COURT FILE NO.: CR-19-10000093

DATE: 20191112

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. MICHAEL WILLIAMS

BEFORE: Michael G. Quigley J.

COUNSEL: Debra Moskowitz, for the Crown

Jennifer Hue and Mindy Caterina, for the Defendant/Applicant

Jacob Jesin, for the Third Party Record Respondent

HEARD: November 5, 2019

E N D O R S E M E N T

O'Connor Third Party Records Application

[l] The Applicant, Michael Williams is charged with numerous offences with respect to two complainants, Bobbi-Lynn Olsen ("Ms. Olsen"), and Faye Petrie. They include assault x 2; assault with a weapon causing bodily harm x 2, choking x 2, forcible confinement, as well as three firearm offences. With respect to Ms. Olsen, the Applicant is charged with assault causing bodily harm, unlawful confinement, attempt to choke with intent to commit an indictable offence (x 2), and assault. The details of the allegations need not be described in these reasons. They are set out in the Applicant's materials.

[2] While the alleged facts do not contain allegations of sexual assault, they nevertheless arise in the context of a domestic relationship. The assaults were also alleged to have occurred in front of the children from the Applicant's first marriage with Ms. Petrie.

[3] The applicant sought certain third party records relating to Ms. Petrie. Counsel for Ms. Petrie, one of the Third Party Record Respondents, agreed that the records sought were relevant and producible.

[4] This endorsement relates only to the records sought in relation to Ms. Olsen, the other Third Party Record Respondent. Crown counsel, Ms. Moskowitz, took no position on this application.

[5] The Applicant first brought Notice of this Application to court in the summer months of 2019, though at first, refused to provide Ms. Olsen (or her counsel) with a subpoena and/or detailed Application Record of the items sought. The Applicant's counsel made representations on the record that she had concerns with Ms. Olsen and/or her counsel having access to the full

Application Record because it might disclose the Applicant's defence and/or evidence presented by other witnesses in the matter. Apparently counsel succeeded in negotiating a resolution to these issues.

[6] The Applicant served his Application Record and subpoena on Ms. Olsen (through counsel) on September 18, 2019. The Application Record is plainly very broad but regrettably, contained very little to assist the court in discerning the likely relevance of the materials sought. The Applicant requested an array of items that were extremely broad in nature. They included:

(i) Credit card statements, bank statements and records of all personal and business accounts held by Ms. Olsen dated August 18, 2017, to November 30, 2017, inclusive and dated June 28, 2018.

(ii) Ms. Olsen's cell phone records from August 18, 2017, to June 28, 2018 inclusive.

(iii) Facebook records, including deleted records if retrievable, of Ms. Olsen from August 18, 2017, to the present which relate to the offences the Applicant is charged with.

(iv) Records of the Children's Aid Society which document any statements made by Ms. Olsen related to the Applicant's charges.

(v) Records of the therapist Mary Poppe, which document any statements made by Ms. Olsen related to the Applicant's charges.

[7] On September 26, 2019 the parties appeared in court to address the matter. Counsel for the Applicant and Ms. Olsen met together that day after court to further discuss the relevancy of the records that were being requested in order to try and narrow the breadth of the request.

[8] On October 3, 2019, the parties appeared before me to address various issues. On that date, Ms. Olsen agreed to provide some of the requested records that had been narrowed down in scope, so long as they were redacted to remove irrelevant, unrelated, privileged or private information. The records that were provided on consent are summarized as follows:

(i) Banking Records:

(a) Credit Card Statements showing transactions from Aug 18-19, 2017 and June 28, 2018.

(b) Bank statements from Ms. Olsen's personal account, and from Ms. Olsen's business (law firm) general account, that demonstrate that there were no transactions on August 17, 2017, or there were unrelated transactions (i.e. cheques withdrawn).

(ii) Ms. Olsen's cell phone records from the dates and times listed in paragraph 5 of the Applicant's Notice of Application, which are September 30, October 1, 2, 3, 21, and 23, 2017.

(iii) Redacted records of the Children's Aid Society with statements made by Olsen related to the Applicant's charges.

(iv) Redacted records of the therapist, Mary Poppe, which document any statements made by Ms. Olsen related to the Applicant's charges. (It was noted on the record, that Ms. Olsen was not conceding that the un-redacted records were likely relevant to any issue at trial, nor was she conceding that she had no privacy interest in the records, but nevertheless was agreeing to these being provided on consent in an effort to simplify the application.)

[9] The parties agreed to return before me on October 7, 2019. By that time, it was expected that counsel would have reviewed the Facebook data dump sought by the Applicant that had been downloaded to ascertain how large it was. It was my expectation that Applicant's counsel would provide further detailed information on that date narrowing the timeframes that were being sought for the Facebook records and outlining the relevancy of each timeframe.

[10] On October 6, 2019, the Applicant's counsel sent a four-page document to Olsen's counsel with an extensive list of times and dates of various items requested. A copy of that list was attached to Ms. Olsen's counsel's response to the Application. That document contained requests for phone, banking and cellphone records, but in addition, an extensive new list of dates and time periods that went well beyond the few dates originally listed in paragraph 5 of the Application. More importantly, Appendix A to the Application did not provide any meaningful or comprehensible explanation of the claimed likely relevance of each listed date and time.

[11] The parties returned before me to address the matter again on October 7, 2019. Ms. Olsen's counsel provided a copy of Appendix A to the Court. He advised (i) that the Facebook records were extensive, (ii) that they contained potentially thousands of pages of records, and

(iii) that without some narrowing of the request as to what was relevant in the Facebook records; it would potentially take hundreds of hours to comb through the documents to search for what was being sought. I requested that the parties return to court on October 11, 2019 for further consideration.

[12] On October 11, 2019, Applicant's counsel indicated that it was her position that each and every item on the extensive list in Appendix A was relevant, but she then undertook to prepare a detailed chart outlining the likely relevance of each item (or date and time) that she was requesting. It was agreed that the Applicant's counsel would provide that chart by October 18, 2019. Counsel tentatively scheduled a call for October 23, 2019 in order to discuss the chart, after which it was expected Ms. Olsen's counsel would have time to review it with his client and get instructions.

[13] But then, on October 16, 2019, the Applicant submitted a second Notice of Application, this with respect to records from Metrolinx and Fab Restaurant Concepts, relating to Olsen's activities in Union Station on August 18, 2019.

[14] By October 23, 2019, however, the chart of relevancy had still not been provided. Mr. Jesin wrote to the Applicant's counsel to inquire why he had not received it. Instead, all he had received from the Applicant was a further Notice of Application for additional records relating to Ms. Olsen's activities at Union Station on August 18, 2019.

[15] Apparently, Ms. Hue advised on October 24, 2019, that she would be serving the copy of the chart on all parties "this week." I do not know whether she meant by October 25, but it was certainly promised before the end of October.

[16] Regrettably, however, the chart was only delivered to Mr. Jesin in the early morning of November 4, 2019. Somewhat dishearteningly, that chart now seems to expand even further on the Applicant's broad timeline requests instead of narrowing the issues, but it contains nothing of any specificity relative to the likely relevance of the items sought.

[17] The test for production of third party records in a non-sexual assault scenario like this is described in R. v. O'Connor[^1]. That contains a somewhat different stage one test of relevance than that enunciated in R. v. Mills[^2], and that was later incorporated into s. 278 of the Code, relating specifically to third party records applications in the context of sexual assaults.

[18] These are not sexual assault allegations, but they do take place in the context of a domestic relationship between a husband and wife. Our courts, the Criminal Code sentencing principles and public policy, all recognize that to be a special relationship requiring particular consideration. The charges in this case are serious and are alleged to have caused significant injury.

[19] I accept that the stage one threshold is lower than in Mills, but it is somewhat attenuated and enhanced by its domestic context. Nevertheless, balancing is still required. In R. v. McNeil[^3] at paras. 28, 29 and 33, the court said:

28. The frrst step in any contested application for production of non-privileged documents in the possession of a third party is for the person seeking production

• in this case the accused – to satisfy the court that the documents are likely relevant to the proceedings. This threshold burden simply reflects the fact that the context in which third party records are sought is different from the context of frrst party disclosure. We have already seen that the presumptive duty on Crown counsel to disclose the fruits of the investigation in their possession under Stinchcombe is premised on the assumptions that the information is relevant

and that it will likely comprise the case against the accused. No such assumptions can be made in respect of documents in the hands of a third party who is a stranger to the litigation. The applicant must therefore justify to the court the use of state power to compel their production -hence the initial onus on the person seeking production to show "likely relevance". In addition, it is important for the effective administration of justice that criminal trials remain focused on the issues to be tried and that scarce judicial resources not be squandered in "fishing expeditions" for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function.

29. It is important to repeat here, as this Court emphasized in O'Connor, that while the likely relevance threshold is "a significant burden, it should not be interpreted as an onerous burden upon the accused" (para. 24). On the one hand, the likely relevance threshold is "significant" because the court must play a meaningful role in screening applications "to prevent the defence from engaging in 'speculative, fanciful, disruptive, unmeritorious, obstructive and time­ consurning' requests for production" ( O'Connor, at para. 24; quoting from R. v. Chaplin (1994), 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727 (S.C.C.), at para. 32). The importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminal proceedings remains a pressing concern, more than a decade after O'Connor. On the other hand, the relevance threshold should not, and indeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that may assist in making full answer and defence, "to demonstrate the specific use to which they might put information which they have not even seen" ( O'Connor, at para. 25, quoting from R v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469 (S.C.C.), at p. 499).

30. "Likely relevant" under the common law O'Connor regime means 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 para. 22 (emphasis deleted)). An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case" ( O'Connor, at para. 22). At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position.

[20] Ifthe Applicant is able to demonstrate likely relevance, the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production to the accused should be ordered.

[21] O'Connor establishes that the onus is on the Applicant to demonstrate that the records are likely relevant to the proceedings. Specifically, the Applicant must demonstrate that information contained in the records "is likely to be relevant to an issue in the proceedings, or to the competence to testify of the person who is subject of the records."

[22] In cases like this, courts have accepted that complainants typically have a significant interest in protecting their privacy in material sought through third party records applications, and have reminded us that significant intrusion into the private records of a complainant can further traumatize a victim of crime. It can create a chilling effect on future complainants who wish to bring matters forward. This is why the Courts, and Parliament, in s. 278 of the Code, have created the two-stage third party records process to allow for a balancing of the competing interests between the complainant's privacy and the accused's right to make full answer and defence.

[23] I agree with counsel for Ms. Olsen, as I advised counsel on November 5, that Ms. Olsen has a potentially heightened privacy interest in records sought, because she is a family law lawyer in private practice. Many of her cases are before the same court where this criminal matter is being heard. The Applicant is seeking broad access to all manner of Ms. Olsen's private cellphone, banking (both personal and from her law practice), and social media records. It is a vital concern that the Court ensure that any records released under the order do not disclose any solicitor-client and/or privileged information that would infringe on the protected rights of other people, and/or jeopardize Ms. Olsen's family law practice. Happily, both counsel were sensitive to this concern in their efforts to refine the scope of the records sought for this matter.

[24] In response to the Chart filed by Applicant's counsel on November 4, Mr. Jesin argued in written submissions delivered to me the night before the hearing, that (i) the Applicant had not met his burden because he had failed to demonstrate how the extensive records sought are relevant to any material issues in this trial, and (ii) the breadth of the application showed no nexus between the records sought and the right to make full answer and defence. I advised counsel that, in my view, the aggregation of records sought was excessively broad and undefined from a relevance perspective, and in sum amounted to a prime example of a fishing expedition using a very wide net.

[25] In response, Ms. Hue sought to clarify why she considered the range of documents requested to be relevant. Most important was her clarification of the role certain documents created in certain timeframes would serve relative to determining the credibility and reliability of Ms. Olsen's testimony.

[26] The Applicant presented evidence at the preliminary inquiry in the form of text messages that called into question Ms. Olsen's credibility with respect to the alleged assault When presented with the text messages, Ms. Olsen maintained that she did not send the messages and surmised that the Applicant might have fabricated the evidence by sending the text messages from her phone while she slept. As laid out in the Applicant's factum, Ms. Olsen testified at the preliminary hearing that she did not know if she had made any additional posts on Facebook about the allegations, after the posts that she deleted shortly after the incident.

[27] Stated simply, it was her evidence that numerous text messages allegedly sent by her to the accused were actually sent by the accused. It was her contention that while she slept, the accused touched her thumb to her cellphone to cross the password barrier and then sent messages to himself to use to cast doubt on her memory relative to the assaults and to slag her relative to her alleged alcohol consumption.

[28] I agree that certain of the records sought within specific timeframes contemporaneous to the sending of the text messages may serve a role in challenging the complainant's credibility, but I am not persuaded that the much broader range of documentation sought also served that goal.

[29] In the result, we stood down. Counsel worked for most of the day to narrow the records sought, to clarify the alleged relevance of those still sought, and to reach a consent basis for production of many, if not all of the records sought by the defence.

[30] By the end of the day, counsel had agreed on most items to be produced at the first stage. These included cell phone records, that had already been agreed to be provided, some additional cell phone records, and certain bank records. Relative to the Facebook records, they were able to narrow down the relevant timeframes. Screen shots of all of those records were provided for my review.

[31] While they may have been agreed to have potential relevance, having reviewed those records relative to the proposed purpose of their requested production, I find that none of those records in the agreed timeframes cast any light whatsoever on the matters in contention in this case. They need not be produced.

[32] This left the issue of banking records. The Applicant had subpoenaed all of Ms. Olsen's personal and business banking records dated August 18, 2017, to November 30, 2017, inclusive and dated June 28, 2018. Through counsel, Ms. Olsen consented and provided her banking records from August 18-19, 2017 and June 28, 2017. She also consented to the additional records that were sought from her activities at Union Station on August 18, 2017 (from Metrolinx and Fab Restaurant Concepts.)

[33] Counsel did not reach agreement on the remainder of the banking records. I was asked to adjudicate solely on that remaining issue.

[34] In Appendix A, item #5, the Applicant had requested further banking records in relation to 46 dates and times between the August 20, and November 30, 2017 dates, all of which occurred after the alleged assault. After further refining her request, as reflected in Chart 2 prepared and submitted over the course of the day on November 5, banking records were still being sought relating to twenty three separate periods of time, all of which post-dated the assaults on August 18-19, 2017.

[35] The Applicant suggests that the records will have impeachment value in that they may show that Ms. Olsen was mistaken in her recollection of "her location, whether she was with the Applicant during the times she says she was, and whether her memory of where she was and who

she was with is reliable." (para. 16 of the Applicant's Factum). That may be so, but the goal is not to slag Ms. Olsen's memory writ large, and I find that the Applicant failed to demonstrate how those records would assist the trier of fact in determining whether the allegations occurred or why the records are likely relevant to an issue in the trial. Their absence of relevance for the suggested purpose is highlighted by two points:

a) First, neither the credit card, nor the bank statements show exact time indexes for transactions. As such, they do not assist to ascertain Ms. Olsen's whereabouts at any particular time of day. Defence counsel says that the transactions listed may permit her to start looking for further records, that may in turn indicate Ms. Olsen's whereabouts. But that is exactly the fishing expedition purpose that cannot be permitted.

b) Second, the Applicant cannot be expected to have a clear and total recall of where she was on every single day for the three-month period that followed the alleged attack. Moreover, even if she is mistaken about her whereabouts on a particular day during that time period, it is entirely collateral and there is no obvious nexus with the assault that occurred on August 18-19, 2017. This is the very essence of a fishing expedition that will result in a collateral attack on the Applicant's general credibility. In my view it offends the rules of evidence and cannot be permitted.

[36] However, I do accept that a very limited number of the banking records relating to the same timeframes as the text messages may arguably meet the low level threshold for stage one relevance, and might potentially provide useful information to the defence that does relate to the veracity of Ms. Olsen's claims respecting the text messages and who was their author. The banking records from 2017 I find could be relevant under the stage one test are the following:

(i) August 18;

(ii) September 30 - October l;

(iii) October 1 - 2;

(iv) October 2 - 3;

(v) October 3 -4;

(vi) October 19 -20;

(vii) October 20 -21;

(viii) October 22 - 23;

(ix) October 24; and finally,

(x) June 28, 2018.

[37] I note that there were no banking records for the three dates specified by defence counsel: August 19, October 9 and October 13, 2017. In summary, the cell phone records will be provided on consent, as agreed between counsel. Having reviewed the Facebook records, I find none are relevant to any issues in this matter and they will not be produced.

[38] I am to be provided with the credit card records for the limited periods described and will consider, as a stage two question, whether any or all of them are producible. Counsel for Ms. Olsen may advise whether he wishes a further opportunity to make submissions on any portion of those limited records that I am considering releasing to the defendant after review.

Released: Tuesday, November 12, 2019

[^1]: 1995 CanLII 51 (SCC), [1995] S.C.J. No. 98 at para. 137 [^2]: 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 [^3]: 2009 SCC 3, [2009] 1 S.C.R. 66