R. v. X.Y., 2019 NUCJ 11

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. X.Y., 2019 NUCJ 11 Date: 20191004 Docket: 18-18-87 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: X.Y. ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): E. Baasch Counsel (Accused): M. Eaton-Kent Location Heard: Iqaluit, Nunavut Date Heard: August 12, 2019 Matters: Application for production of third party records pursuant to Criminal Code , RSC 1985, c C-46 s 278.3.

Dismissed, except on one point, for lack of likely relevance at trial. REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. BACKGROUND [ 1 ] The accused, X.Y. is charged with sexual assault. The incident is alleged to have happened between May 1, 2016 and May 11, 2018. The complainant is A.B.

The Defense has brought a third party records application seeking the Court to order the production of two sets of records pertaining to A.B. [ 2 ] The first request relates to an earlier matter. On January 3, 2008 A.B. was charged with two counts of public mischief contrary to Criminal Code section 140(1) . The charges were later stayed by the Crown on September 18, 2008. The Defense seeks production of the police occurrence reports from that file. [1] [ 3 ] The second request relates to testimony given by A.B. at the preliminary inquiry.

During her testimony, A.B. stated that she had been taking prescribed medication to help her focus. She also stated that she was not supposed to mix that medication with alcohol or drugs. A.B. was not asked by either lawyer to identify that medication. The Defense seeks disclosure of those medical records which identify her prescribed medications as well the underlying medical diagnoses. [ 4 ] Defense Counsel had issued and served a subpoena on the community Health Centre requiring the manager or designate to appear before this Court for the application, and to bring A.B.’s file.

The manager or designate failed to appear in Court as directed by the subpoena. Instead, someone at the Health Centre sent a copy of some of A.B.’s medical records directly to the Defense. In doing so, the Health Centre violated A.B.’s privacy rights and placed Defense Counsel in an awkward position. I ordered Defense Counsel to place A.B.’s records in a sealed envelope and to tender it to the Court.

Defense Counsel readily complied with my direction. [ 5 ] A.B. has a reasonable expectation of privacy in these medical records. [2] A party seeking disclosure of such records must apply to the court pursuant to Criminal Code

section 278.3 . If the Defense establishes that the records are likely relevant to an issue at trial or to the competency of a witness, and that their production for review is in the interests of justice, then I must review the records to determine whether they should be produced to the accused. [3]

[ 6 ] I heard the application on August 12, 2019 and I reserved my decision. These are my reasons for judgment. II. THE POSITIONS OF THE PARTIES A.

The applicant accused [ 7 ] The Defense position may be summarised as follows. [ 8 ] On the first issue, Defense Counsel asserted that the police occurrence reports are relevant as they contain information which raises “legitimate questions” about A.B.’s credibility. [4] “Obviously it is a scenario where the complainant is alleged to have misled a peace officer”. [5] The nature of those public mischief charges, he maintained, “provide sufficient evidence that it is necessary in the interest of justice” to justify the production of those records. [6] Furthermore, he continued, these records are relevant as they “raise legitimate questions” about A.B.’s credibility and, thus, are “paramount to the ability of [X.Y.] to make full answer and defense”. [7] [ 9 ] On the second issue, Defense Counsel asserted that the complainant’s medical records are likely relevant to her reliability as a witness. [8] Defense Counsel seeks production of those medical records which describe all the medications A.B. was taking along with the underlying diagnoses.

Defense Counsel noted that the prosecution’s case rests entirely on the complainant’s evidence. Thus, he stated, “the effect of medication and the corresponding diagnosis on reliability of the complainant’s memory or cognitive functioning is relevant to the most important issue at trial”. [9] Defense Counsel argued these records are necessary for X.Y. to make full answer and defense and that the interests of justice require their production. [10] B.

The respondent Crown [ 10 ] I will now summarise the Crown’s position. [ 11 ] On the first issue, the prosecutor stated only that the Defense has established the likely relevance of the 2008 police occurrence reports.

Thus, she continued, the records should be reviewed by the Court to determine whether they ought to be produced to the Defense. [11] The prosecutor tendered a sealed envelope containing these records for potential review. [ 12 ] The prosecutor, however, objects to production of A.B.’s medical records saying they do not pass the test of “likely relevance”. [12] The Defense request is “so broad” in scope, she continued, that it constitutes a “fishing expedition”. [13] A.B. testified that one of the medications she was taking at the time was not compatible with alcohol, so the Defense request – requesting information on all her medications and underlying diagnoses - overreaches.

Furthermore, A.B. testified that she knew what the medication was; yet, Defense Counsel did not ask her to identify it. The requested information can be obtained by asking A.B., presumably on oath at a discovery hearing. [14] III. ISSUE [ 13 ] Has the applicant-accused established the likely relevance of the two sets of records such that I should review them for possible production to the Defense? IV. ANALYSIS [ 14 ] I shall deal with each set of records in turn. A. The 2008 police occurrence reports

[ 15 ] Both counsel submitted that the Defense has established the foundation for judicial review of these records. I do not agree. [ 16 ] The records in question relate to criminal charges which were never adjudicated upon. The charges were stayed by the Crown, so they forever remain untested and unproven allegations.

Defense Counsel stated “Of course they are allegations and I believe she wasn’t convicted, but the Court is aware that in many instances the procedure in these cases is to divert the matters”. [15] However, there is no evidence before the Court concerning the reason or reasons for the stay of proceedings in 2008. [ 17 ] As noted, Defense Counsel raised the possibility that the matters were diverted to the local Justice Committee. Diversion can only happen where the accused accepts responsibility for her actions.

Had the record before me established that A.B. had accepted responsibility, then the Defense would have likely met the relevance test. However, I cannot speculate whether or not this happened in that case. [ 18 ] Furthermore, there are many reasons why a prosecution may be stayed by the Crown. For example, a so called ‘Crown stay’ [16] may be entered where the prosecutor has determined that there is no reasonable prospect of conviction.

Again, there is no evidence on this point, and I must not speculate. [ 19 ] Simply put, the potential probative value of these untested and unproven allegations is heavily outweighed, in my view, by their real prejudicial effect. These 2008 records are not necessary for the accused to make full answer and defense. Consequently, I rule that the Defense has not satisfied me that the police occurrence reports are likely relevant to any issue at trial. I return the sealed envelope containing these records to the prosecutor. B.

The complainant’s medical records [ 20 ] I do not agree with Defense Counsel that all of the medical records sought by the accused are likely relevant to an issue at trial. Nor do I agree with Defense Counsel that production of all the requested medical records is required to permit the accused to make full answer and defense.

Defense Counsel properly acknowledged that “a high degree of privacy” attaches to these records. [17] In my view, the production order sought would unnecessarily infringe upon A.B.’s personal dignity and right to privacy. [18] It would also serve to discourage the seeking of treatment by complainants of sexual offences. [19] [ 21 ] The issue of memory arises because A.B. volunteered, in direct examination at the preliminary inquiry, that “I lost part of my memory” of the incidents. [20] She testified that she had been taking a prescribed medication for focusing issues during this time which she was not supposed to mix with either alcohol or drugs. [21] [ 22 ] Defense Counsel returned to this issue in his cross-examination at the preliminary inquiry.

The following exchange is instructive [Q refers to Defense Counsel, A to A.B.]: Q. What type of medication were you taking during that time? A. At that time, sleeping pill for my arthritis, and my iron and something to help me focus, because I was grieving for my mother. Q. Do you remember what the drug was that you were taking that was to help you focus? A. (Nodding head yes). Q. How long were you taking that drug?

A. When I first - - maybe first couple of weeks. I was supposed to take it for three to six months. But because of X.Y. drugging my – drugging me from his drugs stuff, I stopped taking them. [22] [ 23 ] Defense Counsel asserted that I should review and ultimately order production of the medical records, in part, because A.B. was “not being fully forthcoming to the Court” in her testimony. [23] However, as we have just seen, A.B. was indeed forthcoming in her evidence about her medications. As I noted in the introduction, Defense Counsel at the preliminary inquiry did not ask A.B. to identify the drug at issue.

I have no reason to doubt that A.B. would have answered that question had it been put to her. [ 24 ] Defense Counsel also submitted that I should find that A.B.’s testimony may be said to contain “hallucinations”, “fantasies”, “paranoia” and “other mental health issues”. [24] Hence, his request for judicial review and production of the medical diagnoses which gave rise to the prescriptions.

I do not agree. [ 25 ] In my view, A.B. acknowledged during the preliminary inquiry that she did have difficulty remembering some aspects of her experience; but, that she recalls “the painful parts”. [25] This type of courtroom testimony is all too common. I disagree with Defense Counsel that A.B.’s testimony should permit me to infer mental illness and order the ultimate production of the underlying diagnoses for her prescriptions. Defense Counsel acknowledged “I am not a medical expert”. [26] Neither am I.

There is no evidence to support the assertion of any mental illness. [ 26 ] I also note that A.B. testified that she was prescribed the focusing medication to help her cope with grieving her mother’s death. [27] In these circumstances, Defense Counsel’s argument fails to justify the judicial review and production order sought. I rule that the Defense has not established the likely relevance of most of the sought-after medical records pursuant to Criminal Code

section 278.5(1) (b). C. The memory issue [ 27 ] The reliability of A.B.’s evidence will, however, be a live issue at trial. Central to this question will be the possible effects on A.B.’s memory of the interaction between A.B.’s focusing medication and the alcohol and drugs she admittedly consumed. In my view, production of this information is critical to the ability of the accused to mount full answer and defense to the allegations. The probative value of this information outweighs the possible negative effects on A.B.’s expectation of privacy.

It is in the interest of justice, and necessary to uphold the integrity of the trial, that this information be produced to the accused. I do not need to review the medical records in order to come to this conclusion. V. CONCLUSION [ 28 ] For the reasons I have cited, I dismiss the Defense application for the production of the police reports. [ 29 ] I also dismiss the Defense request for production of A.B.’s medical records with one exception: I direct the Crown to produce forthwith to the accused only that portion of the medical record which identifies the focusing medication prescribed for, and taken by, A.B.

The underlying diagnosis is private and must not be disclosed. [ 30 ] I direct the Court clerk to destroy forthwith A.B.’s medical records contained in the sealed envelope in the Court file. Dated at the City of Iqaluit this 4th day of October, 2019

___________________ Justice P. Bychok Nunavut Court of Justice