Court File and Parties

COURT FILE NO.: CR-18-4000045-0000 DATE: 20190718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TERRENCE NOFTALL Defendant (Applicant)

COUNSEL: Allison MacPherson, for the Crown (Responding Party) Jeffrey Chapnick, for the Defendant (Applicant)

HEARD: May 21, 2019

MOLLOY J.:

REASONS FOR DECISION # 1

(Validity of Production Orders)

Introduction

[1] On January 9, 2018, Terrence Noftall was arrested and charged with 12 counts related to sexual offences involving four separate children and three counts relating to child pornography. The dates of the offences ranged from 1997 to 2018. He was committed to trial on these offences at the conclusion of the preliminary hearing and made his first appearance in this Court on November 21, 2018. On November 27, 2018 I conducted a pre-trial conference with both counsel. Subsequently, Mr. Noftall indicated his wish to enter a guilty plea before me. He understood at that time that the Crown was considering an application to have him declared a dangerous offender.

[2] Mr. Noftall appeared before me on February 6, 2019, at which time he entered a guilty plea to 10 counts on the indictment. Based on an agreed statement of facts, I convicted Mr. Noftall of the following offences:

(a) One count of sexual assault between 1997 and 1999, involving A.D. (a boy between the ages of 7 and 9); (b) Two counts of sexual assault involving K.D., A.D.’s younger sister, in 2000 (when she was 7 years old) and 2005 (when she was 12 years old); (c) One count of sexual assault between 2005 and 2009, involving R.T. (a boy between the ages of 9 and 13); (d) One count of sexual assault between 2012 and 2013, involving R.S. (a boy between the ages of 11 and 12); (e) One count of invitation to sexual touching between 2012 and 2014, involving R.S.; (f) One count of transmitting sexually explicit material to R.T. (who was believed to be under the age of 16 at the time); (g) Two counts of making child pornography; and, (h) One count of accessing child pornography.

[3] The matter was then adjourned to provide time for the Crown to consider whether to seek an assessment of Mr. Noftall in relation to a potential dangerous offender application. In the course of that preparation, the Crown made applications to justices of the peace for production orders to obtain psychiatric and psychological records, medical records, and employment records related to Mr. Noftall. The following orders were obtained:

(i) February 11, 2019 order of J.P. Hunt for production of medical records held by the Ministry of Community Safety and Correctional Services (“MCSCS”); (ii) February 12, 2019 order of J.P. Daniel for production of records of the Ministry of Health and Long Term Care; (iii) February 12, 2019 order of J.P. Daniel for production of records of the University Health Network; (iv) February 12, 2019 order of J.P. Daniel for production of records from the Centre for Addiction and Mental Health; and (v) February 28, 2019 order of J.P. Finnestad for production of psychiatric records from the Manasa Clinic.

[4] In addition, the Crown obtained MCSCS records from the Toronto South Detention Centre for January 2018 (not including medical records) and from the Jane Street Probation and Parole office.

[5] The production orders made by Justices of the Peace Daniel and Finnestad also included sealing orders.

This Proceeding

[6] All of the orders and any documents obtained by the Crown were disclosed to the defence. The defence applied for an order quashing all of the production orders, arguing that all of the documents were obtained without legal authority. The Crown argued that all documents were validly obtained and sought an order unsealing the documents produced.

[7] Upon the completion of argument, I ruled that the production orders were valid, that all documents obtained by the Crown were received lawfully, and that the documents produced could now be unsealed. I indicated at the time that written reasons for this decision would follow. Those reasons are set out below.

The Statutory Scheme

[8] The dangerous offender and long-term offender provisions of the Criminal Code, R.S.C. 1985, c. C-46, are set out in Part XXIV (sections 752-761).

[9] The first step in the process of finding an offender a dangerous offender is for the Crown to make an application for an assessment under s. 752.1(1). The section then provides that:

. . .if the court is of the opinion that there are reasonable grounds to believe that an offender…might be found to be a dangerous offender under s. 753 or a long-term offender under s. 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

[Emphasis added]

[10] The person designated by the Court to carry out the assessment is required to file a written report within 30 days after the end of the assessment period (subject to extension by court order for a further 30 days). Upon receipt of the report, the Crown, with the written consent of the Attorney General may bring an application to have the offender designated as a dangerous offender.

[11] As authority for the production orders sought and obtained, the Crown relies upon ss. 487.014 (1) and (2) of the Criminal Code, which state:

487.014(1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.

[12] The defence argues that this provision has no application in a situation, such as this one, where an accused has been convicted but no dangerous or long-term offender application under Part XXIV has been commenced.

[13] With respect to the documents obtained directly from MCSCS (the Toronto South Detention Centre and probation records), the Crown relies on a Memorandum of Understanding (“MOU”) dated April 29, 2009, between the Ministry of the Attorney General and MCSCS, which in turn relies upon s. 42(1) (g) of the Freedom of Information and Protection of Privacy Act (“FIPPA”).

[14] The MOU sets out the terms and conditions governing the sharing of personal information between the Ministries and specifically contemplates disclosure from MCSCS to the Ministry of the Attorney General for use at a s. 752.1 application for assessment and at a dangerous or long-term offender application.

[15] The underlying purpose of FIPPA is to make all government information available to the public, subject to certain exceptions in the legislation, including provisions prohibiting disclosure of an individual’s personal information. However, the provisions that prohibit the disclosure of personal information are also subject to a number of exceptions. For purposes of this application, the relevant provision is s. 42(1) (g), which states:

s. 42 (1) An institution shall not disclose personal information in its custody or under its control except,

(g) where disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result

[16] The defence argued that there is no legal authority for the MOU and that disclosure of the information sought was a violation of Mr. Noftall’s privacy rights.

Analysis: The Production Orders

[17] The defence challenge to the production orders was based on the position that there was no statutory authority for their issuance. No issue was taken with the sufficiency of the information set out in the Information to Obtain materials (the “ITOs”), nor with the relevance of the documents sought, nor with there being reasonable grounds to believe the items sought were in the possession of the parties to whom the orders were directed. I have reviewed the ITOs in each case and I am fully satisfied that in each case there were reasonable grounds for believing that the documents being sought would be in the possession of the entity to which the order was directed. The ITOs made full, frank, and fair disclosure of the circumstances. Further, the records sought are relevant to the potential application for an assessment as they help establish whether there are reasonable grounds to believe that Mr. Noftall might be found to be a dangerous offender. Thus, the central issue is whether s. 487.014 of the Criminal Code is applicable to proceedings at this stage. The defence argued that s.487.014 does not apply, as it requires the justice of the peace to be satisfied that an offence has been committed and that the documents sought “will afford evidence respecting the commission of the offence.”

[18] Clearly, the first part of the test is met – Mr. Noftall pleaded guilty and was convicted of multiple offences. The question is the second part of the test – whether the documents sought would provide “evidence respecting the commission of the offence.” In CanadianOxy Chemical Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, the Supreme Court of Canada considered similar language (“evidence with respect to the commission of an offence”) in the search warrant provisions of the Criminal Code, and held that the phrase should be given a broad interpretation, noting that “in respect of” is probably the widest of any expression intended to convey some connection between two related subjects.

[19] In R. v. Ongley, [2003] O.J. No. 3934 (S.C.J.), Langdon J. considered the availability of the general warrant granting powers under s. 487.01 of the Criminal Code and ruled that they extended to dangerous offender proceedings long after the conclusion of the trial. I agree entirely with his ruling at para. 13 of that decision, as follows:

All of the above authorities convince me that s. 487.01 is to be given the broadest possible interpretation and that “information concerning the offence” includes what is necessary to get at the truth and properly and fairly dispose of the case. Sentencing is but the last step in disposing of the case. I therefore conclude that a general warrant may appropriately be employed in order to gather information concerning the sentencing of an offender. That is especially so where, as here, the sentencing phase relates to Dangerous Offender/Long Term Offender proceedings that tend to become a separate trial process that may be even more extensive than that which led to a finding of culpability of the predicate offence.

[20] A similar conclusion was reached by Gordon J. in R. v. Middeljans, [2009] O.J. No. 5028 (S.C.J.), and by Campbell J. in R. v. Blair, 2013 ONCJ 124, dealing specifically with the applicability of the production order provisions to dangerous offender proceedings. This line of cases is fully consistent with the established case law that an offender has a diminished expectation of privacy after conviction and that the balancing as between the privacy interests of the offender and the state’s interest in the protection of the public will weigh more heavily on the side of public safety.

[21] In R. v. Jones, [1994] 2 S.C.R. 229, the Supreme Court of Canada considered whether a prior psychiatric assessment of an accused person could be used after his conviction as part of the evidence on a dangerous offender application. Gonthier J., writing for the majority, noted that a dangerous offender application is not properly characterized as a new trial with the same procedural protections afforded to an accused charged with an offence. Rather, the dangerous offender application is part of a sentencing process after the accused has already been convicted of an offence or offences. He then held:

. . . As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender.

In the case of dangerous offender proceedings, it is all the more important that the court be given access to the widest possible range of information in order to determine whether there is a serious risk to public safety. If there is, the dangerous offender sentencing allows the justice system to more precisely tailor the actual time served by the offender to the threat that he poses to society. The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence.

[22] And further:

. . . The sentencing stage places a stronger emphasis on societal interests and more narrowly defines the procedural protection accorded to the offender. If the sentencing judge is to obtain the accurate assessment of the offender that is necessary to develop an appropriate sentence, he will have to have at his disposal the broadest possible range of information.

To deny the court access to the earlier findings of the psychiatrists may hinder the effective determination of the true risk posed by the offender. While it is true that under s. 756 the court may remand the offender for observation for the purposes of gathering evidence on his dangerous offender status, the offender may attempt to hide elements of his character or, indeed, refuse to answer the psychiatrists' questions. As a result, there is a real danger that evidence from the pre-trial psychiatric evaluation which is excluded may not surface in the post-trial phase. This creates the considerable risk that a dangerous offender will not be so labelled in spite of the fact that there was clear psychiatric evidence at the pre-trial stage that the offender was a serious danger to society. While such an exclusion may be acceptable while the guilt of the accused is in question, it cannot be justified after his guilt has been established. To exclude clear psychiatric evidence of the dangerousness of the accused would be to ask other young girls in society to bear the risk that this information might not emerge in the post-trial psychiatric evaluation. The release of Scott Jones while he continues to pose a clear threat to their security is not a risk that they should be forced to bear.

[Emphasis added]

[23] Defence counsel argued before me that there is a distinction between a situation where an application for assessment has already been made, thereby triggering the dangerous offender provisions in Part XXIV of the Criminal Code, and the circumstances of this case where no such application has as yet been brought. I disagree. I consider this to be a distinction without a difference. The production order power is not contained within the dangerous offender application provisions. It is a general power, which extends to the sentencing phase. Given that Mr. Noftall stands convicted of a number of the offences with which he had been charged, we are now in the sentencing phase. The Crown, quite fairly, alerted Mr. Noftall to the fact that a dangerous offender application was being considered before he entered his guilty plea. It is not necessary for the dangerous offender application to have commenced prior to the issuance of production orders.

[24] Indeed, it may well be crucial for the Crown to obtain relevant documents prior to the commencement of any assessment because the offender’s prior history will no doubt be of considerable assistance to the psychiatrist conducting the assessment, should one be ordered. Further, it is incumbent on the Crown to consider the whole of the circumstances before making an application for an assessment. In R. v. McArthur (1997), 48 C.R.R. (2d) 277 (Ont. Gen. Div.), LaForme J. (as he then was) referred to the assessment as a “neutral instrument which is necessary to provide the sentencing court with insight into the offender.” I agree. That said, and as was recognized in McArthur, the process of the assessment can be intrusive and does affect the offender’s privacy interests. It is consistent with principles of fundamental justice that the Crown should give due consideration as to whether or not an assessment should be sought. It is also in the public interest that such a decision be based on a broad range of information, just as is the case for each further step in the process: the judge’s consideration as to whether to order the assessment; the psychiatrist’s assessment; and the judge’s ultimate decision on the dangerous offender application itself. At each step of that process, a decision may be made that there is no basis for seeking or making the designation. It is imperative that this be done on an informed basis. Thus, on a strictly legal interpretation of the legislative provisions, as well as on grounds of public policy, there is no basis for restricting the availability of the production order power to the period of time after the assessment order is made. Finally, I note as well the strict time requirements for when the assessment must be done and the report must be filed. If the Crown cannot apply for production orders and marshal documents until after an application for an assessment is made, this would cause a significant, and unacceptable, delay.

[25] Accordingly, I conclude that all of the production orders were validly issued.

Analysis: Memorandum of Understanding

[26] For purposes of this application, I do not propose to review the MOU in any depth, nor to comment on its overall validity. The issue before me is a narrow one – whether the documents obtained from MCSCS relating to Mr. Noftall’s time in custody at the Toronto South Detention Centre and his probation records from a prior offence were lawfully obtained. In considering the MOU, I will not go beyond this narrow issue.

[27] The disclosure of information in its possession by a government institution is governed by FIPPA. The fundamental premise underlying FIPPA is that every person is entitled to access information in the custody of government institutions, subject to limited exceptions. A corollary premise is that the government must protect the confidentiality of personal information about individuals contained in documents in the custody of a government institution, which premise is also subject to limited exceptions. One of those exceptions is contained in s. 42(1)(g) of FIPPA, which permits the release of personal information to a law enforcement agency “to aid an investigation undertaken with a view to a law enforcement proceeding.” There is no question that the Toronto Police Service, which requested the probation and correctional documents relating to Mr. Noftall from MCSCS, is a “law enforcement agency” within the meaning of FIPPA. In my view, it is also absolutely clear that a sentencing proceeding, including a dangerous offender application, and including consideration of whether to seek an assessment order for a dangerous offender application, is a “law enforcement proceeding” within the meaning of the Act. The documents sought were part of the police investigation as to whether to proceed with an application for a psychiatric assessment of Mr. Noftall, the first step to be taken in a dangerous offender application. As such, in my opinion, the documents sought fell directly within the meaning of s. 42(1)(g) and MCSCS was required to turn over the documents sought to the police, regardless of any terms in the MOU.

[28] The MOU specifically contemplates the release of relevant documents from MCSCS to the Ministry of the Attorney General for use at a s. 752.1 sentencing application, at a dangerous offender application or a long-term offender application. This does not permit anything that is not already required by FIPPA. It simply reflects the joint understanding of the entities involved as to the meaning of those provisions. In addition to this basic requirement, the MOU sets out a protocol for how, and to whom, such documents are to be released. This protocol adds a level of protection for the offender that is not specifically provided for in the legislation. As such, the MOU respects and enhances the privacy rights of the offender.

[29] The documents obtained in this case without a production order were obtained in accordance with FIPPA and the MOU, and the process was respectful of Mr. Noftall’s privacy rights. I find those documents were validly and lawfully obtained.

Unsealing Order

[30] Some, but not all, of the production orders were accompanied by sealing orders. These were not strictly necessary, but provided an additional layer of protection for the offender. The defence fairly conceded that if the documents were validly obtained by the Crown then I should unseal the records. I agree that there is no basis upon which the Crown should now be denied access to the documents.

MOLLOY J. Released: July 18, 2019

COURT FILE NO.: CR-18-4000045-0000 DATE: 20190718 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – TERRENCE NOFTALL Defendant (Applicant) REASONS FOR DECISION #1 Validity of Production Orders Molloy J. Released: July 18, 2019

Footnotes:

[1] Criminal Code, R.S.C. 1985, c. C-46, Part XXIV. [2] Ibid, ss. 752.1(2) and (3). [3] Ibid, s. 753. [4] Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. [5] Exhibit 1, para. 2. [6] CanadianOxy Chemical Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at p. 751, adopting the words of Dickson J. in Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at p. 39. [7] R. v. Ongley, [2003] O.J. No. 3934 (S.C.J.). [8] R. v. Middeljans, [2009] O.J. No. 5028 (S.C.J.) at paras. 19 and 26. [9] R. v. Blair, 2013 ONCJ 124 at para. 13. [10] R. v. Jones, [1994] 2 S.C.R. 229. [11] Ibid at paras. 123-124; see also R. v. Blair, supra Note 9 at paras. 15-22 and R. v. McArthur (1997), 48 C.R.R. (2d) 277 (Ont. Gen. Div.) at para. 19. [12] R. v. Jones, supra Note 10 at paras. 125-126. [13] R. v. McArthur, supra Note 11 at para. 21. [14] Freedom of Information and Protection of Privacy Act, supra Note 4, ss. 1 and 10. [15] Ibid, ss. 1(b), Part III. [16] R. v. Serendip Physiotherapy Clinic (2004), 73 O.R. (3d) 241 (C.A.).