Court File and Parties
COURT FILE NO.: SCJ 89-18 DATE: 2019/06/14 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Marney Mazurski, for the Crown
- and -
C.F. Accused Daniel Baker, for the Accused Ed Paquette, for the Complainant Scott Thompson, for [the record keeper]
HEARD: May 30, 2019
Ellies R.S.J.
Reasons for Decision on Production
Publication Restriction Notice
By court order made under s. 486.4(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner.
These reasons have been edited so that they may be published by order of the author, made pursuant to s. 278.9(1)(c) of the Criminal Code.
Overview
[1] On February 20, 2019, I granted an application brought by the accused under s. 278.3 of the Criminal Code. For reasons released on that date (2019 ONSC 1029), I ordered that the records of K.W.’s counsellor at [the recorder keeper] be produced for my review. Pursuant to the request of counsel for the complainant and the [record keeper], I ordered that a date be set for a hearing pursuant to s. 278.6, for the purpose of determining what portions of the record, if any, should be produced to the accused. Section 278.6 provides that the judge may hold a hearing in camera if the judge considers that it will assist in making such a determination.
[2] All counsel were present at the commencement of the hearing, including Crown counsel and counsel for the accused. I sought their submissions as to whether they should be entitled to participate in the hearing. As I explained to counsel, I was unable to find any jurisprudence on that issue. That is not surprising given the provisions of s. 278.9 of the Criminal Code prohibiting publication. [^1]
[3] As I said to counsel during the hearing, it seems to me that to allow counsel for the Crown and for the defence to participate would be futile from their perspective, and counter-productive from the perspective of the other counsel. Crown and defence counsel do not have possession of the records at this point. Therefore, they could not make meaningful submissions with respect to their relevance. It would also be difficult for counsel for the complainant and the record keeper to make meaningful submissions without disclosing the contents of the record.
[4] Counsel for the accused conceded that there was not much that he could add to the hearing and that he was content to leave. I was not persuaded by Crown counsel’s submissions to the contrary with respect to her continued participation. Therefore, I ordered that the hearing proceed in the absence of both counsel.
[5] The remaining counsel were each provided with a photocopy of the notes that had been produced by counsel for the college, upon which I had underlined areas of the records that I felt might be relevant. In some places, I made notes as to why. A copy of the original records have been marked as an exhibit to the hearing. So, too, has a copy of the version of the records upon which I am made my notes. I have ordered that these exhibits be sealed and that they remain with the exhibit keeper, rather than accompany the file. The exhibit list, however, will remain with the file.
[6] In deciding what parts of the records should be produced, I have considered the submissions of counsel for the complainant and for the record keeper. Those submissions focused primarily on the degree to which the portions of the records that I thought were relevant intruded on the complainant’s privacy. In the end, very few of the portions that I believe are relevant have much potential to do that.
[7] In making my decision, I have also borne in mind not only the issues of likely relevance upon which I based my earlier decision to produce, but any other likely relevance of the records. In my view, once the records have been produced, the reviewing judge is not restricted to ordering production based only on the issues that lead to the order that the records be produced for his review.
[8] Thus, in addition to ordering disclosure of portions of the records relating to the role the counsellor played in the complainant going to the police and in shaping the statements she gave to them, I have ordered that portions of the records relating to the identity of the perpetrator be disclosed.
[9] Rather than ordering the production of a redacted copy of the records, I have, instead, set out as an appendix to these reasons the excerpts from the notes that I believe are relevant to the issues discussed above.
[10] Pursuant to s. 278.7(3) of the Criminal Code, I hereby order that neither the accused, counsel for the accused, nor Crown counsel shall disclose the contents of the attached appendix to any person, nor shall any copy be made thereof, except with the prior approval of the court.
[11] Counsel are directed to destroy the appendix following the trial and once the appeal period has passed, if no appeal has been taken.
Ellies R.S.J.
Released: June 12, 2019
[APPENDIX REMOVED FOR PUBLICATION PURPOSES]
Addendum / Clarification
COURT FILE NO.: SCJ 89-18 DATE: 2019/06/12 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – C.F. REASONS FOR decision ON PRODUCTION Ellies J.
Released: June 12, 2019
[^1]: In preparing these reasons, I realized that my earlier reasons failed to contain the full publication restriction notice set out at the beginning of these reasons. I would remind counsel that, pursuant to s. 278.9(1)(c) of the Criminal Code, my earlier reasons cannot be published.