WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85. —

(3) Idem. — A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. Thunder Bay Registry No. FO-10-0111-00 DATE: 2011·II·23 CITATION: Children’s Aid Society of Thunder Bay v. S.D. , 2011 ONCJ 100 ONTARIO COURT OF JUSTICE BETWEEN: CHILDREN’S AID SOCIETY OF THE DISTRICT OF THUNDER BAY, Applicant, — AND — S.D. and C.D., Respondents. Before Justice Marc L.

Bode Heard on 26 January 2011 and 3 February 2011 Reasons for Judgment released on 23 February 2011

CHILD PROTECTION — Procedure — Pre-trial and trial disclosure — Document disclosure — Disclosure from non-parties —Records under

section 74 [access to third-party records] of Child and Family Services Act — Disclosure of Crown brief prepared inparallel criminal prosecution of parent — Local children’s aid society had apprehended child (now 4½ years old) 1 year ago after shewas admitted to hospital with life-threatening injuries for which parents seemed unable to provide reasonable account that could “fit”nature of injuries — In meantime, society and police investigators co-operated closely and shared virtually any material discovered thatwas relevant to either agency’s investigation — Then, 9 months ago, police laid criminal charges against mother for failing to providenecessities of life to child and with criminal negligence causing bodily harm — Court was eager to proceed with child protection matterand had already rejected motion to defer trial until conclusion of criminal matter — Because of informal sharing of material betweensociety and police investigators, society was generally aware of contents of Crown brief prepared by police for criminal trial, but neededmore formal disclosure of that information so as to present best evidence available before judge hearing child protection trial — Societymade motion under subsection 74(3) of Act and under subrule 19(11) of Family Law Rules for disclosure of brief, which AttorneyGeneral for Ontario opposed — Brief consisted of 3 broad categories on which court made following rulings: • CATEGORY (1): product of ordinary police investigation Everything in this category fell within parameters of “may be relevant” test in subsection 74(3) of Act, but court still haddiscretion whether to order its production on basis of any competing public policy or privacy interests that could bar disclosure— However, Attorney General made only general assertion that disclosure of this material would jeopardize mother’sprosecution but could not to any point to any specific concern where disclosure of anything in category (1) would endangerprosecution — Moreover, entire Crown brief (and not just category (1)) was already in mother’s possession and she had shared itwith her own expert witnesses, one of whom was preparing expert report, all of which made category (1) material even morerelevant and disclosable and eliminated any notion of litigation privilege.• CATEGORY (2): product of authorized wire tap Society merely wanted disclosure relative to single telephone conversation between parents some 9 months ago —

Summary ofthis evidence had already been revealed to all parties and to court without objection at motion for interim care and custody and,as stated, mother had already been provided with complete transcript that she passed on to experts whom she intended to call inchild protection trial — Nobody had raised any privacy interest in transcript of that conversation — Father was well aware ofthis conversation and court found it unlikely that his exposure to transcript in child protection case could “contaminate” histestimony at criminal trial — Finally, fact that mother already had possession of transcript theoretically exposed her to obligationto disclose it under rules of court if she were asked for it, which negated any argument that court lacked jurisdiction to order itsdisclosure from Crown.• CATEGORY (3): product of analysis of material seized from parents under search warrant Court found that all evidence derived from warrant’s execution met “may be relevant” test in subsection 74(3) of Act — As forexercise of court’s discretion, there was no countervailing public or private interest that would bar disclosure of this evidence —On contrary, disclosure of analysis of seized material would serve important public interest by ensuring that child protection trialis fair and that all potentially relevant information would come to trial judge’s attention.

STATUTES AND REGULATIONS CITED Child and Family Services Act, R.S.C. 1990, c. C-11 [as amended], subsection 37(2),

section 57,

section 72,

section 74 and subsection74(3). Criminal Code, R.S.C. 1985, c. C-46 [as amended], subsection 189(5), subsection 193(1), subsection 193(2), subsection 193(2), section490 and subsection 490(15). Family Law Rules, O. Reg. 114/99 [as amended], rule 19, subrule 19(2), subrule 19(4), subrule 19(10) and subrule 19(11). CASES CITED Ault v. Canada (Attorney General), , 88 O.R. (3d) 541, [2007] O.J. No. 4927, 2007 Cars​well​Ont 8096 (Ont. S.C.). Catholic Children’s Aid Society of Toronto v. R. (Leonard) and S. (Jennifer), 2005 ONCJ 19, 13 R.F.L. (6th) 100, [2005] O.J. No. 336,2005 Cars​well​Ont 376 (Ont. C.J.).

Children’s Aid Society of Algoma v. P. (Deborah) and L. (Henry), , 42 R.F.L. (6th) 144, [2007] O.J. No. 3601, 2007Cars​well​Ont 5971 (Ont. S.C.). Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, 175 N.R. 1, 76 O.A.C. 81, 120 D.L.R. (4th) 12, 25 C.R.R. (2d) 1, 94C.C.C. (3d) 289, 34 C.R. (4th) 269, , [1994] S.C.J. No. 104, 1994 Cars​well​Ont 112. Harbour v. Bangs, , 32 R.F.L. (5th) 359, [2002] O.J. No. 4148, 2002 Cars​well​Ont 3559 (Ont. C.J.). Law Society of Upper Canada v. Canada (Attorney General), , 89 O.R. (3d) 209, [2008] O.J. No. 210, 2008 Cars​well​-Ont 255 (Ont. S.C.). Louangrath v.

Ottawa Police Services, 2008 Cars​well​Ont 8991 (Ont. S.C.); affirmed at Louangrath v. Ottawa Police Services, 2009ONCA 411, [2009] O.J. No. 2002, 2009 Cars​well​Ont 2647 (Ont. C.A.). Michaud v. Attorney General for Québec, (SCC), [1996] 3 S.C.R. 3, 201 N.R. 241, 138 D.L.R. (4th) 423, 38 C.R.R.(2d) 230, 109 C.C.C. (3d) 289, 1 C.R. (5th) 1. , [1996] S.C.J. No. 85, 1996 Cars​well​Que 908. P.(D.) v. Wagg (2004), 71 O.R. (3d) 229, 187 O.A.C. 26, 239 D.L.R. (4th) 501, 120 C.R.R. (2d) 52, 46 C.P.C. (5th) 13, 184 C.C.C. (3d)321, , [2004] O.J. No. 2053, 2004 Cars​well​Ont 1983 (Ont. C.A.).

Thunder Bay Commissioners of Police v. Sundell (1984), (ON SCDC), 15 C.C.C. (3d) 574, [1983] O.J. No. 2941,1984 Cars​well​Ont 1406 (Ont. Div. Ct.). Tide Shore Logging Ltd. v. Commonwealth Insurance Co., , 13 B.C.L.R. 316, [1979] 5 W.W.R. 424, 100 D.L.R. (3d)112, 47 C.C.C. (2d) 215, 9 C.R. (3d) 237, [1979] B.C.J. No. 1108, 1979 Cars​well​BC 200 (B.C.S.C.). AUTHORS AND WORKS CITED Hubbard, Robert, Peter M. Brauti and Scott K. Fenton: Wiretapping and Other Electronic Surveillance: Law and Procedure (Aurora,Ont.: Canada Law Book Ltd., 2000, but loose-leaf service), 2 volumes. James L.

Murray ........................................................................... counsel for the applicant society Tracey J. Nieckarz .............................................. counsel for the respondent parents, S.D. and C.D. Judith S. Parker ................................ counsel for the Ministry of the Attorney General for Ontario Martha C. Petryshyn ............................................. counsel for the Office of the Children’s Lawyer, legal representative for the child C.D. Jean D.

Olibris ...................................................... counsel for the Office of the Children’s Lawyer, legal representative for the children D.D., B.D. and P.D. For previous proceedings, see: • interim care and custody order in favour of children’s aid society: Children’s Aid Society of Thunder Bay v. S.D. and C.D., 2010ONCJ 718, [2010] O.J. No. 5953, 2010 Cars​well​Ont 10589 (Ont. C.J.), per Justice Marc L. Bode;• dismissal of parents’ motion to postpone child protection trial until outcome of parallel criminal proceeding: Children’s AidSociety of Thunder Bay v. S.D. and C.D., 2010 ONCJ 721, [2010] O.J.

No. 5958, 2010 Cars​well​Ont 10598 (Ont. C.J.), perJustice Joyce S. Elder; and• restoration of original interim care-and-custody regime: Children’s Aid Society of Thunder Bay v. S.D. and C.D., 2010 ONCJ722, [2010] O.J. No. 6008, 2010 Cars​well​Ont 10669 (Ont. C.J.), per Justice Marc L. Bode. [1] JUSTICE M.L. BODE:— This decision deals with a motion brought by the Children’s Aid Society for the District ofThunder Bay seeking the disclosure of the contents of a Crown brief. The brief has been prepared by the City of Thunder Bay PoliceService for the prosecution of Mr.

C.D., one of two respondents in these child protection proceedings. The moving party relies onsection 74 of the Child and Family Services Act, R.S.C. 1990, c. C-11, as amended, and rule 19 of the Family Law Rules, O. Reg.114/99, as amended. [2] The children who are the subject of these proceedings are represented by two lawyers appointed by the Office of theChildren’s Lawyer. Both lawyers support the granting of the children’s aid society motion. [3] The Attorney General has appeared and opposed the motion.

To some extent, counsel for the respondent parents havealso opposed the motion. [4] Subsection 74(3) reads as follows:

(3) Order.— Where the court is satisfied that a record or part of a record that is the subject of amotion referred to in subsection (2) contains information that may be relevant to a proceeding under thisPart and that the person in possession or control of the record has refused to permit a Director or thesociety to inspect it, the court may order that the person in possession or control of the record produce itor a specified part of it for inspection and copying by the Director, by the society or by the court. Subrule 19(11) reads as follows:

(11) Document in non-party’s control.— If a document is in a non-party’s control, or is available onlyto the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on withthe case without the document, the court may, on motion with notice served on every party and servedon the non-party by special service, (

a) order the non-party to let the party examine the document and to supply the party with a copy atthe legal aid rate; and 1: BACKGROUND [5] The respondents are the parents of four children: • C.D. born on […] September 2006, • D.D. born on […] December 2000,

• B.D. born on […] April 2003, and • P.D. born on […] July 2007. All but the child C.D. are the biological children of the respondents. C.D. was born in China and has been adopted by the respondents using a foreign adoption process. The respondents and their children have lived just outside the City of Thunder Bay for all of the relevant time with which this court is concerned. Prior to February of 2010, the children’s aid society had never had any involvement with this family. [ 6 ] In February of 2010, the child C.D. suffered a series of very significant injuries, some of which were life-threatening.

These injuries are described in some detail in my first temporary care decision dated 10 March 2010. The impact of those injuries on C.D. is more fully described in my more recent temporary care decision dated 28 October 2010. In the interest of having this decision released as quickly as possible, I do not intend to re-summarize the evidence concerning C.D.’s injuries and the impact those injuries have had on her.

I will simply attach copies of those prior two decisions as Appendices 1 and 2 to this decision. [ 7 ] The Thunder Bay police and the children’s aid society were both contacted within hours of C.D.’s hospitalization. Both agencies immediately commenced their own investigations into the circumstances surrounding the sustaining of these injures. This case was started shortly thereafter. [ 8 ] Pursuant to the society’s mandate and pursuant to the obligation imposed on the police by

section 72 of the Child and Family Services Act , the society and the police worked together closely during their investigations. They appear to have shared with each other every meaningful thing that they discovered that was or could be considered relevant to the other agency’s investigation. [ 9 ] The most recent temporary care order dealing with the child C.D. confirms the child’s placement with the society.

As I understand it, because of C.D.’s very significant injuries and her current need for intensive care 24 hours a day, C.D. is now placed in an institutional care facility in Southern Ontario that is equipped to provide for her special needs. The other three children who are the subject of this child protection proceeding continue to live with their grandparents subject to the conditions set out in my October order. [ 10 ] From the outset of this case, all counsel recognized and frequently reminded the court of the importance of having this case dealt with as quickly as possible.

By the late spring of 2010, the case had been assigned to a trial judge and had been scheduled for a trial that was to begin in August of 2010. In July of 2010, the question of whether the trial could in fact proceed and be completed in August and September of 2010 was raised with the court. The court dealt with a request to adjourn the trial by making an endorsement on 16 July 2010.

The portion of that endorsement that deals with the adjournment of the trial reads as follows: The second issue that has arisen relates to the seven days of trial set aside in August and September of this year for the hearing of this case. All counsel now tell me there isn’t the slightest possibility that this case can be completed in the seven days now set aside. The best estimates now available suggest this case, in its present form, would take at least three and more likely five full weeks of trial time to complete.

Everyone takes the position that the children would not be adversely affected in any way by the vacating of the August-September trial dates and the rescheduling of this trial. I am accordingly ordering that the trial dates set aside in August and September of this year be vacated. This case is to be placed on the assignment court list and spoken to at assignment court on September 14, 2010 at 12 noon. Counsel for the parents may take the position that the scheduling of new trial dates should be postponed until well after September 14.

If they in fact take that position, then I expect them to bring a motion returnable before Justice Elder on September 13. The affidavit material filed in support of the motion should be very limited and only address the question of whether a delay in the scheduling of the trial is appropriate. The motion should be argued in writing with each party submitting their entire argument in writing.

If this motion is brought, then the moving party should serve and file their factum and all other motion material at least two weeks before September 13 and anybody responding to this motion should serve and file their responding materials at least one week before September 13. [ 11 ] The second paragraph of that endorsement was placed there because counsel had advised the court that, on 24 June 2010, the respondent Ms. S.D. had been criminally charged in relation to the injuries suffered by the child C.D.

Counsel were contemplating asking the court to adjourn the trial of these proceedings until the completion of the criminal case against the respondent. [ 12 ] Although a criminal information has never been put before this court, it is the court’s understanding that the charges that Ms.

S.D. faces are a “criminal negligence causing bodily harm” charge related to her care of, and the injuring of, the child C.D. and a failure to provide the necessities of life charge, also in relation to the child C.D. [ 13 ] When new dates for this trial were to be selected, the court was advised that the trial would take approximately five weeks to complete.

Sometime ago, five weeks of trial time commencing on 5 March 2011 were set aside for the hearing of this case. [ 14 ] After the scheduling of these five weeks of trial time, counsel for the respondents brought a motion seeking to postpone the Child and Family Services Act trial until after the conclusion of the criminal proceedings. The judge scheduled to hear the trial dealt with that motion and refused counsel’s request to postpone the child protection trial until after the completion of the criminal proceedings.

The reasons for dismissing the motion focused on the children’s urgent need to have this Child and Family Services Act process completed and their fate determined. They were released on 6 October 2010 and have not been appealed. 2: THIS MOTION [ 15 ] This motion was brought in mid-November of 2010. It was first made returnable before the judge scheduled to hear the trial. Because many aspects of the case to be tried would be explored during the arguing of the motion, the trial judge declined to hear

it. The case was then placed before me for argument on 26 January 2011. [ 16 ] The Attorney General’s initial response to this motion was set out in their factum at paragraph 25 and 26. Those paragraphs read as follows: 25. The Attorney General submits that the main issue in this motion is whether the entire Crown brief and police investigative file should be produced to the parties in the child protection hearing, notwithstanding that: (

a) Much of the Crown brief is not relevant to the issues child protection hearing; (

b) There is an on-going criminal prosecution in this matter that may be jeopardized by the production of the documents at this time; (

c) The Crown brief contains wiretap communication intercepts, access to which is governed by the provisions of the Criminal Code and the case law interpreting those provisions; and (

d) There has not been sufficient time to allow for screening of these records to identify the third-party privacy interests and public interests such as the protection of law enforcement codes and techniques of which the court should be advised in advance of any order for production of the records, and without narrowing the request, it is unlikely this can be accomplished. 26. It is the position of the Attorney General that an only limited production can and should be ordered at this time. [ 17 ] The Attorney General has since abandoned the fourth argument set out in the factum.

They have also added a fifth argument, namely that the material seized from the respondents pursuant to a search warrant and the analysis of that material by police investigators should not be disclosed using the

section 74 and rule 19 processes. Instead the Attorney General says that the Criminal Code , R.S.C. 1985, c. C-46, as amended, contains a complete code for dealing with the production or examination of materials seized pursuant to a search warrant. The Attorney General takes the position that a separate application to the Superior Court of Justice should be made by the children’s aid society if it wishes to review this search warrant related material. [ 18 ] On 26 January 2011, I heard much but not all of the argument. Having done so, it was clear that the evidence sought by the children’s aid society could be divided into three broad categories:

(1) The portion of the Crown brief that was the product of ordinary police investigation.

(2) The portion of the Crown brief that was the product of an authorized wire tap.

(3) The portion of the brief that dealt with the material seized from the respondents pursuant to a search warrant. [ 19 ] On 26 January, I directed the Attorney General to provide counsel for the children’s aid society with an opportunity to canvass all the material that fell into category (1) above. Counsel for the children’s aid society was to review this material and make a preliminary assessment of what material in that portion of the brief could meet the low relevance threshold set out in

section 74. [ 20 ] During the argument on 26 January, all parties agreed that only a small portion of the many hours of wiretap evidence collected by the police was potentially relevant to these proceedings. The potentially relevant wiretap evidence was collected by the police on the night of the 19-20 May 2010. [ 21 ] It is worthwhile to note that, as part of its information-sharing process, the children’s aid society received from the Thunder Bay Police Service a copy of the Crown brief

summary. That

summary describes the portions of the wiretap evidence on which the children’s aid society is focused. The relevant portions of that

summary (which I note has been shared with the parties, submitted as evidence on the temporary care hearing, and provided to some if not all of the experts who will be called in the child protection case) reads as follows: On the night of the 19th/20th May 2010, there were two very long conversations which were very important to the case. [Mr. C.D.] stated to [Ms. S.D.] “these walls are paper thin and we’re on the phone, that’s what got us in this shit in the first place” (believed to be referring to the conversation where Robert Frost heard [Ms. S.D.] screaming at [Mr.

C.D.] on the date of the incident at 1:41 p.m.). Later on in the conversation, [Ms. S.D.] is crying and says “I know I screwed things up, but now you are screwing things up.” Shortly after that, she says she is going to turn herself in and [Mr. C.D.] says “don’t be stupid, if you go down, I’m going down too.” [ 22 ] On 26 January 2011, the court was appraised of the general nature of the evidence that was seized pursuant to a search warrant issued by the Superior Court of Justice.

The court was also advised of the general nature of the evidence that was generated by the police as a result of their analysis of what had been seized pursuant to the search warrant. Much of the evidence seized is physical evidence that could, with the assistance of expert and police evidence, cast some light on the events that led to the injuries sustained by C.D. [ 23 ] The remaining evidence seized is computer equipment.

The children’s aid society believes, because the police have told it as much, that the computer files on the seized computer reveal that a user of the seized computer, believed to be the respondent Ms. S.D., extensively used the computer in the hours before the injuries to C.D. were first reported to medical authorities. Apparently the computer files disclose that the user of the computer conducted internet-based research on hypothermia. This is important because: (

a) upon admission to hospital, C.D.’s core body temperature was critically low; and (

b) the agency has reports, which it expects to introduce as experts’ reports at trial, that comment on how long the child, C.D., was exposed to outdoor temperatures prior to her hospitalization. [ 24 ] The children’s aid society says that the police analysis of those computer files is critically relevant to the issues that the

trial judge in the Child and Family Services Act trial will need to address. Specifically, the children’s aid society says that the evidencethat it is seeking could establish an early awareness on Ms. S.D.’s part of the life-threatening nature of C.D.’s injuries. It says that thetiming of these computer inquiries will help establish serious negligence on the part of the mother by reason of her failure to immediatelyseek medical help for C.D. [25] The motion was adjourned to 3 February 2011 to complete the argument.

By 3 February, counsel for the children’s aidsociety had completed the review of the evidence that fell into the first category described above — i.e., the portion of the Crown briefthat was the product of ordinary police investigative techniques.

On 3 February, I was apprised of the material from the Crown brief thatfell into category (1) that the children’s aid society had assessed as relevant to the Child and Family Services Act proceedings. [26] I should note here that counsel for the Office of the Children’s Lawyer have indicated that they are prepared to acceptthat all portions of the Crown brief deemed irrelevant by counsel for the children’s aid society are in fact irrelevant and should not beproduced. 3: MY DECISION [27] My first task is to assess whether the materials “may be relevant”.

To determine relevance, it is useful to quickly reviewthe child protection legislation. The paramount objective of the Child and Family Services Act is to promote the best interests, protectionand well being of children. Under the Act, children’s aid societies are given the task of investigating alleged child protection concerns,protecting and caring for children where necessary and providing services to families with the goal of protecting children or for theprevention of circumstances requiring the protection of children.

Subsection 37(2) of the Child and Family Services Act identifies thetype of issues that raise child protection concerns. Situations where a child has suffered physical harm or may be at risk of sufferingphysical harm inflicted by the person having charge of the child or caused by that person’s failure to adequately care for, provide for,supervise or protect the child or a pattern of neglect in caring for, providing for, supervising or protecting the child all raise childprotection issues.

These are the categories of risk most relevant to the children on which that this case focuses. [28] If a child is found in need of protection and court intervention is necessary, then the court’s disposition options areoutlined in

section 57 of the Act. The most serious disposition outcome is Crown wardship without access. In making a dispositionalorder, the best interests of the child must be taken into account. The Act specifies some things that are to be considered when making a“best interests” decision for a child.

Past parental behaviour is one of those considerations. [29] Given the importance that past behaviour can have in determining whether a child is in need of protection, it is reasonableto assume that much of the material produced by the police during their investigation into the life-threatening injuries sustained by C.D.is likely to be relevant to the issue of whether the children are in need of protection as a result of risk of physical harm or neglect. [30] Once a category of evidence is found to be potentially relevant, the courts have been inclined to order disclosure of all theevidence that falls into that category unless these are public policy reasons for some of that evidence to be excluded.

As the Crown’sbrief itself says: . . . the appellate court in Children’s Aid Society of Algoma v. D.P. discourages “pars[ing]” individualdocuments to establish the relevance of each sentence: [33] . . . Such a course would bog down the proceedings in arguments with each of theSociety and the Attorney General not having a full understanding of the concerns of the other.Provided the general subject matter is relevant, the documents should be produced except forparticularly sensitive private material, as described above, and subject to public policyarguments and privilege, and controls on further dissemination.

See Children’s Aid Society of Algoma v. Deborah P. and Henry L., , 42 R.F.L. (6th) 144, [2007] O.J. No. 3601, 2007Cars​well​Ont 5971 (Ont. S.C.). [31] The motion brought by the Children’s Aid Society is often referred to as a “Wagg” motion. The policy interests at play ina motion seeking disclosure of the contents of a Crown’s brief were discussed by the Court of Appeal in D.P. v. Wagg (2004), 71 O.R.(3d) 229, 187 O.A.C. 26, 239 D.L.R. (4th) 501, 120 C.R.R. (2d) 52, 46 C.P.C. (5th) 13, 184 C.C.C. (3d) 321, , [2004]O.J. No. 2053, 2004 Cars​well​Ont 1983 (Ont.

C.A.), using the following terms: [53] In considering a request for production the police and Crown will bear in mind the commentsby Vertes J. in Fullowka v. Royal Oak Mines Inc., (NWT SC), [1998] N.W.T.J. No.11, that the Crown does not have a simple proprietary interest in the Crown disclosure. As he said atpara. 15, “the ‘fruits of the investigation’ in the possession of the Crown ‘are not the property of theCrown for use in securing a conviction but the property of the public to be used to ensure that justice isdone’”.

Society has an interest in seeing that justice is done in civil cases as well as criminal cases, andgenerally speaking that will occur when the parties have the opportunity to put all relevant evidencebefore the court. The Crown disclosure may be helpful to the parties in ensuring that they secure allrelevant evidence.

[54] The guiding objective to be applied by the parties, the state agents and the court hearing any motion for production thus ought to be what Anderson J. said in Reichmann v. Toronto Life Publishing Co. (1988), 28 C.P.C. (2d) 11 (Ont. H.C.J.) , motion for leave to appeal to the Divisional Court dismissed (1988), 29 C.P.C. (2d) 66 (Ont.

H.C.J.) at p.14 : “The consistent tendency in this province has been to broaden and not circumscribe the right of discovery.” This principle is founded on the underlying principle accepted by the Supreme Court of Canada for both civil and criminal cases in Stinchcombe where Sopinka J. said at p. 332: “This change [to full discovery in civil cases] resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met.” And as he said at p. 335, “[T]he principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material.” [ 32 ] The Crown brief is approximately 1,500 pages in length.

There are portions of that Crown brief that the children’s aid society has identified as potentially relevant, to the disclosure of which the Attorney General is now prepared to consent both to the children’s aid society and to counsel (emphasis added) for the Office of the Children’s Lawyer and the respondents.

I am not going to describe those portions of the brief because they are not important for this motion. [ 33 ] There is also evidence in the Crown brief that the children’s aid society has identified as relevant and that is (1) not the product of a search warrant and (2) not the product of a wiretap authorization but on which the Attorney General nonetheless takes the position should not be disclosed to the parties and their counsel. This evidence has been described in exhibit 2 filed on this motion. Exhibit 2 is described as “a confidential overview of Crown brief documents in R. v.

D. ” In Appendix 3 to this decision, I have reproduced the parts of exhibit 2 that describe those portions of the Crown brief that are the product of ordinary investigative techniques to the production of which the Attorney General still objects. From this point on, I will refer to those portions of the evidence by identifying the page number found in column 1 and the document description found in column 2 of Appendix 3. 4: DO THE CONTENTS OF CATEGORY

(1) OF THE CROWN BRIEF MEET THE SUBSECTION 74(3) “MAY BE RELEVANT” TEST? [ 34 ] I am going to start my analysis of this aspect of the motion by noting that both the police and the children’s aid society investigators have, by and large, been focused on the same evidence.

Each of these two agents of the state have been gathering the evidence available that (1) could shed light on when, where, and how the multitude of injuries sustained by C.D. were sustained, (2) could shed light on whether some or all of C.D.’s injuries were sustained because of deliberate actions taken by another person against C.D. or were sustained because of serious negligence by a caregiver having charge of C.D., and (3) could shed light on whether, after the most serious of C.D.’s injuries were sustained, the respondents in these proceedings failed to take appropriate action to obtain the medical help of which C.D. was in critical need.

In my view, that makes virtually everything that the police discovered during their investigation potentially relevant in the child protection proceedings. [ 35 ] I note again that, throughout their respective investigations, both state agents shared with the other agency virtually everything that they discovered that was relevant to either party’s investigation. It appears that much of the sharing was informal. What the agency now seeks is the more formal disclosure of the information of which it already has a general awareness.

The agency is seeking this disclosure because it needs to present the best evidence available to the trial judge hearing the child protection case. 4.1: P12 — Original Occurrences [ 36 ] This portion of the Crown brief contains reports made by 11 police officers describing the steps that they took during their investigation into the circumstances surrounding C.D.’s injuries. These reports also discuss the evidence that these police officers uncovered during that investigation.

In my view, these documents may be, in fact are very likely to be, relevant to the issues in this child protection case. 4.2: P216, 243 — Police “Will Says” and Civilian “Will Says” [ 37 ] This portion of the Crown brief contains an outline of what each police and civilian witness is expected to say during the criminal proceedings. Again these documents may be, and in my view in all likelihood will be, relevant to the issues in this case. 4.3: P325 — Police Notes [ 38 ] This portion of the Crown brief contains the original notes taken by police officers during their investigations.

They contain the first and freshest recordings by the investigating officers of the evidence that they found. In my view, these notes meet the relevancy test set out in subsection 74(3). 4.4: P920 — CFS Reports (Experts Reports)

[ 39 ] These are two expert reports prepared for Crown use during the prosecution of Mr. C.D. The reports comment on an analysis of DNA material, blood (and apparently semen) collected by the police during their investigation of the circumstances surrounding C.D.’s injuries. The reports also comment on the results of a toxicology analysis conducted in the hospital at which C.D. was cared for.

These reports may be relevant to the issues that arise in the Child and Family Services Act proceedings. 4.5: P1020 — Behavioural Science Analysis [ 40 ] This is an expert’s report that reviews and comments on the interviews given by the respondents to the police during the investigation into the injuries sustained by C.D. It may be relevant to these proceedings. [ 41 ] Having made my initial assessment of whether the evidence in category (1) may be relevant, I think it is worthwhile noting one other fact.

Every part of the Crown brief that falls into category (1) (in fact the Crown brief in its entirety) is in the possession of the respondent Ms. S.D. More importantly, all of that material has been shared with experts retained by Ms. S.D. In particular, all of that evidence has been reviewed by Dr. William Halliday M.D., FRCPC, Neuropathology. A report by Dr. Halliday, which this court has been given, indicates that the factual underpinnings of Dr. Halliday’s report includes all of the evidence that falls into category (1). I have been informed that Dr.

Halliday’s report is a critical piece of evidence that the respondents intend to produce at the Child and Family Services Act trial. I understand that Dr. Halliday will also be called to testify during the Child and Family Services Act trial. In my view, the evidence in category (1) became even more relevant and disclosable once that evidence was supplied to and relied upon by Dr. Halliday for the purpose of preparing his own expert’s report. [ 42 ] In assessing whether the evidence sought may be relevant, I have been guided by Justice Gladys I. Pardu’s decision in Children’s Aid Society of Algoma v.

Deborah P. and Henry L. , previously cited, and in particular Justice Pardu’s comments found at paragraphs [31] through [33] of her decision. Bearing those comments in mind, I am satisfied that everything that falls into category (1) of the Crown brief meets the “may be relevant” test that is the starting point when applying subsection 74(3) of the Child and Family Services Act . 5: STEP 2 [ 43 ] The court’s authority under subsection 74(3) is a discretionary authority. The court may order the production of evidence that “may be relevant” but it is not required to do so.

The case law supports the proposition that, before making a subsection 74(3) order, the court should consider whether there are competing public policy interests or privacy interests that militate against the disclosure of the material being sought. In this case, only one competing interest has been raised during the portion of the argument that focused on category (1) evidence. The Attorney General says that none of this evidence should be disclosed because its production and subsequent use in the child protection trial could jeopardize the prosecution of Ms. S.D.

Aside from making this general assertion, the Attorney General has not been able to point me to any specific concerns that suggest the disclosure of anything in this portion of the brief will jeopardize this prosecution. [ 44 ] I consider the integrity of this criminal prosecution to be a very important public policy consideration. I need to take that public policy consideration into account in deciding whether to make the requested order.

I am conscious that there is always the possibility that the disclosure, and subsequent use in these proceedings, of the evidence that the children’s aid society seeks could affect the prosecution in some way. For example, witnesses who testify in these child protection proceedings could deviate from, expand on or even reject the assertions that they previously made when their witness statements were taken. I also accept that there is always the potential that other unanticipated things could happen after disclosure is made that could make the prosecution of the accused Ms. S.D. more difficult.

These are concerns that will arise whenever a child protection case proceeds to trial before a related criminal prosecution is tried. [ 45 ] Having said that, in the absence of a more specific public policy reason for denying disclosure, I have to conclude that the public policy interests that support disclosure outweigh the broad and general concerns advanced by the Crown. [ 46 ] I have come to this conclusion because there is a perhaps even more significant public policy interest in having this Child and Family Services Act case fairly and appropriately tried.

The fate of four children rests on the fair trial of this case. Both the children’s aid society and the lawyers representing the children have a critical need to access all of this potentially relevant evidence for the child protection trial to be a fair one. [ 47 ] There is a more focused objection raised by the Attorney General to the production of their experts’ reports. Essentially, the Attorney General argues that these reports are “litigation privileged”. I am not satisfied that any privilege that might have attached to these reports still exists, given their disclosure to Ms.

S.D. and their subsequent disclosure to other experts. Be that as it may, here, where: (1) the Attorney General has disclosed these reports to one party, (2) the reports have subsequently been shared with another expert, and (3) this expert has taken them into account in preparing other expert’s reports that will be introduced at trial, I have to conclude that the fair trial interests of the children’s aid society and counsel for the children outweigh any litigation privilege interests that the Attorney General can advance. 6: CATEGORY 3 EVIDENCE – THE MATERIAL SEIZED PURSUANT TO A SEARCH WARRANT AND THE

ANALYSIS OF THAT MATERIAL [ 48 ] I turn now to the argument that the evidence seized by the police pursuant to a search warrant and the police analysis of that seized evidence cannot be disclosed. I have previously described this in paragraphs [24] and [25] of this decision. [ 49 ] The Attorney General has asserted that

section 490 of the Criminal Code contains a complete code describing how and in what circumstances material seized pursuant to a search warrant can be dealt with. I have reviewed

section 490 and, in particular, subsection 490(15) of the Criminal Code . If, as the Attorney General suggests,

section 490 amounts to a complete code, I am satisfied that subsection 490(15) authorizes this court to make an order for the examination of the items seized subject to appropriate terms. [ 50 ] The Attorney General’s argument on this point relies on a single case, Louangrath v. Ottawa Police Services , 2009 ONCA 411 , [2009] O.J. No. 2002, 2009 Cars​well​Ont 2647 (Ont. C.A.). I have read both the Court of Appeal decision and the original decision of Justice Giovanna Toscano-Roccamo at 2008 Cars​well​Ont 8991 (Ont. S.C.). I cannot find support for the Attorney General’s position anywhere in these decisions.

The Louangrath case deals with an entirely different set of issues and an entirely different set of circumstances than those with which this court has been asked to deal. [ 51 ] Here, where the focus of the children’s aid society request is not on the actual material seized but rather on the analysis of what was seized, I have little hesitation in making the requested order. All evidence derived from the execution of the warrant “may be relevant” as that term is used in subsection 74(3) of the Child and Family Services Act .

The disclosure of the analysis of the seized material serves an important public interest. Its disclosure will ensure that the Child and Family Services Act trial is fair and that all potentially relevant information will be tendered for the trial judge’s consideration. There is no countervailing interest that militates against the disclosure of this evidence. It should be disclosed. I will speak about the terms surrounding disclosure at the end of this decision. 7: CATEGORY

(2) EVIDENCE THAT IS THE PRODUCT OF A WIRETAP AUTHORIZATION [ 52 ] Before I turn to the Attorney General’s main argument on this point, I need to make a number of comments about the wiretap evidence being sought. Specifically: (

a) The children’s aid society is only seeking disclosure of a small portion of the wiretap evidence obtained by the police. Specifically it is seeking the transcript of telephone conversations between the two respondents that were intercepted the night of 19 and 20 May 2010. (

b) The essence of the wiretap evidence that is sought has already been disclosed to the children’s aid society and subsequently to all other parties in this proceeding. The

summary

section of the Crown brief, which describes the wiretap evidence of which the children’s aid society is now seeking disclosure, has previously been submitted to this court, without any objection from the other parties, on a temporary care hearing. (

c) The wiretap evidence in question has been provided to the respondent Ms. S.D. and, through her, to experts who will be called by her in these proceedings. (

d) The respondent Mr. C.D., the spouse of Ms. S.D., has already deposed that he knows and remembers the conversations that were recorded on 19 and 20 May. Mr. C.D. has previously deposed that, if all the conversations of that evening are reviewed, the portions of the conversations that have been summarized in the Crown brief

summary would look more innocuous. (

e) Ms.

S.D., the other participant in the targeted conversations, has not asserted any privacy interest that she feels militates against the disclosure of these particular transcripts. [ 53 ] In these circumstances, I can safely conclude that the transcript of the conversation of 19 and 29 May 2010 may be relevant, that there is a substantial public interest in their disclosure and that there is no competing privacy interest that might militate against disclosure of these transcripts. [ 54 ] The only public policy interest that the Attorney General has raised that militates against the disclosure of the targeted portions of the transcript is this: • The Attorney General asserts that Mr.

C.D. will be an important witness in the prosecution of his wife, Ms. S.D. • Giving Mr. C.D. an opportunity to review these transcripts and giving the other parties access to the same transcripts to permit them to effectively cross-examine Mr.

C.D. during the Child and Family Services Act case could have an impact on his evidence given during the criminal trial and as well as criminal judge’s assessment of what weight should be given to that evidence. [ 55 ] I accept that these are legitimate public policy interests that need to be put in the balance and considered before deciding whether a subsection 74(3) order should be made.

Having done so, I have concluded that the public interest, coupled with the interests of the children and the respondents in having the fate of these children determined after a full and fair child protection trial, outweighs the other important societal interest in having the respondent Mr.

C.D.’s evidence presented during the criminal trial uncontaminated by their examination in a prior process. [ 56 ] I would therefore conclude that, in the absence of a statutory or jurisdictional bar to the disclosure of this evidence, the evidence should be disclosed pursuant to subsection 74(3). [ 57 ] I have had the benefit of reading excerpts from the text, Wiretapping and Other Electronic Surveillance: Law and Procedure , (Aurora, Ont.: Canada Law Book Ltd., loose-leaf service), dealing with the use of wiretap evidence in civil proceedings. The

critical portions of that text that have been drawn to my attention begin on page 6-40.5 of that text and read as follows: While wiretaps can only be authorized for criminal investigations, any evidence obtained pursuant to an authorization can be used in civil proceedings. There is nothing express in

Part VI of the Code authorizing the use of wiretap evidence in civil proceedings because the Code focuses on criminal offences and procedure. However, s. 193, which creates an offence for disclosure of information intercepted by electronic devices, specifically exempts disclosing wiretap evidence “in the course of or for the purpose of giving evidence in any civil or criminal proceedings”. In Law Society of Upper Canada v.

Canada (Attorney General) , [1] in the course of an investigation of a lawyer for professional misconduct, the Law Society brought an application in the Superior Court to gain access to wiretaps resulting from a criminal investigation. In allowing the Law Society’s application in part, the court stated: [64] This communication was intercepted with the consent of one of the parties to the conversation, and disclosure is not prohibited by the Criminal Code . Section 193(2) (

a) of the Criminal Code specifically permits the disclosure of the wiretap evidence in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath. [65] Balancing the public interest engaged, the privacy interests affected, and the potential relevance of the material, an order will go as asked for the search and seizure of the wiretap evidence related to the May 2, 2003 conversation to which Calvin Barry was a party.

Several older cases have held that s. 193, by implication, clearly envisages the use of wiretap evidence in civil proceedings. For example, in Tide Shore Logging Ltd. v. Commonwealth Insurance Co. , [2] the defendant insurance company sought a court order compelling the police to produce wiretap evidence relevant to a civil suit where the insurer was defending a claim on the basis that a fire was wilfully set by the plaintiff’s agents. The police were prepared to produce the tape recordings provided this did not involve them in any illegality.

In ordering production of the wiretap recordings, the court held that Parliament clearly contemplated the use of intercepted communications in civil proceedings. In doing so, it reject the argument that s. 193 only permits the use of the wiretap evidence in civil proceedings over which Parliament has jurisdiction, stating that it would be anomalous to permit the use of wiretap evidence in Federal Court but not in the provincial court system. It should be noted in passing that s. 189(4) (formerly s. 178.16(3.1)), now repealed, used to expressly permit the use of wiretap evidence in civil proceedings: 178.16 —

(3.1) A private communication that has been intercepted and that is admissible as evidence may be admitted in any criminal proceeding or in any civil proceeding or other matter whatever respecting which the Parliament of Canada has jurisdiction , whether or not the criminal proceeding or the civil proceeding or other matters relates to the offence specified in the authorization pursuant to which the communication was intercepted.

It was this provision and, in particular, the limiting words “respecting which the Parliament of Canada has jurisdiction”, that was cited by counsel in Tide Shore as indicating that wiretap evidence could only be used in federal civil proceedings. In effect, the court in Tide Shore held that s. 193 undercuts this

interpretation of the section. The Tide Shore case was followed by Thunder Bay (City) Police v. Sundell . [3] In this case, authorized wiretap intercepts were sought for use against officers who were charged with administrative disciplinary offences. The Ontario Divisional Court held: [3] There is no doubt upon the material before us that judicial authorizations were given for the intercepts. They have, as yet, not been challenged by any application to set them aside nor have they in fact been set aside in the course of judicial proceedings.

The judicial authorizations are not before this court for determination of their legal validity. [4] It seems to us that unless and until those authorizations are, in fact, set aside that this court ought to assume them to be valid. . . . . . . [6] . . . assuming the evidence was lawfully obtained pursuant to

Part IV.1 [now

Part VI] of the Criminal Code , it is admissible in the disciplinary proceedings. . . . In Ault v. Canada (Attorney General) , [4] the plaintiffs in a civil action sought to preclude the Crown defendants from tendering wiretap-derived evidence. Some of the plaintiffs had previously been under criminal investigation involving wiretapping surveillance. The criminal proceedings had been terminated. The plaintiffs argued that the wiretap evidence was inadmissible in the civil proceedings.

The trial judge, however, concluded that there was no exclusionary rule of evidence that rendered wiretap derived audiotapes inadmissible in the civil proceedings. [ 58 ] The Attorney General’s position with respect to wiretap evidence is set out in paragraph 44 of their factum. It reads: The Crown takes the position that, if a private communication intercepted under judicial authorization is to be disclosed, such disclosure must be done by a court of criminal jurisdiction, as the intercepts are governed by the judicial authorization which permitted the invasion of privacy.

This judicial authorization was granted under federal statutory jurisdiction, and it is not clear that provincially granted civil powers can be used to make an order dealing with the use and disclosure of the intercepts. [ 59 ] The Attorney General begins this argument by arguing that there is an important analogy between the issues in play in a contest over the disclosure of wiretap evidence in a Child and Family Services Act case and the issues that arise when a third party seeks to challenge a publication ban issued in a criminal process. The Attorney General relies on the case of Dagenais v.

Canadian Broadcasting Corp. , [1994] 3 S.C.R. 835, 175 N.R. 1, 76 O.A.C. 81, 120 D.L.R. (4th) 12, 25 C.R.R. (2d) 1, 94 C.C.C. (3d) 289, 34 C.R.

(4th) 269, , [1994] S.C.J. No. 104, 1994 Cars​well​Ont 112, to support that argument. I have looked carefully at the caseof Dagenais v. Canadian Broadcasting Corp. and I find it hard to find any clear analogy that can be drawn between these two verydifferent legal issues. I cannot find support in Dagenais v. Canadian Broadcasting Corp. for the proposition the Attorney General hasasked me to accept. [60] The Attorney General next asks me to consider Michaud v.

Attorney General for Québec, (SCC),[1996] 3 S.C.R. 3, 201 N.R. 241, 138 D.L.R. (4th) 423, 38 C.R.R. (2d) 230, 109 C.C.C. (3d) 289, 1 C.R. (5th) 1. ,[1996] S.C.J. No. 85, 1996 Cars​well​Que 908. The Michaud case is a civil case in which the plaintiff alleged that his Charter rights wereviolated when the police sought and obtained an order authorizing the interception of his communications. Michaud was a non-accusedsurveillance target in a criminal investigation.

In the civil suit, he sought access to both the packet of information received by the judgewho authorized the wiretap and the tapes that were the product of the wiretap authorization. [61] In Michaud v. Attorney General for Québec, the court concluded that whether there had been a Charter breach would turnlargely on the contents of the packet. Given the often extremely sensitive and confidential information that can be found in a packet, thecourt focused on the process to be used and the tests to be applied to determine whether access to the packet would be appropriate. Thecourt in Michaud v.

Attorney General for Québec seems to conclude that access to the wiretap evidence itself would only be relevant tothe question of damages, a question that would only arise if and when a Charter breach had been established. [62] I cannot find in Michaud v.

Attorney General for Québec explicit or implicit support for the Attorney General’s assertionthat the only court process available to determine access to the actual wiretap evidence being sought is under the Code. [63] As the Attorney General acknowledges, issues of access to, and the use of, wiretap evidence haves been determined onmany occasions by courts involved in civil processes rather than in processes governed by the Code. Ault v. Canada (Attorney General),supra; Thunder Bay Commissioners of Police v. Sundell, supra; and Law Society of Upper Canada v.

Canada (Attorney General), supra,cited by the Attorney General all are examples of courts making determinations on this type of issue quite outside any processcontemplated by the Code. Similarly, the decision by Justice Harvey P. Brownstone, Catholic Children’s Aid Society of Toronto v.Leonard R. and Jennifer S., 2005 ONCJ 19, 13 R.F.L. (6th) 100, [2005] O.J. No. 336, 2005 Cars​well​Ont 376 (Ont.

C.J.), is an exampleof a child protection court making this type of determination. [64] Subsection 193(1) of the Code makes it an offence to use or to disclose wiretap evidence without the express consent ofthe originator of the communication or its intended recipient. Subsection 193(2) of the Code says that subsection 193(1) does notapply to a person who makes disclosure: (

a) in the course or for the purpose of giving evidence in any civil or criminal proceedings or in anyother proceedings in which the person may be required to give evidence on oath; [65] Subsection 193(3) reads as follows:

(3) Publishing of prior lawful disclosure.— Subsection (1) does not apply to a person who discloses aprivate communication or any part thereof or the substance, meaning or purport thereof or of any partthereof or who discloses the existence of private communication where that which is disclosed by himwas, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence inproceedings referred to in paragraph (2)(a) [66] In this case, the respondent Ms. S.D. is also an accused person.

She has been given a copy of the transcript of the wiretapevidence pursuant to the provisions of subsection 189(5) of the Code. When that occurred, she came into possession of documents thatwere relevant to the issues that arise in this case. [67] Pursuant to subrule 19(1), if any other party had asked Ms. S.D. to produce an affidavit of documents, Ms S.D. wouldhave been required to do so and would have been required to disclose the fact that she had in her possession and control the wiretaptranscripts.

Pursuant to subrule 19(2), any other party would then be entitled to examine and receive a copy of these transcripts. SeeHarbour v. Bangs, , 32 R.F.L. (5th) 359, [2002] O.J. No. 4148, 2002 Cars​well​Ont 3559 (Ont. C.J.), a decision ofJustice Judythe P. Little. [68] A failure by Ms. S.D. to provide a copy of the transcripts would justify any other party in seeking an order under subrule19(10) compelling the disclosure of the transcripts. If such a motion were brought, it would be open to this court to order Ms.

S.D. todisclose the transcripts unless Ms.S.D. could make an argument under subrule 19(4) that the transcripts were protected by some form oflegal privilege. [69] It seems unfortunate that no one has to date asked Ms. S.D. for an affidavit of documents or for copies of the transcriptbeing sought. I am not sure that this motion would have been necessary if such a request had been made. [70] I am satisfied that here, where the respondent Ms.

S.D. possesses the transcript sought and has an obligation to disclose itif she is asked for it, there is no jurisdictional impediment that prohibits this court from making an order authorizing the disclosure of thiswiretap evidence. [71] The Attorney General goes on to say that, even if this court has jurisdiction to authorize access to wiretap evidence, therequested disclosure should not occur until after the completion of the criminal trial process. The Attorney General argues that, in thethree leading cases — Ault v. Canada (Attorney General), supra; Thunder Bay Commissioners of Police v.

Sundell, supra; and LawSociety of Upper Canada v. Canada (Attorney General), supra — there is support for the proposition that the use of wiretap evidence incivil cases should only occur after the related criminal trial process has been completed. The Attorney General also points out that therespondent Mr. C.D. is a compellable witness in the criminal proceedings and will be called upon to testify against his wife, the otherrespondent in these proceedings. The Attorney General argues that the disclosure of this wiretap evidence to the respondent Mr.

C.D.and his subsequent examination on this evidence in the Child and Family Services Act trial could affect the evidence that he supplies

during the criminal trial. [ 72 ] I am not convinced that the leading cases support the assertion that, in all circumstances, the use of wiretap evidence in civil cases should only be permitted after the related criminal trial has been completed. The leading cases cited all involve very different claims and factual circumstances than the one with which we are presently involved. None of the three leading cases cited in support of the Attorney General’s argument involve fact situations where the early completion of the civil process was critical to any party.

That is definitely not the case in this child protection case. In this case, the early completion of this trial is critical to many people, most importantly to the four children that are the focus of the case. [ 73 ] These children cannot be “parked” indefinitely in temporary placement situations pending the outcome of the criminal trial process. This court has already been advised that the most optimistic projection is that the criminal trial of Ms. S.D. will not begin for at least eight months. I note that the Crown cannot make any reasonable prediction when this criminal case will be concluded.

The harm that these children will suffer if their fate is put on hold pending the completion of the criminal trial process will be immense. In my view, that is self-evident. There is an overwhelming urgency that requires this child protection trial to proceed as early as possible. This reality distinguishes this case and this fact situation from the three cases cited by the Attorney General. [ 74 ] I accept that there is a risk that the disclosure of the targeted wiretap evidence to the respondent Mr.

C.D. and his subsequent cross-examination in the child protection proceedings could have an impact on the criminal trial process. However, I note that the respondent Mr. C.D. appears to be well aware of and quite capable of commenting on the targeted conversation without having had the opportunity to review the transcript of the wiretap of 19-20 May 2010.

Given his intimate knowledge of the essence of that conversation, the disclosure to him of the wiretap evidence is unlikely to have a substantial impact on his testimony during the criminal trial. [ 75 ] I conclude that the limited portion of the wiretap evidence that is sought by the children’s aid society is important evidence that the parties preparing for this child protection proceeding must be entitled to access and, if deemed relevant and admissible, to introduce at trial for the trial judge’s consideration. [ 76 ] In this case, where the respondent Ms. S.D. has possession of a copy of the transcript.

I was inclined to simply order its production, not by the Crown, but by Ms. S.D. I am not going to do that. I am satisfied that, notwithstanding Ms. S.D.’s possession of a copy of the transcript, the Attorney General has asserted a right of control over that document and it is therefore open to me to make an order under subrule 19(11) and under subsection 74(3). 8: CONCLUSION AND ORDER [ 77 ] For the foregoing reasons, I am making the following order under subsection 74(3) and subrule 19(11) : 1.

That the evidence described in the preceding paragraphs of this decision that has been in issue on this motion be disclosed to counsel for the children’s aid society, counsel for the Office of the Children’s Lawyer and counsel for the respondents Ms. S.D. and Mr. C.D. 2. No reproduction of any of the documents or materials disclosed pursuant to this order shall take place without a further order of this court. 3.

The contents of the documents and materials disclosed pursuant to this order may be shared and discussed with the children’s aid society officials involved in the investigation of this case and, where it is otherwise appropriate, with the other witnesses who will be called in this case. No other disclosure of the content of this material shall take place. 4. All material and every document disclosed pursuant to this order shall be returned to the City of Thunder Bay Police Department 30 days after the expiry of the final appeal period in these proceedings.

APPENDIX 1 [See the reasons for judgment in Children’s Aid Society of Thunder Bay v. S.D. and C.D. , 2010 ONCJ 718 , [2010] O.J. No. 5953, 2010 Cars​well​Ont 10589 (Ont. C.J.), per Justice Marc L. Bode.] APPENDIX 2 [See the reasons for judgment in Children’s Aid Society of Thunder Bay v. S.D. and C.D. , 2010 ONCJ 722 , [2010] O.J. No. 6008, 2010 Cars​well​Ont 10669 (Ont. C.J.), per Justice Marc L. Bode.] APPENDIX 3

Confidential Overview of Crown Brief Documents in R. v. S.D. (prepared by J. Parker) Page Item Notes / Detail CAS position on relevance* Crown position on production 3 Crown Brief

Summary Includes material from intercepts • Relevant • Consent to redacted version already provided 12 Original Occurrences Officers’ Reports (which detail steps taken by the police in the investigation) by: • Shawn Harrison • Lars Holdt • Kerry Dunning • Gordon Boyes • Pat Haner • Ryan Hughes • Sherry Heyder • Jason Alexander • Wendy Ratz • Wayne Dzeoba • Roy Roblin • CAS considers all reviewed records relevant • The Crown objects to the release of these documents in light of the criminal prosecution • To the extent that these contain any information of relevance to the child protection matter, it is because they contain summaries of other evidence / records which we object to produce such as witness statements • If evidence is required from police officers, CAS has advised they will be calling them as witnesses 216 Police Will Says • CAS considers all reviewed records relevant • The Crown objects to the release of these documents in light of the criminal prosecution • For the purposes of understanding the nature of the documents, these will says largely document steps taken in the process, and unless there is an issue with the conduct of the police investigation, the Crown does not concede relevance of these documents • If evidence is required from police officers, CAS has advised they will be calling them as witnesses

243 Civilian Will Says • Dr. Chow (audio embedded) • Mr. C.D. (audio embedded) • D.D. (audio embedded - interview with police and with CAS) • Dr. Vincent Desa (audio embedded) • Robert Frost (audio embedded plus notes) • Mark Halabecki (audio embedded) (Fire Dept) • Dr. Haq (audio embedded) • Ems - Heithorn (audio embedded) • CAS Marsh (audio embedded) • Deanna Ward (social worker - adoption) • Dr.

Wood (audio embedded) • CAS considers all these records relevant • The Crown objects to the release of these documents in light of the criminal prosecution; among other less predictable concerns, they pose a risk of tainting witnesses, including innocent tainting • The names of all the witnesses are provided and CAS has indicated medical witnesses may be called 325 Police Notes • These were not reviewed • It is believed they were not reviewed because the notes are handwritten and may contain s/w and witetap information • The Crown objects to the release of these documents in light of the criminal prosecution • They contain summaries of information we object to producing in light of the ongoing prosecution 920 CFS reports These are two expert reports prepared for the Crown for use in the prosecution: • DNA / Blood / Semen report • Toxicology report • CAS considers these records relevant • The Crown objects to the release of these documents and claims privilege over them as they are expert reports prepared for use in the prosecution • The Crown contests the relevance of these documents to the child protection hearing 1020 Behavioural sciences analysis • This is an expert opinion regarding the D.s, based upon reviewing interviews with them • CAS considers this relevant to an investigation it is doing • The Crown is opposed to the production of this report as it is a confidential expert report prepared fro the Crown and is privileged Page Item Notes / Detail CAS position on relevance* Crown position on production * CAS did not indicate to what issues the record was relevant.