WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Family Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: FC-21-CP10
DATE: 2022/12/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Children's Aid Society of Ottawa, Applicant
AND
K.F., D.F., A.F., C.G., W.G., H.E.K.
Serpent River First Nation
Sheshegwaning First Nation
Ministry of the Attorney General Crown Law Office-Criminal (WAGG)
BEFORE: Shelston, J
COUNSEL: Ms. Judith Hupé, counsel for the Applicant Mr. Cedric Nahum, counsel for the Respondent mother Mr. Stephen Pender, counsel for the Respondent father Ms. Pamela Barron, counsel for the children Ms. Ion and Ms. Ma for the Attorney General
HEARD: December 5, 2022
WAGG MOTION ENDORSEMENT
[1] The Children’s Aid Society of Ottawa (“CASO”) seeks an order for the production of all records in control of the Ministry of the Attorney General Crown Law Office – Criminal (WAGG) (“AG”) regarding D.F. (date of birth omitted), including but not limited to:
a) production of the Crown Brief and its contents in its entirety as relating to D.F. including:
(i) the information setting out the charges currently before the Criminal Court;
(ii) any terms of release/recognizance of bail terms in relation to the charges; and
(iii) any other information related to the criminal charges; and,
(iv) any video recordings of statements or interviews of the child, witnesses or the accused; and
b) an order for production of any and all disclosure by the Crown to the Defence within the context of the criminal proceedings against the respondent stemming from the material facts in the criminal charges.
[2] The AG opposes the motion. The respondent mother, respondent father and counsel for the children support the motion.
Background
[3] The family consists of the mother, K F., the father, D.F., and three children namely M.F., 7 years of age, K.F., 6 years of age and H.F., 5 years of age.
[4] K.F. is a member of the Serpent River First Nation while D.F. and children are members of the Sheshegwaning First Nation.
[5] W.G. and C.G. were caregivers as a family plan for the children from October 20, 2020 to December 22, 2020.
[6] H.K. is the paternal grandmother who has been caring for K.F., and H.F., pursuant to a temporary supervision order granted in March 2021.
[7] M.F. is in the care of CASO under a temporary order since March 2021 for a total of 637 days as of December 9, 2022.
[8] CASO seeks an order placing K.F. and H.F., in the custody of their paternal grandmother, pursuant to section 102 of the Child, Youth and Family Services Act (“CYFSA”), granting her decision-making responsibility and an order placing the child M. F. in the extended society care. The parents oppose the application and wish to have the children returned to their care. The trial is scheduled to commence on February 6, 2023.
[9] CASO’s current child protection concerns relate to the parents which include adult conflict, exposing the children to criminal charges, the mother’s mental health challenges, the mother has demonstrated inconsistent behavior when working with CASO by engaging in adult conflict in front of workers and the children; the father’s addiction issue and alcohol misuse and sexual abuse allegations against the father with respect to M.F.
Grounds for the motion
[10] CASO is aware that there are several pending criminal charges in relation to sexual abuse allegations made by M.F. against her father. The child was interviewed by the police on December 28, 2021, and a video statement was recorded which resulted in the criminal charges. On September 14, 2022, the D.F. was charged with:
a) Three counts of sexual assault, contrary to section 271 of the Criminal Code;
b) Three counts of sexual interference with a person under 16 years of age, contrary to section 151 of the Criminal Code; and
c) One count of invitation to sexual touching, contrary to section 152 of the Criminal Code.
[11] On October 26, 2022, this court granted an order for the production of all records in the possession and control of the Ottawa Police Services (“OPS”), including all notes, reports, diagrams, photographs, videotapes, and statements, in relation to the police contact with D.F., K.F., and M.F., to counsel for CASO. The court further ordered that where the records relate to an investigation is ongoing and charges are pending before a criminal court, full production of those records would only be produced with the consent of the Attorney General., Crown’s Office –Criminal (WAGG Unit) and the motion for production of these records was adjourned sine die, with the right to bring the matter back on reasonable notice to AG, for a determination on further production.
[12] Following receipt of the order, CASO was informed that the AG was not prepared at this time to release the information found in its records, given the seriousness of the charges pending against D.F., until the criminal trial has been completed. The criminal matter was proceeding to a pretrial hearing on December 21, 2022. No trial date has been set. The criminal proceedings and requested records are subject to a publication ban pursuant to section 486.4 of the Criminal Code.
[13] By letter dated November 10, 2022, a clerk in the WAGG Unit of the Crown Law office advised counsel for CASO that the AG has declined to consent to an order sharing the complete Crown Brief as it could jeopardize the ongoing prosecution of D.F. and given the important safety concerns raised in the child protection hearing, the AG consented to producing the Crown Synopsis with necessary redactions.
Position of CASO
[14] CASO submits that all records pertaining to the investigation, including the video, statements are relevant to the case before the court, in determining if the children are in need of protection and whether the children can safely be returned to the care of their parents. Furthermore, CASO submits that given the children’s young age, they are not likely to testify in the child protection proceedings and any statements obtained and recorded are relevant to this court in determining the outcome of the case. CASO further submits that the father’s criminal records are relevant to these proceedings, as he is currently seeking an order returning the children to the care of the parents. In order to assess this plan, CASO, and ultimately the court, must be given an opportunity to review the father’s criminal record in order to gain a better understanding of his ability to care for the three children and to assess the level of risk to the children in D.F.’s care and at home.
Position of the AG
[15] The AG submits that the Crown Brief contains general categories of documents, which the Crown typically objects to producing on WAGG motions prior to the conclusion of the trial being:
a) witness statements including a video statement of the complaint;
b) police notes, will says of police officers, occurrence reports, investigative actions of police officers;
c) audio visual evidence including video statements of the father and complaint; and
d) criminal records if any.
[16] The AG. opposes the production of the complete Crown Brief on the basis that CASO has not met the test under Rule 19 (11) of the Family Law Rules, and that the prosecution of D.F. is ongoing, and production of the complete Crown Brief will prejudice the ongoing prosecution.
[17] Secondly, the AG submits that the release of such records, other than full answer and defense in a criminal proceeding, can be prejudicial to the proper administration of criminal justice and therefore, the balance of the public interest weighs against production.
[18] Thirdly, in addition to the public interest submission, the AG argues that there are documents in the Crown Brief that, if provided to individuals who will be testifying in the criminal prosecution, could give rise to concerns about witness taint or the appearance of witness taint, which would impact on the accused fair trial rights and impede the criminal prosecution. In furtherance of that submission, the Crown submits that, should any of the witnesses and the criminal proceeding learn about any evidence, including another witness’s statement, it would expose their evidence to a challenge that is not in fact the product of the witnesses own independent recollections and knowledge of the events at issue. The documents that concern the AG about witness taint include the video statement made by M.F., during the joint CASO/OPS investigation and witness statements of other parties involved in the case.
[19] Consequently, to ensure the continued preservation of the integrity of the ongoing criminal prosecution, the AG opposes the release of all documents from the Crown Brief except the redacted synopsis. The AG seeks the dismissal of the motion and in the alternative, that it be adjourned sine die to be returned on a mutually agreeable date after the conclusion of the criminal prosecution.
Legislative and jurisprudential framework
[20] Subsections 130 (3) and (4) of the Child, Youth and Family Services Act, R. S. O. 2017, c.14, Schedule 1 (“CYFSA”) stipulate:
(3) Where the court is satisfied that a record or part of a record(…) contains information that may be relevant to a proceeding under this Part and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produced it or a specified part of it for inspection and copying by the Director, by the society or by the court.
(4) Where the court is satisfied that a record or part of a record (…) may be relevant to assessing compliance with one of the following and that the person in possession or control of the record has refused to permit a Director or the society to inspect it, the court may order that the person in possession or control of the record produced it or a specified part of it for inspection and copying by the Director, by the society or by the court.
[21] Rule 19 (11) of the Family Law Rules, Ont. Reg. 114/99, stipulates:
19 (11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and where it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
b) order that a copy be prepared and used for all purposes of the case instead of the original.
[22] In Children’s Aid Society of Algoma v. T.P., 2019 ONCJ 578, the court indicated that the authority under section 130(3) of the CYFSA is discretionary and the court should consider whether there are competing public policy interest or privacy interest that militate against the disclosure of the material being sought.
[23] In Children’s Aid Society of Algoma v. Lesa H. et al., 1996 CanLII 7942, where the father was scheduled to proceed to criminal trial on allegations of abuse three months after the commencement of a child protection trial which turned on the same allegations of abuse, the court observed that while the criminal prosecution could provide sanctions for criminal wrongdoing, the child protection proceedings would have life-long future consequences for the children.
[24] In Noik v. Noik, 2001 CanLII 27970, the court indicated that if the test in Rule 19 (11) is met, the court has discretion to decide whether to grant the relief sought.
[25] In Bailey v. Bailey, 2012 ONSC 2486, the Ontario Superior Court of Justice set out the six criteria to be satisfied for the production of third-party records to be order. The six criteria are as follows:
a) the documents are in a non-party’s control.
b) The documents are available only to the non-party.
c) The documents are not protected by legal privilege.
d) It would be unfair for the party seeking the disclosure to proceed without the information sought.
e) The documents sought are relevant and necessary; and
f) notice is provided to the non-party
[26] In Ontario (Attorney General) v. Stavro 1995 CanLII 3509, the Court of Appeal set out the factors to be considered in determining whether it would be unfair to a party to go on with the case without the document. The factors are as follows:
a) the importance of the documents in the litigation;
b) whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness;
c) the position of the non-parties with respect to production;
d) the availability of the documents or their information equivalent from some other source which is accessible to the moving party; and
e) the relationship of the non-parties from whom production is sought to the litigation and to the parties to the litigation.
[27] In DP v. Wagg, 2004 CanLii 39048, the Court of Appeal stated at paragraph 53 and 54:
[53] In considering a request for production, the police and Crown will bear in mind the comments by Vertes J. in Fullowka v. Royal Oak Mines Inc., 1998 CanLII 5724 (NWT SC), [1998] N.W.T.J. No. 11, that the Crown does not have a simple proprietary interest in the Crown disclosure. As he said at para. 15, "the 'fruits of the investigation' in the possession of the Crown 'are not the property of the Crown [page248] for use in securing a conviction but the property of the public to be used to ensure that justice is done'." Society has an interest in seeing that justice is done in civil cases as well as criminal cases and, generally speaking, that will occur when the parties have the opportunity to put all relevant evidence before the court. The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.
[54] The guiding objective to be applied by the parties, the state agents and the court hearing any motion for production thus ought to be what Anderson J. said in Reichmann v. Toronto Life Publishing Co., [1988] O.J. No. 961, 28 C.P.C. (2d) 11 (H.C.J.), motion for leave to appeal to the Divisional Court dismissed, [1988] O.J. No. 1333, 29 C.P.C. (2d) 66 (H.C.J.), at p. 14 C.P.C.: "The consistent tendency in this Province has been to broaden and not circumscribe the right of discovery." This principle is founded on the underlying principle accepted by the Supreme Court of Canada for both civil and criminal cases in Stinchcombe where Sopinka J. said, at p. 332 S.C.R.: "This change [to full discovery in civil cases] resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met." And as he said, at p. 335 S.C.R., "[T]he principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material."
[28] In CAS Thunder Bay v. S.D., 2011 ONCJ 100, the Crown opposed the disclosure requested by the Society of the Crown Brief in relation to criminal proceedings against the parents for the charge of criminal negligence causing bodily harm on the child. The court determined that the first step in the analysis was to assess whether the materials sought may be relevant. If relevancy has been confirmed, the court has discretion and in exercising that discretion, the court must consider whether there are competing public policy interest or privacy interest that militate against the disclosure of the material being sought. In that case, the Crown said that none of the evidence should be disclosed as a could jeopardize the ongoing criminal prosecutions. The court concluded that in the absence of more specific public policy reason for denying disclosure, the public policy interest in having a child protection case proceed fairly and be appropriately tried outweighed the broad and general concerns advanced by the Crown.
[29] In D.C.A.S. v. G.S., 2022 ONSC 547, 2022 ONSC 0547 at para. 95. the court reaffirmed the principle that the criminal justice system and child protection system achieve two different goals. One is not paramount from the other.
[30] In M.M-AG, P.A., M.D. and A.D.E. v. E.L. v. Kunuwanimano Child and Family Services, Attiwapiskat First Nation, 2020 ONSC 4597, the court found that where non-party records relating to criminal conduct are sought, the “likely relevant” threshold of relevance is appropriate because these records invariably contain highly sensitive, personal, private information.
Analysis
Rule 19(11) of the Family Law Rules
[31] The first issue is whether CASO has met the test under Rule 19(11) of the Family Law Rules. CASO must establish on the balance of probabilities that would be unfair to proceed without the documents sought. Applying the factors in Stavro, I have considered the following:
a) I find that the video recording of the child and the witness statements are very important to CASO in presenting evidence that the child is at risk of harm in the care of the father.
b) I find that CASO, the mother, the father and counsel for the children require the production of the documentation before the trial to properly prepare for the evidence to be presented at trial.
c) The AG opposes production.
d) The AG submits that the notes of the worker who observed the child statement may be admitted by the trial judge despite it being hearsay evidence. CASO has advised that as part of the discovery process in the child protection proceedings, all parties have received disclosure of the notes of that worker regarding that statement. I agree with counsel for the OCL that the statement of the child will be subject to a voir dire, where the court will determine if the statement meets the test of threshold necessity and reliability. In my view, the court will be very hard-pressed to determine issues regarding reliability based simply on notes made by the child protection worker rather than viewing the actual statement including the nature of the questions, the circumstances regarding the questioning, the demeanor of the witness, the demeanor of the questioner and all circumstances regarding the child’s disclosure. In my view, not having the video statement precludes the trial judge from being able to determine the threshold reliability of the statement.
e) The AG is a non-party to the litigation but one who controls evidence that is not within the possession of any of the parties to the child protection proceedings.
[32] I find that CASO has met the test under rule 19(11) of the Family Law Rules, based on the following:
a) The documents are in the control of the AG.
b) The documents are available only to the AG.
c) The documents are not protected by legal privilege.
d) It would be unfair for the party seeking disclosure to proceed without the information sought.
e) The documents sought are relevant and necessary.
f) Notice of the request has been provided to the AG.
Public interest weigh against disclosure
[33] The second argument advanced by the AG is that the release of the records other than in the criminal proceeding can be prejudicial to the proper administration of justice and consequently, the public interests weigh against production. Counsel for the father indicates that he has likely received Crown disclosure and that the father is prohibited from releasing that disclosure in his child protection trial. Counsel for the father advocates that he requires the disclosure to properly address the allegation of sexual assault raised by CASO. In this case, the court is required to balance the public interest versus the interests of the parties in this litigation. The criminal case does not have a trial date and is only proceeding to the pretrial stage. The child protection proceeding must proceed in February 2023 and will have profound implications to the mother and father if the position advanced by CASO is successful. The father is presumed innocent and will proceed to a criminal trial in due course. However, if CASO is successful, their two youngest children will be placed in the care of the paternal grandmother and their eldest child will be placed in extended society care effectively terminating any involvement in their children’s lives.
Possible witness taint
[34] The essence of the argument from the AG is that if the documents in the Crown Brief are disclosed in the child protection proceedings, it may taint witnesses who may be called to testify in the criminal proceedings. The court must balance the possibility that witnesses may be tainted in the criminal proceeding with the right of the parents to be fully prepared for the evidence to be filed at the child protection trial. The allegation by CASO is that the father sexually abused his child. The only evidence that has been disclosed by CASO are the notes taken by the worker. The parents want the disclosure of the video statement of the child to contest the allegations.
[35] The mother and the father currently reside together and are presenting a joint plan for the return of the children. Counsel for the father has admitted that he has received disclosure as part of the criminal proceedings but notes that such information and disclosure is not permitted to be filed in the child protection proceedings. I agree with the submission from CASO that the mother being a party to the child protection proceedings has already received CASO’s records which contain written accounts of the alleged sexual abuse. Furthermore, at trial the mother will hear all the evidence in relation to the criminal charges against the father, including the testimony of the child protection worker who was present during the child’s interview. While I appreciate the concern that the Crown’s disclosure may taint certain witnesses, in this case, the mother is a party to the child protection proceeding, she resides with the father, the father has received the disclosure from the Crown and both parties are entitled to know the case they must meet in the child protection proceeding.
[36] When I balance the speculation that witnesses may be tainted by this disclosure, I have considered that the child protection proceeding are held in private, no party may receive a copy of the transcript of the evidence without a court order and where there is a specific provision about not identifying a child. The right of the father to defend himself against the allegations of sexual abuse is a fundamental right especially in light of the relief sought by CASO. I find that the disclosure is not only appropriate but necessary.
[Charter of rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and freedom argument by the AG
[37] In their reply factum, the AG submits that the issues relating to CASO’s extended-care application must be reconciled with the father’s Charter of rights and freedom in his criminal prosecution, namely his right to a fair trial. The AG argues that there is no right in the Charter to disclosure of the Crown Brief and that parties are only entitled to fair trials, not perfect trials, even in child protection proceedings. Furthermore, the AG argues that protecting the integrity of the criminal prosecution and the fair trial rights of D F. must prevail over any interest in the disclosure of the Crown Brief for this proceeding. The AG submits that the integrity of the criminal prosecution and the father’s right to a fair trial under the Charter must prevail over any interest in disclosure of the Crown Brief for this proceeding.
[38] While I appreciate the position of the AG, the father is one of the parties supporting the request for the disclosure. The father retains all of his rights in the criminal proceeding including the presumption of innocence. The father requires the disclosure to contest the removal of his children on a permanent basis. I find that the father has balanced his Charter to a fair trial and his right as a parent.
Disposition
[39] I recognize the concern raised by the AG with respect to its criminal prosecution which may result in the father being found guilty and then subject to sentencing. On the other hand, CASO seeks to have the children permanently removed from the parents based on numerous allegations including sexual allegations against the father by the oldest child. The father must have the right to defend himself and it is important that he is supporting the disclosure being sought. The mother and the father are advancing a joint plan and must be in a position to address all of the allegations including the sexual assault allegations. Finally, the Office of the Children’s Lawyer submits that the disclosure is essential as one of the main allegations is the alleged sexual assault against the child and that the videotape statements are the best evidence available.
[40] None of the parties advocated that the court vet the Crown’s Brief or that partial disclosure be provided. For that reason, I did not consider that relief.
[41] I conclude that the Crown Brief must be disclosed as the rights and interests of the parties in the child protection proceeding outweigh any possible prejudice to the AG in the criminal proceedings. I order that the Ministry of the Attorney General (MAGG-Crown Law Office-Criminal) regarding D.F. produce all records to CASO in their control including but not limited to:
a. The Crown Brief and its contents in its entirety as relating to D. F., including:
i. the information setting out the charges currently before the criminal court;
ii. any terms of release\recognizance of bail terms in relation to the charges;
iii. any other information related to the criminal charges;
iv. any video recordings of statements or interviews of the child, witnesses or the accused; and
b. production of any and all disclosure by the Crown to the Defense within the context of the criminal proceedings against the accused stemming from the material facts in the criminal charges.
[42] I order that the disclosure received from the Crown Brief shall remain in the possession of counsel only. The applicants and instructing clients of the other parties shall only examine the disclosure at their counsel’s premises and shall be prohibited from copying or possessing any portion of these records. I order that the disclosure from the Crown’s brief shall only be used for the purposes of this case.
Shelston, J
Date: December 22, 2022
COURT FILE NO.: FC-21-CP10
DATE: 2022/12/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Children's Aid Society of Ottawa
Applicant
– and –
K.F., D.F., A.F., C.G., W.G., H.E.K.
Serpent River First Nation
Sheshegwaning First Nation
Ministry of the Attorney General Crown Law Office-Criminal (WAGG)
Respondents
Wagg motion endorsement
Shelston J.
Released: December 22, 2022