ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-97-MO
DATE: 2014-04-08

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

A. Sadler, for the Crown, Respondent

• and -

Wesley Gilberds

M. Hargadon, for the Defendant, Applicant

Accused

C.M.

D. Dubinsky, for the Complainant

Complainant

Lakehead District School Board
Third Party

Children’s Centre, Thunder Bay
Third Party

Mr. J. Lester for Third Party Lakehead District School Board

Not appearing

HEARD: March 26, 2014 at Thunder Bay, Ontario

Mr. Justice J.S. Fregeau

Decision on Third Party Records Applications

#1 Records in Possession of Lakehead District School Board and
#2 Records in Possession of the Children’s Centre, Thunder Bay

Nature of the Application

1Wesley Kevin Gilberds (the “applicant”) stands charged that on or about July 1, 2005, in Thunder Bay, Ontario, he did commit a sexual assault on C.M., contrary to section 271 of the Criminal Code and further, on the same date, that he touched C.M., a person under the age of sixteen, for a sexual purpose contrary to section 151 of the Code. The applicant has elected trial by judge and jury. The trial is scheduled to begin in Thunder Bay on May 20, 2014.

2The applicant has brought two pretrial applications before this court. In the first application, the applicant requests an order compelling the disclosure of third party records currently in the possession of the Lakehead District School Board (the “school board”). In the second application, the applicant requests an order compelling the disclosure of third party records currently in the possession of the Children’s Centre, Thunder Bay (the “Children’s Centre”).

3The third party records in the possession of the school board and sought by the applicant are:

1. Hand written or electronically recorded notes of Ms. Laura Ward, school social worker in C.M.’s school, prepared on the date of and as a result of C.M.’s disclosure to her, of the allegations against the applicant, including the account received by Ms. Ward from C.M.; and,

2. The dates, durations and types of counselling services Ms. Ward provided to C.M. subsequent to this disclosure.

4The third party records in the possession of the Children’s Centre sought by the applicant are:

1. Any notes and/or records held by the Children’s Centre containing any account of and/or description by C.M. of the allegations against the applicant; and,

2. The dates, durations, types and issues for which C.M. received counselling services from the Children’s Centre.

5Due to the nature of the charges on which the applicant is indicted, the procedure on the applications before the court is governed by section 278 of the Criminal Code. This hearing was conducted pursuant to s. 278.4(1) of the Code to determine if the subject records shall be produced to the court for review. These reasons address the applicant’s request for such an order pursuant to s. 278.5(1) of the Code.

Background

6The charges against the applicant are alleged to have occurred in 2005 when C.M. was nine years old. C.M. has alleged that the applicant touched her inappropriately on two separate occasions in 2005. Both incidents are alleged to have occurred in the applicant’s home over the course of four days when C.M. stayed with the applicant while C.M.’s mother was out of town. C.M.’s mother and the applicant were in a relationship at the time.

7The applicant’s preliminary inquiry was held on June 10 and August 27, 2013. The application record contains portions of the transcripts containing the preliminary inquiry evidence of C.M., her mother and of Laura Ward.

8The applicant is alleged to have several distinctive body piercings. Both the complainant and her mother gave evidence about these piercings at the preliminary inquiry. The complainant’s first disclosure of the allegations against the applicant was to Ms. Ward, the social worker at C.M.’s school. C.M. also disclosed the allegations to her mother shortly after the disclosure to Ms. Ward. Finally, the complainant gave a videotaped statement to the police. At the preliminary inquiry, C.M. testified that she told Ms. Ward “the exact same thing I said on the DVD” (statement to police).

9At the preliminary inquiry, Ms. Ward testified that C.M. disclosed this complaint to her and that she had had no prior contact with C.M. Ms. Ward testified that she recorded C.M.’s allegations both by way of hand-written notes and in a Word document.

10Ms. Ward in turn provided this information to Ms. Heather DeSanto of the Thunder Bay Children’s Aid Society. Ms. DeSanto’s notes of Ms. Ward’s call to her make reference to the fact that C.M. was experiencing behavioural problems at school. Ms. Ward does not recall providing that information.

11Ms. Ward provided additional counselling services to C.M. but testified that this counselling did not relate to C.M.’s allegations against the applicant or to suggested school behavioural problems. Ms. Ward testified that she eventually referred C.M. to the Children’s Centre for further counselling.

Applicant’s Position

12The applicant, in submitting that these records should be produced to the court for review pursuant to s. 278.5(1) of the Code, is relying on “likely relevance” to an issue at trial pursuant to s. 278.5(1)(b) and that production of the records is necessary in the interests of justice pursuant to S. 278.5(1)(c).

Laura Ward’s Notes of Initial Disclosure

13The applicant submits that the complainant does not have a reasonable expectation of privacy in Ms. Ward’s notes of her initial disclosure to Ms. Ward. Ms. Ward is submitted to be a school social worker with whom C.M. had no prior relationship, therapeutic or otherwise. Further, the applicant submits that C.M. disclosed to Ms. Ward knowing that Ms. Ward was statutorily required to further report the matter to the Children’s Aid Society who in turn were required to notify the police. In essence, the applicant submits that C.M. disclosed to Ms. Ward primarily for the purpose of having a police investigation and prosecution started.

14In these circumstances, the applicant submits that C.M. did not have a subjective expectation of privacy in Ms. Ward’s notes. In the alternative, it is submitted that any subjective expectation of privacy held by C.M. was not objectively reasonable.

15In addressing the question of whether the notes are likely relevant to an issue at trial, the applicant submits that Ms. Ward’s notes of C.M.’s initial disclosure to her represent C.M.’s first complaint of the applicant’s alleged inappropriate actions. This is suggested to be a form of prior statement by C.M. as to what allegedly occurred between her and the applicant.

16C.M subsequently disclosed to her mother and also provided a videotaped statement to the police. There are allegations that the applicant had distinctive body piercings and video equipment in his bedroom. The applicant submits that he wishes to determine if these matters were also disclosed to Ms. Ward in the first instance. The consistency, or lack thereof, in C.M.’s various disclosures is suggested to potentially bear on the reliability of her evidence and her overall credibility.

Laura Ward’s Notes as to the Dates, Durations of and Types of Counselling Provided to C.M.

17The applicant acknowledges that C.M. has an expectation of privacy in these records. The specific request in this context is said to have been framed as it has been to minimize the infringement on C.M.’s privacy expectation should production for review be ordered.

18In addressing the likely relevance of these records to an issue at trial, the applicant submits that he is desirous of determining the complainant’s state of mind at the time of her initial disclosure. Further, the applicant suggests that what occurred between the time of the complainant’s disclosure to Ms. Ward and her statement to the police will “complete the narrative”.

19In submitting that the necessary evidentiary foundation has been established for this request, the applicant points to the preliminary inquiry evidence of Ms. Ward and the complainant’s mother. It is submitted that both of these witnesses were reluctant to testify as to C.M.'s alleged behavioural problems.

Notes and/or Records of the Children’s Centre Containing C.M.’s Allegations against the Applicant

20The applicant requests this court order the Children’s Centre produce documents containing any specific factual account provided to them by C.M. as to what C.M. believes happened to her. The applicant acknowledges that there is a high reasonable expectation of privacy in these records and that likely relevance to an issue at trial is not significant at first blush.

21However, the applicant submits that this case is a historical sexual assault prosecution and that the consistency of the allegations over time bears on the reliability of the complainant. The applicant seeks only any factual account of C.M.’s allegations provided to counsellor(s) at the Children’s Centre. In this narrow context, the applicant suggests that any factual account of C.M.’s allegations against the applicant recorded by the Children’s Centre satisfy the likely relevant to an issue at trial test.

The Children’s Centre’s Notes as to the Dates, Durations of and Types of Counselling Provided to C.M.

22The applicant submits that this information may bear on the credibility and reliability of the complainant once the dates of these counselling sessions are inserted into the chronology of C.M.’s statement to police and the date of the preliminary inquiry. The applicant submits, candidly, that if and when this information is reviewed, it may provide an evidentiary basis for a further application.

The Crown’s Position

Laura Ward’s Notes of Initial Disclosure

23Subject to this court’s consideration of submissions from C.M. and the school board on the issue of production, the Crown submits that the applicant has likely met the onus of establishing likely relevance with respect to Ms. Ward’s notes of C.M.’s initial disclosure to her, for the purpose of first stage disclosure of the material to the court for review.

24However, the Crown submits that there is no evidentiary foundation for the applicant’s submission that C.M. disclosed to Ms. Ward primarily for the purpose of initiating an investigation. The Crown submits that this court cannot take judicial notice of the fact that a 15 year old complainant is aware of the mandatory disclosure regime imposed upon social workers and child protection workers in Ontario. The Crown submits that C.M.’s subjective expectation of privacy in Ms. Ward’s notes is therefore a reasonable one in the circumstances.

Laura Ward’s Notes as to the Dates, Durations of and Types of Counselling Provided to C.M.

25The Crown submits that the applicant has failed to establish that these records satisfy the likely relevant to an issue at trial test. The Crown submits that the evidentiary record produced by the applicant on this application indicates that C.M.’s allegations against the applicant were not addressed during these counselling sessions. Further, the same record indicates that C.M.’s alleged behavioural problems were also not the subject matter of any subsequent counselling sessions between C.M. and Ms. Ward.

26The Crown submits that C.M. has a strong and reasonable expectation of privacy in this information because it has been created within the confines of a confidential and therapeutic relationship. Given same, the Crown submits that the applicant has not met the threshold required for third party disclosure of these records to the court for review.

27The Crown defers to the position of C.M. in regard to the request for disclosure of the records from the Children’s Centre.

C.M.’s Position

28In general terms, C.M. strenuously objects to the disclosure of any of the material sought by the applicant. It is submitted that C.M.’s privacy interests in all records sought outweighs the applicant’s right to make full answer and defence and that production of these records is not necessary in the interests of justice.

Laura Wards Notes of Initial Disclosure

29C.M. submits that it is particularly relevant that disclosure was first made to a school social worker, not to the police, the school principal or a sports coach. Disclosure is suggested to have been made to a trained social worker reasonably expected to provide a supportive environment and advice. C.M. submits that whether there was a prior or subsequent counselling relationship is irrelevant. A subjective privacy interest exists arises which is objectively reasonable.

30C.M. submits that there is no evidence filed on this application to support the proposition that C.M. was aware, at the time of her disclosure to Ms. Ward, that Ms. Ward would be required to forward the information to the CAS who would in turn provide the information to the police.

31While conceding that this mandatory disclosure regime may be within the awareness of the general public, C.M. submits that there is no basis upon which this court can take judicial notice of the fact that same is within the knowledge of teenage children in general or of C.M. in particular.

32C.M. submits that her expectation of privacy in her communications with Ms. Ward is thus objectively reasonable.

Laura Ward’s Notes as to Dates, Durations of and Types of Counselling Provided to C.M.

33C.M. submits that Laura Ward’s evidence at the preliminary inquiry was that she did not provide counselling to C.M. for the conduct which is allegedly the subject matter of the charges before this court. She also testified that it was not for C.M.’s alleged behavioural problems. The subsequent counselling apparently related to matters other than these issues.

34C.M. submits that the applicant must, in these circumstances, be looking for records confirming for what other matters C.M. was receiving counselling for from Ms. Ward. Given this, C.M. disputes that any other information held by Ms. Ward as to other counselling engaged in with her by C.M. can possibly be likely relevant to an issue at trial.

Children’s Centre’s Records

35C.M. submits that there is a high subjective expectation of privacy in regard to all records pertaining to her and held by the Children’s Centre. C.M. submits that other counselling sessions or counselling she may have received for matters not related to the issues before the court cannot be and are not likely relevant to an issue at trial.

The School Board’s Position

Laura Ward’s Notes of Original Disclosure

36The school board submits that Ms. Ward and other school social workers and counsellors fulfill a crucial function for very vulnerable young people in our society. It is submitted that young people should be able to attend with a school social worker knowing that their communications will remain confidential. Should disclosure be ordered in anything other than very exceptional circumstances, young people would be reluctant to come forward and engage counsellors.

37The school board also takes exception with the applicant’s suggestion that any subjective expectation of privacy is not objectively reasonable due to the mandatory disclosure regime imposed on social workers and child protection workers. To suggest that C.M. disclosed to Ms. Ward knowing it would precipitate an investigation or to cause an investigation to be started is a submission without an evidentiary foundation, according to the school board.

Laura Ward’s Notes as to Dates, Durations of and Types of other Counselling Services Provided to C.M.

38While acknowledging the focussed nature of this disclosure request, the school board submits that it nonetheless represents a significant breach of C.M.’s expectation of privacy. The school board also submits that any other counselling provided to C.M. by Ms. Ward, given that the evidence on this application suggests it was unrelated to the allegations before the court, does not pass the likely relevant test.

The Children’s Centre’s Position

39The Children’s Centre filed no material on this application and did not appear at the hearing of the application.

Discussion

40In determining if the requested records should be produced to the court for my review in order to determine if they should be disclosed to the applicant for the purpose of making full answer and defence at trial, ss. 278.5(1)(b) and (c) of the Code require that I be satisfied the each record ordered produced to the court is:

1. Likely relevant to an issue at trial; and,

2. That production of the record is necessary in the interests of justice.

41Section 278.3(4) of the Code enumerates eleven assertions which, on their own, are not sufficient to establish that the record is likely relevant. In R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, at para. 118, the court explained that subsection 278.3(4) “does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on bare assertions of the listed matters, where there is no other evidence and they stand on their own. What the section requires is that the accused be able to point to case-specific evidence or information that shows that the record is likely relevant to an issue at trial.”

42The concept of likely relevance in the context of production means that there is a “reasonable possibility that the information is logically probative to an issue at trial…” R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, para. 22. The Supreme Court of Canada confirmed this meaning of likely relevant in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 and further explained, at para, 33, that:

An “issue at trial” here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case…” At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch – 22 position.

43As noted by the Ontario Court of Appeal in R. v. Kokopenance, 2011 ONCA 759, para. 17, likely relevance does not require an applicant to establish the probative value of the record sought; it must only be shown that there is a reasonable possibility that the documents are logically probative to the identified issues.

44Subsection 278.5 (1)(c) of the Code requires the applicant to establish, in addition to likely relevance, that the production of the record to the court for review is necessary in the interests of justice. This requires the court, without having seen any of the records requested, to balance the applicant’s right to make full answer and defence against the complainant’s right to privacy.

45In determining whether to order the production of a record for review pursuant to s. 278.5(1), s. 278.5(2) of the Code requires me to consider the salutary and deleterious effects of this determination on the accused’s right to make full answer and defence and on the right to privacy and equality of the complainant. In particular, I am required to 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.

46In general terms, these provisions do not require the court to engage in a conclusive evaluation of each of the factors, but rather require the court to take these factors into account to the extent possible at this stage in the proceedings in deciding whether to order the production of documents for inspection by the court. The enumerated factors are relevant, but a trial judge is free to make whatever order is necessary in the interests of justice.

Laura Ward’s Notes of Initial Disclosure

47C.M’s initial disclosure of the allegations against the applicant was made to her school social worker. C.M.’s evidence at the preliminary inquiry was that she told Ms. Ward the same thing she told the police in her statement. I am satisfied that this record is likely relevant and that production of the record to the court is appropriate.

48I agree that this record of what the complainant first described she alleges happened to her is a form of prior statement that may ultimately impact on the credibility of C.M. and the reliability of her evidence. It may be necessary to enable the accused to make full answer and defence.

49In my opinion, C.M’s expectation of privacy in this record is somewhat diminished as she alleges that it contains the same information that she later gave to the police. However, while diminished, C.M.’s privacy rights in this record still exist. I will review this record to determine if it, or only some portion of it, should be disclosed to the applicant.

Laura Ward’s Notes as to the Dates, Durations of and Types of Counselling Provided to C.M.

50The evidence filed in support of this application indicates that Ms. Ward provided some counselling to C.M. subsequent to her disclosure to her, but that it was not related to C.M.’s allegations against the applicant nor was it related to C.M.’s behavioural issues, as alluded to in Ms. Santos’ notes (CAS worker).

51I am persuaded that there is a reasonable possibility that this information may be logically probative to the credibility of C.M. and the reliability of her evidence. At this stage, the applicant is not required to establish potential probative value in the record sought. C.M.’s expectation of privacy in the information contained in these records will be impacted by production of it to the court. However, the content of Ms. Ward’s counselling notes is not being produced.

52Production to this court, for review, of details as to dates of Ms. Ward’s counselling sessions with C.M., the duration of them and a general description of the nature of the counselling provided, in order for me to assess relevance in more depth, represents a minimal impact on C.M.’s privacy interests. This information shall be produced to the court for review.

Notes and/records of the Children’s Centre Containing C.M.’s Allegations against the Applicant

53What is sought in this context is any factual account of C.M.’s allegations against the applicant, as provided to her counsellor(s) at the Children’s Centre. Again, I am persuaded, at this stage and without the benefit of having reviewed the record, if one indeed exists, that there is a reasonable possibility that this information may relate to the credibility and/or reliability of C.M.

54I agree that in a historical sexual assault prosecution an accused should be able to fully explore the consistency of a complainant’s allegations of what she believes happened to her. As the factual account of C.M.’s allegations has been provided to the police and as only her factual account as provided to her Children’s Centre counsellor is being sought, the impact on C.M.’s privacy interest is minimal.

55Any counsellor notes or records containing a factual account of C.M.’s allegations against the applicant and held by the Children’s Centre shall be produced to this court for review.

The Children’s Centre’s Notes as to the Dates, Durations of and Types of Counselling Provided to C.M.

56I am not persuaded that any of the information requested under this category is likely relevant to an issue at trial. This request is denied.

Summary

57For the reasons provided herein, the following records and/or documents are ordered to be produced to this court for my review in order to determine whether the records, or any part of them, should be produced to the applicant:

1. The hand written or electronically recorded notes of Ms. Laura Ward prepared on the date of and as a result of C.M.’s disclosure to her of the allegations against the applicant;

2. Records containing only the dates, durations and general types of counselling services provided to C.M. by Ms. Laura Ward subsequent to C.M.’s disclosure to her;

3. The notes and/or records of the Children’s Centre, Thunder Bay or of a counsellor in the employ of the Children’s Centre, containing only the factual account, if any, provided by C.M. of the allegations against the applicant.

The Hon. Mr. Justice J.S. Fregeau

Released: April 8, 2014

COURT FILE NO.: CR-13-97-MO
DATE: 2014-04-08

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

Wesley Gilberds

DECISION ON APPLICATIONS

Fregeau J.

Released: April 8, 2014

/sf