ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-08-00000011
DATE: 20120604

B E T W E E N:

HER MAJESTY THE QUEEN

T. Regimbal, for the Crown

Plaintiff

• and -

H.B.

R. Warman, for the Defendant

Defendant

HEARD: April 26, 2012

D E C I S I O N O N A P P L I C A T I O N

WILCOX, J.

1H.B. is charged with various sexual offences involving N.R. between January 1, 1967, and December 31, 1971, and with the indecent assault of C.B. between January 1, 1972 and December 31, 1978.

The Application

2THE APPLICATION

3The accused brought an Application seeking production of records in the custody of the Sister Margaret Smith Centre-St. Joseph Care and the Elliot Lake Family Health Centre pertaining to N.R. and C.B., including, but not limited to, case notes for the period of on or about January 1, 1967 and December 31, 2011. The grounds for the Application were generally stated to be to obtain the records to test the complainant’s credibility, reliability and competence and because they contained information relevant to an issue at trial. The Application is supported by the Affidavit of Colleen Guertin, defence counsel’s office assistant, much of which was based on information received from defence counsel, and on the transcripts of the testimony of the two complainants at the preliminary hearing.

4Mr. Ray Warman acted for the accused, Ms. T. Regimbal for the Crown, and Ms. C. McLeod for the complainants, neither of whom were present. The Crown and the complainants opposed the Application. Letters from Mr. J. Liswood and Mr. Douglas Kerr, counsel for the Sister Margaret Smith Centre and the Elliot Lake Family Health Centre, respectively, indicated that they would not be attending the hearing nor opposing production.

5At the hearing, defence counsel refined the time periods for which he wanted records to between June, 2009 and June, 2010 for N.R. and between 1989 and 1992 for C.B..

6Defence counsel submitted that, because the allegations are historical, the complainant’s memories are important and he could not test them without other information such as would likely be in the records sought. Therefore, he wanted the records to see if they corroborated or discredited the complainant’s testimony regarding what happened, and when. He referred to the assertions listed in s. 278.3(4) of the Criminal Code , indicating that most of them were relevant in this case. This was the basis of his argument that, although an assertion by itself is not sufficient to establish that a record is likely relevant, they reached that threshold in combination.

The Law

7THE LAW

8Applications for the production of third party records in proceedings in respect of the offences listed in s. 278.2 of the Criminal Code (generally speaking, sexual offences) are governed by sections 278.1 to 278.91 of the Code. They are subject to a two stage procedure. In the first stage, a hearing is held following which the presiding judge decides whether to order the person who has possession or control of the record to produce it to the court for review by the judge. If production is ordered, in the second stage, the judge reviews the records to determine whether to order that all or parts of them be produced to the accused.

9“Record” is defined in s. 278 to mean any form of record that contains personal information for which there is a reasonable expectation of privacy. A non-exhaustive list of types of such records is then provided. Their production is controlled by the above-mentioned procedure because the limits of an accused’s right to make full answer and defence must be understood in light of other principles of fundamental justice such as a complainant’s privacy and equality rights. The Supreme Court of Canada discussed this at length in R. v. Mills 1999 637 (SCC) , [1999] S. C. J. No. 68.

10Once the application is made, the first stage hearing is held in camera pursuant to s. 278.4 and is governed by s. 278.5. If the formal requirements of s. 278.5(1)(a) have been met, the inquiry proceeds to the substantive steps in (b) and (c) to determine whether the judge is satisfied of them. The provisions of sections 278.3, .4 and .5 are set out here for ease of reference.

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

No application in other proceedings

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

Form and content of application

(3) An application must be made in writing and set out

( a ) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; 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.

Insufficient grounds

(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.

Service of application and subpoena

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least seven days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

Service on other persons

(6) The judge may at any time order that the application be served on any person to whom the judge considers the record may relate.

1997, c. 30, s. 1.

Hearing in camera

278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

Persons who may appear at hearing

(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

Costs

(3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing.

1997, c. 30, s. 1.

Judge may order production of record for review

278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that

( a ) the application was made in accordance with subsections 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.

Factors to be considered

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:

( 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.

11For something to be “likely relevant” the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. R. v. Mills paragraph 124 .

12In dealing with 278.5(1)(b), reference must be made to s. 278.3(4) which provides a list of assertions which 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.

13An accused is not entirely prevented from relying on these assertions, but may do so if there is a case-specific evidentiary or informational foundation suggesting that the record in issue is likely relevant to an issue at trial or to the competence of a witness to testify. This might be established through Crown disclosure, defence witnesses, the cross-examination of Crown witnesses and expert evidence. R. v. Mills paragraphs 117 through 121, and 135.

14With respect to s. 278.5(1)(c), the question of whether the production of the record is necessary in the interest of justice is to be answered after taking into account the considerations and factors set out in s. 278.5(2). The court is to consider the broad range of rights and interests affected before ordering production of a record. A conclusive and in-depth evaluation of each of the factors is not required, only that they be taken into account to the extent possible at this early stage of the proceedings. R. v. Mills paragraphs 127 to 134 .

Evidence

15EVIDENCE

16The only evidence regarding the records sought is in the preliminary hearing transcript. The relevant excerpts from those are reproduced below for ease of reference. For N.R., they are as follows, starting at page 16, line 26:

Q. Okay. Did you disclose to any counsellor of your – of the abuse upon you?

A. If I went for counselling?

Q. Yes.

A. Yes I did.

Q. Okay, where?

A. Elliot Lake.

Q. Okay. Was it a clinic? A private practice or was it through mental health?

A. I don’t know.

Q. Okay. What was the name of your counsellor?

A. Carey.

Q. Carey?

A. I don’t know.

Q. Okay. Would that be a male or a female?

A. Female.

Q. Do you remember ....

A. I have a card in my purse if it helps.

Q. It will. We’ll need the last name.

A. Pardon?

Q. I’ll need her last name.

A. Okay, well I don’t know her last name.

Q. Do you remember the address of this person’s place?

A. It’s at the Elliot Lake Family Health Centre I think it’s called.

And on page 18, starting at line 1:

Q. Okay. So when you talked to the counsellor when was that?

A. The counsellor?

Q. Yes.

A. Carey?

Q. Yes. Carey.

A. That was, I started over a year ago.

17For C.B., it is as follows, starting at page 34, line 19 :

Q. Trailer, okay. You mentioned the Smith Clinic.

A. I attended the Smith Clinic.

Q. What is the Smith Clinic?

A. It’s an alcohol rehabilitation centre.

Q. Okay and when did you attend that centre?

A. The year would have been 1990 or 1991. My son was approximately two years old and now he’s 22. So approximately 1999 to 1991.

Q. Okay. And you attended that centre just the once?

A. Yes I did.

Q. Okay. Did you attend any other centre?

A. No I didn’t.

Q. While at the Smith Centre did you disclose the abuse to anybody?

A. Absolutely. Yes I did.

Q. Okay, do you remember the persons that you disclosed it to?

A. My counsellor’s name I don’t recall.

18In response to defence counsel’s questioning, N.R. said that she had gone for counselling with a woman who she knew as “Carey” at the Elliot Lake Family Health Centre, starting over a year before the preliminary hearing, which was on February 17, 2011. C.B. said she had attended an alcohol rehabilitation centre, which she called the Smith Clinic, once, around 1990 or 1991, where she disclosed “the abuse” to a counsellor whose name she did not recall.

19Mention has been made of the Affidavit of Colleen Guertin filed in support of the Application. I find it is largely based on information received from defence counsel. I agree with Crown counsel that that is inappropriate, and I would discourage this approach to providing evidence. It is a thinly disguised effort by counsel to give evidence himself. Moreover, when one compares what the Affidavit says with what the transcripts actually say, the Affidavit substantially overstates. Also, there is an allegation that the complainant’s statements to the police were “frought with memory deficiencies” but the statements are not appended and no examples are given to illustrate or confirm the point. In light of its deficiencies, little use could be made of this Affidavit.

Analysis

20ANALYSIS

21I reject defence counsel’s argument regarding the combined effect of the assertions listed in s. 278.3(4). The subsection clearly states that any one or more of the 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. “On their own” in this context does not refer to an individual allegation, but to one or more of them unsupported by other evidence.

22As previously indicated, the only evidence made available to the court to support the Application is in the preliminary hearing transcript. Dealing first with N.R., the defence’s questioning of her at the preliminary hearing did not lay a foundation for the third party record request. For example, there is no evidence of:

• what she went to counselling for (although one might argue that the context of her answer suggests that she went for counselling regarding abuse of her by the accused)

• what topics were covered

• whether she gave an account of her allegations against the accused

• whether any notes were taken

• whether she reviewed such notes for completeness and accuracy.

On the evidence available, the court cannot say that there is a record at all, let alone that it is likely relevant to an issue at trial or to the competence of a witness to testify. There is even less available in C.B.’s situation.

Decision

23DECISION

24In light of the above, I find that the accused has failed to establish that there are any records, or that any such records are likely relevant to an issue at trial or to the competence of a witness to testify. Therefore, the Application is dismissed.