R. v. B.G., 2015 ONSC 3284
DATE: 20150526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
B.G.
Applicant
Allison MacPherson, for the Crown
Steven Safieh, for Mr. B.G. Joanna Birenbaum, for the Complainant
HEARD: May 6 and 19, 2015
RULING ON THIRD-PARTY RECORDS APPLICATION
trotter j.
1. Introduction
[1] This judgment addresses the consequences arising from the inadvertent disclosure of a videotaped therapy session involving an 8-year-old sexual assault complainant.[^1]
[2] Mr. B.G. is charged under the Criminal Code, R.S.C. 1985 c. C-46 with four counts each of sexual assault (s. 271), sexual interference (s. 151), and sexual exploitation (s. 153(1)(a)). Soon after the abuse was disclosed, the complainant began seeing a therapist. Her therapist forwarded confidential records to the Crown, including a DVD recording of a therapy session, which was mistakenly disclosed to the defence.[^2]
[3] Mr. B.G. seeks to rely on the DVD to gain access to the rest of the complainant’s therapeutic file, pursuant to ss. 278.1 to 278.9 of the Criminal Code. The application is opposed by the Crown and counsel for the child complainant.[^3]
2. The Factual Background
[4] The alleged on-going abuse by Mr. B.G., a family friend, was disclosed on July 2, 2012. The police videotaped an interview with the complainant on July 4, 2012 (Police Interview #1). Shortly after this, the complainant started therapy. Evidence from the preliminary inquiry revealed that she had participated in 30 sessions or more.
[5] The therapy session that is the subject of this application occurred on January 8, 2013. I am advised by counsel that the therapist forwarded the DVD of this session, along with other materials, to the Crown’s office. The police interviewed the complainant again on July 7, 2013 (Police Interview #2). During this interview, the complainant’s account of the alleged abuse was broader and more detailed. This higher level of detail was also evident during her testimony at the preliminary inquiry.
[6] The preliminary inquiry was originally set to commence on November 22, 2013. Because of late disclosure, it was adjourned. Defence counsel attended at the Crown’s office to pick up this disclosure, which included the DVD in question. Defence counsel became aware of the contents of the DVD on December 1, 2013 and advised the Crown two days later.
[7] There were discrepancies between the Crown and defence about the use to which the DVD could be put as the case moved forward. The Crown asserted that defence counsel was promptly advised that the DVD should not have been disclosed and could not be used in the future. Defence counsel contends he was not made aware of the Crown’s view until much later.
[8] It is unfortunate that the Crown did not formalize its position on this important issue by writing to defence counsel to outline its concerns and request the return of the DVD. Nevertheless, it is clear that disclosure of the DVD was inadvertent. Crown counsel and counsel for the complainant characterize the disclosure as “negligent.” I agree. Section 278.2(2) of the Criminal Code prohibits the Crown from disclosing the DVD without a waiver. There was none.
3. Is the DVD Subject to [ss. 278.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec278.1_smooth) to [278.9](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec278.9_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?
[9] On behalf of the complainant, Ms. Birenbaum submits that defence counsel is in “wrongful possession” of the DVD as a result of the Crown’s negligence. She contends that, notwithstanding that the DVD has already been disclosed, it is still a “record” within the meaning of s. 278.1 of the Criminal Code and thus subject to the procedure set out in ss. 278.2 to 278.9. The Crown takes the same position.
[10] Defence counsel argues that ss. 278.1 to 278.9 are only concerned with production and disclosure, not admissibility. Counsel argues that he is entitled to use the inadvertently disclosed DVD in support of this third-party records application, and to question the complainant at trial.
[11] This issue arose in R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.) [Shearing]. The accused came into possession of the complainant’s diary. The complainant’s mother had left the diary in a cardboard box in the house in which they lived along with the accused. Twenty two years later, when the accused was indicted, another resident of the house came across the diary and turned it over to the defence, without alerting the complainant, the Crown or the police. The accused’s counsel sought to cross-examine the complainant on the contents of the diary at trial. The complainant claimed that the framework in ss. 278.1 to 278.9 applied in the circumstances. In resolving this issue, the Supreme Court considered the legal status of the diary in the hands of the accused, in conjunction with the purposes and wording of the provisions.
[12] It was argued that, because the accused was in “wrongful possession” of the diary, it should be returned to its rightful owner and its future use, if any, determined under ss. 278.1 to 278.9. Writing for the majority, Binnie J. held that the accused’s possession of the diary did not involve a “wrongful taking in any legal sense” (p. 254), and that the complainant had not been “illegally deprived” of her diary because she had left it behind. Still, Binnie J. recognized that the complainant retained a privacy interest in the diary.[^4]
[13] In addition to examining the legality of the complainant’s deprivation, Binnie J. approached the issue on a textual level, looking at the purposes of the provisions, and the language used by Parliament. At p. 256, Binnie J. stated the following:
Sections 278.l to 278.9 on their face address the production not the use or admissibility of personal information, as stated by Parliament itself in the Preamble (S.C. 1997, c. 30):
WHEREAS the Parliament of Canada recognizes that the compelled production of personal information may deter complainants of sexual offences from reporting the offence to the police and may deter complainants from seeking necessary treatment, counselling or advice;
WHEREAS the Parliament of Canada recognizes that the work of those who provide services and assistance to complainants of sexual offences is detrimentally affected by the compelled production of records and by the process to compel that production;
AND WHEREAS the Parliament of Canada recognizes that, while production to the court and to the accused of personal information regarding any person may be necessary in order for an accused to make a full answer and defence, that production may breach the person’s right to privacy and equality and therefore the determination as to whether to order production should be subject to careful scrutiny ... [Emphasis in original.]
[14] With the Preamble in mind, Binnie J. reached the following conclusions concerning the complainant’s diary at p. 256:
The text of ss. 278.1 to 278.9 that follows is consistent with such a purpose. Counsel for KWG [the complainant] at trial and LEAF before this Court, argued that the machinery of ss. 278.1 to 278.9 can be put into reverse, i.e., it contemplates taking documents already in the hands of the defence and restoring these to the complainant, thus requiring the defence to make a fresh application for the document just removed from its possession. In my view, this interpretation is unduly contrived and does violence to the statutory language. It draws the alleged purpose of ss. 278.1 to 278.9 too widely (certainly much more widely than the preambular language) and presupposes that the court can rewrite the text of the statute to accord with the court’s own extrapolation of Parliament’s purpose. This cannot be correct. Here the state is not using its coercive power to compel production in ways which invoke s. 8 of the Charter (“unreasonable search or seizure”). Nor does the present case raise Parliament’s specific concerns in ss. 278.1 to 278.9 about protecting the confidential relationship of a patient-therapist, nor the encouragement of victims of sexual assault to seek professional treatment, and in turn not to discourage reporting of sexual offences (see s. 278.5(2)(f) and (g)). [emphasis added]
[15] Justice Binnie held that any use of the diary at trial must be determined by balancing the prejudicial effect and probative value of this evidence, in accordance with R. v. Seaboyer (1991), 1991 SCC 76, 66 C.C.C. (3d) 321 (S.C.C.) and R. v. Osolin (1993), 1993 SCC 54, 86 C.C.C. (3d) 481 (S.C.C.).
[16] Does Shearing categorically oust the application of ss. 278.1 to 278.9 when private records have already been disclosed? The answer to this question turns on the significance of Binnie J.’s references to “wrongful taking” and “illegally deprived”, as well as the meaning of the emphasized portion in the above-quoted passage.
[17] In the years since Shearing, the meaning of these expressions (“wrongful taking” and “illegally deprived”) has not been clarified. This is likely because the issue does not arise very often. In R. v. T.C. (2004), 2004 ON CA 33007, 189 C.C.C. (3d) 473 (Ont. C.A.) [T.C.], the accused came into possession of a report prepared by a C.A.S. social worker that was filed in child protection proceedings. The accused was a party to those proceedings and was served with a copy of the report. The Court of Appeal held that the report was not covered by ss. 278.1 to 278.9 because the accused was in “lawful possession” of the report. As Rosenberg J.A. said at p. 484:
In view of the wording of ss. 278.1 to 278.9 and the holding in Shearing, I have little doubt that those sections do not apply to records already lawfully in the possession of the accused. As Binnie J. points out in Shearing, the procedure in those sections concerns production of records, not their use or admissibility. That is not to say that in measuring the prejudicial effect of the use of the records under the Seaboyer test for the purpose of determining their admissibility, a trial judge cannot at least take into account the complainant’s very high privacy interests in records relating to a therapeutic relationship. See R. v. Mills, 1999 SCC 637, [1999] 3 S.C.R. 668, 139 C.C.C. (3d) 321 (S.C.C.) at para. 94.[^5] [emphasis added]
I note, with respect, that this part of the court’s judgment is obiter dicta. The court held that it was not necessary to “finally decide this issue” because the trial judge was correct to have excluded the evidence on the basis that its prejudicial effect substantially outweighed its probative value.
[18] The majority holding in Shearing seems to operate on the assumption that some types of wrongful taking or illegal deprivation may entitle a complainant to the protection of ss. 278.1 to 278.9 of the Criminal Code. A few simple examples demonstrate this point. If an accused person stole private records from a therapist’s office, it seems inconceivable that a complainant would not be entitled to the protection of these provisions and having the records returned to the therapist. Similarly, if records were stolen by another, and then found their way into the hands of the accused, the same result would obtain.[^6]
[19] These examples suggest that ss. 278.1 to 278.9 should remain available to rectify situations when private records have been illegally disclosed. The failure to apply the provisions in these circumstances would undermine the purposes of the legislation and encourage unscrupulous or illegal conduct. Of course, the conduct of defence counsel in this case was blameless. He promptly advised the Crown that he was in possession of the DVD. But none of this mitigates the serious and illegal violation of the 8-year-old complainant’s privacy rights. The failure of the Crown to seek the prompt return of the DVD worsened the violation.
[20] Returning to the passage from Shearing in para. 14, above, Binnie J. relied on the wording of ss. 278.1 to 278.9 to hold that these provisions had no application in that case. However, the facts of this case fall squarely within one of the exceptions Binnie J. identifies at p. 256. Unlike Shearing, T.C. and R.S.B., this case does “raise Parliament’s specific concerns in ss. 278.1 to 278.9 about protecting the confidential relationship of a patient-therapist...”.
[21] In conclusion, this case is distinguishable from Shearing and subsequent cases. The deprivation of the complainant’s privacy interests was clearly illegal. Outside of ss. 278.1 to 278.9, the accused was not entitled to a copy of the DVD. This deprivation was made more serious by virtue of the fact that the deprivation occurred as a result of the actions of the Crown, who has a statutory duty not to disclose this type of information without a waiver.
[22] Accordingly, before any use can be made of the DVD, whether at trial or as a basis for obtaining further private records, the DVD must be returned and future production determined under ss. 278.1 to 278.9. In this way, the privacy rights of the complainant may be restored (at least in some measure). Simultaneously, this ruling places Mr. B.G. in the same position as any other person hoping to gain access to the private records of his accuser. An accused person should not be able to take advantage of the negligence of the Crown and by-pass the procedure set out in ss. 278.1 to 278.9. Mr. B.G. is simply being denied that to which he was not entitled in the first place. I see no unfairness in this result.
4. The Application under [ss. 278.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec278.1_smooth) to [278.9](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec278.9_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
[23] Defence counsel argues that under ss. 278.3 and 278.5 the complainant’s counseling records ought to be disclosed to him because the remaining materials available on the application establish that they are likely relevant. I disagree.
[24] Once the improperly disclosed interview is removed from the equation, defence counsel is left to rely upon the differences in the complainant’s account from Police Interview #1, Police Interview #2 and her evidence at the preliminary inquiry. It is known from proper questioning of the complainant’s mother by defence counsel at the preliminary inquiry that the complainant attended roughly 30 sessions with the same therapist following her initial disclosure to the police. However, the allegations of the complainant have broadened somewhat since starting therapy.
[25] These facts do not present a sufficient basis to order production of the therapeutic records of this young complainant. In determining that the complainant’s records are likely relevant to an issue at trial, I must have regard to s. 278.3(4), which sets out the types of circumstances that are not sufficient to justify production. I must be satisfied that there is a reasonable likelihood that information contained in the records is logically probative of an issue at trial. As Doherty J.A. held in R. v. Batte (2000), 2000 ON CA 5751, 145 C.C.C. (3d) 449 (Ont. C.A.), at p. 473:
…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.
[26] It is mere speculation that materials will be found in the complainant’s therapeutic records that will shed light on why her allegations have become arguably broader since attending therapy sessions. Moreover, incremental disclosure is quite common in a case like this: see R. v. D.D. (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.) and R. v. Dubreuil (1998), 1998 ON CA 17663, 125 C.C.C. (3d) 355 (Ont. C.A.).
[27] Even if some evidentiary basis for production had been made out, having regard to the factors in s. 278.5(1) of the Criminal Code, I would not order production to the accused. Mr. B.G. will be able to challenge the complainant’s credibility at trial based on her varying accounts in her two police interviews and her preliminary inquiry testimony. Moreover, the expectation of privacy involved in this case is extremely high, involving the therapeutic records of a young child.
5. Conclusion
[28] The application under ss. 278.1 to 278.9 is dismissed. I order that all copies of the therapy session, in all formats (DVD and transcribed versions), be returned to this court, whereupon they will be sealed.
Trotter J.
Released: May 26, 2015
DATE: 20150526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
B.G.
Applicant
RULING ON THIRD-PARTY RECORDS APPLICATION
Trotter J.
Released: May 26, 2015
[^1]: The complainant’s identity is protected by a publication ban made under s. 486.4(1)(a)(i) of the Criminal Code. She does not share the accused’s last name.
[^2]: I wish to point out that Ms. MacPherson for the Crown was not responsible for this mishap.
[^3]: I have not viewed the DVD, nor have I read the transcription of its contents contained in the Application Record.
[^4]: In dissent, L’Heureux-Dubé J. (Gonthier J. concurring), at p. 271, would have ordered the diary returned to the complainant on this basis, thereby triggering ss. 278.1 to 278.9 of the Criminal Code.
[^5]: See also R. v. R.S.B., [2005] O.J. No. 2845 (C.A.) [R.S.B.]. See also David M. Paciocco and Lee Steusser, The Law of Evidence, 7th ed.(Toronto: Irwin Law, 2015), at pp. 287-288.
[^6]: This latter scenario was contemplated by Justice Binnie’s reference to R. v. Law (2002), 2002 SCC 10, 160 C.C.C. (3d) 449 (S.C.C.), as an example of wrongful deprivation (i.e., theft) leading to a breach of a reasonable expectation of privacy, albeit in a different context. It led to his reference, above, in para. 14, to “the state […] not using its coercive power to compel production in ways which invoke s. 8 of the Charter.” In this case, the disclosure was made by the state, in contravention of s. 278.2 of the Criminal Code.