R. v. M.L.F. Date:, 2017 BCPC 83

Citation: R. v. M.L.F. Date: 20170315 2017 BCPC 83 File No: 8883-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Youth REGINA v. M.L.F. REASONS FOR JUDGMENT RE: APPLICATION FOR DISCLOSURE OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. Katie Bouchard

Counsel for the Accused: Mr. Jordan Watt Place of Hearing: Kamloops , B.C. Date of Hearing: February 17, 2017 Date of Judgment: March 15, 2017 [ 1 ] M.L.F. is charged with the sexual assault of his step-sibling. Both of them are youths and are close in age. The trial came on for hearing before me on February 17, 2017. Rather than proceeding with the trial, two applications were brought before me, both which ought to have been brought many months ago. [ 2 ] I have already dealt with the witness accommodation application by the Crown.

This is an application by Defence for disclosure of the documents ostensibly belonging to the Director of Child and Family Services by way of the child protection intake also involved on this file. Defence believes that in the course of interviewing the complainant, Cst. Lehbauer had in her possession reports from the Ministry of Child and Family Development, including a report relating to a prior incident some years ago that was not reported to the police. What could be the documents in question are visible - evidently - on a video recording of that interview.

Despite being on notice that she would testify on February 17, 2017 and despite being asked previously by Crown whether she had these documents in her possession, it appears that Cst. Lehbauer has not reviewed the video to determine what she had in hand during that interview. [ 3 ] Defence is of the view that whether the document was one of Cst. Lehbauer’s own making or reports provided to her by the Ministry, the documents are disclosable as first party documents in the possession of the RCMP. [ 4 ] There is no issue that both counsel knew that Ministry documents existed by the time the file was set for trial.

There is a series of correspondence between counsel for the Defence and counsel for the Crown. In correspondence dated April 13, 2016, Mr. Watt requests full disclosure including any and all records, specifying those from social workers. He closes that correspondence with a request to be notified if there are any materials in the possession of the Crown or the police which the Crown will not disclose and the grounds for the privilege claimed. There does not appear to be any responding correspondence on that issue, although there is some communication back and forth with the Crown office on related topics.

If there were ministry documents in the possession of the police, their existence ought to have been disclosed in some manner, together with the assertion that they were third party documents. [ 5 ] This file was arraigned on August 11, 2016 and set for trial by August 18, 2016. All known disclosure ought to have been made by August 11. Certainly any issues with respect to outstanding disclosure ought to have been raised then. [ 6 ] On January 30, 2017, Mr. Watt again wrote Crown with a formal request for additional disclosure.

In particular, he sought all records in the possession of the Crown and police, specifically requesting the Ministry of Child and Family Development file relating to the earlier incident between the complainant and the accused. [ 7 ] On January 31, 2017, Ms. Bouchard e-mailed Mr. Watt acknowledging receipt of the disclosure request and taking the position that the information requested was captured by s. 278.1 and s. 278.2 of the Criminal Code . [ 8 ] Mr. Watt replied on February 8, 2017 requesting copies of the Ministry of Child and Family Development file referred to by Cst.

Lehbauer when taking the statement; the file relating to this investigation which was also referred to by Cst. Lehbauer during the taking of the statement; and all notes of social worker Amanda Armstrong relating to her involvement or interviews with the complainant and investigation of M.L.F. Ms. Armstrong was a social worker involved in the file at the time. [ 9 ] Ms. Bouchard replied by e-mail again on February 9, 2017 taking the position that this was a category of record falling under s. 278.1 and inviting Mr. Watt to make an application pursuant to s. 278.3.

She said that she would make an inquiry of the police regarding Ms. Armstrong’s notes. She did so and, on February 10, 2017, she responded that regardless of the relevance, it was her view the documents requested were all captured by s. 278 of the Criminal Code . [ 10 ]

Section 278.1 , 278.2 and 278.3 of the Criminal Code provide as follows: 278.1 For the purposes of sections 278.2 to 278.9, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare , adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence . 278.2

(1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (

a) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or (

b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (

a) if it occurred on or after that day.

(2) Section 278.1, this

section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings , unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections. [emphasis added]

(3) In the case of a record in respect of which this

section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents. 278.3

(1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

(3) An application must be made in writing and set out (

a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and (

b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify.

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify: (

a) that the record exists; (

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

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

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

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

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

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

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

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

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

k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 14 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under

Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served.

(6) The judge may at any time order that the application be served on any person to whom the judge considers the record may relate. [ 11 ] I am satisfied on a plain reading of the sections that the reports, records and notes sought by Mr. Watt have not undergone a transformation in any way to become records or notes made by the investigating officer. I do not have any information respecting how Cst. Lehbauer came into possession of the Director’s file or some contents of it, but the character and contents were not converted to first party documents by that possession. If the documents reviewed by Cst.

Lehbauer were her own notes of interviews by the social workers of the complainant, then they must be disclosed to and by Crown. [ 12 ] If the interview documents are created by Cst. Lehbauer in the course of her investigation, then I order that she produce them forthwith. If they are not documents she created, then Defence must make application on notice to the affected parties under

section 278.3 for disclosure from the Director of Child and Family Services. [ 13 ] The

section is a step by step instruction for such an application for third party records. It enumerates child welfare records as records for which an application must be made on not less than 14 days’ notice to the Crown, Director and complainant. It is not adequate service to serve the social worker who last had conduct of the file. Her records are in the possession and control of the Director. Ms. LeBeau, who appeared at the commencement of these proceedings, may be prepared to accept service on behalf of the Director, but I leave that to Mr. Watt to sort out. _________________________ S.D. Frame Provincial Court Judge