R. v. R.B.P. Date:, 2017 BCPC 159

Citation: R. v. R.B.P. Date: 20170512 2017 BCPC 159 File No: 36346-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.B.P. RULING ON STAGE 2 DECISION IN MILLS APPLICATION OF THE HONOURABLE JUDGE J. P. MacCARTHY Counsel for the Crown: L. Fontaine Counsel for the Defendant: S. Sheets Counsel for the Complainant : C. M. Hunt Counsel for the Vancouver Island Health Authority : V. McCaffrey Place of Hearing: Duncan , B.C.

Date of Hearing: May 12, 2017 Date of Judgment: May 12, 2017 INTRODUCTION [1] THE COURT: R.B.P. (the "Accused") has been charged with an offence that: ... between August 1st, 2013, and October 18th, 2013, at or near Lake Cowichan in the Province of British Columbia, did for a sexualpurpose, touch, directly or indirectly, with a part of his body or with an object the body of A.P., a person under the age of 16 years,contrary to s. 151 of the Criminal Code. [2] The Complainant, A.P. (the "Complainant"), who is presently 10 years of age and at the time of the alleged offence was sevenyears of age, is the daughter of the Accused. [3] The Complainant is presently under the care of the Ministry of Children and Family Development ("MCFD") and MCFD is theguardian for the Complainant. [4] In the course of this trial before me, defence brought on a Mills application pursuant to s. 278.3 of the Criminal Code forproduction of certified medical records and reports relating to the treatment, diagnosis, and opinions which were in the possession ofVancouver Island Health Authority ("VIHA") in connection with the psychiatric hospitalization of the Complainant at the VictoriaGeneral Hospital between July 3rd, 2016, to July 12, 2016 (collectively the "Personal Information Records"). [5] The application was opposed on behalf of the Complainant by MCFD in its role as the guardian of the Complainant. [6] The details of the application are set out in my Reasons for Judgment for the first stage of the two-stage process, such reasonsbeing rendered on April 12, 2017 (the "April 12th, 2017 Reasons"), with a neutral citation of R. v.

R.B.P., 2017 BCPC 135 ;[2017] B.C.J. No. 891.

The April 12th, 2017 Reasons are incorporated by reference into and form part of these reasons for the secondstage of the application. [7] In the April 12th, 2017 Reasons, I provided, inter alia, an overview of the regime set out in ss. 278.1 to 278.91 of the CriminalCode and the two-stage procedure contemplated by those sections. [8] I also reviewed and determined the applicant's compliance with the statutory procedures in initiating defence's Millsapplication. [9] The April 12th, 2017 Reasons also reviewed the applicable substantive threshold and tests for production of records noting thatthe threshold is applicable to both of the two stages. [10] The April 12th, 2017 Reasons also set out the respective positions of the applicant Accused, the Complainant, the Crown, andVIHA.

As I understand it, those positions remain the same with respect to the second stage of the application. [11] The April 12th, 2017 Reasons further noted a somewhat unique aspect of this matter, being the prior disclosure by MCFD asguardian of the Complainant of two documents to Crown counsel: 1. A July 13th, 2016, handwritten note-letter (the "Handwritten Letter") about the Complainant on VIHA letterhead signed by aphysician identified in the April 12th, 2017 Reasons as "Dr. Copey" (based on the court's

interpretation of the handwriting), and nowbased upon a further review of the medical records actually appears to be Dr. Brenda Copen. 2. A VIHA Discharge

Summary and Safety Plan made on July 8, 2016, with respect to the Complainant (the "Discharge

Summary andSafety Plan"). [12] The April 12th, 2017 Reasons note the relevant contents of those two documents. [13] The Handwritten Letter and the Discharge

Summary and Safety Plan were disclosed to Crown by the guardian and, thereafter,were disclosed by Crown to the court and to the Accused's counsel for the purposes of successfully obtaining an adjournment of the trialin July 2016, based upon medical concerns that the planned giving of testimony at the trial by the Complainant would be "extremelydestabilizing to the [the child's] mental state." [14] The April 12th, 2017 Reasons confirm my decision that defence counsel was permitted to rely upon those two documents forthe purposes of the Mills application. [15] Based upon the analysis set out in the April 12th, 2017 Reasons, I concluded that I was satisfied that for the purposes of the firststage of the two-stage process that the applicant Accused had met the likely relevance test and, specifically, that the informationcontained within the records which was the subject of the application (being information within the "Personal Information Records"),was logically probative to an issue at trial or the competence of a witness to testify.

Specifically, I expressed the view that such issuerelated to the competence of a witness to testify, namely, the Complainant. [16] Having come to that conclusion, I ruled that a review by the court of the Personal Information Records, being the subject matterof the Accused's application, was appropriate and that those documents at the first stage met the requirements for the court to considerwhether or not they are essential for full answer and defence or likely are required for full answer and defence by the Accused. [17] In the April 12, 2017, Reasons, I directed that the Personal Information Records, subject of this application, in the possession of

VIHA be turned over to the court for the purpose of the court conducting a review of those documents. [18] The Personal Information Records were turned over to me in a sealed package by VIHA's counsel at the conclusion of the April12th, 2017, hearing and following the rendering of the April 12th, 2017 Reasons. [19] The court's review of the Personal Information Records was conducted by me in the absence of the parties in accordance with s.278.6(1) and without the necessity of a further in camera hearing that is available under s. 278.6(2).

Issues for the Court to Decide [20] The issues that this court must now decide in this second stage of the two-stage process are as follows: 1. Whether I should order any part of the Personal Information Records that has been produced and reviewed by the court pursuant tothe April 12th, 2017 Reasons now be produced to the Accused pursuant to s. 278.7 of the Code (being the "First Issue"); 2. Whether the previously disclosed Handwritten Letter and the Discharge

Summary and Safety Plan are subject to the disclosureprocedures outlined in ss. 278.1 to 278.91 (being the "Second Issue"). Analysis With Respect to the First Issue [21] In dealing with the First Issue in this second stage of the process, I must, once again, instruct myself that to make the order toproduce any part of the Personal Information Records to the Accused pursuant to s. 278.7:

a) I must be satisfied that the Personal Information Records or any part of those records is likely relevant to an issue at trial and suchproduction is necessary in the interests of justice.

b) I must consider the salutary and deleterious effect of the determination on the Accused’s right to make full answer and defence andon the right to privacy and equality of the Complainant and any other person to whom the records relate.

c) I must consider and take into account the factors specified in paragraphs 278.5(2)(

a) to (

h) of the Criminal Code. [22] As aptly noted by Justice Grauer in R. v. Cardinal, [2012] B.C.J. No. 811; 2012 BCSC 603 , at paragraph 25: The parameters that govern my consideration are the same for this stage as they were for the first stage; the difference is that I now knowwhat is in the records. [23] I have performed all of these required functions in order to reach the following conclusions with respect to the PersonalInformation Records and to answer the First Issue.

Conclusion With Respect to the First Issue [24] My conclusion on the First Issue with respect to the Personal Information Records is that no part of the Personal InformationRecords should be produced to the Accused. In my view, those records do not meet the test of likely relevance; their production is notrequired to permit the Accused to make full answer and defence, and, furthermore, their production is not necessary in the interests ofjustice. This conclusion remains subject to my conclusion on the Second Issue.

Resulting Order With Respect to the First Issue Conclusions [25] In accordance with s. 278.7(6), the entirety of the Personal Information Records shall be placed into an envelope, sealed, andheld by the Registrar of the court until the expiration of any applicable appeal period and/or the disposition of any appeals. After theapplicable expiration, the Personal Information Records shall be returned to VIHA, but subject always to further order of the court. [26] The contents of that sealed envelope will be marked for identification as the next exhibit in this application, being Exhibit C.

Analysis With Respect to the Second Issue [27] I now turn to the Second Issue regarding the previously disclosed Handwritten Letter and the Discharge

Summary and SafetyPlan. [28] In the April 12, 2017 Reasons, I concluded that both documents were disclosed to Crown and then by Crown, all appropriatelyand necessarily, for the purposes of obtaining the trial adjournment in July of 2016. I further concluded that since this information hadbeen disclosed, it could be used by defence for the purposes of their application. [29] In my view, MCFD was authorized make the disclosure of these two documents to Crown Counsel by virtue of s. 79 of theChild, Family and Community Service Act, R.S.B.C. 1996, c. 46. Pursuant to s. 79, disclosure may be made by the director under thatact, inter alia, under ss. 79(

a) if it is “necessary to ensure the safety or well-being of a child.” The basis of the adjournment request as setout in the Handwritten Letter clearly meets that test. [30] The disclosure of these two documents to both the court and to the Accused and his legal counsel appears to have been not onlyappropriate, but necessary to obtain the trial adjournment, which at that time was deemed to be in the Complainant’s best interest, all forthe reasons outlined in the Handwritten Letter. [31] In my view, it is both appropriate and necessary for me to state in these reasons that the Discharge

Summary and Safety Plan isincluded within and, therefore, does form part of the Personal Information Records that I have reviewed, but that the Handwritten Letteris not included and, therefore, does not form part of the Personal Information Records.

[32] The facts about the prior disclosure of these two documents then raises the issue as to whether these two documents are subjectto the disclosure procedure outlined in ss. 278.1 to 278.91. [33] I have concluded that such is not the case. [34] In R. v. Shearing, 2002 SCC 58 , [2002] 3 S.C.R. 33; 2002 SCC 58, Binnie J. on behalf of the majority of the SupremeCourt of Canada dealt with this issue as part of their decision. The Supreme Court’s decision related to an appeal of convictions forseveral sexual offences against young girls by a cult leader.

These complainants and other members of their families were adherents tothe cult. [35] Specifically at issue was the daily diary of one of the complainants in which she made entries during an eight-month period in1970 when she was 14 years old. The day-to-day entries covered parts of the 10-year period when she alleged sexual abuse by Mr.Shearing. The complainant left the residential facility used by the cult some six years later. [36] The complainant’s mother then put some of her belongings into a cardboard box in their portion of the storage area shared withother residents.

The mother left the cardboard box in the residential facility when she moved out in 1995, several years following thecomplainant’s departure. [37] Approximately 18 months later, after the accused, Mr. Shearing, had been indicted, another resident of the house opened thecardboard box, found the complainant’s diary, and gave it to the defence. No disclosure was made to the police or to the Crown or to thecomplainant.

The defence sought to use the previously undisclosed diary to contradict the complainant on the basis of diary entriesarguably inconsistent with her evidence in chief and on the absence of any entries chronicling physical or sexual abuse. [38] The complainant objected and, at the voir dire into the admissibility of the diary, asserted a privacy interest in the diary.

Thetrial judge permitted the accused to use the diary to cross-examine the complainant on entries the defence considered probative, but didnot permit cross-examination on the absence of entries recording physical abuse by the mother or sexual abuse by the accused, Mr.Shearing. [39] Mr. Justice Binnie's reasons described how the complainant was no longer in physical possession of the diary, it having beensimply left behind and then had come into the possession of defence counsel.

He further concluded that the diary was not wrongfullytaken from the complainant, noting further his agreement with the trial judge’s conclusion that the complainant had never waived orabandoned her privacy interest in the diary. [40] At paragraphs 91 and 92, and leading up to his conclusion that the case before the Supreme Court dealt with a privacy interestof the complainant and not a property interest, he says as follows: [91] Technology has incrementally separated the close link between property and privacy.

A great expansion in privacy rights waspossible when privacy interests no longer depended on finding a property intrusion. The absence of a physical intrusion no longereliminated a corresponding privacy interest, as this Court recognized most notably in Hunter v. Southam Inc., (SCC),[1984] 2 S.C.R. 145, and R. v. Dyment, (SCC), [1988] 2 S.C.R. 417.

The treatment of personal records in ss. 278.1 to278.9 is built on the premise that a person's reasonable expectation of privacy in personal information in documents is not necessarilyinconsistent with a third party's property interest in the actual physical documents, as for example with documents held by mental orphysical health services personnel.

Moreover, privacy interests are not lost when the adverse physical possession is itself wrongful (as inthe case of financial records seized by the police from the stolen safe in Law, supra) or for a limited purpose (as with the blood and urinesamples given for medical purposes and subsequently seized by the police in Dyment, supra, and R. v.

Colarusso, (SCC), [1994] 1 S.C.R. 20). [92] A property interest may reinforce the reasonable expectation of privacy, where the physical ownership and the privacy interestcoincide, but loss of physical possession or ownership will not necessarily defeat a person's privacy interest in personal informationcontained in the document in question. [41] An important argument was presented to the Supreme Court regarding the use of ss. 278.1 to 278.9 to achieve restoration ofdocuments to complainants that were already in the hands of the defence by putting the process into reverse. [42] At paragraph 95, the majority decision rejects the argument that: ... the machinery of ss. 278.1 to 278.9 can be put into reverse, i.e., it contemplates taking documents already in the hands of the defenceand restoring these to the complainant, thus requiring the defence to make a fresh application for the document just removed from itspossession.

In my view, this

interpretation is unduly contrived and does violence to the statutory language. It draws the alleged purposeof ss. 278.1 to 278.9 too widely (certainly much more widely than the preambular language) and presupposes that the court can rewritethe text of the statute to accord with the court's own extrapolation of Parliament's purpose. This cannot be correct. Here the state is notusing its coercive power to compel production in ways which invoke s. 8 of the Charter ("unreasonable search or seizure").

Nor does thepresent case raise Parliament's specific concerns in ss. 278.1 to 278.9 about protecting the confidential relationship of a patient-therapist,nor the encouragement of victims of sexual assault to seek professional treatment, and in turn not to discourage reporting of sexualoffences (see s. 278.5(2)(

f) and (g)). [43] At paragraph 97, the Supreme Court goes on to note that the procedural machinery set out in ss. 278.1 to 278.9 “cuts” againstthe above-noted argument. The “cut” is characterized by the resulting suggested requirement that an application must be brought by thedefence when they are already in possession of a record that falls within the scope of those sections.

Thus, s. 278.3(5) would require theself-service of a notice and a subpoena on the applicant accused, as the person in possession or control of a record, seeking an in camerahearing for a judge’s decision to review or not review a document, in theory not known to that applicant and for determination whether toproduce it to that same accused applicant, when it is already known and in the possession of the accused applicant. [44] Arguably, the prior disclosure of the Handwritten Letter and the Discharge

Summary and Safety Plan in the present case before

this court touches on Parliament’s specific concerns in those sections about protecting the confidential relationship of a patient-therapist and encouragement of victims of sexual assault seeking professional treatment. [ 45 ] However, in the present case, certain aspects of that confidential relationship and of the nature of treatment received and recommended for the Complainant have already been necessarily disclosed by the Complainant’s guardian earlier in this matter and prior to the commencement of the trial in pursuit of and by way of the successful trial adjournment application. [ 46 ] Binnie J. further remarks at paragraph 96 that it was a simple fact in Shearing that the defence was in possession of the complainant’s diary, however, defence was not thereby engaged in a “fishing expedition.” Binnie J. goes on to discuss that an important distinction must be drawn between production on one hand and admissibility on the other. [ 47 ] The Supreme Court states it as follows: [96] The simple fact is that the defence had possession of the diary.

It was not engaged in a "fishing expedition". The issue for the trial judge was the admissibility of the contents. Sections 278.1 to 278.9 nowhere refer to "admissibility" or "evidence", and understandably so, for as L'Heureux-Dubé J. pointed out in O'Connor , supra , at paras. 164-66, the considerations governing production and admissibility are quite different. To treat production as a proxy for admissibility would complicate proper hearings under ss. 278.1 to 278.9, where trial judges proceed on the basis that the issue at the early stage is only production.

Admissibility is properly left to be determined later when the matter is ripe for decision. [ 48 ] I am of the view that, in addition to admissibility, the future intended use of the Handwritten Letter and the Discharge

Summary and Safety Plan may become the subject matter of a later determination by the court during the course of the trial. [ 49 ] In reaching my conclusions in this matter before me, I am mindful of the decision of the Ontario Superior Court of Justice in R. v. Gray , [2015] O.J. No. 2633 ; 2015 ONSC 3284 , which concluded that s. 278.1 to 278.9 should remain available to rectify situations when private records had been illegally disclosed.

As I understand the facts in Gray , Crown had inadvertently and negligently disclosed to defence a DVD recording of a therapy session with the child complainant without any waiver under s. 278.2(2). [ 50 ] The factual situation in R. v. Gray , amounting to “illegal disclosure” of a record, does not exist in the case before me. Conclusions With Respect to the Second Issue [ 51 ] Based on all of the above, I have concluded that the Handwritten Letter and the Discharge

Summary and Safety Plan are not subject to the scope of the procedural machinery set out in sections 278.1 to 278.9. Furthermore, the R. v. Gray rectification approach to illegal disclosure is not available in this case. [ 52 ] The admissibility of those two documents and their potential use in the trial will be subject to a decision at the appropriate time. [RULING ON STAGE 2 DECISION IN MILLS APPLICATION CONCLUDED]