CITATION: R. v. B.T., 2016 ONSC 4407
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B.T.
Accused
Ken Lockhart, for the Crown
Paul Scotland, for the Accused/Applicant
Dwane P. Way, for the Complainant/Respondent
M. Pilch, for the Children’s Aid Society
HEARD: June 24, 2016
PUBLICATION RESTRICTIONS NOTICE
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code of Canada. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.
B.A. ALLEN J.
REASONS FOR DECISION
PRODUCTION REQUESTED
1The accused, B.T., (“the Applicant”), seeks an Order pursuant to s. 278.7(1) of the Criminal Code for the production of records which he submits are likely relevant to the issues at trial. He further submits that the records are necessary in the interests of justice to make full answer and defence to the charges against him before the court.
2The Applicant seeks records from the Toronto District School Board (“the TDSB”), the Children’s Aid Society of Toronto (“the CAS”) and the Toronto Police Services.
3From the Children’s Aid Society the Applicant seeks:
All notes and records including but not limited to investigatory reports, telephone communications reduced to writing, electronic mail, family system electronic contact logs related to B.B., written, taken, created, received or in the possession of the Children’s Aid Society, their agents or employees, on or around November 18, 2014, and after, pertaining to the allegations against the Applicant.
All notes and records of all communications including interviews with J.F., mother of B.B., L.B., step-father of B.B., and P.H., grandmother of B.B., written, taken, created, received or in the possession of the Children’s Aid Society of Toronto, their agents or employees on November 18, 2014, and after, pertaining to the allegations against the Applicant.
4From the Children’s Aid Society and the Toronto District School Board the Applicant seeks counselling records as follows:
All notes and records of any counselling of B.B. in the possession of the Children’s Aid Society of Toronto.
All notes and counselling records in relation to B.B. written, taken, created, received or in the possession of the Children’s Aid Society of Toronto, their agents and employees on or after November 16, 2015 pertaining to allegations against B.B.’s step-father, L.B..
All notes and records in relation to B.B. written, taken, created, received or in the possession of the Toronto District School Board and N[…] Institute, their agents, employees, on or after November 16, 2015.
5From the Toronto Police Service the Applicant seeks:
A video recorded statement of B.B. made on or around November 2015 alleging the commission of sexual offences against her by her step-father, L.B..
A transcript of the above video recorded statement.
Any statements or utterances made by B.B. to any investigating police officer and reduced to writing in the notebook(s) of any police officer(s) including any electronically held occurrences report(s) pertaining to the allegations of sexual offences by B.B., against her step-father, L.B..
EVIDENTIARY BACKGROUND
The Charges against the Applicant
6B.B. was 16 years of age on her birthday, […], 2000. During periods of her life Ms. B.B. lived in households with her mother, J.F., her step-father, L.B., her sister and her sister’s son. Ms. B.B.’s maternal grandmother, P.S., and her grandmother’s common law husband, the Applicant, B.T., who is Ms. B.B.’s step-grandfather, also lived at the home.
7On November 19, 2014, the Applicant was arrested and charged with five offences under the Criminal Code:
sexual assault (s. 271(1)(a)) against Ms. B.B. occurring between January 5, 2008 and January 4, 2011;
touching for a sexual purpose of a person under 14 years (s. 151(a)) occurring between January 5 2008 and April 30, 2008;
touching for a sexual purpose of a person under 14 years (s. 151(a)) occurring between May 1, 2008 and January 4, 2011;
invitation to touch for a sexual purpose part of the body of the Applicant (s. 152(a)) occurring between January 4, 2008 and April 30, 2008; and
invitation to touch for a sexual purpose part of the body of the Applicant (s, 152(a)) occurring between May 1, 2008 and January 11. 2011.
8Ms. B.B. alleges that she was sexually abused by the Applicant on a number of occasions when she was ages 6, 7, 8, which she alleges, ended when she was age 9.
One allegation involved Ms. B.B. watching television alone in her grandparent’s bedroom. The grandmother had gone to the store. The step-grandfather entered the bedroom, offered Ms. B.B. candy, and asked her to go onto the bed. He kissed her and rubbed her breasts under her shirt and removed her shirt. He put his penis in her mouth, he ejaculated, and she spat it out. The abuse stopped when the grandmother returned home.
Another incident is alleged to have occurred when Ms. B.B. was age 7. The grandmother left the bedroom where she, Ms. B.B. and the Applicant had been together. After the grandmother left the room, the Applicant gave Ms. B.B. some candy and told her to turn off the lights and she complied. The Applicant forced Ms. B.B. to perform oral sex and ejaculated in her mouth and she spat it out. She left the room and ran to her grandmother.
Disclosure of Sexual Abuse by the Applicant
9On November 18, 2014, Ms. B.B. disclosed to an after school program staff member, Afua Mansa, at her school, N[…] Institute, that the Applicant had engaged Ms. B.B. in oral sex with him which began when she was age 12. She told Ms. Mansa that the Applicant started to touch her breasts when she was from ages 8 to 14 years.
10On November 19, 2014, a CAS caseworker attended Ms. B.B.’s school with two police officers and conducted an interview with Ms. B.B.. At the school, the CAS caseworker also met Ms. B.B.’s parents, Ms. J.F. and her step-father, Mr. L.B.. Later on November 19th, Ms. B.B.’s mother and her step-father met the CAS caseworker at 23 Division to accompany Ms. B.B. for her videotaped interview with the police. The CAS caseworker was present with Ms. B.B. and the police officers during the interview. The CAS caseworker decided the child protection issues would be handled in camera.
Preliminary Inquiry on the Case against the Applicant
11The preliminary inquiry in relation to Ms. B.B.’s charges against the Applicant started and was completed on November 6, 2015. This date is chronologically important to the timing of the charges against the Applicant and the subsequent charges laid against the step-father, Mr. L.B..
Allegations against Step-Father L.B.
12The dates associated with some of the earlier offences alleged against Mr. L.B. pre-date Ms. B.B.’s disclosures to the school and the police about the Applicant and pre-date the evidence Ms. B.B. gave at the preliminary inquiry about the Applicant.
13On November 19, 2015, one year after the Applicant’s arrest, Mr. L.B. was arrested and charged with seven sexual offences under the Criminal Code: three counts of expose genitals to a child under 16 years (s. 173(1)), occurring between January 1, 2012 and December 31, 2013 and on or around November 17, 2015; three counts of participate in sexual immorality thereby endangering the morals of a child (s.172(1)), occurring between January 1, 2012 and December 31, 2013, and around November 17, 2015; and one count of making a person under 16 years sexually explicit material for the purpose of committing a sexual offence (s. 171.1(2)).
14As can be seen, four of the charges against Mr. L.B. pre-date the complaints to the school, the CAS and the videotaped interview of Ms. B.B. by the police.
LAW GOVERNING THE PRODUCTION OF THIRD PARTY RECORDS
Section 278 of the Code
15Section 278 of the Code provides a two-stage process as set out in sections 278.5 and 278.6:
first, the judge considers whether to produce the record to the court for review;
then second, if the record, or parts of it, is produced to the court, the judge reviews the record to determine if the record, or parts of it, should be produced to the accused.
Whether to produce the record to the court for review
16The requirements for the production of records to the court are found at s. 278.5(1) which provides:
278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that
(a) the application was made in accordance with subsections 278.3(2) to (6);
(b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
(c) the production of the record is necessary in the interests of justice.
Proper Application Procedure
17The application before the court meets the requirements of s. 278.5(1)(a) as it has been brought in compliance with the procedure set out in s. 278.3(2) to (6).
The Test of “Likely Relevant”
18The court must next determine, pursuant to s. 278.5(1)(b), whether the accused has established the record is “likely relevant” to an issue at trial. Section 278.3(4) enumerates grounds which in themselves are not sufficient to establish the “likely relevance” of the record.
278.3(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.
19Courts have provided general guidance on how to apply the likely relevance test when considering the factors in s. 278.3(4). The test has been satisfied if:
…there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.
[R. v. O’Connor, [1995] S.C.R. 411; 1995 CanLII 9863 (NL CA), 103 C.C.C. (3d) 161, at para. 22, (S.C.C.)]
20The accused cannot succeed on an application by making vague assertions about the existence of a record,
…the accused (must) 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. [parentheses added]
[R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 120, (S.C.C.)]
21Nor can the accused
… rely on speculative assertions or stereotypical assumptions.
[R. v. Batte, [2000] 45 C.C.C. (3d) 449, at para 66, (Ont. C.A.)]
22The defence has the burden to demonstrate there is evidence that meets this test. Addressing the weight of the burden, the Supreme Court of Canada held that in the first stage the burden should not be interpreted as onerous on the accused, although the court did call it “a significant burden”: [O’Connor, para. 24 and R. v. Batte, at para 53].
Necessary in the Interest of Justice
23The third consideration set out in s. 278.5(1)(c) contemplates a weighing of various interests to determine if on balance the record is necessary in the interest of justice. The accused’s right to make full answer and defence must, especially with highly sensitive records, be weighed against a complainant’s right to privacy of their personal information.
24The Supreme Court of Canada expresses the balancing exercise as follows:
The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in private records of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in the record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.
[R. v. Mills, at para. 94]
25The decision to order production of records must be made based on the particular facts before the court on a particular case.
26R. v. Mills provides the following considerations to guide the balancing of the competing rights:
(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.
[R. v. Mills, at para. 127]
ANALYSIS
Application of the Likely Relevant Test
27The Applicant submits that the records sought meet the majority of the factors set out in s. 278.3(4).
28There is no question the TDSB and N[…] Institute, CAS and police records exist since Ms. B.B. was interviewed by authorities from those institutions. It is also not in dispute that the school, CAS and police records reveal allegations of sexual abuse. They relate to sexual activity of the Complainant with the Applicant and Mr. L.B.. They contain earlier and more recent complaints against the Applicant and Mr. L.B.. As well, the records pertaining to Mr. L.B. were created in November 2015 relatively close in time to the alleged abuse by the Applicant.
Credibility, Reliability and Prior Inconsistent Statements
29Not unlike most sexual assault cases, the allegations against the Applicant arise in what appears to be a strictly “he-say-she-say” context. There are rarely third party witnesses to sexual abuse. The Crown’s onus to prove the sexual assault rests on the credibility and reliability of the Complainant’s evidence. Credibility and reliability are the central issues for trial.
30The Applicant’s principal argument centres on the requirements in sections 278.3(4) (e) and (f), which look to the credibility and reliability of Ms. B.B.’s evidence. Related to those paragraphs is s. 278.3(4)(d) which is concerned with whether the records likely contain prior inconsistent statements by Ms. B.B..
31I find the Applicant has made legitimate arguments that the records sought will contain information critical to challenging Ms. B.B.’s credibility.
32There is a concern about the fact that Ms. B.B. made her complaints to the school, the CAS and the police on November 18 and 19, 2014. According to the timing of the complaints against Mr. L.B., the sexual offences in four of the counts happened before Ms. B.B. reported the offences by the Applicant and before the preliminary inquiry in the case against the Applicant. These facts are important for a number of reasons.
33When Ms. B.B. disclosed the sexual abuse by the Applicant to Ms. Mansa on November 18, she indicated that she chose to disclose the Applicant’s abuse to Mr. L.B. first instead of her mother. In her video statement to the police on November 19, 2014 Ms. B.B. remarked:
… and then I was thinking of telling my mom, but I tell my dad [Mr. L.B.] first because like usually my mom like she gets upset sometimes you know.
34In her police interview Ms. B.B. also stated that Mr. L.B. was “nice” and that he had lived with her mother, sister and herself for the last three years.
35As well, according to the statement to the police by Ms. Mansa on March 18, 2015, Ms. B.B. told Ms. Mansa that she had a closer relationship with her step-father than with her mother and asked that he be contacted instead of her mother. Ms. B.B. told Ms. Mansa that she was more comfortable talking to Mr. L.B.. Ms. B.B. also stated that when she told Mr. L.B. about the sexual abuse by the Applicant he told her to tell her mother. Mr. L.B. actually called the mother and told her.
36Ms. B.B. made these favourable comments about Mr. L.B. at a time when according to her complaint against Mr. L.B., he had sexually abused her on several occasions. But she never disclosed the abuse by Mr. L.B. to the school, CAS or the police until a year after the disclosure of the Applicant’s abuse.
37As noted above, the preliminary inquiry took place on November 6, 2015, 13 days before Ms. B.B. made her complaint about Mr. L.B.. She never disclosed her claims against Mr. L.B. during that proceeding.
38Ms. B.B.’s counsel argues that the Applicant’s position is founded on mere speculation and vague notions that there are likely to be statements by Ms. B.B. in the school, CAS, and police records in relation to Mr. L.B. that are inconsistent with statements she made against the Applicant. Ms. B.B.’s counsel argues that the Applicant should not be allowed to go on a “fishing expedition” through the sensitive information in the records. I do not accept counsel’s position.
39I find the Applicant has presented a clear fact-based foundation for the necessity of the records to the defence.
40The fact that Ms. B.B. speaks favourably of Mr. L.B. at a time when she alleges he has abused her and then makes serious allegations against him about a year later raises questions about the reliability and credibility of her allegations against the Applicant.
41There are also inconsistencies in Ms. B.B.’s statements about her age when the abuse by the Applicant took place, which together with the other concerns, also raise a question about Ms. B.B.’s credibility.
42That is, in Ms. B.B.’s police interview, she said the first incident of forced oral sex occurred when she was age 6. And later in that interview she stated that the first incident of forced oral sex was when she was 7 or 8 years of age and that the second incident was when she was age 7. However, she told Ms. Mansa, to whom she first disclosed the abuse, that the initial forced oral sex happened when she was age 12.
43There are also discrepancies in the evidence of when Ms. B.B. says the abuse ended. According to Ms. Mansa’s police interview, Ms. B.B. told her the abuse stopped when she was at least age 10. In her interview with the police, Ms. B.B. said the abuse stopped when she was age 9. Also, according to Ms. Mansa’s police interview, Ms. B.B. told her that the Applicant had sexually abused her as recently as 2014.
44A further consideration is the context in which the alleged abuse occurred. Ms. B.B.’s counsel argues that information about the abuse by Mr. L.B. is irrelevant and collateral to the case against the Applicant. I do not agree.
45The defence argues, and I agree, that the context establishes a factual nexus between the allegations against the Applicant and Mr. L.B.. The Applicant is the step-grandfather of Ms. B.B., her maternal grandmother’s spouse, and Mr. L.B. is her step-father, her mother’s spouse. They had all lived together for a number of years under the same roof when the abuse by both Mr. L.B. and the Applicant occurred. The allegations arise out of a close family context. It is not unreasonable to expect that the records sought likely contain information or statements by Ms. B.B. about her circumstances of sexual abuse in the home which could be relevant to the issues before the court.
46I do not find the scope of the production sought to be wide-ranging or overly broad as Ms. B.B.’s counsel argues. Credibility is the central issue. The defence is entitled to production of information to support a challenge to Ms. B.B.’s credibility.
Application of the Necessary in the Interest of Justice Test
47I find the Applicant has amply established the records of the TDSB/school, the CAS and the Toronto Police Service are necessary to make full answer and defence. And it is reasonable to expect, based on the information already available, that the records sought will contain evidence of probative value to the court’s search for the truth.
48The records clearly contain very personal and sensitive information. Ms. B.B., and perhaps even Mr. L.B., would have an expectation of privacy over the information in the records. That being said, no representations have been made to the court on behalf of Mr. L.B. regarding a privacy interest. In any event, the privacy rights of Ms. B.B. must be considered and balanced against the defence rights of the accused.
49I find in this case the interests of justice are best served by the production of the records.
PRODUCTION TO THE DEFENCE
50Counsel for Ms. B.B. does not oppose the disclosure of records related to the allegations against the Applicant.
51My review of the records revealed that there is information in the Toronto District School Board/N[…] Institute and CAS records that is not relevant to the case before the court. Those portions of those records will either be removed or redacted.
52The Toronto Police Service records include the handwritten notes of the officers who interviewed Ms. B.B. on November 18, 2015 about her allegations against Mr. L.B. and a DVD of the videotaped recording of Ms. B.B.’s interview by those officers on that day.
53Given the sensitivity of the information in the records it came as some comfort to see that defence counsel has given a written undertaking in his submissions that he will not disclose the records to the Applicant and a further undertaking to restrict the use of the records to the narrow issue of testing the credibility and reliability of the allegations against the Applicant.
54Further, I make an Order that defence not copy or in any way reproduce, distribute, publish or make available to anyone the records herein disclosed in relation to this trial.
DISPOSITION
55The records of the Toronto District School Board and N[…] Institute, the records of the Children’ Aid Society of Toronto and the records of the Toronto Police Service will be disclosed to the defence subject to redactions and the removal of the portions that are not relevant to the issues before the court.
B.A. ALLEN J.
Released: July 7, 2016
CITATION: R. v. B.T., 2016 ONSC 4404
COURT FILE NO.: CR-15-50000639
DATE: 20160707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B.T.
Defendant
REASONS FOR DECISION
B.A. ALLEN J.
Released: July 7, 2016