ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)2187/12
DATE: 20140305
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
S.Y.D.
Applicant
Jill A. Prenger, for the Crown
P. Band and S. O’Connor, for A.I.D.
Veruschka Fisher-Grant, for A.D.
Victor Giourgas, for the Applicant
PUBLICATION BAN
PUBLICATION BAN
An order has been made pursuant to s. 486.4(1) of the Criminal Code of Canada prohibiting the publication broadcast or transmission of any information that could identify the complainants
Ruling on Stage 2, Third Party Records Application
Baltman J.:
Background
[1] The Applicant has been charged with assaulting his four sons with various implements, over a ten year period. All four children received counselling at various venues in subsequent years. The Applicant sought production of those records, pursuant to R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411.
[2] There are two stages to an O’Connor application. At the first stage, the accused must demonstrate to the court that the information sought is “likely to be relevant”. If so, the records are produced to the court and it moves to the second stage, which is a balancing test: the court weighs the prejudicial effects of a production order against the need for the accused to make full answer and defence.
[3] On November 22, 2013, I released my decision on the first stage, to the effect that the Applicant had established the likely relevance of the records with respect to the two younger sons, A.I.D. and A.D. I determined that he had not met the threshold with respect to any of the other targeted records: R. v. S.Y.D., 2013 ONSC 6926 (S.C.).
[4] All counsel agreed that if, following my review of the records relating to A.I.D. and A.D., I determined that no records should be produced to the Applicant, I could communicate that decision in writing. I have so determined, and my reasons are set out below. In order to avoid undermining the very confidentiality that the O’Connor process is set up to protect, these reasons are summary in nature.
Reasons
[5] In my previous decision on Stage 1 of the application, I found that the records relating to A.I.D. and A.D. were likely relevant because both boys testified at the preliminary hearing that the counselling “refreshed” their memories of the alleged abuse by their father. In other words, to follow the wording of Justice Doherty in R. v. Batte (2000), 2000 5751 (ON CA), 145 C.C.C.(3d) 449 (Ont. C.A.), at para. 69, this amounted to “evidence that the counselling process played [a] role in reviving, refreshing or shaping the [complainant’s] memory” (my emphasis).
[6] Having now had the benefit of carefully reviewing the actual records, I do not believe that is what happened in this case. There is no indication in the records that the counselling process helped either of the boys to revive or recall memories that were otherwise unavailable. Nor is there any suggestion that either son repressed, denied or even forgot any of the critical details that make up the allegations. And there is certainly no indication that the therapy in any way shaped the boys’ recollections. Rather, my impression from reading the records is that, at most, the counselling process, by raising the general topic of family relationships, prompted the boys to recall certain details on their own. Neither son appeared to have any difficulty recalling the essential details of what had (allegedly) occurred.
Conclusion
[7] As I have concluded the records disclose no basis to believe that the counselling process refreshed, revived or shaped the boys’ memories, they shall not be produced. This obviates any need for counsel for A.I.D. and A.D. to attend the next court date on this matter, being April 8, 2014.
Baltman J.
Released: March 5, 2014
COURT FILE NO.: CRIMJ(P)2187/12
DATE: 20140305
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
S.Y.D.
Ruling on Stage 2, Third Party Records Application
Baltman J.
Released: March 5, 2014