ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13-0003
DATE: 2013-08-16
BETWEEN:
Arnold Debassige
Applicant
-and-
Children`s Aid Society of the Districts of Sudbury and Manitoulin and Dr. Barbara Erskine
Respondents
–and–
HER MAJESTY THE QUEEN
Respondent
Michael J.N. Haraschuk, for the Applicant
Dawn V. Dubois, for Children’s Aid Society
James Weppler, for Dr. Barbara Erskine
Jeremy Schaffer, for the Crown
HEARD: July 24, 2013 in Gore Bay, ON
reasons
Del frate J.:
[1] The applicant, Mr. Debassige, brings this application pursuant to section 278.3 of the Criminal Code of Canada for an order for the production and disclosure of all records in the possession of the respondents, the Children's Aid Society (“CAS”) and Dr. Barbara Erskine, in regards to any counseling, treatment or medication, or any complaints made to them by S.A. (“the complainant”).
Background
[2] The applicant stands charged with touching for a sexual purpose, invitation to touch for a sexual purpose, sexual assault and luring a child contrary to the Criminal Code of Canada. These incidents are alleged to have taken place on June 15, 2011 at the Township of Central Manitoulin.
[3] These allegations involve S.A., born on August 9, 1996, who at the time was a ward of CAS. S.A. was being treated by Dr. Erskine, a psychologist, for his anxiety issues.
[4] It appears that in April of 2012, the complainant discussed the alleged incident of June 15, 2011 with Dr. Erskine. Dr. Erskine subsequently contacted CAS who in turn reported the allegations to the police.
[5] The complainant spoke to Constable Mack on April 19, 2012 and a formal statement was taken on April 25, 2012. In describing one of the incidents, the complainant makes the following statements:
S.A.: And ya we went up to one of the cabins and um I remember because I was, I was scared because I didn't know what he was doing. You know I usually um make things up in my head like, like false um I thought this whole thing was going on in my head, like I thought he just wanted to come and talk to me about something.
Mack: Okay.
S.A.: Like, I could be making this whole thing up that he wants to do something with me, like ya. And so then he put his hand on my thigh and I had my hands like this so it just kind of, he wouldn't move his hand up.
Mack: Okay.
[6] He then states:
Mack: Okay, did he at any point ask you before he started to perform oral sex on you?
S.A.: No I was still kinda testing the waters to see if this you know if he really, you know I wasn't making this up in my head.
[7] Further on, he states:
Mack: In that e-mail, did Arnold indicate to you that he wanted to do anything to you or with you sexually?
S.A.: Um he just said that I um, if I was alone, he would come and talk to me. But you know I make, I tend to make things up in my head so in this incident I didn't want to do that so. All he really said was I, ya you look good, you look really good.
Mack: Okay, S.A. just to confirm you said that sometimes you tend to make things up in your head. What you've told me here today is it, that was all true?
Alan: Ya, um I'm talking about is, when sometimes I like someone, I um, I, I'm not used to I don't know, kind of affection so when someone gives me some kind of affection I kind of take it the wrong way. I think oh, that person must like me.
Mac: Okay.
S.A.: And so I, I, I just get. I just get mixed up in my head. I don't actually make up events in my head.
Mack: I see okay.
S.A.: I just misinterpreted and stuff.
Mack: Okay that's, that's fair.
[8] The preliminary inquiry was held on February 11, 2013. At p. 46 of the transcript, the complainant was asked about his relationship with the psychologist, Dr. Erskine. In cross–examination, the following exchange took place:
Q. S.A., my question was why are you seeing a psychologist?
A. I’ve been seeing her since I was a child. It’s just for someone to talk to. Like I get stuff – I you know, I can’t really tell anyone else – I could tell her stuff like that.
Q. Okay is there a medical condition.
A. No I – no, I don’t have a medical condition.
Q. I just – I noticed in the disclosure that it was mentioned that you suffer from anxiety?
A. Yes.
Q. Okay do you take medication for that?
A. No.
Q. Who is your psychologist?
A. Barb Erskine.
[9] The following exchange continues at p. 47 of the transcript:
Q. Now something that you mentioned to the police officer is that you make things up in your head? Do you remember telling the police officer that?
A. I do.
Q. Okay what did you mean by that?
A. I meant I jump to conclusions like you know, like if you have a crush on someone at school and like you know, kind of like it’s – you, you sort of take in the wrong signals and I don’t suffer from dementia or anything if that’s what you’re asking.
Q. I was wondering if that’s the reason why you saw your – you see your psychologist…
A. No, I …
Q. … Barb Erskine.
A. It’s Erskine.
Q. Barb Erskine.
A. I felt that thing after I saw Barb Erskine.
Q. And this is something you’ve noticed for how long, jumping to conclusions about things?
A. Since high school.
Q. Okay since before obviously your meetings with Mr. Debassige?
A. Yes.
[10] With regards to the CAS records, the following exchange took place at the preliminary inquiry at pp. 71-73 of the transcript during the cross-examination by Mr. Haraschuk of officer Dave Mack:
Q. Did you receive any materials from the Children's Aid Society?
A. I did. That was 20th of April; a Friday at 9:00, 9:42 in the morning. I spoke with CAS worker, Laura Magi and - because if she had been working on that as well, along with Karen Robinson. I basically just requested any notes or reports that they could provide us.
Q. Okay.
A. Sometime later that day, I believe it was we received a fax - very basic report and that was just eventually turned over to the OPP as well.
Q. Okay in terms of, you say a basic report, what did this report entail?
Croteau: I’m going to object at this point, Your Honour. That – any report from the Children’s Aid Society would be properly the subject of a third party records application.
Haraschuk: But the, the police gathered it during the course of the investigation. It’s not in the CAS’s hands. It’s been disclosed.
Court: So are you saying that there is no longer a privacy interest in those because of the mere fact that the Society turned them over to the police? They haven’t been disclosed to you obviously?
Haraschuk: No.
Court: No.
Haraschuk: Again, this is, this likely will be a third party records application or some sort of application at the trial. I’m anticipating it is relevant material. I’m just trying to gather as much information about the material as, as I can for that particular application. It’s my understanding that the crown has the documents but it’s been sealed and it’s not, it’s not being disclosed to me.
Court: That’s right.
Haraschuk: Until the, until the trial judge makes a determination on it.
Court: Well, I suppose you could ask questions as to when these records were made. There’s maybe a temporal connection between when the record was made and the allegation before the court. Any questions of that nature so that you can maybe determine – I mean they’re relevant but are they probative to an issue at trial. I mean are we fishing in waters that have relevant information or …
Haraschuk: I understand.
Court: … hoping to catch the fish?
Haraschuk: I understand, Your Honour’s ruling. Perhaps I’ll, I’ll canvass questions of a more benign nature …
Court: Yes
Haraschuk: … surrounding the documents.
Court: yes
Q. Sir, do you recall how many pages the document was?
A. I can’t say for sure I recall.
Q. Okay and these documents, do you know who made the documents at the CAS office?
A. Again I can’t say with certainty who it was; if it was a supervisor versus one of the workers.
Q. Okay do you know whoever made the documents, do you know when they were in fact made?
A. I’m – if I recall I think they might have been made that day, that morning once I had made the request.
Q. Okay and I don’t believe I’m offending, Your Honour’s ruling with this question but these documents obviously pertain to your investigation?
A. Yes.
[11] The above exchanges form the basis for the present application for disclosure of records held by CAS and Dr. Erskine.
[12] Initially, the applicant had requested disclosure of all records held by CAS and Dr. Erskine. At this hearing however, the request was narrowed from the time that the complainant stated he began having the above-noted misconceptions, being some two years before the alleged incident. The applicant is now restricting the request from April 2009 to the date of this hearing vis-à-vis Dr. Erskine. The applicant is seeking disclosure of CAS records from the date of disclosure in April 2012 to the date of the hearing of this motion.
Position of the Applicant
[13] It is the applicant’s submission that the primary issues in this trial will be the credibility of the complainant and the reliability of his testimony. Accordingly, any statements about the alleged incidents that the complainant would have made to either Dr. Erskine or to his CAS supervisor become relevant.
[14] The applicant further contends that although the privacy rights of the complainant must be respected and not interfered with lightly, the right of the accused to a full answer and defense is just as important if not more so. Accordingly, by permitting the judge to review and vet the records, both of these objectives can be accomplished. Should the trial judge determine that the records are relevant, the records will be disclosed. Alternatively, if they are not relevant, little if any harm will result from such an examination.
Position of the Respondents
[15] Although stated differently, all three respondents emphasized the importance of the privacy rights of the complainant. Prior to these rights being infringed, even with a review of the records by the trial judge, the applicant must establish an evidentiary basis on which to argue that these records are “likely relevant” and that their production is “necessary in the interests of justice” as stipulated in section 278.5(1) of the Criminal Code of Canada.
[16] The respondents submit that neither of these requirements has been met since there have been no medical diagnoses other than anxiety, and the complainant sees Dr. Erskine not for formal treatment, but “just to talk”. There is no evidence that he is taking any medication to deal with this anxiety problem or for any other physical or psychological challenge.
[17] It is further submitted by the respondents that even the statements made by the complainant to the investigating officer about “making things up” are insufficient to establish an evidentiary basis indicating that the records are “likely relevant” and “necessary in the interests of justice”..
[18] The respondents submit that as read in the context of the statement and his explanations, the complainant fully understood and appreciated what he was saying and there is no indication of delusions.
[19] Lastly, the respondents contend that even though Dr. Erskine was the first professional person to whom the complainant disclosed the incident, the case law indicates that disclosure of those records must be considered with caution.
The Law
[20] In a section 278.3 application, the judge must balance the complainant's privacy rights surrounding the records in question and the rights of the accused to make a full answer and defence. If the non-disclosure affects the rights of the accused to a full answer and defence, then the records must be produced: see R. v. Mills, 1999 637 (SCC), [1999] S.C.J. No. 68, [1999] 3 S.C.R. 668 [Mills].
[21] Mills, at para. 45, states that the “likely relevance” test enunciated in R. v. O’Connor, 1995 51 (SCC), [1995] S.C.J. No. 98, [1995] 4 S.C.R. 411 at para. 22, would be met if there is “a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify.”
[22] In arriving at this conclusion, the applicant must establish that the records are “likely relevant” to the issues in question. Thus, an evidentiary basis must be established prior to determining “likely relevance”. As stated by Doherty J.A. in R. v. W.B., 2000 5751 (ON CA), [2000] O.J. No. 2184, 49 O.R. (3d) 321:
[72] I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold only if there is 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. To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the purposes of determining the Crown's disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.
[71] …In my view, an accused must be able to point to something in the records adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.
[77] It will not, however, suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be 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. In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant's statement will have some probative value in the assessment of her credibility.
Discussion
[23] In this case, the applicant submits that the statements made to the investigating officer and at the preliminary inquiry about “his making things up” would be sufficient to establish the evidentiary basis. The records of the psychologist are of particular importance since she would have been one of the first persons to whom the complainant would have told what happened. The version that he told the psychologist may very well “have some potential impeachment value”.
[24] I agree with that submission. In this case, the records are not readily available to the defence. If there is a contradiction or particulars about the relationship with the accused, this information may assist the defence, not only for impeachment value but also for a full answer and defence. Such information can only be obtained by vetting the records of the psychologist. The records of Dr. Erskine will therefore be produced for my review. The records from April 1, 2009 to the date of July 24, 2013 will be produced forthwith.
[25] With respect to the CAS records, in my view the applicant has not succeeded in establishing an evidentiary basis since the complainant stated that he did not report the incident to representatives of CAS and there was no further evidence on that point.
[26] What is troublesome, however, is that Constable Mack took it upon himself to obtain the records from CAS without following the proper procedures. In other words, he called CAS on April 20, 2012 and spoke to Laura Magi and requested "any notes or reports that they could provide us" (p. 71, l. 29 of the transcript of the preliminary inquiry). Those notes and reports were faxed to Constable Mack and he turned over those notes to the Ontario Provincial Police. Subsequently, those notes were delivered to the Crown's office and immediately sealed.
[27] When questioned at the preliminary inquiry, Constable Mack could not recall the contents of the records, who prepared them, or when exactly they were sent. It appears from his answers that he, and possibly other investigating officers, may have reviewed those notes. There would be an appearance of injustice should these records not be reviewed by a judge at this point. Accordingly, whatever records were provided by CAS to Constable Mack will be produced forthwith.
[28] Order as per reasons.
Mr. Justice Robert G.S. Del Frate
Released: August 16, 2013
COURT FILE NO.: CR13-0003
DATE: 2013-08-16
ONTARIO
SUPERIOR COURT OF JUSTICE
Arnold Debassige
Applicant
-and-
Children`s Aid Society of the Districts of Sudbury and Manitoulin and Dr. Barbara Erskine
Respondents
–and–
HER MAJESTY THE QUEEN
Respondent
REASONS
Del Frate J.
Released: August 16, 2013