Superior Court of Justice - Ontario

Court File No.: CR-18-0054-00 Date: 2019-04-26

Between:

Her Majesty the Queen Respondent (T. Jukes, for the Crown (Respondent))

- and -

J.F. Accused (Applicant) (N. McCartney, for the Accused (Applicant))

Also Present: J. Dagsvik, for the Complainant A. McKitrick, for Faye Peterson Transition House, Third Party

Heard: February 19, 2019, at Thunder Bay, Ontario

Before: Madam Justice T. J. Nieckarz

Warning

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

By Court Order, there is no ban on publishing the determination under the Criminal Code, s. 278.5(1) or s. 278.7(1) and the reasons under Criminal Code, s. 278.8. See the Criminal Code, s. 278.9(1)(c).

There is a ban on publishing the contents of an application made under Criminal Code, s. 278.3, the evidence taken, information given or submissions made at a hearing under s. 278.4(1) or 278.6(2). See the Criminal Code, s. 278.9(1).

Reasons On Application

Overview

[1] J.F. (the “Accused”) stands charged with committing sexual assault contrary to s. 271 of the Criminal Code upon S.S. (the “Complainant”) on April 23, 2017 and in June of 2017.

[2] The Accused has brought an application, pursuant to s. 278.3 of the Criminal Code, for production of records of Crisis Homes Inc. (“Faye Peterson”). The records pertain to counselling sessions undergone by the Complainant in 2017. It was following counselling with Faye Peterson that the Complainant reported the alleged incidents of sexual assault to the police. The basis for the application is that the counselling records are likely relevant to the credibility of the Complainant.

[3] This decision pertains to the first stage of the analysis under s. 278, being a determination as to whether production of the records are likely relevant to an issue at trial or to the competence of a witness to testify, and therefore whether disclosure of the record to the Court for review is necessary in the interests of justice. Argument of the second stage of the analysis, if required, was adjourned to March 11, 2019. On March 7, 2019 I made an endorsement on the indictment dismissing the Application with reasons to follow. These are my reasons for that order.

Position of the Parties:

The Applicant (Accused):

[4] The Accused submits, and it is acknowledged by the Crown, that the parties lived together in a common law relationship during the period of time in which the sexual assaults were alleged to have occurred. The Accused denies the Complainant’s characterization of events on both April 23, 2017 and with respect to June of 2017. He takes the position that any sexual interactions between him and the Complainant were consensual.

[5] The Accused further submits that an assessment of the credibility of the Complainant will be crucial to a determination of the charges against him. He argues that given the role that the Complainant ascribes to counselling in making her complaint to the police, a proper assessment of credibility cannot be carried out without at least a preliminary review by the Court of her counselling records.

[6] The Accused relies on the following in support of his application:

a) “On August 23, 2017, the Complainant reported the allegations of sexual assault to a police offer, who noted, inter alia:

“she had been talking with Faye Peterson and that is why she contacted police to make the report as they had helped her to come to terms with things and they encouraged her to make the report.”

a) At the preliminary inquiry in this matter on July 6, 2018, the Complainant agreed that this statement was accurate.”

[7] The Accused therefore takes the position that:

a) The counselling records are likely relevant to the primary issue at trial, being the credibility of the Complainant’s allegation;

b) The counselling records may further explain the Complainant’s statement that the counselling was “why” the report to police was made;

c) The counselling records may explain the nature of the “encouragement” described. For example, whether there may have been encouragement or influence upon the Complainant, through her counselling, to re-consider or re-assess her recollections of the incidents in question;

d) The statement made by the Complainant, to the police, demonstrates an evidentiary basis for the relevance of the record and therefore this is not merely a “fishing expedition”. Production does not offend s. 278.3(4);

e) Given the potential that the counselling process may have influenced the Complainant in reconsidering her recollection of the incidents in question, production of the records to the court, at the very least, is required to permit the Accused to make full answer and defence; and

f) Production of the records is necessary in the interests of justice.

[8] The Accused asserts that there is sufficient concern raised by the Complainant’s admission to the police that her counselling caused her to report the alleged assaults to warrant the Court reviewing the records. He submits that her admission constitutes a strong indication that there may be something in the records of probative value.

Faye Peterson:

[9] Counsel for Faye Peterson submits that the Accused has not met the onus on him to demonstrate likely relevance. Faye Peterson argues that on the evidentiary record before the Court, it is evident that the privacy, dignity, health and equality rights and interests of the Complainant with respect to her highly confidential counselling records substantially outweigh the interests of the Accused to disclosure. Specifically, Faye Peterson argues:

a) To protect the trust relationship between a women’s shelter and women in need of their services, it is critical that information between a shelter and a person to whom they provide services be kept confidential.

b) The law has consistently recognized that counselling records attract a very high expectation of privacy: R. v. L.F., [2006] 37 C.R. (6th) 152, 2006 ONSC 1024; R. v. Blake, 2013 ONSC 481, 2013 CarswellOnt 12639 at paras. 29 and 30.

c) The law further recognizes that clients come to women’s shelters to disclose very intimate details, and they do so trusting the records are confidential. Every time such records are ordered produced, it chips away at the community’s trust and risks deterring women in the future from disclosing or reporting similar information: R. v. Orozco-Herrera, 2018 ONSC 5000 at para. 56; R. v. Quesnelle, 2014 SCC 46, 2014 CarswellOnt 9195 [S.C.C.], at para. 36.

d) The likely relevance standard 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: R. v. McNeil, 2009 SCC 3, 2009 CarswellOnt 116 [S.C.C.], at para. 31.

e) The Criminal Code, and specifically s. 278.3(4) makes it clear that the onus is on the Applicant to prove likely relevance and the Applicant cannot rely on speculative assertions or stereotypes: R. v. Batte, [2000] O.J. No. 2184 (C.A.) at para. 53; R. v. Blake at paras. 52 and 53.

f) The Accused will only meet the burden placed on him of demonstrating that a counselling record is likely relevant to the complainant’s credibility if there is some basis for concluding that the statements have some potential to provide the accused with added information not already available to the defence, or have some potential impeachment value: R. v. Batte at para. 72.

g) It is insufficient to allege merely that there is a record of the complainant speaking to a counsellor about the alleged abuse, and that the record may be relevant to a complainant’s credibility and reliability: R. v. Batte at paras. 70-71 and 77; R. v. B. (J.A.), 2014 ONSC 6992, 2014 CarswellOnt 18287 at para. 19.

h) The position of the Accused that the record may reveal relevant information pertaining to the credibility of the Complainant amounts to nothing more than the speculative bald assertions that the Mills third-party record production regime, as codified in the Criminal Code, seeks to guard against being considered by the court as legitimate grounds to justify production of third-party records.

The Complainant:

[10] The Complainant adopts the position and arguments of Faye Peterson in opposing the application. In addition, the Complainant argues the following:

a) The Accused relies on a speculative assertion that counselling may have coloured the Complainant’s recollection of events.

b) The evidence does not support that assertion. It does not show that her version of events changed as a result of counselling or that the records would otherwise have impeachment value.

c) The Accused has failed to point to some “case specific evidence or information” to justify his assertion that the record is likely relevant to credibility. There is no evidence that Faye Peterson may have extended encouragement or influence on the Complainant to re-consider or re-assess her recollections of the relationship.

d) The Accused was emotionally abusive and manipulative towards her. When they argued, and she threatened to leave, he would threaten to call police and the Children’s Aid Society. Her reference to Faye Peterson helping her to “come to terms with things” was explained by her at the Preliminary Inquiry when she indicated that they assured her that she and her son would be safe if a report was made.

e) The fact that the Complainant was assured of her safety and that of her son by the counsellor, does not make the record relevant.

f) Given the nature of the counselling sought, the interests of justice weigh heavily in favour of protecting the confidentiality and trust inherent in this relationship.

The Crown:

[11] The Crown primarily adopted the arguments and position of Faye Peterson and the Complainant in opposing the application. The Crown further submitted:

a) The Accused has not established that the Complainant even discussed the details of the alleged incidents with her counsellor. Based on the evidence currently before the court it is a big assumption that she has.

b) The only evidence before the court is that the Complainant discussed safety concerns surrounding reporting.

c) The Defence had the opportunity to ask questions at the preliminary inquiry about the nature of the discussions and what may be found in the records but failed to do so.

d) Specifically, the Complainant was not asked whether she discussed the events with the workers at Faye Peterson or what she meant by “come to terms”.

e) As such, the Accused has failed to meet the evidentiary burden to satisfy the threshold test of likely relevance.

The Law:

[12] Section 278 of the Criminal Code outlines the procedure by which applications for the production and disclosure of third party records are to proceed with respect to the offences identified in s. 278.2(1). These offences include sexual assault.

[13] There is no dispute that the Accused seeks records as defined by s. 278.1 of the Criminal Code, and that the privacy value in the records sought is high.

[14] There is also no dispute that the production request for the Faye Peterson records is governed by the Mills s. 278 regime (R. v. Mills, [1999] 3 S.C.R. 668). The Mills regime serves two goals: first, the regime protects the privacy of complainants and witnesses, and second, it preserves the fair trial rights of the accused: R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 54. In order to balance these competing interests, s. 278 contemplates a two stage analysis.

Stage 1:

[15] The first stage of the test requires the applicant to convince the trial judge to review the record. Pursuant to s. 278.5(1) of the Criminal Code, production may be ordered for review by the trial judge if the applicant demonstrates that the record is likely relevant to an issue at trial or to the competence of a witness to testify, and that the disclosure is necessary in the interests of justice.

(i) Likely Relevance:

[16] In R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 22, the Supreme Court of Canada defined the standard of likely relevance as “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”: see also R. v. Mills, at para. 124 (emphasis in original).

[17] Relevance to an issue at trial refers, “not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events), but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case”: R. v. O'Connor, at para. 22.

[18] The Accused bears the onus of establishing the likely relevance of the disclosure at issue, and the Accused cannot rely on speculative assertions or stereotypical assumptions: R. v. Batte, at para. 53. While the likely relevance threshold is significant, it should not be overly onerous: R. v. Batte, at para. 65; see also R. v. McNeil, 2009 SCC 3, 2009 S.C.C. 3, 2009 CarswellOnt 117 (S.C.C.) at para. 29.

[19] Section 278.3(4) lists assertions that are insufficient, on their own, to establish likely relevance. Specifically:

(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 the 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.

[20] In R. v. Mills, at para. 118, McLachlin J. noted that s. 278.3(4) “does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on ‘bare assertions’ of the listed matters, where there is no other evidence and they stand ‘on their own.’” As argued by Faye Peterson, the purpose of this section is to prevent speculative myths, stereotypes, and generalized assumptions about sexual assault victims “from forming the entire basis of an otherwise unsubstantiated order for production of private records”.

[21] Having said this, an accused is not prevented from relying on the assertions set out in s. 278.3(4) “where there is an evidentiary or informational foundation to suggest that they may be related to likely relevance:” R. v. Mills, at para. 120. An accused must be able to point to evidence that suggests that the records contain information which is not already available to the defence or has potential impeachment value. R. v. Batte, at para. 75.

[22] Each case turns on its particular facts, and the application judge “is the ultimate arbiter in deciding whether the likely relevance threshold set out in s. 278.5 and 278.7 is met:” R. v. Mills, at para. 120.

(ii) Necessary in the Interests of Justice:

[23] Once the accused establishes that the disclosure is likely relevant, the accused must also satisfy the court that the production to the judge is necessary in the interests of justice.

[24] In Mills, at para. 134, McLachlin J. highlights that s. 278.5(2) “serves as a check-list of the various factors that may come into play in making the decision regarding production to the judge.” These factors include:

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society’s interest in encouraging the reporting of sexual offences;

(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

[25] It is noteworthy that, while these factors are relevant, “in the final analysis the judge is free to make whatever order is ‘necessary in the interests of justice’ — a mandate that includes all of the applicable principles of fundamental justice at stake”: R. v. Mills, at para. 134. To clarify, at para. 138, McLachlin J. explains:

The trial judge is merely directed to “consider” and “take into account” the factors and rights listed. Where the record sought can be established as “likely relevant”, the judge must consider the rights and interests of all those affected by production and decide whether it is necessary in the interests of justice that he or she take the next step of viewing the documents. If in doubt, the interests of justice require that the judge take that step.

[26] Notably, “[w]here the privacy right in a record is strong and the record is of low probative value or relates to a peripheral issue, the judge might decide that non-disclosure will not prejudice the accused’s right to full answer and defence and dismiss the application for production”: R. v. Mills, at para. 131.

[27] On the other hand, “[i]f a record is established to be ‘likely relevant’ and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document”: R. v. Mills, at para. 132. Where there is a danger that the accused’s right to make full answer and defence will be violated, the trial judge should err on the side of production to the court: R. v. Mills, at para. 137.

Stage 2:

[28] Only once a finding is made that the Stage 1 onus on the accused to demonstrate that the record is likely relevant, and that it is necessary in the interests of justice to have the record produced and reviewed by the trial judge does the inquiry proceed to the second stage of the test to determine whether all or part of the record should be produced to the accused. In deciding whether or not to order production, the factors set out in s. 278.5(2) shall be taken into consideration.

Analysis:

[29] The significant expectation of privacy with respect to the records in question is conceded by the Accused. However, he argues that the production of the record, at least to the court, is necessary to allow him to make full answer and defence. He argues that the application is not grounded in discriminatory beliefs based on bald assertions, but rather the specific words of the Complainant.

[30] The specific words of the Complainant, starting with the question put to her at page 36, line 26 of the transcript of the preliminary hearing, held on July 6, 2018, are as follows:

Q. Okay. And the officer continues, “And that she had been talking with Faye Peterson and that is why she contacted police to make the report as they had helped her to come to terms with things and they encouraged her to make a report.” Would you agree that’s an accurate statement?

A. Yes. My counsellor at Faye Peterson, Children’s Aid Society all promised the safety of my son and myself because that was my fear of reporting anything.

[31] The Accused takes the position that this evidence may mean a range of things, starting at the basic exercise of duty for a facility such as Faye Peterson to provide encouragement and reassurance with respect to reporting, and extending to the possibility of influence upon the Complainant to re-consider or re-assess her recollections of events. I disagree. The Complainant very clearly explains her statement to police. She explains that the counsellor at Faye Peterson, along with the Children’s Aid Society, allayed her fear of reporting by assuring her of her safety and that of her son. As indicated above, this comment was made in the context of other evidence in which the Complainant alleges that the Accused had threatened having her son removed from her care. No other questions were asked of the Complainant with respect to the statement to police or her response. There is therefore no other evidence in the record to contradict or expand on the explanation provided by the Complainant.

[32] While I do not fault the Accused or his counsel for wanting to ensure that no stone is left unturned in advancing his defence to the serious charges facing him, this case strikes me the type of fishing expedition that the statute and case law seeks to avoid. There is no evidence of any connection as between the counselling services received and the allegations of the Complainant. There is no evidence before the court to suggest that the counselling received by the Complainant may have either influenced the Complainant’s recollection of the alleged events or caused her to change her recollection in any way. There is no evidence that the Complainant even discussed the specifics of the events alleged. There is nothing to show that the record has any impeachment value. The only evidence before the court is of the Complainant being encouraged and reassured by her counsellor with respect to reporting the alleged events.

[33] The position of the Accused is based on speculation. What is being requested is for the court to review the record to see if there is anything of relevance in it. As stated by Brochu J., in R. v. S.D. (5 Feb. 2019), Thunder Bay, 52016 (ONCJ):

What they are really requesting is that the Court take “a peek” at the record and see if there is anything in there. An Applicant seeking highly confidential records needs more than “a shot in the dark” as an evidentiary record to convince a Court that it should review records.

[34] The Criminal Code and the case law are clear that likely relevance is to be established prior to a court reviewing a record, and not as a result of reviewing the record in question.

[35] In light of the foregoing, and having considered the legal test and factors as established by s. 278 of the Criminal Code, I find that the Accused has failed to demonstrate that the record is likely relevant to an issue at trial or to the competence of a witness to testify. Even if the words of the Complainant as set out above could be stretched to demonstrate likely relevance, given the significant privacy interests of the Complainant in the record and given the nature of the evidence currently before the court I could not conclude that the right of the Accused to make full answer and defence would be prejudiced by refusing to grant production of the record to the court. I therefore would not find that production of the record is necessary in the interests of justice.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz Released: April 26, 2019