ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-265-0000
DATE: 20151215
BETWEEN:
HER MAJESTY THE QUEEN
Andrew Shatto, for the Crown
- and -
J.C. and B.P.
Elizabeth Barefoot, for the Applicant/Accused, B.P.
Esra Samli, for the Applicant/Accused, J.C.
Christopher Hutton, for Bruce-Grey Child and Family Services
HEARD: December 15, 2015
REASONS FOR DECISION ON DEFENCE THIRD PARTY RECORDS APPLICATION – STAGE ONE
Conlan J.
I. Introduction
[1] Mr. J.C. and Ms. B.P. stand charged with allegedly abusing, physically, their children, D.O. and D.M. The Indictment provides as follows.
HER MAJESTY THE QUEEN PRESENTS THAT J.C. and B.P. between the 1st day of January 2014 and the 29th day of March 2014, at the Township of Chatsworth, Central West Region, did commit an assault on D.M., contrary to section 266 of the Criminal Code of Canada.
AND FURTHER, THAT J.C., between the 1st day of August 2013 and the 30th day of September 2013, at the Township of Chatsworth, Central West Region, did in committing an assault on D.M., use a weapon, to wit: a wooden type kitchen utensil, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT J.C., between the 1st day of August 2013 and the 30th day of September 2013, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a wooden type kitchen utensil, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT J.C., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.M., use a weapon, to wit: a wooden type kitchen utensil, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.M., use a weapon, to wit: a black leather belt, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a black leather belt, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April, 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a mustard bottle, contrary to section 267(a) of the Criminal Code of Canada.
AND FURTHER, THAT B.P., between the 1st day of March 2014 and the 30th day of April 2014, at the Township of Chatsworth, Central West Region, did in committing an assault on D.O., use a weapon, to wit: a wooden spoon, contrary to section 267(a) of the Criminal Code of Canada.
[2] With the consent of the prosecution, the accused have re-elected to be tried in the Superior Court of Justice, Judge alone. They have entered pleas of not guilty to all of the charges.
[3] This is the second pretrial Application that is being adjudicated. In Reasons for Decision reported at 2015 ONSC 7753, I dismissed, summarily, the joint Defence Application for a stay of proceedings.
[4] J.C. and B.P. jointly apply to the Court for disclosure of records in the possession of Bruce Grey Child and Family Services (“BGCFS”), both before and after the alleged offences dates, related to allegations made by the children that they were abused by other persons – R.P. and the foster parents, P.J. and S.J.
[5] Each accused person is represented by separate defence counsel. Ms. Barefoot, who has taken the lead for the defence, acts for B.P. Ms. Samli acts for J.C. Mr. Shatto is counsel for the Crown. Mr. Hutton is counsel for BGCFS. Nobody else, although served with the materials and aware of the Court date, has participated in the proceeding.
[6] The records in question have been deposited with the Court and remain sealed.
II. The Positions of the Parties
[7] The Applicants, the accused, allege that the records in question are likely relevant to an issue at trial, namely, the credibility and reliability of the children complainants. The records will show, submit the accused, that the children have a history of making false allegations of abuse.
[8] This is not a case that involves any potential third party suspect defence.
[9] BGCFS does not oppose the Application, at least at the first stage.
[10] The Crown opposes the Application at the first stage and submits that the test for likely relevance has not been met by the accused Applicants.
[11] As indicated above, none of R.P., P.J. and S.J. is participating in the proceeding.
[12] Although the accused are not charged with any offence listed in subsection 278.2(1) of the Criminal Code, all counsel have agreed that we proceed with the Application in two stages: (i) whether the records ought to be unsealed and reviewed by the Court; and (ii) if so, after that review, whether any or all of the records ought to be disclosed to the defence.
III. The Evidence
[13] I have considered the following: the documents contained in the bound Application Record, and Exhibit 1 (the Affidavit, served and filed late, of B.P. sworn on December 14, 2015). No viva voce evidence was adduced on the Application. There were no cross-examinations on the Affidavits filed in support of the Application.
IV. The Law
[14] J.C. and B.P. bear the burden of proving on balance that the records sought are likely relevant to an issue at trial.
[15] This is not a fishing expedition, even at the first stage. The Defence has to put its best foot forward. There must be a proper evidentiary record to justify the Court unsealing the records and reviewing them.
[16] It would be wholly improper for the Court to fall in to the trap of simply reviewing the records under the mantra of “what’s the harm?”. The harm is twofold. First, the Courts would be flooded with requests to review third party records to see if there might be something relevant in them. Second, interested parties have privacy rights in third party records generally (not just ones that relate somehow to sexual matters), and those privacy rights extend to the Court as well as to the litigants.
[17] The test for relevance is higher in the production context than in the Crown disclosure context. With regard to the former, the Court must 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”. An “issue at trial” may be the unfolding of events or the credibility of witnesses. R. v. O’Connor, 1995 51 (SCC), [1995] S.C.J. No. 98 (S.C.C.), at paragraph 22.
[18] The mere assertion that the records are relevant to credibility, however, is not enough. That assertion must be supported by “case specific evidence or information”. The evidence on the Application must show that the records contain information that is not already available to the defence or that has potential impeachment value. R. v. Batte, 2000 5751 (ON CA), at paragraph 75.
[19] The requirement to establish “likely relevance” is a significant burden but by no means an onerous one. It is meant principally to discourage the defence from engaging in speculative and time-consuming requests for production. O’Connor, supra, at paragraph 24.
[20] Where, as here, the defence theory is that there is a pattern of fabrication on the part of the complainant(s) of similar allegations against other persons besides the accused, the defence ought to be required to establish that the complainant(s) has/have recanted the earlier accusations or that those allegations are demonstrably false. R. v. Riley (1992), 1992 7448 (ON CA), 11 O.R. (3d) 151 (C.A.), at pages 3-4.
V. Analysis and Conclusion
[21] I reject the defence assertion that the records are likely relevant to the competence of the children, or either of them, to testify. With respect, the defence is confusing the issue of competence with those of credibility and reliability.
[22] A child witness who understands the nature of an oath or solemn affirmation and is able to communicate his or her evidence is competent to testify. There is nothing in the record before me that would suggest that the competence of D.O. and/or D.M. may be an issue at trial.
[23] I am satisfied, however, that the records in question ought to be reviewed by the Court. The defence has established on a balance of probabilities that the records are likely relevant to the credibility and reliability of the children and have potential impeachment value, regardless of the fact that some of the records have already been disclosed to counsel for one of the accused in the ongoing child protection proceeding.
[24] First, it is clear from the evidence that the children have made similar allegations against other persons, including the foster parents and R.P.
[25] Second, there is case specific evidence that those similar allegations against the other persons have been recanted, at least partially, by the children (see, for instance, paragraphs 13 and 26 of the Affidavit of B.P. sworn on December 14, 2015).
[26] Third, there is case specific evidence that those similar allegations against the other persons were false, or at least they were investigated and determined to be unfounded (see paragraph 22 of the same Affidavit).
[27] I am cognizant of the Crown’s submission that the Application is overly broad. That submission has some merit. Further, I agree with the Crown that the trial cannot be permitted to devolve in to an inquiry as to whether other persons not charged in the Indictment physically abused the children, or either of them.
[28] I must balance against those considerations, however, the rights of the accused to make full answer and defence. Keeping in mind that the burden at the first stage of the Application is not an onerous one (O’Connor, supra), in light of the evidence before me, which evidence meets the requirements set out in Riley, supra and Batte, supra, I have concluded that the Application must be granted at the first stage.
[29] I will unseal the records and review them. I will then release to counsel a judicial summary of those records before we reassemble to address the second stage of the Application, namely, whether all or some of the records ought to be disclosed to the defence.
Conlan J.
Released: December 15, 2015
COURT FILE NO.: CR-14-265-0000
DATE: 20151215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
J.C. and B.P.
REASONS FOR DECISION ON DEFENCE THIRD PARTY RECORDS APPLICATION – STAGE ONE
Conlan J.
Released: December 15, 2015