COURT FILE NO.: 8540/22
DATE: 2022-07-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
W.S.
Chloe Boubalos, Counsel for the Applicant
Applicant
- and -
HER MAJESTY THE QUEEN
Karen Pritchard, Counsel for the Respondent
Respondent
HEARD: April 6, 2022
RASAIAH J.
REASONS ON APPLICATION
overview
[1] An application was brought on behalf of the applicant, W.S., for directions. The applicant seeks an order directing that requested materials, specifically investigative records and notes prepared by Nogdawindamin Family and Community Services and the Children’s Aid Society, are excluded from the regime under s. 278.1 of the Criminal Code and such further and other relief as counsel may advise and the Court may permit, on the basis of the Court’s inherent jurisdiction.
[2] The application sets out the following as the grounds for the application:
On May 19, 2021, the applicant was charged with two counts of sexual assault and two counts of sexual interference in relation to allegations made by his two nieces, G.M. and K.M. G.M. alleges that she would attend the Applicant’s residence for sleepovers with her cousins from March 2018 to March 2021 when she was between the ages of 8 and 10. On one occasion during this time period, G.M. alleges that the applicant rubbed her breast and crotch area with his hands. On another occasion, G.M. alleges that the applicant rubbed her vagina with his hand while she was in the shower. K.M. alleges that the Applicant touched her on numerous occasions from January 2018 to December 2019 when she was between the ages of 10 and 11. K.M. alleges that the applicant touched her in the chest and vaginal area while underneath a blanket watching a movie, while on a family trip at Carpenter Lake Lodge, and while laying in bed with the applicant and G.M.
The applicant seeks disclosure of materials prepared by Nogdawindamin Family and Community Services (“Nogdawindamin”) and the Children’s Aid Society (“CAS”) on the basis that they are excluded from s. 278.1 because they are records made by persons responsible for the investigation or prosecution of the underlying offences. The applicant states he requires this disclosure prior to making an election as to his forum for trial.
The applicant states that disclosure will reflect the involvement of Nogdawindamin and CAS as partners in the investigation of the underlying offences, as follows.
The underlying allegations were first reported to the police by Nogdawindamin on May 12, 2021. Nogdawindamin reported an allegation of sexual assault that occurred in Echo Bay and St. Joseph Island. Nogdawindamin contacted CAS about the allegations given the Applicant’s two young daughters. This led to the applicant’s arrest on May 19, 2021.
On May 20, 2021, the police updated Nogdawindamin about the applicant’s arrest and related charges. Nogdawindamin requested a copy of the complainant’s statements and was advised that a summary would be provided by the investigating officer. Also on May 20, 2021, the police contacted CAS. CAS advised the police that they were aware of the Nogdawindamin investigation.
On May 23, 2021, the police contacted Nogdawindamin to provide further updates regarding the progress of the investigation. On June 10, 2021, Nogdawindamin provided a statement to police regarding the underlying allegations of sexual abuse.
Section 278.1 of the Criminal Code defines a record as any form of record that contains personal information for which there is a reasonable expectation of privacy and includes therapeutic, counselling, and child welfare records. It excludes records made by persons responsible for the investigation or prosecution of the offence. Only records that meet the definition under s. 278.1 are subject to an application under s. 278.3 to be made before the trial judge.
Nogdawindamin and CAS records are excluded from the s. 278.1 regime as the agencies were responsible for the investigation of the underlying offences. Nogdawindamin and CAS cooperated in the police investigation. They gathered information with a view to laying the underlying charges, received updates, and shared evidence as partners with the police in their investigation.
The respondent Crown has taken the position that the disclosure is caught by s. 278.1 and that the applicant must make an s. 278.3 application to receive it. The Respondent’s position would require the applicant to make his election about mode of trial without the requested disclosure, as a s. 278.3 application can only be made before the trial judge.
The applicant seeks direction from this court as to the application of s. 278.1 given the joint investigation of Nogdawindamin, CAS, and the police into the underlying allegations.
[3] The parties to the application rely on the records filed, factums, books of authorities filed, and submissions which I have reviewed.
[4] The matter is currently before the Ontario Court of Justice. An election has not been made.
[5] There is no contest that the records are enumerated in s. 278.1.
[6] There is no contest on jurisdiction of the court to hear this matter.
[7] There is no contest that the records will contain personal information about the complainants attracting privacy interests.
[8] The applicant frames this application as relating to a discreet issue, essentially whether the two said agencies were secondary state agents in the investigation (either by exercising a dual role and/or partnership with the police agency in question) and if so, whether their records are excluded from s. 278.1 of the Code and exempt, making them presumptively relevant and disclosable.
[9] The Crown seeks an order affirming that the requested records are “records” as enumerated under s. 278.1 and that disclosure of same is governed by the procedures set out in ss. 278.2 to 278.95 of the Code.
SUMMARY OF FACTS
[10] In May 2021, CAS advised Nogdawindamin of a report of sexual assault. By May 12, 2021, Nogdawindamin worker P.T. called PC Posteraro at the Sault Ste. Marie Ontario Provincial Police to file a report of sexual assault. P.T. reported that a 12-year-old girl was sexually assaulted by her uncle in Richard’s Landing, East Algoma. The complaint was forwarded to East Algoma Ontario Provincial Police as the allegations took place in their jurisdiction. PC Cameron of the East Algoma Ontario Provincial Police went on to have discussions with P.T. about the allegations, and the process of the investigation from May 12 to 23, 2021.
[11] PC Cameron was not the only officer in contact with child protection agencies throughout the investigation. PC Brisson and Sergeant Ney, were also involved as follows.
[12] On May 12, 2021, PC Cameron telephoned P.T., a worker with Nogdawindamin, to obtain initial details about the sexual assault, which included that:
(a) P.T. received a phone call from C.V., the complainant’s aunt and guardian;
(b) C.V.’s niece disclosed to her twin brother that she was sexually abused;
(c) The sexual abuse related to touching of the complainants’ breasts and vagina under their clothes;
(d) The twin brother told a different family member about the sexual abuse, and family members then told C.V.; and
(e) P.T. told CAS about the allegations. CAS advised they were waiting for Nogdawindamin to complete their initial investigation.
[13] PC Cameron and P.T. discussed the investigation again later that day to clarify the location of the alleged sexual abuse. P.T. advised that the location was at Carpenter Lake, and PC Cameron confirmed that both locations would be within East Algoma OPP’s jurisdiction. P.T. also updated PC Cameron about the complainants’ guardians’ availability for their interviews. The complainants’ statements were organized and set up for May 17, 2021 with P.T.’s help as the intermediary.
[14] The complainants provided statements to police on May 17, 2021, and the Applicant was arrested on May 19, 2021. PC Cameron provided further updates to P.T. about each.
[15] P.T. requested a copy of the complainants’ statement however she was provided only with a verbal synopsis.
[16] PC Cameron updated P.T. about W.S.’s arrest and his bail conditions.
[17] While PC Cameron updated Nogdawindamin about the applicant’s arrest, PC Brisson was responsible for updating CAS. His notes detail further contact with CAS before and after the applicant’s arrest. Prior to arresting the applicant on May 19, 2021, PC Brisson telephoned social worker J.P. at CAS. J.P. conveyed CAS’ awareness of the Nogdawindamin investigation and informed PC Brisson that a CAS worker had been assigned. After the applicant’s arrest, PC Brisson telephoned J.P. again to update her.
[18] On May 20, 2021, Sergeant Ney provided a further update to P.T. about the applicant’s arrest and related charges. Again, P.T. requested a copy of the complainants’ statement, and she was provided with an oral summary only.
[19] After the applicant’s arrest, discussions between PC Cameron and P.T. continued. PC Cameron discussed obtaining a statement from P.T. given her knowledge of the allegations. By May 23, 2021, PC Cameron received further communication from P.T., who said she would provide a statement via email later.
[20] On June 10, 2021, P.T. provided a statement to police regarding the underlying allegations of sexual abuse. She reported that the underlying allegations originally came from CAS, and P.T. then reported the allegations to the police. P.T. recounted the details of the sexual abuse allegations. P.T.’s statement references a decision that the police would proceed with the child interviews that was reached on May 12, 2021.
[21] The respondent accepts the facts as set out in paragraph 9-13, 16-17 of the applicant’s factum with the caveat that the police force was the East Algoma Ontario Provincial Police, not the Algoma Police Service as recorded in the materials. It is East Algoma Ontario Provincial Police.
[22] With respect to paragraph 14 of the applicant’s factum, the respondent states on the night of, but prior to, the arrest of the applicant, PC Brisson reached out to the CAS on call worker and was advised that CAS was aware of the investigation and that, if the need arose, a worker would attend that night. Following the arrest of the applicant, PC Brisson updated CAS; CAS were not required to attend that night and did not.
[23] With respect to paragraph 15 of the applicant’s factum, the respondent states that Sgt. Ney’s notes and supplementary occurrence report do not indicate that an oral summary of the complainants’ statements were provided to P.T. Sgt. Ney declined to provide a copy of the statements to the child welfare worker.
ANALYSIS
[24] Section 278.1 of the Code outlines specific categories of protected information that can be presumed to be subject to a reasonable expectation of privacy.
[25] The subject records, child welfare records, are a category of records enumerated within s. 278.1 of the Code.
[26] Again, there is no contest that the records in question are child welfare records, that they are enumerated in s. 278.1, and that they are the types of records that engage privacy interests.
[27] The defence argues two pathways to the relief requested and seeks direction from the court. They argue that the records were made by persons responsible for the investigation or prosecution of the offence; namely, that CAS and Nogdawindamin were secondary state agents in the investigation (either by exercising a dual role or by partnering jointly with the police agency in question) and as such, their records are excluded from the s. 278.1 regime and exempt, making them presumptively relevant and disclosable; the regime is not engaged. The defence submits that court may accept one of or both pathways to the relief requested and that if the court did, this would lead to a finding that the records are excluded from the ambit of s. 278.1.
[28] The defence focussed on the specific steps and actions taken in this case by the child welfare agencies and the police as outlined above.
[29] Defence argues that the child welfare agencies went beyond their duties and had they not, this application would not have been brought.
[30] Defence has the burden of establishing that child welfare records despite being specifically enumerated are exempt from the regime on the basis they submit.
[31] I have reviewed the materials filed and the facts set out above. I find that the facts on which the defence purports to rely to establish their position fall short. They do not support that there was a joint investigation or partnership with police or that the agencies were agents for the police or that the agencies were exercising dual roles or acting in furtherance of a police investigation. I find that the agencies’ involvement does not meet the characterization of being persons responsible for the police investigation or prosecution of the offences.
[32] The mandates and roles of the agencies involved are important in the analysis with respect to the actions of the agencies.
[33] Police and child protection agencies are separate agencies with their separate tasks, mandates and powers.
[34] Children’s aid societies are designated agencies for any or all the functions set out by s. 35 of the Child, Youth and Family Services Act, S.O. 2017, c. 14, Sch. 1. (“CYFSA”) Section 35 of the CYFSA sets out the functions of a children’s aid society, which includes investigating allegations or evidence that children may be in need of protection.
[35] Accordingly, child protection agencies are charged with child welfare that will often run parallelly and naturally with criminal investigations of this nature and, they will exchange information.
[36] It is also important to note that sections 125 and 126 of the CYFSA set out continuing duties for all persons who perform professional or official duties with respect to children to report which includes peace officers, and child welfare agencies are required to assess and verify reports of children in need of protection. As such information is required to be exchanged with a children’s aid society and/or gathered by a children’s aid society.
[37] Sometimes agencies do partner by agreement with explicit written protocols. The defence referred to child protection agency protocols (meaning protocols regarding agencies from other jurisdictions not involved in the case) to support their argument. However, there was no such joint investigation or partnership by protocol in this case. This fact is very clear. Accordingly, there was no explicit joint investigation or partnership.
[38] I considered the information exchanged and steps taken by the various agencies as set out in the record.
[39] On this record, the initial report was made to the CAS by the guardian who received information from a third party who received information from one of the complainant’s brothers. Considering the provisions of the CYFSA, I agree that the passing of information by a children’s aid society, the agency mandated with child protection, to the police, the agency mandated with the investigation of criminal offences, cannot alone indicate joint investigation or partnership or translate to a dual role such that the child welfare records are inexorably linked to the police investigation as first party disclosure. Again, I agree by their very nature and the mandates and legislation, that the police and child welfare agencies will necessarily have parallel investigations, each with a focus on their own mandate. The sharing of the initial information received which alerts each agency that an investigation under their mandate may be required I agree does not dictate that the investigations are intertwined.
[40] The child welfare worker thereafter did communicate to police the location of the incident. This communication was for the purpose of correcting information initially provided by the worker which was communicated to assist in establishing which police force would be conducting the investigation. It was a correction to the initial report, they are mandated to make. There was nothing about this action that met the characterization of a joint investigation or partnership or exercise of a dual role.
[41] As for the worker arranging the time for the interview of the complainants to be conducted by the police, being a simple point of contact in my view does not render the participant as being part of a joint investigation or an agent of the police. There must be more.
[42] A verbal update by police was provided of the interviews being conducted and the information received, this is true. This provision of information accords with the police’s continuing obligation under s. 125 of the CYFSA. Of note is that police continued to limit the information that was shared; Police do not provide P.T. with a copy of the statements as requested and only provide a summary. This to me communicates by action, the delineation of separate roles/separate investigations and lines drawn, and are not reflective of a joint investigation/partnership or agent relationship. The actions reflect separate agencies meeting their own respective roles and obligations and sharing information as required.
[43] A verbal update by police provided on the arrest and bail status of the accused also accords with the police’s obligation under s. 125 of the CYFSA. Police were imparting information which would/could affect the well being and safety of a child/children who may be in need of protection. The record reflects that there were concerns regarding other children the accused may have had access to. This information is relevant information to disseminate pursuant to s. 125 of the CYFSA and specifically, it would be relevant to report or alert conditions the accused may be placed on following arrest and/or bail in relation to a child/children and any risks same may pose, or must be adhered to.
[44] P.T. being cooperative and providing a statement to police as to what she knows about the allegations again presents as a sharing of information per her mandate, not acting as an investigator for police or an agent for police. P.T. provided a statement as to her involvement in having the matter reach police. P.T. notes that OPP are the ones who are proceeding with the child interviews on this record. P.T. did not engage in decision-making about the way the investigation would proceed, or the form or the structure of the investigation or even participated in the interviews.
[45] The CAS’ involvement was very limited as set out herein and they did not engage in decision-making about the way the investigation would proceed, or the form or the structure of the investigation or even participated in the interviews.
[46] Even the child welfare agencies separate themselves from each other. CAS refers to Nogdawindamin’s investigation as Nogdawindamin’s investigation. Nogdawindamin took carriage of the child protection issues concerning the complainants. CAS was the initial contact. CAS appears to have been further updated during the investigation as a result of the accused having access to children apart from the complainants. Again, these actions fall within the mandate of child protection agencies and the CYFSA.
[47] All the contact and actions pointed to by defence alone or in combination are very limited and fall within mandates of the respective agencies and the obligations imposed by the CYFSA. I find that the child welfare agencies’ involvement is not of a character to be classified as unique or exercising of a dual role or a partnership with or agent for police in the investigation of the accused. Again, the record does not reflect that the agencies were involved in interviews or had firsthand information about the offence or contact with the complainants for the purpose of the police investigation or the charges. The child welfare agencies and police were complying with governing legislations, their mandates and obligations as required and conducing their own respective parallel investigations. As such, I do not find that the conduct/contact in this case taken alone or in combination by or between the agencies and the police was such to constitute a joint investigation or establish the exercise of a dual role to take these records out of the regime and a third-party records application would be required if the accused seeks to have those records.
[48] I agree with the Crown that defence’s comparison of the actions of a nurse in completing a sexual assault kit in a sexual assault case is distinguishable because of the specific purpose for which the kits are performed and the intended use of the information that the completion of the kit is gathered for. I agree the kit records are not analogous to child protection records. It cannot be said that the child welfare records subject to this application were created for the purpose of the police investigation or prosecution of the offence on the facts of this case as a kit is. The child welfare records were created in fulfillment of the agencies’ obligations, mandates and directing legislation, entirely separate investigative and child welfare obligations.
[49] The agencies in this case remained distinct on these facts.
[50] In respect to the alleged inability of the accused to make his election and/or full answer and defence, and the Crown’s comments that the extent of P.T.’s involvement and information is available to defence through the statement she provided to police and that the accused has been provided with disclosure that includes the statements of the complainants, it is for a trial judge hearing the s. 278.1 application to determine these issues and the third party records disclosure, if any. Having said same, it appears there is information available for purposes of considering election. This is not a unique situation with respect to child welfare records in regard to same.
[51] I am not persuaded that the case authorities filed by the defence support their position. I find that these are enumerated records within the definition of records as set out in the Code. The process is set out by the Code for such records. It is not for this court to go outside of the regime for the reasons stated herein based on any of the arguments presented by defence and my findings.
[52] Accordingly, I affirm that the child welfare records at issue are “records” as enumerated under s. 278.1 and that disclosure of same, if any, shall be governed by the procedures in s. 278.2 to s. 278.95 of the Code.
Rasaiah J.
Released: July 4, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
W.S.
– and –
HER MAJESTY THE QUEEN
REASONS on application
Rasaiah J.
Released: July 4, 2022