R v. J.D.H., 2011 NBPC 5

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF WOODSTOCK Citation: R v. J.D.H. 2011 NBPC 5 Date: 2011-01-06 Docket: 0 3593707 Between: Her Majesty, The Queen - and - J.D.H. Restriction on Publication: Publication Ban pursuant to

section 278.9(1) (

c) of the Criminal Code Before: Chief Judge R.Leslie Jackson Date(

s) of hearing: 2010-12-09 Appearances: Lindsay Schriver - for the Crown Brian A. Barnett - for the Defendant Marcel LaFlamme - for the Third Party JACKSON, C.P.C.J. Introduction: [ 1 ] The Defendant, who is charged with touching his daughter A.H. for a sexual purpose contrary to

section 151 of the Criminal Code , has made an Application pursuant to

section 278.3 of the Criminal Code for the production of certain of A.H.’s school records which are in the custody and control of the Third Party. Following a hearing on August 23, 2010, I ordered, pursuant to

section 278.5 (1) of the Criminal Code, that the requested records be produced to the Court. The issue now before me is whether or not those records, or any part thereof, should be disclosed to the Defendant.

Facts [ 2 ] Although the actions which form the factual basis for the current charge are alleged to have occurred between May 2003 and May 2005 the complaint was first made in the spring of 2008 at which time A.H. was a student at Nackawic Middle School. [ 3 ] The Defendant in his Affidavit filed in support of this motion says that he believes that A.H. made a complaint of inappropriate conduct against a teacher at Nackawic Middle School around the same time as the allegation against him surfaced.

This allegation was investigated by the Principal of Nackawic Middle School and it is the report of that investigation which the Defendant wishes to have disclosed. [ 4 ] The Department of Education has established a policy on access to student information (Policy 710) which provides that the parent of a pupil is entitled to access to any pupil record subject to a discretion vested in the superintendant of the district where the pupil attends school, to deny access to the record “where the superintendant concerned believes that access to a record maintained … would be detrimental to the well being or future development of … the pupil” (section 54(3), Policy 710).

[ 5 ] The Defendant, although not the custodial parent of A.H., has court ordered access and the right to a copy of all educational information in respect of her, including the right to request such information directly from school authorities (paragraph 4(

a) of Consent Order dated March 26, 2009). [ 6 ] Superintendant Gallagher denied the Defendant access to the records in question in this matter by letter of December 2, 2010 addressed to the principal of Nackawic Middle School, which denial, it is conceded, was made known to the Defendant.

The grounds proffered by the Superintendent for her refusal were that: “ … access to this part of the school record would be highly detrimental to this particular student(sic) Moreover, disclosure of this part of the record would be an unreasonable invasion of [A.H.’s] privacy, as well as that of the other persons mentioned in the recorded incident.

In an effort to maintain student/teacher trust levels, established at Nackawic Middle School, the confidentiality of her record shall be protected and is not to be released to anyone.” ( Items in brackets added). [ 7 ] In her Affidavit filed in response to the Defendant’s request, Superintendant Gallagher says at paragraphs 5 and 6: “5. The School District | (sic) 14 considers student records highly important and confidential as we must ensure that students can deal with the Principal and staff without fear that their personal matters could someday become public. 6.

Children spend approximately 6 hours of their day within the school.

This is a situation of mutual trust that has to be nurtured and releasing this information would greatly affect this trust and be prejudicial to the students and staffs(sic).” Analysis and Decision Position of the Parties [ 8 ] The Defendant says that the record sought to be produced is relevant to an issue at trial, that is, the credibility of A.H. and in particular her alleged propensity to either fabricate or embellish facts for her own advantage, which meets the test of likely relevance, and further, that it would be in the interests of justice that the record be produced to him so that he may make full answer and defence. [ 9 ] Crown Counsel opposes disclosure on the basis of both the impugned reliability of the record sought and whether or not the information in the record could be said to be logically probative to any question that the Court has to decide. [ 10 ] The Third Party opposes disclosure as outlined above and on the basis of the privacy rights of A.H. who, it is said, had a reasonable expectation of privacy in the complaint she made to the Principal.

Counsel for the Third Party also suggested that what the Defendant is doing here is seeking a Judicial Review of Superintendant Gallagher’s decision to deny access which cannot be done in this Court. His final argument was that the request should be denied as it is based on an impermissible line of reasoning, that is, reasoning based on A.H.’s “lifestyle”. When questioned on what he meant by “lifestyle” he said it was based on an impermissible deduction from the clothes that A.H. wore, therefore her “lifestyle”.

Reasons [ 11 ] The Criminal Code provides a regulatory scheme for the production of third party records to an accused person in

section 278.7 which says: “278.7

(1) Where the judge 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 judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3).

(2) In determining whether to order the production of the record or part of the record to the accused, 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 and equality of the complainant or witness, as the case may be, and any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(

a) to (

h) into account.” The factors specified in

section 278.5 which a judge must take into account when making a decision as to disclosure are: “ (

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.” [12] I will deal with the Third Party’s arguments as to jurisdiction and stereotypical perception first. In my view the Defendant is notseeking to question the correctness of Superintendant Gallagher’s decision given by way of letter on December 2, 2010.

Had theDefendant not been charged with this offence and wished to have the records for prurient reasons, this argument may have had merit.However, records of all types maintained by third parties, such as medical and counseling records, which undoubtedly attract anexpectation of privacy either by statute, policy or convention, are available in certain situations under the scheme which Parliament hasseen fit to establish in

section 278.1 et seq. The Superintendant’s decision, while it must be given consideration, does not and cannotoust this Court’s jurisdiction to order disclosure in cases that meet the statutory requirements. [13] The second argument of Counsel for the Third Party is that the Defendant’s Application is based on a discriminatory belief orbias, that is, that persons who wear certain kinds of clothing are less likely to be believed, and therefore should be dismissed.

Nowhere,however, in any of the material filed by the Defendant can one find support for such a clearly discriminatory or stereotypical belief.Indeed the only way one could even suggest such a belief is possible is by reference to the Third Party Record which neither theDefendant nor the Crown has seen. In my view the Defendant’s motion should not be dismissed on that basis. [14] At this second stage of inquiry I must consider the competing interests of full answer and defence on the Defendant’s part, andthe privacy and equality interests of the Complainant, taking into account those factors enumerated in

section 278.5 (2) (

a) through (h).It seems to me that factors (

a) through (

c) are the primary factors in play here. [15] The Defendant says that the school record is relevant as it may show a course of conduct by A.H. when she is required to interactwith someone in authority over her, such as a teacher or a parent, and further that it may show other persons’ perceptions of A.H. as aperson who has a propensity to misrepresent or embellish certain facts and is therefore directly relevant to the issue of her credibilitywhich is, not surprisingly, a major issue in any case such as this. [16] Both the Crown and Third Party say that there is a reasonable expectation of privacy in this record and object to it being released.The Third Party goes further and says that the content of the record itself shows that A.H. wanted to keep the record private. [17] It is trite law that A.H. does not have as strong a privacy interest in her school records, as in medical or counseling records.

In thecases cited by the Third Party, R. v. Tatchell [2001] N.J. No. 314 and R. v. N.P. [2001] O.J. No. 1828, courts in Newfoundland andOntario denied access to the requested records; however in Tatchell the court found the request to be based on a discriminatory belief orbias, while in N.P. school records referring only to attendance were found not to be of likely relevance. The case most closely factuallyrelated to this one is R. v. G. (K.A) (NS PC), 192 N.S.R. (2d) 5, which involved statements or letters written to aschool principal by several complainants, all of whom were fellow students of the accused.

Comeau C.J. said at paragraph 9: “[9] A review of the record before the court produced by the school principal gives no indication that the record which consists ofletters from the complainants and an action report by the principal were given with a reasonable expectation of privacy.

Theletters were given with the expectation that they would be viewed to compel authorities to act, and in that context could not beprivate and withheld from the police, Family and Children Services and those involved in dealing with them in the justicesystem.” [18] The record which I reviewed consisted of a note from A.H.’s mother and the action report of the principal to whom the note wasaddressed. There is nothing which would suggest that the note would be private, indeed it was expected that the principal would act onit.

As to the suggestion that the contents of the principal’s action report show that A.H. wished to keep the matter private, while there isan indication that A.H. wished to keep the matter at the school level, this only occurs after it become apparent to her that expectedconfirmation of her claim was not forthcoming. The initial complaint was made with an expectation that it be acted upon. [19] I am satisfied that the record sought is likely relevant to an issue at trial as suggested by Defence Counsel. Even thoughcredibility of a complainant is one of the assertions mentioned in

section 278.3(4), the law is clear that an accused may rely on thosefactors where there is an evidentiary foundation to suggest that the factor may be related to likely relevance (R. v. Mills [1993] 3 S.C.R.668). Given the nature of this case I am also satisfied that production is necessary in the interests of justice. This is neither a case of afishing expedition (N.P.), nor based on discriminatory belief or bias (R. v. Dick 2009 NBQB 98 , [2009] N.B.J. No. 96). The

record has probative value and disclosure will not prejudice the personal dignity nor privacy rights of the complainant. [ 20 ] I therefore order that a copy of the undated note from A.H.’s mother to Principal Scarbro and the notes of the Principal’s actions, edited as noted below, be disclosed to the Defendant by delivering the same to his Counsel.

The Defendant and his Counsel shall not disclose the contents of the record to any other person except with prior approval of this Court, and that no copies of the record disclosed except such as may be required for the trial of the present charge against the Defendant. Finally all information regarding any person named in the record such as their address, telephone number or place of employment shall be severed from the record.

Additionally the first sentence of Principal Scarbro”s action report under date of November 4, 2008 and the last full paragraph on the second page of the action report, just above the word “closed” is to be deleted from the copy of the record as supplied to the Defendant. [ 21 ] I shall retain jurisdiction on this Application in order to resolve any conflicts or questions on the terms of release or the editing as set out above. Dated at Woodstock this 6 th day of January, 2011. ____________________________ R. LESLIE JACKSON , C.P.C.J.