Court File and Parties
COURT FILE NO.: CR-13-30000747-0000 DATE: 20170324 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – ANTHONY ROBERTSON Applicant
Counsel: Maureen Pecknold, for the Crown, Respondent Kathryn Wells and James Frost, for the Applicant
HEARD: September 28, 29, 2016; January 5; February 10, March 3, 2017.
Ruling on the Admissibility of Records on a Dangerous Offender Application
B. P. O’MARRA, J.
Overview
[1] On September 18, 2014, a jury found Anthony Robertson guilty of sexual assault and choking with intent contrary to section 271 and 246 respectively of the Criminal Code of Canada, R.S.C. 1985, c C-46. The crown then applied to have Mr. Robertson designated as a dangerous offender pursuant to s.753 of the Criminal Code. I appointed Dr. Scott Woodside, forensic psychiatrist, to prepare an assessment of Mr. Robertson. He prepared a report dated January 16, 2015. A copy of that report was filed that day. Among the sources of information referred to by Dr. Woodside were the reports of Amy de Munnik, dated March 20, 2010, and Dr. Peter Marshall, dated July 28, 2009. Those two reports related to a finding of guilt for Mr. Robertson when he was a young person as defined in the Youth Criminal Justice Act of Canada (YCJA) S.C. 2002, c. 1.
[2] An extended period of time passed between the jury verdicts and the hearing dates set for the week of September 26, 2016. There are some unavoidable adjournments on dangerous offender applications. These include obtaining the required consent and the time for an assessment report by a designated expert pursuant to s.752.1 of the Criminal Code. In this case, there were some further extended adjournments at the request of Mr. Robertson and his counsel. There has been no suggestion that either crown, defence or the court have inappropriately or unnecessarily delayed the process.
[3] At the outset of the hearing on September 26, 2016, the crown filed three volumes of materials without objection. The third volume contained assessments, including the reports of Ms. Munnik, Dr. Marshall, and Dr. Woodside. The crown began calling evidence on September 26, 2016. It was anticipated that Dr. Woodside would testify later that week.
[4] On September 28, 2016, counsel for Mr. Robertson first raised a concern that there may be a privilege issue related to the reports of Ms. de Munnik and Dr. Marshall. Counsel for Mr. Robertson requested an adjournment to consider whether there would be an application related to those two reports as well as the report of Dr. Woodside. The hearing was adjourned on consent and ultimately January 5, 2017 was set for continuation.
[5] On January 5, 2017, counsel for Mr. Robertson filed materials on an application to exclude the reports of Ms. de Munnik, Dr. Marshall, and Dr. Woodside. It was agreed that Ms. de Munnik and Dr. Marshall would testify on a blended voir dire. If their evidence and reports were not excluded they would become evidence on the dangerous offender hearing. This evidence was completed that day. On consent February 10, 2017, was set for written and oral submissions on the defence application. On that day, I reserved my decision until March 3, 2017. On that day I ruled that the reports of Ms. de Munnik, Dr. Marshall, and Dr. Woodside were inadmissible on the hearing. The crown is to nominate a new expert assessor to prepare a report for use on the dangerous offender application.
[6] These are my reasons.
The Chronology
[7] Mr. Robertson was born on October 9, 1990. On December 15, 2008, he pleaded guilty in the Youth Justice Court in Barrie to a single count of sexual interference contrary to s.151 (a) of the Criminal Code. The victim was a family member. Mr. Robertson was 17 years old when the offence occurred. The disposition that day included probation for two years. The terms of probation included the following:
- Attend and actively participate in any rehabilitative assessment, counselling, therapy or treatment as directed by your youth worker for substance abuse or sexual abuse.
- Undergo assessment for and participate fully in such counselling and/or treatment as your youth worker directs, and if any assessments produced as a result of your youth worker’s recommendation require treatment, the counselling and treatment will include, among others, the additional psychological testing which is recommended by Dr. Alex Luczak in his report to this court.
[8] Wilful failure to comply with a sentence or disposition is an offence contrary to s.137 of the YCJA.
[9] On February 26, 2009, Mr. Robertson and his probation officer Rebecca Hayward signed a document entitled “CONSENT TO THE DISCLOSURE OF PERSONAL HEALTH INFORMATION”. That document authorized Dr. Marshall to disclose personal health information consisting of an assessment report and recommendation to the Ministry of Children And Youth Services (MCYS). The standard form of the consent included the following:
I understand the purpose for disclosing this personal health information to the persons noted above. I have read it, and I understand that I can refuse to sign this consent form or that I can revoke or amend it at any time. I have signed this consent freely and voluntarily.
[10] Dr. Marshall is a psychologist. Mr. Robertson was referred to him by his probation officer. Dr. Marshall met with Mr. Robertson on March 4 and 10, 2009. On the voir dire Dr. Marshall had very little specific memory of dealing with Mr. Robertson. He did recall that he would have emphasized to Mr. Robertson that the purpose of the assessment was to recommend treatment rather than punishment. Dr. Marshall prepared a report dated July 28, 2009.
[11] On May 28, 2009, Mr. Robertson and his new probation officer, Cheryl White, signed a single page document entitled “CONSENT TO THE RELEASE OR EXAMINATION OF PERSONAL AND HEALTH INFORMATION”. The document referred to the following:
- Mr. Robertson consents to the release to or the examination by the Ministry of Children and Youth Services (MCYS), Youth Justice Services of the following: an assessment, psychological, psychiatric and special work reports both verbal and written completed by Thistletown Regional Centre for the purpose of intake, assessment and counselling.
- The consent is valid to May 27, 2010.
- Consent may be rescinded or amended in writing at any time prior to the expiration date except where action has already been taken on the authority of the consent.
[12] Amy de Munnik is a social worker and clinical therapist. She worked at the Thistletown Regional Centre under the MCYS on May 26, 2009, when Mr. Robertson was referred to her by his probation officer. Ms. de Munnik was part of the SAFE-T Program (Sexual Abuse: Family Education and Treatment). The purpose of the referral was to conduct a comprehensive assessment of Mr. Robertson’s risk for sexual re-offending. She met with Mr. Robertson several times as follows:
| Date | Hours |
|---|---|
| January 15, 2010 | 1.5 hours |
| February 2, 2010 | 4 hours |
| February 12, 2010 | 3.75 hours |
| February 16, 2010 | 1 hour |
| Total | 10.25 hours |
[13] Ms. de Munnik testified that she told Mr. Robertson that any information from him that indicated potential risk of harm to others (specifically family members) would be disclosed to his probation officer and to potential victims. She also testified that the probation officer might obtain the assessment portion of her ultimate report. However, the rest of the report containing personal information from Mr. Robertson could not be disclosed without his explicit consent. She also told Mr. Robertson at the outset that his involvement with her was voluntary, that “we are not probation”. I will refer later to the fact that Mr. Robertson had been ordered as a term of probation to participate in such sessions.
[14] The assessment report of Ms. de Munnik is dated March 26, 2010 on the first page. However, her signature appears on the second last page (18 of 19) with a date of July 6, 2010. She testified that the report was not likely completed until the latter date. The last page has the words “REVIEWED BY” in bold print with Mr. Robertson’s printed name and a date of August 3, 2010. The title page of the report includes the following information:
Please be advised that the PERSONAL HEALTH INFORMATION PROTECTION ACT (2004, Ontario) governs the storing, distribution, and destruction of this report and the information contained within it. THIS REPORT IS PRIVATE AND CONFIDENTIAL AND SHOULD NOT BE SHARED WITHOUT THE WRITTEN CONSENT OF THE CLIENT AND THE PERMISSION OF THE AUTHOR”.
[15] Ms. de Munnik testified that she did not view the consent to release form signed by Mr. Robertson on May 28, 2009 as a basis to release her full report.
[16] Mr. Robertson did not sign any consents to release information after the ones dated February 26, 2009 and May 28, 2009.
[17] Mr. Robertson was found guilty of another offence as an adult on June 1, 2010. The parties agree that by virtue of ss.119(2) and (9) of the YCJA that converted his youth conviction into an adult record.
[18] A Memorandum of Understanding (MOU) dated April 29, 2009, provided for the sharing of records containing personal information, including personal health information, between the Ministry of the Attorney General (MAG), the Ministry of Community Safety and Correctional Services (MCSCS) and the Ministry of Children and Youth Services (MCYS).
[19] When the crown chose to seek a dangerous offender designation in this case a request was made pursuant to the MOU. On January 9, 2014, the MCYS provided the applicant’s youth files, including the reports of Ms. de Munnik and Dr. Marshall, to MAG.
Position of the Parties
[20] The applicant submits that the reports in question are personal health records and subject to confidentiality and privilege restrictions. He further submits that the reports were unlawfully obtained by the crown.
[21] The respondent submits that the reports are not privileged and were lawfully obtained. The respondent further submits that on a dangerous offender hearing the court should receive and consider “the widest range of evidence”.
Analysis
[22] A dangerous offender or long term offender application includes, by definition and necessity, a detailed review of the offender’s personal, psychiatric and criminal history. R. v. Jones, [1994] 2 S.C.R. 229 at para. 124. The stakes are very high for the offender. The need for a fulsome review of the offender’s history, specifically related to risk assessment, does not override the requirement that the evidence relied on be both relevant and lawfully obtained.
[23] Professional assessments and counselling for convicted sexual offenders have significant potential benefits both to the offender and society. The societal interest includes reducing the risk of further criminal actions by the offender. The decision whether or not to participate in such sessions should not be left up to the offender. For that reason courts routinely order that the offender participate as a term of probation. Mr. Robertson was subject to such an order when he was found guilty as a youth in December of 2008.
[24] Mr. Robertson was told at the onset of his dealings with Ms. de Munnik that the interactions and assessment were confidential subject to the express stipulation related to potential victims. Dr. Marshall told Mr. Robertson that the purpose of his assessment related to treatment rather than punishment. The declaration of confidentiality would presumably encourage candour and forthrightness from Mr. Robertson. Ms. de Munnik told Mr. Robertson that his involvement with her was voluntary. However, Mr. Robertson was ordered by a court to participate.
[25] Both of the consents signed by Mr. Robertson referred to personal health information. The consent signed on February 26, 2009, referred specifically to the Personal Health Information Protection Act (PHIPA). That statute contained rules governing the collection, use and disclosure of personal health information in the control of “healthcare custodians” such as doctors, hospitals or other health care providers. It sets out rules for the collection, use and disclosure of personal health information and includes the following provisions:
- Consent is required for the collection, use and disclosure of personal health information, with few exceptions.
- Health information custodians are required to treat all personal health information as confidential and maintain its security.
[26] The two consents signed by Mr. Robertson predated his meetings with Ms. de Munnik and Dr. Marshall. Both consents refer to disclosure specifically to MCYS. There was nothing in either consent form that would alert Mr. Robertson, a young offender at the time, that this information could be disclosed to MAG. The consent dated May 28, 2009, stipulated that it was valid until May 27, 2010. Based on the MOU the information was passed on to MAG in January of 2016. There is no indication or suggestion that Mr. Robertson had any advice from counsel during the time of the assessments by Ms. de Munnik and Dr. Marshall.
[27] The fact that Mr. Robertson was a young offender when the contentious reports were prepared is significant. He received conflicting information as to the ground rules. A young person, without legal advice, could not reasonably foresee that signing a consent for release to one entity related to youth services (MCYS) could be passed on to the prosecution arm of government (MAG).
[28] Mr. Robertson, as a convicted sexual offender, was conscripted (for good reason) to engage in sessions with Ms. de Munnik and Dr. Marshall. Mr. Robertson was assured of at least a measure of confidentiality in his discussion with them. In the particular circumstances I find that Mr. Robertson, Ms. de Munnik and Dr. Marshall viewed the information provided and the reported assessments as personal health or mental health information. The fact that he was asked (or directed) to sign the two consents demonstrates that the persons involved recognized that there were legal limits on the further dissemination of the information.
[29] The crown should have sought judicial authorization to obtain these reports for use on this dangerous offender hearing. In the absence of a further informed consent to release this information a court would have to weigh issues of confidentiality, privilege and ultimately admissibility. The contents of the reports in question were clearly relevant to the dangerous offender hearing. Mr. Robertson could participate in a meaningful way on such an application through his counsel. In the particular circumstances of this case I find that the reports of Ms. de Munnik and Dr. Marshall were not lawfully obtained.
[30] The applicant does not allege and not need prove bad faith on the part of whomever conveyed the reports to Dr. Woodside for his consideration. Nor is bad faith alleged against the crown. The issue arose well after disclosure had been made and the hearing was in progress. Since the report of Dr. Woodside was based in part on the two contentious reports that were not lawfully obtained it is necessary to exclude the report of Dr. Woodside.
Result
[31] The viva voce evidence and reports of Amy de Munnik and Dr. Marshall are inadmissible on this hearing. The report of Dr. Woodside is also inadmissible. The crown must propose a new expert assessor to prepare a report for the dangerous offender hearing.
[32] I am grateful to counsel for their assistance on this matter.
B. P. O’MARRA, J.