COURT FILE NO.: 17-RM2314
DATE: 20180514
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
LIBAN GURE and DANIEL JEAN-CHARLES
Applicants
– and –
CHRISTINA GALLINGER
Third Party
Jon Fuller/Lia Bramwell, for the Respondent
Gary Barnes, for the Applicant Liban Gure
Genevieve McInnes/Anthony Paciocco for the Applicant, Daniel Jean-Charles
Lorne Goldstein for the Third Party, Christina Gallinger
HEARD: April 11, 2018
REASONS FOR decision
beaudoin j.
[1] The Applicants, Liban Gure (Gure) and Daniel Jean-Charles (Jean-Charles) are jointly charged with the manslaughter and aggravated assault of Ahmed Afrah. The offences are alleged to have occurred on 15 May 2017. The trial is scheduled to commence on January 14, 2019.
[2] They seek an order requesting the production of records pertaining to the diagnosis and treatment of Christina Gallinger’s (Christina) cognitive and mental health related issues. They also seek the records of a number of social organizations directed to supporting Christina in the community, due to her mental health related challenges. She is one of two unindicted eyewitnesses to the alleged crimes.
[3] The records sought by the Applicants include medical records from the following organizations:
i. the CMHA
ii. Y’s Owl MacClure
iii. Hôpital Monfort
iv. the Ottawa Hospital (Civic)
v. CHEO
[4] These records have been subpoenaed and have been produced and deposited with the Court for safe keeping. In the course of argument, the Applicants have narrowed their search to the CMHA records, the records of l’Hôpital Monfort and the records of the Ottawa Hospital (Civic) for the year preceding the events in issue.
Background
[5] On May 17, 2017, at approximately 10:45 P.M., Ahmed Afrah (Afrah) fell to his death from a balcony located on the 16^th^ floor of an apartment building at 416 MacLaren Avenue in the City of Ottawa. Prior to his death, Afrah had been inside an apartment belonging to Christina. He had suffered a beating for an alleged drug debt. The Crown theory appears to be that a number of persons, including the Applicants, were involved in the beating of Afrah. While being chased by one of the occupants, and in an attempt to flee further injury, Afrah went onto the Christina’s balcony, climbed over a divider onto a neighbour’s unit. Afrah then proceeded along the length of this other balcony, went through some screening and ultimately fell to his death.
[6] The following persons were in the apartment in the time period leading up to Afrah’s death:
(i) the Applicant, Jean-Charles, also referred to as “Johnny”;
(ii) The Applicant, Gure, also referred to as “Benji”;
(iii) Nia Denton-Akpalialuk, a youth facing manslaughter and other related charges for the death of Afrah, also referred to as “Christy”;
(iv) Jehvon Bloomfield, a second youth facing manslaughter and other related charges for the death of Afrah, also referred to as “Jimmy”;
(v) Jason Magoon, a second unindicted eyewitness to the events.
[7] Christina provided a series of statements to police about the events in her apartment that evening, as well as her observations of the matter in which Afrah fell to his death. The Applicants have set out, in detail, how Christina’s description of the events and her numerous statements to the police are acutely inconsistent, and in certain critical respects, factually impossible. These statements have been extensively charted in the Supplementary Application Record filed on behalf of Jean-Charles.
[8] Christina is a self-proclaimed “crack head” suffering from cognitive deficiencies and a number of mental illnesses. On the day in question, she had earlier consumed an unusually large amount of crack cocaine. Moreover, the Applicants submit that Christina’s various cognitive deficiencies rendered her extremely susceptible to adopting the content of leading or suggestive questioning by the police.
[9] The Applicants rely on Christina’s preliminary hearing testimony and submit that this highlights her profound inability to provide a consistent, reliable and credible narrative of events. For instance, Christina adopted all of her prior statements as equally “true” with seemingly no awareness that the various statements, were, in a number of respects, starkly inconsistent. Further, in cross-examination, she put forward an entirely different version of what took place in her apartment prior to Afrah’s death.
[10] Moreover, Gure notes that in addition to being internally inconsistent, Christina’s description of the events stands in contrast to the testimony of the Crown’s second eyewitness, Jason Magoon.
[11] It is not disputed that Christina suffers from cognitive deficiencies as well as the serious mental health issues. At the preliminary hearing, Crown counsel brought applications pursuant to section 486 and 715. 2 of the Criminal Code. Section 715.2 provides:
Evidence of victim or witness who has a disability
- 715.2 (1) In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
[12] Is support of that application, the Crown called Ms. Nina Gentles as a witness. She is a social worker with the Canadian Mental Health Association (CMHA). She has been Christina’s “Intensive Case manager” since July 2017. Christina has been a client of the CMHA since 2002.
[13] Ms. Gentles testified that individuals such as Christina, who are part of the intensive care program, suffer from a “persistent mental illness” and that CMHA keeps an online system or file for each of their clients. This file includes details such as the point of referral, a synopsis of presenting issues, written notes by current and historical case managers, documents from physicians, psychiatrists and caseworkers from other agencies and consent forms and so on.
[14] Ms. Gentles’ role includes liaising with all of the people from various agencies who work with Christina. Another agency, called “Y’s Owl”, assists Christina in managing her needs in the community and connects her to the various resources she may require. Christina’s finances are managed by the Public Trustee.
[15] Ms. Gentles described Christina as suffering from the following mental illnesses; first, a developmental disability. Ms. Gentles describes this “as probably the most prevalent diagnosis that stuck out for me when working with Christina”. She said the following things: “She struggles to kind of listen and comprehend what’s being said.” “She tries to speak in a way she will understand, will really break things down for her.” “She struggles with timelines, timeframes.” “She is 40 years old, but does not function like a 40-year-old.” “She does her best, but her recollection of things is not always accurate.”
[16] In cross-examination, Ms. Gentles admitted that “when Ms. Gallinger recounts a past event to her, it’s not always correct.” If asked a question, Christina may try to provide an answer even if she does not know it, and irrespective of whether the answer is accurate. She believes that Christina is noted in her CMHA file as having a ‘mild to moderate developmental delay.”
[17] She describes Christina as suffering from the following additional mental illnesses:
(i) Bipolar Disorder: She could not recall the particulars of how this was diagnosed but was aware that there were reports within her file as well as within their online system that speak to this diagnosis. She further indicated that Christina attends the Monfort hospital for monthly in ejections of an “antipsychotic mood stabilizer.”
(ii) PTSD: Ms. Gentles believes this stems from traumas sustained in childhood and adulthood. She is unaware as to the basis of this diagnosis, but believes that Christina was diagnosed with PTSD by a physician.
(iii) Borderline Personality Disorder. Ms. Gentles believes this is self-reported, but does not otherwise know the basis of the diagnosis. She believes that Christina has had a number of formal assessments by psychiatrists over the years. Christina’s current psychiatrist is Dr. Phaneuf at the Montfort Hospital.
[18] Christina was also questioned about the status of her mental health at the preliminary hearing. She admitted that she gets money from a public trustee because “she is not capable” of doing it for herself. She said she has a bipolar disorder and schizophrenia and she sees a psychiatrist. She reported seeing a psychiatrist who diagnosed her with a “chemical imbalance.” She had been hit on the head in the previous year which had led her to attend the Civic Hospital for treatment for a head injury.
The Position of the Applicants
[19] The Applicants emphasize that we are at the first stage of the common law O’Connor regime.
[20] Mr. Barnes, on behalf of Gure, and Ms. McInnes and Mr. Paciocco, on behalf of Jean-Charles argue that Christina will be the Crown’s main witness at trial and that the Crown will be asking this Court to rely on her testimony in convicting their clients. They maintain that it would be contrary to the interests of justice for the accused to proceed to trial, in the absence of a complete and accurate picture of the nature and extent that Christina’s cognitive deficiencies and mental illnesses. They submit that this Court cannot assess Christina’s reliability and credibility without a clear picture of her various mental illnesses.
[21] While counsel for Jean-Charles do not challenge Christina’s testimonial competence, this is not conceded by Mr. Barnes at this time
[22] While the Applicants’ ultimate use of these records is not an issue at this stage, they submit that if the application be granted, they intend to seek expert opinions as to the reliability and credibility concerns endemic to an individual suffering the kinds of cognitive deficiencies and mental health illnesses presented by Christina.
[23] They submit that any balancing of Christina’s privacy concerns raised by her counsel only arise at the second stage of the O’Connor regime.
The Position of the Respondent
[24] The Respondent Crown agrees that Christina is a main witness but not the main witness. The Crown refers to the other evidence that they will be presenting in this case against each of the accused. In its written materials, the Crown emphasizes Christina’s reasonable expectation of privacy with respect to her medical and psychiatric records. The Crown maintains that the mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of his or her testimony.
[25] The Crown adds that Christina’s credibility, reliability and competence to testify are not the subject of expert opinion and that an assessment of her credibility and reliability is for the Court to decide.[^1] The Crown asserts that Christina is competent to testify in that she is able to communicate and promise to tell the truth. At the preliminary hearing, Justice Boxall found her competent to testify.
[26] In argument, Mr. Fuller submitted that the records sought did not meet the “likely relevant” test; he asks “what are these records relevant to and how will they be relevant?” He submits that the use of the records cannot be divorced from a consideration of their relevance. He argues that counsel do not need these records to cross-examine Christina trial. He maintains that the applications lack an evidentiary foundation and that I will have to rely on stereotypes and myths about mental illness in reviewing the records and in determining what records should be produced. He notes that there is no evidence that Christina has spoken to anyone about this case; that she was suffering from delusions or that she was in a psychotic state during the events in question.
[27] Finally, Mr. Fuller submits that the requests, even as narrowed, are overly broad. He conceded that if the likely relevance threshold is met, records of a diagnosis and the effects of Christina’s medication might be produced; but this information is of no use to the defence without an expert opinion as set out in some of the case law.
[28] On behalf of Christina, Mr. Goldstein initially relied on section 278.3(4)(f) of the Criminal Code[^2], but acknowledged that the statutory regime is not applicable in this case although not entirely irrelevant. He points out that the Applicants’ own materials disclose ample basis upon which to cross-examine his client, including numerous inconsistencies and assertions which are factually impossible. He maintains that these grounds of cross-examination do not depend in any way on invading the privacy of Christina’s records.
[29] Mr. Goldstein submits that there is nothing in the Applicants’ materials which goes beyond the mere assertion of an existing cluster of mental illnesses and a witness of demonstrable unsophistication. More specifically, he argues that there is no link between the records and any relevant triable issue. He too emphasizes the lack of an evidentiary foundation in support of the application. Mr. Goldstein says that counsel for the Applicants do not need to understand the reason for the inconsistencies in Christina’s evidence in order to defend their clients. He submits that there is a possibility of relevance only and this is not enough.
[30] Mr. Goldstein conceded however, that if the evidentiary record established a link between Christina’s mental illnesses and her evidence, he “would have no leg to stand on.”
[31] Finally, Mr. Goldstein argues that to give effect to the Applicants’ arguments would mean that because Christina is a witness with mental health issues, she now has to divulge her personal private records. He concludes that any witness who has a mental health issue will now be encouraged to say that they saw nothing unless there are prepared to have their extremely personal records divulged.
The Law
[32] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Supreme Court of Canada set out a two-step, common-law procedure for the production of third-party records.
b) The First Stage: Establishing “Likely Relevance”
19 When the defence seeks information in the hands of a third party (as compared to the state), the following considerations operate so as to require a shifting of the onus and a higher threshold of relevance:
a. the information is not part of the state’s “case to meet” nor has the state been granted access to the information in preparing its case; and
b. third parties have no obligation to assist the defence.
In light of these considerations, we agree with L’Heureux-Dubé J. that, at 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. It is important to recognize that the accused will be in a very poor position to call evidence given that he has never had access to the records. Viva voce evidence and a voir dire may, however, be required in situations in which the presiding judge cannot resolve the matter on the basis of the submissions of counsel.
20 In order to initiate the production procedure, the accused must bring a formal written application supported by an affidavit setting out the specific grounds for production. However, the court should be able, in the interests of justice, to waive the need for a formal application in some cases. In either event, however, notice must be given to third parties in possession of the documents as well as to those persons who have a privacy interest in the records. The accused must also ensure that the custodian and the records are subpoenaed to ensure their attendance in the court. The initial application for disclosure should be made to the judge seized of the trial, but may be brought before the trial judge prior to the empanelling of the jury, at the same time that other motions are heard. In this way, disruption of the jury will be minimized and both the Crown and the defence will be provided with adequate time to prepare their cases based on any evidence that may be produced as a result of the application.
21 According to L’Heureux-Dubé J., once the accused meets the “likely relevance” threshold, he or she must then satisfy the judge that the salutary effects of ordering the documents produced to the court for inspection outweigh the deleterious effects of such production. We are of the view that this balancing should be undertaken at the second stage of the procedure. 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. (Internal citations omitted)
[33] In R. v. McNeil 2009 SCC 3, [2009] 1 S.C.R. 66, the Supreme Court provided further guidance in understanding the “likely relevance” threshold:
30 It is important to note that the common law likely relevance threshold in O’Connor differs significantly from the statutory likely relevance threshold set by Parliament for the production of records containing personal information in sexual assault proceedings under the Mills regime (see s. 278.3(4) of the Criminal Code). As this Court explained at some length in Mills, a range of permissible regimes can meet constitutional standards. It was therefore open to Parliament to craft its own solution to address the particular concerns arising from disclosure of third party records in sexual proceedings. In doing so, Parliament “sought to recognize the prevalence of sexual violence against women and children and its disadvantageous impact on their rights… and to reconcile fairness to complainants with the rights of the accused.” The following differences between the two regimes are particularly noteworthy.
31 First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths, stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings. Such generalized views need not be countered at large in respect of all third party records that fall outside the Mills regime. The general common law threshold of likely relevance under O’Connor is intended rather to screen applications to ensure the proper use of state authority in compelling production of third party records and to establish the appropriateness of the application so as to avoid squandering scarce judicial resources.
32 Second, while the Mills regime retains the two-stage framework set out in O’Connor, it differs significantly in that much of the balancing of the competing interests is effected at the first stage in determining whether production should be made to the court for inspection. This reflects Parliament’s assumption that a reasonable expectation of privacy exists in the types of records targeted by the statutory regime. An equivalent presumption of privacy does not attach in respect of all third party records that fall outside the Mills regime. Hence, any balancing of competing interests is reserved for the second stage of the O’Connor regime, when the documents can be inspected by the court to better ascertain the nature of the privacy interest, if any. Because of these significant differences, it is important not to transpose the Mills regime into the O’Connor production hearing in respect of documents to which the statutory dispositions do not apply.
5.1.4 Likely Relevance Under the Common Law Regime
33 “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”. 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”. At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position. (Internal citations omitted)
[34] In R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, Watt, J.A. speaking for the Ontario Court of Appeal, first reviewed the meaning of “Relevant” or “Relevance” at paras. 119 – 123:
The Meaning of “Relevant” and “Relevance”
119 The terms “relevant” and “relevance” are old friends of the law of evidence. Familiar faces. Constant companions. We know them well enough to say several things about them without being critical in any way.
120 Relevance is not a legal concept. It is a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence. Some have it. Others lack it.
121 Relevance is relative. It posits a relationship between an item of evidence and the proposition of fact the proponent of the evidence seeks to prove (or disprove) by its introduction. There is no relevance in the air.
122 Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel. Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise.
123 The law of evidence knows no degrees of relevance, despite the frequent appearance of descriptives like “minimally, marginally or doubtfully”, “tangentially” and “highly” that tag along for the ride from time to time. (Internal citations omitted.)
[35] Justice Watt then discussed third party records and the likely relevant test at paras: 126-129:
Third Party Records and “Likely Relevant”
126 In the third party O’Connor production landscape, “likely relevant” occupies a prominent place. The term designates the standard or burden an applicant must meet to have the trial judge review the records to determine whether or to what extent production will be ordered.
127 The standard “likely relevant” imposes a significant, but not an onerous, burden on an applicant. This threshold plays a meaningful role in screening applications to prevent the defence from engaging in speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming requests for production.
128 The “likely relevant” threshold is not onerous because an applicant cannot be required, as a condition of accessing information that may assist in making full answer and defence, to demonstrate the specific use to which they might put information that they have not seen. The trial judge does not balance competing interests to determine whether the “likely relevant” threshold has been met under O’Connor.
129 Under the third party O’Connor production regime, “likely relevant” means that there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of a witness to testify. An “issue at trial” 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 the reliability of other evidence. (Internal citations omitted)
Analysis and Conclusion
[36] There is no question that Christina Gallinger is an important witness at this upcoming trial. This application is guided by the common law O’Connor regime and I must determine at this first stage if there is a reasonable possibility that the information sought is logically probative to an issue at trial; namely her reliability and credibility.
[37] While I am acutely aware of her expectations of privacy with regard to these records, those concerns are not determinative at this first stage. Moreover, I am not to consider what use may be made of this information at trial, although it has been suggested that they may be used for cross-examination to contest a further section 715.2 application in submissions to the court or to possibly engage an expert. At this stage, the defence need not establish that these records are needed to cross-examine Ms. Gallinger.
[38] The issue in this case arises from the evidentiary basis in support of the applications. The Respondent and counsel for Christina argue that there should be more than mere assertions of mental illness to order the production of her records, even at this stage.
[39] Christina’s counsel conceded that if there was any evidence establishing a link between Christina’s mental illnesses and her evidence, he “would have no leg to stand on.” I conclude that this evidence is found in the Crown’s section 715.2 application and in the evidence at the preliminary inquiry. While the Crown urges me not to conflate the evidentiary threshold in support of 715.2 with the evidentiary basis for these applications, I find that the record demonstrates that Christina’s difficulties and inconsistencies in testifying are related to her mental illness.
[40] Ms. Gentles describes that “when Christina recounts a past event to her, it’s not always correct.” If asked a question, “Christina may try to provide an answer even if she doesn’t know it, and irrespective of whether the answer is accurate.” She believes that Christina is noted as having a ‘mild to moderate developmental delay.” She said that Christina has difficulties with timelines and that abstract thinking is difficult for her. She indicates that if something is mentioned to Christina as an option, she might accept that as a fact.
[41] In R. v. Moskalyk, 2017 ONSC 6675, 43 C.R. (7th) 244 and R. v. Kersten, 2009 CanLII 32917, the applications for psychiatric and counselling records were supported by affidavit evidence of a forensic psychiatrist who provided guidance on the likely relevance of particular reports. There is no such evidence in this case and I am left to question what records should be examined at this preliminary stage. I accept however that the defence is entitled to a clearer picture of Christina’s mental illness and its effect on her reliability and credibility. It was conceded that the CHEO records are out of date and that the Y’s Owl records might not meet the test of likely relevance, however counsel still insist that all of the CMHA records and all of the Monfort Hospital records should be produced as well as limited records from the Ottawa Hospital civic campus that relate to Christina’s head injury.
[42] I adopt the reasoning of Currie J. in R. v. Kozak [2008] SKQB 213 referenced at para. 23 in the Kersten decision:
There is no question of the complainant's privacy rights in connection with the doctors' records. A patient has an expectation of privacy when consulting a physician. A patient must feel able to reveal information frankly to the physician, so that the physician can make a proper diagnosis and recommendation for treatment. As Justice Laing said in R. v. Williams, 2003 SKQB 387, 239 Sask. R. 177 at para. 11, the medical records “attract a high degree of confidentiality.” The privacy of the patient is not to be intruded upon casually.
The salutary effects of reviewing the records include the provision of information that may assist the court in determining whether the accused will be found guilty of a criminal offence. The value of this effect is high.
The deleterious effects of reviewing the records include an intrusion upon the complainant's privacy, by way of the trial judge's review of the records. This intrusion is significantly more limited than is the intrusion where records are produced to the accused. Production to the accused involves a review of the information by Crown and defence counsel, and it may involve use of the information in open court at trial. A review of the records by the trial judge involves a review by only that one person.
[43] Accordingly, I order the production of all the CMHA and Montfort records for records of diagnoses of Christina’s psychiatric conditions or mental illnesses, the prescription of medications and of any potential side effects on Christina, assessments of cognitive ability and manifestations of narrative unreliability. I will limit my review of the Ottawa Civic Records to the assessment and treatment of her head injury.
Mr. Justice Robert N. Beaudoin
Released: May 14, 2018
COURT FILE NO.: 17-RM2314
DATE: 20180514
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
LIBAN GURE and DANIEL JEAN-CHARLES
Applicants
– and –
CHRISTINA GALLINGER
Third Party
REASONS FOR decision
Beaudoin J.
Released: May 14, 2018
[^1]: Citing R. v. Marquard 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223 at para. 49
[^2]: 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.