COURT FILE NO.: CR-19-1560
DATE: 2021 04 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Malik, for the Crown
Respondent
- and -
O.Y.
H. Saini, for the Applicant
Applicant
J. Orabovic, for Peel Regional Police
J. Birenbaum, for V.K.
HEARD: March 17, 2021
THIRD PARTY RECORDS APPLICATION REASONS
PUBLICATION BAN PURSUANT TO S. 110(1), 111(1) 129, and 138 OF THE YOUTH CRIMINAL JUSTICE ACT
Trimble J.
1. The Application
[1] On 12 February 2021 I rendered my decision as to whether certain third-party records could be produced under section 278.3 of the Criminal Code, which were in the possession of the Peel Regional Police relating to four previous police occurrences involving the complainant in this case, V.K.
[2] Three of the four occurrences (# PR 140255528, # PR 140216117, and # PR 150028313 - referred to as “the O.Y. Events”) involve complaints by V.K. against O.Y. for events occurring on 25 April 2014, 14 May 2014, and 21 January 2015. None of these complaints resulted in charges being laid against O.Y.
[3] The fourth occurrence (# PR 11137307 – “the Stranger Event”) relates to an event which occurred in 2013 between V.K. and a stranger to these proceedings. Both V.K. and the stranger were youths at the time of that occurrence. This complaint did not result in any charges against the stranger.
[4] The youth involved in the Stranger Event has refused service of the Application in these proceedings and did not participate in the hearing of the Application. V.K. did not participate in the first part of this Application. Her counsel, however, filed a factum in support of her position that the records O.Y. sought should not be produced. I considered her factum in making my decision.
[5] The 17 March hearing was held following my review of documents sealed in an envelope in the file which I understood to be those records that had not been produced, and were subject to my review following my 12 February decision pursuant to section 278.6 of the Criminal Code. At this hearing, counsel for the victim participated. Counsel for the stranger did not.
2. Background
[6] O.Y. is charged with assaulting V.K. on or about 19 June 2015. He is also charged with assaulting her sometime between 1 November 2011 and 30 January 2012. Finally, he is charged with sexually assaulting her sometime between 1 November 2011 and 31 December 2014. During the relevant time periods, the Applicant and the Complainant were in an on and off relationship. They have two children together.
[7] A Justice of the OCJ, sitting as a Youth Court, determined that the occurrence report regarding the Stranger Event was a youth record, and should not be produced. The hearing before me addressed whether all occurrence reports and related records should be produced as third party records.
[8] In my reasons, I did not disturb the Youth Court’s finding that the occurrence report regarding the Stranger Event was a youth record and should not be produced under that statute. In addition, I declined to order production of the records regarding the Stranger Event as third party records. I held that the occurrence reports and other records were possibly producible as third party records, and that I would hold a hearing to hear from counsel about the records which I assumed were contained in the sealed envelope in the file.
3. The Records to be Reviewed
[9] In my initial decision I commented that the O.Y. Event occurrence reports had been produced to O.Y. However, in reviewing my earlier decision and my notes in preparation for the 17 March 2021 hearing date, it was not clear what was produced by the Police to O.Y.
[10] In preparation for the 17 March 2021 hearing to address what parts of the records should be produced, I opened the sealed envelope in the file. The only thing contained in that envelope were three copies of the occurrence report regarding the Stranger Event. The envelope contained no notes or other information that one would normally see in a police file.
[11] At the 17 March 2021 hearing, I asked the parties to address what had been produced and why I had the envelope containing the three copies of the incident report concerning the stranger even and no other records.
[12] On the morning of the hearing, I was also copied with certain email concerning police notes that the Police had disclosed the existence of, and some it had not disclosed.
[13] On 17 March 2021, the parties agreed that the documents contained in the sealed envelope were placed there in error. All counsel confirmed that O.Y. had been given the complete copies of the three Police incident reports regarding the O.Y. Events, and that he had not been given the investigating officers’ underlying notes.
[14] The Police confirmed that the Police had notes with respect to the incidents which it had edited for personal information relating to third parties. Counsel for the Police also advised that in the two days prior to the hearing, they had discovered the existence of one more set of notes concerning one of the O.Y. Event incident reports, the existence of which had not been disclosed to O.Y.
[15] The notes had been disclosed to the victim but not to O.Y.
[16] All parties, including O.Y., agreed that no further hearing was necessary (in camera under s. 278.4 or otherwise) with respect to the production or editing of the officers’ notes regarding the O.Y. Events. All parties agreed that they would make their submissions in the presence of O.Y.’s counsel in such a way as not to compromise any interest that might be affected. Therefore, they all agree that no further hearing was necessary. They requested that, following that day’s hearing, I look at the notes and make such edits as I thought proper pursuant to section 278.6 and 278.7.
4. Positions of the Parties
[17] The Police and Crown agreed that except for personal information concerning third parties, the officers’ notes with respect to the three O.Y. Events could be released to the accused.
[18] V.K. submitted that the words immediately following the word “recent…” on page 3 of officer Walkey’s notes with respect to PR 140255528 and continuing to the end of that short paragraph, should be redacted.
[19] The accused indicated that he was confident that he had the three unredacted and complete incident reports. However, he wanted the complete and unredacted notes of all officers.
[20] Further, the accused wanted the email exchange of 16 March 2021 between the Court, the Crown, and the Police about the new notes that were discovered, made evidence before the hearing (which it was) and wanted an explanation on the record from the Police about why the existence of the recently discovered notes had not been disclosed. The explanation was given as one of error.
5. Decision
[21] I have reviewed the notes with respect to the three occurrence reports regarding the O.Y. events pursuant to section 278.6 of the Criminal Code. I have carefully considered the factors laid out in section 278.7 of the Criminal Code as well as s. 278.5 as may be applicable, and the submissions of the parties.
[22] Since none of the three occurrence reports regarding the O.Y. Events resulted in any charges against O.Y., I conclude that redacting the records to remove information identifying any third party will not impair the accused’s ability to make full answer and defence to the charges he now faces. That information is not necessary for the accused to make full answer and defence to the charges he now faces. The redactions are also necessary to protect the identity and privacy of the third parties.
[23] With respect to the proposed edits to page 3 of Officer Walkey’s notes in respect of incident PR 140255528, I agree that in the words of following “recent…” on page 3 of the notes and continuing to the end of that short paragraph should be redacted. They relate to the Stranger Event and pursuant to my and the Youth Court’s earlier rulings are not producible. Editing this record to delete this reference will not impede or impair with the accused’s ability to make a full answer and defence. The privacy of the third party should be protected. There is nothing in this redaction that is probative with respect to any issue involving the accused in the charges he now faces.
[24] I shall release the redacted notes to the parties, directly. Because of the publication ban on this proceeding, those redacted notes should not form part of the decision released to the public.
Trimble J.
Released: April 20, 2021
COURT FILE NO.: CR-19-1560
DATE: 2021 04 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
O.Y.
Applicant
THIRD PARTY RECORDS
APPLICATION REASONS
Trimble J.
Released: April 20, 2021