A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED

UNDER THE CRIMINAL CODE OF CANADA, SECTION 648(1)

CITATION: R. v. Barrett, 2017 ONSC 4786

BARRIE COURT FILE NO.: CR-16-159

DATE: 20170808

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TERRENCE ERNEST BARRETT

F. Temple and C. Peters, for the Crown

A. Robbins and A. Kwan, for the Applicant

D.A. Lyons-Batstone, for the Third Party

HEARD: July 5, 2017

RULING ON THIRD PARTY RECORDS APPLICATION

QUINLAN J.:

Background

[1] Mr. Barrett is charged with second degree murder of Milan Segota and aggravated assault on Aimee Novak arising from a physical altercation that took place on February 15, 2015.

[2] Ms. Novak was living with Mr. Barrett at the time. She was the only witness who saw the beginning and the end of the confrontation between Mr. Barrett and Mr. Segota during which Mr. Segota was fatally injured and Ms. Novak was wounded. Ms. Novak has provided different versions as to how she and Mr. Segota were injured. She told neighbours immediately after the fight that she was stabbed by Mr. Segota; she told police that squatters wearing ski masks stabbed her and Mr. Segota; and she later told police that Mr. Barrett stabbed her and Mr. Segota. Neighbours directly contradict Ms. Novak’s claim regarding the manner in which she interacted with Mr. Segota prior to the altercation. The applicant will be alleging at trial that Ms. Novak was the initial aggressor.

[3] Ms. Novak testified at the preliminary hearing that prior to the altercation, she had consumed beer, three prescribed medications (Seroquel, Zoloft, and Lorazepam), and may have consumed marijuana and that, because she had been drinking that day, she has problems with her memory.

Nature of the Application

[4] Pursuant to the common law and ss. 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms, the applicant seeks an order for the production of records relating to Ms. Novak. The records sought are in the possession of:

(i) Ms. Novak's family physician, Dr. Anne Duvall;

(ii) Royal Victoria Regional Health Centre (RVRHC), where Ms. Novak attended in the past for psychiatric treatment and for treatment of her injuries on the night in question; and

(iii) The David Busby Street Centre and CARAH House, a service operated by the Canadian Mental Health Association (CMHA), where Ms. Novak attended for counselling and assistance following the incident in question.

[5] Ms. Novak testified at the preliminary hearing that she has a history of psychiatric treatment and that she is an alcoholic. She claims to have been diagnosed with depression, anxiety, and agoraphobia. She obtains prescriptions for her conditions from Dr. Duvall. She has been admitted to RVRHC as a result of her mental health issues and has attended there on a number of occasions for psychiatric consultations.

[6] Ms. Novak saw counsellors after the incident. She testified that she has spoken with staff at the David Busby Street Centre and CARAH House about the events she witnessed and that she told them the truth about what she saw happen to Mr. Segota. Ms. Novak testified that, with her counselling, she has been trying “not to remember” what happened the day of the incident and that she does not remember any of the words exchanged between Mr. Segota and Mr. Barrett during the altercation. Her first videotaped statement, of which she has no memory, is inconsistent with her second and third statements to the police.

[7] Ms. Novak testified at the preliminary hearing about assaults allegedly perpetrated on her by Mr. Barrett. The applicant did not oppose the Crown’s application to admit evidence of Mr. Barrett's prior discreditable conduct. That conduct relates, in part, to previous assaults on Ms. Novak, one of which resulted in a conviction for assault in 2014.

[8] The applicant seeks the records to ascertain:

(i) What Ms. Novak told medical professionals and counsellors about the events, given her inconsistent versions and her evidence regarding her attempts to block her memory of the day of the incident;

(ii) Whether Ms. Novak was in fact diagnosed with depression, anxiety, and agoraphobia, and prescribed medications for these conditions;

(iii) Whether Ms. Novak testified accurately about the frequency and dosages prescribed or has a history of misuse of medications; and

(iv) Whether Ms. Novak reported any abuse by Mr. Barrett to medical professionals or counsellors.

[9] In written argument, the applicant submitted that the records could assist in determining the effects of the consumption of prescribed medications combined with alcohol and marihuana. The applicant did not pursue this as a basis for production in oral argument.

[10] After hearing argument on the application, I concluded that the applicant had established that the records were likely relevant to issues at trial. I reviewed the records and provided redacted versions of some of the records to the parties. I advised that my written reasons would follow. These are my reasons.

Positions of the Parties

[11] The applicant intends to take issue with Ms. Novak’s recollection and characterization of the events that unfolded surrounding the incident, arguing that Ms. Novak’s medical and counselling records meet the test for “likely relevance”. The production of the records is necessary for Mr. Barrett to make full answer and defence. They are relevant to the credibility and reliability of Ms. Novak, which will be the central issue at trial.

[12] On behalf of the third party, Ms. Lyons-Batstone agrees that both stages of the two-part test set out for production of third-party records have been met with respect to the records of Dr. Duvall, the David Busby Street Centre and CMHA that relate to documentation of previous abuse by Mr. Barrett and what Ms. Novak told medical professionals about the events. Ms. Lyons-Batstone argues that a letter from Dr. Duvall setting out Ms. Novak's medications and any cautions concerning misuse would adequately inform the applicant about Ms. Novak’s medication history. Ms. Lyons-Batstone submits that the records from RVRHC do not meet the likely relevance threshold for review by the court: they are not logically probative to an issue at trial or Ms. Novak's competence to testify; they are dated and Ms. Novak's attendance to obtain a prescription took place after the event. Records from Ms. Novak's attendance at the hospital on the night in question for treatment of her injuries should have been part of the Crown’s first party disclosure obligation.

[13] The Crown takes no position on the application except to advise that Ms. Novak's hospital records from RVRHC relating to her attendance on the night of the incident are not in the Crown’s possession and thus would come within this third-party records application.

Legal Principles

[14] The parties agree that this application is governed by the two-stage process established by the majority in R. v. O’Connor, 1995 51 (SCC), [1995] 3 S.C.R. 411.

[15] Lamer C.J., writing for the majority, explained the first stage of the two-stage process at paras. 19 and 21 as follows:

[A]t the first stage in the production procedure, the onus should be on the accused to satisfy a judge that the information is likely to be relevant. The onus we place on the accused should not be interpreted as an evidential burden requiring evidence and a voir dire in every case. It is simply an initial threshold to provide a basis for production which can be satisfied by oral submissions of counsel…

The “likely relevance” stage should be confined to a question of whether the right to make full answer and defence is implicated by information contained in the records. Moreover, a judge will only be in an informed position to engage in the required balancing analysis once he or she has had an opportunity to review the records in question.

[16] The first step does not place an onerous burden on the applicant. It is designed to prevent the applicant from engaging in a fishing expedition: O’Connor, at paras. 22 and 24. As the majority explained at para. 25, "the ultimate goal is the search for truth rather than the suppression of potentially relevant evidence".

[17] Third party records may be relevant because they contain information concerning the unfolding of events or that “bears on the complainant's ‘credibility, including testimonial factors such as the quality of their perception of events at the time of the offence, and their memory since’”: O’Connor, at para. 29.

[18] A close temporal connection between the records and the offence is a factor to consider when assessing applications for production of third party records: O’Connor, at para. 26.

[19] In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 33, the Supreme Court of Canada reiterated the test of “likely relevance” in the following way:

“Likely relevant” under the common law O’Connor regime means 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” (O’Connor, at para. 22 (emphasis deleted)). An “issue at trial” here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case” (O’Connor, at para. 22).

[20] At the second stage of the O’Connor test, Lamer C.J. opined at paras. 30-31:

[T]he judge must examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence …. in balancing the competing rights in question, the following factors should be considered: “(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias” and “(5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question”. [Citations Omitted.]

[21] As the Supreme Court of Canada explained in McNeil, at para. 35, the latter two factors were tailored to meet the exigencies of sexual assault proceedings. They are of minimal assistance on this application.

[22] In McNeil, at para. 41, the court remarked that if the claim of likely relevance is borne out upon inspection of the documents by the court, then the accused’s right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production. Absent an overriding statutory regime governing the production of the record in question, a third party privacy interest is unlikely to defeat an application for production. However, “the court may find it necessary to make a production order subject to redactions or other conditions. In addition, when just and appropriate to do so, the court may well impose restrictions on the dissemination of the information produced for purposes unrelated to the accused’s full answer and defence”: McNeil, at para. 46.

[23] It is necessary to consider whether there would be any basis under the Stinchcombe regime for not disclosing the record to the applicant if it were in the possession of the prosecution. If not, there would be no principled reason to arrive at a different outcome on the third party production application: McNeil, at para. 42.

Analysis

[24] As noted earlier, I concluded that the applicant had established that the records were likely relevant to issues at trial. There was a reasonable possibility that the information contained therein was logically probative to Ms. Novak’s competence to testify and relevant to Ms. Novak's credibility and reliability. In view of this finding, I reviewed the records.

[25] I am satisfied that some of the records sought are necessary for the applicant to make full answer and defence, and have probative value. Ms. Novak is an important prosecution witness. The records produced provide information relevant to Ms. Novak’s credibility and to the reliability of her observation, interpretation and recollection of events. Dr. Duvall’s records set out Ms. Novak's diagnoses, prescribed medications and dosages as well as concerns about Ms. Novak’s alcohol use and concentration issues. Dr. Duvall’s records include records from RVRHC that speak to Ms. Novak's mental health diagnoses and her combined use of alcohol and prescription and non-prescription drugs. The records from RVRHC speak to Ms. Novak's psychiatric diagnoses, medications, admissions, addictions and complaints of domestic abuse by partners other than Mr. Barrett. Among other things, the RVRHC records may assist the applicant in testing Ms. Novak's credibility regarding her allegations of previous domestic abuse by Mr. Barrett. The RVRHC records include information Ms. Novak provided to medical professionals concerning the incident in question. The records from the David Busby Street Centre relate to Ms. Novak's attendance for counselling after the incident and include information that she provided concerning her mental health, medications, substance use and experience of trauma proximate to the time of the alleged offence. The records from CMHA deal with Ms. Novak's attendance at CARAH House for temporary housing after the incident and include reference to information that she provided concerning what transpired on the night in question.

[26] In determining what records should be disclosed, I have considered the extent to which the records are necessary for the applicant to make full answer and defence, their probative value and the nature and extent of Ms. Novak's reasonable expectation of privacy – the balancing test mandated by the Supreme Court of Canada. Given the nature of the records sought, I determined that only some met the test for production, and of those to be produced, some should be redacted to give effect to Ms. Novak's reasonable expectation of privacy in matters that have limited or no probative value. I am satisfied that the extent of production and redactions constitutes a reasonable limit on the ability of the applicant to make full answer and defence.

[27] Any concern about disclosure of the information has been addressed through the imposition of conditions. As I indicated orally, subject to the following conditions including redaction, the application was granted and production of some of the records sought was ordered:

1. After the records were redacted and copied, the originals were returned to the exhibit envelopes which have been resealed and will remain with the court exhibits.

2. The redacted copy of each of the records has been made an exhibit and resealed and will remain with the court exhibits.

3. No other hard or electronic copy of the records may be made without my prior permission, except to allow Ms. Kwan to scan one copy to be kept on a password-protected device.

4. The copy of the records is to remain within the control of Mr. Robbins, Ms. Kwan, Mr. Temple, Mr. Peters and Ms. Lyons-Batstone at all times. They may be accessed by those employed by Mr. Robbins or the prosecution for the purpose of assisting with the preparation of the case for Mr. Barrett or the Crown and by Ms. Lyons-Batstone for the purpose of reviewing the records with the third party. They may not be released to anyone else without my prior permission. The records may be reviewed by Mr. Barrett, but only in the presence of Mr. Robbins or Ms. Kwan. They may not be left with Mr. Barrett.

5. The records are only to be used for the purpose of making full answer and defence in this prosecution.

6. Under no circumstances may the records or information contained in them be released to or accessed by the media.

7. If Mr. Robbins and Ms. Kwan cease to act for Mr. Barrett during the course of the trial, the defence copy of the records must be returned to me immediately and the scanned copy must be immediately deleted.

8. Upon the expiry of the appeal period, if no appeal has been launched by Mr. Barrett or by the Crown, the copies of the records are to be returned to the court and the scanned copy deleted within seven days. Counsel for the third party may also seek the return of the contents of the sealed exhibit envelopes by written request to me.

9. If an appeal is launched, the copy of the records may be passed to appellate counsel, upon him or her agreeing in writing to be bound by these same conditions. If appellate counsel does not agree to be bound by these conditions, trial counsel must return the copy of the records to the court.

QUINLAN J.

Released: August 8, 2017