R. v. E.W., 2020 NSSC 236

SUPREME COURT OF Nova Scotia Citation: R. v. E.W. , 2020 NSSC 236 Date: 20200903 Docket: CRBW No. 490948 Registry: Bridgewater Between: Her Majesty the Queen v. E.W. Restriction on Publication: Sections 486.4 and 539(1) of the Criminal Code Decision: Voir Dire 1 –

Section 278.3 Stage Two Application Judge: The Honourable Justice Joshua M. Arnold Heard: Written Decision: June 25, 2020, in Bridgewater, Nova Scotia September 3, 2020 Counsel: Roland Levesque, for the Crown Robert Chipman, QC, for the Defence Carbo Kwan, for the Complainant Overview [ 1 ] E.W. is charged with several sexual offences between 2009 and 2014 involving his daughter, S.W..

The allegations came to light after S.W. had a counselling session with , a Community Mental Health Worker, on May 3, 2018. immediately made a referral to the Department of Community Services, Child Protection Services Division . [ 2 ] E.W. has made an application in accordance with s. 278.3 of the Criminal Code for disclosure of ’s counseling records. His grounds were not clearly articulated in his brief and, as a result, the written arguments made by the Crown and the complainant were very general in nature. In R. v.

E.W. , 2020 NSSC 191 , I determined that E.W. met the test in relation to Stage One of E.W.’s request for his daughter’s counseling records. On June 25, 2020, the parties argued Stage Two. [ 3 ] This is my decision in relation to Stage Two of that application. Facts [ 4 ] No viva voce evidence was called in relation to Stage One or Stage Two. Instead the parties relied on the facts set out in E.W.’s application notice and then summarized slightly differently in each counsel’s brief. In E.W.’s brief, the facts are set out as follows: 5.

In the material filed in support of the Application, the Affidavit sets out the factual basis of the Application. In

summary, the complainant alleges that the Applicant over a period of seven years, would commit sexual assault on her involving digital penetration, vaginal intercourse and anal intercourse. 6. The preliminary inquiry was heard on May 16, 2019 and July 22, 2019. At the hearing, the complainant testified that these events

started when she was 5 years old and ended when she was 12 years old. She did not report the alleged incidents until May 2018. Her evidence was that she spoke to school counselor [sic] ], , …….. about the alleged events. The matter was then reported to the ……. RCMP. 7. During her testimony at the preliminary inquiry, the complainant said she told ……………., a school counsellor about the applicant committing sexual assaults on her. She did not know whether ……….. took notes. 8. School counsellor, …………. , is the Community Mental Health Worker at the ………. High School.

He testified at the preliminary inquiry that he initially saw the complainant in the Fall of 2017, March of 2018 and May of 2018. He testified that he made notes. 9. The Child Protection Referral Form sets out the information provided by …… ……. to the Department of Community Services. 10. In her preliminary inquiry testimony, the complainant also notes that she discussed these events with a close friend, …. …... 11. In his Preliminary Inquiry testimony ….. …… notes that he had counselling appointments with the complainant on several occasions in 2017 and 2018.

It appears that the complainant did not mention the allegations at all in the initial visits of Fall 2017 and March 2018. [ 5 ] S.W. was a high school student who had been living at home with her two siblings, her mother and her father until the end of April 2018. She left her family home at that time and was staying with a friend. On May 3, 2018, S.W. told her school counsellor, ………… , that her father had sexually abused her. …. …… made an immediate referral to the Department of Community Services, Child Protection Services Division.

No information was provided on this application explaining how the police then became involved. [ 6 ] The preliminary inquiry in this matter was held in 2019. Portions of the transcript were attached to the Notice of Application. During the preliminary inquiry, S.W. testified that she spoke to ……… . in his capacity as a counselor: Q. ... And did you see him be…, you saw him before, in 2017? Do you know… A. Yes. Q. …when that would have been? A. I don’t remember. Q. Okay. Did ………… take notes and maintain records of the sessions? A. I don’t know. Q. You, you don’t remember? A. No. Q. Okay.

So, the counseling, from the fall of 2017 onward, did you talk about what happened with your dad, what you talked about today in court? A. No, not until May 3rd. Q. Okay. So, you told ………. what had happened? A. Yes. Q. Okay. And where did you, where did that take place? A. In his office at the school. ... Q. Okay. After ………. , you said that he had called social services, community… A. Yes. Q. …services. Did he make any referrals to other counselors? A. I don’t remember. [ 7 ] ………….. testified at the preliminary inquiry that S.W. was first referred to the school counselor in the fall of 2017.

His testimony continued: Q. Okay. And after that, when did you see her? A. I seen her again in spring of 2018. Or late winter. March, April kind of time period. Q. And are you familiar with – did she speak about her father, [E.W.]? A. Yes.

Q. Okay. And did she talk – do you know why [E.W.] is in court? A. Yes. Q. Okay. So, that’s been explained to you. Were the, the reason why she, he’s in court, was that part of what you and Ms. [S.W.] would have spoken about? A. Not specifically. Q. Did Ms. [S.W.] provide you with a narrative of what took place? A. In detail? No. Q. No. But did she mention about the allegations? A. Yes. Q. Okay. With her father? A. Yes. Q. Okay. So, she touched on, on that with you. And as a result of that, what did you do? A. We called Child Protective Services together, after she made the disclosure. Q. Okay.

And under your role, what is your obligation to report to the Department of Community Services regarding children? What’s your obligation? A. If there’s a reason to believe a child or youth is being hurt, neglected, not taken care of properly, that we have to call Child Protection. Q. Okay. And did this involve, did she, did, was it indicated that this involved [E.W.]? A. She referred to “Dad”, but yeah. Q. Okay. All right. And as part of your employment as a community health worker, is it your role to document and write everything down? A. We make case notes. Doesn’t necessarily include everything. Q. Okay.

And do you have case notes of your meeting with [S.W.] before you called Community Services? A. That whole session would have, should have a case note, yeah. I’d have to look at the record to be sure. Q. Sure. Okay. So, it’s your role to document what takes place, and you did that? A. Yeah, we make clinical notes based on the discussions we had and kind of what work we’re doing. Q. And did you refer [S.W.] to anyone else? A. Once the process with allegation’s been made, Victim Services was something we started pursuing. [ 8 ] Following the Stage One hearing I reviewed the notes of ………...

I then provided the parties with a general inventory of those notes. E.W. subsequently abandoned his request for disclosure of any of the notes aside from those of May 3, 2018, relating solely to the disclosure of abuse by S.W., and ………. ’s immediate referral of the matter to the Department of Community Services. The May 3, 2018, entry contains a few initial sentences unrelated to the abuse disclosure. [ 9 ] With the whittling down of E.W.’s request, the Crown now agrees that the May 3 notes pertaining exclusively to the abuse disclosure are likely relevant to an issue at trial.

The Crown urges careful editing and conditions. [ 10 ] The complainant also agrees that the May 3 notes are likely relevant to an issue at trial and should be disclosed with the same editing and conditions as suggested by the Crown. The Law [ 11 ] The Criminal Code sets out a comprehensive process for an accused who wishes to obtain records held by third parties that relate to a complainant in a criminal prosecution. [ 12 ]

Section 278.3 involves a two-stage process. As was noted by Scaravelli J. in R. v. R. E.W. , 2009 NSSC 286 : [3] An application of this nature involves a two-stage process. The trial judge hearing the application may order that the records be produced to the Court if the accused has established that they are likely relevant and that production is necessary in the interest of justice pursuant to

Section 278.5(1) of the Code . [4] In making this determination the Court must consider the salutary and deleterious effects of determination of the accused's right to make full answer and defence, and on the right to privacy and equality of the complainant to whom the record relates as set out in

Section 278.5(2). [5] In particular, the Judge is required to take into account the extent to which the record is necessary for the accused to make a full answer and defence; the probative value of the record; the nature and extent of the reasonable expectation of privacy with respect to the record; whether production of the record is based on a discriminatory belief or bias; the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; society's interest in encouraging the reporting of sexual offences; society's interest in encouraging the obtaining of treatment by complainants of sexual offences; and the effect of the determination on the integrity of the trial process.

Stage Two [ 13 ] The factors for consideration regarding the disclosure of the May 3, 2018, counseling notes are codified and found in s. 278.5(2) of the Criminal Code . They include: (

a) the extent to which the record is necessary for the accused to make a full answer and defence [ 14 ] Knowing why the police became involved and eventually laid charges in this matter is significant to E.W.’s ability to make full answer and defence. That information goes directly to the charges facing E.W. The May 3 notes provide a general

summary of S.W.’s allegations to ………. They also detail how the allegations came to the attention of the police. This factor weighs in favour of E.W., as this information could be necessary to allow him to make full answer and defence. (

b) the probative value of the record [ 15 ] The probative value of the record is of some significance since it provides a general explanation of S.W.’s allegations and also explains how the police came to investigate this matter. This could have significance to E.W.’s ability to defend himself. This factor weighs in favour of E.W. (

c) the nature and extent of the reasonable expectation of privacy with respect to the record [ 16 ] The complainant’s expectation of privacy in relation to her counseling records is high. However, her counsel agrees that the May 3 notes are likely relevant to an issue at trial. Nonetheless, the expectation of privacy in relation to counseling notes weighs against E.W.’s application. (

d) whether production of the record is based on a discriminatory belief or bias [ 17 ] This ground is not engaged in this case. (

e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates [ 18 ] The release of private counselling records could have a prejudicial effect on S.W.’s personal dignity and her right to privacy. Again, S.W. agrees that the records are likely relevant. However, overall, this ground weighs against E.W.’s application. (

f) society's interest in encouraging the reporting of sexual offences [ 19 ] Society has a strong interest in encouraging the reporting of sexual offences. The courts share in this responsibility. The production of counselling records can have a chilling effect on such reporting. This weighs against E.W.’s application. (

g) society's interest in encouraging the obtaining of treatment by complainants of sexual offences [ 20 ] Society has a strong interest in encouraging the obtaining of treatment by complainants of sexual offences, such as S.W. in this case. Ordering counseling records be produced can have a chilling effect on complainants of sexual offences seeking counseling. This weighs against E.W.’s application. (

h) the effect of the determination on the integrity of the trial process [ 21 ] The May 3 notes are general in nature and are fairly concise, comprised of less than one (1) typed page. They provide a brief explanation of the allegations of abuse by S.W. against her father and the time frame of such alleged abuse. They provide a brief

summary of S.W.’s feelings regarding the disclosure of the alleged abuse. They also explain how the Department of Community Services and the police became involved in the investigation.

Both the Crown and S.W. recognize and acknowledge that these notes are likely relevant to an issue at trial and should be disclosed, as long as the appropriate editing is undertaken and appropriate conditions are imposed for the disclosure. [ 22 ] Refusing to disclose records that include the first details of alleged abuse by E.W., even if the allegations are very general in nature, along with the time frame of the alleged abuse, as well as explaining how the Department of Community Services and the police became involved in investigating E.W., could have a negative effect on the trial process.

This weighs in favour of disclosure of the May 3 notes to E.W. [ 23 ] The May 3 notes could assist E.W. in making full answer and defence and are therefore likely relevant to an issue at trial. The production of these notes is necessary in the interests of justice. [ 24 ] The salutary effect of releasing the notes far outweighs the deleterious effect, considering E.W.’s right to make full answer and defence and S.W.’s right to privacy, personal security and equality. Conclusion

[ 25 ] On balance, I conclude that the effect on the accused’s right to make full answer and defence, and the potential probative value of the records, weigh strongly in favour of disclosure of the May 3, 2018, notes.

I conclude that those notes should be edited and be disclosed in an edited form and with conditions as allowed by s. 278.7(3) of the Criminal Code . [ 26 ] The conditions on production will include: • t hat the May 3, 2018, record be edited as directed by the trial judge; • that a copy of the record, rather than the original, be produced; • that E.W. and counsel for E.W. not disclose the contents of the record to any other person, except with the approval of the court; and • that no copies of the record be made. Arnold, J.