Court File and Parties

Court File No.: 126/10 Date: 2021-03-04 Superior Court of Justice – Ontario

Re: Her Majesty the Queen, Respondent And: G.G., Applicant

Before: George J.

Counsel: Brad Greenshields, for Accused/Applicant Christopher Heron, for Crown/Respondent Scott Schuessler, for the Complainant

Heard: February 11, 2021

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Endorsement

[1] The Applicant stands charged on a two count Indictment. It is alleged that he sexually assaulted, and touched for a sexual purpose, E.B., who was at the time under the age of 16. E.B. is the granddaughter of the Applicant’s common law partner. His trial is scheduled to commence on June 28, 2021.

[2] Pursuant to s. 278.1 of the Criminal Code of Canada, the Applicant seeks production of E.B.’s therapy records for inspection by the court. There is, however, a twist. The Applicant does not know the name of or contact information for any of E.B.’s therapists or counsellors, and therefore does not know who the record holder is. He seeks what he styles “an order in aid for the particulars of the therapists” in question – who his counsel refers to as primary record holders. To be more specific he asks that I compel E.B.’s parents - whom he refers to as the secondary record holders - to tell me the name(s) and address(es) of any counsellor or therapist E.B. spoke to between September 15, 2017 and January 23, 2020.

[3] Should I grant the order, the Applicant seeks directions on the procedure to follow, including a timetable to summons the primary record holders, and a date for an in camera hearing under s. 278.4(1).

[4] In order to understand this case and why this application was commenced, it is important to know the following. First, E.B. has given three different statements to the police and has testified at the Applicant’s preliminary hearing. In her initial statement, she disclosed no offending behaviour describing the Applicant as a nice guy. In her next statement, she indicated that the Applicant had sexually assaulted her on two occasions. In her third, which she provided after testifying at the preliminary hearing, she advised that the Applicant had touched her inappropriately on several other occasions. Second, the Applicant was charged on a separate Indictment - a matter that is now completed – which alleged that he sexually assaulted E.B.’s sister, C.B.

[5] Furthermore, between E.B.’s first and second statements she had discussions with a therapist named “Nancy”. Her sister, C.B., testified that she too had spoken to a therapist – sometimes in the presence of her (and E.B.’s) father – about what she says the Applicant did to her. C.B. has also testified to disclosing this to E.B. Counsel advise that this therapist was arranged through the father’s employer. When the father testified at the Applicant’s preliminary hearing, he recalled that the therapist’s name was “Nancy”, that she was an art therapist, and that her office was located near White Oaks Mall. When cross-examined, he told counsel that he would be able to find out the full name of and contact information for the therapist.

[6] It is my understanding that in and around the time of E.B.’s first statement she began seeing the same therapist as C.B. on a bi-weekly basis. E.B. eventually began seeing another therapist. While she could not recall that therapist’s name, we know that this too was arranged through her father’s employer.

[7] At the preliminary hearing, E.B. testified as follows:

Q: All right. Have you – did you or your parents have you go and – and talk to somebody, like a counsellor or a therapist at all?

A: Yeah.

Q: Okay. And when did you go to see somebody?

A: Um, once – one – ah, I – I went to one a while ago, like and I would see them once every two weeks, but then we didn’t like how they um, talked about like to – to me and stuff like that and we decided to get another one.

Q: Okay. So, when you say “we” who do you mean? You mean your dad or mom or both?

A: Like my parents didn’t like how – like how she – didn’t like her and I didn’t feel – I felt uncomfortable around her.

Q: Okay. And when you say you didn’t like how – how she talked to you, were your parents there in the room with you when you were talking?

A: Um, they would stay there and then I get to choose if I want them to be there or not…

Q: Okay.

A: …a lot of the time.

Q: All right. And did this happen – did you start to see somebody back down at the – when the first time is it you spoke to the police?

A: Yes.

Q: All right. Do you know was this – well I know you didn’t – you didn’t stay with this person, but was it the same person that your sister was seeing? If you know that your sister was seeing anybody?

A: Ah, well after that person I – when I saw a new person it was the same one as my sister.

Q: I see, okay. And did you talk with – with either that first person or this second person that your sister sees about the things with [the applicant], about what you say happened with [the applicant]?

A: Yeah, it was more like someplace where I – like I had to make up this place where I can feel like, safe and comfortable.

[8] Applicant counsel highlights the fact that what E.B. says his client did to her – which is detailed in her second statement (April 4, 2018) – predates her first statement in which she said he, the Applicant, was a nice guy and denied that anything bad had happened between them. It is my understanding of the chronology that E.B. decided to come forward only after being told of her sister, C.B.’s, allegations and after speaking with a therapist.

[9] Before I begin my analysis and determine whether the threshold of “likely relevance” has been met, I will set out the pertinent statutory provisions:

278.3(1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

(3) An application must be made in writing and set out

(a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and

(b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant’s sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 60 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

278.4 (1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge.

(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing.

278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that

(a) the application was made in accordance with subsections 278.3(2) to (6);

(b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and

(c) the production of the record is necessary in the interests of justice.

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall 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 or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account:

(a) the extent to which the record is necessary for the accused to make a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;

(f) society’s interest in encouraging the reporting of sexual offences;

(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

278.6 (1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused.

(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination.

[10] The Applicant makes a compelling argument in respect of ‘likely relevance’. It was well organized and properly confined to the period beginning in September of 2017 and ending in January of 2020. His counsel clearly articulated the basis for the request with helpful references to E.B.’s various statements, and her and her father’s testimony at the preliminary hearing. All of which, at least in my view, makes it clear that discussions with a therapist fits into the chronology of events and played some role in motivating E.B. to come forward. In addition, counsel accurately out the applicable test citing supporting references in the foremost authorities on this topic; see R. v. Batte, 2000 ONCA 5751, [2000] O.J. No. 2184.

[11] Moreover, I fully understand that the Applicant cannot at this time satisfy all of the requirements of s. 278.3(a), despite his counsel’s best efforts at the preliminary hearing, and that compelling E.B.’s parents to find out and then tell me who that person is (or those people are) is necessary in order for him to do so.

[12] That said, given the unique circumstances of this case and involvement of who the Applicant calls “secondary record holders”, both the Crown and complainant raise an issue which I believe must be resolved before I can even address whether production to me is necessary and in the interests of justice.

[13] To start, I reproduce the remaining relevant provision – s. 278.1 – which provides that:

278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

[14] The Respondent and complainant position is that, for whatever reason and however brought about, the Applicant has not complied with s. 278.3(3)(a), and that since there is no distinction in the regime between primary and secondary record holders, and since the application does not particularize the type of record or name of the record holder, it must fail.

[15] I agree.

[16] To be clear, what the Applicant essentially wants me to do is compel E.B.’s parents to approach a representative of the father’s Employee Assistance Program (“EAP”) to learn the name and contact information for any of E.B.’s counsellors; to then pass that information along to me so that I can inform the parties; which would then enable Applicant counsel to serve this application on/summons those counsellor(s). While I sympathize with the predicament Applicant counsel finds himself in, that is simply not contemplated in the statutory regime. In other words, while E.B.’s father would presumably be able to reach out to those who administer his EAP program, that does not in any way mean he is in control of the records sought. There is a distinction between having the ability to inform oneself and being in control of a record.

[17] Quite apart from the question of control, this first step the Applicant wants me to engage does not even involve a ‘record’. I appreciate the Applicant’s argument, which is the information sought from the EAP must be contained in a record (i.e. as it must have paid an invoice or otherwise communicated with E.B.’s service provider) but I do not know that, and even if it were it is not a record E.B.’s father possesses or controls.

[18] I have other concerns. First, while I would not characterize this application as a fishing expedition, it does strike me that a more thorough foundation could, possibly, have been laid at the preliminary hearing. For instance, E.B.’s mother could have been subpoenaed and questioned on the issue of E.B.’s counsellors, especially after it became clear the father did not know. Or, alternatively, an undertaking could have been obtained from the father together with an adjournment of the hearing (or at least a request for one), which would have, if granted, allowed the father to give that evidence in that forum. This is in no way a criticism of Applicant counsel, who very ably attempted to fill in the gaps so to speak. What I am trying to say is that, while not a fishing expedition (which carries a negative connotation), the Applicant is clearly attempting to use this process as a form of discovery. And while I suppose one could characterize the records regime itself as such, what the Applicant is attempting to do is one step (if not two) removed from that which the section itself contemplates, which is a direct line request from an applicant in relation to the person/entity who actually possesses or controls the records sought.

[19] Second, while Applicant counsel seemed to dismiss this as a legitimate concern, the Crown and complainant counsel were correct to point out that there is a complete dearth of evidence about what I will call record-making practices. That is, so far as I can tell neither E.B. nor her father were questioned about what they observed during their sessions with any therapist. For example, was the therapist seen taking notes on a pad of paper, or typing on a computer’s keyboard? Or did they simply sit there and engage with them without taking notes? While this is not what concerns me primarily, it is a factor and goes to both the nature of the documents sought and whether they exist at all.

[20] To the question of whether procedural irregularities are fatal to this type of application, I rely not only on a plain reading of s. 278.3(3)(a), but also the Court of Appeal’s decision in R. v. L.M., 2014 ONCA 640 which seems to stand for the proposition that compliance is mandatory. In other words, “an order in aid” is not recognized by the section and therefore unavailable relief.

[21] The bottom line is, the section requires that an application set out the name of the person who has possession or control of the record sought. This is not permissive. And having rejected the idea that E.B.’s parents are in control of anything, Tulloch J.’s comments in L.M. must prevail; see para. 30. Not only that, returning to my earlier comments about what constitutes a record, consider what the Applicant is asking me to do. He is asking that I compel E.B.’s parents to, first, take steps to find out who E.B.’s counsellors were, and second, to then tell me. This is, as I have already explained, an impermissible discovery process. Consider how would this play out. I would probably have to compel the parents into the stand, have them sworn in, and then provide viva voce evidence on this point. I appreciate the Applicant might say that would be unnecessary and that I should just treat them as any other record holder and have them simply attend court with the documents in hand and provide them to me if I so direct. As I allude to earlier, the problem is I don’t even know what those particular documents are or could be.

[22] An application for third party records is not to be used learn the names and addresses of counsellors. I appreciate the Applicant would counter by saying that his counsel have done all they possibly can to learn that information, to no avail. I am not entirely certain what to say to that other than it is what it is. The important point to make is that the relevant statutory provisions are clearly not designed to be used as a form of discovery to learn the information necessary to engage them.

[23] In the final analysis, and to the central issue before me, I agree with complainant counsel who, at para. 31 of his Factum, writes that:

…the use of the concepts of “primary record holders” and “secondary record holders” is simply a mechanism to get around the problems that the names of the counsellor(s) are not known to the accused and that E.B.’s parents may not possess any records. Using the concept of “primary record holder” and “secondary record holder” does not take away from the mandatory requirements of paragraph 278.3(3)(a) that the Application set out both: (a) the particulars identifying the record sought; and (b) the name of the record holder for, in the Complainant’s submission, both of the purported classes of record holders. The statutory production of third-party records regime does not envisage the use of an “order in aid”.

[24] For these reasons, the Application is dismissed. I appreciate that this is to, in effect, summarily dismiss the Applicant’s motion, but to my mind I am left with no other option.

Justice Jonathon C. George Date: March 4, 2021