R. v. Shaugnessy, 2012 ABQB 398

Court of Queen ’ s Bench of Alberta Citation: R. v. Shaugnessy, 2012 ABQB 398 Date: 20120615 Docket: 091479220Q1 Registry: Edmonton Between: Her Majesty the Queen Crown / Respondent - and - Nicholas Shaugnessy Accused / Applicant Restriction on Publication: By Court Order, information that may identify the persons described in this judgment as A.S. may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.4 .

Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice V.O. Ouellette

_______________________________________________________ I. Introduction [1] Nicholas Shaughnessy is charged with sexual assault, specifically: 1. sexual assault: Criminal Code, R.S.C. 1985, c. C-46, s. 271; 2. sexual touching: Criminal Code, R.S.C. 1985, c. C-46, s. 153(1)(a); 3. incest: Criminal Code, s. 155(2); and 4. assault: Criminal Code, s. 266. [2] He intends on filing a Motion for the production of records that relate to the personal information of a person, in this case theComplainant, via the procedure set in Criminal Code, ss. 278.1-278.91.

The application for the production of records stems from theProsecutor giving notice of the existence of a potentially relevant record, an obligation required by Criminal Code, s. 278.2(3). II. Issue [3] The Supreme Court of Canada in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1 set abroad and positive obligation that the Crown must disclose to an Accused “all relevant information”, “whether it is inculpatory orexculpatory”. There are only narrow exceptions to that rule.

One is created by Criminal Code, ss. 278.1-278.91, and generally excludesthe production of “personal information for which there is a reasonable expectation of privacy” (Criminal Code, s. 278.1) duringprosecutions of certain sexual offenses (Criminal Code, s. 278.2(1)). Often these records relate to the sexual activity of a person otherthan the Accused. [4] Criminal Code, s. 278.2(3) requires that the Crown notify the Accused that otherwise confidential records exist, but not todisclose the contents of those documents: In the case of a record in respect of which this

section applies that is in the possession or control of the prosecutor, the prosecutor shallnotify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’scontents. [5] At issue is the scope of the s. 278.2(3) obligation. Is it sufficient for the Prosecutor to limit its notification to the Accused ofthe existence of a record and nothing more? Do the R. v.

Stinchcombe disclosure requirements, in combination with the scheme of s.278.1 to s. 278.91, require the Crown disclose the names of the complainant, witness, or any other person to whom the record relates?Does the general nature of the record have to be disclosed? III. Facts [6] On December 1st, 2009, Nicholas Shaugnessy was charged under Criminal Code, ss. 271, 153(1)(a), 155(2), and 266. Thepreliminary hearing was conducted in July, 2010. On July 19, 2011, the Prosecutor provided a Criminal Code, s. 278.2(3) written noticeto the Accused via his designated counsel:

Pursuant to s. 278.2(3) of the Criminal Code , I am writing to advise you of the following information: This office is prosecuting another file related to the Complainant in the Shaugnessy matter, [A.S.], where an accused person is charged with two counts under s. 271 and two counts under s. 151 of the Criminal Code . As this other file involves the investigation of a person other than the Accused, Nicholas Shaugnessy, the Crown's position is that this other file is not covered by Stinchcombe disclosure. While s. 278.2(3) requires disclosure of the existence of the record, that same

section specifically prohibits the disclosure of the record's contents. The Crown's position, therefore, is that further information about that file (or the file itself) can only be obtained through the procedure set out in s. 278.1-278.91. If you have any questions or concerns, please contact the writer. [ 7 ] In April 2012, the Accused filed an application pursuant to R. v. Stinchcombe , seeking disclosure of the information number and/or court action number for the ongoing prosecution, which was identified by the Prosecutor in its notice, dated July 11, 2011. [ 8 ] Both the Crown and Defence have stated they are not aware of any jurisdiction having dealt with the

interpretation and application of s. 278.2(3). My research appears to confirm this is correct. IV. Position of the Accused [ 9 ] The Accused seeks further information from the Crown. Criminal Code , s. 278.3(5) requires that the Accused serve an application for a Production Order to a “... complainant or witness ... and ... any other person to whom ... the record relates ...”. The Accused therefore says he requires the names of the other persons, such as the Accused in the other proceedings to which the record relates, to fulfill his s. 278.3(5) obligation.

The Accused describes this information as relating to the R. v. Stinchcombe disclosure obligation. [ 10 ] Further, it is the Accused’s position that the Court action number of the other file involving the investigation of a person other than the Accused, does not fall within the meaning of the definition of “record” in Criminal Code , s. 278.1.

That Court action number is a matter of public record, along with all of the subsequent documentation, subject of course to sealing orders or in camera proceedings. [ 11 ] The Accused’s position is that lack of disclosure of the Court action number (which in any practical sense means the names of the other persons to whom the record may relate) is disclosure to which the Accused is entitled. Failure by the Crown to provide that information prevents the Accused from meeting his Criminal Code , s. 278.1- 278.91 statutory obligations. V.

Position of the Prosecutor [ 12 ] It is the Prosecutor’s position that information in the other file in which Nicholas Shaugnessy is not an Accused is not covered by the R. Stinchcombe disclosure. The Crown’s position is that the Court action number is a record as defined in Criminal Code , s. 278.1. No Court document exists without an action number, and since an action number is part of a document, this would therefore require the Crown to provide the whole file as part of the record. The Prosecutor observes that Criminal Code , s. 278.2(3) prohibits the Prosecutor from disclosing the record’s contents.

Further, disclosure of the Court action number would disclose the file’s contents, and, that would be in contravention of the requirements of s. 278.2(3) . [ 13 ] Lastly, the Crown argues that the non-disclosure of the Court action number, the other Accused’s name, or the identity of any other person to whom the records would relate, does not impede the Accused service obligations pursuant to Criminal Code , s. 278.3(5).

The Prosecutor states that the limiting phrase in s. 278.3(5), “to the knowledge of the Accused”, would effectively prevent the Crownfrom any complaint that not all parties may have been notified of an impending Criminal Code, s. 278.4(1) hearing. The Accused cannotbe criticized for a failure to notify those persons of which he was unaware, or of who’s identities he was unaware. VI. Statutory

Interpretation [14] In my view this decision is entirely a question of statutory

interpretation. The central principle of statutory

interpretation isprovided by Rizzo & Rizzo Shoes Inc. Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21, 154 D.L.R. (4th) (mostrecently applied in R. v. D.A.I., 2012 SCC 5 at para. 25). Legislation is interpreted: ... by reading the words of the provision in their entire context and according to their grammatical and ordinary sense, harmoniously withthe scheme and object of the Act and the intention of Parliament. [15] This process is a two-step approach. The plain words of the provision are evaluated in light of the intent of Parliament and theobjective of the legislation: Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008) [“Sullivan”], Pierre-André Côté et al., The

Interpretation of Legislation in Canada (4th ed. 2011). Where ambiguity arises, it may be necessary to resort to external factors toresolve the ambiguity: Sullivan, at p. 44. [16] An

interpretation of legislation that defeats the legislation’s purpose is an absurd result. Chief Justice Lamer in R. v.McIntosh, (SCC), [1995] 1 S.C.R. 686 at paras. 35, 21 O.R. (3d) 797 indicates the correct approach was set inAltrincham Electric Supply Ltd. v. Sale Urban District Council (1936), 154 L.T. 379 (H.L.). Where legislation is open to more than onealternative

interpretation, and one alternative is contrary to common sense and does not meet the legislature’s intentions, then a courtshould reject the

interpretation that is absurd in favour of the alternative: ... if the language of an enactment is ambiguous and susceptible of two meanings, one of which is consonant with justice and good sensewhile the other would lead to extravagant results, a court of law will incline to adopt the former and to reject the latter, even although thelatter may correspond more closely with the literal reading of the words employed. [Emphasis added.] VII. Analysis A. The Purpose of Criminal Code, ss. 278.1-278.91 [17] The history of Criminal Code, ss. 2781.-278.91 is reviewed in detail in R. v.

Mills, (SCC), [1999] 3 S.C.R.668, 180 D.L.R. (4th) 1. In the majority decision McLachlin J. (as she then was) and Iacobucci J. explain the purpose of these provisions.They balance three principles: “... full answer and defence, privacy, and equality.” (para. 61). An accused person has a right to make fullanswer and defence, while other persons have a right to privacy: para. 62. [18] These provisions operate to allow an Accused person to investigate possibly relevant information that is private to anotherperson.

At para. 71 the Court explains that access is critical when the information may be highly relevant to the innocence of an Accusedperson. However, that access may intrude on intensely personal aspects of an individual, so disclosure ought not be automatic: ... This is an important consideration in the context of records production as often the accused may be in the difficult position of makingsubmissions regarding the importance to full answer and defence of records that he or she has not seen.

Where the records are part of thecase to meet, this concern is particularly acute as such a situation very directly implicates the accused’s ability to raise a doubtconcerning his or her innocence. As the Court stated in R. v. Leipert, (SCC), [1997] 1 S.C.R. 281, at para. 24, “[t]hisCourt has consistently affirmed that it is a fundamental principle of justice, protected by the Charter, that the innocent must not beconvicted”. Where the records to which the accused seeks access are not part of the case to meet, however, privacy and equality

considerations may require that it be more difficult for accused persons to gain access to therapeutic or other records . [Emphasis added.] [ 19 ] These Criminal Code mechanisms therefore provide a mechanism for an independent party, the judge, to balance those two competing priorities.

The majority at para. 94 stresses that key, though private, information should be made available to the Defence: ... [W]here the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent. [ 20 ] In brief, the purpose of ss. 278.1 - 278.91 is to balance two competing interests: the right of an Accused to access information relevant to his defence, and the right of another person to keep their intimate and personal lives and activities private.

The first question is one of evidence; how does this information relate to the case against the Accused. The second requires the Court consider the intrusion disclosure causes to a person. That will, of course, be a subjective and contextual question. B.

Question 1: Is the disclosure of the Court action number of the other file a record as defined under s. 278.1 or 278.2? [ 21 ] A “record” for the purpose of these provisions is broadly defined in Criminal Code , s. 278.1: 278.1 For the purposes of sections 278.2 to 278.9, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence . [Emphasis added.] [ 22 ] I conclude that the Court action number or information number of the other ongoing prosecution is not a record as contemplated in s. 278.1.

Succinctly, there is no expectation of privacy associated with that information. I see no ambiguity on this point. [ 23 ] It is true that the disclosure of the information number or Court action number would allow the Accused to obtain a copy of the information or indictment along with all of its endorsements. It would also allow the Accused to obtain all other documents that are available to the public in the Criminal Prosecution.

This documentation is available to the Accused or to any other member of the public because criminal proceedings are open to the public and any records are also public. [ 24 ] This, of course, does not include documents to which the public would not have access, such as result of in camera hearings, or sealing orders, or any other such order. As in all sexual assault cases, there is usually a ban on publication pursuant to Criminal Code , s. 486.4 or such other publication bans as may be appropriate.

However, any bans on publication have nothing to do with accessing the public documentation. [ 25 ] Therefore, with the benefit of a Court action number or information number, the Accused would be able to obtain the name of the other Accused, along with the dates of the other alleged offences. He may also be able to obtain a copy of the preliminary hearing transcript, if such a procedure has occurred. These ‘downstream’ effects of disclosure of an action number and court file materials do not somehow bring that act into the ss. 278.1 - 278.91 scheme. C.

Question 2: Would obtaining this public information by the Accused be contrary to the purpose of the s. 278.1 to 278.91 legislative scheme? [ 26 ] The correct

interpretation of Criminal Code , ss. 278.1- 278.91 involves the overall scheme of those provisions. I conclude that disclosure of this public information does not conflict with Parliament’s purpose.

[ 27 ] The records that are generally held confidential, subject to a Court Order after the two-stage analysis, are those that contain personal information for which there is a “reasonable expectation of privacy”: Criminal Code , s. 278.1. There is no reasonable expectation of privacy in public criminal prosecutions, subject of course to the limitations stated earlier.

As with every record relating to a complainant or witness which is referred to in s. 278.2, it shall not be produced to the Accused, unless ordered by the Court after the procedures set out have been met. [ 28 ] That, arguably, ends the dispute between the parties. However, a proper understanding of the operation of Criminal Code , s. 278.2(3) and the notification of an Accused by the Crown requires further exploration of the overall operation of the Criminal Code , ss. 278.1- 278.91 scheme. D.

Question 3: Is the Prosecutor required to indicate the type of record that it has in its possession? [ 29 ] I am of the view that in order to give meaning and substance to s. 278.2(3), that the Prosecutor must not only notify the Accused of the existence of a potentially relevant record, but also disclose the general nature of the record. That may be simply a description of the record as one of the example categories listed in Criminal Code , s. 278.1. [ 30 ] A plain reading of s. 278.2(3) indicates it is the record’s content that is not to be disclosed.

In contrast and relating to the type of record, s. 278.2(3) begins with the phrase “In the case of a record” [emphasis added] and continues with the requirement that the Accused be notified of “ the record” [emphasis added], with a requirement to not disclose “the record's contents ” [emphasis added]. To interpret s. 278.2(3) as simply requiring notification that a record exists, without more, would be meaningless.

If all that is required from the Crown is the notification that some unspecified and normally confidential record, relating to an unknown subject, may be relevant to the Defence, then that leaves open and vague the appropriateness of further investigation by the Defence. [ 31 ] I therefore conclude that when read as a whole, and specifically in light of the requirement that the Prosecutor shall not disclose the record’s contents , that it is appropriate that the Crown disclose some information on the general nature of the potentially relevant but private record. That is, of course, what happened here.

The Crown explained that the record is a parallel sexual assault prosecution that involves the same Complainant. That context was necessary for the Defence application and, indeed, this decision. [ 32 ] The obligation to provide a general description of the record is also potentially relevant to the notification obligation on the Accused under Criminal Code , s. 278.3(5), which I will further explore in the following section. E.

Question 4: Must the Crown disclose the names of any person to whom the record relates? [ 33 ] The Crown argued that it has no obligation to identify to the Accused the persons who may be relevant to a record.

The Accused is only obliged by Criminal Code , s. 278.3(5) to notify those relevant persons of whom he or she is aware: 278.3(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness , as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates ... [Emphasis added.] [ 34 ] The plain text of s. 278.3(5) would seem to suggest that is the case.

Further, s. 278.2(3) would seem to prohibit disclosure of related persons because their identity is, presumably, part of the “contents” of the record. [ 35 ] I conclude that the Crown’s

interpretation on this point is incorrect. That conclusion flows from the overall operation of Criminal Code , ss. 278.1- 278.91 . In this sense, it is helpful to run through the legislative scheme backwards. [ 36 ] There are two hearings in this process. One is the Criminal Code , s. 278.4 “ in camera ” hearing to determine whether the

record ought to be provided to the Court for review.

The authorized participants in that hearing are indicated by s. 278.4(2): 278.4(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing. [ 37 ] If at the first hearing the record is produced to the Court, then a second hearing may be ordered under Criminal Code , s. 278.6(2) “... if the judge considers that it will assist in making the determination.” The parties who may make submissions at this hearing are the same as those in the s.278.4(2) hearing ( Criminal Code : s. 278.6(3) ). [ 38 ] Criminal Code , ss. 278.5(2) and 278.7(2) impose certain obligations upon the Judge who considers whether or not to order production of a record for review ( s. 278.4 ), and whether to order the production of the record to the Accused (s. 278.6).

Section 278.5(2) lists certain mandatory criteria for a judicial review of a confidential record; s. 278.7(2) imports those criteria into evaluation of whether that record should be disclosed to the Accused: 278.5

(1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that ... (

b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and (

c) the production of the record is necessary in the interests of justice.

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused ’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness , as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account: (

a) the extent to which the record is necessary for the accused to make a full answer and defence; (

b) the probative value of the record; (

c) the nature and extent of the reasonable expectation of privacy with respect to the record; (

d) whether production of the record is based on a discriminatory belief or bias; (

e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates ; (

f) society’s interest in encouraging the reporting of sexual offences; (

g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(

h) the effect of the determination on the integrity of the trial process. [Emphasis added.] [ 39 ] These considerations explicitly identify the nature and scope of the countervailing factors identified by the Supreme Court of Canada in R. v. Mills . Before a Judge may order production of a record for review, that judge must consider the salutary and deleterious effects on the Accused’s right to make full answer and defence, and the right to privacy and equality of the complainant, witness, or any other person to whom the record relates. [ 40 ] One of the mandatory s. 278.5(2) considerations clearly involves the person(

s) to whom the record is relevant;“the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates”: s. 278.5(2) (e). A judge also “shall” consider that factor at the s. 278.7 disclosure to Accused step. [ 41 ] The potential prejudice to any person is clearly very subjective. The legislation speaks of “ personal dignity”, not “ reasonable dignity”. That is in contrast to the “ reasonable expectation of privacy” [emphasis added] identified in s. 278.5(2) (c).

I conclude that personal dignity is a highly contextual factor, and that excluding a ‘related person’ from the s. 278.4 hearing and a possible subsequent s. 278.6 hearing means a judge cannot fully evaluate “... the potential prejudice to the personal dignity and right to privacy ...” of that person. [ 42 ] A related person is notified of the potential for disclosure of confidential information by the Accused’s serving the application for disclosure and access under Criminal Code , s. 278.3(5).

That means that any potentially affected person who is not notified in that manner may not have the opportunity to appear and make submissions at the s. 278.4 hearing and any subsequent s. 278.6 hearing.

That scenario then deprives the Court of the contextual and individual information required to discharge its ss. 278.5(2) and 278.7(2) obligations. [ 43 ] Since the provisions of s. 278.5(2) and 278.7(2) are mandatory, it would be impossible to meet the required considerations and factors regarding the right to privacy of any person to whom the record relates if the Judge does not know who they are, or if those persons have not had the opportunity to make submissions at the hearings (ss. 278.4(2), 278.6(2)).

Therefore, the only way that the Judge can discharge his duties and to take into account the considerations and factors that are set out in the Criminal Code is for the Crown to inform the Accused, as part of the general information about a confidential record, of the persons it identifies as complainants, witnesses, or other persons to whom the record relates. The Accused then notifies those persons of the potential intrusion into their privacy via the s. 278.3(5) service procedure. [ 44 ] The

interpretation of the obligations under ss. 278.3(5) and 278.2(3) advanced by the Crown is unreasonable and inappropriate, and compromises the scheme devised by Parliament to balance the rights of an Accused, the privacy of other persons, and the ability of those other persons to comment in a meaningful way when faced with the potential disclosure of their private records.

An alternative context which leads to the same result is that the Crown’s scheme does not accord with the key principle of procedural justice that an adjudicator should not decide an issue that affects a person without the potential for representation of that person. [ 45 ] I stress that this disclosure is broad. Sections 278.3(5), 278.4(2), 278.5(2)(

e) speak of “ any other person to whom the record relates” [emphasis added]. Since personal dignity is individual and contextual, the Crown should carefully review the record, and err on the side of caution when identifying related persons for service. Simply because one person, such as a complainant, may consider a fact public, or unrelated to personal dignity, is not necessarily equally true of others. For example, two persons who engage in an extramarital affair may have very different perspectives on the consequence of disclosure of their activities.

One may not care, but for the other disclosure may have catastrophic personal effects. [ 46 ] This contextual approach to the effect on related persons is also relevant to Criminal Code , s. 278.7(3) which instructs that a Judge may impose conditions on the production of records “to protect the interests of justice and to the greatest extent possible , the privacy and equality interests of the complainant or witness, as a case may be, and any other person to whom the record relates ” [emphasis added.] This

section continues to give examples of conditions which may be imposed, including 278.7(3)(f): “that information regarding any person named in the record such as their name, address, telephone number, place of employment, be severed from the record.”

F.

Question 5: Must the Crown disclose the names of any complainant, witness or person to whom the record relates, if that person is a young person as defined in the Youth Criminal Justice Act , S.C. 2002, c.1? [ 47 ] In addition to the usual publication bans involving sexual assault cases as provided for in s. 486.4 or any other bans, sealing orders or in-camera proceedings, there is the additional Youth Criminal Justice Act , S.C. 2002, c.1, the Youth Justice Act , RSA 2000, c. y-1, the Family Law Act , RSA 2000, c. f-4 .5, the Child, Youth and Family Enhancement Act , RSA 2000, c.c-12, and other legislation which contain provisions to ban a publication of information that might identify a young person or provide access to records relating to them. [ 48 ] As stated earlier, both the Crown and Defence have not found any jurisprudence dealing with the extent of the obligation on the Prosecutor as it relates to s. 278.2(3), let alone if the persons to which this

section may affect are young persons. [ 49 ] Although not precisely dealing with s. 278.2(3), the Quebec Court of Appeal, in both 1994 and 2004, dealt with the issue of the protection of a young person’s confidential records and balancing them against an accused’s right to full answer and defence. [ 50 ] In L. c. La Reine , [1994] A.Q. no.258 , the Quebec Court of Appeal ruled that the statutory protection providing for the confidentiality of youth records or court related files will not trump the rights guaranteed under the Charter to make full answer and defence (s. 7 and s.11(d)).

At trial, the judge had refused the right of the Accused to cross-examine the complainant who was a young person regarding her previous sworn testimony given during a trial in Youth Court. The trial judge had ruled that the records from the Youth Court were confidential and not available in the trial of the Accused. [ 51 ] The Court of Appeal found that the trial judge had erred and that the trial judge should have allowed the access to the records of the Youth Court in order to ensure that the fundamental rights of the accused to make full answer and defence were met.

The Court stated: “La confidentialité du “dossier du tribunal”, reconnue à l’article 96 de la L.P.J., ne doit pas, par une application systématique et rigide, priver un accusé de son droit à une défense pleine et entière ( art. 7 et 11

d) de la Charte canadienne )....” (para. 22) [ 52 ] However, the Court went on to state that certain precautionary steps should be taken by the trial judge to ensure the confidential nature of the records. The Court of Appeal suggested that the procedures take place in an in-camera voir dire to review the documentation to determine its relevancy and probative value and then making a decision on the voir dire .

The Court stated the following: “Certains tempéraments doivent être apportés à cette règle de la confidentialité lorsque les renseignements qu’elle protège sont essentiels à la mise en oeuvre des droits fondamentaux d’un accusé. Dans tous les cas, il appartiendra au juge du procès d’évaluer la pertinence et la valeur probante des renseignements don’t l’accusé réclame la divulgation en regard de l’effet préjudiciable. (para. 22) ... De plus, compte tenu de la nature de la

Loi sur la protection de la jeunesse (une mesure normative de protection sociale) et de l’objectif qu’elle poursuit (la protection de l’enfant don’t la sécurité et le développement sont compromis), le dévoilement du dossier du Tribunal devra être assorti de modalités restrictives susceptibles d’en atténuer les conséquences préjudiciables.

Des moyens d’accommodement tels le huis clos, la garde sous scellé, l’anonymat des personnes ayant procédé au signalement, les ordonnances et engagements de non publication figurent parmi les mesures de mitigation susceptibles de tempérer l’assouplissement de la règle de la confidentialité lorsqu’elle confronte la mise en oeuvre des droits fondamentaux garantis par la Charte .” (para. 23) [ 53 ] In 2004, the Quebec Court of Appeal again dealt with a similar question regarding confidentiality of a young persons record.

In Morneau c. La Reine, [2004] J.Q. no. 1234. The Accused was refused the right to obtain the previous testimony of two young personsmade in Youth Court and also made to police, in the presence of a social worker, for the purpose of cross-examination at the Accused’strial for murder in Superior Court. The trial judge decided that he did not have the required authority to direct the disclosure, of theserecords, because they were within the possession of the Youth Court and protected from disclosure.

The Court of Appeal ruled that thetrial judge had erred in that he did have the authority to order production of the files and records of the two young persons. The Courtclearly stated that the records that were being sought for production, although not in the possession of the Crown, were still producible.The Court of Appeal relied on the Supreme Court of Canada decision in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, atpara. 22, outlining that a two-part test should have been followed.

That is to determine possible relevancy, balanced against theprejudicial effect of the production of the records, all in the context of the right to make full answer and defence and the right to theprotection of privacy. [54] Following the decision in L.(J.-L.) c.

La Reine, the Court ruled that disclosure of the confidential records may be necessary inorder to ensure the Accused’s right to make full answer and defence and relied on the principles set out in paras. 22 and 23 of thatdecision. [55] The Court went on to say that in the circumstances of that case, the trial judge should have invoked the principles set out inO’Connor and L.(J.-L.) by examining the material for relevancy and probative value and then put in place the measures or stepsnecessary to ensure the protection of privacy, however, in the context of the right to make full answer and defence.

The Court stated thefollowing: “Dans les circonstances particulières de l’espèce, le juge de première instance aurait dû mettre en oeuvre les principes élaborés dansO’Connor et L. (J.-L.) c.

R. en procédant à l’examen des dossier afin d’évaluer la pertinence et la valeur probante des renseignementsdon’t l’appelant réclamait la divulgation en regard de l’effet préjudiciable et, le cas échant, en assortissant la communication des mesuresde mitigation susceptibles d’assurer la protection du droit à la vie privée dans le contexte du droit à une défense pleine et entière.” (para.29) [56] As stated earlier, although these two Quebec Court of Appeal decisions are not directly on point, in that they were not dealingwith s. 278.2(3), they applied the three principles which form the basis of s. 278.1-278.91; to make full answer and defence, privacy andequality. [57] When the Supreme Court of Canada in Mills stated: “Where the information contained in a record directly bares on the rightto make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.” (para. 94), they surely didn’tintend that there would not be the same rights just because the record pertained to a young person.

In fact, the complainant in Mills was13 years old at the time of the alleged offences in 1995. The application for the production of her psychiatric records was made on May14, 1997. Clearly, the Supreme Court knew when it set out the guiding principles in relation to s. 278.1-278.91, that they were in factdealing with the records of a young person who was no more than 15 years old. [58] In conclusion, the Supreme Court of Canada found that the privacy rights of a young person “must yield” to the Charterguarantee of the right to make full answer and defence.

It makes no difference whether those privacy rights of a young person arecodified in either federal or provincial legislation. Such legislation does not trump the Charter or the principles set out by the SupremeCourt in defining the purpose of s. 278.1 to s. 278.91. G. Question 6: At what stage must the Crown disclose who the other persons are to whom the record may relate? [59] Finally, there is the question of at what point does the Crown’s obligation to disclose the identity of potentially affectedpersons arises. This has, as a secondary aspect, the question of how to characterize this obligation.

Is this information that must bedisclosed as relevant via the R. v. Stinchcombe obligation? Is this issue better framed as an R. v. O’Connor, (SCC),[1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235 application for disclosure of information held by a third party? I conclude it is neither, as isexplained below. [60] Criminal Code, s. 278.3(5), requires the Accused: ... serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, ...

and on any other person to whom, to the knowledge of the accused, the record relates ... The application must be in writing and comply with a specified return date and with s. 278.3(3). [ 61 ] The first step in the s. 278.4(1) application is the preliminary hearing, which is to be conducted in camera by the Judge. The purpose of the preliminary hearing, or first stage, is whether the Prosecutor or the custodian of the record, should be required to produce the record for judicial review.

As I have previously explained that hearing requires the Judge allow the appearance of any person to whom the record relates, hear their submissions, and take into account the privacy and equality rights of those persons to whom the record relates, along with the factors outlined in s. 278.5(2) . [ 62 ] It therefore follows that if the other persons to whom the record relates were not notified of the application, than they obviously would not know of their right to be present and make submissions.

Further, the Judge would not be in a position to evaluate the mandatory factors identified in s. 278.5(2) , particularly s. 278.5(2) (e). [ 63 ] I therefore conclude that the obligation on the Crown to disclose the identity of related persons arises as part of the Criminal Code , s. 278.2(3) notification process. This is neither a R. v. O ’Connor or R. v. Stinchcombe obligation, but rather a statutory obligation that flows from the Crown’s obligation to identify a record in the possession or control of the Prosecutor and describe its general character.

Presumably the Accused may request additional information if that is required to discharge the Criminal Code , s. 278.3(5) service and notification obligation. A dispute on that form of disclosure would, presumably, operate in a manner analogous to a R. v. Stinchcombe application, however with this judgment it seems probable that kind of disagreement would be unlikely. VIII.

Conclusion [ 64 ] The function and scope of the Crown obligations under s. 278.2(3) can be determined by a reading as a whole of the Criminal Code sections regarding the production of records in sexual offense proceedings (s. 278.1 to 278.91). Sections 278.4, 278.5 and 278.7 have imposed upon Judges certain specific obligations during consideration of whether records should be examined and disclosed in sexual offense proceedings.

A Judge cannot discharge his or her duties mandated in those sections without having the appropriate parties before him or her. [ 65 ] The only way to ensure that the persons to whom the private and confidential records relate can be before the Judge and make submissions as to their affected interests is if those persons have received notice of the application. The Accused has the obligation to serve the application on all the appropriate parties, including any person to whom the record relates: Criminal Code , s. 278.3(5).

The Accused cannot discharge his or her duty, and in turn allow the Judge to discharge his or her duties and obligations without the Accused knowing the identities of the parties affected by these sections. [ 66 ] In

summary, the duty of the Prosecutor under Criminal Code , s. 278.2(3) must be read in the context of the entire Criminal Code , s. 278.1- 278.91 scheme. For all of the reasons stated above, that duty to disclose includes the general type of record in the possession or control of the Prosecutor, the names of any complainant, witness, or any other person to whom the record relates, including young persons. At no time is the Prosecutor to disclose the record’s contents to the Accused, unless ordered to do so by the Judge after the procedures set out in s. 278.4 , 278.5 and 278.7 are complete.

Heard on the 24 th & 25 th days of May, 2012. Oral decision delivered on the 25 th day of May, 2012. Dated at the City of Edmonton, Alberta this 15 th day of June, 2012.

V.O. Ouellette J.C.Q.B.A. Appearances: Marisa Anderson Alberta Justice for the Crown Aleksandra Simic Beaver Leebody Frank & Simic for the Accused