Court File and Parties

COURT FILE NO.: CR-22-018

DATE: 20220913

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Brazier

BEFORE: Justice C. Boswell

COUNSEL: Indy Kandola and Susan Safar for the Crown Anthony G. Bryant and Stephanie Marcade for Mr. Brazier

HEARD: September 13, 2022

ENDORSEMENT #2 on THE CrowN’s O’connor Application

[1] Mr. Brazier is on trial in relation to drug trafficking and manslaughter charges. One of the Crown’s witnesses has addiction and mental health challenges. Her family physician has opined, by way of two letters sent to Crown counsel, that the witness is too fragile to testify and that compelling her to testify in Mr. Brazier’s trial may have a very serious impact on her health or, indeed, her life.

[2] The Crown has applied to adduce a transcript of the witness’s testimony taken at the preliminary hearing in this matter in late 2021, as a substitute for her oral testimony at trial. The application is opposed.

[3] In connection with the application, the Crown subpoenaed medical records from the witness’s family doctor, covering the period between the end of the preliminary hearing and the present. Those records were provided in two tranches. The first tranche was delivered on August 12, 2022; the second just yesterday.

[4] The parties are agreed that because the witness has a privacy interest in the records under subpoena, their disclosure to the Crown, and to defence counsel, is governed by the process established by the Supreme Court in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.

[5] The O’Connor procedure is well-known. It involves two stages. At the first stage, the court considers whether the party seeking the records in issue has established that they contain content likely relevant to a live issue in the proceedings, including the competence of a witness to testify. If the initial threshold test is met, the court will review the records to determine what, if any, information from them should be disclosed to the parties.

[6] I briefly addressed some of the additional principles governing O’Connor applications in my endorsement released yesterday as 2022 ONSC 5172. I will not repeat them here.

[7] The parties made submissions on stages one and two of the O’Connor procedure yesterday in relation to the first tranche of the witness’s medical records. I subsequently released a brief endorsement which attached redacted copies of the records.

[8] They parties made further brief submissions on stages one and two of O’Connor this morning in relation to the second tranche of medical records, which were received only yesterday morning.

[9] I am satisfied, as I was in relation to the first tranche of records, that the records in issue easily meet the initial O’Connor threshold. The witness’s psychiatric health and well-being are squarely in issue in relation to the Crown’s application to substitute a transcript of her preliminary hearing for her oral testimony at trial. The records are expected to contain information about her psychiatric health.

[10] In the result, I reviewed the records. In doing so, I carefully considered the submissions of counsel, David Butt, who has acted as amicus curaie in the course of the Crown’s records application. I provided the background to his appointment as amicus in the endorsement I released yesterday and, again, I will not repeat that here.

[11] The second tranche of records consists of 13 pages. These records concern an admission of the witness to the North Bay Regional Health Centre on August 5, 2022. She had both a psychiatric and physical examination during the course of that admission.

[12] I share the view of amicus that the information surrounding the psychiatric assessment is relevant and ought to be disclosed. I would redact marginally more of that information than amicus suggested. I similarly share the view of amicus that the information relating to the physical examination of the witness is not relevant and I would redact almost all of it. I would disclose marginally more than amicus suggested.

[13] I have additionally redacted any information relating to the witness’s address, telephone number and health card number.

[14] Defence counsel asked that I disclose enough of the witness’s phone number to enable counsel to determine if the witness has a different number than that otherwise disclosed to the defence in other records. Her phone communications on the occasions in issue in this trial are of some interest. I have disclosed, on the first page of the records, the last two digits of the witness’s phone number for that limited, relevant purpose.

[15] The information disclosed by the redacted records is all relevant, in my view, to the witness’s ability to testify in this proceeding. Though she undoubtedly retains a privacy interest in the records, I am of the view that they should be disclosed to counsel, in redacted form, for reasons which include the following:

(a) The relevant portions of the records are significantly probative of the current state of the witness’s mental health;

(b) The witness has put her mental health in issue in these proceedings; and,

(c) The release of the relevant portions of the records, in the prevailing circumstances, will not significantly compromise the witness’s dignity, privacy or personal security interests.

[16] In the result, the relevant portions of the second tranche of medical records are disclosed to counsel in electronic format as an attachment to this endorsement.

C. Boswell J.

Date: September 13, 2022