Court File and Parties
Court File No. CR-22-11403135-0000 SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING v. ANIS-UR REHMAN
Reasons for Ruling on Third Party Records Application
BEFORE THE HONOURABLE JUSTICE P. ROGER on Tuesday, October 15th, 2024, at OTTAWA, Ontario.
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTIONS 486.4 and 517.1 OF THE CRIMINAL CODE OF CANADA DATED SEPTEMBER 8th, 2022
Appearances
A. Riopelle Counsel for the Provincial Crown
S. Wickramasinghe Counsel for Anis-Ur Rehman
M. Lord Counsel for the Complainant
Table of Contents
RULING: Page 1
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTIONS 486.4 and 517.1 OF THE CRIMINAL CODE OF CANADA DATED SEPTEMBER 8th, 2022
Legend
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) - Indicates preceding word has been spelled phonetically.
TUESDAY, OCTOBER 15th, 2024.
…COURT OPENS.
…COURT PROCEEDINGS RECORDED BUT NOT TRANSCRIBED AT THIS TIME.
Reasons for Ruling on Third Party Records Application
ROGER, J. (Orally):
The accused is charged with sexual assault and invitation to sexual touching. The allegations cover the period from January to September 2018, when the complainant was eight years old.
During a therapy session on or about July 4, 2022, the complainant disclosed for the first time allegations that she had been sexually abused by the accused. She was 12 years old at the time of the disclosure to her therapist, and, as required, the complainant’s disclosure was reported to the Ottawa Children’s Aid Society, and to the Ottawa Police.
The trial of these charges is scheduled for March 2025, and the accused brings a Third Party Records Application seeking the disclosure of the therapist’s records from the start of consultation to July 27, 2022, when the complainant was interviewed by the police, and for disclosure of the CAS records that pertain to the complainant’s allegations and the therapist reporting of those allegations, including all notes, assessments and reports that pertain to this at the CAS.
For reasons that follow, I have decided to order that the therapist’s notes be produced to me for purposes of deciding whether Stage 2 of the analysis is also met.
The CAS notes are not ordered produced to me, as I find that Stage 1 has not been met for those records.
The production of third party records in sexual offences cases is governed by the Criminal Code, particularly by section 278 of the Code.
At the first stage of the analysis, I find that the therapist’s records are likely relevant to an issue at trial because there is a reasonable possibility that some of the information in these records is logically probative to the reliability of the evidence of the complainant. From the police interview, there is evidence that the complainant, all of a sudden, remembered her allegations about one year prior to July 2022, then that she pushed it back or suppressed those memories until they resurfaced on or about July 4th, 2022, during a therapy session. As a result, all of these notes are likely relevant to the provenance of these memories, which is likely relevant to the reliability of the complainant’s allegations.
Further, I find that the therapist’s records are necessary in the interests of justice. When I assess the factors at section 278.5(2) of the Code, I find that although this will negatively impact the factors in favour of non-disclosure, it will impact more the right of the accused to make full answer and defence, such that when I weigh these factors, they favour disclosure to the Court at stage 1. Indeed, the circumstances that surround the memory of the complainant resurfacing make the contents of the therapist’s file highly probative of reliability and outweighs the privacy interests at stake.
The opposite is true for the CAS records. The fact that the CAS conducted an investigation of the same allegation does not make the CAS records likely relevant, as I see no basis to conclude that the CAS records have the potential to provide the accused with some added information, not already available to the defence. Simply being useful to the defence is not the test at Stage 1, where slightly more is required than the Crown’s disclosure obligation. There must be a reasonable possibility that the information is logically probative of an issue at trial, and, at this point, we have nothing but conjecture.
Without an evidentiary or informational foundation, the fact that the CAS records exist, that they relate to the allegations, that they may disclose some inconsistent statement, or that they may relate to the credibility of a participant is not sufficient to demonstrate a reasonable possibility that they will contain relevant information, as opposed to bold assertions that they could.
Moreover, even if likely relevance is made out for the CAS records at Stage 1, the accused has not shown that this production is necessary in the interests of justice. Here, any probative value of the CAS records is weak in comparison to the privacy interests of the complainant.
As a result, the therapist is ordered to produce the disc for a complete copy of the records, with the complainants from the outset of consultation, up to and inclusive of, July 27th, 2022.
All right. So, that’s the end of my reasons for decision.
…COURT PROCEEDINGS RECORDED BUT NOT TRANSCRIBED AT THIS TIME.
MATTER ADJOURNED.
Certification
FORM 3 Electronic Certificate of Transcript Evidence Act, Subsection 5(2)
I, AMANDA SCHRAA, certify that this document is a true and accurate transcription of the recording of R. v. Anis-Ur Rehman, in the Superior Court of Justice, held at Ottawa, Ontario taken from Recording 0411_CR37_20241015_091318__10_ROGERP.dcr, heard Tuesday, October 15th, 2024, which has been certified in Form 1 by Shafton Thomas.
November 5th, 2024 (Date) (Electronic Signature of Authorized Person)
A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.