R v SM, 2023 ABKB 626

Court of King’s Bench of Alberta Citation: R v SM, 2023 ABKB 626 Date: 20231106 Docket: 210662318Q1 Registry: Calgary Between: His Majesty the King Crown/Respondent - and - SM Accused/Applicant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. No Publication – See the Criminal Code ,

section 278.9(1) . No person shall publish in any document, or broadcast or transmit in any way, any of the following: (

a) the contents of an application made under Criminal Code ,

section 278.3 ; (

b) any evidence taken, information given or submissions made at a hearing under Criminal Code ,

section 278.4(1) or 278.6(2) ; or (

c) the determination of the judge pursuant to Criminal Code ,

section 278.5(1) or 278.7(1) , and the reasons provided pursuant to Criminal Code ,

section 278.8 . NOTE: This judgment has been written without identifying or detailed contents, evidence, information or submissions, to comply with the publication ban and to allow its publication. Publication is permitted by order of the author. Corrected judgment: A corrigendum was issued on January 8, 2024; the corrections have been made to the text and the corrigendum is appended to this judgment. ______________________________________________________ Reasons for Decision

of the Honourable Justice M.A. Marion Pursuant to

Section 278.5 of the Criminal Code _______________________________________________________ I. Introduction [1] SM (Accused) is charged with: (1) sexual assault pursuant to

section 271 of the Criminal Code; (2) sexual interferencepursuant to

section 151 of the Criminal Code; and (3) sexual exploitation pursuant to section 153(1)(

a) of the Criminal Code. There isone complainant for each of the counts (Complainant). [2] On October 11, 2023, I was appointed Case Management Judge pursuant to

section 551.1 of the Criminal Code. The matteris presently scheduled for a 5-day trial before a judge and jury commencing on December 4, 2023. [3] In this application, the Accused applies for production to the Accused of records (Records) relating to the complainant,pursuant to the framework under sections 278.1 – 278.91 of the Criminal Code (referred to as the Mills framework based on R v Mills, (SCC), [1999] 3 SCR 668). [4] The Records comprise 36 pages of records of Alberta Children’s Services (now referred to as Children and Family Services(CFS)) from 2018. [5] For the reasons below, I decided to order production of the Records for the Court’s review pursuant to

section 278.5 of theCriminal Code. [6] If the Accused wishes to continue with his application, am ordering written submissions and a further in camera hearing,pursuant to

section 278.6(2) of the Criminal Code, for the second stage of my analysis under

section 278.7 of the Criminal Code. II. Procedural Background [7] On June 24, 2021, the Complainant was interviewed by the RCMP. The Interview has been transcribed and is part of therecord before me (Interview Transcript). [8] On July 7, 2021, based on an information sworn that day, a warrant was issued for the Accused’s arrest.

The Accused wasarrested and released on conditions on July 28, 2021. [9] On May 20, 2022, the Calgary Rural and Regional Response Office gave notice to the Accused (through defence counsel)that they are in possession of third-party records. [10] On May 24, 2022, the preliminary inquiry was held. The transcript of the preliminary inquiry is part of the record before me(PI Transcript). [11] On June 6, 2022, the Indictment issued with the three counts noted above. [12] On March 8, 2023, the Accused’s counsel requested particulars of the third-party records, namely: (

a) the general type ofrecord in control or possession of the Crown; (

b) the names of any complainant, witness, or any other person to whom the record relates;(

c) the Crown’s intention, if any, to use any information contained in the records; and (

d) an assessment of the likely relevance of therecord in the Crown’s possession. [13] On March 27, 2023, the Crown provided confirmation that they have the Records, described as: (

a) Intake form Calgary Region CFS dated July 26, 2018 (10 pages); (

b) Preview Contact Log Details – 762276 (2 pages); (

c) Safety Assessment (CFS) (11 pages); (

d) Contact Log Details – August 3-17, 2018 (5 pages); (

e) Contact Notes (handwritten) – August 16, 2018 at 5:45 p.m. (3 pages); (

f) Contact Log Details – September 19, 2018 at 12:41 (1 page); (g) “What are we Worried About” / “What’s Working Well” / “What Needs to Happen” (1 page); (

h) Contact Log Details - September 19, 2018 at 12:49 (1 page); and (

i) Contact Notes (typed) – August 28, 2018 at 4:30 p.m. (2 pages). [14] On October 24 2023, as Case Management Judge, I heard the Accused’s application for disclosure of the Records to the

Accused. The application was held in camera , with only the Accused, his counsel, Crown counsel, counsel for CFS, the Complainant, the Complainant’s guardian (a representative of the Public Guardian)( Guardian ), and a victim services representative (who attended with the Complainant by the consent of all present). Neither the Complainant nor the Guardian were represented by legal counsel, and I advised them of their right to counsel pursuant to

section 278.4(2.1) of the Criminal Code . The Complainant advised she could not afford counsel. The Guardian advised that she had obtained legal advice and decided that legal representation at the hearing was not necessary. [ 15 ] Without explanation, the Complainant (and the victim’s services representative) exited the courtroom before the in camera hearing was completed, and did not return.

However, the Complainant’s Guardian was present throughout. [ 16 ] The record on the Application was initially limited to the Accused’s application document together with emails from the Accused’s counsel providing case authorities (collectively marked as Exhibit J-1), which included the Interview Transcript, the PI Transcript, two RCMP Supplementary Occurrence Reports (dated June 14, 2021/printed July 8, 2021 and dated/printed June 16, 2021 respectively), and agreed facts as set out in the application document.

During the hearing, I requested the Guardian provide the guardianship order pertaining to the Complainant, which she did, and this has been marked as Exhibit J-2. [ 17 ] At the end of the hearing of the application, given that the Complainant had left before the Court could hear any submission from her, I asked the Guardian to speak to the Complainant and to provide me a letter setting out the Complainant’s position or if she had any concerns with the proposed disclosure of the Records.

The Guardian provided the Court with an October 25, 2023 letter responding to this request (copied to counsel) and this has been marked as Exhibit J-3. I advised all parties that if anyone objected to the Guardian’s letter or wished to make further submission following receipt of the letter, to advise. Nobody objected to the Guardian’s letter or requested to make further submissions. Ultimately, there were no objections to the record before the Court. III. Positions of the Parties and Interested Persons [ 18 ] The Accused provided detailed oral argument. He argued that the Records are “records” as defined in

section 278.1 of the Criminal Code and that he has met the requirements under

section 278.5 for the Records to be produced to the Court for review. [ 19 ] Counsel for the Crown advised that the Crown did not take a position on the application, but confirmed its position that the application was not frivolous. [ 20 ] Counsel for CFS advised that CFS had reviewed the Records and was not taking a position. CFS’s main concern was to ensure that the confidentiality requirements of

section 126.1 of the Child, Youth and Family Enhancement Act , RSA 2000, c C-12 ( CYFEA ) were followed regarding the privilege of the name of a person who makes a report to the director or a police officer under sections 4 or 5 of the CYFEA . CFS’ counsel confirmed that, based on her review of the Records, the name of the person making the report to CFS ( Reporter ) had already been redacted so there was no concern. [ 21 ] At the end of the hearing, as noted, the Complainant was no longer present.

However, I was advised that the Complainant and the Guardian had been given the opportunity before the hearing to review the Records. The Guardian advised that the Complainant had advised the Guardian that the Complainant agreed that the Records were relevant to the allegations in the Indictment. In the Guardian’s letter, after speaking further with the Complainant, the Guardian further confirmed that “the report from 2018 is about the same thing – it is from the first time I reported what happened”. The Complainant said, “I am fine with whatever decision the Judge makes”.

The Complainant did not have any additional questions or wish to share any additional concerns with the Guardian. [ 22 ] Based on the foregoing, there is no opposition to the Records being provided to the Court for review under

section 278.5 of the Criminal Code . However, given the important policy considerations inherent in sections 278.1 – 278.91 of the Criminal Code , it is the Court’s role to ensure that the test set out in the Criminal Code is met notwithstanding the positions of the parties, and to provide reasons: Criminal Code ,

section 278.8 . [ 23 ] At the conclusion of the application hearing, the Crown provided the Records to the Court in a sealed envelope, which I ordered to be placed on the court file and sealed pending my decision as to whether the Records should be produced to the Court for review. IV. Issues [ 24 ] An application for production proceeds in two stages. First, the accused must show that the record should be provided to the judge for review. Second, if the accused satisfies the burden at the first stage, the judge reviews the record to determine whether it should be disclosed to the accused. [ 25 ] Accordingly, the issues on this application are: (

a) Are the Records “records” as defined in

section 278.1 of the Criminal Code ? (

b) Should the Court order production of the Records for review by the Court pursuant to

section 278.5 of the Criminal Code ? (

c) If the answer to (

b) is yes, should the Court order disclosure of the Records to the Accused pursuant to

section 278.7 of the Criminal Code ? V. Analysis

A. Are the Records “records” as defined in

section 278.1 of the Criminal Code ? [ 26 ] Under the Mills framework, the judge makes a preliminary determination of whether a document is a “record” covered by the regime without seeing the specific document: R v Quesnelle , 2014 SCC 46 at para 21 . [ 27 ] “Records” governed by the Mills framework are defined in

section 278.1 as including “any form of record that contains personal information for which there is a reasonable expectation of privacy...”.

Section 278.1 provides an illustrative list of some of the types of records that usually give rise to a reasonable expectation of privacy, but other documents not included in the list will still be covered if they contain information that gives rise to a reasonable expectation of privacy: Quesnelle at para 22 . Expectations of privacy must be assessed in light of the “totality of the circumstances”: Quesnelle at para 27 . [ 28 ] No interested party in this matter suggested that the Records were not “records” as defined in

section 278.1 of the Criminal Code . Further, they are “child welfare” records which are specifically included in the definition of “records” in

section 278.1 of the Criminal Code . [ 29 ] Based on the evidence before me, I find that the Records likely contain personal information of the Complainant over which there was a reasonable expectation of privacy and they are, therefore, “records” that engage sections 278.1 to 278.91 of the Criminal Code . B. Should the Court order production of the Records for review by the Court pursuant to

section 278.5 of the Criminal Code ? [ 30 ] Sections 278.5(1) and (2) of the Criminal Code provide: Judge may order production of record for review

(1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that (

a) the application was made in accordance with subsections 278.3(2) to (6); (

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. Factors to be considered

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account: (

a) the extent to which the record is necessary for the accused to make a full answer and defence; (

b) the probative value of the record; (

c) the nature and extent of the reasonable expectation of privacy with respect to the record; (

d) whether production of the record is based on a discriminatory belief or bias; (

e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (

f) society’s interest in encouraging the reporting of sexual offences; (

g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (

h) the effect of the determination on the integrity of the trial process. [ 31 ]

Section 278.5 does not mandate when or where in the analysis the

section 278.5(2) factors must be considered. As a matter of convenience, I address them under the third element of the test, under

section 278.5(1) (c). 1. Was the Application Made in Accordance with subsections 278.3(2) to (6) of the Criminal Code ? [ 32 ] The Accused’s application met the form and content requirements of

section 278.3(3). [ 33 ]

Section 278.3(5) of the Criminal Code provides: Service of application and subpoena

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the

complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, atleast 60 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests ofjustice. The accused shall also serve a subpoena issued under

Part XXII in Form 16.1 on the person who has possession or control of therecord at the same time as the application is served. [34] Service of the Accused’s application did not meet the timing requirement under

section 278.3(5). However, at the hearing ofthe application I was satisfied based on the submissions of counsel and the Guardian that all interested parties necessary to be servedwere in fact served and provided a copy of the application. CFS, the Complainant and her Guardian were all provided a reasonableopportunity to review the application and the Records themselves before the application. Nobody objected to the application proceeding. [35] Accordingly, I allowed the application to proceed notwithstanding the shorter interval than the 60 days as noted in section278.3(5) of the Criminal Code. 2.

Has the Accused Established that the Records Are Likely Relevant to an Issue at Trial or to theCompetence of a Witness to Testify? [36] In R v Sheppard, 2023 ABCA 10, the Alberta Court of Appeal recently reminded courts to be mindful of Parliament’spurposes which are common to

section 276 and the framework in sections 278.1-278.91 of the Criminal Code, at paras 20-21: [20] Proper

interpretation and application of the relevant provisions of the Criminal Code requires the Court to be mindful ofParliament’s purposes which are common to s 276 and to the set of provisions being s 278.1 to s. 278.91 of the Criminal Code. Thoseshared purposes include (

a) the protection of the integrity of a trial by excluding irrelevant and misleading evidence and by preventingdistortive and distracting satellite litigation inside trials, (

b) the protection of the accused's right to a fair trial, and (

c) the protection ofthe security and privacy of complainants. These purposes are noted in cases related to s 278: see eg R v Darrach, 2000 SCC 46 at paras19-31, [2000] 2 SCR 443; R v Barton, 2019 SCC 33 at para 74, [2019] 2 SCR 579; see also R v Goldfinch, 2019 SCC 38 at paras 28-38,[2019] 3 SCR 3; R v RV, 2019 SCC 41 at paras 32-46, [2019] 3 SCR 237. They are also noted in cases related to ss 278.1 to s 279.91:see eg R v Mills, (SCC), [1999] 3 SCR 668 and R v JJ, 2022 SCC 28 at paras 57-60, paras 113-122, paras 127-133,471 DLR (4th) 577. [21] Proper

interpretation and application of these provisions also requires the Court to be mindful of the foundational evidence ruleof relevance, of the long-standing restrictions of the collateral evidence rule, and of the basic principles of disclosure of third partyrecords as described in World Bank Group v Wallace, 2016 SCC 15 at para 113, [2016] 1 SCR 207 which underscores that – even incases which do not have the protective features of the relevant Code provisions here – before a judge is required to assess third partyrecords, the applicant “must demonstrate” that the records sought are “likely relevant”: see also R v Pascal, 2020 ONCA 287 at paras30-31, 387 CCC (3rd) 236, leave denied [2020] SCCA No. 214 (QL) (SCC No. 39243). [37] Likely relevance under

section 278.5 of the Criminal Code is higher than the threshold for Crown disclosure under R vStinchcombe, (SCC), [1991] 3 SCR 326 where relevance means “may be useful to the defence”: Mills at para 45; R vHP, 2022 ABQB 88 at para 10. [38] However, it is not an onerous burden: Mills at paras 46 and 124; R v KC, 2021 ONCA 401 at para 29; R v Batte, (ONCA) at para 76; R v Porter, 2023 ABKB 197 at para 26; HP at para 10. It is meant to prevent requests for production that are“speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming”: Mills at para 46, citing R v O’Connor, [1995] 4 SCR411, at para 24. [39] Likely relevance under

section 278.5 of the Criminal Code means there is a reasonable possibility that the record containsinformation that is logically probative to an issue at trial or the competence of a witness to testify: Mills at para 45; R v McNeil, 2009SCC 3 at para 17; Sheppard at para 22; R v KC, 2021 ONCA 401 at para 29; R v RK, 2023 ONCA 653 at para 12. “Issues at trial”include material issues to the unfolding of events which form the subject-matter of the proceedings, as well as evidence probative tocredibility of witnesses and reliability of other evidence: RK at para 12. [40] Records may meet the threshold if they are admissible in their own right, have some impeachment value, or contain addedinformation which is not already available to the defence: Batte at paras 72-76; KC at paras 29 and 47; RK at para 12; R v JM, 2018ABQB 937 at para 19; R v Levin, 2012 ABQB 736 at para 39; R v CA, 2005 ABQB 154 at para 17. [41]

Section 278.3(4) of the Criminal Code provides certain matters that are insufficient to establish likely relevance on their own: Insufficient grounds

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likelyrelevant to an issue at trial or to 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 hasreceived or is receiving; (

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

witness has 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. [42]

Section 278.3(4) provides that these grounds are not sufficient “on their own”, but that does not mean they cannot form thebasis for records being likely relevant: Mills at para 120. This

section has been interpreted to mean that there must be more than mereallegations or bare assertions – there must be case-specific evidence to support the application: Mills at para 120; Sheppard at para 35;Batte at para 75; KC at para 31. [43] In this case, the Accused argues that that the Records are likely relevant because they pertain to the very same allegedincidents as the Indictment and that they are relevant to the Complainant’s credibility and the reliability of her evidence.

That is, theyappear to relate to the Complainant’s disclosure of the same incidents in 2018, significantly closer to the date of the alleged Incidentsthan the Interview Statement or the PI Transcript. [44] A record of a pre-investigation complainant disclosure of the same alleged incidents can meet the likely relevant test: Porterat paras 28-39; JM at paras 20-21; R v D (WC), 2020 NSSC 391 at paras 21-33; R v GJS, 2007 ABQB 757 at paras 22-25; R vWilliamson, 2016 MBQB 235.

In the pre-Mills context, see: R v Carosella, (SCC), [1997] 1 SCR 80 at paras 41-45. [45] Further, records which raise legitimate questions about the credibility of the complainant or a witness, rather than myths andstereotypes, will be treated as relevant: R v Quesnelle, 2014 SCC 46 at para 17. [46] However, the mere fact that a witness has said something in the past about the abuse or matters touching on the abuse, orabout a subject matter on which the witness may properly be cross-examined at trial, does not give that prior statement any relevance to afact in issue or to a complainant’s credibility: R v Batte at paras 71 and 77.

Further, the court must be realistic and recognize thatdifferences or inconsistencies in complainant descriptions of alleged incidents does not necessarily mean records will be likely relevantfor potential impeachment value: Sheppard at paras 30-31. [47] Finally, as noted earlier, records may meet the “likely relevant” test where they may provide added information not availableto the accused.

However, as already noted, this means something more than the “may be useful to the defence” threshold of “likelyrelevance” in the Crown disclosure context: Mills at para 45l O’Connor at para 22; R v WEG, 2021 ONCA 365 at para 60. [48] Based on the evidence before me on this application, the Records relate to the Complainant’s reporting in 2018 of at leastsome of the very same alleged incidents which are at issue in the Indictment, and which are the subject of both the Interview Transcriptand the PI Transcript. [49] Further, I am satisfied based on the Interview Transcript and the PI Transcript that credibility and reliability of theComplainant’s evidence is engaged and will be an important issue for trial. [50] The Records, therefore, are likely relevant to an issue at the trial, namely what happened in respect of “unfolding of eventswhich form the subject-matter of the proceedings” as well as “evidence probative to credibility of witnesses and reliability of otherevidence”: RK at para 12. [51] The Accused is not making a bare assertion or assumption, or a fishing expedition that the Records “may relate thecredibility” of the Complainant.

There is sufficient case-specific evidence in the PI Transcript to show they are likely relevant to thecredibility and reliability of the Complainant. For example, the Complainant testified that she had talked to “child advocates” in 2018about the same allegations as those discussed at the Preliminary Inquiry.

There is a reasonable evidentiary base to legitimize the request,found in the Complainant’s own testimony: R v RDM, 2008 ABQB 630 at para 49. [52] Further, the Complainant’s adoptive mother (Adoptive Mother) testified in the PI Transcript that the Complainant had“called in herself” an allegation to “Social Services” in 2018.

Further, the Supplementary Occurrence Report dated July 8, 2021referenced that “CFS Strathmore has a record of a report of a sexual assault from [the Complainant] from July 2018” (emphasis added). [53] On balance, I find that the Accused has, at the first stage, established that the Records are likely relevant to an issue at trial orto the competence of a witness to testify. 3. Is the Production of the Records to the Court Necessary in the Interests of Justice? [54] I have considered the factors in

section 278.5(2) of the Criminal Code and the salutary and deleterious effects of thedetermination on the Accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of thecomplainant or witness, as the case may be, and of any other person to whom the record relates. [55] The Records appear to involve the Complainant’s description of the alleged incidents at issue in the trial, many months beforethe Interview Statement. They therefore appear to be necessary to the Accused’s ability to make full answer and defence and could havesignificant probative value: Porter at para 42.

[ 56 ] While the Complainant had a reasonable expectation of privacy in the Records given their nature, if she reported the abuse to CFS she likely expected it may become a matter of public concern. There is no concern raised or evidence that the production of the record is based on a discriminatory belief or bias, about prejudice to the Complainant’s personal dignity, or that production to the Court would negatively impact society’s interest in encouraging the reporting of sexual offences.

The Records do not appear to be of a nature to negatively impact society’s interest in sexual offence complainants obtaining treatment. The request is specific and the number of records is finite and manageable. There is no indication the Records will adversely affect the trial process. In fact, the failure of the court to judicially examine the Records may raise concerns about the integrity of the trial process: Porter at para 50 . [ 57 ] Further, the Complainant agreed in her PI Transcript, and before this Court (through her Guardian) at the hearing, that the Records are relevant to the upcoming trial.

None of the Complainant, the Guardian, CFS or the Crown object or take a position on the application. [ 58 ] In the circumstances, it is in the interests of justice that the Records be produced to the Court for review. Any privacy rights are outweighed the Accused’s interests in this case at this first stage. [ 59 ] Accordingly, pursuant to

section 278.5 of the Criminal Code , I order the Records to be produced to the Court for the Court’s review. C. Should the Court order disclosure of the Records to the Accused pursuant to

section 278.7 of the Criminal Code ? [ 60 ] Based on my determination at stage one of the analysis, I opened the sealed envelope containing the Records and reviewed them. [ 61 ]

Section 278.7 of the Criminal Code provides that the judge may order a record or part of a record to be produced to the accused if it is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice. The court must consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant; the court shall take into account the factors set out in

section 278.5(2): Criminal Code

section 278.7(2) . However, the court need not rule conclusively on each of the factors nor is it required to determine whether factors relating to the privacy and equality of the complainant or witness outweigh factors relating to the accused’s right to full answer and defence: Mills at para 141 . [ 62 ] Having received and reviewed the records, the Court must re-examine the same questions of likely relevance and the interests of justice as are engaged at the first stage, though with the benefit of having the records in-hand: Porter at para 52 .

The court has a wide discretion to consider a variety of factors and is required to make whatever order is in the interest of justice: Mills at para 144 ; Quesnelle at para 15 ; RK at para 11. [ 63 ] At the hearing of the application, the application participants indicated they did not anticipate needing to make further submissions on the question of whether the Records should be disclosed to the Accused if I decided that the Records should be produced to the Court for review.

However, I find that, in the circumstances of this case, further submissions will assist the Court. [ 64 ] I have some observations about the Records. [ 65 ] First, the Records relate not only to the Complainant, but also relate to “a witness” anticipated on the face of the Indictment, namely the Adoptive Mother, as well as her other children. I am not aware whether the Adoptive Mother was served with the Accused’s application. Certainly, she was not present at the hearing and I have no submissions from her on her own behalf or on behalf of her other children.

The Adoptive Mother should have been provided notice of the Accused’s application pursuant to

section 278.3(5) of the Criminal Code . [ 66 ] Second, the application proceeded before me on the premise that the Complainant reported alleged incidents involving the Accused to CFS. However, the Reporter to CFS was not the Complainant, but an unidentified third party (the identity of whom has been redacted pursuant to

section 126.1 of the CYFEA ). Based on my review of the Records, it does not appear that there is any record of any conversation between the Complainant and the creator of any of the Records. That is, in respect of any description of what happened, the Records appear to have been recorded by one or more CFS employees (Recorder(s)) .

However, the Recorders appear to have been recording what the Reporter disclosed to them about what the Complainant disclosed to the Reporter, not what the Complainant directly reported to the Recorders. [ 67 ] There is no indication in the Records that the Reporter verified the accuracy of what was attributed to the Reporter by the Recorders. Further, there is no indication that the Recorders recorded any direct conversations with or statements by the Complainant, or that the Complainant verified the accuracy of what was attributed to the Complainant by the Reporter or the Recorders.

The only record of a conversation directly with the Complainant and CFS was a phone call that contains no substantive information about any allegations or incidents. [ 68 ] Third, some of the Records include medical information about the Complainant, historical conduct of the Complainant, and opinions about the Complainant’s intellectual ability, developmental status, mental state, and truthfulness.

These Records do not appear to have been created by someone personally observing or speaking with the Complainant. [ 69 ] Fourth, some of the Records reflect opinions or conclusions about the Complainant’s allegations against the Accused (as reported by the Reporter to CFS). [ 70 ] Without disclosing details or specifics, but providing general content to facilitate further submissions by the parties, the specific Records include:

(

a) Intake form Calgary Region CFS dated July 26, 2018 (10 pages) : this relates to a referral to CFS pursuant to section 1(2) (

d) and (

e) of the CYFEA ( Referral ). The Referral was made at a time that the Complainant no longer resided in the Adoptive Mother’s home. The Intake Form includes the reason for the Referral described by the Reporter to CFS based on what the Complainant disclosed to the Reporter about alleged incidents involving the Accused. It does not appear to be based on a reporting from the Complainant to the CFS Recorder; (

b) Preview Contact Log Details – 762276 (2 pages) : this includes internal CFS information relating to the Referral from July 27 to August 1, 2018, including a phone call with an unidentified person who was recorded as describing what the Complainant had disclosed to that reporter about alleged incidents involving the Accused. There is no information about any direct communication between the Complainant and the CFS Recorders; (

c) Safety Assessment (CFS) (11 pages) : this is an internal CFS record relating to the Referral. It repeats the reasons for referral, provides a

summary of actions taken to gather information for a safety assessment respecting the children in the Adoptive Mother’s home, includes CFS’ assessment analysis, and a CFS decision on next steps. The

summary of actions includes reference to CFS phone calls and meetings (including with family members (including the Adoptive Mother), the Accused, a physician, a psychiatrist, the RCMP and others). There is only one reference to a phone call with the Complainant but the record of that phone call does not include any substantive, relevant or material information respecting alleged incidents involving the Accused; (

d) Contact Log Details – August 3-17, 2018 (5 pages) : these are internal CFS records detailing 4 phone calls and one in-person meeting. Two of the phone calls were with the RCMP, one was with the Complainant, and one was with a psychiatrist. The phone call with the Complainant appears to be the same one referenced earlier and the record does not include any relevant or material information about the alleged incidents in the Indictment. The-in person meeting was a home visit at the Adoptive Mother’s house – there is no substantive content in the Contact Log Details for the home visit; (

e) Contact Notes (handwritten) – August 16, 2018 at 5:45 p.m. (3 pages) : These are handwritten notes related to the home visit. It does not appear the Complainant was present at the meeting or had any involvement or input in the creation of this record. There is no relevant and material information about the alleged incidents involving the Accused in these notes; (

f) Contact Log Details – September 19, 2018 at 12:41 (1 page); “What are we Worried About” / “What’s Working Well” / “What Needs to Happen” (1 page) ; Contact Log Details - September 19, 2018 at 12:49 (1 page); Contact Notes (typed) – August 28, 2018 at 4:30 p.m. (2 pages) : these records relate to an August 28, 2018 meeting between CFS and the Adoptive Mother’s family (including the Accused) at CFS’ Strathmore office, and planning for next steps for the family. It includes an attached table with the headings “What are we Worried About”?; “What’s Working Well” and “What Needs to Happen”.

It does not appear the Complainant was present at the meeting or had any involvement or input in the creation of the records. [ 71 ] As noted above, the fundamental premise of the Accused’s application – that the Records would likely include records relating to the Complainant’s 2018 reporting of the alleged incidents at issue in the Indictment to CFS, was incorrect.

The Records do not include any direct recording of anything by a person speaking to or recording a statement by the Complainant; rather, they include the Recorders’ notes or recording of what others told them, including what the Reporter told CFS about what the Complainant told the Reporter. [ 72 ] In light of this contextual change, it is appropriate for the Court to confirm whether the Accused wishes to continue with this application and, if so, to get further submissions about the application from the parties that more directly address the nature of the Records and whether they are likely relevant to an issue at trial or to the competence of a witness to testify, and whether production to the Accused is necessary in the interests of justice.

Further submissions will assist the Court. [ 73 ] Accordingly: (

a) I direct the Accused’s counsel, by 4:00 p.m. on November 8, 2023, to advise the Court, the Crown, CFS’ counsel, the Guardian, the Complainant, and Adoptive Mother, whether the Accused wishes to continue to stage two of his application under

section 278.7 of the Criminal Code in light of these Reasons; (

b) if the answer is yes, then: (

i) in accordance with

section 278.3(6) of the Criminal Code , I direct that the Adoptive Mother is immediately served with the Accused’s application, Exhibit J-1, and a copy of these Reasons, so that she may participate in and make submissions on the second stage of the analysis if she so chooses; (ii) the Accused and the Crown are requested to provide to the Court, each other, CFS, the Complainant, the Guardian and the Adoptive Mother, short written submissions and case authorities addressing stage two of the application, by 4:00 p.m. on Friday, November 10, 2023.

The parties are requested to specifically address Sheppard , and sections 10 and 11 of the Canada Evidence Act , RSC 1985, c C-5 , as part of their submissions, although this is not intended to limit the content of their submissions. These submissions may be in single-spaced letter format and should be no more than 3 pages (excluding authorities). CFS, the Complainant (or her Guardian on her behalf), or the Adoptive Mother may also (but are not obligated to) provide written submissions by this deadline. All submissions shall be marked as J-Exhibits in this application; and (iii) pursuant to

section 278.6(2) of the Criminal Code , this matter will be set down for a further one-hour in camera hearing before me the week of November 13, 2023 for oral submissions on the second stage of the application. The Court Coordinator will be in touch shortly to set the date for in camera hearing. [ 74 ] A copy of these reasons shall be entered as the next J-exhibit in this application pursuant to

section 278.8(2) of the Criminal Code . Heard on the 24 th day of October, 2023.

Dated at the City of Calgary, Alberta this 6 th day of November 2023. M.A. Marion J.C.K.B.A. Appearances: Edward Apolonio for the Accused Lori Chambers for the Crown Erin Rosko for Children and Family Services Gail Spurrill Representative of the Public Guardian, as Guardian for the Complainant _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice M.A. Marion Pursuant to

Section 278.5 of the Criminal Code _______________________________________________________ Note added to Publication Ban under

section 278.9(1) of the Criminal Code .