Court File and Parties

Court File No.: 11/16 Date: 2017/12/01 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Griffin Vangoch, Applicant

Counsel: Lisa DeFoe, for the Crown Lisa Gunn, for the Applicant Trudy Mauth, for the Complainant, K.M.

Heard: December 1, 2017

K. A. Gorman

Reasons for Judgment

[1] The Applicant is charged with sexual assault, assault simpliciter and choking the complainant K.M. Following the alleged incident the complainant sought counselling.

[2] The complainant consented to the disclosure of counselling on two specific dates: October 26 and 27, 2015.

[3] Inadvertently, St. Joseph’s Health Care provided the entirety of K.M.’s file to the Crown. The Crown provided same to counsel for the accused. Ms. Gunn subsequently reviewed and returned the material.

[4] The Applicant now argues that since counsel has already seen the documentation K.M. no longer has an expectation of privacy and therefore the provisions of s. 278 of the Criminal Code of Canada do not apply.

[5] I disagree. As Trotter, J stated in R. v. Gray, 2015 ONSC 3284 at para 22:

An accused person should not be able to take advantage of the negligence of the Crown and by-pass the procedure set out in ss. 278.1 to 278.9.

[6] It is agreed that the counselling records sought, constitute a record within s. 278.1 of the CCC.

[7] The evidence in support of the Application is the Affidavit of Ms. Jacqueline Lukasik. Her Affidavit simply attests to the fact that the Crown had inadvertently disclosed more documentation than was covered by the scope of K.M.’s consent, and that the material was returned.

[8] The Applicant submits that disclosure of the therapy records is relevant to the issue of the Complainant’s memory as well as to the identity of the alleged offender, and is necessary for the Applicant to make full answer and defence.

[9] As the court stated in R. v. Mills (1999), 1999 SCC 637, 139 C.C.C. (3d) 321:

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 a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent. Most cases, however, will not be so clear, and in assessing applications for production courts must determine the weight to be granted to the interests protected by privacy and full answer and defence in the particular circumstances of each case. Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high. A complainant's privacy interest is very high where the confidential information contained in a record concerns the complainant's personal identity or where the confidentiality of the record is vital to protect a therapeutic relationship.

[10] In R. v. Batte, 2000 ONCA 5751, 2000 CarswellOnt 2113 at para. 75, the court held:

The determination of likely relevance under the common law scheme requires the same approach. The mere assertion that a record is relevant to credibility is not enough. An accused must point to some “case specific evidence or information” to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggest that the records contain information which is not already available to the defence or has potential impeachment value.

[11] Section 278.3(4) of the CCC provides that:

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 that 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.

[12] It is my view that the Applicant’s request for production of the counselling records is grounded in the very sections of the CCC that Parliament has prohibited. As the court stated in Batte (supra) at para. 71:

If the likely relevance bar is that low, it serves no purpose where the records relate to counselling or treatment connected to allegations of sexual abuse. It is impossible to imagine that such records would not contain references to the alleged abuse or matters that could affect the credibility of the complainants' allegation of abuse. In my view, the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.

[13] In this case, the evidentiary record for production is merely at the level of speculation. To grant the order sought, on the basis of this evidentiary record would “[…] in effect condone routine production for review orders without a reasonable possibility of advancing full answer and defence while creating prejudicial consequences and possible revictimization for a sexual assault complainant.” [1]

[14] The Application is baseless and accordingly fails.

“Justice K.A. Gorman” Justice K. A. Gorman Released: December 1, 2017

Footnotes

[1] As stated by Hill, J in R. v. M. (D.), 2000 ONSC 22825, 2000 CarswellOnt 2923 at para. 61.