COURT FILE NO.: CR-MO-16/5-371 DATE: 20170519
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - and - MARTIN BARTHOLOMEW - and - K.B.
Counsel: Michael Wilson, for the Crown, respondent Megan Savard and Samara Secter, for the accused, applicant, Martin Bartholomew Jeffrey Berman, For the complainant, respondent, K.B.
THE CRIMINAL LAWYERS’ ASSOCIATION OF ONTARIO Jennifer A.Y Trehearne and Daniel Goldbloom, for the intervener, The Criminal Lawyers’ Association
HEARD: April 10, 2017
K.L. Campbell J.:
REASONS FOR JUDGMENT
I Overview
[1] The legal issue on this certiorari application relates to the procedure that must be followed when an accused, charged with sexual offences, wants to gain access to psychiatric reports about the mental health of the complainant, when those reports have been made exhibits in earlier, unrelated criminal proceedings against the complainant. Can the accused simply gain access to copies of the unsealed exhibits that were filed in open court, just like any other member of the public or representative of the media, or must the accused bring an application for production of the records under s. 278.3(1) of the Criminal Code, R.S.C. 1985, chap. C-46?
[2] The accused, Martin Bartholomew, is currently charged with having committed certain sexual offences against the complainant, K.B.
[3] The complainant was himself an accused in earlier, unrelated criminal proceedings in the Ontario Court of Justice. During the sentencing proceedings in those earlier criminal proceedings, the judge made an order, pursuant to s. 21(1) of the Mental Health Act, R.S.O. 1990, chap. M-7, requiring that the complainant attend a psychiatric facility for examination. In the result, in August of 2016, two psychiatric assessments were prepared and, ultimately, filed with the court as exhibits. The sentencing proceedings in that case were open to the public. The contents of the psychiatric assessments were discussed by the parties in open court. Defence counsel for the accused (Mr. Bartholomew) was present in court for those sentencing proceedings and heard this discussion, thereby learning about some of the contents of these reports. The exhibited reports themselves were not sealed, nor did any party ask that they be sealed.
[4] Subsequently, defence counsel for the accused in the present case sought access to these psychiatric reports through the court office, believing that they may provide information as to the mental health of the complainant that may prove relevant in relation to his credibility as a witness. The Court office advised defence counsel to bring a formal court application to seek access to these reports. [1]
[5] Defence counsel brought such an application and it was heard by Madam Justice D. Oleskiw of the Ontario Court of Justice. On this application, defence counsel argued that the usual test governing access to court exhibits, established by Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 878, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at paras. 23-39, supported the request for immediate access to the court exhibits. However, the court ultimately agreed with the position advanced by the Crown, that the statutory regime in ss. 278.1 to 278.9 of the Criminal Code governed access to these psychiatric assessments, as the complainant maintained a residual privacy interest in the reports. Accordingly, Oleskiw J. denied the accused access to these reports, holding that he was required to seek such access by way of a production application under s. 278.3(1) of the Code.
[6] The accused now seeks a writ of certiorari quashing the order of Oleskiw J. The accused contends that in dismissing his application for access to the court exhibits, and requiring him to pursue an application under s. 278.3(1) of the Criminal Code, she refused to exercise her jurisdiction to permit the accused access to the court exhibits. The intervener, the Criminal Lawyers’ Association of Ontario supports the position advanced by the accused. The Crown and the complainant both contend that Oleskiw J. was correct in reaching the conclusion that she did, and ask that the certiorari application be dismissed.
[7] For the following reasons, I have concluded that Oleskiw J. erred in failing to exercise her jurisdiction to consider whether these two psychiatric reports should be provided to the accused under the application of the legally applicable Dagenais / Mentuck standard. Further, I have concluded that, applying the governing Dagenais / Mentuck standard, the accused is entitled to copies of the two exhibited psychiatric reports concerning the complainant.
II Analysis
A. The Open Court Principle – Accessing Court Records Under Dagenais/Mentuck
[8] Canada has long endorsed and promoted its open court principle, that permits broad public access to information about courts and court proceedings, and which ensures a great level of transparency, thereby maintaining an independent, impartial and accountable judiciary and public confidence in the administration of justice. Indeed, the open court principle has deep roots in our system of justice. See Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-27.
[9] Even prior to the adoption of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada endorsed the principle that at “every stage” of the court process, the general rule “should be one of public accessibility and concomitant judicial accountability” and that “curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance.” See Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at pp. 184, 186-187. Subsequently, the Supreme Court of Canada has recognized the guiding open court principle as a fundamental aspect of the constitutional rights guaranteed by s. 2(b) of the Charter of Rights and as one of the hallmarks of our democratic society, given that it is “necessary to maintain the independence and impartiality of courts” and “integral to public confidence in the judicial system.” See Canadian Broadcasting Corp. v. New Brunswick, [1996] 3 S.C.R. 480, at pp. 495-498; Re Vancouver Sun, at paras. 23-27.
[10] The open court principle and the constitutional rights guaranteed by s. 2(b) of the Charter of Rights are not limited to merely attending court and observing and reporting on the proceedings that take place in the courtroom, but extend to include the media’s right to gather information about court proceedings, including gaining access to court exhibits (and making copies of those exhibits), and to publish, broadcast or otherwise disseminate the information gathered about those court proceedings, as well as the rights of members of the public to receive that information. See CBC v. New Brunswick, at paras. 23-26; Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51, [2001] 2 S.C.R. 743, at para. 72; CTV Television Inc. v. Ontario Superior Court of Justice (2002), 59 O.R. (3d) 18, 163 C.C.C. (3d) 321 (C.A.), at paras. 13-23; R. v. Fry, 2010 BCCA 169, 254 C.C.C. (3d) 394, at para. 65; R. v. Hogg, 2006 MBCA 132, 208 Man.R. (2d) 244, at paras. 2, 22-29; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 4-7, 30; R. v. Canadian Broadcasting Corp., 2010 ONCA 726, 102 O.R. (3d) 673, at paras. 24-34, 39-40; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19, at paras. 28-30; Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65, at paras. 11-14.
[11] Accordingly, the accepted legal standard that generally applies to all discretionary decisions limiting access to court proceedings in criminal cases is designed to reflect the overall importance of the “open court principle” and the rights of “freedom of expression” and “freedom of the press” in relation to judicial proceedings. More particularly, any such restrictions on access to such judicial proceedings can only be ordered where the party seeking such a restriction is able to establish, through convincing evidence, that: (1) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the restriction outweigh the deleterious effects on the rights and interest of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. While this Dagenais / Mentuck standard was initially developed in the context of publication bans, the Supreme Court of Canada has made it clear that it applies any time the “freedom of expression” and “freedom of the press” rights guaranteed by s. 2(b) of the Charter of Rights are engaged in relation to judicial proceedings. See Toronto Star Newspapers Ltd. v. Ontario, at paras. 7, 26-29; Re Vancouver Sun, at paras. 29-31; R. v. Canadian Broadcasting Corp., at paras. 20-21; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 31-36; Canadian Broadcasting Corp. v. Canada (Attorney General), at para. 56; M.E.H. v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321, at paras. 24-34.
B. Accessing Private Records Under the Criminal Code in Sex-Related Offences
[12] Parliament has, however, legislatively created a detailed statutory procedure, through the enactment of ss. 278.1 through 278.9 of the Criminal Code, which governs the production of private “records” relating to a complainant or a witness in criminal proceedings where an accused is charged with certain listed sex-related offences. The Supreme Court of Canada upheld the constitutional validity of this legislation in R. v. Mills, [1999] 3 S.C.R. 668, 139 C.C.C. (3d) 321.
[13] For the purposes of this statutory scheme, s. 278.1 of the Code provides a list of the kinds of documents which the scheme covers, but makes it clear that the scheme only applies to such documents where they contain “personal information for which there is a reasonable expectation of privacy.” More specifically, s. 278.1 of the Code defines the term “record” for the purposes of this legislative regime as follows:
For the purposes of sections 278.2 to 278.9, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
[14] In R. v. Mills, the Supreme Court of Canada held, at paras. 99 and 78, that in light of the introductory language used in this section, “[o]nly documents that truly raise a legally recognized privacy interest are caught and protected” and, accordingly, “if a record does not contain information regarding which there is a reasonable expectation of privacy, then it is not subject to the impugned provisions governing production.” The Supreme Court recognized, at para. 99, that in this legislative scheme, Parliament was: (1) trying to preserve an accused’s access to “private records” that may be relevant to an issue at trial; and (2) protecting to the “greatest extent possible” the “privacy rights” of complainants and witnesses. Accordingly, by “limiting its coverage” to records in which there is “a reasonable expectation of privacy” the legislation is consistent with the “privacy rights” protected by s. 8 of the Charter of Rights. See R. v. R.C. (2002), O.R. (3d) 257, 163 C.C.C. (3d) 3 (C.A.), at paras. 42-49.
[15] As the Supreme Court of Canada suggested in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 44, given this key definitional requirement, before resort need be had to the procedural mechanism contained in ss. 278.1 through 278.9 of the Criminal Code, the fundamental “privacy analysis” turns on the “normative question” of whether there remains a “reasonable expectation of privacy” in the documents in question. If there is no reasonable expectation of privacy in the documents in issue, then the procedural mechanism created by ss. 278.1 to 278.9 of the Criminal Code is not engaged.
C. The Issue: Is There a Reasonable Expectation of Privacy in the Psychiatric Reports Filed as Exhibits in the Complainant’s Earlier Criminal Proceedings?
[16] As I have already indicated, the documents or records in the present case are court-ordered psychiatric assessments of the complainant that were prepared for, and considered in, the sentencing hearing in the earlier criminal proceedings against the complainant, and which were discussed in open court and filed as unsealed exhibits in those proceedings.
[17] During the argument of the certiorari application, counsel for the Crown and the complainant fairly conceded that, given the importance and general operation of the open court principle, the complainant could reasonably have anticipated that, in relation to the earlier criminal proceedings against him: (1) any member of the public, including any representative of the media, could have entered the public court room and watched and listened to the sentencing proceedings and, if they had done so, they would have heard (as defence counsel for the accused, in fact, heard) a discussion of the contents of the psychiatric reports; (2) any representative of the media could have subsequently attended at the court office, and ultimately obtained a copy of the psychiatric reports and, subject only to considerations of editorial policy, published or broadcast the contents of those psychiatric reports for anyone to read and/or hear; and (3) any member of the public could have similarly attended at the court office, if they had been so inclined, and ultimately obtained a copy of the psychiatric reports for their own personal review and consideration.
[18] Counsel for the Crown and the complainant argued, however, that while the complainant may have, in the result, a greatly diminished expectation of privacy regarding these psychiatric reports, the complainant still maintained a reasonable expectation that the court office would not produce a copy of the psychiatric reports to the accused who, the complainant alleges, sexually assaulted him and, at least in part, was the cause of the psychiatric problems outlined in these reports.
[19] There is no doubt that privacy rights are not an “all or nothing” proposition, but rather exist on a spectrum. Oleskiw J. quite correctly noted this legal reality.
[20] This point is aptly illustrated by the Supreme Court of Canada decision in R. v. Quesnelle. The accused in that case was charged with sexually assaulting two complainants, and sought disclosure of some police “occurrence reports” which involved one of the complainants, but which were not made in the course of the investigation of the charges against the accused. The trial judge ruled that these occurrence reports were “records” under s. 278.1 of the Criminal Code, but the application for production of the occurrence reports under the Mills regime was dismissed, and the accused was ultimately convicted. The Court of Appeal for Ontario subsequently allowed the defence appeal and ordered a new trial on the basis that these occurrence reports were not “records” under the Mills regime, but rather should have been part of the regular Crown disclosure under R. v. Stinchcombe, [1991] 3 S.C.R. 326. On further appeal, the Supreme Court of Canada reversed this decision and restored the conviction of the accused, agreeing with the trial judge that the unrelated occurrence reports were “records” under s. 278.1 of the Criminal Code because the complainant maintained a reasonable expectation of privacy in those reports, notwithstanding that they were made when the complainant provided the information contained in the reports to the police. In so doing, Karakatsanis J., for the unanimous court, stated, at para. 37:
It bears repeating that privacy is not an all or nothing concept; rather, “[p]rivacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged” (Mills, at para. 108). Consequently, the fact that information about a person has been disclosed to a third party does not destroy that person’s privacy interests. Because the contents of occurrence reports will be disclosed under certain circumstances does not mean that there is not a reasonable expectation of privacy in those records.
[21] The Court in R. v. Quesnelle reasoned that, generally speaking, given the sensitive nature of the information typically contained in police occurrence reports, and the impact that their disclosure can have on the informational privacy interests of complainants, there will generally be a reasonable expectation of privacy in such reports. In short, complainants will generally have an interest in maintaining the right to control how such sensitive information about them is shared. The mere fact that this information has already been provided to the police does not destroy the complainant’s interest in keeping the information private from others. Individuals are entitled to provide information to the police in the confidence that the police will only disclose that information for some “good reason” connected to the reason why the information was provided in the first place. The Court held that whether a person is entitled to expect that their information will be kept private is a “contextual inquiry.”
[22] Generally speaking, a psychiatric report or assessment is, almost by definition, the very kind of medical record which contains confidential personal information. The subject of a psychiatric assessment will, accordingly, usually have a reasonable expectation of privacy in the contents of such a report, as such an assessment will, invariably, outline and discuss any potential mental health issues the subject of the report may be suffering.
[23] There may be some exceptional circumstances, however, where an individual maintains no reasonable expectation of privacy with respect to such presumptively confidential documents. In my view, the decision in R. v. Quesnelle did not hold otherwise. For example, if an individual deliberately posted such a document on the internet for all the world to see, it could not reasonably be suggested that they thereafter continued to maintain any reasonable expectation of privacy in the contents of that document. By his or her own intentional conduct, such an individual would have effectively relinquished any and all privacy interests they once may have had in the document that they posted so publicly. This example is, of course, not the only circumstance in which an individual may conceivably lose any reasonable expectation of privacy in a sensitive medical record. The factual circumstances of the present case, in my view, afford another example of when an individual will no longer possess any reasonable expectation of privacy in a presumptively confidential medical document.
[24] In her ruling in this case, Oleskiw J. drew the following conclusion:
It is this court’s finding that, especially in light of the fact that there’s no evidence of a waiver of s. 278.1 by [the complainant], that he was reasonably entitled to expect that the information he shared during the interaction with the psychiatrist would only be shared with the court and the parties involved in the litigation and would be utilized for the intended purpose of his sentencing. And in light of that expectation, it is my view that the procedure in s. 278.1 through s. 278.91 of the Code is the procedure that must be utilized in order to access these records.
So, in other words, I find that [the complainant] did not lose his reasonable expectation of privacy in the records simply because they were filed with the court as part of his sentencing hearing. And I therefore dismiss the application for production of the … psychiatric records that were filed as part of the sentencing hearing. I find that the application under the [Dagenais / Mentuck] test is an attempt to circumvent the provisions of s. 278.1 through [s. 278.91] of the Criminal Code.
[25] It is with this conclusion that I am in respectful disagreement. While there was certainly no explicit and express waiver by the complainant of any potential privacy interest he may have had in the psychiatric reports in issue, in my view the circumstances of this case present the next closest thing to such a waiver. More specifically, in my opinion, the circumstances of the present case provide another analogous example, where the complainant cannot realistically suggest that he maintained any reasonable expectation of privacy in the psychiatric reports in question.
[26] The psychiatric reports prepared about the complainant were ordered by the court and were prepared for the use of the court and the parties in the sentencing of the complainant in his earlier criminal case. Following their preparation, the contents of those psychiatric reports were discussed in open court, and filed as exhibits in those proceedings. No steps whatsoever were taken by the complainant (or anyone else) to have the courtroom sealed and the public excluded, or to have the psychiatric reports themselves sealed, in an effort to preserve any sense of confidentiality or privacy surrounding them. Rather, the sentencing proceedings and the psychiatric reports themselves were treated as fully open to the public.
[27] As I have already indicated, the Crown and the complainant have both fairly and accurately conceded that: (1) any member of the public, including any media representative, could have watched and listened to the earlier sentencing proceedings, as did defence counsel for the accused, and they would have heard the discussion of the contents of the psychiatric reports; (2) any representative of the media could have subsequently attended at the court office and ultimately obtained a copy of the psychiatric reports and thereafter, if they wished, published the contents of the reports; and (3) any interested member of the public could have similarly attended at the court office and obtained their own copy of the psychiatric reports filed as exhibits in this case.
[28] In these circumstances, it is hard to imagine what possible expectation of privacy the complainant could reasonably retain in relation to these psychiatric reports. Counsel for the Crown and the complainant were left to argue, essentially, that the complainant still maintained a reasonable expectation that the court office would not produce a copy of these psychiatric reports to the accused. However, in my view that is not a reasonable expectation of privacy in relation to the psychiatric reports. Rather, it is only a reasonable, albeit mistaken, understanding of the procedure that may have to be followed for the accused to personally secure a copy of the psychiatric reports. If any representative of the media could obtain a copy of these psychiatric reports and broadly publish their contents (as the Crown and the complainant have conceded), the complainant can have no reasonable expectation of privacy in those psychiatric reports. If the complainant cannot reasonably expect any significant level of continued confidentiality surrounding access to the psychiatric reports, the complainant can have no reasonable expectation of privacy concerning those reports. In short, an expectation that one person (i.e. the accused) will not be able to access the psychiatric reports through the court office (like all other members of the public), is not a reasonable expectation of privacy in the psychiatric reports themselves. See R. v. Harris, 2011 ONSC 5955, [2011] O.J. No. 4584, at paras. 124-138, 140-170; R. v. Shaugnessy, 2012 ABQB 398, 545 A.R. 231, at paras. 21-25.
[29] The decision of F.C. ODonnell J. in R. v. Canadian Broadcasting Corp, 2013 ONCJ 164, [2013] O.J. No. 1447, is indistinguishable from the present case, and supports the conclusion that the complainant in the present case has no reasonable expectation of privacy with respect to his exhibited psychiatric reports.
[30] In that case, the CBC sought access to a doctor’s letter, written in 2005, concerning the mental health of the accused, who was then before the Ontario Court of Justice on fraud charges. The doctor’s letter dealt with “inherently personal and sensitive matters,” including the medications prescribed for the accused. While the letter was not formally made an exhibit on the sentencing hearing, it was provided to the judge by defence counsel, and relied upon in support of his sentencing position. The media was not initially interested in the letter, as the fraud charges against the accused were routine and unexceptional. Seven years later, however, the media became very interested in the letter when the same accused was charged, in 2012, with the commission of a “gruesome murder and related offences.” At that point, the CBC sought access to the earlier medical letter and, over the objection of the accused, ODonnell J. ordered that it be released to the CBC (and any other person requesting a copy). In so ordering, ODonnell J. concluded, essentially, that in providing the doctor’s letter to the judge in open court, the accused lost any reasonable expectation of privacy in the contents of that letter. More particularly, at para. 23, ODonnell J. stated:
I have read the 2005 [doctor’s] letter. Like any medical letter, in particular a psychiatrist’s letter, it deals with inherently personal and sensitive matters including the type and dosage of various medications, but it is a letter that was consciously filed in a public court by [the accused’s] counsel in support of a sentencing position that might very well not have been justified without it. To the extent that [defence counsel] would preserve his privacy, that privacy was foregone when the letter was filed in open court. The judge relied on the letter. Without access to the letter, the public is not in a position to engage in a meaningful assessment or debate over the appropriateness of what happened to [the accused] in 2005 in what is supposed to be an open and transparent court process.
[emphasis added]
[31] Of course, if an accused loses any reasonable expectation of privacy in a medical letter by merely providing it to the trial judge during a public sentencing hearing, it only stands to reason that an accused similarly loses any reasonable expectation of privacy in a medical document when it is provided to the trial judge during a public sentencing hearing, and it is made a court exhibit in the proceedings, without any request to seal the document.
[32] In light of my conclusion that the complainant has no reasonable expectation of privacy in the psychiatric reports filed as exhibits on his earlier sentencing hearing, I am driven to conclude that Oleskiw J. erred in holding that the accused was required to seek access to the reports through a production application under s. 278.3(1) of the Criminal Code. Instead, she ought to have applied the Dagenais / Mentuck standard to determine whether the Crown or the complainant had established, through convincing evidence, that: (1) an order refusing to provide the accused with the exhibited psychiatric reports was necessary to prevent a serious risk to the proper administration of justice; and (2) that the salutary effects of such a restrictive order outweighed the deleterious effects on the rights and interest of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
[33] Moreover, this error by Oleskiew J. was jurisdictional in nature, in that she refused to exercise her jurisdiction to apply the Dagenais / Mentuck standard in order to determine whether or not the accused was entitled to copies of the psychiatric reports, ruling instead that the accused was obliged to pursue another procedural route, under s. 278.3(1) of the Criminal Code, to try to gain access to these reports. See R. v. Skogman, [1984] 2 S.C.R. 93, at pp. 98-104; R. v. Sarson (1992), 73 C.C.C. (3d) 1 (Ont.Ct.Gen.Div.), at p. 24, affirmed, (1994), 88 C.C.C. (3d) 95 (Ont.C.A.), affirmed, [1996] 2 S.C.R. 223, 107 C.C.C. (3d) 21; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 22. Neither the Crown nor the complainant suggested that the alleged error by Oleskiew J. (if was an error, as I have found) was not a jurisdictional error.
D. Applying the Dagenais/ Mentuck Standard in this Case
[34] The two psychiatric reports in question were provided (sealed) to the court for the purpose of determining this certiorari application. After concluding that Oleskiew J. erred in refusing to exercise her jurisdiction to apply the governing Dagenais / Mentuck standard to determine whether the accused should be provided with copies of the exhibited psychiatric reports, I reviewed the contents of these reports. Predictably, they contain expert psychiatric opinion evidence, and other information, touching upon the mental health of the complainant. It is apparent that these reports might well be of assistance to the accused in his defence of the current charges against him.
[35] Applying the governing Dagenais / Mentuck standard, I have concluded that neither the Crown nor the complainant have established, through convincing evidence, that: (1) an order refusing to provide the accused with the exhibited psychiatric reports is necessary to prevent a serious risk to the proper administration of justice; and (2) that the salutary effects of such a restrictive order outweigh the deleterious effects on the rights and interest of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. In short, in my view the Crown and the complainant have fallen well short of meeting either branch of this two-pronged legal standard. See Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at paras. 36, 60.
[36] In applying this standard it is important to appreciate that purely personal interests, including concerns about the emotional distress or personal embarrassment of the complainant, arising from the operation of the open court principle, and an individual wish to keep certain sensitive personal issues out of the public eye, cannot, standing alone, satisfy the necessity branch of this standard. See M.E.H. v. Williams, at paras. 24-34; Kirikos v. Fowlie, 2016 FCA 80, 357 C.R.R. (2d) 148, at paras. 18-27. However, even if the Crown and the complainant had provided convincing evidence that met the necessity prong of this standard, I would still not be satisfied that the salutary effects of an order denying the accused access to the psychiatric reports would outweigh the deleterious effects of such an order on the rights and interest of the parties and the public, including the effects on the right to free expression, the efficacy of the administration of justice, and especially the right of the accused to a fair and public trial.
III Conclusion
[37] In conclusion, the application for certiorari is granted, and the order made by Oleskiw J. is quashed. In its place is an order permitting the accused, Martin Bartholomew, to have copies of the two psychiatric reports, prepared in August of 2016, in relation to the complainant, K.B., and which were entered as exhibits during the sentencing hearing in the criminal proceedings against him.
Kenneth L. Campbell J.
Released: May 19, 2017
COURT FILE NO.: CR-MO-16/5-371 DATE: 20170519
BETWEEN:
HER MAJESTY THE QUEEN - and - MARTIN BARTHOLOMEW - and - K.B. - and -
THE CRIMINAL LAWYERS’ ASSOCIATION OF ONTARIO
REASONS FOR JUDGMENT K.L. Campbell J.
Released: May 19, 2017
[1] The Court Services Division of the Ontario Ministry of the Attorney General has created a document outlining the “Policies and Procedures on Public Access to Court Files, Documents and Exhibits.” This document is expressly designed “to enhance public access to court proceedings, information and documents,” and “ensure that there is consistent application of these procedures across the province.” Section 6.1 of this policy concerns access to “Exhibits in Criminal Cases” (including expert psychiatric reports), and it indicates that “[j]udicial consent is required to obtain access to court exhibits,” and suggests that, in some cases, “a formal application, on notice to the parties, may be required.” Similarly, according to section 2.2.11 of this policy, regarding access to “Mental Health Assessments,” access to, inter alia, “assessment reports prepared for the court” pursuant to s. 672.11 of the Criminal Code “requires judicial direction.” This Ministry policy is conveniently available online at: https://www.attorneygeneral.jus.gov.on.ca/english/courts/policies_and_procedures/public_access/public_access_to_court_documents-EN.html
