WARNING

By Order of the Court there is an order restricting publication in this proceeding under ss. 486.4(1) , (2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code . These sections of the Criminal Code provide:

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b).

486.6 (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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-151
DATE: 20120229

BETWEEN:

HER MAJESTY THE QUEEN – and – R.L. Applicant

J. Armenise, for the Crown
B. Cugelman, for the Applicant
J. MacEachen, for the Complainant (Respondent)

HEARD: February 17, 2012

PUBLICATION OF THIS RULING IS BANNED PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

DiTOMASO J.

THIRD PARTY RECORDS APPLICATION RULING PURSUANT TO S. 278.3 OF THE CRIMINAL CODE OF CANADA

THE APPLICATION

[ 1 ] R.L. is charged with offences of sexual assault and sexual interference in relation to the complainant N.B. between January 1, 2007 and July 31, 2010. During this time N.B. was in the foster care of R.L. and his wife.

[ 2 ] N.B. came to live with the L.s in March of 2007. R.L. was charged on August 5, 2010.

[ 3 ] During the entire time that N.B. resided in the R.L. home, from the very beginning, her welfare was constantly monitored by the Children’s Aid Society of the County of Simcoe and Maple Star Inc. which service was instrumental in placing her with the L.s.

[ 4 ] R.L. seeks an order for production of:

a. The entire file contents respecting the supervision and care of N.B. by the Children’s Aid Society of Simcoe County; and

b. The entire file contents respecting the supervision and care of N.B. by Maple Star Foster Care Services of Canada (Maple Star Inc.).

[ 5 ] N.B. opposes the production of both the Children’s Aid Society records and the records of Maple Star.

[ 6 ] The Crown took no position in respect of production of either the Children’s Aid Society records or the Maple Star records.

THE LAW

[ 7 ] The principles and procedures governing production of records sought by R.L. are set out in ss. 278.1 through to 278.91 of the Criminal Code , the Supreme Court of Canada decision in R. v. Mills (1999), 139 C.C.C. (3d) 321 and the Ontario Court of Appeal decision in R. v. Batte (2000), 145 C.C.C. (3d) 449.

THE FIRST STAGE OF THE TEST

[ 8 ] On an application for production of third party records, the judge hearing the application must follow a two stage process. At the first stage, the judge may order production of the records for his or her own review if satisfied that the record is likely relevant to an issue at trial and the production of the records is necessary in the interests of justice. The original documents from the Children’s Aid Society and Maple Star were provided to the court on February 17, 2012. These records were sealed subject to the outcome of this application and any further order of the court.

POSITIONS OF THE PARTIES

Position of the Accused R.L.

[ 9 ] The evidence in support of the application is contained in the affidavit of R.L. sworn January 9, 2012. There was no evidence that R.L. was cross-examined in respect of his affidavit. No affidavit material was filed on behalf of the complainant N.B..

[ 10 ] In his affidavit, R.L. deposes that at one point in time while N.B. and another young foster daughter resided with the L.s, there was an allegation of sexual misconduct between N.B. and that younger daughter. An investigation was launched by the Children’s Aid Society resulting in the other girl being removed from the R.L. home. The investigation was focused entirely upon the issue of improper sexual behaviour and both girls were interviewed regarding this issue. R.L. was also interviewed. Neither girl made any suggestion that he had been engaged in any improper sexual conduct whatsoever. After that investigation, N.B. now alleges that she was sexually abused by R.L.. He further deposes that in a placement review conducted by the Children’s Aid Society involving both N.B. and Jenna, another foster child, the L.s passed this review with top marks.

[ 11 ] R.L. in his affidavit also alleges that shortly prior to his arrest, the relationship between N.B. and the L.s had deteriorated to an all-time low. N.B. wanted to change living arrangements. R.L. deposed that if a child alleges abuse against a foster parent this almost certainly results in a transfer. He alleges that result is exactly what happened in this case.

[ 12 ] R.L. deposes that he requires the information requested in this application in order to make full answer and defence to the charges against him. He believes that the information contained in the records will corroborate the fact that N.B. made very few, if any, complaints against him for several years, until the very end when she was removed from the household. This was the case despite the fact N.B.’s welfare was being closely monitored for this entire period of time by two separate professional agencies, both of which were dedicated to the task of the welfare of the child.

[ 13 ] R.L. submits that the records being sought satisfy the requirements for production and admissibility as set out in the Code in that they are likely relevant to an issue at trial and are not excluded by the matters listed in the s. 273.3(4).

[ 14 ] His position is concisely summarized at paragraph 5 of his Factum as follows:

Relevance of the records being sought is established by virtue of the position of the applicant that N.B. wished to orchestrate her departure from the R.L. home for two reasons: firstly, to be in a position to pursue her relationship with her boyfriend with much greater freedom, and without the interference of the R.L. family; secondly, because she strongly resented some of the rules which were being imposed upon her by the applicant and his wife, and wished to free herself from these demands. In addition they are relevant in assisting to establish knowledge on the part of N.B. that allegations of improper sexual conduct in a foster home will effectively result in the removal of a foster child from that home; and further to prove that N.B. was in a position to have knowledge of sexual behaviour and to be able to describe such behaviour in some detail, even though she was a young person. The material being sought is necessary for the Applicant to be in a position to make full answer and defence to the charges against him as it is relevant to the position of the defence that the complainant had a motive to falsely accuse the Applicant, and had the ability pursue these allegations until she successfully accomplished her goal of removal from the R.L. home.

The legal authorities relied upon by R.L. are set out as follows:

R. v. Mills (1999), 139 C.C.C. (3d) 321 (S.C.C.)

R. v. Batte (2000), 145 C.C.C. (3d) 449 (O.C.A.)

R. v. Au , [2005] O.J. No. 2916 (S.C.J.)

R. v. O’Connell , [2007] O.J. No. 3750 (S.C.J.)

R. v. J.D. , [2009] O.J. No. 4572 (Ont. S.C.J.)

Position of the Complainant N.B.

[ 15 ] On behalf of N.B., production of both the records of the Children’s Aid Society and Maple Star is vigorously opposed on the grounds that R.L. has not established that either records are likely relevant to an issue at trial. It is also argued that production of these records would not be in the interests of justice. It is submitted that no sufficient evidentiary basis has been laid by R.L. in favour of production. N.B.’s privacy and equality interests are paramount. It is submitted in the interests of justice, the probative value of these records are fair outweighed by the privacy interest which N.B. maintains in them.

[ 16 ] The complainant relied upon the decisions in R. v. Mills (supra) and R. v. Batte (supra) . N.B. submits that R.L. has not met the “likely relevant” test and that the application ought to be dismissed.

[ 17 ] At this first stage, I have considered the factors set out in s. 278.3(3) and (4) of the Criminal Code . I am satisfied that R.L. has established that the CAS records and the Maple Star records are likely relevant to an issue at trial and that the production of those records is necessary in the interests of justice. A sufficient evidentiary basis has been laid by R.L. to establish that the CAS records and the records of Maple Star are likely relevant to a live trial issue namely N.B.’s credibility, her motive to falsely accuse R.L. and her ability to pursue false allegations until she successfully accomplished her alleged goal, namely, her removal from the R.L. home for the reasons described by R.L. in his affidavit.

SECOND STAGE OF THE TEST

[ 18 ] Given my finding that the CAS records and Maple Star records are likely relevant to a live issue at trial and the production of those records is necessary in the interests of justice, I unsealed and reviewed all of those records.

The CAS Records

[ 19 ] The CAS records commenced at a time well before N.B. came into the care of the L.s which was in March 23, 2007. I find any records prior to the time of her placement with the L.s to be irrelevant and non-producible.

[ 20 ] The CAS records consisted of documents contained in a number of folders. Those folders contained assessments, school records, medical records, social history, incidental reports, serious occurrence reports, CAS case notes, recordings re: visits, copies Maple Star service plan/reviews and other home studies and plans of care that post-date the removal of N.B. from the R.L. home.

[ 21 ] I find the documentation post-removal of N.B. from the R.L. home is also irrelevant and non-producible.

[ 22 ] R.L. submits that production of the documents requested are important to his ability to make full answer and defence regarding the charges against him. He maintains that his right to make full answer and defence outweighs any reasonable expectation of privacy of N.B. in the documents under review.

[ 23 ] In determining the issue regarding R.L.’s right to make full answer and defence and the issue of N.B.’s credibility and motivation, I have considered the factors set out in s. 278.5(2) of the Criminal Code regarding the CAS records as I am required to do pursuant to s. 278.7. I have balanced N.B.’s privacy interests in all of her CAS records against R.L.’s right to make full answer and defence. I am satisfied that the probative value of these records do not outweigh the privacy interest of N.B. as those records relate to the proposed live issues at trial. A review of these records brings me to the conclusion that their production does not assist the defence. Having balanced R.L.’s right to make full answer and defence against N.B.’s privacy interest in these records, I also find that it is in the interests of justice that they not be produced. Their probative value is either nil, minimal and regardless, far outweighed by her privacy interests.

[ 24 ] In summary, I have considered the factors set out in s. 278.5(2) of the Criminal Code in relation to production of the CAS records. In particular, I have considered the salutary and deleterious effects of production of the records sought by R.L. on this application as they relate to his right to make full answer and defence. I have engaged the balancing process where I have considered the right to privacy and equality of N.B. in respect of those records. I am satisfied that the CAS records ought not to be produced in the interests of justice.

The Maple Star Records

[ 25 ] I have also reviewed all of the Maple Star records contained in a black case and blue bag.

[ 26 ] The blue bag contained four folders for each year 2007, 2008, 2009 and 2010. They commenced with records from the time that N.B. went into care with the L.s in 2007. The first record is dated March 24, 2007 and the last record is for the week ending July 25, 2010. N.B. was removed from the R.L. home after R.L. was charged on August 5, 2010. These records consist of regular meetings involving the Maple Star worker, Mrs. L. and N.B.. All of the records bear Mrs. L.’s signature.

[ 27 ] In the black case were found a number of folders consisting of various reports, CAS documents not relevant to this case, medical logs and allowance logs signed off by Mrs. L. and N.B., case notes, plan of care/service plans/review reports, school reports, critical incidents and serious occurrence reports and other miscellaneous records.

[ 28 ] Once again, in respect of the second stage of the test, I considered R.L.’s right to make full answer and defence and the issues regarding N.B.’s credibility and motivation. I considered all the factors set out in s. 278.5(2) of the Criminal Code regarding the Maple Star records as required pursuant to s. 278.7. I have balanced N.B.’s privacy interest in respect of all the Maple Star records against R.L.’s right to make full answer and defence. I am satisfied that the probative value of these records are outweighed by the privacy interest of N.B. as these records relate to the proposed live issues at trial. Having balanced R.L.’s right to make full answer and defence against N.B.’s privacy interest in the Maple Star records, I find that it is in the interests of justice that they not be produced. They do not assist the defence in respect of the issues raised. I am further satisfied that production of the Maple Star records would not be in the interests of justice. There probative value is nil, minimal and regardless, far outweighed by the privacy interests of N.B..

[ 29 ] In summary, I have considered the factors set out in s. 278.5(2) of the Criminal Code in relation to the Maple Star records. In particular, I have considered the salutary and deleterious effects of production of the records sought by R.L. on this application as they relate to his right to make full answer and defence. As well, I have engaged in a balancing process where I have considered the right of privacy and equality of the complainant N.B. in respect of said records. I am satisfied that the production of her Maple Star records should not be produced in the interests of justice.

DISPOSITION

[ 30 ] For the above reasons, R.L.’s application is hereby dismissed.

[ 31 ] The court has resealed the accordion folder containing all of the CAS records marked Exhibit A on this application. Further, the court has resealed the blue bag and black case containing all of the Maple Star records marked Exhibit B on this application.

[ 32 ] Pursuant to s. 278.7(6) of the Criminal Code , the court orders that the Children’s Aid Society records and the Maple Star records be kept in sealed packages by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against R.L., whereupon the records shall be returned to the persons lawfully entitled to possession or control of them.

DiTOMASO J.

Released: February 29, 2012