ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13-847
DATE: 20141121
BETWEEN:
HER MAJESTY THE QUEEN
Brian Linley, for the Crown
- and -
D.R.
Hedley Thompson, for the Applicant/Accused
Debora Lyons, for the Complainant, D.O.
Esra Samli, for the Complainant’s mother, B.P.
Christopher Hutton, for Bruce-Grey Child and Family Services
J.C., the Complainant’s step-father, self-represented
HEARD: November 21, 2014
REASONS FOR DECISION ON APPLICATION BY THE ACCUSED
TO OBTAIN THIRD PARTY RECORDS
Conlan J.
INTRODUCTION
[1] The accused person, D.R., stands charged with three counts of sexual-related offences. He has elected to be tried in this Court, with a jury. The trial is anticipated to take place in Walkerton in January 2015.
[2] In particular, D.R. is facing charges of sexual assault (271 CCC), sexual interference (151 CCC) and invitation to sexual touching (152 CCC) regarding D.O., a girl under 16 years old, with the offences having allegedly occurred in October 2011.
[3] D.O., the alleged victim, was six years old at the time that she and her mother gave their statements to the police in October 2011. According to what the mother told the police, D.O. is developmentally delayed.
[4] D.R. applies to the Court for production of third party records, namely, records in the possession of Bruce-Grey Child and Family Services (“CAS”) which deal with alleged similar complaints made by D.O. about other persons.
[5] The Notice of Application asserts that D.O. has made complaints of having been touched, sexually, by other persons between 2009 and October 2011.
[6] This Application was heard at Court in Walkerton on November 21, 2014. The public was excluded from the hearing as per subsection 276.2(1) CCC. A publication ban was issued pursuant to subsection 276.3(1) CCC.
[7] This ruling applies only to the first stage of the Application, namely, whether all or some of the records in question ought to be disclosed to the Court for review.
[8] The Application is being consented to, at the first stage, by the Crown.
[9] The Application is being opposed by the child, the child’s mother, the child’s step-father and the CAS. Other interested persons served with the Application materials did not appear at Court on November 21, 2014 and filed nothing in response to the Application.
The Law
[10] D.R. bears the burden of proving on balance that the records are likely relevant to an issue at trial or to the competence of a witness to testify, and that production of the records is necessary in the interests of justice: subsections 278.5(1)(b) and (c) CCC.
[11] The Court shall consider the salutary and deleterious effects of the determination on the right of the accused to make full answer and defence and on D.O.’s right to privacy and equality.
[12] In particular, I shall consider the factors under subsection 278.5(2) CCC: (a) the extent to which the record is necessary for the accused to make 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.
Analysis
[13] D.R., at clause 9 of his Notice of Application, submits that “[i]f [D.O.] made complaints of sexually touching by five different persons before the complaint against [D.R.] the records sought will have the following relevance: (i) [t]hey will tend to show that [D.O.] makes up stories about being sexually touched, which is relevant to the credibility of [D.O.]; (ii) [t]hey will show that [D.O.] might have been sexually assaulted on previous occasions by others, which would give her knowledge of sexual matters which a trier of fact would not expect of a child aged 6.5 which could lead a trier of fact to infer that such knowledge came from an incident or incidents with [D.R.]; (iii) [a] combination of (i) and (ii)”.
[14] No viva voce evidence was called by any party on the Application, thus, the evidence is confined to what is contained in the Application Record – the Notice of Application and the Affidavit sworn by Kim Donnelly, legal assistant for Mr. Thompson, including the exhibits attached thereto, namely, the Indictment, the Crown Brief Synopsis, a transcript of the police interview given by the child, a transcript of the police interview given by the child’s mother and an excerpt from the child’s testimony at the Preliminary Inquiry.
[15] In able submissions, particularly by Ms. Lyons and Mr. Hutton, I am urged to find that this Application lacks an evidentiary foundation. There is insufficient evidence, it is argued, to conclude that CAS records exist with regard to some of the prior allegations made by the child and to conclude that these prior allegations were of a sexual nature.
[16] With respect to those able submissions, I disagree.
[17] At page 8 of the transcript of the police interview given by the child’s mother, it is evident that the family has a history with the CAS.
[18] At page 13 of that police interview transcript, it is mentioned that the child has a history, while in the care of the CAS after apprehension, of relating “bizarre stories”.
[19] At page 15 of that police interview transcript, there is mention of a prior allegation made by the child of having been touched by her mother. There was also another allegation by the child of having been touched by a babysitter. Those allegations were made by D.O. while she was in the care of the CAS.
[20] It is true that the mother, at the references noted above in her police interview, never explicitly said that the touching allegations were sexual. But we know that they are examples of what the mother called “bizarre stories”. And we know, from pages 17-18 and page 24 of the transcript of the mother’s police interview, that the touching allegation concerning the babysitter involved the babysitter’s fingers and the child’s boobies, and the touching allegations concerning both the babysitter and the child’s mother were incidents of alleged “bad” touching.
[21] When considering the context of that police interview as a whole, it is clear to me that the allegations concerning the mother and the babysitter were sexual in nature.
[22] It is also clear to me that the CAS would reasonably be expected to have records related to these prior allegations of sexual touching. Not only did the alleged incidents take place while the child was in the care of the agency, but, at least with regard to the allegation concerning the child’s mother, the mother explicitly told the police that there was a CAS investigation (page 24 of the mother’s police interview transcript).
[23] Page 25 of the mother’s police interview transcript is unclear to me. I am unable to discern with any reliability whether the mother was saying that the child had made an allegation in the past of sexual impropriety committed by the child’s natural father, R.P.
[24] My reading of page 41 of the mother’s police interview transcript suggests to me that the prior allegation made by the child regarding the foster mother, S.J., was not sexual in nature. The prior allegation concerning the foster father, P.J., very likely was sexual in nature.
[25] The CAS would reasonably be expected to have records related to the prior allegation concerning the foster father, P.J.
[26] Finally, there is evidence before me that the child’s mother has serious reservations about the veracity of her daughter’s prior allegations against others. In fact, the mother has serious doubts as to whether the child even knows the difference between telling the truth and telling lies (page 18 of the mother’s police interview transcript).
[27] I agree with Ms. Lyons that the excerpt of the child’s testimony at the Preliminary Inquiry cannot be considered a “recantation” by the witness. But it certainly is evidence that the child was not entirely truthful when she spoke with the police and, specifically, that the child lied about someone (not the accused) allegedly touching her sexually.
[28] Ms Lyon’s submissions were well-delivered. It is correct that the Courts cannot allow fishing expeditions. It is correct that third party records applications must be based on evidence.
[29] In my view, for the foregoing reasons, such evidence exists. In a nutshell, we have a child who has made prior allegations of a sexual nature against other persons; those prior allegations were made while the child was in the care of the CAS; it is reasonable and logical to conclude that the CAS investigated and has records of at least some of those prior allegations; and we know that, according to the child’s mother, at least one of those prior allegations of sexual touching that was investigated by the CAS was unfounded (the one involving the babysitter – page 17 of the mother’s police interview transcript).
[30] In my opinion, having balanced the right of the accused to make full answer and defence and the rights of the child and other interested persons to be treated with respect for their privacy and equality, this Application must succeed, in part, at the first stage.
[31] In particular, having regard to the factors under subsection 278.5(2) CCC, I make these conclusions: (a) the records are highly relevant to the credibility of the child and the right of the accused to make full answer and defence in the specific context of whether the child has a recent history of making sexual-related allegations against adult persons in similar positions as the accused, which allegations were false; (b) the probative value of the records is relatively high; (c) the nature and extent of the reasonable expectation of privacy with respect to the records is also relatively high although likely not as acute as with therapeutic or counselling records; (d) production of the records is not 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 records relate, including the child, is not to be understated but is outweighed on these facts by the right of the accused to make full answer and defence; (f) the granting of the Application, in part, at the first stage would have minimal impact on the reporting of sexual offences generally; (g) the granting of the Application, in part, at the first stage would have minimal impact on the obtaining of treatment by complainants of sexual offences generally; and (h) the integrity of the trial process requires the granting of the Application, in part, at the first stage.
[32] In my view, this ruling is consistent with what the Court of Appeal for Ontario stated at page 4 of its decision in Regina v. Riley (1992), 1992 7448 (ON CA), 11 O.R. (3d) 151: where the defence is able to establish that the complainant has made similar allegations of a sexual nature against other persons in the past, which allegations were recanted by the complainant or were false, the defence may be permitted to lay a foundation at trial for an argument that the complainant has demonstrated a pattern of fabrication of sexual-related allegations.
[33] In order to ascertain whether the defence here will be able to resort to that strategy, it is necessary for this Application to be granted, in part, at the first stage.
Conclusion
[34] D.R. has satisfied his burden of proving on balance that the records are likely relevant to an issue at trial and that production of the records to the Court for review is necessary in the interests of justice: subsections 278.5(1)(b) and (c) CCC.
[35] The Application, at the first stage, is granted in part.
[36] I shall review the records except those related to the foster mother, S.J. and those related to the child’s natural father, R.P. Those exceptions are being made because there is insufficient evidence to conclude that those prior allegations made by the child have anything to do with sexual touching.
[37] After I review the records, I shall summarize them for counsel, and then we will proceed to the second stage of the Application – whether all or some of the records ought to be disclosed, edited or not, to the accused.
[38] I thank all counsel and J.C. for their helpful submissions received today.
Conlan J.
Released: November 21, 2014
COURT FILE NO.: CR13-847
DATE: 20141121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.R.
Applicant/Accused
REASONS FOR DECISION ON
APPLICATION FOR
THIRD PARTY RECORDS
Conlan J.
Released: November 21, 2014