Court File and Parties

COURT FILE NO.: 16-19545 DATE: 2019/03/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Crown – and – Kenneth Gordon Defendant

Counsel: Lisa Miles, for the Crown Robert Carew, for the Defendant

HEARD: May 10, 2018 (at Ottawa)

Application For Third Party Records – AMENDED Stage 2 Decision

The text of the original Application for Third Party Records – Stage 2 Decision released October 26, 2018 was amended on March 18, 2019. The amendment is included in an appendix.

KANE j.

[1] The court ordered Stage 1 production of the complainant’s medical records for its review. The court thereupon reviewed exhibits A, B and C to determine whether they contain information relevant to a trial issue and whether they, or parts thereof, should be produced to the defendant pursuant to the interest of justice including his right to make full answer and defence despite the confidential nature of the information therein.

[2] Exhibit A, B and C documents consist of several thousand pages of the complainant’s medical records between 2009 and 2018 from:

(a) the Ottawa General Hospital, exhibit A; (b) the Queensway Carleton Hospital, exhibit B; and (c) the Ottawa Montfort Hospital, exhibit C.

Analysis

[3] The vast majority of the documents examined:

(a) contain information of a personal and highly confidential nature (b) do not relate to any trial issue including the complainant’s credibility and reliability as to her allegations therein; (c) contains no information as to the medical diagnosis or treatment for the complainant’s memory suppression as to the alleged misconduct forming the subject of the three sexual assault charges herein; (d) contain considerable documentation as to matters such as the birth and delivery of the complainant’s four children and medical treatment received for personal injuries she suffered over the years, being matters unrelated to with no bearing as to the issues in this trial; and (e) pursuant to s. 278.7, are not to be produced: R. v. Mills, [1999] S.C.J. No. 68, para. 89.

[4] The documents examined contain no records as to diagnosis or treatment regarding the complainant’s reported suppressed memory of the defendant’s alleged abuse of her from the time she was a teenager until 2015 when she was approximately 33 years old.

[5] The documents ordered produced herein contain information reported to health care providers relevant to and probative of trial issues related to the charges as reported to police which the complainant was cross-examined upon at the preliminary inquiry, including:

(a) the complainant’s reporting of her suppressed memory and the circumstances of her 2015 recollection of physical and sexual abuse by the defendant when she was young; (b) the complainant’s reporting of the alleged abuse by the defendant to numerous health professionals; (c) the complainant’s reported communication of her allegations against the defendant to her brother with her request that he convey the same to their parents and his reporting thereof to police; (d) her reporting she moved away from her parents’ neighborhood including her feeling of the need to protect her children from the defendant, which formed the subject of inquiry during cross-examination which the defendant alleges involves a contradiction to the allegations charged; (e) communicating her father’s attempts to locate her since she moved out of his neighborhood; (f) communicating alleged instances of the defendant waking her up as a child during the night to perform or carry out tasks demanded by her father, as she testified to at the preliminary inquiry; and (g) the alleged anxiety she experiences related to testifying in this proceeding.

[6] The documents to be copied and produced contain private confidential information reported by the complainant to health professionals in the course of medical examination and treatment. Production thereof infringes upon the complainant’s privacy rights in relation thereto, however she waived objection as to their production as indicated in the Stage 1 decision.

[7] The production hereby ordered pursuant to ss. 278.7(1) and (2):

(a) are documents with private medical information and the treatment thereof but do not threaten a therapeutic relationship: (Mills, supra, para. 94); (b) are likely relevant to trial issues as identified above and in the Stage 1 decision: (Mills, supra, para. 132); (c) are relevant to the issue as to the complainant’s capacity to testify; (d) should be produced in the interests of justice including the defendant’s right to make full answer and defence; and (e) the balancing of such privacy rights, the encouragement of reporting of such allegations and obtaining treatment thereof favors production given their relevancy to trial issues and the identified interests of justice.

[8] The production as ordered pursuant to ss. 278.5(2)(a) to (h) factors:

(a) is necessary to assist the defendant to make full answer and defence; (b) is probative as to the complaint’s credibility and reliability regarding her charged allegations; (c) is not based on discriminatory belief or bias; (d) will not impair the reporting of sexual offences and the encouragement in obtaining the treatment thereof; and (e) should not expand and may assist to focus trial testimony and trial length.

Conclusion

[9] Based on the above factors and analysis, the documents to be disclosed from each of the three hospitals have been copied and consist of those in the following exhibits:

(a) A-2 – Ottawa General Hospital; (b) B-2 – Queensway Carleton Hospital; and (c) C-2 – Ottawa Montford Hospital.

[10] Exhibits A-2, B-2 and C-2:

(a) are not available to the public or the defendant for review or copying; (b) are available to the defendant’s counsel who may review and allow his client to read but not make or receive a copy of; (c) are available for review by Crown counsel; and (d) are otherwise hereby sealed.

Mr. Justice Paul Kane

Released: March 18, 2019

APPENDIX

March 18, 2019

Paragraph 10 was amended on March 18, 2019. The addition is underlined.

[10] Exhibits A-2, B-2 and C-2: (a) are not available to the public or the defendant for review or copying; (b) are available to the defendant’s counsel who may review and allow his client to read but not make or receive a copy of; (c) are available for review by Crown counsel; and (d) are otherwise hereby sealed.

COURT FILE NO.: 16-19545 DATE: 2019/03/18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN Crown – and – Kenneth Gordon Defendant

APPLICATION FOR THIRD PARTY RECORDS - Amended STAGE 2 DECISION

Kane J.

Released: March 18, 2019