COURT FILE NO.: CR-17-301
DATE: 2019-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.R.
– and –
H.A.
– and –
A.A.
Ms. C. Agatiello, for the Crown
Mr. N. Jackson, for the Accused / Applicant
Ms. A. Chaisson, for the Respondent H.A.
Mr. L. Leclair, for the Respondent A.A.
HEARD: September 10, 11, 2019
RULING at first stage of third-party records application
STRIBOPOULOS J.:
Introduction
[1] Mr. R. faces charges alleging crimes of violence involving three complainants, including his ex-wife, H.A., his daughter, A.A., and his son, H.M. The allegations span a period of twelve years, beginning in 2003 and ending in 2015.
[2] By way of application, Mr. R. seeks production of third-party records relating to two of the complainants in this prosecution, H.A. and A.A. Specifically, records relating to each of them held by the Peel District School Board and Peel Children’s Aid. These reasons address the first part of the two-stage test for determining whether or not these records should be produced to the Applicant.
[3] On an earlier court appearance, the Peel District School Board and Peel Children’s Aid each produced records in their possession in response to a subpoena duces tecum. These records are now under seal and in the court file, pending the determination of this application.
[4] Ultimately, neither of the record-holders appeared on the hearing of this application. Nor did they take any position on its merits. Counsel for both H.A. and A.A. did appear and made submissions.
The Law
[5] Given the charges, the Supreme Court of Canada’s decision in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 governs this application. That decision contemplates two distinct stages on an application of this kind. (I note, parenthetically, that the Supreme Court unanimously reaffirmed O’Connor in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 26-46).
[6] At the first stage, the Applicant bears the onus of satisfying the court that the records at issue are “likely to be relevant”: O’Connor, at p. 435. Meeting this threshold requirement requires an applicant to satisfy the court 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”: O’Connor, at p. 436. 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”: O’Connor, at p. 436.
[7] The decision in O’Connor recognized that while the “likely relevance” threshold “is a significant burden” it also cautioned that it “should not be interpreted as an onerous”: O’Connor, at p. 436. It explained that the burden is a “low one” (at p. 437), in part, because of the challenges an accused person faces in making submissions about likely relevance without knowing precisely what the records contain: O’Connor, at p. 438. This is why the Supreme Court reminded in McNeil, “the relevance threshold should not, and indeed cannot, be an onerous test to meet”: McNeil, at para. 29 (emphasis in original).
[8] Satisfying the “likely to be relevant” standard, the Supreme Court explained in McNeil, does not require “a demonstration of the precise manner in which the targeted documents could be used at trial.”: McNeil, at para. 33. To impose such a “stringent threshold burden,” it warned, “would put the accused, who has not seen the documents, in an impossible Catch-22 position”: McNeil, at para. 33.
[9] Ultimately, the need for an accused to demonstrate likely relevance is meant “to prevent the defence from engaging in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming’ requests for production”: O’Connor, at p. 483; see also McNeil, at para. 29.
[10] Subsequent decisions, including by the Court of Appeal for Ontario, have provided further clarification regarding what an accused must demonstrate to meet the likely relevance threshold requirement.
[11] In R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), writing for the court, Justice Doherty made clear that merely because a complainant has spoken to a third-party, for example a counsellor or doctor, regarding the allegations that are the subject-matter of the charges, does not make a record of those conversations likely relevant to a fact in issue or to a complainant’s credibility: Batte, at para. 71. As a result, it is not enough for the accused to demonstrate that the record contains a statement that touches on the allegations that are the subject of the prosecution. Instead, more is needed; such a statement “gains relevance only if it is admissible in its own right or has some impeachment value”: Batte, at para. 77.
[12] If, at the first stage, the accused is able to demonstrate “likely relevance”, then at the second stage the third-party record-holder will be ordered to produce the records for inspection by the judge who must then determine whether production should be ordered to the accused. At the second stage, the judge “must examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence”: O’Connor, at pp. 441-442.
[13] In balancing these competing rights, the judge is entitled to consider: “(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias and (5) the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question”: O’Connor, at p. 442.
[14] In McNeil, the Supreme Court recognized that at the second stage some of the factors listed in O’Connor, in particular factors 4 and 5, “were obviously tailored to meet the exigencies in sexual assault proceedings and, consequently, are unlikely to be of assistance in other contexts”: McNeil, at para. 35. As a result, the factors identified as relevant to the second stage are “not to be applied mechanically”, what is ultimately required is “a balancing of the competing interests at stake in the particular circumstances of the case”: McNeil, at para. 35.
[15] With these general principles firmly in mind, I turn to consider the records that are the focus of Mr. R.’s application, in light of the information before the court at this initial stage of the process.
The Genesis of the Charges
[16] To appreciate the basis for Mr. R.’s application for production, it is necessary to have some understanding of the unfolding of events that led to the charges he faces.
[17] On October 28, 2015, A.A. called 911, summoning the police to the family’s residence. That same day, her mother, H.A., was interviewed by police. During that interview, which was videotaped, she made specific allegations that Mr. R. had assaulted her on two occasions that day, and also threatened to cause her bodily harm.
[18] During her videotaped interview on October 28, 2015, when asked if she wanted her husband charged, A.A. responded: “Yes, I do, continuously hitting me before like 17 years … but now he’s started hitting my daughter.” A short time later, she also mentions him hitting their son. For some unknown reason, the officer conducting the interview did not follow up on these remarks while speaking with A.A. on video. Instead, the recording ends with the officer referring to completing a Domestic Violence Risk Management Form. The officer explains that “we are going to do an assessment of what happened in the past to now.”
[19] That same day, A.A. spoke with Constable Yip at [name omitted] Public School, where she was a student in grade 5. Although she did not give a formal statement at that time, Constable Yip noted: “she did not see Dad hit Mom today, only heard what she thought to be Dad hitting Mom, Mom was crying.” Although A.A. also told Constable Yip that her parents are “always arguing,” she did not make any reference either to witnessing acts of violence or being the victim of violence at the hands of her father. That said, the entry in Constable Yip’s police notebook is quite short. It occupies only a single small page in a standard police notebook.
[20] Police initially arrested Mr. R. on October 28, 2015, and charged him with two counts of assault and one count of uttering a threat to cause bodily harm. These charges related to H.A. and her allegations about the events of that day.
[21] One week later, on November 5, 2015, H.A. placed a 911 call. A transcript of the initial portion of that call became an exhibit on this application. In due course, the entire recording also was made an exhibit. During that call, the following exchange takes place between H.A. and the 911-operator:
H.A.: So, um, I think, yeah, someone, they told me that, um, they told me that I had to call the police and tell them what is happening, uh, in the past. All those incidents, I have to talk about it and the police gonna come at my home and then they gonna take the report. They gonna, they gonna, write a …
911 Operator: Who told you you have to call the police and give them all the incidents?
H.A.: Uh, yes, the, I, uh, sorry, uh, from school, there’s Barbara Parer (ph), a social worker. She, she, uh, sorry, she, um, take me from there. There’s a building over there. There at, there’s a legal, uh, advisor, and everyone, everbody’s over there, social workers, and they were trying to tell me that you have to call and complain them.
911 Operator: Complain about what?
H.A.: About the past incidents.
911 Operator: Okay. Well, what kind of incidents?
H.A.: There are so many incidents.
911 Operator: About what?
H.A.: Uh, uh, about my husband was, um, abusing me.
Later in the call, the 911 operator specifically asked her why she did not report the earlier incidents when she previously spoke to the police. H.A. said that the officer told her “you can call later, talk about it later, just only about this incident, like today, what is happening today, this morning.” Importantly, if a police officer, in fact, told H.A. this on October 28, 2015, it is not reflected in the transcript of her videotaped police interview from that day.
[22] In response to the 911 call on November 5, 2015, a police officer was dispatched to the family’s residence. A further formal statement was taken from H.A. that day. Police also conducted videotaped interviews with A.A. and H.M. that same day. Allegations made in these statements resulted in further charges being laid against Mr. R., relating to the historical claims of domestic violence that are the focus of 14 of the 17 counts in the indictment.
[23] On November 5, 2015, during the videotaped interview with A.A., when she was asked to start “with the most recent incident?” She responded by telling the officer about her father assaulting her and her brother that summer. She did not refer to overhearing what she thought was her father hitting her mother just seven days earlier. At one point, asked if she had spoken to anyone else about her father’s actions, she indicated “not really” and when the officer suggested “just your mom and your brother?” she answered “yes.”
[24] Ultimately, a preliminary inquiry took place in February of 2017. During her testimony at the preliminary inquiry, H.A. was asked why she went back to speak with the police a week after giving her original statement. The exchange was as follows:
Q. Okay. And can you just tell us how that came about, why did you go back about a week later and give another statement?
A. It’s because I went to school. There’s a – I spoke to her principal. So her principal told me that we have somebody who can help you in – at school in the office. So there’s – there’s a lady, Barbara Pereira (ph), I remember, and she told me to – there’s a – sorry. There’s a – there’s an area who can – I don’t know, there’s a – there’s a building over there in Brampton who has – like safe centre.
Q. … did you speak with – with somebody?
A. Yes, over there.
Q. Okay.
A. That safe centre.
Q. And did you – did you yourself go back to the police to give the other statement or did the police call you and ask you to come in?
A. The – no, no, not the police, the Victim Services and the – there’s a lady, Pakistani lady, her name is Rehana (ph), I remember, and she was continuously contacting with me, like, victim – sorry, Victim Services from that.
Q. Okay.
A. Because the police officer gave me the card and then I called them and he told me to call them and then tell me the back incidents, whatever happened in your past life tell me. So, she told me to call the police, call the police. Continuously she was telling me to call the police.
Q. Okay. And that’s because on October 28th you just talked about what happened on October 28th, but then when you went back you talked about the past incidents?
A. Yes.
[25] Later, during her preliminary inquiry testimony, H.A. described an incident that she estimated took place in January of 2016, in which she believed she saw Mr. R. in his car. She testified that after this, she went to the school and again spoke to “Barbara Pereira, I tell her that I saw my husband and he’s staring at me.” Apparently, the social worker told her that they should call the police.
[26] This summary of the genesis of the various charges against Mr. R. is gleaned from materials from the Crown disclosure brief and excerpts from the preliminary inquiry transcript that defence counsel filed on the hearing of the application. Beyond these materials, counsel also relied on an affidavit, sworn by a law clerk. In it, the affiant deposes, in part:
- I am advised and do verily believe that the records sought involve interviews provided by Mr. R.’s ex-wife H.A. and daughter A.A. to the following agencies:
a) Peel District School Board: A.A.’s grade school guidance counsellor (Grade 5)
b) Peel District School Board: A. and H. A.’s meetings with a social worker Barbara Perreira (November 2015 – June 2016)
c) Peel Children’s Aid Society (October 30, 2016 – May 24, 2017)
[27] The affiant does not explain the basis for her belief regarding the facts asserted in paragraph 4 of her affidavit. Nor did defence counsel, who represented Mr. R. at the time (not Mr. Jackson), elicit any evidence from H.A. during the preliminary inquiry in this case to substantiate any of these claims. To the extent that H.A. described her interactions with the police and explained how she ultimately came to report the historical allegations of domestic violence, this evidence was only elicited during her direct examination.
[28] With this summary of the record on this application, I turn to the positions of the parties at this first stage of the O’Connor production application process.
Positions of the Parties
[29] On behalf of Mr. R., defence counsel submits that the “likely to be relevant” threshold is met with respect to the records that are the subject matter of this application.
[30] Concerning the Peel District School Board Records, he emphasizes how the allegations appear to have evolved. With H.A. making an initial report only regarding her allegations about the events of October 28, 2015. Although she alluded to earlier abuse, she did not offer, nor did the police appear to elicit, further details. Rather, the specific allegations of historical abuse only came on November 5, 2015.
[31] In between, there was a call to 911 by H.A., in which she specifically referred to speaking to a social worker “from [the] school”. H.A.’s testimony at the preliminary inquiry also makes clear that it was a conversation with a social worker associated with her daughter’s school, a Peel District School Board school, and possibly someone from Victim Services, that led her to contact police to make specific historical allegations of domestic violence.
[32] He further emphasizes the apparent sequence of events. An initial statement to police, during which there were no particulars given of historical abuse. Then, an intervening interaction with a social worker from the school, and possibly someone from Victim Services, who encouraged her to contact the police and report the historical abuse. Followed by her contacting the police and doing precisely that. Given this unfolding of events, that culminated in the allegations that form the basis for most of the charges against Mr. R., defence counsel argues the likely relevance threshold is met concerning the Peel District School Board records.
[33] Concerning the records of the Peel Children’s Aid, he notes that the involvement of the police and a social worker from the school supports an inference that a child protection investigation took place. Given that A.A. told the officer who interviewed her on November 5, 2015 that she had not spoken to anyone beyond her mother and brother about the abuse, he contends that it can be fairly inferred that an investigation by Peel Children’s Aid would have post-dated that interview. As such, these records would provide valuable insight into the development of A.A.’s memory of the events at issue in this trial over time.
[34] Ultimately, Mr. Jackson reminds the court that the “likely to be relevant” threshold requirement is not intended to be onerous. He submits that based on the record before this court on this application; the burden is met.
[35] In contrast, Ms. Chaisson, who acts for H.A., submits that the record on this application falls short of establishing that the records Mr. R. is seeking are likely to be relevant at his trial.
[36] Ms. Chaisson reminds the court that although the threshold burden is not onerous, it is significant. It is not overcome by mere speculation that something contained within the records could possibly be of assistance to the accused. Instead, the accused must point to a specific issue to which the records will be relevant and articulate how they will assist him in making full answer and defence.
[37] Ms. Chaisson emphasizes the Court of Appeal’s decision in Batte. In particular, Justice Doherty’s observation in that case that a mere assertion that a record is relevant to credibility is not enough. In essence, at its highest, she argues that is all we have on this application; a barren assertion that the records may be relevant to credibility. Nothing more.
[38] Ms. Chaisson submits that the Applicant has failed to establish an evidentiary foundation for his claim that the records are likely relevant to the credibility of the complainants. She notes that Mr. R. could have endeavoured to lay a proper foundation by eliciting evidence relevant to this application at the preliminary inquiry. For example, by cross-examining her client regarding her interactions with the social worker at the school or about the involvement of Peel Children’s Aid. In failing to do so, she argues, the Applicant cannot now claim to be aggrieved by the Catch-22 predicament that results from his own tactical decisions.
[39] Further, Ms. Chaisson argues that Mr. R. had other means available to him to fill the evidentiary gaps. For example, if he was the subject of a child protection investigation, then surely, she argues, he would know this and be able to swear an affidavit detailing his interactions with Peel Children’s Aid. His failure to do so, she contends, should result in the court drawing an adverse inference.
[40] Ms. Chaisson also argues that, even accepting that the complainants spoke to a social worker affiliated with the Peel District School Board, or that Peel Children’s Aid conducted an investigation, there is no basis to conclude that the records contain anything more than statements about the allegations. As Batte makes clear, such a showing is insufficient to establish likely relevance.
[41] She notes that in cases where courts have ordered production because likely relevance is established, they have invariably been faced with circumstances where an applicant has demonstrated that a complainant has given obviously contradictory accounts: see e.g. R. v. MacArthur, 2014 ONSC 5583. The record on this application, Ms. Chaisson argues, falls far short of this essential showing. As a result, Mr. R. has failed to demonstrate a likelihood that anything contained within the records would be admissible in its own right or furnish a basis for impeaching the complainants.
[42] Ultimately, Ms. Chaisson argues that there is no basis for concluding that something within the records will furnish Mr. R. with information that he does not already have, or that he could not explore at trial without the benefit of the records. She argues that Mr. R. will still be able to make full answer and defence if denied access to the records.
[43] In the end, Ms. Chaisson argues that the application should be dismissed at this first stage because Mr. R. has not met his burden. He has not shown a basis for gaining access to the records to justify an intrusion on the privacy of the complainants.
[44] Mr. Leclair, who acts for A.A., essentially adopts Ms. Chaisson’s submissions. As does the Crown, Ms. Agatiello. Further, Ms. Agatiello argues that understood in context, the various statements made by the complainants cannot be fairly described as inconsistent. Given this, like Ms. Chaisson, she argues that the necessary showing that the records are likely to be relevant has not been made out.
Analysis
[45] As a starting point, it is essential to remember the context of this application. Given the charges, this is not an application for production of third-party records that engages the scheme under the ss. 278.2 to 278.91 of the Criminal Code: see R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668.
[46] As the Supreme Court explained in McNeil, likely relevance under the statutory 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”: McNeil, at para. 31. In the context of this case, like all applications governed by the common law, such concerns are not engaged at the threshold level of a third-party records application: McNeil, at para. 31.
[47] The statutory scheme differs significantly from the common law because under it, “much of the balancing of competing interests is effected at the first stage in determining whether production should be made to the court for inspection”: McNeil, at para. 32; see Criminal Code, s. 278.5(2)(a)-(h).
[48] In contrast, when dealing with third-party record applications that do not engage the Criminal Code scheme, it is the Supreme Court’s decision in O’Connor that governs. That decision makes clear that, at least at the first stage of the process, “considerations of privacy should not enter into the analysis”: O’Connor, at p. 437. Instead, at common law, likely relevance controls at the first stage of the process, with the privacy interests of the complainants reserved for consideration and balancing at the second stage: McNeil, at para. 32.
[49] I mention this because counsel for the complainants relied on at least some decisions involving third-party records applications under the statutory scheme that she argued are analogous to the circumstances presented in this case: see e.g. R. v. D.M., 2000 CanLII 22825 (ON SC), [2000] O.J. No. 3114 (S.C.J.). Given the dissimilarities between the statutory scheme and the common law, we should be reluctant at the threshold stage to transplant decisions from one category to the other and treat them as persuasive despite significant differences between the two schemes.
[50] Having given the record on this application careful consideration, in light of the legal standard that controls in this context, I am satisfied that the Applicant has discharged his burden. In my view, Mr. R. has demonstrated that the records of both the Peel District School Board and the Peel Children’s Aid are likely to be relevant. Specifically, that they “may contain information concerning the unfolding of events underlying the criminal complaint”: O’Connor, at p. 441. In that regard, I am satisfied that there is a reasonable possibility that the records may contain information capable of being used to impeach the testimony of two of the complainants in this case. I will briefly explain why I have come to this conclusion, beginning with the records of the Peel District School Board before turning to the records of Peel Children’s Aid.
[51] First, I note that when she first spoke to police on October 28, 2015, although H.A. suggested that Mr. R. had been continuously hitting her over the preceding 17 years, the comment was made almost in passing. She did not make any specific allegations. Contrast this with what A.A. told Constable Yip that same day. That she overheard what she thought was her father assaulting her mother. She also reported that her parents were “always arguing." Despite this, she did not report any earlier acts of violence directed towards her or her mother.
[52] Second, the record supports an inference that it was an interaction with a social worker affiliated with the Peel District School Board that led H. A. to call 911 on November 5, 2015 to make specific allegations of historical domestic abuse. This comes directly from what she said to the 911 operator. Although she reiterated this at the preliminary inquiry in February 2017, she also mentioned someone with Victim Services being instrumental in convincing her to contact the police again. During the 911 call on November 5, 2015, there was no mention of anyone from Victim Services playing any role in her decision to contact police again to make allegations of historical abuse.
[53] Third, in explaining to the 911 operator why she did not tell police about the earlier incidents of abuse when she met with them on October 28, 2015, H.A. said that the police told her to contact them later to talk about her historical allegations. There are some curious aspects to this explanation. First, it is not borne out in the actual recording from her police interview on October 28, 2015. Second, it seems an especially strange response by a police officer given the circumstances of the original report. In that regard, I note that it is not as though H.A.’s original police interview took place late in the evening, she gave her first statement in the late afternoon. Third, this also seems to be at odds with H.A.’s explanation to the 911-operator as to why she was contacting the police to report the historical abuse on November 5, 2015. In that call, this was something she unambiguously attributed to the encouragement of a social worker at the school. If the police had told her to contact them later to report the historical abuse, would that alone not have been enough to cause her to do so?
[54] Fourth, it strikes me as curious that when she was finally subject to more formal questioning on November 5, 2015, and asked to start with the most recent incident, A.A. referenced an assault on both her and her brother that summer. She did not mention the assault on her mother, that she told Constable Yip she overheard just the preceding week. At the same time, she made no reference to her father assaulting her or her brother when she spoke to Constable Yip the week before.
[55] To be sure, each aspect of the record is capable of innocent explanation. It is possible, for example, that a police officer did tell H.A. to come back some other time to talk about her historical allegations and that this took place outside of the interview room and was not captured on the recording of her statement on October 28, 2015. It is also possible that H.A. spoke to both a social worker and someone from Victim Services between her first meeting with the police and her return on November 5, 2015, but that she forgot to mention the involvement of Victim Services to the 911-operator. Similarly, it is possible that A.A. did not tell Constable Yip about her father acting violently towards her and her brother because she was not questioned in a way that caused her to think it relevant. Further, that when she did give a formal statement on November 5, 2015, when asked to start with the most recent incident, A.A. may have referenced the assault on her and her brother that summer for good reason, rather than starting with the assault she thought she overheard the week before. For example, she may have known that she was meeting with the police to talk about what happened to her rather than to discuss any violence directed towards her mother.
[56] Each of these potentially innocent explanations are all reasonable possibilities. At the same time, the record on this application also gives rise to a reasonable possibility of something less benign. Specifically, that something took place between October 28, 2015, and November 5, 2015, to cause the complainants to contact the police again. The record supports an inference that the influence of a social worker affiliated with the school may have contributed to the unfolding of the allegations and the decision to make far more extensive historical allegations of domestic abuse. Given this, I am satisfied that records from the Peel District School Board are likely to be relevant to the Applicant’s effort to impeach the credibility of H.A. and A.A. There is a reasonable likelihood that these records could provide valuable insight into the nature and substance of H.A.’s interactions with the school social worker; the content could materially impact on the credibility of the complainants.
[57] The application for production of the Peel Children’s Aid records rests on a similar, albeit slightly different footing. For the reasons just explained, the record raises concerns about the credibility of both H.A. and A.A. Specifically, a reasonable possibility that their accounts of historical abuse by the Applicant may not be entirely independent.
[58] At the same time, it seems highly probable that Peel Children's Aid conducted some type of investigation soon after the complainants made their allegations to police. I note that once made aware of the allegations, both school officials and the police would have been under a positive legal duty to report what they knew to a children’s aid society: see Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA), s. 125. After receiving such a report, Peel Children’s Aid would have been under a positive legal duty “as soon as possible” to assess and verify such a report: see CYFSA, s. 126.
[59] As a result, it seems highly probable that it would have conducted an investigation soon after the allegations first surfaced, possibly even before November 5, 2015. To be sure, but for the concerns already outlined, the fact that the records of a children’s aid society may contain statements from a witness in a criminal case regarding the allegations that are the subject-matter of the charges, would not be enough to meet the likely to be relevant threshold requirement: Batte, at para. 71.
[60] However, on this record, as already explained, reasonable questions have been raised about the independence of H.A. and A.A.’s accounts of historical abuse by the Applicant. Given this, I am satisfied that there is a reasonable possibility that the records of Peel Children’s Aid could furnish additional information capable of impeaching their credibility.
[61] Nor am I persuaded, despite Ms. Chiasson’s able submissions, that the Applicant would necessarily have known that Peel Children’s Aid conducted an investigation. If released on bail Mr. R. would undoubtedly have been subject to conditions prohibiting his return to the family home and restricting his ability to have any contact with the children. Given this, it is quite possible that he may not be privy to any of the details regarding the involvement of Peel Children’s Aid. As a result, I am not inclined to draw an adverse inference against him for failing to furnish an affidavit in support of this aspect of his application.
[62] For all of these reasons, I have concluded that the Applicant has met his burden. He has demonstrated that the records are likely to be relevant to an issue at trial, specifically the credibility of H.A. and A.A.
[63] Accordingly, this court orders that the records of the Peel District School Board and Peel Children’s Aid shall be produced for its inspection. The court will then proceed to determine whether or not they should be produced to the Applicant. The court will hear submissions from counsel regarding the next steps in this process.
Signed: Justice James Stribopoulos
Released: September 12, 2019
COURT FILE NO.: CR-17-301
DATE: 2019-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A. R.
– and –
H. A.
– and –
A. A.
RULING AT FIRST STAGE OF THIRD-PARTY RECORDS APPLICATION
Justice Stribopoulos
Released: September 12, 2019