Publication Ban Warning

The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court File and Parties

COURT FILE NO.: CR-2022-122 DATE: 2024/04/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – E.C. Accused/Applicant

Counsel: Elaine Evans, for the Crown Matthew Collins, for the Complainant Ian Paul, for the Accused/Applicant

HEARD: April 19, 2024

Holowka J.

Reasons for Decision

Application Pursuant to s. 278.3 of the Criminal Code -Stage 2

Overview

[1] The Applicant, E.C., is charged in a four-count Indictment with sexual assault and sexual interference in relation to S.S. between the start of April 2010 and the end of February 2011. The allegations against the Applicant are scheduled for a judge and jury trial on May 13, 2024.

[2] On April 16, 2024, I released the reasons for my decision regarding Stage One. These reasons for decision should be read in conjunction with my earlier reasons.

[3] Counsel for the Applicant, the Crown, and the Complainant appeared before me to make submissions regarding the determination of Stage 2, or whether production of the record should be made to the Applicant. The Applicant was present at the Stage Two hearing.

[4] The evidence before the court was unchanged from that available at Stage One. I have now reviewed the record in question.

[5] I must now determine whether the record should be produced to the Applicant pursuant to s.278.7 of the Criminal Code.

Position of the Parties

[6] The positions of the parties are unchanged from Stage One.

[7] The parties, of course, recognize that the question is different and that the court must now again consider whether the record should be produced on the basis that it is likely relevant to an issue at trial and whether production is necessary in the interests of justice in the context that I am now aware of the actual contents of the record sought.

[8] Without deciding the issue to be determined, I invited submissions from Counsel for the Complainant regarding possible editing of the record, should I decide to produce the record, or parts of the record, to the Applicant. Without abandoning the initial position of the Complainant that the record should not be produced to the Applicant, Counsel for the Complainant did not object to the proposed potential editing of the document under contemplation by the court. Counsel for the complainant did not suggest any further editing was necessary or appropriate beyond what was discussed.

The Guiding Principles

[9] Pursuant to s. 278.7(1) of the Code, I must determine, having reviewed the record, whether the record is likely relevant and whether the production of the record is necessary in the interests of justice. If I so conclude, I may order the record, in whole or in part, be produced to the Applicant, subject to any conditions.

[10] In making the determination under s. 278.7(1) of the Code, I must again consider the salutary and deleterious effects of the determination on the accused’s right to make full answer and defence and on the right to privacy, personal security and equality of the complainant. I must perform this assessment by again considering the factors set out at ss. 278.5(2)(a)-(h).

Analysis—Stage Two

[11] The Applicant is pursuing a 3rd party suspect application. As such, the question of who was in the life of the Complainant during the relevant timeframe is relevant. The record cites who was in a parental role vis-à-vis the Complainant at the relevant time. The record is necessary for the accused to make full answer and defence in that it arguably provides an objective and unbiased window into this question. Viva voce witnesses may potentially have frailties of credibility and reliability that would not be present given the timing of the creation of the record. It was made closer to the events under consideration and before any allegations were made.

[12] I have considered whether the Applicant’s production of the record is based on a discriminatory belief or bias. Nothing in the record or argument suggests that such an argument underpins the request. Indeed, in pursuing the production of the document, the Applicant asserted the limited nature of the information sought from the record and contemplated that the record would be edited before production. The Applicant acknowledges the highly private nature of the record it seeks.

[13] I have also considered the deleterious effects of the record's production. The production of the Complainant's psychological records involves privacy, personal security, and equality rights. There is prejudice to the Complainant's personal dignity and right to personal privacy; this must be balanced against an accused's right to make a full answer and defence to a criminal charge. The prejudice to the Complainant may be minimized by editing the record so only the relevant portions in the narrowly framed area sought by the Applicant are produced.

[14] I have considered the probative value of the record. I have noted that the record benefits from contemporaneity with the events and a potential lack of bias. What is unclear is how the Applicant may seek to use the document in cross-examination or otherwise. The source of information for some assertions is not stated in the record.

[15] I have weighed the mandatory factors in section 278.5(2) of the Code and considered the salutary and deleterious effects of the record's production. I am satisfied that the record is likely relevant to the issue at trial in light of the proposed 3rd party suspect application. I am also satisfied that production of the record is necessary in the interests of justice. The prejudice to personal dignity and privacy interests may be considerably reduced through editing and the imposition of conditions regarding the handling of the record.

Disposition

[16] I order the production of a redacted version of Dr. Beltempo’s report dated September 8, 2010. A redacted copy is to be provided to the Applicant and to Crown counsel.

[17] A copy of the redacted record shall be a lettered exhibit in the proceedings. The exhibit shall be sealed pending further court order.

[18] I also order that the following regarding the handling of the record that has been ordered released to the parties:

a. The record may only be printed, reproduced, or used for the preparation or conduct of the trial and any appeal;

b. Following the trial and any appeal, the record shall be surrendered to the registrar, who shall destroy the record.

The Honourable Justice Brian Holowka

Released: April 22, 2024