COURT FILE NO.: 4685/19

DATE: 2020-12-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. C.L.

BEFORE: The Honourable Justice Robert B. Reid

COUNSEL: E. Gok, Counsel, for the Accused, Applicant C. Lapointe, Counsel, for the Crown, Respondent D. Butt, Counsel, for the Complainant J. Birenbaum, Counsel, for other witnesses M. Segal, Counsel, for Niagara Regional Police Service

HEARD: in writing dated June 12, 2020

DECISION ON THIRD PARTY RECORDS APPLICATION: STEP ONE

CORRECTED, CORRECTED DECISION:

October 13, 2022 – Names of parties have been anonymized. There has been no change to content.

January 5, 2021 – Names of all counsel added to first page.

No change to content.

[1] The applicant seeks an order that police occurrence reports pertaining to C.B. and to 14 other proposed witnesses for the Crown be provided to him.

[2] Specifically, the applicant requests disclosure of all police occurrence reports pertaining to C.B., who is the complainant in the charge against him, from October 18, 2007 to June 20, 2020 which is the date of the application. As well, the applicant requests disclosure of all police occurrence reports relating to the 14 proposed witnesses from December 16, 2017 to date. The reports sought were not made in the course of investigating the charges against the applicant or his co-accused.

[3] The requests are made on the basis that the reports may disclose disreputable conduct of the complainant and other witnesses and that it is in the interests of justice to require the production of those records to enable the applicant to make full answer and defence.

Background:

[4] The applicant stands charged with one count of sexual assault against C.B. pursuant to section 271 of the Criminal Code of Canada.

[5] The complainant was apprehended by members of the Niagara Regional Police Service on December 16, 2017 and admitted to the psychiatric intensive care unit of the Niagara Health System. Her condition at the time was observed to indicate developmental delay, poor physical hygiene, and pregnancy.

[6] The Crown proposes to call witnesses in addition to the complainant who can testify to the complainant’s relationship with C.L. and which either by direct or circumstantial evidence will support the Crown’s allegations against him.

[7] Of those witnesses, 14 are identified in police occurrence reports from December 16, 2017 to the date of the application.

[8] All statements made by the proposed witnesses have been disclosed and any criminal records of the proposed witnesses have been disclosed.

[9] As directed by Regional Senior Justice H. S. Arrell, the first part of the hearing of this application proceeded in writing. Submissions were received on behalf of the applicant, the Crown, the Niagara Regional Police Service as third-party record holder, the complainant and the other witnesses, all of whom were represented by counsel. The reports in question were provided to the court under seal.

Legal framework and analysis:

[10] This application is made pursuant to provisions of section 278 of the Code. The statutory regime is designed to maintain a constitutional balance between protecting the right of an accused to a fair trial with the privacy and equality rights of complainants and witnesses in situations where disclosure of confidential records of a complainant or witnesses is requested.

Are the documents records?

[11] The first step of the procedure is to determine whether the documents sought are “records” to which an expectation of privacy attaches and then to assess whether the records are “likely relevant” to an issue at trial or the competence of a witness to testify and further to determine whether production of the records is necessary in the interests of justice.

[12] The non-exhaustive definition of “record” contained in section 278.1 of the Code does not deal with police occurrence reports. However, the parties concede that, pursuant to the decision of the Supreme Court of Canada in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 at para. 44, the reports are documents containing personal information concerning which the complainant and witnesses have a reasonable expectation of privacy. As such, they are records for the purpose of this application.

Are the documents likely relevant?

C.B.:

[13] A key issue at trial will be whether C.B. had the capacity to consent to sexual activity at the relevant time or times. The applicant submits that any evidence contained in an occurrence report involving a disreputable act may be relevant. The observation and description of her spoken words or behaviours may give the basis for important cross-examination on the capacity issue at trial and may be important for impeachment purposes if the complainant gives evidence. A substantial portion of disclosure already relates to evidence of capacity to consent.

[14] The Crown does not object to the release of the reports relating to the complainant at the first stage of this application. In effect, likely relevance is conceded. The Crown reserves the right to make argument at the second stage of this application if necessary.

[15] The Niagara Regional Police Service adopts the position of the Crown, but also notes that police resources are negatively affected by requests that are not well-supported and further identifies that occurrence reports do not equate to a conclusion that disreputable conduct has occurred or a suggestion of favouritism by police to a person involved in a report. As such, they are not likely relevant.

[16] On behalf of counsel for the complainant, it was submitted that the request represents an intrusion of privacy for the complainant, especially as a person who is vulnerable as a result of her disabilities and life circumstances. She has already suffered the invasive but necessary disclosure of highly private material on the issue of her capacity to consent to sexual activities.

[17] On behalf of the other witnesses, counsel submitted that the applicant has not met its onus to establish likely relevance. The mere presence of the reports is an insufficient basis for the court to make the order requested.

[18] I am satisfied in advance of a review of the records that police occurrence reports involving the complainant are likely relevant to the issue of her capacity to consent. The likely relevance is not based on the mere existence of the records, the potential for disclosure of a prior inconsistent statement, the credibility of the complainant, her sexual activity or any of the other assertions which are specifically deemed insufficient on their own to establish likely relevance in section 278.3(4) of the Code. Rather, likely relevance is based on the evidentiary or informational foundation which can be gleaned from the acknowledged issue and the already disclosed evidence relating to that issue. In short, the capacity of the complainant to consent is at issue and details of her interactions with the police or others as may be recorded in the police occurrence reports on various dates is likely relevant to capacity to consent.

Other witnesses:

[19] As noted, the names of 14 potential witnesses are identified in police occurrence reports after the date of the complainant’s apprehension on December 16, 2017.

[20] Regardless of whether the reports are disclosed, the witnesses may be examined at trial on their criminal convictions which have been provided as part of Crown disclosure. The applicant submits that witnesses could have been involved in other disreputable conduct which did not lead to an arrest or the laying of a charge but which was referenced in the reports. If disclosed, that information could be used for impeachment purposes.

[21] Further, the applicant asserts that disreputable conduct by a witness as disclosed in a report could create a motive on the part of the witness to curry favour with the prosecution or the investigating police agency. As such, if disclosed, the information contained in the reports could be used for impeachment purposes.

[22] In response, the Crown submits that before likely relevance can be found, the applicant must point to case specific information. As noted by the Ontario Court of Appeal in R. v. W.B., [2000] O.J. No. 2184 at para. 72, there needs to be “some basis for concluding that the records have the potential to provide the accused with some added information not already available to the defence or have some potential impeachment value”.

[23] The Crown submits that there has been no case specific information provided by the applicant that would render the witnesses’ occurrence reports relevant to this case. No witness was on charge for an unrelated matter when they made statements to the police. The possibility of disreputable conduct which did not lead to an arrest or the laying of charges is speculative, and it is inappropriate for the applicant to engage in a “fishing expedition”.

[24] As noted, the Code provides at section 278.4(a) that the mere presence of the reports is insufficient to establish likely relevance.

[25] A review of the details of the individual witnesses discloses the following:

a. As to J.E.: She was charged with assault with a weapon against her mother on March 18, 2020 and while in custody provided a statement about the applicant, which has been disclosed. She will be subject to cross-examination on any alleged influence that the charge against her had on her decision to provide a statement involving the applicant. However, those facts do not make police occurrence reports from other occasions likely relevant.

b. As to B.M., M.J. and J.V.: They were originally co-accused with the applicant. They provided statements to the police which have been disclosed. They will be subject to cross-examination on any alleged connection between the withdrawal of the charges and the statements they made involving the applicant. However, those facts do not make police occurrence reports from other occasions likely relevant.

c. As to J.S.: He was not charged with any offence when he gave a police statement in this matter on August 7, 2018. No further statements were given by him involving the applicant. He was subsequently charged on October 22 and November 30, 2018 and convicted December 17, 2018. He was charged further on March 27, 2019 and convicted August 21, 2019. There are currently outstanding charges with an alleged offence date of September 7, 2019. The fact that J.S. was charged with offences after his making a statement in this matter do not make police occurrence reports from other occasions likely relevant.

[26] The likely relevance test, while not onerous, requires that there is a reasonable possibility that the information sought is logically probative to an issue at trial or the competence of a witness to testify, according to the Supreme Court of Canada in R v. Mills, [1999] S.C.J. No. 68 at para. 45.

[27] There is no evidentiary foundation pertaining to police occurrence reports as opposed to offences charged which support the submission that a witness was motivated to curry favour with the prosecution or the investigating police agency. The suggestion that such facts exist is mere speculation.

[28] No evidentiary foundation was offered concerning the other witnesses which could establish an evidentiary foundation for likely relevance of the reports. It is speculation that witnesses could have been involved in other disreputable conduct which did not lead to an arrest or the laying of a charge but which was referenced in the reports.

Conclusion as to likely relevance:

[29] Based on the foregoing, I find that police occurrence reports concerning the complainant, C.B., are likely relevant for the purpose of this application.

[30] Since there is no evidentiary foundation for likely relevance of any of the other reports, the application is dismissed in that regard.

Is disclosure necessary in the interests of justice?

[31] Since the privacy interests of the complainant is engaged, disclosure of the records must also be consistent with the interests of justice. This factor is considered by balancing the rights and interests of the applicant and those of the complainant. As set out in section 278.5(2) of the Code, the court must consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant.

[32] From the perspective of the applicant, any available information about the complainant that would shed light on her capacity to consent to sexual activity is relevant and potentially important to his defence. Indeed, there already has been a substantial amount of disclosure provided by the prosecution on the issue, including the reports of qualified experts and the background facts on which they have relied.

[33] Disclosure to date has been intrusive on the privacy of the complainant who, as noted, is a vulnerable person. According to the case for the prosecution, she has been significantly victimized over a lengthy period of time and by multiple individuals. The effect of further disclosure on the complainant is relevant in that such disclosure may discourage victims to report sexual assaults in general. On the other hand, while police occurrence reports may well contain personal information, the nature and extent of the expectation of privacy is less than would be the case in other types of records, such as, for example counselling or medical reports.

[34] There is no suggestion that the disclosure request is based on a discriminatory belief or bias.

[35] The extent to which material contained in the reports discloses information of disreputable conduct on the part of the complainant is unknown at this point. However, as noted in the analysis of whether the reports are likely relevant, the issue of capacity to consent is a key element of the case for the Crown and therefore information that bears on that issue is important to allow full answer and defence.

[36] On balance, and as is conceded by the Crown, disclosure of the reports to the court at this stage of the application is consistent with the interests of justice.

Conclusion:

[37] For the reasons set out above, the application by C.L. for an order granting production of police occurrence reports relating to potential witnesses G.B., C.B.2, J.B., J.E., M.J., T.M., B.M., J.S., D.W., J.V., M.J.2, M.C., S.E., and B.S. is dismissed.

[38] Police occurrence reports concerning the complainant, C.B., are found to be likely relevant to an issue at trial or to the competence of a witness to testify and the production of the records is necessary in the interests of justice under the first step of the procedure enumerated in sections 278.1 to 278.91 of the Code. Based on that conclusion, the Niagara Regional Police Service is ordered to provide to the court a copy of the police occurrence reports for C.B. for the period October 18, 2007 to the date of the application, June 12, 2020 for review by the court. Receipt of the letter of July 3, 2020 from Laurie Switzer, information management supervisor for the Niagara Regional Police Service, containing the required records in sealed envelopes is acknowledged as satisfactory compliance with this order.

[39] The second step of the procedure in which submissions will be received from the applicant, the Crown, counsel for the complainant and counsel for the Niagara Regional Police Service will be heard in camera on January 4, 2021 at 10:00 a.m. or as soon thereafter as the matter can be heard.

Reid J.

Date: December 29, 2020