COURT FILE NO: CR-21-696
DATE: 2021 10 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Vlacic, for the Crown/Respondent
Crown/Respondent
- and -
RICHARD LIPSETT and DEAN SINCLAIR
Accused/Applicants
A. Morphew and K. Symes, for the Accused/Applicant Lipsett (Symes not appearing on the Application)
A. Trica and D. Stein, for the Accused, Sinclair (taking no position on the Application)
- and -
SIMRIT JAWANDA
J. Birenbaum, for the Third Party, Simrit Jawanda
Third Party
HEARD: October 12, 2021
Pre-Trial Application Ruling No. 1 – Third Party Records
Trimble J.
[1] This is my decision on the first stage of a pre-trial Application brought by one of the accused, Richard Lipsett, for production of third party records regarding Ms. Simrit Jawanda’s psychiatric treatment from 1 January 2012 to 1 May 2021 pursuant to the principles set out by the Supreme Court of Canada in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411.
Result
[2] At the conclusion of the hearing on 12 October, I dismissed Mr. Lipsett’s Application for written reasons to follow. These are those reasons.
[3] I release those reasons before the jury has been selected counsels’ undertaking that they keep these reasons in confidence until the end of the trial and the jury begins deliberations.
Background
[4] On 20 August 2019, Mr. Lipsett was arrested for the murder of Wayne Wojcichowsky on the evening of 14-15 August 2019.
[5] On 12 September 2019, Ms. Jawanda gave a statement to police about a conversation she had with Mr. Lipsett in a park, shortly after the murder, in which he discussed events surrounding the murder. The Crown seeks to rely on this statement and/or Ms. Jawanda’s evidence.
[6] Ms. Jawanda and Mr. Lipsett had been in a romantic relationship since early 2012 and had cohabited at times during the relationship. By August 2021, the pair were still involved, although she was living with her mother and he was living in a shelter.
[7] According to her evidence at the preliminary inquiry and her statement to police, Ms. Jawanda was diagnosed at age 17 as suffering from schizophrenia. She is now 47. Over time that diagnosis was amended to be bipolar schizophrenia.
[8] Ms. Jawanda described the symptoms from her disorder as anxiety, fatigue, and auditory hallucinations. At several points in her preliminary inquiry evidence, she said that her schizophrenia symptoms are aggravated by not taking her medication, and by being involved in or subject to stressful situations. She gave as an example her time working at Walmart which ended 18 years before the murder. She was under a great stress and was hearing voices. Sometimes her symptoms, when they are aggravated, make it harder for her to think clearly.
[9] Ms. Jawanda says, however, that her schizophrenia does not affect her memory.
[10] As a result of her schizophrenia, Ms. Jawanda has been on ODSP since 1994.
[11] When she was asked about her treating physicians, she initially identified the Peel Regional Hospital and “Dr. Chharia”. She later changed the doctor to “Acharyya” and “Manik”, none of whom exist. She also referred to the hospital at which she saw her doctors as the Trillium Hospital, which does not exist other than as an administrative body. She probably means Brampton Civic Hospital, which is part of he William Osler Hospital network.
[12] According to police occurrence reports disclosed to Mr. Lipsett as part of the disclosure with respect to the charges that are now before the court, Jawanda has had the following relevant police contacts:
a) February 3, 2020: Ms. Jawanda’s mother called the police to report that her Ms. Jawanda was acting aggressively. Police determined that Ms. Jawanda had not taken her medication. She appeared to be making things up and was unable to follow her own stories. Ms. Jawanda was apprehended under section 17 of the Mental Health Act and committed under a Form 1 to the care of Dr. Sikend at Brampton Civic Hospital.
b) April 13, 2019: Ms. Jawanda’s mother called the police advising that Ms. Jawanda was “mentally disturbed and that she had pushed and slapped her”. Police attended. It appeared that Ms. Jawanda had not taken her medications or that they were not working, and that Ms. Jawanda was not making sense. She was exhibiting bizarre behaviour and seemed to be suffering from delusional thoughts stating that dead family members were stealing her money, going on about being adopted and talking about murderers calling her home. Ms. Jawanda was apprehended under section 17 of the Mental Health Act, transported to Brampton Civic Hospital, seen by Dr. Graham and placed on a Form 1.32
c) August 2, 2018: Ms. Jawanda called police to report the male downstairs was scaring her, and she feared for her life. Police attended and spoke to Ms. Jawanda’s mother who advised that when the basement tenant came to the door to pay the rent, Ms. Jawanda started acting paranoid. Mother advised that she did not think Ms. Jawanda’s medications were working properly. Ms. Jawanda advised she had an appointment the next day with her family doctor and will speak about her medications.
d) June 28, 2017: Police were called about a female, later identified as Ms. Jawanda, who was writing down licence plate numbers. Ms. Jawanda told officers that she felt someone had been following her and that she was given permission to write down the information. Police described her as paranoid while explaining why she believed she was being followed she advised police that she took her prescribed mediation daily.
e) January 24, 2015: Police were called with respect to a domestic incident. Ms. Jawanda’s mother told officers that she and her daughter got into a pushing match after Ms. Jawanda borrowed some jewelry. Ms. Jawanda then returned the jewelry without further incident.
The Relief Requested
[13] Mr. Lipsett seeks production of the following records:
a) A Letter from Trillium Health Partners confirming they possess no records regarding Ms. Jawanda; and
b) All records from Brampton Civic Hospital (William Osler Health System) relating to Ms. Jawanda’s mental health, diagnosis of mental illnesses, including but not limited to schizophrenia, anxiety and/or bipolar disorder between January 1, 2012 and May 1, 2021.
[14] The records, above, were produced under subpoena, were sealed, and were placed in the Court file and marked as Exhibit A to this AApplication. Ms. Birenbaum, as counsel for Ms. Jawanda, reviewed the records in preparation for the Application.
The O’Connor Approach
[15] The process for obtaining production of third party records was established in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411. at paras. 15-34, and confirmed in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 27.
[16] The process requires the following steps:
a) The accused must first obtain a subpoena under ss. 698(1) and 700(1) of the Criminal Code and serve it on the third party records holder. The subpoena compels the record holder to attend court with the targeted materials.
b) The accused must bring an Application, supported by appropriate affidavit evidence, demonstrating that the records are likely to be relevant in his or her trial and give notice to the Crown, the person who is the subject of the records, and any other person who may have a privacy interest in the records.
c) After hearing from the Crown, records holder, and any other interested party, the judge must determine whether production should be compelled in accordance with the two-step test established in O’Connor:
(i) At step 1, the judge must be satisfied that the records are “likely relevant” to the proceedings against the accused. If so satisfied, the judge may order production of the records for the court’s inspection and the Application proceeds to the second step. If not so satisfied, the judge dismisses the Application.
(ii) At step 2, the judge reviews the records and determines whether, and to what extent, production to the accused should be ordered. This step requires balancing a variety of factors.
[17] This Application involves the first step of the O’Connor analysis: are the records sought “likely relevant” to an issue in the proceeding.
Likely Relevance
[18] The accused has the onus to establish that the third party records sought are “likely relevant” to an issue in the trial (R. v. Batte 2000 5751 (ON CA), [2000] O.J. No. 2184 at para. 75). As the Ontario Court of Appeal stated in R. v. I.W. 1999 3695 (ON CA), [1999] O.J. No. 258 at para. 39, “[t]he likely relevance standard is not a high one.”
[19] This relatively low threshold exists in an O’Connor Application for two reasons. First, in such Applications, neither the Defence nor the Crown has seen the requested documents and are thereby disadvantaged when making their submissions on the issue of relevance. Second, the intrusion into a third party’s privacy that arises in the first stage of the third party records Application is minimal, in that no one sees the records, and in the second stage, it is only the judge and the third party’s counsel who are entitled to view the records. Those records are not produced to the Defence.
[20] While the bar is low for the accused, s/he must do more than merely argue that the records go to the credibility of a witness because that witness suffers from a mental illness. For a judge to accept effect to this argument would to give effect to the stereotypes, tropes, and prejudices that regrettably surround mental illness. As L’Heureux-Dubé J. stated in O’Connor:
…the mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of his or her testimony. Any suggestion that a particular treatment, therapy, illness, or disability implies unreliability must be informed by cogent evidence rather than stereotype, myth or prejudice. (at para. 143)
[21] In McNeil, the Supreme Court emphasized that criminal trials must remain focused on the issues to be tried and scarce resources should not be squandered on “fishing expeditions” for irrelevant evidence. McNeil, supra at paras. 28-29.
[22] The phrase “likely relevant” 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”. An “issue at trial” includes material issues concerning the unfolding of events which form the subject matter of the proceedings, as well as evidence relating to the credibility of witnesses and reliability of other evidence in the case. The relevance of the records must be assessed in the context of the entire case and the positions of counsel. McNeil, supra at para. 33, O’Connor, supra at paras. 19, 22, and R. v. Jackson, 2015 ONCA 832, (Ont. C.A.) at paras. 121-122, 129.
[23] The accused must establish a case based factual connection between the records being sought and a reasonably significant issue in the case. Justice L’Heureux-Dubé stated that the applicant cannot simply invoke credibility at large, and that the records must relate to, “credibility on a particular, material issue at trial” (at para. 142). In R. v. Batte, supra, Doherty J.A. summarized that principle as follows:
The mere assertion that a record is relevant to credibility is not enough. An accused must point to some “case specific evidence or information” to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value. (Batte, supra at para. 75)
[24] Further, production of the records will not be ordered merely on the accused’s asserting that it is necessary to make full answer and defence. The accused's right to make full answer and defence is a principle of fundamental justice but which does not entitle the accused to “the most favourable procedures that could possibly be imagined” as fundamental justice “embraces more than the rights of the accused.” The accused’s right to full answer and defence must be understood in light of other principles of fundamental justice which may involve interests and perspectives beyond that of the accused. R. v. Mills, 1999 637 (SCC), [1999]3 SCR 668(S.C.C.) at paras. 70-73.
[25] Society has an interest in arriving at the truth in the trial process. As a result, full answer and defence does not entitle the accused to admit at trial all evidence that goes to his innocence irrespective of rules of evidence. Similarly, the accused never has a right to lead irrelevant evidence. The right to full answer and defence does not permit the accused to distort the truth-seeking function of the trial process. The accused’s right to make full answer and defence is not automatically breached where he or she is deprived of relevant information. The accused has to demonstrate actual prejudice to his right to make full answer and defence. Mills, supra, at paras 74-75.
Positions of the Parties
[26] Mr. Lipsett argues that the issue at trial to which the records are likely relevant is Ms. Jawanda’s ability to absorb the information that she received from Mr. Lipsett in their conversation in the park shortly after the murder, and her ability to accurately remember and recount what occurred in that meeting, whether at the police station, the preliminary inquiry, or the trial of the action.
[27] Mr. Lipsett submits that this case is a serious one – murder – and Ms. Jawanda is a key Crown witness. Therefore, it is necessary that Mr. Lipsett be given all the necessary tools and evidence to challenge the evidence of Ms. Jawanda so that he can fully exercise his right to full answer and defence. Anything short of that is an unreasonable limit in the circumstances of this case.
[28] On the evidence, to date, there is a very strong basis to doubt the reliability of Ms. Jawanda’s evidence. There is very strong reason to doubt her ability to retain and recall the specifics of what she was told. The evidence at the preliminary inquiry and suggests that sometimes she was simply making up evidence as she went along only to backtrack later.
[29] Mr. Lipsett says that the records requested are relevant to the credibility and reliability of this witness. It is highly relevant to whether she is telling the truth and accurately recounting events in the words spoken to her by Mr. Lipsett.
[30] Mr. Lipsett relies on R. v. Tomlinson, [2008] O.J. No. 815, R. v. Tomlinson, 92008] O.J. No. 818, and R. v. Ball, 2018 ONSC 2055, [2018] O.J. No. 2203.
[31] The Crown argues that Mr. Lipsett has not met his onus to show that there is any case specific evidence or information that make Ms. Jawanda’s psychiatric records relevant to any issue in the litigation against Mr. Lipsett. More specifically, the Crown says that there is no evidence, direct or indirect, that as of August 2019, Ms. Jawanda was not taking her prescribed medication or was suffering from her mental illness such that she was not able to listen to, process, and retain what was said to her in the park in August 2019, and then to accurately relate it to the police in her statement, at the preliminary inquiry, or at the upcoming trial.
Analysis
[32] At paragraph 132 of O’Connor, L’Heureux-Dubé J. Set out four criteria that should be considered when the court entertains a request for production of private records:
Production should only be granted when it is shown that the accused cannot obtain the information sought by any other reasonably available and effective alternative means.
Production which infringes upon a right to privacy must be as limited as reasonably possible to fulfil the right to make full answer and defence.
Third, arguments urging production must rest upon permissible chains of reasoning, rather than upon discriminatory assumptions and stereotypes.
Finally, there must be a proportionality between the salutary effects of production on the accused's right to make full answer and defence as compared with the deleterious effects on the party whose private records are being produced.
[33] This Application must fail because Mr. Lipsett failed to meet criteria 3 and 4.
[34] Dealing first with proportionality, I agree that the issue with respect to Ms. Jawanda, is whether, at the time of the meeting in the park with Mr. Lipsett, she was able of listing to an absorb what was said, and whether she was able to accurately report what she saw and heard at the meeting in the park, either in her meeting with the police in September 2019, or at the preliminary inquiry on January 11, 12, and 13, 2021.
[35] On this basis, the request for production of Ms. Jawanda’s psychiatric records from 1 January 2012 (when Mr. Lipsett and Ms. Jawanda began the relationship) is overbroad, disproportional, and unsupportable. The relevant time frames with respect to the charges against Mr. Lipsett are August 2019 when she met with Mr. Lipsett in the park and he discussed events surrounding the murder, 19 September 2019 when Ms. Jawanda gave a statement to the police, and 11, 12, and 13 January 2021 when she gave her evidence at the preliminary inquiry.
[36] With respect to criteria three, the Application must also fail as the arguments Mr. Lipsett advanced urging production of Ms. Jawanda’s psychiatric records do not rest upon permissible chains of reasoning.
[37] Why do I say this?
[38] Implicit in Mr. Lipsett’s argument is the fact that Ms. Jawanda ‘s symptoms always operate to cloud her reasoning.
[39] There is no direct evidence about whether, at any of the key periods, Ms. Jawanda was not taking her medication, or whether she was having any difficulty with her symptoms such that she could not listen to and absorb what was said in the park, and accurately repeat it either to the police or at the preliminary inquiry. She was cross-examined extensively at the preliminary inquiry, yet she was never asked directly about whether at any of the material times, she was taking her medication, or was suffering from symptoms that impaired her ability to absorb retain and regurgitate what happened at the park.
[40] Mr. Lipsett urges me to conclude that Ms. Jawanda was impaired by her failure to take her medication or by her symptoms, based on inferences from other evidence. That evidence does not assist Mr. Lipsett.
[41] Ms. Jawanda was open about her mental health difficulties. She was clear that her symptoms were generally under control except when exacerbated by particularly stressful situations. The example she gave of a stressful situation that aggravated her symptoms significantly was working at Walmart and the pressures she was under while working there. There is no evidence to indicate that the stress that she felt when speaking with Mr. Lipsett, when speaking with the police, and that the preliminary inquiry was of the type to aggravate her symptoms such that her reasoning or her memory were affected. Indeed, the transcript from the police interview and the transcript from the preliminary inquiry, no doubt two very stressful situations, do not indicate that those events exacerbated Ms. Jawanda’s schizophrenia symptoms.
[42] Mr. Lipsett argues that the five events which involved the police also form a case specific evidentiary link to the effect of Ms. Jawanda’s mental health on her ability to give evidence.
[43] I disagree for the following reasons:
The 24 January 2015 incident appears to be a domestic incident unrelated to any psychiatric issue.
The remaining four events appear to be discrete events, not events on a continuum.
The remaining four events all relate to Ms. Jawanda not taking her medication or her medication becoming less effective. None speak to stressful situations that cause the symptoms reported.
None of the remaining four events are contemporary to the discussion with Mr. Lipsett in the park, the giving a statement to the police, or the preliminary inquiry. Three events predate all events and the most recent predates the discussion in the park by four months, The fourth and most recent occurs six months after the meeting in the park, five months after the police interview, and 11 months before the preliminary inquiry.
[44] Mr. Lipsett argued at the opening of his argument that Ms. Jawanda is not an accurate historian or a good witness because of her psychiatric problems. The whole of the evidence, however, does not indicate that Ms. Jawanda’s psychiatric condition affected her ability to absorb what was told to her in August 2019, and to accurately repeat what she was told in September 2019 and January 2021.
[45] It appears that at many times during the preliminary inquiry Ms. Jawanda was a poor historian. She reversed or changed her evidence several times. She appeared to have been easily confused. While these might lead a jury to conclude she was a poor witness, the evidence does not lead me to conclude that any issues she may have as a witness were because of her psychiatric condition. Therefore, the records sought are not likely relevant in that there is insufficient evidence to conclude that Ms. Jawanda’s ability to listen to and absorb what she was told on August 2019, and to accurately repeated to the police or the preliminary inquiry, wsase impaired by her psychiatric condition.
[46] I turn now to the cases that Mr. Lipsett relies upon.
[47] In the first decision in Tomlinson, Archibald J., heard step one of the applications to produce medical and psychiatric records of the witness. In that case, a masked gunman forced entry into an apartment and shot two people. The issue at trial was the identity of the assailants. A witness, AB, claimed to be able to identify both of the assailants because of his involvement in the planning of the robbery. The defence sought records relating to the medical and psychiatric history of AB.
[48] In that case, the shooting occurred on 21 January 2005. In determining that the medical records were “likely relevant”, the court considered that the witnesses and had been diagnosed two years earlier so suffer from bipolar disorder, that the witness’s mother lied, repeatedly, with respect to his mental health issues, that AB, himself, was a persistent liar likely because of his paranoid schizophrenia, that he was likely not taking his medication at the time of the shooting, and that the witness had been hearing voices and thought that somebody was coming to get him, all around the time of the shooting.
[49] With Ms. Jawanda, there is no such evidence contemporaneous with her speaking to Mr. Lipsett, giving her statement to police, or giving evidence at the preliminary inquiry.
[50] The second Tomlinson decision and the Ball decision are irrelevant as they deal with the second stage of the analysis.
Trimble J.
Released: October 19, 2021
COURT FILE NO: CR-21-696
DATE: 2021 10 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
RICHARD LIPSETT and DEAN SINCLAIR
Pre-Trial Application Ruling No. 1 – Third Party Records
Trimble J.
Released: October 19, 2021