COURT FILE NO.: CR-22-018

DATE: 20220922

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

David Butt as Amicus Curiae

HEARD: September 21, 2022

ENDORSEMENT on O’CONNOR APpLICATION

(Waypoint revisited)

Introduction

[1] James Glover and Michelle McTamney met while they were both inpatients in a drug treatment program in early 2020 at the Waypoint Centre for Mental Health in Penetanguishene. They struck up a friendship. Both were released from Waypoint before the end of the program, as a result of the impact of the COVID-19 pandemic. Their release date was March 23, 2020.

[2] At some point during the day on March 23, 2020, Mr. Glover acquired some illicit drugs, including fentanyl and cocaine. He ingested the drugs and, tragically, died.

[3] The Crown asserts that Mr. Brazier sold cocaine and fentanyl to Mr. Glover and, further, that it was the drugs that Mr. Brazier sold that killed Mr. Glover. Mr. Brazier is charged with drug trafficking and manslaughter.

[4] Ms. McTamney spent the day with Mr. Glover after their release from Waypoint on March 23, 2020. She may have been present with him when he purchased drugs and she may have witnessed him ingest them. She apparently was not present at the time of his death. She left him at roughly 6:30 p.m. in his bedroom at his parents’ home in Wasaga Beach. He died sometime thereafter. Nevertheless, the importance of Ms. McTamney as a witness in the case for the Crown is obvious.

[5] Mr. Brazier’s trial was to commence on September 12, 2022. A number of weeks prior to the commencement of the trial, however, Ms. McTamney’s family doctor – Dr. Adlul – wrote a letter to Crown counsel indicating that Ms. McTamney is not medically stable enough to testify in any trial that involves any form of trauma. He said that her participation as a witness at the preliminary hearing in this case left her mentally ill and that it had undone months of therapy and treatment she had undertaken. Dr. Adlul highly recommended that she not be put through another event like the preliminary hearing.

[6] In the face of Dr. Adlul’s letter, the Crown commenced an application – initially returnable September 12, 2022 – seeking an order under s. 715 of the Criminal Code permitting the filing of a transcript of Ms. McTamney’s testimony at the preliminary hearing as a substitute for her testimony at trial.

[7] The central issue on the s. 715 application is whether the Crown can establish that Ms. McTamney is so ill that she is unable to testify.

[8] To shore up the evidentiary record in support of its application, the Crown brought an application for production of Dr. Adlul’s clinical notes and records relating to Ms. McTamney from and after the beginning of December 2021. The preliminary hearing was conducted in December 2021 and it is Dr. Adlul’s position that Ms. McTamney’s participation as a witness in that process triggered a precipitous decline in her mental well-being.

[9] I have made a number of rulings with respect to the Crown’s records application, the upshot of which is that Crown and defence counsel have been provided with redacted copies of Dr. Adlul’s clinical notes and records for the defined period. They have also had the opportunity to examine and cross-examination Dr. Adlul in relation to the Crown’s s. 715 application.

[10] Defence counsel now apply for an order that Waypoint’s clinical notes and records in relation to Ms. McTamney be produced to counsel in relation to the Crown’s s. 715 application. The defence application is opposed by the Crown.

[11] Understanding the defence application requires some additional context.

The Initial O’Connor Application for Waypoint Records

[12] On June 24, 2022 I heard a defence application for, amongst other things, production of records from Waypoint relating to Ms. McTamney’s mental health, diagnosis and treatment of any substance abuse disorder or other mental illness, including any records of day passes or similar unsupervised activities. Applications of that nature – for production of records from third parties – are conventionally referred to as “O’Connor applications”, taking their name from the Supreme Court’s decision in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, where the process governing such applications was established.

[13] An O’Connor application proceeds in two stages. At the first stage, the applicant must establish that the records sought are likely relevant to an issue at trial, such as the credibility or reliability of a witness. If the likely relevance threshold is met, the applications judge will review the records with a view to determining whether they should be produced to the applicant in whole or in part. In making that determination, the applications judge must weigh the salutary and deleterious effects of a production order. Where the applicant is the accused, the court must determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence. See World Bank Group v. Wallace, 2016 SCC 15, at para. 113.

[14] On June 27, 2022, I ruled that Mr. Brazier had not satisfied the likely relevance threshold with respect to his request for production of Waypoint’s records with respect to Ms. McTamney. My ruling is reported as 2022 ONSC 3807.

The Testimony of Dr. Adlul

[15] Dr. Adlul has testified in the course of the voir dire held in relation to the Crown’s s. 715 application. At the time of writing this ruling, Dr. Adlul’s testimony is not yet complete. He is at the tail end of defence counsel’s cross-examination and I expect there will be some re-examination to follow.

[16] I am nevertheless able to set out Dr. Adlul’s opinion in relation to Ms. McTamney’s health and well-being with some confidence.

[17] Dr. Adlul has been Ms. McTamney’s family physician since March 2019. She came to him after her previous family physician retired. He testified that he sees her every one to three months to discuss her mental health and other physical conditions. He has, in the past 3 ½ years, seen her through good times and bad times.

[18] In his first meeting with Ms. McTamney, Dr. Adlul spoke to her about her history. He did not, at that time, have access to any of her previous medical records but he subsequently obtained those records and he said the content of those records partly serve to inform his opinions about Ms. McTamney’s current state of health.

[19] Dr. Adlul said Ms. McTamney has a complicated life. She has strained relationships with her parents and sister. She left home at the age of 16 because she was being abused by her father. She has struggled with substance abuse issues and mental health challenges including PTSD and bipolar disorder. She had ongoing issues, he said, when she arrived at his office. And other issues have arisen throughout his care of her.

[20] Ms. McTamney, he said, was working as a receptionist in 2019. By early 2020, however, she was struggling and she signed herself into Waypoint. She did so without consultation with Dr. Adlul. After her discharge from Waypoint in March 2020 she was not completely stable, so she followed up with Dr. Adlul.

[21] According to Dr. Adlul, Ms. McTamney’s condition stabilized over the year or so following her release from Waypoint. She was compliant with her medications, she was doing mindfulness, yoga and other exercises, and she had been substance-free for a long time.

[22] In July 2021, Ms. McTamney was served with a subpoena to testify at the preliminary hearing in this matter. Dr. Adlul said that he observed the care given to her prior to that time starting to unravel. She was experiencing low mood, more panic attacks, less energy and more PTSD symptoms. She started to use alcohol again.

[23] Following the preliminary hearing, Ms. McTamney became “undone”, in Dr. Adlul’s view. She began binge drinking. She got into altercations with her romantic partner and family. She stopped taking her medications. She was visiting the hospital emergency room frequently and on two occasions she was admitted for involuntary psychiatric assessment, commonly referred to as “being formed” under the provisions of the Mental Health Act. She began to have symptoms of psychosis and manic episodes, the likes of which he had not previously seen with her.

[24] Essentially, Dr. Adlul compared Ms. McTamney’s well-being before the preliminary hearing with her well-being after the preliminary hearing and concluded that her participation in the preliminary hearing had triggered a precipitous fall-off in her mental health. Before the preliminary hearing she was relatively stable. Following the preliminary hearing, he witnessed more symptoms of bipolar illness, PTSD and major depressive disorder, suicidal ideation, violent outbursts against others, substance abuse, non-compliance with prescribed medications, and general difficulty coping with life stressors.

[25] Dr. Adlul said he wrote the Crown out of a huge concern for Ms. McTamney’s safety. She posed, he said, a risk to her own life.

[26] Dr. Adlul’s testimony is not the only evidence relied on by the Crown with respect to the s. 715 application. Crown counsel have also filed some limited hospital records as well as multiple police occurrence reports documenting the numerous occasions Ms. McTamney has been involved in police-related incidents since the preliminary hearing in December 2021.

[27] In relation to her self-admission to Waypoint, Dr. Adlul said, in cross-examination, that he was pleased that she had the self-awareness to do that. She has a history of substance abuse disorder. Waypoint, however, offers more than substance abuse treatment. Often substance abuse and other mental health conditions go hand-in-hand. It can sometimes be difficult to tease them apart. Waypoint also offers treatment for those conditions.

[28] Dr. Adlul said he met with Ms. McTamney about a month before she admitted herself to Waypoint. At that point, she was stable enough to function properly in her life, to keep a job and not be erratic in terms of symptomatology. He first saw her, post-Waypoint, on March 30, 2020. She did not, at that time, mention Mr. Glover’s death. It appears the March 30, 2020 appointment was intended as a follow up to Waypoint and to make a treatment plan going forward. As I mentioned, Dr. Adlul testified that Ms. McTamney was not entirely stable when she was released from Waypoint.

The Positions of the Parties

[29] Mr. Bryant asks the court to re-assess the likely relevance of Ms. McTamney’s Waypoint records in light of the Crown’s s. 715 application, which was not in play when the defence O’Connor application was first brought in June 2022.

[30] From the defence point of view, Ms. McTamney has put her mental health in issue by indicating, directly and through her family physician, that she is too ill to testify at the trial. Indeed, the central issue on the Crown’s s. 715 application is whether Ms. McTamney is too mentally ill to do so.

[31] The most probative evidence on the s. 715 application has come from Dr. Adlul. He has offered in evidence a classic “before and after” comparison, providing a picture of Ms. McTamney’s mental health before the preliminary hearing and contrasting it with a picture of her mental health after the preliminary hearing.

[32] The defence position is that it is likely relevant, given Dr. Adlul’s description of the care and treatment provided by Waypoint, that there will be information in their records relevant to Ms. McTamney’s mental health and well-being in the period immediately prior to March 23, 2020. These records are, in the result, likely relevant to the “before” picture presented by Dr. Adlul.

[33] The Crown’s position is that the defence has failed to establish that there is likely to be information in Waypoint’s records that is relevant to its s. 715 application.

[34] In the Crown’s submission, the s. 715 application has a very narrow focus. The question is whether Ms. McTamney is presently too ill to testify.[^1] Dr. Adlul’s references to Ms. McTamney’s pre-December 2021 health were only mentioned as context to his overview of her present state of health. They are otherwise not relevant to that present state.

The Involvement and Position of Amicus Curaie

[35] When the defence O’Connor application was initially heard in June 2022, Ms. McTamney (and other individuals whose private records were sought) were represented by their own counsel, Mr. David Butt.

[36] Subsequently, when the Crown applied for production of Dr. Adlul’s clinical notes and records in relation to Ms. McTamney, Mr. Butt continued to represent Ms. McTamney’s interests on that application. Unfortunately, during a phone call with Mr. Butt prior to the hearing of that application, Ms. McTamney expressed suicidal ideation. Mr. Butt was sufficiently alarmed that he formed the view that he had no choice but to report that aspect of their conversation to the authorities. Ms. McTamney ended up being apprehended and conveyed to the hospital for a psychiatric evaluation. In the result, Mr. Butt fell out of favour and she discharged his services.

[37] Ms. McTamney has otherwise demonstrated a lack of interest in participating in the proceedings. After some discussion, I appointed Mr. Butt as amicus curiae to assist the court with the Crown’s records application in an effort to ensure that the court addressed any issues that might be relevant to her privacy interests in those records.

[38] When the defence re-initiated their request for access to the Waypoint records, I extended Mr. Butt’s appointment as amicus curiae to this application as well. The question of whether Ms. McTamney should be notified that the application for production of her Waypoint records was back before the court was addressed in argument. Following a discussion with counsel I determined that it was best that Ms. McTamney not be notified for the following inter-connected reasons:

(i) Trial efficiency. The trial of this matter was to have commenced September 12, 2022 and run for two weeks. Now, almost two weeks into it, we remain bogged down by unanticipated pre-trial motions. We can ill-afford any further delays;

(ii) Ms. McTamney has unequivocally demonstrated an intention to not participate in these proceedings, including the trial and any pre-trial records applications; and,

(iii) Based on Dr. Adlul’s evidence, there is a strong probability, in my view, that notifying Ms. McTamney of this further records application will act as a trigger to her, intensifying the mental health challenges she is presently dealing with. As Mr. Butt argued, such notice may actually infringe her right, under s. 7 of the Charter, to security of the person, which includes an aspect of wellness.

[39] In response to the application, Mr. Butt reminded the court of Justice Doherty’s instruction on the requirements of the likely relevance standard in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 (C.A.). Specifically, reliance on speculative assertions or stereotypical assumptions is not sufficient. Moreover, the mere assertion that a record is relevant to the issue of credibility is not enough. Instead:

An accused must point to some ‘case specific evidence or information’ to justify the assertion…[A]n accused must be able to point to something in the record adduced on the motion that suggests that the records contain information that is not already available to the defence or has potential impeachment value. (Para. 75).

[40] There must, Mr. Butt argued, be case-specific evidence about how the records in issue might be used to impeach Dr. Adlul’s evidence that Ms. McTamney is presently too ill to testify at trial. It is not sufficient to say that there might be something in those records that will contradict Dr. Adlul. To say, effectively, we don’t know what is in the records, but it is worth taking a look amounts to nothing more than a bare assertion.

Discussion

[41] I am alive to the fact that defence counsel are in a very difficult position, compelled to argue about the likely relevance of documents that they have not yet seen. For that reason, the jurisprudence is clear that the first stage threshold of an O’Connor application is not an onerous one. Mr. Brazier is not required to demonstrate specifically what use he might make of the Waypoint records at this preliminary stage. He need only demonstrate that there is a reasonable possibility that the records are logically probative of Ms. McTamney’s ability to testify. See R. v. McNeil, 2009 SCC 3.

[42] The first stage of the O’Connor procedure is meant to weed out requests for records that are unlikely to be relevant.

[43] In this case, there is a superficial appeal to the defence argument. Ms. McTamney’s mental health is the central issue on the Crown’s s. 715 application. The Waypoint records are highly likely to include information relevant to Ms. McTamney’s mental health. Dr. Adlul – the Crown’s principal witness on the s. 715 application – did present his evidence in a “before and after” format.

[44] It is easy to theorize, in those circumstances, that the Waypoint records will likely include information relevant to the “before” picture of Ms. McTamney’s mental health. “Before” of course refers to the period of time before the preliminary hearing, or perhaps even before the service upon Ms. McTamney of a subpoena to attend the preliminary hearing.

[45] It is important, however, to focus on how and why the period before the preliminary hearing is relevant at all to Dr. Adlul’s evidence or more generally to the assessment of Ms. McTamney’s present state of health.

[46] The central issue on the s. 715 application is, as I said, whether Ms. McTamney is presently too ill to testify at the trial. The state of her mental health in February and March 2020 is of no moment to that inquiry. It is her present state of health – measured at the time her testimony is required as part of the trial – that is relevant. And the Waypoint records are not, in my view, likely relevant to her present state of health.

[47] Dr. Vivien Parker is a staff psychiatrist at the North Bay Regional Health Centre. She assessed Ms. McTamney in early August 2022 when she was admitted to the hospital on a Form 1 under the Mental Health Act. She testified – as did Dr. Adlul – that a person’s mental health status can change quickly. They can be in crisis one day and not the next. Mental health can improve over time or deteriorate over time.

[48] The Waypoint records will undoubtedly contain relevant information about the status of Ms. McTamney’s mental health at the time she was an in-patient there. That information will not, however, inform her current mental health status. It is simply too remote.

[49] Given the focus on Ms. McTamney’s present state of health, one might ask: is there any way in which evidence of her health prior to the preliminary hearing is relevant? The answer is yes – for the very reason that Dr. Adlul offered. Specifically, as circumstantial evidence from which an inference might be drawn that it was her attendance at the preliminary hearing – and not some other factor – that triggered the marked decline in Ms. McTamney’s health after December 2021.

[50] A conclusion that Ms. McTamney was triggered by her appearance at the preliminary hearing, may support a further conclusion that she is likely to be further triggered by an appearance at trial.

[51] In my view, the Waypoint records are not likely relevant to an assessment of whether it was the preliminary hearing that triggered Ms. McTamney. Again, they are too remote.

[52] Dr. Adlul testified that Ms. McTamney was still somewhat unstable after she was released from Waypoint. He put in place a plan of treatment that, he said, led to a prolonged period of stability. Nothing in the Waypoint records will be capable of impeaching that evidence, given that those records end at March 23, 2020. Nothing in those records is capable of demonstrating that she did not have such a lengthy period of stability. And nothing in those records is capable of supporting an assertion that the preliminary hearing did not trigger the observed decline in Ms. McTamney’s mental health following its conclusion.

[53] There may well be information in the Waypoint records that supports a conclusion that there are other potential triggers to Ms. McTamney’s mental health crises. There may well be many such triggers. But the fact that other things may also trigger Ms. McTamney, does nothing to undermine the assertion that attending this trial will trigger her.

[54] In the result, I find that the threshold requirement of likely relevance has not been established and the application will end here, at stage one.

C. Boswell J.

Date: September 22, 2022

[^1]: The Crown’s application is actually two-pronged. It is an application to introduce Ms. McTamney’s preliminary hearing testimony as substantive evidence at Mr. Brazier’s trial under s. 715 of the Criminal Code. Alternatively, should the court conclude that the pre-requisites of s. 715 are not met, the Crown seeks to tender her preliminary hearing testimony as substantive evidence at trial under the principled exception to the hearsay rule. Under the principled exception, the Crown must establish that Ms. McTamney’s preliminary hearing testimony is both necessary and reliable evidence. The basis of the Crown’s assertion on the necessity branch of the test is that Ms. McTamney is too ill to testify. In other words, the central live issue, whether the application proceeds under s. 715 of the Code or under the principled exception to the hearsay rule, is whether Ms. McTamney is too ill to testify at trial.