R. v Lawrence, 2017 ONSC 3761

R. v. Matthew Lawrence, 2017 ONSC 3761

COURT FILE NO.: CR-14-00528 DATE: 20170619 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Matthew Lawrence

BEFORE: Justice M.L. Edwards

COUNSEL: Mr. D. Butt, Counsel for the Complainant Mr. L. Kinahan, Counsel for Mr. Lawrence Ms. L. Malashenko, Counsel for Ottawa Police Service Mr. A. Snider, Counsel for the Children’s Aid Society

HEARD: May 26, 2017

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this endorsement as the complainant may not be published, broadcasted or transmitted in any manner. This endorsement complies with this restriction so that it can be published.

ENDORSEMENT on third party records application

Introduction

1The Applicant seeks an order pursuant to s. 278.3 of the Criminal Code of Canada (“the Code”), ordering the release of records currently in the custody of the Children’s Aid Society of York Region (“CAS”) and the Ottawa Police Services (“OPS”).

Background

2This is the second third party records application in this matter. On September 2, 2016, Gilmore J. dealt with a defence application seeking the release of records in the custody of the CAS, as well as records in the possession of the York Regional Police Service (“YRP”). The issue with respect to the CAS records was dealt with by way of agreement between counsel, as reflected in the Reasons of Gilmore J. at para. 11. With respect to the records in the possession of the YRP, Gilmore J. having reviewed the records concluded that they were “likely relevant, although not pivotal to the case”. The YRP records were ordered to be produced to the defence.

3The factual background to this case is reviewed in the Reasons of Gilmore J., which I will not repeat other than to note that the complainant had been residing in the family home up until October 7, 2014 when she was forced to leave, having been allegedly caught smoking illegal narcotics. It is suggested that prior to October 7, 2014 the complainant had been warned about her use of drugs and alcohol, and that if she were caught again she would be required to leave the family residence. Subsequent to being forced out of the family home, allegations were made by the complainant resulting in the charges presently before the Court.

4The complainant alleges that she was both physically and sexually abused from the age of five until she left the family residence. During the course of the preliminary hearing, the complainant confirmed that on at least one occasion while she was in school she met with members of the CAS and the office of the school principal. The records of the CAS were produced in Court to counsel for the complainant for review. It has now been confirmed that the CAS records do not reveal any instance when it is alleged by the complainant that she was the subject of any inappropriate sexual abuse or sexual touching. On the basis of that confirmation, it was agreed that the records of the CAS would not be produced as they were not relevant to the issues before this Court.

5Subsequent to the release of the Reasons of Gilmore J., counsel for the Office of the Attorney General advised defence counsel that further occurrences of a similar nature to the ones that had been ordered released from the YRP existed in the OPS. The complainant now resides in the Ottawa area. The records which had been ordered to be released by Gilmore J., as they relate to the YRP, related to incidents involving the complainant subsequent to the arrest of the accused where the complainant had interactions with the police allegedly related to the use of drugs and/or alcohol.

6The records of the OPS by inference might suggest that the complainant had interactions with the OPS also related to the use or dependency on drugs and/or alcohol. It was argued before Gilmore J. that the YRP records were relevant to issues of credibility and the reliability of the complainant, given that the initial allegations made against the accused were made as a result of her being removed from the family residence due to her alleged dependency on drugs and alcohol.

Position of the Defence

7Counsel for the accused argues that the records in the possession of the OPS are relevant and go to the credibility and reliability of the complainant. In that regard, it is noted that the allegations as against the accused only surfaced after the complainant was confronted by her father and stepmother about her abuse of drugs and alcohol, and that when she was faced with an ultimatum that she stop using non-prescription drugs or be forced to leave the house she refused to stop using drugs and was forced to leave. It is only after this series of events that the complainant made the allegations now presently before the Court.

8It is argued that since the allegations and being forced out of the family residence the complainant has continued with her use of illegal drugs and alcohol, to the point that the police have attended at her residence since she has been removed as a result of being intoxicated. In that regard, at the preliminary hearing the complainant had testified that she did not believe that she had any problem with alcohol or drugs.

9The records that were ordered produced by Gilmore J., related to interactions between the complainant and the YRP subsequent to the disclosure of the allegations resulting in the charges before this Court. Similar arguments are now made with respect to the records in the possession of the OPS, even though they relate to events that postdate the complainant’s allegations of sexual impropriety. It is argued that the Ottawa Police records are probative to an issue at trial, specifically the credibility and reliability of the complainant.

Position of the Crown

10Crown counsel suggests that at the very least I should move to what is often described as stage one, i.e., I should review the records to determine whether they are relevant. Crown counsel made no submissions with respect to stage two.

Position of Mr. Butt, Counsel for the Complainant

11Mr. Butt did not concede that this Court should move to stage one, but did concede that the position of Crown counsel and the Ruling of Gilmore J. may very well inform this Court’s ultimate determination of at least reviewing the records for relevance.

12Mr. Butt urged this Court if it moved to stage two, to be very careful about drawing any conclusions from an individual’s behaviour and arriving at any stereotypical conclusions. The Court should ask itself the question as to what the reason might be for the behaviour that could be disclosed in the records. By way of an example, it was suggested that someone could appear dazed and confused due to the use or drugs. Someone could equally appear dazed and confused as a result of being hit.

Position of the Ottawa Police Service

13Counsel for the OPS did not concede that this Court should move to stage one to review the records, nor should the records be produced even if this Court did move to stage one. In relation to the latter argument, it was argued that there was no correlation between the allegations before this Court and what the Applicant may have done in any interaction with the OPS in 2016. The temporal gap between the disclosure of the allegations and what occurred in 2016 was such that the information in the OPS records could not possibly be relevant. It was also noted that the information in the OPS records confirmed that whatever had occurred between the complainant and the OPS, no criminal charges were laid. In short, it was argued that all the defence was doing in this third party records application was a fishing expedition.

14As to the records themselves, it was suggested by counsel for the OPS that this Court has an obligation to balance the right to privacy of the complainant versus the right of the accused to full answer and defence. The information contained in the OPS records was personal and sensitive, and that any information in those records would have a very low probative value and only related to collateral issues of no relevance to the trial Court.

Analysis

15Whether this Court should order the production of the third party records is governed by s. 278.3 of the Code, which sets forth a two-part test that involves the materials in question being produced to the Court in a sealed fashion and a subsequent determination as to whether or not the material should be produced in whole or in part: See R. v. Mills, [1999] 3 S.C.R. 668, at paras. 53 and 54.

16In part, the grounds upon which production is sought may include the unfolding of the narrative and the credibility and reliability of a witness. It is beyond dispute that the information sought must be likely relevant to an issue at trial, which in essence means that the information must be logically probative to an issue at trial and thus producible to ensure that the accused is able to make full answer and defence. The Applicant has the onus to establish relevance. Relevance cannot be based on speculative assertions or stereotypical assumptions. See R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 84 and 129, R. v. Essel, 2016 ONSC 3014, at paras. 15 through 17 and R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390.

17Mr. Butt is entirely correct in his submissions that this Court should not draw any stereotypical conclusions arising from the complainant’s alleged overconsumption or use of drugs and alcohol. Such a warning is underscored in Quesnelle at para. 17, where the Supreme Court stated:

…The Mills provisions echo this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials. For example, the fact that a complainant has reported sexual violence in the recent or distant past, provides sexual services for money, or suffers from addiction is not, without more, enough to render a police occurrence report “relevant”.

18I am mindful of the fact that the records in the possession of the OPS are in no way directly related to the charges before this Court, nor do they in any way involve the accused. Simply stated, they post-date the alleged offences by nearly two years and did not result in any charges being laid against the complainant. Nonetheless, credibility will undoubtedly be an important issue for the trier of fact at trial. Credibility, however, by itself cannot establish relevance. As DiTomaso J. noted in R. v. Thompson, at paras. 34 and 35:

Where credibility is the issue driving relevance, examination of a witness’s prior contact with the police does not necessarily advance the search for truth and invites the possibility of multiple mini-trials regarding the contact.

In my view, the same reasoning would apply to subsequent contact with the police.

19In coming to the conclusion that I ultimately do in this case, I am mindful of the ruling and analysis of Gilmore J. as it relates to the YRP records which postdate the time period when the alleged offences occurred, specifically between August 1, 2007 and September 30, 2009. In paragraph 20 of her Reasons, Gilmore J. stated:

The complainant’s behaviour resulting from the consumption of drugs and alcohol is in issue in this case. Although I am cognizant of the fact that the YRP records postdate the period of the alleged offences, there may be some relevance with respect to a full picture of the complainant’s behaviour before, during, and after the period of the alleged offences. For this reason I view the records as likely relevant, although not pivotal to the case…

20Having reviewed the records of the OPS they fall into three time periods; specifically, March 17, 2016, April 16, 2016 and April 18, 2016. As well, there was an audio tape of a 911 call and a video.

21Dealing first of all with the 911 audio, as I indicated in Court - having listened to the 911 call, it adds nothing to the information contained in the written OPS records and I have returned the 911 audio to counsel for the OPS as I am not satisfied that it has any relevance to the issues before this Court.

22The records as they relate to the incidents of March 18, 2016 as well as the records relating to April 16, 2016, all appear to relate to situations where the complainant may have been intoxicated. For the same reasons reflected in the Reasons of Gilmore J., I am of the view that these records are relevant and should be produced subject to the redactions as they relate to individuals other than the complainant. The video appears to be a reflection from various camera angles of the events of April 16, 2016. For the same reasons as I have found the occurrence report relevant, the video is also relevant and producible.

23As for the incident of April 18, 2016, this occurrence report relates to issues between the complainant and Algonquin College where the complainant appears to be studying, but does not specifically relate to issues concerning allegations of intoxication. These records, in my view, are not relevant and do not need to be produced.

24I have reviewed the form of redactions submitted to me as part of the stage two analysis, and I am satisfied that those records as redacted may now be produced in accordance with the provisions of s. 278.5(1) of the Code.