R. v. B.(Y.), 2014 ONCJ 390

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; DATE: 2014·08·08 Citation: R. v. B.(Y.) , 2014 ONCJ 390 BETWEEN: HER MAJESTY THE QUEEN — AND — Y. B., a young person Before Justice M. L. Cohen Reasons for Judgment released on August 8, 2014

L. Bridger ................................................................................................ counsel for the Crown J. Wilkinson ......................................................................................... counsel for the accused J. Birenbaum ................................................................................ counsel for the complainant Cohen, M.

J.: [1] This is my ruling on the first stage of the application for production of medical records of the complainant pursuant tosection 278.3 of the Criminal Code. [2] Y.B. is charged that sometime between April 1, 2012, and April 30, 2012, he committed a sexual assault on N.D.C. He wasarraigned before me on June 2, 2014, and pled not guilty. [3] Y.B. has applied for production of the complainant’s medical records. The application has proceeded in advance of the trialproper, which is set to continue in the fall of this year. The in camera hearing contemplated by

section 278.4(1) proceeded on July 2 and3, 2014. The Complainant is represented by counsel, and the complainant and the Crown oppose production. The records holder, theEast York General Hospital, took no

part in the proceedings. [4] The defence concedes that the medical records are records within the meaning of

section 278.1 of the Code, and that theycontain personal information of the complainant in which she a reasonable expectation of privacy. The records were subpoenaed by thedefence and have been lodged with the Court in a sealed envelope. Only the complainant and her counsel have had access to the records. [5] On July 24, 2014, as a result of the release by the Supreme Court of Canada of its decision in R. v.

Quesnelle, I heardsupplementary argument. [6] The issues to be determined at the first stage of the application are whether the accused has established that the record islikely relevant to an issue at trial or to the competence of a witness to testify, and whether the production is necessary in the interests ofjustice. [7] The complainant and the accused have raised threshold issues which must be determined before I rule on the substantivequestions. The complainant’s issue relates to waiver. The investigating police officer obtained the complainant’s authorization to therelease her hospital records to the police.

The officer then obtained a copy of the records from the hospital. The copy of the records hasremained in the possession of the police. The complainant asks the court to find that the waiver is invalid. She does not consent to theproduction and disclosure of her records. [8] The defence issue relates to the duty of the Crown on the first stage of the application for production. The Crown in this casenever obtained physical possession of the records from the police officer, and has not seen the records.

The defence takes the positionthat records in the possession of the police are in the possession or control of the Crown. The defence asks the Court to order the Crownto review the records and to disclose “whether the documents in their possession meet the first stage likely relevant test.” If this argumentsucceeds, the hearing must be adjourned to permit the Crown to obtain, review, and determine its position on likely relevance.

On thereturn the Crown would give an assessment of likely relevance, indicate the basis of its relevance, and advise whether it intends to useinformation in the records as part of its case against the accused: R. v. Quesnelle 2014 SCC 46 , [2014] S.C.J. No. 46, par. 16 [9] On agreement of the parties, the threshold issues, and the issues of likely relevance, were argued at the same time.

Theevidence on the in camera hearing consisted of the testimony of the investigating officer, P/C Kempster, a copy of the policesupplementary record of arrest, the authorization for the release of the records signed by the complainant, and the transcript of two policeinterviews, one with the complainant, and one with her boyfriend, C.T.. [10] In the result, I have found that the waiver is invalid, I have rejected the defence argument regarding the Crown’s disclosureobligations, and I have determined that the records are not likely relevant and should not be produced to the court for review.

My reasonsare as follows: Evidence on the In-Camera Hearing [11] The incident giving rise to the charge is alleged to have occurred in April, 2012. The complainant was 15, and the accusedwas 14 years of age, at the time. The complainant reported the incident to the police some seventeen months later. The accused wasarrested and charged shortly thereafter. [12] P/C Kempster, the only witness on the hearing, testified that he interviewed the complainant on October 1, 2013. In herinterview, the complainant stated that she and the accused are childhood friends, and attend the same school.

The complainant hadbroken up with her boyfriend shortly before the incident. She stated that on the day in question the accused was consoling her inside theschool, and they began to kiss. The complainant was “fine” with the kissing. The complainant then told the accused she had to go home.The accused replied that he would walk her home, but first she had to come with him. The complainant agreed and they went to asecluded area behind the school portables. [13] The complainant stated that accused told her she had to do something for him, and she said “No – [she] had to go home”. He

then pulled her pants (leggings) down, and began rubbing her vagina underneath her underwear. The complainant pushed him off and tried to pull up her pants, telling the accused she had to go home. The accused said “No”, grabbed her, pulled down her pants and her underwear, put his penis between her legs, and, “…he started, like, humping me.” The accused told the complainant she could not go home until she did what he said. The complainant states that she then began to “fake moan” until the accused was able to ejaculate.

The incident concluded and the accused walked the complainant part of the way home. [ 14 ] The complainant did not report the incident at the time.

In her statement she says that she was not bothered at first, but “… once I got a new boyfriend, it bothered me cause I’d wake up in the middle of the night, with, crying and like, I had nightmares and I just didn’t want to go back to sleep cause I was scared, or in school, not concentrated [ sic ] cause I’m always thinking that I’m getting flashbacks cause I’m in the same school as him.” The officer asked the complainant whether she had told anyone about the incident, and she replied: …well, I was admitted to the hospital 3 weeks ago I guess….They would know, the people that, at Boost would know, my ex-boyfriend, or my boyfriend actually, yeah. [ 15 ] The complainant stated she told her boyfriend, and some friends, about the incident, and provided the officer with names.

The complainant told the officer that the accused “told the whole school” she had sex with him, and she “got a bad reputation because of him.” [ 16 ] P/C Kempster interviewed the complainant’s boyfriend, C.T., on October 4, 2013. C.T. was 16 years of age at the time. He stated that he began his relationship with the complainant in June, 2012, and that in August, 2012, she told him about the incident in a text. The complainant described what had happened as a “rape”.

C.T. told the complainant that he did not consider what had happened a rape, and that the time for her to talk to the police was at the time the event occurred, not afterward. CT told the officer that his relationship with the complainant “got stronger,” and continued for fourteen months. Ct said he and the complainant broke up, but the break up must have been brief, because CT and the complainant resumed their relationship two days before the police interview. [ 17 ] CT also told the officer that in September or October, 2013, the complainant told him she had been in the hospital.

She stated that she had spoken about the incident at the hospital, that the doctors knew, and that she was “under a lot of stress because of the Y. incident”. [ 18 ] On October 7, 2013, PC Kempster attended at the complainant’s school as a result of her information that she had been in the hospital. He asked the complainant to sign an “Authorization for Release of Records.” The authorization was filed in evidence at the hearing.

The authorization allows “the Toronto Police Service and all of its agents” to have access to the complainant’s records held in the custody of Toronto East General Hospital “concerning treatment on July 1, 2013 – October 5, 2013, and/or information pertaining to the treatment.” It also allows the hospital to provide the Toronto Police Service with copies of the records. [ 19 ] The Authorization also states the following: • I understand that the information is to be used by the recipient for the purposes of Court, Evidence and Investigation. • I understand that if a charge is laid or any other court proceeding commences as a result of this or other related investigation, that these records may be turned over to the defence so that the accused person and/or defendant(

s) will have full disclosure. • I also understand that the accused person(

s) and or defendant(

s) have the right to make application to the court for access to all files pertaining to the matter that may be in the possession of any person. • I understand that I have the right to seek counsel and to have my privacy interest represented at any court proceeding. • I understand that this authorization is valid for 90 days after the date of signature . [ 20 ] The Authorization is signed by the complainant.

Although there is a provision for “Signature of Parent, Guardian, Power of Attorney,” no parent is named or signed. [ 21 ] P/C Kempster testified that he had only a brief conversation with the complainant when he asked her to sign the form. He did not recall his specific conversation with her, only his general practice. He stated that he told the complainant the records could be used as evidence. He also stated that:

• Although he had 9 years of experience as a police officer he had never applied for this type of record. He never turned his mind to the privacy interest in the record; • The complainant’s father, who is her guardian, was not present at the time. He did not obtain permission from her parent.

Although he had spoken to the complainant’s father, he did not specifically mention medical records in the discussion; • He did not read the form to the complainant; • He did not explain it in detail; • He did not recall her asking any questions; • He had no discussion with the complainant about who might see the records; • He told the complainant he wanted the records “to provide disclosure,” but he did not explain what disclosure was; • He did not explain the provisions of

section 278, nor did he explain to her how the statutory protections work, nor their purpose; • He did not explain to the complainant that she had privacy rights and that they were protected by legislation; • He did not explain the onus on the accused to apply for a court order for the records; • He did not discuss privacy rights with the complainant. [ 22 ] On January 29, 2014, P/C Kempster obtained the records from the hospital. I note in passing that, according to its terms, the authorization had expired by that date.

In any event, P/C Kempster testified that there was a larger volume of records than he expected, and the volume stopped him from looking at the records in a detailed manner. He stated that he returned to his office and skimmed the documents for two or three minutes. He stated that he “then realized I shouldn’t have them,” and that he thought he had gotten “more than I thought I was entitled to.” P/C Kempster stated that he placed the documents in a drawer. On February 3, 2014, he advised the Crown that he had the records, and took no further steps.

The Crown never took possession of the records. [ 23 ] At some point after the charges were laid, defence counsel met with the Crown for pre-trial discussions. The Crown advised the defence that the police were in possession of the complainant’s records from East York General Hospital.

Constitutional Values [ 24 ] Before turning to the threshold issues in this case, and the substantive issues on the application, I wish to briefly allude to the constitutional values informing the statutory scheme governing production of third party records. [ 25 ] In approaching an application for production in sexual assault cases, the Court must be fully alive to the three constitutional rights that are implicated: (1) the right to full answer and defence; (2) the right to privacy; and (3) the right to equality without discrimination ( O’Connor , par. 106). [ 26 ] Canadian jurisprudence has rejected a hierarchical approach to rights, which places some rights over others .

When a Court adjudicates a case where rights appear to be in conflict, its duty is to reconcile the competing rights and interests in a manner that fully respects the importance of each. Thus, in ruling on the constitutionality of Bill C-46, the Supreme Court in Mills states that: At play in this appeal are three principles, which find their support in specific provisions of the Charter. These are full answer and defence, privacy, and equality .

No single principle is absolute and capable of trumping the others; all must be defined in light of competing claims. (par. 61) (my emphasis) [ 27 ] This analysis has had significant implications for the adversarial system which governs criminal law. The court’s task in an application under the Mills regime is to seek to reconcile the competing claims in a manner that avoids systemic bias. In this task it is assisted by the

preamble to the legislation, and the legislative background summarized at paragraphs 58 and 59 of Mills : …The history of the treatment of sexual assault complainants by our society and our legal system is an unfortunate one. Important change has occurred through legislation aimed at both recognizing the rights and interests of complainants in criminal proceedings, and debunking the stereotypes that have been so damaging to women and children, but the treatment of sexual assault complainants remains an ongoing problem.

If constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament's attempt to respond to such voices. Parliament has enacted this legislation after a long consultation process that included a consideration of the constitutional standards outlined by this Court in O'Connor. ... In the present case, Parliament decided that legislation was necessary in order to address the issue

of third party records more comprehensively. As is evident from the language of the

preamble to Bill C-46, Parliament also sought torecognize the prevalence of sexual violence against women and children and its disadvantageous impact on their rights, to encourage thereporting of incidents of sexual violence, to recognize the impact of the production … of personal information on the efficacy oftreatment, and to reconcile fairness to complainants with the rights of the accused. Many of these concerns involve policy decisionsregarding criminal procedure and its relationship to the community at large.

Parliament may also be understood to be recognizing"horizontal" equality concerns, where women's inequality results from the acts of other individuals and groups rather than the state, butwhich nonetheless may have many consequences for the criminal justice system. It is perfectly reasonable that these many concerns maylead to a procedure that is different from the common law position but that nonetheless meets the required constitutional standards.

Threshold Issues [28] Before I turn to the substantive issues in this application in this case, I wish to address the threshold issues raised by thedefence, namely whether the complainant has expressly waived the application of sections 278.3 to 278.91, whether the records are inthe possession or control of the Crown, and whether the Crown has an obligation to review the records and take a position with respect to“likely relevance.” [29] I turn now to the first of these questions, whether the complainant waived her privacy interest in the records.

WAIVER [30] In Mills the court states that: Waiver should not be read in a technical sense. Where the complainant or witness, with knowledge that the legislation protects herprivacy interest in the records, indicates by words or conduct that she is relinquishing her privacy right, waiver may be found.

Turningrecords over to the police or Crown, with knowledge of the law’s protections and the consequences of waiving these protections, willconstitute an express waiver pursuant to s. 278.2(2). (Par. 106 – my emphasis) [31] Significant consequences attach to a finding of waiver in applications for production and disclosure of private records. In thecontext of the Mills regime, where a fully informed complainant has expressly waived the protection of the legislation, the

section 278.2procedure does not apply. The records will be producible as at common law: s. 278.2(2); Mills par. 106.

Thus, what is at stake for sexualassault complainants in a waiver is … the threat of disclosing to the very person accused of assaulting them in the first place, and quite possibly in open court, recordscontaining intensely private aspects of their lives, possibly containing thoughts and statements which have never even been shared withthe closest of friends or family. (O’Connor, par. 112) [32] Appreciating these consequences, where the complainant raises the issue of the validity of her waiver, the court mustcarefully scrutinize the circumstances in which the waiver was obtained to determine whether the complainant executed it withknowledge that the legislation protects her privacy interests, as well as with knowledge of the law’s protections, and the consequences ofwaiving these protections. [33] Earlier in these reasons I have set out the testimony of P/C Kempster relating to the issue of waiver.

The officer had only abrief conversation with the complainant. He did not read the form to her. He never explained the terms of the authorization to her. He didnot inform the complainant about the provisions of the Criminal Code which protect the privacy of her medical records. He did notexplain how the statutory protections work, nor that the onus would be on the accused to apply to the Court for production of the records.He did not tell the complainant she had a choice about whether to sign the authorization.

He did tell her the records were for fulldisclosure and could be used as evidence, but he did not tell her what “full disclosure” was, nor, for that matter, what “could be used asevidence” meant. He did not explain to her the consequences of waiving her rights to the statutory protections. [34] PC Kempster had never applied for this type of record before this incident. He testified that he never thought of thecomplainant’s privacy interests, and that he thought he had made a mistake in obtaining the authorization.

He agreed it was a commonprocedure for him to obtain medical records in assault cases, and that since this incident he has learned about specific procedures to befollowed in cases such as the one at bar.

Given the officer’s shock when he realized he had “overstepped the bounds” in obtaining andreviewing the records, it is doubtful that at the material time he was aware of the specific legislative restrictions governing access to thirdparty records in sexual assault cases, and why those restrictions exist. [35] Before leaving this issue, I wish to note that the complainant’s age is also a significant factor in my analysis. The YouthCriminal Justice Act recognizes the heightened privacy interests of young people, and, at

section 111 of the Act, restricts publicationwhich might reveal the identity of young persons who are victims or witnesses. One reason for this provision is that young people areparticularly vulnerable to intrusions into their privacy. In A.B. v. Bragg Communications Inc. 2012 SCC 46 , [2012] S.C.J. No.46 (SCC), Abella, J. makes the following observations, albeit in a different context: Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for youngpeople's privacy under the Criminal Code, R.S.C. 1985, c.

C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), andchild welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No.3, all based on age, not the sensitivity of the particular child. …

[ 36 ] The vulnerability of young people, and their heightened privacy interest, cast special responsibility on persons in authority who seek waivers of their privacy rights from young persons. [ 37 ] Having considered all these circumstances, I find the young complainant in this case did not have knowledge that the legislation protects her privacy interest in the records, did not relinquish her privacy rights, and did not waive the protection of the legislation. Duties of the Crown [ 38 ] The second threshold issue relates to the duties of the Crown in an application under

section 278.3 . The defence strenuously argues that the Crown is in possession of the records, and should be required by the Court to take a position on the issue of likely relevance and explain her reasons. To an extent, the Crown has taken such a position by supporting the arguments of the complainant. However the defence asks for a more intrusive approach, of the kind described in R. v. Plaunt , [2006] O.J. No. 2174 (Ont.

S.C.J.) , where the Court approved a practice of “requiring the Crown to disclose whether the records in its possession are likely relevant.” [ 39 ] I do not find any support for the defence argument in the text of the legislation, nor in the legislative intent as expressed in the

preamble to the legislation. Furthermore it seems to make no logical sense to require the crown to obtain and read private third party records in order to take a position on an application to determine whether third party private records should be read by anyone, including the judge deciding the application. [ 40 ] Plaunt is a decision of the Superior Court sitting as a court of first instance. The decision is not binding on me, nor do I find it persuasive. However there may be support for the defence argument in the recent decision of the Supreme Court of Canada in Regina v.

Quesnelle . [ 41 ] Quesnelle was a sexual assault case in which the accused applied for production of police occurrence reports involving the complainant. The reports were not made in the course of the investigation of the charges before the court, but had been reviewed by the lead investigator as part of her preparation for trial. The reports were not placed in the investigative file.

They came to the attention of the defence by the happenstance of a television documentary in which the investigator was interviewed. [ 42 ] The question before the Court in Quesnelle was whether police occurrence reports, prepared in the investigation of previous incidents involving a complainant or witness, and not the offence being prosecuted, were “records” as defined in

section 278.1 of the Code , such that the statutory disclosure limits apply. Justice Karakatsanis concluded that there was a reasonable expectation of privacy in such reports that had not been forfeited for all future purposes, and held that the Mills regime applied. [ 43 ] In the course of her reasoning in Quesnelle , Justice Karakatsanis reviewed the principles governing Crown disclosure in Stinchcombe , O’Connor , McNeil and Mills .

In discussing the Mills disclosure regime she stated the following: Once the Crown obtains a record and determines that it is covered by the Mills regime, it must give notice to the accused: Criminal Code , s. 278.2(3). While the Crown may not disclose the contents of the record, it should in appropriate circumstances give an assessment of the likely relevance of a record in its possession, as well as indicate the basis of its relevance. At a minimum, the Crown should advise if it intends to use any information contained in records protected by Mills as part of its case against an accused.

The Crown's assessment that the record is relevant for a specific reason will likely establish a basis for the judge to order production to the court. (par. 16) [ 44 ] On its face this passage appears to support the defence position. However, on reflection, I have concluded that the obligations ascribed to the Crown in Quesnelle have no application in the circumstances of the case before me. [ 45 ] In the case at bar, the Crown has never “obtained” the records in the sense that the Crown never took physical possession of them. This fact is not in dispute.

The records were obtained by a police officer acting on an authorization/waiver which I have found to be invalid, and which the officer acknowledged was a mistake. Had the officer not obtained the records, they would have remained with the hospital, subject to subpoena by the defence for purposes of a records application. The records would have been beyond the control of the Crown. Both the Crown and the defence would have been aware of the existence of the records by virtue of the interview transcripts which formed part of Stinchcombe disclosure, and the defence would have had the right to seek production under

section 278.3 . In those circumstances, the records would have come before the court without any prior review by the Crown. [ 46 ] In my view, it would be improper to require the Crown to “obtain” the records for purposes of review and assessment, when the Crown should not have had them in her possession/control in the first place.

In the circumstances of this case, the records should be dealt with as if they had never come into the hands of the police. [ 47 ] Having disposed of the threshold issues, I now turn to the substantive issue on which I have determined the first stage of the application, the question of likely relevance. The First Stage Hearing [ 48 ] An application for production of third party records in a sexual assault case proceeds in two stages. At the first stage, the question is whether the records should be produced for the judge to review. Where the application has been made in accordance with the

governing sections, as is the case here, the records will only be produced for review by the judge if, at the in camera hearing, the judgeis satisfied that (

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

c) the production of the record is necessary in the interests of justice. [49] If the accused fails to establish that the records are likely relevant at trial, that will be the end of the inquiry. Likely Relevance [50] As defined in R. v. O'Connor, “likely relevance” means that the presiding judge must be satisfied that there is a reasonablepossibility that the information is logically probative to an issue at trial, or the competence of a witness to testify.

An “issue at trial",refers not only to evidence that may be probative to the material issues in the case (i.e., the unfolding of events), but also to evidencerelating to the credibility of witnesses and to the reliability of other evidence in the case. [51]

Section 278.3(3) sets out a number of assertions by an accused that are not sufficient on their own to establish that the recordis likely relevant to an issue at trial or the competence of a witness to testify: (

a) that the record exists; (

b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or isreceiving; (

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

d) that the record may disclose a prior inconsistent statement of the complainant or witness; (

e) that the record may relate to the credibility of the complainant or witness; (

f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witnesshas received or is receiving psychiatric treatment, therapy or counselling; (

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

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

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

j) that the record relates to the complainant's sexual reputation; or (

k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against theaccused. [52] A bare assertion, standing on its own, of one or more of the matters described in

section 278.3 (4) will be insufficient toestablish likely relevance. [53] It is important to note that the wording of s. 278.3 does not prevent an accused from relying on the assertions set out in s.278.3(4). The purpose of the

section is to prevent speculative, unsubstantiated and unmeritorious requests for production of privaterecords. Such assertions often invite reliance on …myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records [that] have too often in the pasthindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences.: R v Mills,par. 118. [54] For this reason, the mere assertion that a record is relevant to credibility is not enough.

An accused must point to some "casespecific evidence or information" to justify that assertion. The accused must be able to point to something in the record adduced on themotion that suggests that the records contain information which is not already available to the defence, or has potential impeachmentvalue. (Mills, par. 120; R.v.W.B. (ON CA), [2000] O.J. No. 2184 (Ont. C.A.) par.76.) The burden on the accuse issignificant, but not onerous. [55] In this case, the defence argues that the records are likely relevant to the issue of the complainant’s credibility.

The defencesubmits that the records may contain evidence relative to the complainant’s motive to fabricate. The defence relies for this conjecture onthe statements given by the complainant and her boyfriend to the police. [56] The complainant stated that the assault occurred in April, 2012. In June, 2012, CT became her boyfriend. The complainanttold the officer that she had not reported the incident to the police at the time because it didn’t bother her, but after she got her newboyfriend, things changed. She began to have nightmares and couldn’t concentrate at school.

Towards the end of the interview, thecomplainant stated that the accused “told the whole school” she had sex with him, and she “got a bad reputation because of him.” [57] CT told the officer that in August, 2012, the complainant told him about the incident involving the accused. At the time thecomplainant and CT were having an argument, and the complainant was saying that she had been under a lot of pressure. CT asked herwhat was wrong, and she resisted telling him, but finally she described the incident. CT told her that “I don’t consider that rape.” He

referred to it as “…something that happened in the past.” He did not encourage the complainant to contact the police. He told her “You were supposed to tell the police when it happened, not afterward.” [ 58 ] The relationship between the complainant and CT continued for fourteen months after the disclosure. They broke up and then got together 2 days before CT was interviewed by the police.

On this time frame, the hospitalization, the break-up, the reestablishment of the relationship, and the police interviews all occurred in close proximity. [ 59 ] The complainant was hospitalized three weeks prior to the police interview.

She did not say to the police officer that she went to the hospital because of the sexual assault, but she did tell CT that she spoke about the incident when she was at the hospital, and that the accused was the reason for all her stress. [ 60 ] From this information, the defence constructs a scenario in which, eighteen months after the incident, the complainant is having difficulties with her boyfriend, and is concerned about her reputation at school.

According to the defence, in order to defuse the tension in her relationship with her boyfriend, and to defuse the rumours at school, she “paints herself as a victim” and goes to the police. [ 61 ] There are some problems with this scenario. One is that there was no information that suggested that the complainant and CT had any particular tensions that needed to be defused to preserve the relationship. The complainant did not describe any tensions in her relationship with CT, and the most CT had to say on the subject was that he and the complainant had “stupid arguments”.

After the complainant disclosed the incident to CT (in a text conversation), the relationship continued for another 14 months. At the time of the disclosure CT did not seem to consider the event significant, or find in it a reason to pity the complainant. As he put it: And that was pretty much everything that happened with that conversation, then we just went on with our days and I told her “oh, I’m on my way to my friend’s house,” stuff like that. [ 62 ] The suggestion that rumours at the school created a motive to fabricate is likewise weak for many reasons.

Foremost is the fact that the complainant gave her statement 17 months after the incident. She has continued to attend the same school for the entire time since the incident. While the complainant did mention the issue of her reputation at school to the officer, this was initially in the context of being told by another student that the accused had taken advantage of other girls in the school. The complainant did not describe any specific problems or encounters she had with other students about her “reputation”. She did not express any desire to change schools as a result of this issue.

In fact she gave the impression she is quite comfortable at her school, and trusts the principal and guidance counsellor. She stated that she doesn’t skip school, “I’m not like those rebels”, and that, from a psychological perspective, she feels “well-monitored” at school. CT did not say anything about the complainant’s reputation at school, as either an issue for the complainant or as a concern. There is no evidence in the statements that the complainant spoke to the doctors about the issue of her reputation.

Thus the evidence on the application does not support the basis for relevance argued by the defence. [ 63 ] In any event, both the issue of tensions in the complainant’s relationship with CT, and the rumours at the school can, and likely will be, the subject of cross-examination of the witnesses at trial. Moreover, in addition to the complainant’s conversations with her boyfriend, the complainant spoke to four girls about the incident, and she provided their names to the officer. All these potential witnesses are available to the defence.

Private records will not be produced where the evidence is otherwise available. To justify production of the complainant’s records the accused must be able to point to evidence on the application suggesting that the medical records contain information which is not already available to the defence - a free-standing piece of evidence going to the question of whether the abuse occurred. [ 64 ] There is no suggestion that the records are directly relevant to the question of whether the accused committed the acts alleged against him.

The medical records did not arise at the time of, and do not form part of, the case against the accused. [ 65 ] The defence argues that the fact that the report to the police was proximate to the admission to the hospital supports likely relevance. While there is a possibility of materiality because of the close temporal connection between the creation of the records and the decision to bring charges against the accused, the court should approach this argument cautiously.

For the court to permit review of medical records solely because there is a temporal connection between the date of treatment and the date of reporting, would undermine society’s interest in encouraging the obtaining of treatment by complainants of sexual offences. In this case, there is no evidence that the counselling process played any role in reviving, refreshing or shaping the memory of the complainant. ( R. v . W.B .) Indeed the complainant’s first report of the incident was made to her boyfriend over a year before she went to the hospital.

To the extent the accused intends to raise the possibility that the treatment process affected the complainant’s memory or account of the event for impeachment purposes, the accused has the complainant’s statement to her boyfriend a few months after the event, and the statement she gave to the police after the hospitalization, for purposes of comparison and cross-examination. [ 66 ] While the complainant’s statement does indicate that she spoke about the incident to the doctors in the hospital, the mere fact that she did so does not make the records likely relevant to a fact in issue, or to the complainant's credibility.

In addition, a lthough the complainant’s hospitalization occurred close to the time she went to the police, it was long after the incident occurred. This gap in time raises the problematic issue of the reliability and probative value of therapeutic records, an issue which has been commented upon in the jurisprudence. (For example in Mills at par. 136: “Counselling or therapeutic records… can be highly subjective documents which attempt merely to record an individual's emotions and psychological state.

Often such records have not been checked for accuracy by the subject of the records, nor have they been recorded verbatim.”) These factors bear on the probative value of the record being sought by the accused. [ 67 ] Finally, there is no support in the evidence before me that the complainant suffered from any pre-existing mental health or psychological issues that affect her competence to testify.

There is also no basis in the record before me to find that, whatever the reason for her hospitalization, the complainant suffers from any mental or psychological conditions which would affect the reliability of her evidence.

[ 68 ] In the result, I find the accused has failed to establish the likely relevance of the complainant's records. There is no reasonable possibility that the information is logically probative to an issue at trial. The young complainant has a high privacy interest in her medical records, and they should remain private, protected even from the scrutiny of the Court. They should not be produced to the court for review, and the application is dismissed. Released: August 8, 2014 Signed: Justice M. L. Cohen