R. v. Currie, 2012 NSPC 70

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Currie, 2012 NSPC 70 Date: 20120803 Docket: 2305450 Registry: Sydney, N.S. Between: Her Majesty the Queen v. Michael Bradley Currie __________________________________________________________________ DECISION O ’ Connor Application - June 11, 2012 __________________________________________________________________ Judge: The Honourable Judge Jean M. Whalen Heard: June 11, 2012 in Sydney, Nova Scotia Oral Decision: August 3, 2012 Written Decision: August 8, 2012 Charge: 266(

B) CCC 264.1(1)(

A) x2 CCC 145(5.1) CCC Counsel: Kathryn Pentz, for the Crown Christopher Conohan, for the Defence By the Court :

[1] INTRODUCTION [2] Mr. Currie is charged that he on or about April 21, 2011 did assault, utter threats to cause death or cause bodily harm to E.Currie and did breach his undertaking dated September 7, 2009; and on September 5, 2009 he is alleged to have uttered threats to causedeath or bodily harm to E. Currie. [3] Mr. Currie appeared in Provincial Court on February 15, 2011 and set a new date for trial, September 15, 2011. That datewas adjourned at the accused’s request as he was out west working. On the new date of January 23, 2010, Mr.

Currie’s counselrequested an adjournment indicating to the court he gave notice to the crown and the court that he would be making an O’Connorapplication and seek disclosure of the complainant’s therapeutic records. [4] On the date of the hearing, June 11, 2012, Dr. Shulhah did not appear. He had not been subpoenaed, but correspondence hadbeen sent to his office and his assistant was aware of the hearing date. [5] Mr.

Conohan proceeded without the doctor, suggesting that if the court ordered the record to be reviewed furtherarrangements could be made to have the doctor present. [6] Defence counsel filed an affidavit with amendments with the clerk of the court. Mr. Currie, the defendant, testified and wascross examined by the crown. [7] Mrs. Currie did not attend, but the crown filed an affidavit taken from the complainant. Defence counsel agreed the “facts” tobe considered by the court are those testified to by the accused and contained in the affidavits of the parties. Counsel also “thinks” or“assumes”, Dr.

Shulhah has all the records as he took over Dr. Khan’s practice. [8] ISSUE

I) Should the court grant the accused’s request for the production of the complainant’s therapeutic records? [9] THE LAW [10] Regarding the issue of disclosure and production of records, the Supreme Court of Canada has decided R. v. Stinchcombe, 68CCC (3d), R. v. O’Connor, (SCC), [1995] 4 SCR 411, R. v. Mills, (SCC), 139 CCC (3d) 321, and R. v.McNeil 2009 SCC 3 , [2009] 1 S.C.R. 66. [11] The latter is the latest case and provides a very well organized and comprehensive outline of the relevant law. Beginning atparagraph 26: 5.

The O'Connor Regime for Production of Third Party Records 26 In O'Connor, this Court was concerned with the manner in which the accused, who was charged with multiple sexual offences,could obtain production of the therapeutic records of the complainants from third party custodians. O'Connor has been overtaken byParliament's subsequent enactment of the Mills regime contained in ss. 278.1 to 278.91 of the Criminal Code for the disclosure ofrecords containing personal information of complainants and witnesses in sexual assault proceedings.

In respect of any other criminalproceeding, however, the O'Connor application provides the accused with a mechanism for accessing third party records that fall beyondthe reach of the Stinchcombe first party disclosure regime.

27 Stated briefly, the procedure to be followed on an O'Connor application is the following.

(1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third partyrecord holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials.

(2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to berelevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of the records andany other person who may have a privacy interest in the records targeted for production.

(3) The O'Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. Ifproduction is unopposed, of course, the application for production becomes moot and there is no need for a hearing.

(4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in allbut the rarest cases where the accused's innocence is at stake, the existence of privilege will effectively bar the accused's application forproduction of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of theO'Connor process.

(5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stagetest established in O'Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, thejudge may order production of the record for the court's inspection. At the next stage, with the records in hand, the judge determineswhether, and to what extent, production should be ordered to the accused. The question of privilege is beyond the scope of this appeal.

However, I will elaborate on each stage of the O'Connor test for productionof third party records in turn. 5.1 First Stage: Screening for Likely Relevance 5.1.1 Burden is on the Applicant 28 The first step in any contested application for production of non-privileged documents in the possession of a third party is for theperson seeking production — in this case the accused — to satisfy the court that the documents are likely relevant to the proceedings.This threshold burden simply reflects the fact that the context in which third party records are sought is different from the context of firstparty disclosure.

We have already seen that the presumptive duty on Crown counsel to disclose the fruits of the investigation in theirpossession under Stinchcombe is premised on the assumptions that the information is relevant and that it will likely comprise the caseagainst the accused. No such assumptions can be made in respect of documents in the hands of a third party who is a stranger to thelitigation. The applicant must therefore justify to the court the use of state power to compel their production — hence the initial onus onthe person seeking production to show "likely relevance".

In addition, it is important for the effective administration of justice thatcriminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in "fishing expeditions" forirrelevant evidence. The likely relevance threshold reflects this gate-keeper function. 5.1.2 Burden on Applicant is Significant but not Onerous 29 It is important to repeat here, as this Court emphasized in O'Connor, that while the likely relevance threshold is "a significantburden, it should not be interpreted as an onerous burden upon the accused" (para. 24).

On the one hand, the likely relevance threshold is"significant" because the court must play a meaningful role in screening applications "to prevent the defence from engaging in'speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming' requests for production" (O'Connor, at para. 24;quoting from R. v. Chaplin (1994), (SCC), [1995] 1 S.C.R. 727 (S.C.C.), at para. 32). The importance of preventing

unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protractionof criminal proceedings remains a pressing concern, more than a decade after O'Connor. On the other hand, the relevance thresholdshould not, and indeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessinginformation that may assist in making full answer and defence, "to demonstrate the specific use to which they might put informationwhich they have not even seen" (O'Connor, at para. 25, quoting from R. v.

Durette, (SCC), [1994] 1 S.C.R. 469(S.C.C.), at p. 499). 5.1.3 O'Connor Common Law Threshold Significantly Different from Mills Statutory Regime 30 It is important to note that the common law likely relevance threshold in O'Connor differs significantly from the statutory likelyrelevance threshold set by Parliament for the production of records containing personal information in sexual assault proceedings underthe Mills regime (see s. 278.3(4) of the Criminal Code). As this Court explained at some length in Mills, a range of permissible regimescan meet constitutional standards.

It was therefore open to Parliament to craft its own solution to address the particular concerns arisingfrom disclosure of third party records in sexual proceedings. In doing so, Parliament "sought to recognize the prevalence of sexualviolence against women and children and its disadvantageous impact on their rights, ... and to reconcile fairness to complainants with therights of the accused" (Mills, at para. 59).

The following differences between the two regimes are particularly noteworthy. 31 First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths,stereotypes and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assaultproceedings.

Such generalized views need not be countered at large in respect of all third party records that fall outside the Mills regime.The general common law threshold of likely relevance under O'Connor is intended rather to screen applications to ensure the proper useof state authority in compelling production of third party records and to establish the appropriateness of the application so as to avoidsquandering scarce judicial resources. 32 Second, while the Mills regime retains the two-stage framework set out in O'Connor, it differs significantly in that much of thebalancing of the competing interests is effected at the first stage in determining whether production should be made to the court forinspection.

This reflects Parliament's assumption that a reasonable expectation of privacy exists in the types of records targeted by thestatutory regime: see R. v. Clifford (2002), (ON CA), 163 C.C.C. (3d) 3 (Ont. C.A.), at paras. 48-49. An equivalentpresumption of privacy does not attach in respect of all third party records that fall outside the Mills regime. Hence, any balancing ofcompeting interests is reserved for the second stage of the O'Connor regime, when the documents can be inspected by the court to betterascertain the nature of the privacy interest, if any.

Because of these significant differences, it is important not to transpose the Millsregime into the O'Connor production hearing in respect of documents to which the statutory dispositions do not apply. 5.1.4 Likely Relevance Under the Common Law Regime 33 "Likely relevant" under the common law O'Connor regime means that there is "a reasonable possibility that the information islogically probative to an issue at trial or the competence of a witness to testify" (O'Connor, at para. 22 (emphasis deleted)).

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

The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossibleCatch-22 position. 5.2 Second Stage: Balancing the Interests at Play 34 If likely relevance is demonstrated by the applicant, the third party record holder may be ordered to produce the documents forinspection by the court in order to determine whether production should be ordered to the accused. 35 In O'Connor, this Court provided the following list of factors for consideration in determining whether or not to order productionto the accused (at para. 156):

(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias; [and] (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question. The factors set out in O'Connor should not be applied mechanically.

It should be kept in mind that O'Connor involved the production of the complainant's private records in proceedings for a sexual offence, an area of law subsequently overtaken by Parliament's enactment of the Mills regime. Some of the factors listed in O'Connor , in particular items 4 and 5 above, were obviously tailored to meet the exigencies in sexual assault proceedings and, consequently, are unlikely to be of assistance in other contexts. Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case.

No exhaustive list can be crafted to suit every situation; however, I will elaborate somewhat on the balancing process. [ 12 ] REVIEW OF THE EVIDENCE [ 13 ] Mr. Currie took the stand and on direct examination agreed there was some contact between the two on the dates offences are alleged to have occurred. He testified Ms. Currie was not angry with him because he is not paying child support because he was paying $300 per month. [ 14 ] Over the past 11 years they have split up off and on. He was out west and returned home on leave and after several days Mrs. Currie would kick him out. [ 15 ] Mr.

Currie agrees that neither he, nor Mrs. Currie ’ s doctor, would know if she was taking her medication or not taking them on dates of alleged offences. [ 16 ] Mr. Currie has never made any efforts to prove or disprove paternity of Brendan and agrees that has nothing to do with this application to get the doctor ’ s records. [ 17 ] Mr. Currie agreed there was violence between the two but “ more on her part ” . The incident in para. 26, of his affidavit, occurred in 2002, and at para. 27, in 2004. He agrees on cross neither has anything to do with the parties ’ relationship. [ 18 ] Mr.

Currie says he saw a paper that said the complainant was “ unstable ” ; however, the court has not been presented with any evidence that describes in detail, where, and when this observation was made. [ 19 ] Mr. Currie agrees as far as he knew the complainant only talked of “ grief and loss ” , when she saw her doctor. [ 20 ] Mrs. Currie in her affidavit admits to the following:

I) Mr. Currie has refused a paternity test for Brendan and is presently paying child support. ii) There have been physical altercations between the two of them during the course of their relationship. iii) She suffers from anxiety and depression and she sees a psychiatrist every three months to deal with these issues resulting from the loss of her children.

iv) She takes three prescription medications and denies taking any non-prescribed medication now or at the times of the alleged incidents.

v) She admits to assaulting DM (para. 26) and fighting with a girl (not named by the complainant, para. 27). [Both of these offences happened well before the alleged offences before the court.] [ 21 ] ANALYSIS [ 22 ] The first stage under the O ’ Connor regime is to determine whether the documents sought are likely relevant to the proceedings. In particular, is there “ a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness ” .

An issue at trial here includes not only material issues concerning the unfolding of events which form the subject matter of the proceedings, but also evidence relating to the credibility of witnesses and to the reliability of other evidence in the case . [ 23 ] I find there is no evidence that: 1. Mrs. Currie has discussed the alleged offences with anyone including her psychiatrist(s). 2. Her “ psychiatric condition ” manifests itself in violent outbursts. 3. Her admitted altercation with (2) individuals is in anyway related to the alleged offences of 2009 and 2011. 4. Mrs.

Currie was “ motivated ” to lie because she was angry at Mr. Currie. 5. The “ record ” will help assess the accused ’ s credibility. For example, this is not a case where there is some evidence that the complainant ’ s recollection was changed by something said or done during counselling. [ 24 ] Mr. Currie alleges (3) things: 1. Mrs. Currie has been violent in the past; two incidents are acknowledged, the others are very general, vague in nature and dated. 2. She is under a psychiatrist ’ s care and on medication. Both are readily acknowledged by the complainant. 3.

Her “ cognitive ” ability to testify is impaired as a result. The court has heard no evidence of the affects the medication can have on an individual regarding whether or not they may or may not affect ones ability to perceive or recall events. [ 25 ] CONCLUSION [ 26 ] I find Mr. Currie is attempting to adduce character evidence of “ propensity of violence ” . While it may be admissible, it is permitted only in limited circumstances. There is absolutely no evidence any information is in the file and if it is, the accused has not shown any relevance.

[27] The defendant is challenging Mrs. Currie’s cognitive abilities citing in his testimony, she is on medication. The complainantreadily admits this and the records do not have to be disclosed. What is required is an expert to testify to the effect of these medications,if any, at the relevant times. [28] The record is not necessary for full answer and defence. Mrs. Currie is seeing a psychiatrist because she has lost severalchildren and suffers from anxiety and depression.

None of the information that one could reasonably expect to be in the file was eludedto let alone shown to be relevant to an issue at trial. [29] At page two of his memo, Mr.

Conohan simply states: “It is expected that the records sought will confirm that the complainant suffered from a psychiatric condition that manifests itself inviolent outbursts from time to time, and that she was prescribed medication that she was either not taking or combining with othersubstances.” [30] There is absolutely no evidence before the court to show that if one suffers from anxiety or depression, it manifests itself inviolent outbursts. And even if there was, it has not been shown to be relevant to an issue at trial. [31] In R. v.

McNeil, supra, at para 39, The Supreme Court stated: 39 That determining the existence of a reasonable expectation of privacy requires a contextual assessment having regard tonumerous factors, including but not limited to: how the record was created; who created the record; the purpose of the record; thecontext of the case in which the record would be used; who holds the privacy interest; how the record was obtained by the Crown orpolice; the presence or absence of waiver; any applicable legislation; and whether the privacy interest extends to all or part of the record.As one can readily appreciate from this non-exhaustive list, determining whether there is any residual expectation of privacy in adocument may be a complex and time-consuming exercise that has the potential to significantly delay and detract from the actualproceeding before the court — the trial of the accused.

Given the competing interests at stake, the relevancy assessment will usually belargely determinative of the production issue. [32] The Supreme Court made it quite clear in R. v. Mills, (SCC), 139 CCC (3d) 321, that therapeutic counsellingrecords should attract a very high expectation of privacy and protection from disclosure. [33] The accused argues this would be safe guarded by the second part of the test; vetting by the court. However, the courtdisagrees. [34] Mr. Currie, having been married to the complainant, already knows a great deal about Mrs.

Currie, and he relies on thatintimate relationship and his own personal knowledge to determine the existence of a therapeutic record.

It is not something that hasarisen as a result of a criminal investigation. [35] Record access has extremely deleterious implications for individuals who have entered counselling and confide in their doctorsetc. this kind of heightened vulnerability is a factor that the court must be conscious of in these types of applications. [36] This extraordinary high degree of invasion into the lives of complainants who have been documented will clearly influence thewillingness of such women to make criminal complaints. [37] The defendant asserts that the accused is “unstable”.

The complainant denies saying this to the accused, but says she suffersfrom anxiety and depression.

[ 38 ] It is important that the courts work to ensure that record applications are not motivated by stereotypical thinking about mental illness. [ 39 ] I find that the production of the complainant ’ s therapeutic records would cause prejudice to the complainant ’ s dignity, privacy and security of her person. [ 40 ] The accused ’ s application is denied / dismissed. ________________________________ The Honourable Judge Jean M. Whalen