COURT FILE NO.: 235/18

DATE: 2018/04/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Prosecution/Respondent

– and –

Michael John William Ball

Accused/Applicant

R. Dietrich, for the Prosecution

A. Bryant and A.M. Morphew, for the Accused/Applicant

HEARD: March 26 - 28, 2018

PRE-TRIAL APPLICATION

(Third Party records - SECOND STAGE)

The Honourable Justice J. R. Henderson

INTRODUCTION

[1] This is my decision at the second stage of a pre-trial application on behalf of the accused, Michael Ball (“Ball”), for production of third party records pursuant to the principles set out by the Supreme Court of Canada in the case of R v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.

[2] Ball is charged that he committed the first-degree murder of Erin Howlett (“Howlett”) on or about June 27, 2013, in the City of Kitchener, Ontario. The third party records in question are the medical records from Grand River Hospital (“GRH”) of Daniel Warwick (“Warwick”) who will be a witness for the Crown in the prosecution of this case.

[3] Defence counsel submits that Warwick is a key witness for the Crown; that Warwick’s credibility is suspect; that Warwick has a mental health condition that affects or could affect the reliability of his evidence; and that the GRH records that indicate mental health problems, psychological issues, medication issues, or memory issues that could affect credibility should be produced.

[4] The Crown accepts that Warwick will be considered an unsavoury witness at trial, and acknowledges that Warwick has credibility issues. The Crown also accepts that there is some evidence from the police records that Warwick suffers from schizophrenia. However, the Crown submits that this is not enough to form the basis for an order for the production of Warwick’s medical records.

THE BACKGROUND FACTS

[5] Ball and Howlett were involved in an intimate relationship that, in part, involved the supply and use of illegal drugs. Specifically, Ball is alleged to have been a drug dealer who supplied Howlett with drugs for her own use.

[6] Warwick and Ball are acquaintances in the drug business, and Warwick is alleged to have supplied drugs to Ball for resale. Further, Warwick was acquainted with Howlett, and he knew that Howlett was a drug user.

[7] The evidence suggests that the intimate relationship between Ball and Howlett ended in May or June 2013, but that Ball continued to supply Howlett with drugs. At some point, Howlett went missing. Howlett’s body was found in a duffel bag in the Grand River on July 5, 2013, but police officers allege that Howlett likely died on or about June 27, 2013.

[8] Warwick says that he had interactions with Ball between the time of Howlett’s death and the time that Howlett’s body ended up in the Grand River. Warwick also has said that Ball made statements to him in which Ball confessed to causing Howlett’s death.

[9] In support of this application, defence counsel has produced excerpts from various police records that show that Warwick has a lengthy criminal record. Further, there is evidence that Warwick has provided contradictory statements to police during the investigation of the present case, and that he has admitted to being a practiced liar. In addition, the police records make reference to evidence that suggests that Warwick has mental health issues.

[10] On March 26, 2018, for oral reasons given, I found that the accused had proved that this application met the threshold for the first stage of the O’Connor test. I found that the GRH records regarding Warwick were likely relevant to an issue at trial, namely the credibility of Warwick. Thereafter, I privately reviewed the records, and prepared a judicial summary by grouping the records according to the date of attendance and the nature of the complaint. I then provided that judicial summary to counsel.

THE LAW

[11] The process for determining a pre-trial application for the production of third party records was established in the O’Connor decision at paras. 15-34, and was later confirmed in the case of R v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 27.

[12] In summary, the Supreme Court of Canada established a two-stage process. At the first stage, the accused must show that the records are “likely relevant” to an issue in the case. If the accused is unable to show likely relevance, then the records will not be produced. If the records are found to be likely relevant, then the records will be produced to the court for the second stage of the process. I have already found that the application before me meets the threshold for the first stage.

[13] At the second stage, the court must assess whether the records should be produced to the accused. In doing so, the court must balance the privacy rights of the third party against the right of the accused to make full answer and defence.

[14] In the O’Connor decision at para. 31, the Supreme Court of Canada provided a non-exhaustive list of five factors for consideration at the second stage, as follows:

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.

[15] In the McNeil decision, at para. 35, Charron J. confirmed the five factors set out in the O’Connor decision, and then stated, “The factors set out in O’Connor should not be applied mechanically… Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case.”

[16] Further, at para. 39, Charron J. stated, “[I]t is my view that in most cases, a more useful starting point for courts in balancing competing interests at the second stage of an O’Connor application will be to assess the true relevancy of the targeted record in the case against the accused.” She continued at para. 41, “[I]f the claim of likely relevance is borne out upon inspection, 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.”

[17] The approach described in McNeil is consistent with the understanding that at this stage, the second stage of an O’Connor application, the court is not determining the admissibility of evidence. Rather, the court is deciding whether there is a reasonable possibility that information contained in a record may assist the accused in making full answer and defence. See para. 44 of McNeil.

[18] Regarding the fourth O’Connor factor, discriminatory belief or bias, it is important to recognize that it is not sufficient for the accused to simply submit that third party records of a Crown witness should be produced because the credibility of the witness is in question and the witness suffers from a mental health condition. As stated by L’Heureux-Dubé J. in O’Connor at para. 143, the mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of the witness’s testimony. Any suggestion that a particular illness or disability implies unreliability must be informed by cogent evidence rather than stereotype or prejudice.

[19] I find that the fifth O’Connor factor, potential prejudice to the complainant’s dignity, privacy or security, does not apply to the circumstances of the present case as the records in this case are those of a third party witness, not the complainant. In O’Connor, the accused was charged with sexual assault and the records in question were the medical, counselling, and school records of the complainant, the alleged victim of the offence. There was concern that the production of the complainant’s private records would further traumatize a person who had already been traumatized by the alleged offence. That is not the same situation as in the present case.

[20] In the present case, it is acknowledged that Warwick has a reasonable expectation of privacy with respect to the GRH records. Therefore, any negative effect arising from the disclosure of Warwick’s private records is properly considered under the third O’Connor factor, not the fifth factor.

ANALYSIS

[21] In my judicial summary of the GRH records, I noted that Warwick attended at GRH on many occasions between 1999 and 2017, for reasons that included physical, psychiatric, or psychiatric/substance abuse complaints.

[22] Defence counsel requests, at the second stage, production of the records for eight of the attendances that are listed in my judicial summary, most of which relate to attendances at GRH for psychiatric and/or substance abuse complaints. The records from my judicial summary that are requested are as follows:

#1 September 2, 2017, Emergency Department (ED) attendance (p.1-7 GRH Records)

• Presenting with a physical complaint

#2 August 5, 2017, ED attendance (p. 8-22)

• Physical complaint

#3 October 1-2, 2016, ED attendance and admission (p. 26-68)

• Psychiatric complaint

#4 September 20, 2016, ED attendance (p. 69-83)

• Physical complaint

#5 September 9-26, 2016, ED and Out Patient (OP) attendances (p. 84-99)

• Psychiatric/substance abuse complaint

#6 September 2, 2016, ED attendance (p.100-121)

• Psychiatric complaint

#7 August 28, 2016, ED attendance (p. 122-150)

• Psychiatric/substance abuse complaint

#8 December 26, 2007, ED attendance (p. 241-254)

• Psychiatric/substance abuse complaint

[23] Without listing any of the details, in my judicial summary I also noted many other dates on which Warwick attended at GRH with complaints that were physical in nature. Production of the records of these other attendances was not requested by the defence at this stage.

[24] I find that the first two O’Connor factors, the right to make full answer and defence and the probative value of the records, weigh heavily in favour of the defence position in this case, particularly regarding the attendances with a psychiatric and/or substance abuse complaint.

[25] I find that Warwick is a key witness for the Crown. The central factual issues in this case will include the question of how Howlett died and whether or not Ball caused her death. Warwick’s testimony about his interactions with Ball after the time of Howlett’s death, including his testimony that Ball told Warwick that Ball had caused Howlett’s death, goes directly to the guilt or innocence of the accused.

[26] Further, there are good reasons to question Warwick’s credibility. Warwick has a lengthy criminal record that includes convictions for drug offences, assaults, and mischief, some of which involved the use of weapons. He also has admitted to being a practiced liar, and he has testified that he would have no trouble spinning lies to save his own skin. It is likely that the jury will be provided with a Vetrovec warning, or at least some instruction as to the way in which the jury should assess Warwick’s testimony.

[27] Still further, Warwick has given contradictory statements to police officers, at least one of which may have been in exchange for preferential treatment. In his initial statement to police in October 2013, Warwick denied any knowledge of Howlett’s death. Later, he told police that Ball had confessed to him that he had killed Howlett, but he denied that he had assisted Ball in disposing of the body. Still later, Warwick testified that he in fact had assisted Ball in disposing of Howlett’s body.

[28] The fact that Warwick’s evidence goes to the guilt or innocence of the accused and the fact that there are good reasons to question his credibility means that any evidence that assists in determining the reliability of his testimony is highly probative. If there are documents in the GRH records that could be used in the assessment of Warwick’s credibility, those documents are important to Ball’s right to make full answer and defence.

[29] I accept that if the only evidence before me was to the effect that Warwick’s credibility was in issue and that Warwick suffered from a mental health issue, then that may not be enough to grant this application. However, in my opinion, the evidence in this case goes much further. In this case, based upon the police records and the GRH records, I find that there is an evidentiary link between Warwick’s mental health and the issue of Warwick’s credibility.

[30] On October 6, 2016, the police records show that Warwick was arrested after he was observed acting in an erratic manner as he was damaging an ATM kiosk and he jumped onto a Brink’s truck. Police officers recorded that Warwick was having mental health issues at the time. The GRH records show that only a few days earlier Warwick had been admitted to hospital because of a mental health condition. The GRH records provide information with respect to the history, diagnosis, and medication that would be relevant to the reliability of any statements made by Warwick in or around this time.

[31] In May 2017, Warwick was arrested after an armed standoff with police. The police notes show that Warwick told officers that he had schizophrenia and he was not treating it. There are no GRH records for this time period, but the GRH records refer to schizophrenia on several of Warwick’s attendances in 2016 and 2017.

[32] On August 4, 2017, the police records show that Warwick was arrested for assault. The police notes show that Warwick told officers that he had schizophrenia and that he heard voices. The GRH records from August 5, 2017 show that Warwick attended with only a physical complaint. This physical complaint seems to relate to the contact with police from the previous evening. However, the records from GRH for this attendance also provide a history of drug use and a mental health condition. This history is corroborative of Warwick’s past incidents of erratic behaviour. Moreover, on other attendances at GRH for psychiatric complaints in 2016 and 2017, there are notations about Warwick hearing voices.

[33] Regarding the attendances at GRH in August and September 2016, there are no police records filed on this application that show police involvement on these dates. However, the GRH records suggest that Warwick was brought to GRH by police with respect to psychiatric and/or substance abuse issues at least twice during this time. Further, the GRH records indicate a history of mental health conditions, drug misuse, and auditory hallucinations during this period.

[34] In summary, the combined evidence from the GRH records and the police records disclose a history of auditory hallucinations, erratic behaviour, medication issues, and substance abuse, all of which could be relevant to the assessment of Warwick’s credibility. Therefore, I accept that there are evidentiary links between Warwick’s credibility and the GRH records for Warwick’s attendances with psychiatric and/or substance abuse complaints.

[35] Regarding the fourth factor in O’Connor, discriminatory belief and bias, I accept that the mere fact that a witness has a mental health issue cannot be taken as indicative of the potential unreliability of the witness’s testimony. I accept the statements in O’Connor at para. 143 that any suggestion that a mental illness implies unreliability must be informed by cogent evidence rather than stereotype or prejudice. However, the relevance of Warwick’s mental health records in this case is not based on prejudicial thinking. There is cogent evidence that links the mental health issues to Warwick’s credibility, as discussed above.

[36] Regarding the third O’Connor factor, the reasonable expectation of privacy, I find that there is a high expectation of privacy in Warwick’s hospital records. Accordingly, there may be some negative emotional impact on Warwick if his private records were to be disclosed. However, in our society the courts have recognized that a person does not have an absolute right of privacy, but that a person has a right to a reasonable expectation of privacy. Therefore, the courts must balance the reasonable expectation of privacy against the necessity of interference from the state. See Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at p. 159.

[37] In O’Connor at para. 132, L’Heureux-Dubé J. provided four criteria that should be considered when the court entertains a request for production of private records. She wrote as follows:

First, production should only be granted when it is shown that the accused cannot obtain the information sought by any other reasonably available and effective alternative means. Second, production which infringes upon a right to privacy must be as limited as reasonably possible to fulfil the right to make full answer and defence. Third, arguments urging production must rest upon permissible chains of reasoning, rather than upon discriminatory assumptions and stereotypes. Finally, there must be a proportionality between the salutary effects of production on the accused's right to make full answer and defence as compared with the deleterious effects on the party whose private records are being produced.

[38] In the present case, I accept that the information cannot be obtained by any other means, and that the request is based upon a permissible chain of reasoning. I also accept that any disclosure of Warwick’s GRH records must be tempered by what is reasonable and what is proportional.

[39] I find that production of the GRH records with respect to Warwick’s attendances at the hospital for psychiatric and/or substance abuse complaints is reasonably required for Ball to make full answer and defence to the charge. Moreover, an order for production of these parts of the GRH records is proportional as between the competing rights in this case. Therefore, I will order production of items #3, #5, #6, and #7 in the requested list.

[40] Regarding item #8, I find that the records from December 26, 2007 are too remote in time to the matters before this court. Therefore, the request for production of item #8 is dismissed.

[41] Regarding item #4, the GRH records indicate an attendance for a physical complaint, but I note that this physical complaint occurred within the same timeframe as attendances for psychiatric complaints listed as items #5 and #6. In my view, item #4 will provide further context to the other attendances during the same time period. Therefore, I will order production of item #4.

[42] Regarding item #2, I note that this is also an attendance for a physical complaint, but that it relates to an incident of erratic behaviour in which Warwick was involved with the police. The GRH records of this date also make some reference to the mental health history. Therefore, I will order production of item #2.

[43] Item #1 also relates to an incident involving police, but there is nothing in the GRH records that suggests a mental health issue. Therefore, the request for production of item #1 is dismissed.

CONCLUSION

[44] In conclusion, I order the production of items #2, #3, #4, #5, #6, and #7 in the requested list. The Registrar is hereby directed to unseal the GRH records, marked as Exhibit 1, make a copy of the abovementioned items, and re-seal the exhibit.

[45] There are no obvious redactions that are necessary, but I will order certain conditions on the production of these items, as follows:

1. One copy will be provided to each of the Crown and the defence.

2. No further copies will be made without the consent of the court.

3. The copies are not to be shown or discussed with anyone except Ball, Warwick, or experts hired by the Crown or the defence.

4. All copies will be returned after the completion of the trial.

J. R. Henderson J.

Released: April 5, 2018

COURT FILE NO.: 235/18

DATE: 2018/04/05

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

Prosecution/Respondent

– and –

Michael John William Ball

Accused/Applicant

PRE-TRIAL APPLICATION

(THIRD PARTY RECORDS – SECOND STAGE)

J. R. Henderson J.

Released: April 5, 2018