.

[16] The Applicant claims that, because the SMFC records post-date the years in which S.T. claims that she was sexually abused by her father (2014-2015), and that the 2022 and 2024 records are concurrent with the period that B.G. allegedly abused A.T. and U.T., the SMFC records are "likely relevant".

[17] The Applicant further claims that production of these records is "necessary in the interests of justice" for the Applicant to make full answer and defence.

[18] As pleaded by the Applicant, the SMFC records:

may be logically probative of a material issue in the present case as they could reveal information about the circumstances and relationships existing between the members of the family of which the Applicant is a parent. Specifically, the records may contain information of family environment (which S.T. in her statement described as violent), the information of the Applicant's disposition (which S.T. described as abusive) and any interviews with the children regarding presence or absence of any sexual misconduct by the Applicant towards them: Applicant's Factum, at para. 34.

ii. Evidentiary or Informational Foundation for the Application

[19] The Applicant has filed an affidavit in support of his application, being that of Irina Ashurov, a legal assistant at the law office of the Applicant's Counsel ("the affidavit"). The information within the affidavit is primarily derived from Crown disclosure.

[20] The affidavit indicates that the South Simcoe Police Service ("SSPS") was first contacted by Krista Bartlett of SMFC on October 27, 2024. Ms. Bartlett advised SSPS that S.T. had reported sexual abuse in her home, with B.G. being the offender.

[21] On October 29, 2024, SSPS conducted video statements with the two boys, A.T. and U.T.

[22] On October 30, 2024, SSPS conducted a video statement with S.T. At that time, she told police that she grew up in a violent environment and that the Applicant was abusive towards her mother and the three Complainants. It was during this video statement that S.T. disclosed to SSPS that she had been sexually abused by her father during the summer of 2014 and the winter of 2015.

[23] Paragraph 21 of the affidavit describes the three other sets of records in issue, based on disclosure received, as follows:

(1) 2016 – there was an allegation that B.G. had assaulted the Complainants' mother;

(2) 2018 – there was a call received by SMFC, but nothing could be verified as there was not enough information provided; and,

(3) 2022 – U.T. was taken to the hospital after falling in a forested area in Bradford and hitting his head.

[24] Attached to the affidavit as Exhibit 'A' is a redacted copy of an agency form called the "General Communication Intake & Non-Criminal Code Domestics Jotform Template". The Jotform indicates that SMFC had decided to initiate a child protection investigation because of S.T.'s complaint against her father in October of 2024.

[25] Neither the affidavit, nor the SMFC Jotform, suggest that the agency was involved with B.G.'s family in 2016, 2018, or 2022 for reasons of alleged sexual abuse in the home.

[26] During oral submissions, Counsel for the Applicant conceded that there was nothing in any of the disclosure that was available to him to indicate that S.T. (or any of the other Complainants) had claimed that they had reported any allegations of sexual misconduct to the SMFC, other than during the 2024 interaction with the agency.

iii. The Applicant's Argument In-Brief

[27] The Applicant's principal argument in favour of production of the 2016, 2018, and 2022 records is that, given SMFC's involvement with the family on the above-described occasions, these records are likely to provide insight into the family dynamics and the environment in which the Applicant was said to have been acting during the times of these alleged offences.

[28] Further, because SMFC's mandate is one of child welfare, these records are likely relevant, and production is necessary in the interests of justice to advancing B.G.'s ability to make a full answer and defence to the allegations of sexual abuse in this case.

[29] The Applicant claims as a general proposition that child welfare records are afforded, in law, less protection than are other enumerated records. He submits that authority for this position is found in R. v. S.S.S., 2021 ONCA 552.

[30] He further submits that because B.G. is the parent of the Complainants, the latter's privacy interests are additionally diminished by virtue of the parent-child relationship. Producing these records, he submits, would result in only a mitigated kind of harm, if any, because B.G. is the father of the Complainants, and he would otherwise be entitled to disclosure of these records in other circumstances. Counsel did not direct the court to any specific legal authority for this proposition.

III. POSITIONS OF THE RESPONDING PARTIES

i. The Complainants' Position

[31] The Complainants oppose the application, except for the records relating to the October 2024 disclosure that directly led to the charges before this court.

[32] Complainants' Counsel reminds the court of the importance of taking a disciplined approach to the production of records in sexual assault cases. Counsel cites the Supreme Court of Canada's decision in J.J.: "The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system": R. v. J.J., 2022 SCC 28, at para. 1.

[33] The Complainants' Counsel also cites J.J., at para. 45, to emphasize that: "complainants have privacy interests in highly sensitive information about themselves, the disclosure of which can impact on their dignity […] Dissemination of highly personal sensitive information can result not just in discomfort or embarrassment, but in an affront to the affected person's dignity."

[34] In contrast to the Applicant's submission that child welfare records attract a diminished privacy interest, the Complainants maintain that such records engage a high degree of privacy. Counsel cites a decision from the Superior Court of Justice, R. v. A.S., 2025 O.J. No. 171, where that court observed: "CAS records must be considered as implicating the highest level of privacy, whether or not they contain counselling and therapy records relating to the complainant": at para. 39.

[35] The Complainants submit that the application should be dismissed at Stage 1. They claim that the Applicant has failed to provide a sufficient explanation as to the basis for seeking production, that he has failed to adduce any evidentiary basis for their production, and ultimately that the Applicant is embarking upon a fishing expedition. The Applicant has failed to establish "likely relevance" in the disputed records.

[36] The Complainants further submit that it is not "necessary in the interests of justice" to order production of the SMFC records. There is no basis to conclude that these records will provide any useful or added information to the Applicant. The Complainants' privacy interests in these records remain high.

[37] Finally, in consideration of the claim that production of these records to the Applicant is necessary to making a full answer and defence, the Complainants submit that this right is not automatically breached where he may be deprived of relevant information. Rather, B.G. would have to demonstrate actual prejudice to his ability to make a full answer and defence but has failed to do so in this case.

ii. The Crown's Position

[38] The Crown joins the Complainants in their submissions. It submits that the Applicant has failed to establish an evidentiary foundation that could support any of the assertions contained within s. 278.3(4).

[39] The Crown submits that the Applicant has not demonstrated that the records sought are "likely relevant" to an issue at trial, or to the competency of a witness to testify.

[40] The Crown claims that the Applicant can adduce evidence about the family dynamics and environment during the dates corresponding to the allegations by way of viva voce evidence at the trial proper.

[41] The Crown further submits that the mere fact of SMFC having been involved with the family in 2016, 2018, and 2022 – regardless of whether those records contain disclosure relating to sexual misconduct – does not automatically render the records "likely relevant" to an issue at trial, because the Applicant has failed to adequately identify which specific issue(s) the records may be relevant to.

[42] In short, the Crown submits that the Applicant has failed to demonstrate that there is any probative value in the records sought, the Applicant has failed to meet the onus of demonstrating that the records are "likely relevant", and that production of the records is not "necessary in the interests of justice".

IV. THE LEGAL FRAMEWORK

i. The Mills Regime for Production of Third-Party Records, ss. 278.1-278.91

[43] What has become known as the Mills Regime for Production of Third-Party Records was proclaimed into force on May 12, 1997, through Bill C-46. Bill C-46 amended the Criminal Code to include ss. 278.1 to 278.91, which provisions deal with the production of records in sexual offence proceedings.

[44] For ease of reference, I have summarized the substantive provisions of Bill C-46 as they relate to Stage 1:

• 278.1 – provides the definition of "record" for the purposes of sections 278.2 to 278.92.

• 278.2(1) – (3) – generally prohibits the production of records relating to a complainant or a witness to an accused in proceedings concerning enumerated sexual offences, except in accordance with ss. 278.3 to 278.91. Subsections 278.2(2) and (3) address waiver and notice issues where such records are in possession or control of the prosecution.

• 278.3(1) & (2) – provide that an accused who seeks production of a record referred to in s. 278.2(1) must make an application to the trial judge.

• 278.3(3) – requires that the application be made in writing and set out:

  • (a) the particulars identifying the record sought for production and the name of the party who has possession or control of it; and
  • (b) 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.

• 278.3(4) – enumerates 11 "assertions by the accused that 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". Subsections 278.3(5) & (6) relate to service of the application.

• 278.4(1) – (3) – consideration of a s. 278.3 application is to be held in camera. The record-holder, the complainant or witness, and any other person to whom the record relates may appear and make submissions at the hearing. Each of these parties who participates in the hearing has the right to be represented by counsel.

• 278.5(1) – the trial judge may order the record-holder to produce the record to the court for its review if, after the s. 278.4(1) hearing is held, the court is satisfied that:

  • (a) the application was made in accordance with ss. 278.3(2) to (6);
  • (b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
  • (c) the production of the record is necessary in the interests of justice.

• 278.5(2) – the trial judge must consider the salutary and deleterious effects of production on 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 to whom the record relates. There are eight enumerated factors for the court's consideration.

[45] The constitutionality of the provisions brought into law by Bill C-46 was upheld in R. v. Mills, [1999] 3 S.C.R. 668. The Court distinguished these provisions from the common law records production regime in R. v. O'Connor, [1995] 4 S.C.R. 411.

[46] At paragraph 53, the Mills Court described the framework established to govern the production of private records to an accused person in sexual offence proceedings as follows:

Like O'Connor, Parliament has set up a two-stage process: (1) disclosure to the judge; and (2) production to the accused. At the first stage, the accused must establish that the record sought is "likely relevant to an issue at trial or to the competence of a witness to testify" and that "the production of the record is necessary in the interests of justice" (s. 278.5(1)). Bill C-46 diverges from O'Connor by directing the trial judge to consider the salutary and deleterious effects of production to the court on the accused's right to full answer and defence and the complainant's or witness's right to privacy and equality. A series of factors is listed that the trial judge is directed to take into account in deciding whether the document should be produced to the court (s. 278.5(2)).

The "Likely Relevant" Threshold

[47] The Court explained that the reference to the "assertions" that are "not sufficient on their own" on an application for production to establish that a record is "likely relevant", legislated under s. 278.3(4), exist "to prevent speculative and unmeritorious requests for production". Reliance on these assertions, on their own, "simply prevents reliance on bare 'assertions' of the listed matters, where there is no other evidence and they stand 'on their own'": Mills, at para. 118.

[48] The Court was careful to clarify that the purpose and wording of s. 278.3 do not prevent a defendant from relying on the assertions enumerated in s. 278.3(4) "where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance". To rely on any of these assertions, the accused must be able to point to "case specific evidence or information": Mills, at para. 120; see also R. v. K.C., 2021 ONCA 401, dissenting reasons of Jamal J.A. (as he then was), at para. 31; R. v. M.B., 2022 ONCA 873, at para. 45.

[49] The "likely relevant" threshold, while significant, is not overly onerous: R. v. Batte, [2000] O.J. No. 2184 (C.A.), at para. 65; R. v. Bradley, 2015 ONCA 738, at para. 81.

[50] It is, however, legally insufficient for the Applicant to only demonstrate that the record contains a statement referable to a subject matter 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": Batte, at para. 77; Bradley, at para. 83.

[51] Even where the record was made close in time to the incident, that consideration "would be true for many third-party records applications, and something more is required to cloak the records in likely relevance": M.B., at para. 51, citing to Fairburn A.C.J.O. in K.C., at para. 108.

[52] Since records sought in the s. 278.3 regime are in the hands of a third party, a stranger to the litigation, they are not part of the "case to meet". The Applicant must therefore establish a basis that could enable a trial judge to conclude "that there is actually further material in existence that may be useful to the applicant in making full answer and defence, in the sense that the material is logically probative": Bradley, at para. 79.

[53] Because the records have been created by a third party for a purpose unrelated to the investigation or prosecution of the offence, the court must assume as its starting point that the records are unlikely to be relevant; hence, the imposition of the burden on the applicant to demonstrate the likely relevance of what is sought: Bradley, at para. 80.

The "Necessary in the Interests of Justice" Consideration

[54] Section 278.5(1)(c) requires the accused at this stage to demonstrate to the trial judge, in addition to meeting the "likely relevance" threshold, that the production of the record is "necessary in the interests of justice".

[55] The Mills Court held that s. 278.5(2) "gives substance to the requirement that trial judges consider the broad range of rights and interests affected before ordering disclosure to the court." Consideration of the salutary and deleterious effects of production to the court must include the accused's right to make a full answer and defence, and the rights to privacy and equality of the complainant or witness or any other person to whom the record relates: Mills, at para. 127.

[56] Section 278.5(1) provides the trial judge great latitude in the exercise of their discretion, when applied in a constitutional manner. This would include production to an accused of all private records "that may be constitutionally required", the right to make a full answer and defence being such a constitutional requirement: Mills, at para. 130.

[57] To assist the trial judge in assessing the "necessary in the interests of justice" component, the Court held: "Where the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused's right to full answer and defence and dismiss the application for production": Mills, at para. 131.

[58] On the other hand, "[i]f the judge concludes that it is necessary to examine the documents at issue in order to determine whether they should be produced to enable the accused to make full answer and defence, then production to the judge is 'necessary in the interest of justice'": Mills, at para. 132.

[59] Additionally, where the record is established to be "likely relevant" and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, "then the judge should rule in favour of inspecting the document" since, in borderline cases, "the interests of justice require nothing less": Mills, at para. 132.

ii. The Privacy Interests in Child Protection Records

[60] All parties in this case agree that the SMFC records in dispute are "records" pursuant to s. 278.1.

[61] Counsel for the Applicant cites the Court of Appeal for Ontario's decision of S.S.S., 2021 ONCA 552, for the proposition that records from child protection agencies attract a lesser degree of privacy than do other kinds of records enumerated in s. 278.1.

[62] With respect, I do not read S.S.S. as standing for that proposition. The factual matrix of S.S.S. – which is distinguishable from the facts in B.G.'s case – is central to my departure with Counsel on this point.

[63] In S.S.S., the Children's Aid Society had sent a letter to the appellant after he had been charged criminally. The letter informed him that an investigation had been conducted into whether the complainant needed protection, and that the file had been subsequently closed. Here is what the Court of Appeal said about that record:

…the record at issue here was the result of a targeted CAS investigation. If the complainant was interviewed, it was with respect to the very incident that is the subject of the charge against the appellant. […] Given that any statement by the complainant to the CAS, if she made one, would have related to the allegations in this case and would not have been of a therapeutic nature, the privacy interest in the record is not as high as in counselling records: at paras. 48 & 49.

[64] In other words, the Court was satisfied that the privacy interest in those specific CAS records was not as high as in counselling records because the records were prepared in respect of the very incident that was the subject of the charge against the appellant. Those records had potential impeachment value and were found to be logically probative on that basis.

[65] The 2024 SMFC records in B.G.'s case are of an analogous kind.

[66] I do not read S.S.S. as establishing a blanket rule that child welfare records are any less worthy of the protections afforded under the s. 278.3 regime than any of the other records enumerated therein. Instead, in my view, the Court made a contextual assessment of the records at issue on the specific facts before it, and nothing more.

[67] A more comprehensive statement of the law concerning the privacy interests owing to child protection records is set out in the dissenting reasons of Jamal J.A., as he then was, in K.C., supra.

[68] In that case, His Honour noted that Parliament had specifically listed "child welfare" records as a class of records that presumptively attract a reasonable expectation of privacy, whether or not they relate to counselling or therapy. He found that records in the possession of child welfare authorities can be "multifaceted" and "often involve documentation regarding counselling and therapy, but they need not do so to warrant high privacy protection": K.C., at para. 60.

[69] His Honour further found at para. 62:

Applications for production of child welfare records implicate not only the privacy but also the equality of the affected children because those children's lives have been 'heavily documented' by child welfare authorities […] Through no fault of their own, such children are at risk of being treated with less dignity and as less worthy of respect and consideration than other children whose lives have not been heavily documented by the state.

[70] Justice Jamal rejected the appellant's proposition that CAS records were entitled to less protection than were counselling records.

[71] That finding is apposite in B.G.'s case.

V. APPLICATION OF THE LAW TO THE FACTS

[72] I have carefully considered the Applicant's written and oral submissions in this matter. B.G. submits that the disputed records may directly impact upon the credibility and reliability of the Complainants at trial. He claims that the records may have such effect by providing insight into the family dynamics in which the Applicant was said to have been acting at the time of his alleged offending.

[73] In the absence of an evidentiary or informational anchor, a claim by an accused that the record sought is likely relevant to the credibility or reliability of a complainant or witness is insufficient on its own to overcome the general proscription in s. 278.3(4) of such claims being capable of meeting the "likely relevant" threshold.

[74] While the 2024 records appear to directly implicate the accused's ability to raise a reasonable doubt through their potential impeachment value, the claim that the records from 2016, 2018, and 2022 are "likely relevant" is peripheral at best.

[75] I am not satisfied that the Applicant has discharged his onus of showing that there is a reasonable possibility that the information sought is logically probative to an issue at trial or to the competence of a witness to testify. The Applicant has failed to point to any case specific evidence or information concerning the disputed records that might raise the possibility of these records being "likely relevant" in this proceeding.

[76] Nor do I find that production of the disputed records is "necessary in the interests of justice". In my view, the Complainants retain a substantial degree of privacy in these records. Because the privacy rights in these records are high, and the records themselves appear to be of dubious probative value, their production is not constitutionally required for the Applicant to make a full answer and defence to these charges.

[77] B.G.'s argument that production of SMFC's records concerning his children would result in a mitigated or lack of prejudice to the Complainants' privacy interests – because, what's the harm of a parent receiving full disclosure about their own children – is only superficially convincing.

[78] The right to privacy is a principle of fundamental justice. It is a right that is protected under s. 8 of the Canadian Charter of Rights and Freedoms. The values underlying the privacy interest protected by s. 8 are dignity, integrity and autonomy (see R. v. Plant, [1993] 3 S.C.R. 281 at p. 292). The protections afforded by s. 8 include the right to be left alone by the state, which encompasses the ability to control the dissemination of private information vis-à-vis the state (see R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 23). An order for production of records made pursuant to ss. 278.1 to 278.91 is a "seizure" within the meaning of section 8 of the Charter (see Mills, at paras. 77, 86, 88). The rights to personal dignity and the privacy of the persons to whom these records relate should not casually be disturbed, and not without reasonable justification for doing so.

[79] The right to privacy at play in this case must be balanced against another principle of fundamental justice, the Applicant's competing right to make a full answer and defence. Neither right is absolute. The margins of where one right ends and another begins are necessarily mutually referential and will ebb and flow based on the facts and context of the individual case.

[80] With that said, in every case – including in circumstances where an applicant is the parent of a complainant – trial courts must remain disciplined in their approach to the production of records in sexual assault cases, exercising fidelity to the statutory scheme established in ss. 278.1 to 278.91. The law requires it, and the privacy interests of all complainants, perhaps especially of children, warrant it.

[81] Having considered the factors set out in s. 278.5, I conclude that it is not necessary for me to examine the 2016, 2018 and 2022 records to determine whether they should be produced to enable B.G. to make full answer and defence in this case. This is not a borderline case where the court should err on the side of production to the court in the interests of justice.

VI. DISPOSITION

[82] The Applicant's application for production of the disputed SMFC records is dismissed.

Released: 8 October 2025

Signed: Justice C.A. Brannagan