ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 559/13

DATE: 20140723

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.F.

Applicant

N. Gluzman, for the Crown

S. Agbakwa, for the Applicant
J. Birenbaum, for the Complainant

HEARD: July 22, 2014

RULING ON THIRD PARTY RECORDS APPLICATION

Publication of Any Information Herein is Prohibited under s. 278.9 of the Criminal Code of Canada

MILLER, J.

[1] D.F. is charged with Sexual Assault of D.H. alleged to have occurred during the month of June 2010; Sexual Assault of D.H. causing Bodily Harm alleged to have occurred during the month of October 2010; Sexual Assault of D.H. alleged to have occurred on May 11, 2011; Assault of D.H. causing Bodily Harm alleged to have occurred July 2010; Assault of J.H. alleged to have occurred April 26, 2011; and Assault of K.H. alleged to have occurred April 26, 2011.

[2] Mr. D.F. seeks copies of the cellphone records for telephone number [ phone number 1 ].

[3] Mr. D.F. relies on evidence that at the time D.H. gave a statement to police on May 25, 2011 she indicated that [ phone number 1 ] was the cellphone number of Mr. D.F.. In the same statement D.H. told police that there had been telephone contact between her and Mr. D.F. following the Sexual Assault alleged to have occurred May 11, 2011.

[4] It is acknowledged that the subscriber to the cellphone service for number [ phone number 1 ] was D.H. and that she therefore has a privacy interest in the records.

[5] Affidavit evidence submitted on behalf of Mr. D.F. indicates that he used that cellphone during his relationship with D.H. and stopped using it after he and D.H. separated in May 2011 and he has since lost the phone.

[6] Counsel for Mr. D.F. submits that Mr. D.F. requires access to the records so that it can be confirmed or refuted whether there was telephone contact between Mr. D.F. and D.H. following May 11, 2011.

[7] It is to be noted that the records could only confirm or refute telephone contact between Mr. D.F. and D.H. if the cellphone [ phone number 1 ] was used to make or receive a call.

[8] The issue as to whether there is likely relevance to the records is further complicated by the fact that Mr. D.F. indicates he does not recall what number D.H. was using at the time, and D.H. has declined to provide that information to police. Mr. D.F. asserts that by being able to review the records he may be able to recall the number used by D.H. at the time, and if so, there may be a further third party records application in respect of telephone records for the number used by D.H. at the relevant time.

[9] There is evidence that the mobile service provider, Mobilicity, can only provide telephone records from April 30, 2011. No records for the period before that date exist.

[10] Counsel for D.H. asserts that Mr. D.F. has not met the test for likely relevance, given the limited time period the records are available for, and because D.H. did not indicate in her statement to police or in her testimony at the preliminary hearing of this matter that [ phone number 1 ] was used by her or by Mr. D.F. to communicate with each other in the period following April 30, 2011. Counsel submits that the relevance of the records is tenuous as communication could have been by use of entirely different telephones.

[11] Counsel for D.H. also asserts that D.H., as the subscriber for [ phone number 1 ], has a privacy interest in the records.

Likely Relevance

[12] In an application pursuant to s. 278.3 of the Criminal Code the trial judge is to first determine likely relevance of the records being sought. If this threshold is met, the trial judge may order production of the records to the Court and review the records to determine whether they should be disclosed. Considerations at both stages are as set out at s. 278.5(2):

(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.

[13] The Supreme Court in R. v. Mills, 1999 637 (SCC), [1999] S.C.J. No. 68 at paragraph 45 adopted the position taken by the Supreme Court in R. v. O’Connor, 1995 51 (SCC), [1995] S.C.J. No. 98 at paragraph 22: the threshold of likely relevance in this context requires that the presiding judge 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".

[14] Further, at paragraphs 130-131:

Section 278.5(1) is a very wide and flexible section. It accords the trial judge great latitude. Parliament must be taken to have intended that judges, within the broad scope of the powers conferred, would apply it in a constitutional manner - a way that would ultimately permit the accused access to all documents that may be constitutionally required. Indeed, a production regime that denied this would not be production "necessary in the interests of justice".

The requirement that production be "necessary in the interests of justice" at this stage refers to whether production to the judge is necessary in the interests of justice. That is a phrase capable of encompassing a great deal. It permits the judge to look at factors other than relevancy, like the privacy rights of complainants and witnesses, in deciding whether to order production to himself or herself. Where the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused's right to full answer and defence and dismiss the application for production.

[15] S.278.3 establishes that at the first stage:

(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.

[16] The Court in Mills noted at paragraph 120:

The purpose and wording of s. 278.3 do not prevent an accused from relying on the assertions set out in s. 278.3(4) where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance...The section requires only that the accused be able to point to case specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify: see Leipert, supra, at para. 21. Conversely, where an accused does provide evidence or information to support an assertion listed in s. 278.3(4), this does not mean that likely relevance is made out. Section 278.3(4) does not supplant the ultimate discretion of the trial judge. Where any one of the listed assertions is made and supported by the required evidentiary and informational foundation, the trial judge is the ultimate arbiter in deciding whether the likely relevance threshold set out in ss. 278.5 and 278.7 is met.

[17] And at paragraphs 132 and 137:

If a record is established to be "likely relevant" and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document. As L'Heureux-Dubé J. stated in O'Connor, supra, at para. 152, "[i]n borderline cases, the judge should err on the side of production to the court". The interests of justice require nothing less.

The evidentiary foundation of a case, and considerations such as the nature of the records sought and the manner in which these records were taken, will often provide trial judges with sufficient information to be able to "consider" and to "take into account" the factors listed in s. 278.5(2) and to fulfil the requirements of s. 278.5(1). As a final protection for the accused, the trial judge is always free to make whatever order is "necessary in the interests of justice". As discussed above in the context of defining the right to full answer and defence, courts must as a general matter ensure that the accused can obtain all pertinent evidence required to make full answer and defence, and must be wary of the danger of putting the accused in a Catch-22 situation in seeking to obtain such evidence. Where there is a danger that the accused's right to make full answer and defence will be violated, the trial judge should err on the side of production to the court.

[18] It is important to note the Ontario Court of Appeal decision in R. v. W.B. 2000 5751 (ON CA), [2000] O.J. No. 2184 at paragraph 75:

The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.

[19] It is important to note that the complainant’s privacy interest may be affected even by production to the Court.

[20] The onus is on the Applicant to show how, in a case specific way, the records are likely relevant to the witness’s credibility and/or reliability. This includes how the records are necessary for the accused to make full answer and defence and to what degree the record will be probative.

Analysis

[21] Mr. D.F. asserts that the records for number [ phone number 1 ] are likely relevant to the issue as to whether there was any telephone contact between D.H. and himself following the sexual assault alleged to have occurred May 11, 2011.

[22] The fact that the records are available only from April 30, 2011 does not diminish the likely relevance of these records because it is the records from May 11, 2011 that are potentially probative.

[23] I agree that the potential probative value of the records is diminished by the prospect that telephone communication occurred in this period between Mr. D.F. and D.H. using a number or numbers different from [ phone number 1 ]. However, when balanced against D.H.’s privacy interest in the records, which I find is not as great as the privacy interest in other records, for example counselling records, and is also diminished by her evidence that [ phone number 1 ] was a cellphone used by Mr. D.F., I find that Mr. D.F. has established likely relevance and the records will be produced to the Court.

The Second Stage

[24] Counsel were advised of my decision on likely relevance. The records were produced to the Court and I have reviewed the records.

[25] I advised counsel that the records are for the period April 30, 2011 – May 25, 2011; that they reflect incoming and outgoing calls and text messages; the number to or from which the call or text message was sent; the date and time of the text message or call and if it was a call, the duration of the call.

[26] The matter has been adjourned for submissions on the second stage to August 27, 2014 at 10 a.m.

MILLER, J.

Released: July 23, 2014

R v DF, 2014 ONSC 4428

COURT FILE NO.: 559/13

DATE: 20140723

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.F.

THIRD PARTY RECORDS RULING

MILLER, J.

Released: July 23, 2014