COURT FILE NO.: CR-20-40000138
DATE: 20210330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.A.
Applicant
Rick Nathanson, for the Crown/Respondent
Dawne Way, for the Complainant
Annamaria Enenajor, for the Applicant
HEARD: March 10 and 25, 2021
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s.486.4(1) of the Criminal Code of Canada.
278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following: (a) the contents of an application made under section 278.3; (b) any evidence taken, information given, or submissions made at a hearing under subsection 278.4(1) or 278.6(2) of the Criminal Code of Canada.
These reasons for decision are not subject to a publication ban. The defendant’s name must be initialized for publication in order to avoid identifying the complainant.
Justice J. Copeland
REASONS FOR DECISION ON THIRD PARTY RECORDS APPLICATION
Introduction
[1] The Applicant, A.A., brings an application for production of third party records pursuant to s. 278.3 of the Criminal Code. Mr. A. is charged with one count of sexual assault, and one count of uttering a threat to cause to cause death or bodily harm. The first count is alleged to have been committed on or about May 24, 2015. The second count is alleged to have been committed between September 1 and October 8, 2019. The complainant is the defendant’s wife, although the marriage is, for practical purposes, over. The complainant reported the allegations to police on October 8, 2019.
[2] The records sought are from the Toronto Children’s Aid Society (the “TCAS” or “the agency”). The defendant seeks all records in the possession of the TCAS relating to the care of his three children by their mother, who is the complainant in this matter.
[3] The TCAS filed records with the court under seal in response to the subpoena, but it did not exercise its right to appear and make submissions at the hearing of this application. The complainant was represented by counsel and made both written and oral submissions.
[4] As I will explain in the course of the analysis, the applicant has some of the TCAS records already. Through counsel, he made a request to the TCAS for all records in possession of the agency relating to him and his three children. The defendant also provided a consent to release information from his sister, because she cared for the children for a period of time.
[5] The TCAS provided a package of records to the defendant in response to his request. The covering letter from the agency states that the records were vetted in accordance with the Child, Youth Family Services Act, to remove information which could lead to the identification of an individual who was required by law to provide information in the records to the agency, and also to remove third party names (where consent of the third party had not been provided).
[6] The vetting is apparent from the records that the defendant received (and now confirmed by my review of the unredacted records at the second stage of the production application). The records that the defendant received from the TCAS in response to his request do not contain all of the records, or complete copies of the records that the TCAS sent to the court in response to the subpoena on this application. Some of the records he was provided are redacted. Further, as the full TCAS record has numbered pages, it is clear both from the records the applicant received from TCAS (and now from my review of the full record), that there are pages that were not disclosed.
Applicable law
[7] This application is governed by ss. 278.1 to 278.9 of the Criminal Code. The analysis is a well-established two-step process. There is no issue in this case that the application was made in accordance with ss. 278.3(2) to (6), subject to the timing of the application being approximately 10 days short of the 60 notice prior to the hearing date required by s. 278.3(5). The applicant requested that the court abridge the notice period. Neither the Crown nor the complainant objected to this, and both responded on the merits. As a result, I grant the request to abridge the notice period for service, pursuant to s. 278.3(5).
[8] At the first stage, the judge must consider whether to order production of the record for review by the judge. Pursuant to s. 278.5, a judge may order production of the record for review if the judge is satisfied that the defendant has established that the record is likely relevant to an issue at trial or the competence of a witness to testify, and that the production of the record is necessary in the interests of justice.
[9] In considering if the likely relevance and interests of justice thresholds are met, a judge must consider the factors set out in s. 278.5(2). A judge must also bear in mind s. 278.3(4), which provides that various bare assertions by a defendant in their application will be insufficient to establish likely relevance.
[10] “Likely relevance” means that the presiding judge must be satisfied that there may be material in the record which may be useful on making full answer and defence, in the sense that there is a reasonable possibility that the information is logically probative of an issue at trial or the competence of a witness to testify. The assertion of likely relevance must be supported by case specific evidence or information. It must not be based on speculative assertions or on discriminatory or stereotypical reasoning. The threshold a defendant must meet at the first stage should not be interpreted as overly onerous: R. v. O’Connor, [1995] 4 S.C.R. 411, 1995 CanLII 51 at paras. 22, 24 and 138, 140; R. v. Mills, [1999] 3 S.C.R. 668, 1999 CanLII 637, at paras. 45-46, 53, 120-138; R. v. W.B. (Batte) (2000), 45 C.C.C. (3d) 449, 2000 CanLII 5751, at paras. 66, 75.
[11] The Supreme Court of Canada has held that the list in s. 278.3(4) of assertions which will not establish likely relevance does not mean that the arguments enumerated in that list cannot be relied on at all to establish likely relevance. Rather, what is required is that a defendant must point to case specific evidence or information to show that the record at issue is likely relevant to an issue at trial or the competence of a witness to testify. It is bare assertions, unsupported by case specific evidence or information, that s. 278.3(4) makes insufficient: Mills at paras. 117-120.
[12] Pursuant to s. 278.6(1), if the judge is satisfied that the records should be produced to the judge for review, then the judge must review the records in the absence of the parties, in order to determine whether the records or part of the records should be produced. Pursuant to s. 278.6(2), the judge may hold a further hearing, in camera, if the judge is of the view that it would assist in making the determination at the second stage of whether to order production of any records.
[13] After reviewing the record, a judge may order production of the record (or part of the record), where the judge is satisfied that it is relevant to an issue at trial or the competence of a witness to testify, and that production is necessary in the interests of justice (s. 278.7). In reviewing the records and considering whether the records or part of them should be produced, the judge must consider the salutary and deleterious effects of production or non-production on the defendant’s right to make full answer and defence, and on the right to privacy, personal security, and equality of the complainant (or other witness or anyone else with a privacy interest in the records). The judge must also consider the factors set out in s. 278.5(2). If the judge concludes that production of a record or part of it is necessary for the defendant to make full answer and defence, then production will be necessary in the interests of justice: Mills at paras. 54, 132, 137, 139-144.
[14] In addition, where a judge orders any record or part of a record disclosed, the judge may impose conditions on production to protect the interests of justice and the privacy, personal security, and equality interests of the complainant (or other witness or person with a privacy interest in the records), pursuant to s. 278.7(3).
Records sought and first stage of analysis – “likely relevance”
[15] In this case, the complainant has consented to the court reviewing the records at issue. In that sense, it is not necessary that I address stage one in detail. However, I will address two issues in relation to the stage one analysis. The first issue relates to the editing of a portion of the records as provided to the defendant directly from the TCAS. The second issue relates to the two grounds of likely relevance of the records (or portions of them) asserted by the defendant.
[16] The first issue relates to the TCAS providing a redacted partial copy of the records to the defendant. The records at issue are TCAS records relating to his children (whose mother is the complainant in this trial). As such, the defendant has an interest in the content of the records, as one parent of the children (I am not saying this necessarily gives him an interest in the entire content of the records – that depends on the particular content). In addition, he has a privacy interest in some of the content of the records, which also arises from him being one of the parents of the children.
[17] As I have noted above, the defendant, through counsel, requested records from the TCAS. In response to this request, TCAS provided partial disclosure of the records within the scope of what he requested. The material provided was partial in the sense that some of the pages provided contained redactions, and some pages were not provided.
[18] As noted above at para. 5, in its cover letter to counsel for the defendant when the partial records were provided, the TCAS stated that it had vetted the records (i.e., made redactions of partial or full pages), and explained the reasons for the vetting.
[19] I do not suggest that there was anything inappropriate about the TCAS making redactions for the reasons outlined in the cover letter. Although it was not argued before me, I do not doubt that there is legislation and/or policy governing the TCAS’ obligations in respect of protection of the privacy of the individuals they deal with. However, the fact of redactions being made sits awkwardly with the two stages of the third party records production regime, and the court’s role in assessing what should be produced. If the court does not move past the first stage, the editing by TCAS has the effect of TCAS doing the reviewing and editing of the records rather than the court. This matters, because the privacy interests TCAS relied on for its redactions may not coincide with the likely relevance and balancing of probative value and prejudice assessment that this court is required to apply on the production application. Thus, in my view, the disclosure of partial records with redactions is a factor that I find is relevant to the court assessing whether it should move to stage two and review the records.
[20] The second issue is the substance of the likely relevance asserted by the defendant. I accept that the two grounds the defendant asserts are sufficient in the context of the particular evidentiary foundation available on this application to meet the likely relevance standard to justify the court reviewing the records.
[21] Although the complainant consented to the court reviewing the records, it is helpful to outline the two submissions made by the defence regarding likely relevance, as I will need to consider them again at the second stage of the analysis.
[22] As I have outlined above, the defendant is charged with one count of sexual assault, and one count of uttering a threat to cause death or bodily harm. The sexual assault is alleged to have been committed in May 2015. The uttering a threat is alleged to have been committed in the fall of 2019. The complainant reported both allegations to the police at the same time, on October 8, 2019. At that time, the relationship between the defendant and the complainant was breaking down, and who would have custody of the children was an issue between them.
[23] The defendant submits that based on the disclosure and the intended defence, there are two fact-specific ways that the TCAS documents have likely relevance to the case, and in his submission are necessary to his right to make full answer and defence.
[24] As context to both of these claims, the defence makes the submission that the disclosure provided supports the argument that the complainant made the report to police alleging the sexual assault and threat at a time when her relationship with the defendant was breaking down, and that a particular concern and motivation causing the breakdown was the children. Early in her statement, the complainant said to police that the reason she came forward at that time was that enough was enough, and she was putting her foot down, and the reason she came that day was that the defendant wanted to take the children to Somalia, and she did not want that. She said she wanted them to grow up here and go to school here (at pp. 26-27, and 32 of the complainant’s statement to police).
[25] The first claim of likely relevance made by the defence relates to whether the complainant in her statement to police made a statement which is untrue, and which is tied to issues related to her motive to fabricate (the second issue). In her statement to police, the complainant said: “I’m a good mother and I’m gonna take care of my kids, and even you can ask, um, Children’s Aid, was called before and they gave me back the children because they say, you didn’t abuse the children. . . . you didn’t do anything wrong so you can have the children back” (p. 36 of the complainant’s statement to police).
[26] The defence submits, based on the partial records disclosed, that there is a reasonable basis to be concerned that this statement is not true. I will not go into great detail about this at this stage, since the complainant consents to the court reviewing the records, and I can assess the issue of likely relevance in the review of the records at the second stage. However, at stage one the defence relies on the fact that the from the partial records disclosed to the defence, one can infer that there are other issues TCAS was concerned about besides what has been disclosed. To give just one example, at p. 116 of the application record, a page reproduced from the TCAS records provided to the defendant contains a summary of the closure of an investigation which was started based on a complainant from the defendant to the TCAS in January 2014. After summarizing the investigation and the reasons that the complaint by the defendant to the TCAS in January 2014 was not verified (i.e., that they were closing the investigation based on the defendant’s complaint), just before a redacted portion are the words: “During the course of working with this family, an additional concern arose” (and then a redaction). I accept that it is reasonable to infer at stage one of this application that under that redaction is a description of whatever that concern was.
[27] The defence also points to references to referrals to the TCAS about the children by the police on one occasion, and by the children’s daycare on another (see, for example, in the application record, at pp. 121, 124, 128, 130). Both of these were around the same date in April 2014.
[28] I pause to note that prior to review of the records, there is no basis to know whether the “additional concern” referred to in the portion of the records disclosed to the defendant by the TCAS, or the referrals from the police and the children’s daycare, related to abuse, or to something else that would be a concern of TCAS, such as neglect, or capacity to parent. These issues will be relevant at stage two, because if the records do not disclose abuse, the defence claim that there is likely to be a contradiction in the TCAS records to the complainant’s statement to police that she did not “abuse” her children would lose its force.
[29] The defence argues that the TCAS records are likely relevant to the complainant’s credibility, because (according to the defence), the TCAS records could reasonably show that she lied to police about her care of the children, and issues related to care and custody of the children are linked to the timing of her decision to go to police, and according to the defence submissions, are probative of a motive to fabricate the allegations.
[30] The second claim of likely relevance made by the defence relates more directly to the alleged motive to fabricate that the defence intends to pursue at trial. The defence submits that at the time the complainant reported the allegations that form the basis of the charges against the defendant, the complainant was concerned that the defendant would try to get custody of the children, and to take them to Somalia. The defence submits that the complainant’s statement to police shows that she was concerned about the defendant seeking custody of the children and potentially taking them to Somalia. The defence intends to argue at trial that the complainant made the sexual assault allegation in order to strengthen her position with respect to custody of the children.
[31] The defence submits the complainant was concerned that she would lose custody of the children, a concern that was not unfounded given the past TCAS involvement. The defence submits that this alleged motive to fabricate is supported by the portions of the complainant’s statement to police where she said she was concerned that the defendant would try and take the children to Somalia (referenced above at para. 30), and another portion (at p. 36 of the statement) where she said the defendant had told her that once he finds a job and an apartment, the TCAS would give the children to him.
[32] In essence, on the second issue, the defendant argues that the past TCAS involvement provides factual evidentiary support to his allegation of motive to fabricate. Without the records showing a history of children’s aid society involvement, the assertion that the complainant feared that the defendant would take the children and/or that TCAS would give him the children would lack an evidentiary foundation or might seem speculative.
[33] Neither the Crown nor the complainant make submissions denying the potential relevance of these lines of argument at trial. It is at least in part for this reason that the complainant and the Crown do not oppose production to the court at stage one of the application.
[34] However, as I will explain in the stage two analysis, the submissions of the complainant and Crown counsel at the second stage are essentially that on the first argued branch of likely relevance, if the TCAS records do not show “abuse”, but rather show something like neglect or lack of capacity to care properly for the children, then the records would be insufficiently relevant to justify production. With respect to the second asserted branch of likely relevance, the complainant and Crown counsel argue that the balancing of probative value and prejudice would not support producing further records, because the complainant’s statement to police, and the partial records disclosed to the defendant directly from TCAS provide a sufficient evidentiary basis for the defence to pursue this line of defence at trial. Counsel for the complainant has seen the records. The Crown counsel, who has not seen the record, makes similar arguments, but in a more hypothetical way.
[35] I accept that both of the asserted grounds of likely relevance put forward by the defence are sufficiently established in the application materials to meet the likely relevance standard at the first stage of the analysis, and allow the court to review the records at issue.
[36] With respect to the first claim of likely relevance, although I do not accept the defence submission that the complainant was inviting the police to verify in the TCAS records her claim that she did not abuse the children, I am satisfied that in the context of the allegation of motive to fabricate related to the children and fear of TCAS, that there is sufficient relevance shown for the court to review the records.
[37] With respect to the second argument, without assessing the merits of the claim of motive to fabricate relating to keeping custody of the children and fear of TCAS, and bearing in mind that the trial judge will have to determine admissibility of evidence at trial, for purposes of this motion, I accept that this is an argument that the defence is very likely to be legally entitled to put forward this allegation of motive to fabricate at the trial: see, for example, R. v. Esquivel-Benitez, 2020 ONCA 160 at paras. 8-15; R. v. J.C., 2021 ONCA 131 at paras. 75-81. I also accept that there is a sufficient factual basis for this specific alleged motive to fabricate in the application before me that the defence meets the likely relevance standard at the first stage.
[38] I have considered the factors outlined in s. 278.5(2). In light of the consent from the complainant to the court proceeding to stage two and reviewing the records, I will not enumerate them one by one. But I have considered the following factors:
• The complainant has consented to the court reviewing the records. This is an indication that although she asserts a privacy interest in the records, and does not want disclosure to the defendant or to the public, she is not opposed to the limited infringement of her privacy which review of the records by the court entails.
• The defendant has made a sufficient showing of likely relevance for the court to review the records. This showing having been made, the court needs to review the records in order to assess whether their content implicates the defendant’s right to make full answer and defence.
• Although the records are records in which the complainant has a privacy interest, because the records relate to the children that both the defendant and complainant are the parents of, he also has a privacy interests in them. In my view, this shared interest is relevant to the balancing at the stage of the court deciding whether to review the records. They are not records that only the complainant has a privacy interest in.
• There were conflicting submissions before me about the level of the reasonable expectation of privacy in children’s aid society records. Counsel for the defendant submits that children’s aid societies’ records necessarily have a lower privacy value that counselling or medical records, because children’s aid societies doing investigations have an adversarial relationship with parents. Counsel for the complainant submits there is a high privacy interest in children’s aid society records. In my view, how high the reasonable expectation of privacy is in children’s aid society records depends on the content of the records in any particular case. Because of this, it is difficult to fully assess at stage one of the records production process. As a starting point, I note that children’s aid society records involve the relationship between a child or children and their parent or parents. The relationship between a parent and child is normally a relationship of some privacy (subject to the state interest in protecting the best interests of children). For this reason, I accept that the privacy interest in children’s aid society records prima facie has some level of significance. However, it is also true, that in many cases, the relationship between a children’s aid society and a parent or parents may not involve the level of trust of a therapeutic relationship (i.e. medical or counselling records), particularly where the children’s aid society and the parent or parents are in a quasi-adversarial relationship, as can sometimes be the case in an investigation. For this reason, one cannot assume that children’s aid society records have the same high level of reasonable expectation of privacy as medical or counselling records before one sees the content of the particular records. But it is not invariably true that the relationship between a parent or parents and a children’s aid society is adversarial. In some cases, children’s aid societies work with the parents of children they are trying to protect, in the nature of a therapeutic relationship with the parents (for example, working with parents on parenting skills). In addition, sometimes children’s aid societies will come into possession of medical or other therapeutic information in the course of an investigation that has a high privacy interest. At stage one of the analysis, I make this comment in a general sense, and I am not saying that that is what happened in this case, because stage one of the analysis it is prior to the court’s review of the records. In sum, while I accept that there is a reasonable expectation of privacy in records held by children’s aid societies, how high that expectation of privacy is in any particular case can best be gauged at stage two of the records production process. In my discussion of stage two below, based on my review of the records at issue, I address whether the particular content of the records at issue in this case (or some of the content) has a high privacy interest.
• None of the arguments made by the defendant in seeking production of the records are based on any discriminatory belief or bias.
[39] For these reasons, I am satisfied that the threshold for the court to review these records has been met.
Second stage of analysis
[40] I have reviewed the TCAS records produced to the court, and considered the principles of law outlined above at paras. 12-13.
[41] Based on the review of the records, and considering the submissions of all parties, with a narrow exception outlined below at para. 54, I find that the test for production of the records to the defence at stage two is not met. I will explain my reasons for this finding by addressing the two claims of likely relevance made by the defence (which I have summarized above at paras. 20-37).
[42] I begin with the observation that the complainant’s care of the children, standing alone, is not relevant to any issue at trial. Whether or not there were issues with her parenting is not relevant to whether or not the credibility or reliability of the allegations of sexual assault and uttering threats.
[43] The defence claims of likely relevance of the TCAS records are based on the arguments that the records are likely relevant to whether the complainant lied when she told the police she did not abuse the children, and whether her prior involvement with TCAS relating to the children has relevance to the alleged motive to fabricate relating to keeping custody of the children and fear of children’s aid that the defence intends to assert at trial. It is through this lens that the court must consider whether the test for production of records is met.
[44] I will do my best to explain my conclusions in a way that the defence and Crown, who have not seen the full records, can understand. But in explaining my reasons, I must be careful not to disclose the content of the records, given my finding that they test for production is not met.
[45] With respect to the first argument made by the defence, having reviewed the records, I find that they do not support the conclusion that the complainant at any time abused the children. In particular, the records that the defence has partial disclosure of that I have described above at paras. 26-27, which refer to “an additional concern”, and to the referrals by the police and the children’s daycare in April 2014, do not concern allegations of abuse of the children by the complainant. For this reason, I find that the records are not likely relevant to contradicting the complainant’s statement to police that she did not abuse the children. They do not support such a contradiction.
[46] I have also considered the defence argument that even if the records do not show abuse, there is the potential for a contradiction of the complainant’s statement to police (also at p. 36) that TCAS said to her, “you didn’t do anything wrong so you can have the children back.” I find that the production test is not met on that basis either.
[47] It is not in dispute that she was given back care of the children by the TCAS, so there is no potential contradiction there. And in my view, the statements that the TCAS told her, “you didn’t do anything wrong” is too subjective, and too remote from the subject matter of the charges before the court, to meet the likely relevance standard. The charges before the court relate to acts alleged to have been committed against the complainant, the children’s mother. The charges do not relate to the children. The statement by the complainant that the TCAS told her, “you didn’t do anything wrong” is, in my view, a very subjective one. In my view, it is the type of statement that is not easily amenable to contradiction. It is a statement made to police five years after the involvement of the TCAS in 2014, about why the TCAS gave her back care of the children at that time. Why the complainant was given back care of the children has no relevance to the substance of the charges before the court. And the TCAS involvement is not temporally linked either to the time that the complainant says the sexual assault or the uttering threats took place, or to the time she made the report to police. Having reviewed the records, I do not find any likelihood that the content of the records would allow a contradiction of the statement by the complainant that the TCAS told her that she did not do anything wrong and gave the children back.
[48] I further find that there is a very high privacy interest on the part of the complainant in the primary substance of what had not been disclosed from the TCAS records. Without disclosing the content, I find that it is in the nature of the type of information that is contained in medical records. For this reason, disclosing the portions of the records that the TCAS has not disclosed to the defendant would have significant deleterious effects on the complainant’s right to privacy. Because of this high privacy interest, and lack of a likely relevance, I find that it is not in the interests justice to disclose the records beyond what the TCAS has already provided to the defendant pursuant to his request directly to the agency.
[49] I turn then to the second claim of likely relevance made by the defence, that the records may have relevance to the allegation of motive to fabricate that the defence intends to purse related to custody of the children and fear of children’s aid. As I have outlined above, I accept for purposes of this application that this is a theory of motive to fabricate that the defence will be permitted to explore at trial. However, I find that the test for production is not met for disclosure of portions of the record that the TCAS has not already produced to the defendant pursuant to his request directly to them.
[50] I accept that the existence of the prior involvement by the TCAS with the family, and in particular with the complainant, is relevant to the motive to fabricate that the defence seeks to pursue, and hence is relevant to an issue at trial. I accept that the existence of the prior TCAS involvement, and records to substantiate the fact of that involvement, has relevance to the motive to fabricate that the defence wishes to pursue. In the absence of any records establishing the prior involvement of the TCAS, the defence claim of motive to fabricate would be appreciably weaker, as the records showing the fact of the prior TCAS involvement provide an evidentiary basis for the motive to fabricate allegation.
[51] However, I find that the content or details of the prior involvement of the TCAS is not necessary to pursue this motive to fabricate, particularly in the context of the defence having possession of partial records at this point. I find that is not necessary in the interests of justice to produced more of the TCAS records to the defence. Put simply, the reasons for the involvement by the TCAS, apart from the fact that they at least in part related to the complainant, are not necessary for the defence to viably put forward the motive to fabricate related to custody of the children and fear of children’s aid.
[52] Further, as I have already explained, the primary substance of what has not been disclosed to the defence from the records at issue is information in which the complainant has a very high privacy interest. Disclosing the portions of the records that the TCAS has not disclosed to the defendant would have significant deleterious effects on the complainant’s right to privacy. Because of this high privacy interest, and the lack of necessity to disclose further details about the reasons for the involvement of the TCAS, I find that it is not in the interests justice to disclose the records beyond what the TCAS has already provided to the defendant pursuant to his request directly to the agency. In coming to this conclusion, I also take into account that there is significant support for the allegation of motive to fabricate that the defence wishes to pursue in the complainant’s statement to police itself. I find that it is not necessary to disclose further records in which the complainant has a very high privacy interests, when the defence will be able to pursue the motive to fabricate allegation with the partial records it already possesses, and the complainant’s statement to police.
[53] I have considered the factors set out in s. 278.5(2), as required by s. 278.7(2). I will not enumerate each factors, but I find the following factors to be significant:
• I find that production of further records beyond what the defence already has is not necessary for the defendant to make full answer and defence.
• I find that further portions of the record which are not already in possession of the defence have minimal, if any, probative value to issues at trial.
• I find that the primary substance of the portions of the file that the TCAS did not already disclose to the defence has a very high expectation of privacy on the part of the complainant.
• I find that getting into the details of why the TCAS had prior involvement with the family, in particular the portions in which the complainant has a high privacy interest, would be contrary to society’s interest in the reporting of sexual offences. I accept that often complainants will have to speak of very personal matters during their testimony in trials involving sexual offences. This is justified where the personal matters have relevance to an issue at trial. But where the details of personal matters have little or no relevance to issues at trial, that should be avoided because it is unnecessary. Unnecessary intrusion into highly personal matters involving complainants is likely to deter reporting of sexual offences, but to serve no useful purpose at trial. Delving into children’s aid society involvement with a complainant and her children, where, as I have found in this case, the details have little or no probative value in relation to an issue at trial, is not necessary in the interests of justice.
[54] There is one area where I find additional information from the records should be produced to the defence. This concerns records which were produced to the defence directly from the TCAS, but with redactions, where the redactions do not involve information in which there is a reasonable expectation of privacy, and where the redactions serve no real purpose, and just make the records less clear and harder to read. Indeed, in some cases, particularly involving names, one can quite easily guess whose name is under a redaction. It is in no-one’s interest that records which may be used in the trial (subject to relevance, any legal restrictions, and rulings by the trial judge) are unclear and difficult to read. I raised this issue and outlined the areas in the second stage hearing. Counsel for the complainant had no objection to the court unredacting information in the following categories: (i) names of people where it is already fairly obvious whose name is below the redaction (in particular, the name of the complainant and her mother); (ii) an address that is already known to the defendant, and in the complainant’s statement to police (and which the TCAS was inconsistent about redacting, so it already appears in the disclosed record); (iii) portions of the complaint made by the defendant to the TCAS in January 2014, which is already partially disclosed and disclosed in summary in various parts of the TCAS records already disclosed; (iv) some comments by daycare staff which have no privacy interest, and which do not involve the area in which I have found the complainant has a significant expectation of privacy; and (v) the names and badge numbers of police officers referred to in records already disclosed.
[55] For the limited category of further records I order produced, I order that production be made to both the defence and the prosecution, pursuant to s. 278.7(1), and (4).
[56] For the records I am ordering produced, I impose the following conditions, pursuant to s. 278.7(3) of the Criminal Code:
(i) The records produced shall not be used or disclosed to anyone for any purpose other than for the purposes of the applicant’s trial, and for the purposes of any appeal.
(ii) The parties shall not disclose the contents of the records to any other person with the following exceptions: a) to an expert retained to assist in the applicant’s defence; or b) with the approval of the court.
(iii) At no time will defence counsel allow the defendant to take possession or control of the records.
(iv) If counsel is removed from the record, the defendant shall not be provided with the records produced. If the defendant is unrepresented and wishes to review the records, he shall only do so in the courtroom in the presence of court staff. He is not permitted to copy or screenshot the records.
(v) Within 30 days of the expiration of the appeal period of any judgment or sentencing, the parties shall destroy the records.
[57] If counsel at some point see a need to vary these conditions, prior to the trial they may bring an application before me, or in practice court. Once the trial has started, they may raise the issue with the trial judge.
[58] As I indicated at the stage two hearing, these conditions apply to the additional information in the records that I am producing pursuant to this application. I do not impose conditions on the records the defendant already obtained directly from the TCAS.
[59] After the hearing on March 25, 2021, I marked the full records produced to the court by the TCAS as a sealed lettered exhibit, pursuant to s. 278.7(6). The copy I marked is a digital copy on a USB key, as I was advised by Ms Way that the original provided by the TCAS to the court and then forwarded to her was a digital copy. The only change made to that digital copy is that the copy I received for review and have marked as a sealed exhibit is highlighted with two different colours (by Ms Way, and in consultation with Ms Enenajor) to show which portions were already directly disclosed to the defendant by the TCAS, and within those portions, what was redacted in the copy provided to the defendant by the TCAS.
[60] In addition, for sake of clarity of the record, I will separately mark one package of everything I am producing today as a lettered exhibit. I will also seal the package of records produced, because none of those documents are yet exhibits on the trial proper, and may or may not become exhibits on the trial proper.
[61] I decline to place a publication ban on these reasons, pursuant to s. 278.9(1)(c). Although the material I am disclosing is limited, these reasons do not contain a significant amount of personal information about the complainant. In addition, her identity is protected by the publication ban on her identity or information that would serve to identify her, pursuant to s. 486.4 (which in the circumstances of this case, would include the defendant’s name). I also take into consideration the open courts principle. Considering all of these factors, I find that the interests of justice favour allowing publication of this decision. I am providing these reasons to counsel and placing them in the court file with two versions, one with the defendant’s name, and one with his name in initials. When I send the decision for publication, only the initialized version will be sent.
[62] The application is granted in part in accordance with these reasons.
[63] I thank all counsel for their helpful submissions on this application.
Justice J. Copeland
Released: March 30, 2021
COURT FILE NO.: CR-20-40000138
DATE: 20210330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.A.
Applicant
REASONS FOR DECISION ON THIRD PARTY RECORDS APPLICATION
Justice J. Copeland
Released: March 30, 2021