R v Blanchard, 2016 ABQB 520

Court of Queen’s Bench of Alberta Citation: R v Blanchard, 2016 ABQB 520 Date: 20160921 Docket: 150463008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lance David Blanchard Accused Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notice: The restriction on publication ended December 9, 2016.

Corrected judgment: A corrigendum was issued on November 9, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment on Mills Application #1 of the Honourable Mr. Justice Eric F. Macklin

_______________________________________________________ I. Introduction [ 1 ] Lance Blanchard, the Applicant, applies for pre-trial production of various records pertaining to the Complainant under s. 278.3 of the Criminal Code , RSC 1985, c C-46 (Mills application). II. Background [ 2 ] The Applicant faces nine counts including: kidnapping, unlawful confinement, aggravated sexual assault, uttering threats to cause death or bodily harm, attempted murder, and possession of a prohibited weapon.

The offences are alleged to have occurred around June 16, 2014. [ 3 ] The Complainant testified at the preliminary inquiry. She first appeared on June 5, 2015. The preliminary inquiry court granted the Crown’s application to have her taken into custody and held at the Edmonton Remand Centre for the duration of her testimony. Crown’s direct examination took place on June 8 to 10, 2015. Defence counsel’s cross-examination took place on June 10, 2015. She was released from custody on that date. [ 4 ] An Indictment was laid against the Applicant on July 29, 2015.

The trial of this matter is set to commence on October 3, 2016. [ 5 ] The Complainant was shot and killed on December 12, 2015 in an unrelated matter. III.

Records sought [ 6 ] The Accused seeks all records relating to the Complainant’s past encounters with the following agencies, suggesting that they may be relevant in considering her character, credibility or reliability: 1) Edmonton Police Service (EPS) and RCMP, including Edmonton Police Reporting and Occurrence System (EPROS) and updated RCMP occurrence (PROS) records 2) Victims of Crime Financial Benefits 3) Assured Income for the Severely Handicapped (AISH) 4) Alberta Correctional Centres where the Complainant was incarcerated 5) Sheriff’s, Edmonton Remand Centre (ERC) and ERC Alberta Health Services 6) Youth Court 7) Children’s Services 8) CISA report. [ 7 ] Based on the information before the Court, the record holders are the Crown, the Chief of EPS, the Attorney General of Canada (AGC), a director under the Victims of Crime Act , RSA 2000, c V-3 , a director under the Assured Income for the Severely Handicapped Act , RSA 2006, c A-45.1 , directors of correctional institutions and a custodian under the Health Information Act , RSA 2000, c H-5, the Youth Court, a director under the Child, Youth and Family Enhancement Act , RSA 2000, c C-12, and the Solicitor General for Alberta. [ 8 ] Crown has disclosed RCMP Police Information Retrieval System (PIRS) and PROS reports relating to the Complainant.

The Applicant consequently requests disclosure of: the name and whereabouts of the officers involved in the occurrences on 2012/06/23 and 2007/05/10, and an updated RCMP PROS Report. [ 9 ] Crown provided the CISA report to Applicant’s counsel for use during the preliminary inquiry. [ 10 ] The Complainant’s criminal record and the PROS report were provided to the Applicant in advance of, or during, the preliminary inquiry. IV. Argument A.

Applicant’s Position [ 11 ] The Applicant takes the position that the Crown’s case will necessarily depend almost entirely on the Complainant’s statements to the police and her testimony at the preliminary inquiry. The records in question will be relevant in determining whether the

Court should admit the Complainant’s preliminary inquiry testimony under s. 715 and her audio video recorded statements. In particular,they are relevant to whether he had a full opportunity to cross-examine the Complainant. [12] The defence theory is that the Complainant fabricated her story to exact revenge against the Accused and to cover up that shebroke into his apartment to steal property.

The Applicant points to evidence in the preliminary inquiry transcript from which it can beinferred that the Complainant was using drugs or suffered a mental illness at the time of the alleged offence, and that this would affecther behaviour, perception, reliability and credibility. He also points to the transcript as evidence of the Complainant’s animus against theApplicant.

He submits that the records are therefore likely relevant to assessing her prior evidence and statements. [13] The Applicant further submits that the Complainant’s testimony at the preliminary inquiry raises strong concerns aboutwhether she was under the influence of intoxicants or a mental illness when giving evidence. The Applicant argues that the records arerelevant to this question, and to whether she lied about her drug use. [14] The Applicant argues that the deceased Complainant no longer has a personal expectation of privacy, citing R v Sanderson(2000), (ON SC), 76 CRR (2d) 23, [2000] OJ No 2232 (Sup Ct

J) and R v BD, 2011 ONCA 51, 273 OAC 241 andthere is no potential prejudice to her personal dignity. He notes that there is no evidence that her family members are concerned aboutdisclosure of the records. [15] The Applicant concedes that some records may contain therapeutic information including those from AISH, Victim of CrimeFinancial Benefits Application, Children’s Services, Correctional Centre, and the Edmonton Remand Centre.

However, he asserts that itis highly unlikely that any of these records relate to treatment in relation to the sexual assault in issue, and it is almost impossible that theCorrection Centre and ERC records contain such information. [16] The Applicant submits that the EPS records are likely to contain information about the Complainant’s use of intoxicants,mental illness, and past offences including violent offences. [17] With respect to the RCMP records, the Applicant requires the name and location of the officers involved in occurrencesinvolving the Complainant so that the Applicant may subpoena them. [18] The information in the Victims of Crime Financial Benefits Application form requires the claimant to provide a briefdescription of the crime, the injuries sustained, and whether any assessments, medical treatment or counselling was sought. [19] AISH requires a severe handicap which could include a mental or physical impairment.

It is likely that AISH reviewed theComplainant’s medical or psychological reports. [20] The Applicant submits that the Correctional Centre Records will contain mental health and drug assessments. [21] EPS EPROS and RCMP PROS Records might relate to criminal prosecutions against the Complainant. [22] The Applicant argues that Sheriff’s, ERC and ERC Alberta Health Services records relating to the Complainant’sincarceration in June 2015 during the preliminary inquiry are likely to contain information about her behaviour in general and toward theApplicant, as well as her physical and mental health and her drug use. [23] Crown informed defence counsel that the Complainant has a youth record including an entry for robbery, which the Applicantsubmits would be relevant to her credibility. [24] The Applicant opines that Children’s Services records relating to apprehension of the Complainant’s children likely containinformation about her drug use, criminal history, and mental functioning. [25] The Applicant suggests that the 12 page CISA report likely contains information about the Complainant’s use of intoxicantsand past offences she committed, including any violent offences. [26] The Applicant cites R v Whitebear, [2012] AJ No 1271, 2012 CarswellAlta 2097 (QB) in support of his application.

B. EPS Chief’s Position [27] The Chief submits that a complainant’s death does not automatically entitle the accused to broader disclosure: R v Dick, 2009NBQB 98, [2009] NBJ No 96 at para 20.

The Complainant’s death should not have a significant impact on the application of the Millsregime; if it were otherwise, the implication would be that a complainant’s dignity will matter if she is sexually assaulted, but not if sheis sexually assaulted and killed. [28] With respect to production of police occurrence reports, the Court must take into account the impact not only on the individualwhose records are sought, but also on other members of society who may have cause to report a sexual offence or seek treatment as aresult of a sexual offence committed against them: R v Quesnelle, 2014 SCC 46, [2014] SCJ No 46. [29] The Chief notes that the Applicant seeks all records regarding the Complainant’s past encounters with the EPS and EPROSrecords where her character, credibility or reliability was brought into issue, as well as records relating to any criminal prosecutionsbrought against her.

However, the Complainant has no record of serious convictions as an adult. The records the Applicant seeks willresult in time spent unnecessarily on collateral facts. [30] The Chief submits that none of the passages from the preliminary inquiry referenced in the Applicant’s written submissionsmentions drug use, mental illness, or charges or convictions of any offences. Even if the records indicate that the Complainant wasintoxicated on other occasions, this would be irrelevant to whether she was under the influence around June 16, 2014.

The referencedpassages show that defence counsel had the opportunity to cross-examine the Complainant with respect to her drug use, and to cross-

examine her and others regarding her state of mind around the time of the alleged events. [ 31 ] The Chief also submits that if the preliminary inquiry transcript is admitted into evidence at trial, the Court will be in a position to determine whether it should be concerned that the Complainant may have been intoxicated or suffering from mental illness while testifying. [ 32 ] The Chief further argues that there is nothing to suggest the records would support the defence theory. The Applicant’s position that the Complainant lied or misperceived the incident is nothing more than a bare assertion.

The only basis in the evidence for any animosity between the Complainant and the Applicant are the very allegations on which he stands charged. [ 33 ] The Chief adds that Youth Court records, including police records regarding an offence alleged to have been committed by a young person, are subject to a heightened privacy interest and may be disclosed only under s. 123 of the Youth Criminal Justice Act , SC 2002, c 1 ( YCJA ). C.

Attorney General of Canada [ 34 ] The AGC argues that the Accused has not met the onus of demonstrating that the records sought from the RCMP are likely relevant to an issue at trial or to the competence of a witness to testify, or that the disclosure to the Court of such records is necessary in the interests of justice.

It is insufficient to assert that the records will go to the Complainant’s credibility or reliability: s. 278(4)(e). [ 35 ] The AGC notes that police agencies hold a wide range of records pertaining to bylaw offences, community standards complaints, child welfare incidents, interactions with patrolling members, and alleged criminal behaviour. Any of these records could potentially be relevant to an individual’s character, credibility or reliability. As a result, the Applicant’s request is in fact for all RCMP records even tangentially involving the Complainant.

The broadness of the request may well affect the Applicant’s ability to establish that the records sought are likely relevant to an issue at trial, even where a complainant is deceased: R v Dick at paras 20-22 . [ 36 ] The AGC further notes that the RCMP does not hold any evidence about the events of June 16, 2014. The RCMP records in question will not be relevant to any inference that the Complainant was under the influence of drugs or mental illness during the incident on June 16, 2014 or at the time of the preliminary inquiry, as they are temporally unrelated.

Nor is there any evidence to demonstrate how they will assist with the defence theory that the Complainant broke into the Applicant’s apartment and lied about the incident. The Applicant makes a bare assertion of relevance. [ 37 ] The Complainant’s criminal record and the PROS report had already been provided to the Applicant in advance of the preliminary inquiry.

The Applicant has not demonstrated that he was unable to cross-examine the Complainant with respect to dated and unrelated occurrences with the RCMP. [ 38 ] The AGC further submits that even if the records are likely relevant or go to the competence of a witness to testify, the factors in s. 278.5(2) do not support production of the RCMP records as being necessary in the interests of justice. [ 39 ] The AGC distinguishes Whitebear , cited by the Applicant, as it addressed an O’Connor application for PROS reports and Prosecutor Information Sheets for proposed witnesses in a case concerning an alleged shooting between rival gang members.

The Mills scheme had no application as no sexual offence was charged. D. Crown [ 40 ] The Crown adopts the submissions of the EPS Chief and Attorney General of Canada. [ 41 ] The Crown submits that the Applicant has not identified, nor served the notice or subpoenas on, the persons having control of the records relating to Victims of Crime Financial Benefits, AISH, Correctional Centres, Sheriffs, ERC and ERC Health Records, Youth Court, Children’s Services and CISA as required under s. 278.3(3)(a).

Crown is not a flow-through proxy for disclosure of such records: R v JEK , 2016 ABCA 171 , 2016 CarswellAlta 1045 at paras 58-59 . [ 42 ] A copy of the CISA report was provided to the Applicant during the preliminary inquiry, but the Crown did not have authority to provide a copy for the Applicant to keep.

Crown advised before or during the preliminary that the redacted Youth Court offence was robbery, but reiterated to counsel that he could obtain the records by complying with the provisions of the YCJA . [ 43 ] The Crown argues that nothing referenced in the preliminary hearing transcript establishes that the records sought are likely relevant to an issue at trial or the competence of a witness to testify. The Applicant presumes the existence of records touching on various topics, without more.

It is speculative that any of the records sought are likely relevant to issues of the credibility and character of the Complainant. V.

Legal Framework [ 44 ] As the Applicant is charged with sexual assault, ss. 278.1 to 278.91 of the Criminal Code govern production of records relating to the Complainant which contain personal information, and for which there is a reasonable expectation of privacy. [ 45 ] A Mills application under s. 278.3 proceeds in two stages: 1) the court holds an in camera hearing to decide whether to order the person who has possession or control of the record to produce it for review by the court (s. 278.5(1)); 2) if the court determines that the record should be reviewed, then the court reviews the record and decides whether to order production (ss. 278.6 and 278.7). [ 46 ] The test at both stages is whether the record is likely relevant to an issue at trial, or to the competence of a witness to testify,

and production is necessary in the interests of justice. The Accused bears the onus to establish likely relevance; speculative assertionsand stereotypical assumptions do not suffice. [47] The phrase “likely relevant” means that there is a reasonable possibility that the information is logically probative to an issueat trial or to the competence of a witness to testify.

An “issue at trial” includes not only material issues concerning the unfolding of theevents which form the subject-matter of the proceedings, but also evidence relating to the credibility of witnesses and the reliability ofother evidence: R v Jackson, 2015 ONCA 832, 128 OR (3d) 161, citing O'Connor at para 22, R v McNeil, 2009 SCC 3 at para 33,[2009] 1 SCR 66. [48]

Section 278.3(4) provides that it is insufficient, in order to establish likely relevance to an issue at trial, for the applicant tomake certain assertions. Nevertheless, with the exception of “recent complaint”, those assertions may be taken into account where thereis an evidentiary or informational foundation to suggest that they may be related to likely relevance: R v Mills, (SCC),[1999] 3 SCR 668, [1999] SCJ No 68. [49] At both stages, where likely relevance is found, the court must consider a number of factors to determine whether theproduction of the record is necessary in the interests of justice.

Those factors, which are listed in s. 278.5(2), relate to both the accused'sright to make full answer and defence, and the right to privacy, personal security and equality of the complainant and any other person towhom the record relates.

The accused’s right to make full answer and defence will prevail over the complainant’s expectation of privacywhere the lack of production would render the accused unable to make full answer and defence: Mills at para 89. [50] Finally, under s. 715, a trial court has discretion to exclude preliminary inquiry evidence of a witness who is deceased at thetime of trial, even if the evidence satisfies the s. 715 criteria, if the accused proves that he did not have full opportunity to cross-examinethe witness.

Similarly, audio and video recorded statements may be excluded where admission would be unfair to the accused: R vB(KG), (SCC), [1993] 1 SCR 740, [1993] SCJ No 22. VI. Analysis [51] The Crown noted, and the Applicant conceded at the hearing, that many of the record holders have not been identified andnotified. I agree that the Applicant has not met the requirements of s. 278.3(3)(

a) in this regard. I also agree that the Crown is not a flow-through proxy for disclosure of such records. However, the Applicant’s trial is to commence in two weeks. I have considered thearguments and the materials presented to the Court. I find that I am in a position to rule on the application as a whole. I do so solely inthe interests of efficiency.

This decision is not in any way intended to condone the approach taken by the Applicant with respect torecords controlled by persons who have not been notified. [52] It has been held in other circumstances that the expectation of privacy of a deceased person dies with that person as noted inSanderson and BD, cited by the Applicant.

Both of those cases dealt with the expectation of privacy of a deceased infant where theaccused parent was claiming the privacy interest to resist admission of the infant’s seized blood or effects as evidence at trial. [53] Where complainants in sexual offence cases are concerned, the law promotes unique and important policies which continueafter a complainant’s death: preventing potential prejudice to the personal dignity and right to privacy of any person to whom the recordrelates, encouraging the reporting of sexual offences, encouraging the obtaining of treatment by complainants of sexual offences, anddiscouraging discriminatory beliefs or bias: s. 278.5(2), Canadian Newspapers Co v Canada (Attorney General) (SCC), [1988] 2 SCR 122, 43 CCC (3d) 24, R v Canadian Broadcasting Corp, [1998] NWTJ No 156 (CA), leave denied [1999] SCCANo 33.

As noted by the courts in the latter case, while a dead complainant may have no privacy interest, a live victim - when consideringwhether or not to report the crime - may have a concern over her dignity and reputation, and that of other members of her family or thoseclose to her, whether during her life or after her death. [54] Of the eight factors listed in s. 278.5(2) to be considered in determining whether to order production, only (

c) and (

e) arepotentially affected by a complainant’s death. Given the clear and broad policy objectives reflected in ss. 278.1 to 278.91, it is sufficientto trigger the Mills process that a deceased complainant in a sexual assault case had a reasonable expectation of privacy with respect tothe record sought at the time of her death. [55]

Section 278.3(4) provides that it is insufficient, in order to establish likely relevance to an issue at trial, for the applicant toassert that the record:

a) exists;

b) relates to medical or psychiatric treatment, therapy or counselling that the complainant received;

c) relates to the incident that is the subject-matter of the proceedings;

d) may disclose a prior inconsistent statement of the complainant;

e) may relate to the credibility of the complainant;

f) may relate to the reliability of the testimony of the complainant merely because the complainant received psychiatric treatment,therapy or counselling;

g) may reveal allegations of sexual abuse of the complainant by a person other than the accused;

h) relates to the sexual activity of the complainant with any person, including the accused;

i) relates to the presence or absence of a recent complaint;

j) relates to the complainant’s sexual reputation; or

k) was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused. [56] As previously noted, aside from “recent complaint”, the above assertions may be taken into account if an evidentiary orinformational foundation suggests they may be related to likely relevance. [57] Credibility and reliability of the Complainant, and her narrative, will be issues in the trial.

However, it is insufficient in orderto establish likely relevance to an issue at trial, for the Applicant simply to assert that the record may disclose a prior inconsistentstatement of the Complainant or relate to her credibility. [58] As Doherty J.A. explained in R v WB (2000), (ON CA), 145 CCC (3d) 449, [2000] OJ No 2184 (CA): 75 ... The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence orinformation" to justify that assertion.

In my view, an accused must be able to point to something in the record adduced on the motion thatsuggests that the records contain information which is not already available to the defence or has potential impeachment value. ... 77 It will not ... suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would berelevant to the complainant's credibility. The mere fact that a witness has said something in the past about a subject matter on which thewitness may properly be cross-examined at trial does not give that prior statement any relevance.

It gains relevance only if it isadmissible in its own right or has some impeachment value. In my view, the mere fact that a complainant said something about a matterwhich could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant's statement will havesome probative value in the assessment of her credibility. [59] In R v Quesnelle, 2014 SCC 46, [2014] 2 SCR 390, the Court determined that police occurrence reports made in the course ofunrelated investigations are subject to the Mills regime.

It held: 17 The mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to anotherwise unrelated prosecution. The Mills provisions echo this Court's frequent warnings against relying on myths and stereotypesabout sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials.

For example, the fact thata complainant has reported sexual violence in the recent or distant past, provides sexual services for money, or suffers from addiction isnot, without more, enough to render a police occurrence report "relevant"...

However, occurrence reports which raise legitimate questionsabout the credibility of the complainant or a witness, or some other issue at trial, will be treated as relevant. [60] In sum, the Applicant must point to some “case specific evidence or information” to support the assertion that the record isrelevant to an issue at trial. [61] The onus is on the Applicant to establish likely relevance. In determining whether the Applicant has met the threshold test, theCourt must consider the purpose for which the Applicant could use the material sought. In my view, the grounds relied on by theApplicant are for the most

part caught by s. 278.3(4) which declares them to be insufficient. The material the Applicant seeks mightrelate to the Complainant’s credibility. It might contain a prior inconsistent statement. Both of these grounds, without more, areinsufficient to establish likely relevance. [62] It is argued that some of the material sought might also relate to the Complainant’s reliability, and perhaps not merely becauseshe had received treatment, therapy or counselling: s. 278.3(4)(f).

However, even if the Complainant had a long-term history of drug andalcohol abuse, the Applicant has not produced any evidence to suggest that such long-term use by the Complainant would impact on thereliability of her testimony.

In my view, it has not been established, beyond mere speculation, that any of the materials sought wouldcontain anything useful in relation to the Complainant’s reliability. [63] The Applicant submitted that a Victims of Crime Financial Benefits application might contain an inconsistent prior statement,as the standard form states: “you may choose to briefly describe the crime below, OR attach the statement you made to police”. It isinsufficient to assert that a record may disclose a prior inconsistent statement of the complainant.

The Complainant was briefly cross-examined on this topic during the preliminary inquiry. She thought she might have made an application.

She was not asked any detailedquestions about any of her responses to questions on the application form. [64] Having considered the arguments and the evidence referred to in relation to all of the records, I find that the Applicant has notestablished that there is a reasonable possibility that the information is logically probative to an issue at trial or to the competence of theComplainant to testify. [65] Assuming for the sake of argument that the materials are relevant to an issue at trial, production would be ordered for reviewonly where necessary in the interests of justice: s. 278.5(1)(c).

The factors to be considered in making this determination are set out ins. 278.5(2):

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. [66] The Applicant relies primarily on excerpts from the preliminary inquiry. During the Complainant’s testimony in thepreliminary inquiry, she admitted to having used drugs at various times. It also appears that she had difficulty responding to certainquestions.

There was evidence of behaviour on her part which might be consistent with drug use shortly after the time of the incident.Assuming the preliminary inquiry transcript is admitted into evidence at trial, it will be open to counsel for the accused to submit to thisCourt that it should draw the inference that her testimony was unreliable or should not be believed. [67] In my view, the records sought are unnecessary for the Applicant to make full answer and defence. The probative value of therecords sought has not been established beyond possibly assisting to establish that the Complainant was unreliable.

It seems in keepingwith the Applicant’s position that any self-reporting by the Complainant to the agencies responsible for many of the records would beunreliable. [68] Although the Complainant is now deceased, in my view she had a reasonable expectation of privacy with respect to therecords when they were created. In fact, during the preliminary inquiry, she responded to questions about the doctor who had completeda form for AISH stating “that’s confidential...Confidential. Can’t say.

I don’t have to” (transcript 757/9-13). [69] I further find that production of the records would be based on a discriminatory belief or bias, specifically that a complainantwith addiction and other lifestyle issues lacks credibility, is unreliable, and is less likely to have been the victim of a sexual offence. [70] The potential prejudice to the Complainant’s personal dignity and right to privacy may be somewhat attenuated by her death.However, society’s interest in encouraging the reporting of sexual offences and obtaining of treatment necessarily extends to the mostvulnerable people in our society. [71] Finally, in denying production, there is little risk that the integrity of the trial process will be undermined. [72] The Applicant submits that he requires the material sought to establish that he did not have a full opportunity to cross-examinethe Complainant at the preliminary inquiry.

However, s. 715 is not concerned with the fact of cross-examination but with the opportunityto cross-examine. A denial or restriction can only have taken place if the intention or desire to pursue certain questions was present andwas frustrated: R v Potvin, (SCC), [1989] 1 SCR 525, [1989] SCJ No 24 at para 28. It follows that the right to fullopportunity to cross-examine in s. 715 does not include a right to cross-examine regarding events which have occurred since thepreliminary inquiry: R v Cole (1980), (ON CA), 53 CCC (2d) 269, [1980] OJ No 595 (CA).

Nor does an accused’signorance of potentially useful information, or discovery of potentially useful information after a witness has testified, deprive theaccused of a full opportunity to cross-examine within the meaning of s. 715(1): R v Michaud (2000), (NB CA), 144CCC (3d) 62, [2000] NBJ No 75 at paras 20-21 (CA), R v Alcantara, 2015 ABCA 259, [2015] AJ No 883 at paras 62-63.

This Court’sdismissal of the application to produce the records sought will not prevent defence from arguing that counsel’s intention or desire topursue certain questions was present and was frustrated. [73] I conclude that production of the material sought would not be necessary in the interests of justice. The policy behind theMills regime is to balance an accused’s right to a fair trial with the risk of stereotypical thinking about sexual assault complainants. Here,the balance favours dismissal of the application. VII.

Conclusion [74] The Applicant has not established that the records sought by him pass the threshold test of likely relevance. Even assumingthey did, production is not necessary in the interests of justice. [75] The application is dismissed. Heard on the 19th day of September, 2016. Dated at the City of Edmonton, Alberta this 21st day of September, 2016.

Eric F. Macklin J.C.Q.B.A. Appearances: Kate Engel Thomas Engel for the Applicant Patricia Innes for Her Majesty the Queen in Right of Alberta Robert Drummond for the Department of Justice Linda Svob for Alberta Health Services Litigation & Administrative Law Katrina Haymond for the Chief of the Edmonton Police Service _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Eric F. Macklin _______________________________________________________ The title has been changed to Reasons for Judgment on Mills Application #1