R. v. C.V.G. Date:, 2017 BCPC 259

Citation: R. v. C.V.G. Date: 20170719 2017 BCPC 259 File No: 101576-1-K Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.V.G. RULING ON APPLICATION OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Mr. Abel Fok Counsel for the Accused: Ms. Emily Gray Counsel for the Complainant, S.J. : Ms. Natalie Hebert Counsel for the Director of Child, Family and Community Services: Mr. Graham Kay Place of Hearing: Kamloops , B.C.

Date of Hearing: June 27, 2017 Date of Judgment: July 19, 2017 [1] C.V.G. is charged with assaulting S.J. on June 23, 2016.

The Information relating to this charge was laid on April 14, 2016.The arraignment was October 31, 2016. [2] This is an application by C.V.G. for an order that all of the Ministry of Child and Family Development incident reports,records, complaints, audio recorded telephone calls, notes by social workers or other MCFD personnel including interview notes madeby Rae Porterfield and all correspondence between Rae Porterfield and S.J. or S.J. and other MCFD personnel be produced. [3] The application comes late in the day. The trial is scheduled for September 6, 2017.

The Director and S.J. were not served withthe application until the beginning of June. Defence appear to be under the misconception that Crown attended to service of documentslike these because of the practice in Vancouver of Crown to do so. However, Ms. Gray conceded that she knew of these records and theirpotential importance as early as February this year. [4] Given the constraints placed on parties to pursue these charges more swiftly per the Supreme Court of Canada decisions in R. v.Jordan and R. v.

Cody, it behoves the Crown to make the earliest possible disclosure and the Defence to make the earliest possiblereview of their files. This application was originally served without proper notice to the Director and certainly without adequateopportunity to respond to what could potentially be quite problematic for privacy and confidentiality concerns. [5] This file was arraigned in October, the trial date fixed in January and the pre-trial conducted in February. Presumably all theseissues were known or suspected at the arraignment in October.

This application ought to have been brought as soon as disclosure wasmade and Defence established that the Crown was not in possession of the Director’s records in the form of statements or investigativeproduct. It further behoves Defence counsel to determine local practice when practicing out of their own area. The Crown has no moreobligation to serve complainants or third parties with Defence motions than it does to produce clean copies of witness statements at trialsfor the benefit of Defence cross examination.

Much time may have been saved had this all been sorted in February at the latest. [6] Proceeding in this fashion resulted in the two part hearing being heard on a single day. Consequently, before the determinationis made on the first part of the test, I also heard submissions on the second part of the test. This is not the most desirable manner in whichto proceed. [7] The application is premised on the report of S.J. to her social worker, Rae Porterfield of an assault by C.V.G. However, S.J.declined to report the assault to the police. Ms. Porterfield apparently reported the allegations and arranged for Cst.

Lachapelle to attendS.J.’s residence. On that occasion, Cst. Lachapelle was able to obtain a statement from S.J. [8] Other important factors are that S.J. and C.V.G. were living together in a relationship at the time of the alleged assault and it isexpected that S.J. will be the central witness to the Crown’s case at trial. [9] The Crown takes no position with respect to this application. [10] The Director is opposed to the application. The Director’s concern is that the Ministry records are collected under a statutoryregime automatically bringing privacy issues into play even absent any policy issues.

The Director acknowledges that the privacy issuesare to be balanced at the second stage, not the first one. [11] Mr. Kay argued that C.V.G. requires the records primarily to assail the credibility of S.J. because she did not report the assaultto the police. This, he argued, does not meet the test for “likely relevant”. [12] S.J. is also opposed to disclosure of the records, focusing her argument on the issue of significance. The notes taken by thesocial worker are not comments clarified or confirmed by the complainant and nor are they accurate. Therefore, they would not meet therequisite level of significance.

In addition, Ms. Hebert argued that the notes would go to mind set but there is nothing in the material thatsuggests Ms. Porterfield is a mental health worker and able to make any decisions about the complainant’s state of mind. [13] Ms. Gray responded that she requires the records not only for the “failure to report” aspect but also for the narrative as eventsunfolded and to determine if other material contained in the records will assist C.V.G. in making full answer and defence. [14] There is no dispute amongst counsel that the application is a two-stage process.

The applicant must first establish the material islikely relevant and, if likely relevance is demonstrated, the court may order the production of the documents for inspection. Oninspection, the judge determines the true relevancy of the material and, if it is clearly irrelevant, production is not ordered. Theseprinciples arise from the decision of R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, from which these O’Connorapplications take their name. [15] Drawing from R. v. McNeil, 2009 SCC 3 , 2009 S.C.C. 3 at paragraph 33, Ms.

Gray argued that the “likely relevant”test is not an onerous threshold; considerations of privacy interest do not factor into the analysis; and the applicant is not required toarticulate the specific use for which the information or material will be used: 33 "Likely relevant" under the common law O'Connor regime means that there is "a reasonable possibility that the information islogically probative to an issue at trial or the competence of a witness to testify" (O'Connor, at para. 22 (emphasis deleted)).

An "issue attrial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, butalso "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case" (O'Connor, at para. 22). At thisstage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be usedat trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible

Catch-22 position. [16] Ms. Gray argued that the records are likely relevant for the following reasons, which I take from her submissions:

a) The MCFD Records at issue relate to the Complainant of these criminal proceedings. The Complainant’s credibility will be a centralissue at trial. The RTCC discloses information that the Complainant reported the alleged incident to her social worker, Rae Porterfield,but that the Complainant refused to report the alleged incident to the police. The RTCC further indicates that Rae Porterfield called theMerritt RCMP, who subsequently attended the Complainant’s residence. Therefore, it is likely that the MCFD Records will containinformation relevant to the Complainant’s credibility and mindset at the time of the alleged incident.

b) The MCFD Records may also contain inconsistencies pertinent to the Complainant’s credibility and reliability as a witness.Production of the MCFD Records is required in order to assess the consistencies and inconsistencies with the already disclosedstatements of the Complainant, which may assist in an assessment of the Complainant’s credibility and reliability and assist in the cross-examination of the Complainant.

c) The involvement of the MCFD is an intervening event - in other words, after the alleged incident and prior to police involvement. Assuch, the MCFD Records will likely contain information concerning the unfolding of events underlying the criminal complaints.

d) The MCFD Records may contain information that contradicts the Crown’s theory regarding the Applicant.

e) The MCFD Records may contain information that assists the defence in pursuing “other avenues of investigation” necessary to theApplicant’s right to make full answer and defence (see para. 44, McNeil).

f) The MCFD Records may contain information that assists the defence in determining whether or not to call evidence a trial and, ifso, what evidence to adduce. [17] Each of the reasons fall squarely within the McNeil decision. Ms. Gray argued that with S.J.’s testimony being the primaryevidence against C.V.G., C.V.G.’s ability to make full answer and defence is “inextricably linked to the acquisition of information thatcould assist her in challenging the Complainant’s evidence and credibility”.

If the records are not produced, C.V.G. would be precludedfrom making that full answer and defence and from having a fair trial. She also argued that the probative value of the records would behigh given the potential for impeachment purposes. This, she argued, meets the likely relevant test. [18] Mr. Kay argued that while the threshold is not onerous, the “likely relevance” must still be significant. This does not simplymean identifying an issue.

He referred to O’Connor at the following passages: 21 … The “likely relevance” stage should be confined to a question of whether the right to make full answer and defence isimplicated by information contained in the records.

Moreover, a judge will only be in an informed position to engage in the requiredbalancing analysis once he or she has had an opportunity to review the records in question. … 22 In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to thedefence … In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is areasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.

When wespeak of relevance to “an issue at trial”, we are referring not only to evidence that may be probative to the material issues in the case (ie.,the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case … 24 While we agree that “likely relevance” is the appropriate threshold for the first stage of the two-step procedure, we wish toemphasize that, while this is a significant burden, it should not be interpreted as an onerous burden upon the accused.

There are severalreasons for holding that the onus upon the accused should be a low one. First, at this stage of the inquiry, the only issue is whether theinformation is “likely” relevant. … A relevant threshold, at this stage, is simply a requirement to prevent the defence from engaging in“speculative, fanciful, disruptive, unmeritorious, obstructive and time consuming” requests for production … [19] In R. v. Batte, (ON CA), 2000 CarswellOnt 2113, at paragraph 75, the Ontario Court of Appeal said this: 75 The determination of likely relevance under the common law scheme requires the same approach.

The mere assertion that arecord is relevant to credibility is not enough. An accused must point to some “case specific evidence or information” to justify thatassertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the recordscontain information which is not already available to the defence or has potential impeachment value. [20] Mr. Kay argued that the Defence makes this application entirely for impeachment reasons. However, the police attended on thesame day that Ms. Porterfield reported the allegations and took a statement directly from S.J.

Therefore, the police statement taken fromS.J. not only negates this but renders the record made by Ms. Porterfield less likely to be relevant or significant. [21] As Ms. Gray pointed out, Batte is a decision from 2000 which predates McNeil. However, it cannot be dismissed outright.Simply because a record may relate to credibility does not raise it to that level of significance that makes it “likely relevant”. [22] As Mr.

Kay argued, weight must be given to the term “significance”, referring to paragraph 29 of McNeil: 29 It is important to repeat here, as this Court emphasized in O’Connor, that while the likely relevance threshold is “a significantburden, it should not be interpreted as an onerous burden upon the accused” (para. 24).

On the one hand, the likely relevance threshold is“significant” because the court must play a meaningful role in screening applications … The importance of preventing unnecessaryapplications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminalproceedings remains a pressing concern, more than a decade after O’Connor.

On the other hand, the relevance threshold should not, andindeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that mayassist in making full answer and defence, “to demonstrate the specific use to which they might put information which they have not even

seen”… [ 23 ] In a decision of our Supreme Court, R. v. Bartkowski , [2004] B.C.J. No. 2946 , the court said this at paragraphs 11 and 12: 11 Since O’Connor, courts have grappled with the need for an evidentiary or informational basis to establish likely relevance. As I understand the decisions, the court cannot determine likely relevance in a vacuum. Accordingly, it is not enough for the defence to speculate that the records sought may contain relevant information affecting the credibility of the witnesses.

Instead, the defence must demonstrate, on the evidence and information available to the court, that there is information in the particular records that has some potential to affect credibility. This is the significant but not onerous burden referred to in O’Connor. Defence counsel contended that the cases discussed below have either modified or added a gloss to the majority decision in O’Connor but I disagree. 12 In R. v.

Batte, … [the court] rejected a broad defence contention that, on an O’Connor application, any record containing a statement by the complainant referred to the alleged abuse giving rise to the charges, or other matters that could affect her credibility, was likely relevant, even absent any suggestion that the statements differed from or added anything to the complainant’s statement and earlier testimony. Instead, the court held the mere assertion that a record is relevant to credibility is not enough; the assertion must be grounded in some “case specific evidence or information” (para. 75).

The accused must be able to demonstrate that the statements contained in the record have some potential to provide added information to the accused or some potential to impeach credibility (para. 76). [ 24 ] I note that Bartkowski also predates McNeil but I find it and Batte lend definition to “significance”, particularly in view of the comments made by the court in McNeil at paragraph 28 : 28 … The applicant must therefore justify to the court the use of state power to compel their production - hence the initial onus on the person seeking production to show “likely relevance”.

In addition, it is important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in “fishing expeditions” for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function. [ 25 ] Mr. Kay argued that credibility cannot be assailed merely on the premise that a victim of an alleged domestic assault refused or failed to report the matter to the police.

There are other overarching and compelling reasons why domestic violence victims do not report incidents or assaults to the police including their own negative prior contacts with the police, embarrassment and “everything between”. This caution has been extended to sexual assault complainants who do not report to the police and must be extended to domestic violence complainants as well. [ 26 ] I agree. However, Ms.

Gray’s application also extends to what will presumably be a comparison of the events as related to the social worker and as related to the police officer as well as other factors that may be revealed that would go to the credibility of S.J. In my view, this makes it likely relevant to the proceedings. [ 27 ] The question is whether this likely relevance meets the standard of significance. Certainly, credibility is a significant factor in any proceeding where there are only two witnesses: the accused and the complainant. On this point, Ms. Hebert argued that the notes are the social worker’s notes, not S.J.’s.

The comments have not been clarified or confirmed by the complainant and they are not accurate. That may be so, but it is for the Defence to attempt to impeach the complainant even if the notes themselves cannot be admitted as evidence.

It does not mean they are not likely relevant or that they are not significant. [ 28 ] The right to make full answer and defence is implicated by the information in the records; the information may be useful to the Defence; there is a reasonable possibility that some of the information in the records is logically probative to an issue at trial; and the records may afford the Defence an opportunity not only to challenge the Crown theory of the case but to pursue other lines of investigation. [ 29 ] Therefore, I find that the records with respect to S.J.’s complaint to Ms.

Porterfield of the alleged assault are likely relevant within the definition of the test set out by the Supreme Court of Canada. [ 30 ] This brings me to step 2 of the proceedings which is an inspection of the records to determine if they are “clearly irrelevant”.

In determining this, I take guidance from paragraph 35 of McNeil : 35 In O’Connor , this Court provided the following list of factors for consideration in determining whether or not to order production to the accused (at para. 156): (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; [and] (5) the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question.

The factors set out in O’Connor should not be applied mechanically. It should be kept in mind that O’Connor involved the production of the complainant’s private records in proceedings for a sexual offence, an area of law subsequently overtaken by Parliament’s enactment of the Mills regime. Some of the factors listed in O’Connor , in particular items 4 and 5 above, were obviously tailored to meet the exigencies in sexual assault proceedings and, consequently, are unlikely to be of assistance in other contexts.

Ultimately, what is required at this second stage of the common law regime is a balance of the competing interests at stake in the particular circumstances of the case. No exhaustive list can be crafted to suit every situation … [ 31 ] Ms. Gray argued that while embedded privacy regimes have to be taken into account, the Constitution and Charter are paramount. Any privacy concerns can be dealt with by redactions. [ 32 ] In considering the balance, Ms. Gray argued that while the records are necessary for impeachment, there are also other factors to be considered.

The complaint to the social worker is an intervening event in terms of the unfolding of events. It is necessary to obtain

the records in order to determine which witnesses the Defence will call, which evidence will be led, and how to prepare for cross examination. I agree that these are all important factors for making full answer and defence. [ 33 ] Ms. Gray argued that the McNeil decision makes it clear that anything that can assist in making full answer and defence, even if it is not relevant or admissible at trial, should be disclosed. Indeed, disclosure must be ordered unless the content is clearly irrelevant. [ 34 ] Mr.

Kay argued that full answer and defence has to be placed in the context of the purpose of the preparation of the records. These records are prepared when there is either a voluntary call or a call regarding the wellbeing of a child. The nature of the records themselves is with a view to child protection. The social worker’s function is to assess whether the children are in need of protection. The question I must ask myself in balancing the competing interests, Mr. Kay argued, is to what extent these records go to the issue of the alleged assault. With that in mind, Mr.

Kay argued that if the records are to be disclosed, nothing that does not go specifically to the alleged assault should be disclosed. [ 35 ] Mr. Kay referred to

Part V of the Child, Family and Community Services Act which deals with freedom of information and protection of privacy. The relevant portions are s. 74(e.1), s. 75, and s. 79 as follows: 74(e.1) the authority for a public body to disclose personal information under

section 33.1 (1) (

q) or (

r) or (7) or 33.3 does not include the authority to disclose information that could reasonably be expected to reveal that (

i) a child is a child in care, or (ii) an individual is an individual who has made a report under

section 14 of this Act; 75 A person must not disclose information obtained under this Act, except in accordance with (

a) section 24 or 79 of this Act, or (

b) the Freedom of Information and Protection of Privacy Act , subject to

section 74 of this Act. 79 A director may, without the consent of any person, disclose information obtained under this Act if the disclosure is (

a) necessary to ensure the safety or well-being of a child, (a.1) necessary to ensure the safety of a person, other than a child, (

b) required by

section 64 or by order of a court in Canada to be made to a party to a proceeding, (

c) authorized by the Youth Criminal Justice Act (Canada), (

d) required by an enactment, (

e) necessary for a family conference, mediation under

section 22 or other alternative dispute resolution mechanism, (

f) made when giving or when validly compelled to give evidence in a proceeding, (g) [Repealed 1997-11-32.] (g.1) necessary to conduct a review under

section 93.2, (g.2) made in order to release a report, or part of a report, finalized under

section 93.2 (2) (b), in accordance with a regulation made under section 103 (2) (r.1) (ii), (

h) necessary to enable the Public Guardian and Trustee to perform duties and exercise powers as a child's property guardian under this Act, (h.1) made to another director, (h.2) made to a director of adoption to facilitate the adoption of a child if (

i) the child is in the continuing custody of a director, or (ii) a director is the child's personal guardian under

section 51 of the Infants Act (

i) made to a director's legal counsel, (

j) made in Canada to caregivers or prospective adoptive parents and the information relates to children in their care, or (

k) made in Canada and necessary for the administration of this Act. (l) [Repealed 2004-60-85.] [ 36 ] To that end, Mr. Kay argued that if records are to be disclosed, any names of people who have been making reports in relation to the possible safety of the children as well as the names of the children shall be redacted. On that point, he provided R. v. Pickton , [2005] B.C.J. No. 3250 . Mr. Pickton had sought production of Ministry of Child and Family Development records in relation to one of

the anticipated witnesses for the Crown. After applying the O’Connor decision (the Pickton decision predating McNeil ), the court order limited production of the Director’s file, with redactions. [ 37 ] I turn now to the O’Connor factors as they apply to this case. [ 38 ] In considering the extent to which the record is necessary for the accused to make full answer and defence, I am satisfied that the records related to the person who placed the initial call to the Ministry and the records of Ms. Porterfield in relation to the notes made by Ms.

Porterfield when interviewing a witness and S.J. are necessary for C.V.G. to make full answer and defence. Nothing that predates the call or postdates the interview with S.J. and a witness is necessary for that purpose. [ 39 ] I am also satisfied that there is probative value to the portion of the records that I order disclosed. The records may well offer other avenues of investigation, provide information for impeachment and afford probative value for C.V.G. in making full answer and defence.

I am mindful that much of the information to be disclosed is already known to C.V.G. but it is both relevant and significant in its nature with respect to these areas of preparation. [ 40 ] With respect to the nature and extent of the reasonable expectation of privacy vested in the record, I am satisfied that this is considerable. The privacy concern is not a trifling issue. The legislation itself protects the privacy of children who are the subjects of complaints, people who report concerns of a child protection nature and the subjects themselves, in particular where they cooperate in the investigation.

The regime is dependent upon people making reports where children are endangered. The privacy of those making the reports must be guarded closely.

The privacy concerns, however, can be addressed by redacting the name of the caller, redacting all information related to the names of the children or parties who are not the accused, witness or complainant, and redacting all other investigative components of this file apart from the reports relating to the allegation of assault. [ 41 ] The consideration of whether the production of the record will be premised upon any discriminatory belief or bias is also not easily dismissed in a domestic violence case.

While I am mindful of the comments made by the court in McNeil opining that the factors listed in O’Connor , particularly items 4 and 5, “were obviously tailored to meet the exigencies in sexual assault proceedings and, consequently, are unlikely to be of assistance in other contexts” (para. 35), I do not take it to mean these are never going to be of assistance in other contexts. Disclosing records based on a discriminatory belief or bias that a victim of a domestic assault would report that assault to the police falls squarely within the caution expected of this test. If Ms.

Gray sought these records solely to establish that S.J. refused to report the assault to the police and therefore there was no assault, her application would very likely fail. [ 42 ] Similarly, the potential for prejudice to the complainant’s dignity, privacy or security of the person in disclosing Ministry records in a child protection or domestic violence case should also be considered carefully.

Identifying the caller and the names of the children as well as all investigative matters pre and post interview would tend to violate S.J.’s dignity, privacy or security of her person to a degree that far outweighs the prejudice to C.V.G. in not receiving that information. The records of the initial report and the interviews of S.J. and a potential witness do not fall within this category. [ 43 ] I am satisfied that C.V.G. has met the test for disclosure of a limited portion of the records held by the Ministry of Child and Family Development.

I order disclosure of the following: 1) Ministry of Children and Family Development ICM Production Report - Incident: caller name and identifying descriptors redacted; and information regarding any children in the home redacted; and 2) Ministry of Children and Family Development ICM Production Report - Incident Response: with all information redacted other than Ms. Porterfield’s report respecting her attendance at the home with Cst. Lachapelle and her interview notes with redactions of information regarding any children in the home. [ 44 ] No other documents in the Ministry file are to be disclosed.

The disclosure as redacted is available to the Crown, Defence, Ministry and S.J. through the Registry. S.J.’s copy shall contain only those notes relating to her interview and that of the witness conducted at the same time. As in Pickton , these are private documents released for the sole and limited purpose of satisfying C.V.G.’s right to make full answer and defence. They cannot be used for any other purpose. No copies shall be made by any of these parties for any other purpose. [ 45 ] The Ministry’s original records shall be returned to Mr. Kay for return to his client.

The copy of the records provided to me shall be held sealed in the Registry until the expiration of the time for an appeal or the completion of any appeal, at which time they will be returned to the Director. A copy of the documents disclosed pursuant to this order shall be sealed as an exhibit on this application subject to further order of this court. __________________________________ S.D. Frame Provincial Court Judge