Court File and Parties

COURT FILE NO.: CR-22-40000471-0000 DATE: 2023-08-15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Thomas Lahens

BEFORE: P. Campbell J.

COUNSEL: Brigid McCallum, for the Crown Susannah Chung-Alvarez, for the Defence

HEARD: August 11, 2023

Endorsement

[1] The Crown has applied for an order directing it to produce private records of the complainant to the defence. The application invokes the common law procedures outlined by the Supreme Court of Canada in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411. The defence takes no position on the motion.

[2] The Crown’s application arises in unusual circumstances. The defendant is charged with offences under ss. 279.01, 279.02, 286.2 (1), 286.3 (1) and 279.03 (1) of the Criminal Code related broadly to human trafficking and the coerced provision of sexual services. Though the complainant apparently provided the police with inculpatory information related to these charges in 2021, she now professes no interest in testifying, no memory of the relevant events, and an unwillingness to allow her private records to be used by the Crown in making its case against the defendant. The Crown intends to bring an application at trial to adduce hearsay evidence in support of its prosecution, drawing on the original statements of the complainant. It believes that certain medical records and cell phone records which the police obtained can support the admissibility of the hearsay on a voir dire at trial and also corroborate it before a jury, if it is admitted. Crown counsel submits that the medical records are clearly within the definition of “record” in s. 278.1 and the cell phone records may be.

[3] The Crown recognizes that it will be required to disclose the records to the defence in advance of using them at the trial. It has not yet done so, nor has the defence applied for their production. The Crown view is that once they are tendered as evidence at trial, before a judge, that judge will have the power to order disclosure of the records and will inevitably do so. If, however, the records are not disclosed in advance of trial, this will compel an adjournment at the outset of the case as the defence will need time to respond to them.

[4] The Crown is concerned that simply providing the records to the defence now, before trial, is not possible since doing so would run afoul of s. 278.2(1) of the Code which says:

278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3…

[5] The Crown’s view is that, while Parliament may not have intended that provision to prevent the Crown from disclosing before trial evidence that it intends to rely on at trial, that is the effect of the enactment. Unlike the rest of the privacy-protecting laws related to prosecutions for sexual offences, s. 278.2 (1) does not expressly limit its restrictive effect to efforts by the accused to obtain production – on its face, it applies equally to the Crown.

[6] The Crown, viewing the need for pre-trial disclosure as obvious, has framed its application in terms of O’Connor which, unlike s. 278.3, is not expressly limited to applications by the defence. This approach is not, however, entirely free from complication since O’Connor, at para.130, says its procedure for producing private records does not apply to records which form part of the “case to meet”; the records in this case are intended to be used as a key part of the case the defence will have to meet. The common law is, however, a flexible instrument, adapted to the needs of justice as they become apparent over time, and this may not be an insuperable hurdle. Where statutory privacy protections operate incompletely or anomalously, resort may be had to common law procedures: see, for example, R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579 at para. 80 where, with the prosecution not being required by s. 276 of the Code to respect the privacy interests of a murder victim, it was held that it should nonetheless be required to satisfy the common law test for adducing evidence of prior sexual history set out in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577.

[7] During proceedings on the day set down for the hearing of the Crown’s application, it was accepted that even if the O’Connor procedure did not include the procedural rights and privacy protections now afforded to a complainant under the current statutory regime, those protections should be included in any application of the common law procedure. This means that the complainant should be told of her right to attend and participate in the O’Connor application; her right to be represented by counsel; and the availability of state funding for such counsel. These are rights granted to the complainant by s. 278.4 (2.1) under the statutory procedure. It was also agreed that complainant’s counsel could, if so instructed, attempt to advance the stated position of the complainant which, so far, appears to be adverse to the prosecution generally and to the production of her records specifically.

[8] The material before me hints, but does not confirm with any real clarity, that the subject of counsel has been raised with the complainant. When I suggested the application record was unsatisfactory as a basis to conclude that she had made an informed waiver of her procedural rights, the Crown did not disagree. Accordingly, I determined the application was not ripe for hearing and determination. It was set over to Practice Court for the Crown to convey to the complainant, and acquire from her, more information about her rights and her position respecting them. It will then be brought back for a hearing before me or another judge.

[9] In the interests of moving the process along, and recognizing that the reaction of the complainant to notification of her rights could not be predicted with any confidence, the Crown helpfully proposed that amicus curiae might assist the court if the complainant elected not to instruct counsel. In view of the novelty of this application, I indicated my approval of this measure if necessary.

[10] The matter will therefore proceed as follows. Before the next appearance in Practice Court, the Crown will ensure that the right of the complainant to funded counsel, to support any position she may wish to take on the application, is precisely conveyed to her, along with her rights to attend and participate. The response of the complainant will be disclosed to counsel for the defendant. If the complainant elects to instruct counsel, or to attend and participate personally, she or counsel may attend at the Practice Court for scheduling of the next appearance. If the complainant communicates an unwillingness to attend, participate or instruct counsel, the Crown will attempt to enlist amicus to assist and advise on the issues before the court; I am told a lawyer already briefed on the case may be able and willing to serve in this role.

[11] None of this presupposes that the application is properly grounded in law, a matter as yet unresolved, or that resort to the O’Connor regime is the only potential means of ensuring disclosure is made in advance of arraignment at trial. Consideration may be given, for example, to a free-standing Charter-based first-party disclosure order or to an order appointing a case management judge who can exercise powers conferred under Part XVIII.1 of the Criminal Code. Such matters are for consideration by the parties and perhaps a judge at the next hearing date. My own consideration of the matter has progressed no further than this ruling that, in so far as the issue is viewed as one of third-party production, the complainant should be placed in the position that she would have been in under the Criminal Code’s regime for records production.

P. Campbell J.

Date: 2023-08-15