COURT FILE NO.: CR-17-301
DATE: 2019-09-13
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, 12, 2019
RULING ON SECOND STAGE OF APPLICATION FOR PRODUCTION OF THIRD-PARTY RECORDS
STRIBOPOULOS J.:
[1] This is the court’s ruling on the second stage of an application for the production of third-party records.
[2] Yesterday, the court released written reasons explaining why it was satisfied that the Applicant had made the required showing to justify records of the Peel District School Board and Peel Children’s Aid being produced for inspection by the court: see R. v. A.R., 2019 ONSC 5284.
[3] The basis for the ruling was that the Applicant had demonstrated that the records were likely to be relevant to an issue at trial, specifically the credibility of two of the complainants in this case, H.A. and A.A.
[4] Following the release of its ruling, the court unsealed the envelopes containing the records and provided copies to counsel for both complainants. It also provided a very general description of the content of the records to assist counsel for the Applicant in making submissions on the second stage of the application.
[5] Counsel then made submissions regarding whether, and to what extent, the court should order production of the records to the Applicant. There is significant disagreement regarding whether or not any of the records should be produced.
[6] On behalf of H.A., Ms. Chaisson submits that none of the records should be produced to the Applicant. First, she argues that they do not reveal any foundation for concern that H.A. complained to police at anyone’s instigation. Nor do they call into question the independence of either complainants’ allegations of physical abuse. Given that such concerns were the central thrust of A.R.’s application, the fact that the records do not bear this out means that the court should not order production.
[7] Further, Ms. Chaisson argues that the records contain very little in the form of information that would assist A.R. in making full answer and defence. Much of what they contain takes the form of inadmissible hearsay of limited probity. Given the nature of the records, she also argues that they attract a heightened reasonable expectation of privacy. This is especially so with the records from the Peel District School Board, which detail counselling sessions between the complainants and a social worker.
[8] Ultimately, Ms. Chaisson argues that after the court properly weighs the salutary and deleterious effects of a production order, it should decline to order production of the records to the Applicant.
[9] On behalf of A.A., Mr. Leclair also argues against production. Not surprisingly, his submissions closely parallel those of Ms. Chaisson. That said, he also emphasized that at least when it comes to his client, there is virtually nothing in the records that touches directly on the criminal allegations. This is especially the case, he notes, with the Peel District School Board records involving A.A., which relate to personal counselling sessions that attract a very high expectation of privacy.
[10] In contrast, Mr. Jackson, on behalf of A.R., urges the court to order production of anything contained within the records that is not clearly irrelevant to the charges in the indictment. He argues that the balancing of interests that was originally contemplated by the Supreme Court of Canada’s decision in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 as an essential part of the second stage of a production application has been overtaken by subsequent developments.
[11] Mr. Jackson places considerable emphasis on the Supreme Court’s decision in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. That decision, he argues, holds that if after reviewing the records the court is satisfied that they are in fact relevant to an accused’s case, then production should be ordered. In effect, the court is to undertake the very same sort of vetting that the Crown is expected to carry out under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. Consequently, at this stage, the court should only refuse production of information that is plainly irrelevant.
[12] Given that the parties are far from agreed on the law that governs at the second stage of an application for production of third-party records, a very brief review of the controlling principles is needed.
[13] In O’Connor, the Supreme Court instructed that at the second stage of the process, 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.
[14] O’Connor recognized that in balancing the costs and benefits of either refusing or ordering production, the judge should 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.
[15] 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.
[16] It is clear from the passage from McNeil just quoted, that the Supreme Court did not intend its judgment to jettison a weighing of the competing considerations that are operative at the second stage of the process.
[17] That said, in McNeil, the Supreme Court provided useful guidance on how a judge should approach his or her analysis when faced with the concrete realities of the case and the records under consideration. The Supreme Court in McNeil observed, at paras. 40-42:
[40] On the one hand, because the accused will not have seen the documents that he or she seeks to have produced, it may be readily apparent upon inspection by the court that the claim of likely relevance established at the first stage of the O’Connor application is simply not borne out. If the court is satisfied that the documents are clearly irrelevant, there is no basis for compelling production to the accused, and the application can be summarily dismissed.
[41] On the other hand, if the claim of likely relevance is borne out upon inspection, the accused’s right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production. Recall that at this stage of the proceedings, the court has confirmed that the production application concerns non-privileged documents. The existence of any privacy interest in third party records relevant to an accused’s defence of a criminal charge may well warrant, in appropriate circumstances, some redactions or the imposition of conditions to ensure that no unnecessary invasion of privacy follows from production to the accused. However, absent an overriding statutory regime governing the production of the record in question, a third party privacy interest is unlikely to defeat an application for production.
[42] Once a court has ascertained upon inspection that third party records are indeed relevant to the accused’s case, in the sense that they pertain to an issue in the trial as described above, the second stage balancing exercise is easily performed. In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: If the third party record in question had found its way into the Crown prosecutor’s file, would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third party production application. As we have seen, the Crown’s obligation under Stinchcombe to disclose to the accused the fruits of the investigation in its possession does not signify that no residual privacy interest exists in the contents of the file. However, it does mean that, with few exceptions (including the Mills statutory scheme), the accused’s right to access information necessary to make full answer and defence will outweigh any competing privacy interest. The same applies with respect to relevant material in the hands of third parties.
[18] I do not read these excerpts as only providing guidance regarding the second stage of the analysis where an applicant targets police disciplinary records. Although the production of third-party records of that nature was at issue in McNeil, in the quoted excerpt the Supreme Court was very clearly addressing third-party records applications at common law more generally. In that regard, I do not agree with Ms. Chaisson’s submission that the quoted excerpts from McNeil were merely obiter dictum.
[19] With these principles in mind, I turn to the records that were the subject of this application. In my view, there are substantial portions of the records from both the Peel District School Board and Peel Children’s Aid that are indeed relevant to the accused’s case. Most obviously, at points, the records include comments attributed to the complainants about the allegations that are the subject matter of the charges. Some comments also provide clear insight into the complainants’ attitudes towards, and opinions of, A.R., that could be interpreted as demonstrating a clear animus towards him. At trial, such information has potential impeachment value in that it could be used to challenge the impartiality of both complainants and supply a motive for them to skew their evidence against the Applicant. To the same effect is information in the records that sheds light on H.A.’s goals in, and frustrations with, the family law proceedings involving her and the Applicant. In my view, in these various respects most of the records are clearly relevant to credibility and could be of considerable assistance to A.R. in his efforts to make full answer and defence to the charges.
[20] At the same time, some of the material contained within the records is plainly irrelevant, having nothing whatsoever to do with the allegations nor shedding any insight into the mindset of the complainants vis-à-vis A.R. The Peel District School Board records, which consist of a social worker’s notes from counselling sessions, not surprisingly, also contain highly personal and sensitive information that has absolutely no conceivable relevance to this case.
[21] To be sure, the records of the Peel District School Board and Peel Children’s Aid attract a reasonable expectation of privacy, especially so with respect to the counselling records. Nevertheless, to the extent that portions of the records are relevant to the credibility of the complainants, they must be produced. The right of the accused to make full answer and defence to the charges must take precedence over a reasonable expectation of privacy in the records.
[22] That said, information that is plainly irrelevant should be redacted. Beyond that, redactions should also include any sensitive private information the disclosure of which could not appreciably assist the accused in making full answer and defence.
[23] I have highlighted proposed redactions to the records on two copies to be provided to counsel for the complainants. I am prepared to entertain additional submissions as to whether or not the proposed redactions are adequate, given what I have said in my ruling.
Signed: Justice James Stribopoulos
Released: September 13, 2019
COURT FILE NO.: CR-17-301
DATE: 2019-09-13
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A. R.
– and –
H. A.
– and –
A. A.
RULING ON SECOND STAGE OF APPLICATION FOR PRODUCTION OF THIRD-PARTY RECORDS
Justice Stribopoulos
Released: September 13, 2019