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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 No.: CR 2024-12 Date: 2024/12/05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MICHAEL WOLOSCHUK Accused/Applicant

Counsel: Ninetta Caparelli, for the Crown Will Murray & Rylie Wills for the Accused/Applicant

Heard: October 15, 2024 Holowka J.

Reasons for Decision

Motion for Directions

[1] The Applicant is charged with numerous sexual crimes relating to five child complainants. Some of the offences charged are enumerated in section 278.2(1) of the Criminal Code. The Applicant seeks to obtain the police notes and statement of the psychotherapist of one of the complainants. He seeks directions on whether the police notes and the statement are Stinchcombe disclosure. The Crown argues that the Applicant must seek the notes pursuant to the Mills regime in s. 278.2 to 278.92 of the Criminal Code.

[2] One of the complainants, C.D., received the services of a psychotherapist, Michelle Cru. In September 2023, Detective Constable M. Iordache of the Ontario Provincial Police spoke to Ms. Cru and obtained a statement. The statement addresses the content of C.D.’s therapy sessions. While Ms. Cru read portions of C.D.’s therapy records verbatim to the detective, the police did not obtain a copy of the therapy records as part of the investigation.

[3] For the reasons that follow, I find that the records regime contained in ss. 278.2 to 278.91 of the Criminal Code governs the disclosure of the investigative materials relating to Ms. Cru.

Factual Background

[4] In September 2020, the Ontario Provincial Police investigated concerns raised by C.D.’s parents regarding the conduct of Mr. Woloschuk. The parents alleged that the Applicant frequently texted their daughters and spent time with C.D., who was 10 years old. The police warned the Applicant about his conduct but did not lay charges at that time.

[5] Police interviewed C.D. in August 2023. She disclosed that the Applicant touched her sexually when she was between 8 and 11 years of age.

[6] On August 28, 2023, C.D. and her mother signed a general “Authorization for Release of Medical Information”. The document authorized Ms. Cru to provide Detective Constable Iordache with access to C.D.’s health/hospital records for the purpose of review and examination. Copies were to be provided if requested. The authorization was confined to the records in the psychotherapist’s file concerning C.D. and her “sexual victimization.” The authorization specified that the information was to be used by the police for investigating criminal allegations of sexual assault, sexual interference, invitation to sexual touching and luring a child.

[7] C.D. and her mother initialled the following statements on the form:

a. I expressly give my consent to the herein search; b. I have the authority to give the consent to the herein search; c. I have given my consent freely, voluntarily and without any influence whatsoever by any person in authority; d. I am aware of the nature and extent of the search to which I am consenting; e. I understand my right to refuse to consent to the police search herein; f. I understand that I may withdraw my consent at any time before or during the said search; g. I am aware that any item(s) seized as the result of this consent search may be used in evidence against me or any other person charged by the police for a criminal offence; h. I have been informed that I have the right to call any lawyer right now in private and that I can speak to duty counsel (a lawyer who will provide free legal advice right now at 1-800-265-0451. If I am charged with an offence, I may apply to the Ontario Legal Aid Plan for assistance. I have been informed that I may speak to a lawyer before I sign the consent, as to the search of the said premise. i. I do not wish to call a lawyer.

[8] The authorization was valid for 90 days from the date of the signature. C.D. was 14 years old when she initialled the authorization with her mother. The record before me neither discloses what was said to C.D. or her mother before signing the authorization nor whether they spoke to legal counsel before signing the document.

[9] The police interviewed Ms. Cru on September 28, 2023. The Supplementary Occurrence Report reflects the following information:

a. During the police interview of C.D.’s psychotherapist Michelle Cru, she referred to her notes taken during the psychotherapy sessions. She occasionally quoted C.D.’s words. b. Detective Constable Iordache did not ask what took place during the psychotherapy sessions. c. Ms. Cru told the detective that all information about the Applicant emanated solely from C.D. d. The information was disclosed to Ms. Cru during several psychotherapy sessions. It described acts “committed by the perpetrator for a sexual purpose.” It finally named the “perpetrator” as “Mike.” e. During the police interview, Ms. Cru disclosed details of the sexual acts allegedly committed by the Applicant against C.D. f. Ms. Cru advised that no further information regarding the psychotherapy sessions should be disclosed as C.D. was very vulnerable. Ms. Cru stated that if additional information was disclosed, it might harm C.D.

[10] The Crown received Ms. Cru's statement to the police on January 16, 2024. Two days later, the Crown advised the defence that it possessed Ms. Cru’s statement and considered it third party disclosure.

[11] The defence has repeatedly requested disclosure of this statement as Stinchcombe disclosure.

[12] Maryse Renaud was subsequently appointed as counsel for C.D. She advised the parties that C.D. opposes the disclosure of Ms. Cru’s statement.

[13] On September 24, 2024, the Crown preferred a direct indictment against the Applicant.

Issue and Position of the Parties

[14] This motion for directions raises one issue:

Is the statement of psychotherapist Ms. Cru a “record” under s. 278.1 of the Criminal Code?

[15] The defence argues that Ms. Cru’s statement is explicitly excluded by s. 278.1 of the Criminal Code because that section exempts from protection “records made by persons responsible for the investigation or prosecution of the offence.” They submit that Ms. Cru’s statement falls within that exception.

[16] The defence relies on the discussion regarding the purpose of this exemption in R. v. Quesnelle, 2014 SCC 46 at paras 55-56:

The definition of “record” in s. 278.1 serves a gatekeeping function within the regime. The reasonable expectation of privacy test sweeps in records that merit the protection afforded by the Mills regime. The exemption further contributes to the gatekeeping role of the section by bypassing the balancing process for records that Parliament recognized should always be produced.

Records created in the investigation of the offence are presumptively relevant to an issue at trial and it is in the interests of justice for the case against the accused to be disclosed to the defence. There is no need to consider such records under the second step of Mills because they will always be produced anyway ― the exemption is eminently logical. However, for records unrelated to the offence at issue, the balancing exercise will often have important work to do. The rationale for the exemption does not apply, and to bypass the balancing process on the grounds that the document was made by the same police force that investigated the claim would not accord with the goals of the scheme. [Emphasis added.]

[17] Finally, the defence argues that the statement is Stinchcombe disclosure and should be available to the Applicant to establish the likely relevance of the therapy records under the Mills regime.

[18] The Crown maintains that private information that the Mills regime would otherwise protect does not lose its statutory protection simply because it is discussed or replicated in police investigative materials. The Crown argues that I must focus on whether the document contains private information of a complainant or witness and not how or when it came into the possession of the police. The Crown submits that sections 278.1 to 278.91 apply, and Crown/police possession cannot transform records that meet the section 278.1 definition of “record” into Stinchcombe disclosure.

Analysis

Jurisdiction for Motions For Directions

[19] Both parties agree that I have jurisdiction to hear this motion for directions—it flows from a trial judge’s trial management power.

[20] In R. v. J.J., 2022 SCC 28, at paras 103-104, the Supreme Court recognized the need for judicial guidance concerning record applications:

103 In light of the uncertainty regarding the scope of records, some defence counsel have on occasion brought a motion for directions before engaging in the procedure under ss. 278.92 to 278.94, to determine whether the particular evidence comes within the definition of a "record" under s. 278.1. Motions for directions are not explicitly contemplated by the statutory language of the record screening regime: they are purely a discretionary exercise of the presiding judge's trial management power.

104 The test we have articulated for interpreting s. 278.1 is designed to assist counsel and judges in reducing the need for motions for directions. However, in cases where the accused does bring a motion for directions, the presiding judge must decide whether the proposed evidence is a "record". Where, in the opinion of the judge, the evidence is clearly a "record", the judge should deal with the matter summarily and order the accused to proceed with a private record application. Equally, where the judge is uncertain whether the proposed evidence is a "record", they should instruct the accused to proceed with an application. Only if the judge is clearly satisfied that the proposed evidence does not constitute a "record" should they direct that the accused need not bring an application.

105 In deciding the motion for directions, we are of the view that the presiding judge retains the discretion to provide notice to complainants and allow them to participate. This discretion is available to the judge because the motion for directions itself involves an exercise of the trial management power.

[21] In this case, at the motion's commencement, I inquired whether the complainant was participating. The Crown advised me that the complainant had declined to participate but that her position was contained in an email from her counsel in the material before me. C.D.’s position is that Ms. Cru’s statement to the police about the contents of her psychotherapy records is a “record” under s. 278.1 of the Code.

The Legislative Context

[22] The legislative background and purpose of the Mills regime inform my analysis.

[23] In R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court held that section 7 of the Canadian Charter of Rights and Freedoms requires the Crown to disclose to an accused all documents that are not clearly irrelevant. Subsequently, frequent requests were made for “third-party records” or records that were not in the possession of the Crown or the police. This led the Court to develop a new regime to address defence requests for third-party records: see R. v. O’Connor, [1995] 4 S.C.R. 411. O’Connor, in turn, paved the way for the enactment of Bill C-46. The amendments introduced in Bill C-46 established the codified regime concerning third-party records in sections 278.1 to 278.91 in relation to cases involving enumerated sexual offences.

[24] At its essential core, Parliament intended the new legislation to afford greater protection for the privacy rights of complainants. In my view, to give effect to Parliament’s intention, my analysis must focus on the substance of the privacy interest over the form of the information.

[25] The preamble to Bill C-46 cited the following principles and concerns as underlying the disclosure regime enacted by it:

a. Parliament’s grave concern about the incidence of sexual violence and abuse in Canadian society and its disadvantageous impact on the participation of women and children in society. b. The rights of women and children to security of the person, privacy, and equal benefit of the law. c. Parliament's recognition that the compelled production of personal information may deter reporting and treatment. d. Parliament’s desire to encourage reporting of incidents of sexual violence and to provide for prosecution of offences in a framework of laws that are consistent with the principles of fundamental justice and that are fair to the victim and accused persons.

[26] In R. v. Mills, [1999] 3 S.C.R. 668, the Supreme Court found that the provisions provided a balanced approach that gives appropriate weight to the competing rights and interests at stake, such as:

a. the right to full answer and defence—an accused person must be able to defend themselves with relevant evidence; and b. the interest of complainants of sexual assault in their privacy, security, and equality.

[27] The Supreme Court recognized that the right to make a full answer and defence is a principle of fundamental justice. However, the Court also acknowledged that the principles of fundamental justice embrace more than the rights of the accused—concerns about equality and privacy inform the analysis and application of the right to full answer and defence. The Applicant's right to make a full answer and defence is not absolute. The principles of fundamental justice do not entitle "the most favourable procedures that could possibly be imagined"—it "embraces more than the rights of the accused": Mills at paras 70-73.

The Governing Legislation and Reasonable Expectation of Privacy

[28] A “record” is defined as any form of record relating to the complainant in which they have a reasonable expectation of privacy. The section enumerates records that fall within the definition, such as “medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries and records containing personal information which is protected by any other Act of Parliament or provincial legislature.”

[29] Concerning these records, absent evidence to the contrary, it must be presumed that a reasonable expectation of privacy in the record exists and the Mills production regime governs: R. v. Clifford (2002), 58 O.R. (3d) 257, at para 49. C.D.’s counselling records fall into this category because they are an enumerated category of record in section 278.1. Even were they not, however, applying the analytical framework for assessing a reasonable expectation of privacy articulated in J.J., at paras 46-60, I find that C.D. enjoys a reasonable expectation of privacy in her psychotherapy records.

Is the Material Sought Governed by the Mills Production Regime or the Stinchcombe Disclosure Obligation?

[30] The Applicant submits that there is an important distinction between the physical therapeutic records from Ms. Cru in the possession of the police and the interview of Ms. Cru created by the police. The Mills regime covers the former, and Stinchcombe governs the latter. The defence submits that they are entitled to rely on the statement in support of their application to obtain the records.

[31] Respectfully, I disagree with the Applicant's position. C.D. has a clear expectation of privacy in her counselling records. In my view, her expectation of privacy is not diminished or extinguished by the fact that the information in the counselling records is now in the possession of the police and reduced to a witness statement. I cannot interpret the Mills regime as governing private information contained in a complainant’s physical psychotherapy records but not identical information found in a witness statement that emanated directly from the same psychotherapy records.

[32] Converting excerpts of counselling information from records in the possession of psychotherapist Ms. Cru into a witness statement does not alter the fundamental nature of the information itself and its attendant significant privacy interest. The form of the records is not determinative of the issue—the reasonable expectation of privacy persists. In my view, the production of Ms. Cru’s statement is governed by the Mills regime.

[33] Section 278.1 exempts records “made by persons responsible for the investigation or prosecution of the offence.” In this case, while the police created the statement, the information and recollections recorded in it were created or made by a psychotherapist, not an investigator, as part of the investigation. Considering this distinction, the production of the notes and the statement is governed by the Mills regime.

[34] In R. v. G.(W.G.), the Court found that records from a sexual assault centre were covered by section 278.1 in circumstances where the police had reviewed the records with the victim’s permission. The police would have presumably taken notes or written a report of their review of the records. While the decision in G.(W.G.) related to records and not police notes, reports or statements, the Court concluded that “the fact that the police had reviewed the records with the complainant’s authorization had no bearing on her expectation of privacy as it related to the appellant: see R. v. Mills …Counsel for the appellant conceded that the complainant’s expectation of privacy in the records remained a live issue for determination on the application”. Here, the police conducting interviews with the complainant’s psychotherapist cannot extinguish the complainant’s reasonable expectation of privacy in the contents of those records—whether they are contained in the physical records or the police-obtained statement.

[35] In my view, the Authorization signed by C.D. and her mother does not impact the analysis of whether the Mills regime or Stinchcombe obligation governs. It has no impact on the interpretation and application of s. 278.1 of the Code.

[36] The Applicant also relies on Quesnelle at paras 55-56 for the proposition that records created in the investigation of the offence are presumptively relevant and that there “is no need to consider such records under the second step of Mills because the records will always be produced anyway—the exemption is eminently logical.”

[37] This must be read in the context of paragraph 55, which states, “[t]he definition of “record” in s. 278.1 serves a gatekeeping function within the regime. The reasonable expectation of privacy test sweeps in records that merit the protection afforded by the Mills regime. The exemption further contributes to the gatekeeping role of the section by bypassing the balancing process for records that Parliament recognized should always be produced.” Normatively, the sensitive and private information contained in the psychotherapy records merits the protection of the Mills regime despite the exemption for records “made by persons responsible for the investigation or prosecution of the offence.” In the circumstances of this case, the court’s gatekeeping function is fulfilled by finding that the Mills regime applies regardless of the format of the private information.

[38] Finally, in J.J., the Supreme Court stated that “[o]nly if the judge is clearly satisfied that the proposed evidence does not constitute a "record" should they direct that the accused need not bring an application.” In light of my preceding analysis, I am not clearly satisfied that the proposed evidence does not constitute a “record.”

Conclusion

[39] The police interview of Ms. Cru, dated September 28, 2023, constitutes a “record” within the meaning of s. 278.1 of the Criminal Code. As such, the Applicant must seek its production pursuant to the Mills regime.

The Honourable Justice B. Holowka

Released: December 5, 2024

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MICHAEL WOLOSCHUK REASONS FOR JUDGMENT Justice B. Holowka

Released: December 5, 2024