R. v. N.K., 2022 NSSC 1

SUPREME COURT OF Nova Scotia Citation: R. v. N.K. , 2022 NSSC 1 Date : 20220112 Docket: Halifax , No. 505484 Registry: Halifax Between : Her Majesty the Queen v. N.K. DECISION ON s. 278.3 APPLICATION: STAGE ONE AND STAGE TWO Restriction on Publication: By court order made under subsection 486.4 of the Criminal Code , information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner.

Judge: The Honourable Justice Joshua Arnold Heard: November 16 & 26, December 6, 2021, in Halifax, Nova Scotia Counsel: Sarah Kirby, for the Provincial Crown (Respondent) Ian Joyce and Thomas Morehouse, for N.K. (Applicant) Carbo Kwan, for the Complainant Order restricting publication - sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(

b) on application made by the victim, the prosecutor or any such witness, make the order. Overview [ 1 ] This is a Criminal Code application by the accused for production of third party records of the complainant in a trial for sexual assault. The accused, N.K., is charged with four counts of sexual assault (s. 271) and one count of choking to overcome resistance for the purpose of committing an indictable offence (s. 246(a)). T.O., the complainant, is his ex-girlfriend.

They were together “off and on” between December 2017 and November 2018. [ 2 ] According one of her police statements, T.O. takes medication for “borderline”. She said that prior to making her first police complaint about Mr. K. assaulting her, her medication

schedule became mixed-up while she was in Greece on vacation. She said she became “hysterical”, and decided she had to make a complaint about Mr. K. On returning to Canada she made a police complaint on May 9, 2019, alleging that Mr. K. physically (but not sexually) assaulted her. [ 3 ] On December 27, 2019, and January 9, 2020, T.O. gave a statement to the police alleging sexual assaults during the same time frame as her previous allegations. [ 4 ] T.O. also said in her January 9, 2020, police statement that she spoke to counselors about sexualized violence inflicted by Mr.

K., but no details were provided as to when these conversations occurred. [ 5 ] Mr.

K. has applied for production of the following records in the hands of third parties: • From Sheri Taylor (Leeside Transition House): All records and materials in the possession or control of Leeside Transition House related to counselling of and communication from/to T.O. on or after September 30, 2018. • From Melanie Drown (Dalhousie Health and Wellness): All records and materials in the possession or control of Dalhousie Health and Wellness related to counselling of and communication from/to T.O. on or after September 30, 2018. • From Dr.

Shauna Archibald: All records and materials in the possession or control of Dr. Shauna Archibald and her Clinic located at 5991 Spring Garden Road – Unit 500, Halifax, Nova Scotia B3H 1Y6, related to the mental health of T.O. and all records and materials related to or referencing N.K. • From Dr. Aaron Keshen: All records and materials in the possession or control of Dr.

Aaron Keshen (Nova Scotia Health Authority) related to the mental health of T.O. or referencing N.K. [ 6 ] On November 16, 2021, having filed submissions and materials in relation to Stage One and Stage Two of this application, counsel made oral submissions in relation to Stage One. Three of the record holders were in attendance and had an opportunity to make submissions. The record holder from Leeside was not identified in a timely fashion, but had a chance to make submissions later.

On November 26, 2021, she was given an opportunity to make submissions. [ 7 ] I provided counsel with my bottom-line decision on Stage One on December 3, 2021. Having previously filed briefs regarding both stages, on December 6, 2021, counsel, as well as one of the relevant record holders, made oral submissions on Stage Two. On January 12, 2022, I provided counsel with a written copy of my full decision. [ 8 ] March 21, 2022, was the first day scheduled for the five-day trial. On that date the Crown called no evidence and the matter was dismissed for want of prosecution.

In keeping with s. 278.9(1)(c), I held a hearing on March 24, 2022, to determine whether this decision should be published. Ms. Kirby for the Crown, Mr. Morehouse for N.K. and Ms. Kwan for T.O., all agreed that the decision should be published, but that the names of all of the parties must be anonymized in this specific case in order to protect the identity of the complainant.

Considering the interests of justice in ensuring the public is aware of judicial decisions and to ensure judicial comity, I agree that the decision should be published, subject to anonymization of the parties in order to protect the privacy rights of the complainant. [ 9 ] These are my reasons respecting both Stage One and Stage Two. Facts [ 10 ] Mr. K. filed three (3) affidavits of Thomas Morehouse, a lawyer with Blois, Nickerson & Bryson.

The affidavits have appended various aspects of Crown disclosure, including excerpts from the statements of T.O., excerpts from the Police Occurrence Hardcopy, and an email from T.O.’s lawyer. [ 11 ] According to the affidavits, Mr. K. and T.O. were in an “on again/off again” relationship between December 2017 and November 2018. [ 12 ] On May 9, 2019, T.O. gave a statement to the police alleging that Mr. K. physically assaulted her. There was no mention of any sexual component to the alleged assault.

[ 13 ] On December 27, 2019, T.O. contacted the police again and told them that Mr. K. had sexually assaulted her twice during the same time-frame as the physical assaults. [ 14 ] On January 9, 2020, T.O. gave a video-recorded statement to the police in which she alleged that Mr. K. sexually assaulted her during the same time-frame as the physical assaults. According to that statement, T.O.’s previous May 9 statement followed a mental health episode that occurred while she was in Greece and her medication

schedule was interrupted. She said: MS. O. : And I won’t accept that. But I was - - I was tired and I - - I was sad. So I said goodbye. I would then be going to Greece for days. Um, in Greece I got into hysterics. I have medication for borderline. Um, they need to be taken at a certain time, if they’re not it messes up my whole cycle. So while I was in Greece I feared he was seeing somebody else, and not in the fear of, he’s seeing somebody else but what about me, more so somebody’s in danger, and I can’t have it on my conscience if she’s dead. So this pushed me even further.

When I got back I was calling the cops. CST. ELSON : Okay. So you - - so you called the police to report the physical aspects but not the sexual assaults? MS. O. : At the time I think I, like, intended to report the sexual assaults as well. But then I was sitting there, um, with the officer and I was writing out the paper. There was already so much physical assault. CST. ELSON : Um-hmm. MS. O. : And I - - I was worse off then than I was now with it, in the - - my memory is very, very jumbled with it. Um, in the beginning it was especially with the physicals as well.

It is very hard to pinpoint when it happened exactly. And I don’t know why my memory is doing that. [ 15 ] During the January 9 statement, T.O. was asked whether or not she had received any counseling regarding her allegations. She said: CST. ELSON : Um, have you ever gone to a doctor or received any counselling or any treatment for any of these? MS. O. : No. CST. ELSON : Okay. MS. O. : I, um - - I have done, um - - I - -I’ve - - I’ve called the, um - - oh, what is it called - - Bryony House? CST. ELSON : Bryony House. MS. O. : Yeah. CST. ELSON : Yeah. MS.

O. : And I’ve talked to the, um, call - - call centre they have, talked to them a bit. Um, I’ve also talked, not in a lot of detail, um, to the sexualized violence counsellor at my school. CST. ELSON : Okay. MS. O. : Um, just a little bit. Um, but that - - that would be all. I did try to see a counsellor. Um, she ended up moving her office so the appointments would have had to have been over a phone, and it - - for me, a hotline is one thing but I can’t do therapy over a phone. CST. ELSON : Um-hmm. MS. O. : Um, so I had to cut that. And I have been trying to reach out to other people but no luck so far. CST.

ELSON : So the sexualized counsellor, that’s at King’s College? MS. O. : Yes. CST. ELSON : Um, and you related this - - this incident to that person? MS. O. : Not quite. I - - I’ve told her some things. Um, I’ve told her there has been sexualized violence, but I’ve - - I’ve never gone into too much detail about it. CST. ELSON : Okay. Um, because sometimes, you know, if someone goes to a doctor we - - we would get their consent to - - to retrieve, you know, that information, and that just gives extra - - extra evidence, I guess, as that, you know, someone else is aware of - - of the situation.

Um, so I mean, would - - I mean, we can talk about that afterwards. MS. O. : Yeah. CST. ELSON : If it’s something that you’re - - you’re willing to do, to have that extra - - extra - -it’s evidence on your end. Because right now, I guess, you know it’s your - - your word against his word. So if we have the extra, um, reports from a doctor or a counsellor or something like that… MS. O. : Which it is part of the issue, that, like, I never spoke to him, especially over text, about it, so there’s not that - - because that’s

what I’m relying on [ 16 ] Although T.O. referenced Bryony House in her police statement, through counsel she subsequently advised that she had been mistaken, and she actually spoke on numerous occasions with counselors at Leeside Transition House. Carbo Kwan, her counsel, wrote, in an email dated November 4, 2021: In discussing with my client, Ms. O. about the Defence’s s.278 application – my client has informed me of an error she made to the police as to who she had spoken to relating to counselling. In Ms. O.’s statement – she mentioned Bryony House here in Halifax.

In reviewing that portion of the statement with her, she believed she made an error and confused the name of Bryony House with a different transition house. In the last several days, Ms. O. went on a search to find out which agency/centre she had spoken to and has gotten confirmation directly from the transition house in Cape Breton that she had used their services. She has consented to me in providing the following: She spoke with various individuals at Leeside Transition House in Port Hawkesbury. She spoke to them on numerous occasions about the subject-matter and about the accused.

She cannot recall the names of the specific individuals she dealt with as she recalled it would be whoever happened to answer the phone call and assisted her. I understand given this new development, a new subpoena would have to be issues and could impact what can be expected to be done on November 16 th . [ 17 ] When T.O. spoke with the police on December 27, 2019, she told them that she was having trouble remembering some details of the allegations.

According to notes detailed in the General Occurrence Hardcopy : O. told me she was having some trouble remembering the details of what had occurred and had considered reporting these when she made earlier reports about different matters with K. however she was not comfortable at the time. She told me that there were more than these two incidents, but could not remember all the details of them. [ 18 ] During her video-recorded statement of January 9, 2020, T.O. said her memory was mixed up: CST. ELSON : Yeah, take a breath. Um, if you need water or anything, let me know.

Um, so just tell me, um, everything that happened. MS. O. : Okay. Um, I - - I’m trying to, like - - my memory is very, like, mixed up around it. CST. ELSON : Um – hmm. MS. O. : And I know that’s really bad going in, um, because it needs to be very organized and concise, which of course makes sense. Um, so it’s not going to be that. [ 19 ] T.O. went on to reiterate that her memory was very jumbled: MS. O. : At the time I think I, like, intended to report the sexual assaults as well. But then I was sitting there, um, with the officer and I was writing out the paper. There was already so much physical assault. CST.

ELSON : Um-hmm. MS. O. : And I - - I was worse off then than I was now with it, in the - - my memory is very, very jumbled with it. Um, in the beginning it was especially with the physicals as well. It is very hard to pinpoint when it happened exactly.

And I don’t know why my memory is doing that. [ 20 ] In describing one of the alleged sexual assaults, T.O. told the police that “Before and after is - - is really foggy.” Third Party Records Applications [ 21 ] The Criminal Code sets out a comprehensive application process for an accused who wishes to obtain records held by third parties that relate to a complainant in a criminal prosecution.

Section 278.2(1) states: 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, 160, 170, 171, 172, 173, 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 at any time before the day on which this paragraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in paragraph (

a) if it occurred on or after that day. [ 22 ]

Section 278.3(1) requires a production application to be made before the trial judge. The hearing is held in camera (s. 278.4).

Section 278.3(4) identifies various assertions that do not constitute sufficient grounds on their own for production of third party records:

(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. [ 23 ] In setting out the overall test for deciding whether the records should be produced, s. 278.5 states: 278.5

(1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that (

a) the application was made in accordance with subsections 278.3(2) to (6); and (

b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and (

c) the production of the record is necessary in the interests of justice. Factors to be considered

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), 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, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account: (

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. [ 24 ] In R. v. Mills , [1999] 2 S.C.R. 668 , McLachlin J. (as she then was) and Iacobucci J., for the majority, discussed production of third party records: 45 In the context of ordering production of records that are in the hands of third parties, Lamer C.J. and Sopinka J. outlined a two-stage process. At the first stage, the issue is whether the document sought by the accused ought to be produced to the judge; at the second stage, the trial judge must balance the competing interests to decide whether to order production to the accused.

At the first stage, the onus is on the accused to establish that the information in question is “ likely to be relevant ” (para. 19 (emphasis in original)). Unlike in the Crown disclosure context, where relevance is understood to mean “may be useful to the defence”, the threshold of likely relevance in this context requires that the presiding judge be satisfied “that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify ” (para. 22 (emphasis in original)).

This shift in onus and the higher threshold, as compared to when records are in the possession of the Crown, was necessitated by the fact that the information in question is not part of the state’s “case to meet”, the state has not been given access to it, and third parties are under no obligation to assist the defence. 46 Lamer C.J. and Sopinka J. held that the threshold of likely relevance at this first stage is not a significant or onerous burden. It is meant to prevent requests for production that are “speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming” (para. 24).

Although Lamer C.J. and Sopinka J. disagreed with L’Heureux-Dubé J. that therapeutic records are rarely relevant to the accused, they declined to set out “categories of relevance” (para. 27). [Emphasis in original.]

[25] In R. v. McNeil, 2009 SCC 3, Charron J., for the court, discussed the test for determining likely relevance: 29 It is important to repeat here, as this Court emphasized in O'Connor, that while the likely relevance threshold is "a significant burden,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, (SCC), [1995] 1 S.C.R. 727, at para. 32).

The importance of preventing unnecessaryapplications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminalproceedings remains a pressing concern, more than a decade after O'Connor.

On the other hand, the relevance threshold should not, andindeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that mayassist in making full answer and defence, "to demonstrate the specific use to which they might put information which they have not evenseen" (O'Connor, at para. 25, quoting from R. v. Durette, (SCC), [1994] 1 S.C.R. 469, at p. 499). [26] Third party records applications therefore involve a two-stage process. As was noted by Scaravelli J. in R. v.

R.E.W., 2009NSSC 286: [3] An application of this nature involves a two-stage process. The trial judge hearing the application may order that the records beproduced to the Court if the accused has established that they are likely relevant and that production is necessary in the interest of justicepursuant 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 tomake full answer and defence, and on the right to privacy and equality of the complainant to whom the record relates as set out inSection 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 fullanswer and defence; the probative value of the record; the nature and extent of the reasonable expectation of privacy with respect to therecord; whether production of the record is based on a discriminatory belief or bias; the potential prejudice to the personal dignity andright to privacy of any person to whom the record relates; society's interest in encouraging the reporting of sexual offences; society'sinterest in encouraging the obtaining of treatment by complainants of sexual offences; and the effect of the determination on the integrityof the trial process. [27] Mr.

K. has complied with the procedural requirements of the Criminal Code in that the Notice of Application was made inaccordance with ss. 278.3, 278.92, and 278.93; three affidavits of Thomas Morehouse, a lawyer at Blois, Nickerson & Bryson, were filedin support of the application; two briefs and books of authorities have been filed; and Form 16.1 was issued by the court and served onthe third party record-holders, as well as the Crown and the complainant. The Crown has filed a brief as has Carbo Kwan, counsel forT.O. [28] Mr. K. seeks disclosure of the therapeutic records of Dr.

Aaron Keshen, T.O.’s psychiatrist, and Dr. Shauna Archibald, T.O.’sfamily doctor, [29] Mr. K. also seeks disclosure of the counseling records of Melanie Drown, a counsellor at Dalhousie Health and Wellness, andan unnamed person at Leeside Transition House. Positions of the parties Medical records [30] Mr. K. says the records of Dr. Keshen and Dr. Archibald are likely relevant because: 16.

In her Police Statement, the Complainant admitted that she had issues with her memory and difficulty recalling the particulars of the alleged incidents that form the basis of the charges (Affidavit of Thomas Morehouse sworn September 10th, 2021 at paras. 13-21).The Complainant also admitted that for the period of time during which she alleges the offences occurred, she suffered from a seriousmental health condition (Borderline Personality Disorder), a condition with respect to which she was on medication (Affidavit of ThomasMorehouse at para. 28).

The Complainant also suggests that at the time she gave her Police Statement, she was still being medicated forher mental health condition (Affidavit of Thomas Morehouse at para. 28). 17. Importantly, the Complainant also seems to suggest the link between her mental health symptoms and her difficulty with hermemory surrounding the alleged incidents. In her January 2020 Police Statement, the Complainant said that around the time of her May,2019 Police Statement, the Complainant’s mental health symptoms were particularly acute as she had failed to take her medication asprescribed.

The Complainant also stated that she was experiencing an exacerbation of her difficulties with her memory when she wasproviding her May, 2019 Police Statement. 18. Therefore, it is submitted that the medical and psychiatric records of the Complainant are highly relevant and probative becausethey will confirm the Complainant’s state of mental health at the time that the alleged incidents are said to have occurred, and at the timethat the Complainant gave her January 2020 Police Statement.

Confirmation of the particulars of the Complainant’s mental health statuswill enable the defence to assess the impact, if any, of her mental health status on the Complainant’s ability to reliably recall andarticulate the alleged incidents. [31] Mr. K. argues that production of the two doctors’ records is necessary in the interests of justice: 27. We submit that on consideration of the factors enumerated in

section 278.5(2), production of the Complainant’s medical andpsychiatric records is necessary in the Interests of Justice. Although a trial judge is not required to conduct an in-depth analysis of eachfactor, our submissions regarding each factor are as follows:

(

a) Full Answer and Defence: The Complainant has admitted to experiencing memory issues. She has admitted to suffering from asignificant mental health disorder. The reliability of her memory with respect to the alleged incidents will be paramount and a very liveissue at trial. The Defence is of the view that the Complainant’s admitted mental health situation may have an adverse impact on herability to recall and articulate the incidents in question. If this is the case, same goes directly to the reliability of her testimony.

In order toprovide full answer and defence to the charges, the Defence requires the particulars of the Complainant’s state of mental health duringthe relevant period so that it may consult with an expert and, if required, call at trial an expert to speak to the impact of theComplainant’s mental health situation on her ability to reliably recall and articulate the alleged incidents. (

b) Probative Value: The probative value of the targeted records is very high. They will inform the Defence as to the Complainant’sstate of mental health during the relevant period and will enable an assessment of the effect of same on the reliability of theComplainant’s testimony. In the absence of the records, the effect of the Complainant’s mental health situation on the reliability of herrecollection of events simply cannot be assessed. (

c) Nature and Extent of Reasonable Expectation of Privacy: Medical records attract a certain level of privacy; however, they areroutinely disclosed in litigation. Where the records are necessary to make full answer and defence, the reasonable expectation of privacyin the records becomes less important in the overall analysis. (

d) Discriminatory Belief: The medical records are not sought for any discriminatory purpose. They are sought because it isanticipated that they will clarity the effect of the Complainant’s mental health situation on her ability to reliably recall and articulate [the]alleged incidents. (

e) Potential Prejudice to Personal Dignity/Right of Privacy: The potential prejudice to the personal dignity and right of privacy ofthe Complainant is minimal here. The targeted records are of a relatively narrow scope and speak to a condition and circumstancesvoluntarily disclosed by the Complainant to police. (

f) Society’s Interest in Encouraging reporting of Offences: An order for the production of the targeted medical records should havea minimal, if any, impact on society’s interest in encouraging reporting of offences. Medical records are routinely disclosed and ordereddisclosed and a fair-minded potential complainant is likely aware of said potentiality. The production of this information should properlyhave no negative impact on the desire of a member of the public in like circumstances to report an alleged offence. (

g) Society’s Interest in Encouraging Obtaining of Treatment by Complainants: Societal interest is not paramount consideration indeciding whether a targeted record should be ordered to be produced (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, atpara. 33 [Tab I]). It is to be weighed in taking into account competing interest. Here, the medical records are sought for a legitimatepurpose that goes to the root of trial fairness. In these circumstances, it is submitted that in this case this factor should be given little ifany weight. (

h) Effect on Trial Process Integrity: The production of the sought records will not have any negative effect on trial process.

TheNon-disclosure of same will have a significant negative effect on the trial process and will prevent the Applicant from making fullanswer and defence. [32] In relation to the likely relevance of the two doctors’ records, the Crown says: In support of the Applicant’s seeking of the Complainant’s medical records, para 5 of the Applicant’s October 27, 2021 Brief, assertsthat, “There appears to be a possible connection between the Complainant’s mental health symptoms and her difficulties with hermemory.” At para 17 of the Applicant’s October 27, 2021 Brief, the Applicant asserts that “…the Complainant also seems to suggest a linkbetween her mental health symptoms and her difficulty with her memory regarding the alleged incidents.” At para 26 of the Applicant’s October 27, 2021 Brief, the Applicant asserts that, “The Complainant also disclosed a possible linkbetween the mental health condition and her difficulty with her memory regarding the alleged incidents.” With respect, these assertions do not hold up.

A review of the January 2020 Statement shows that at no point in her statement does Ms.O. link being “mixed up” with her “borderline” or her “medication for borderline”. There is no “case-specific evidence” that the mentalhealth condition and related treatment have any connection to the Complainant’s reliability. Where there is no case-specific evidence providing a link, expert evidence is required, and the Applicant has not provided any.

The casesrelied on by the Applicants can be distinguished from the [facts] of the instant case because they either have case-specific evidence orexpert evidence as the evidentiary foundation for the application. [33] In relation to the medical records, the complainant says: Records from family physician: Dr. Shauna Archibald 11. While the Complainant acknowledged there is some level of memory impairment when she recounted the incidents in her policestatement that forms the subject-matter, she also did not attribute her memory impairment to any source.

Without prompting, theComplainant disclosed she has BPD and takes medication for it. 12. It is not for this Court at this stage of the proceedings to ascertain the source(

s) of the Complainant’s memory impairment but since ithas not been identified within the evidentiary record before this Court, the Applicant is asking this Court to assume with some degree ofbelief that BPD has an impact on a person’s memory recollection. 13. It is the Complainant’s position that the Defence’s basis in seeking the psychiatric records would require the Applicant to produceexpert evidence in assessing how BPD has any impact on the reliability of the Complainant’s evidence. The Defence cited several cases

in support of their position that they do not need to have an expert opinion for stage one of the proceedings. The Defence cited R v W.D, R v Martin and R v Williamson . However, those cases reflect a stronger evidentiary foundation than the one found in the case at bar and based on the circumstances of those individual cases, it was held that an expert opinion was not needed at stage one. 14. In contrast, the Defence also cited R v Kersten .

This case is helpful in that it shows the value of having an expert opinion to review the complainant’s police statement and other available records in order to provide an expert opinion that can assist the court in assessing the likely relevance of the records to an issue at trial. While the Applicant is not wrong in that caselaw has not shown the need for an expert opinion on mental health issues as required or necessary – it is submitted that it is preferable and beneficial to help the courts decide on the likely relevance when the available evidentiary record is limited. 15.

It is further submitted that the link between memory impairment and the complainant’s BPD is not as strong as the cases distinguished above nor is it as strong as it is being argued by the Applicant. 16. The Applicant interpreted the excerpts in the Complainant’s police statement (Exhibit “A”, Defence’s affidavit, October 27, 2021) as meaning that she did not take her medication as prescribed. The Complainant identified that while she was in Greece, she got into hysterics. She elaborated that she needed to take her medication for BPD at a certain time or it will impact her ‘whole cycle’.

She then explained what those hysterics were about. This would have been relevant to the Complainant’s police statement in May of 2019 but is not related to the subject-matter. 17. Greece is six hours ahead of the Atlantic time zone. If the complainant is used to taking her medication in the Atlantic time zone and she was in Greece for several days – the time she takes her medication while in Greece would be different – her body would have to adjust to the six-hour time difference of when she normally takes her medication.

This is not the same as saying she is not taking her medication as prescribed but rather, her body would be subjected to a moderate period of time zone adjustment. Nowhere in the Complainant’s police statement does she state she had stopped taking medication for any significant period. 18. Within Exhibit “A” (Defence’s affidavit, October 27, 2019), she further explained that she had difficulty pinpointing when certain events/incidents happened, not whether something had happened. She then stated she does not know why her memory was in that state.

At best, the linkage between her memory impairment and to her BPD is very ambiguous and uncertain. While the Court can be opened to the possibility that BPD had a role in her memory impairment at relevant times, it is submitted that more has to be before this Court to be convinced that the treatment records would provide more answers to this question.

Therefore, having an expert opinion on the symptomatology of BPD patients and also looking into the hysterics as described by the Complainant will provide a stronger confidence in ruling that the requested records have likely relevance and should therefore, be produced to the court for review. 19. Finally, the request to seek all of the Complainant’s mental health records from her family physician is too broad. The Complainant has been seeing Dr. Archibald since infancy and she continues to be her family physician. If the Court is of the view to have the mental health records in possession of Dr.

Archibald to be produced for review, it is submitted that the records should be narrowed down to a specific year to not have mental health records outside of the borderline personality disorder (BPD) diagnosis/treatment period. Otherwise, the invasion of privacy into the Complainant’s private mental health record would be too great – it could capture other areas of the Complainant’s mental health that is not linked to her disorder. The Complainant has estimated the year where she was seeking diagnosis into her mental health issues started in 2016. Records held by Dr. Aaron Keshen 20.

The Complainant takes the same position on opposing the production of her psychiatric records held by Dr. Aaron Keshen. There will not be a request by the Complainant to restrict the scope of the requested records given that Dr. Keshen was only responsible for the BPD diagnosis and treatment. Counselling records [ 34 ] In relation to production of the counseling records from Leeside and Dalhousie, Mr. K. makes the following submission (keeping in mind that all references to Bryony House should be changed to Leeside in light of Ms. Kwan’s email): 41.

The following is an analysis of the factors enumerated in Criminal Code

section 278.5(2) as they relate to the specific targeted records sought: a. Bryony House Records: It is respectfully submitted that the Bryony House records that are sought are highly probative given the facts that the Complainant suffers from memory issues concerning the alleged incident, that there were no eye witnesses to any of the incidents, that no witness has been put forward who is able to corroborate any of the allegations, the delay in time between the dates of the alleged incidents and the filing of a police complaint, and the obvious issues with the complainant’s credibility and/or reliability.

i) Full Answer and Defence : The records sought are material to the Applicant’s ability to make full answer and defence to the charges before the Court. In this case, there were no eyewitnesses to the alleged incidents and no witnesses who are able to corroborate the Complainant’s allegations. The accused has at this point only a single police statement. The Complainant alleges that she spoke to an individual at Bryony House concerning her allegations. The Complainant’s articulation of the alleged incidents pre-dated any communication with police; it therefore constitutes her initial disclosure of same.

The records prepared by Bryony may very likely reduce to writing what, exactly, the content of the allegations communicated by the Complainant were. That information is of significant value to the applicant in testing the evidence of the Complainant. In the particular circumstances of this case, the records may contain information that bears on the Complainant’s credibility in the sense that they may reveal factors relevant to the reliability of her memory. ii) Probative Value : In this particular case it is submitted that the counselling records are of very high probative value.

This prosecution involves she-said versus he-said allegations, no eye witnesses to any alleged incident, and no witness had been put forward who is able to corroborate in any way the allegations of the accused. Beyond same, the complainant on her own admission suffers from

memory issues relating the alleged incidents and there was a delay between when the incidents allegedly occurred and when she reported same to police and gave her Police Statement. The records were presumably recorded by unbiased medical professionals and essentially fossilize the records of the events as they were told by the complainant over her years of counselling.

The counselling records sought were prepared, in time, closer to the dates of the alleged incidents and may provide significant insight into what, exactly, the complainant alleged at the time that she discussed the allegations with the counsellors. iii) Nature and Extent of Reasonable Expectation of Privacy: There is no dispute that prima facie counselling records are often afforded a relatively high level of reasonably expectation of privacy.

Where the records relate to material issues for trial (and not peripheral issues) and where the probative value is high, reasonable expectation of privacy becomes less important in the overall analysis. iv) Discriminatory Belief : The Bryony House counselling records are not sought for any discriminatory purpose. They are sought because it is anticipated that they will contain information with respect to the contents of the Complainant’s allegations prepared in time closest to the alleged incidents.

v) Potential Prejudice to Personal Dignity/Right of Privacy : The potential prejudice to the personal dignity and right of privacy of the Complainant is minimal here. The targeted records are of a limited nature, they are specific, and cover presumably a short period of time, potentially only one or a few counselling sessions.

Beyond containing the Complainant’s initial disclosure of the allegations, it is doubtful that they contain much by way of additional personal information. vi) Society’s Interest in Encouraging reporting of Offences : An order for the production of the sought counselling records should have a minimal, if any, impact on society’s interest in encouraging reporting of offences. The targeted documents are sought for the purpose of receiving the Complainant’s initial disclosure of the allegations communicated temporally closest to the dates of the alleged incidents.

What is required is what a complainant first told a professional about the facts of the alleged incident, which facts will in any event come out at trial. The productions of this information should properly have no negative impact on the desire of a member of the public in like circumstances to report an alleged offence. vii) Society’s Interest in Encouraging Obtaining of Treatment by Complainants : Societal interest is not a paramount consideration in deciding whether a targeted record should be ordered to be produced ( O’Connor , supra ). It is to be weighed in taking into account competing interest.

Here, the counselling records are sought for a legitimate purpose that goes to the root of trial fairness and the ability of the Applicant to make full answer and defence. In these circumstances, it is submitted that in this case this factor should be given little if any weight. viii) Effect on Trial Process Integrity : The production of the sought records will not have any negative effect on trial process. The Non-disclosure of same will have a significant negative effect on the trial process and will prevent the Applicant from making full answer and defence. b.

Dalhousie University Records: It is respectfully submitted that the Dalhousie University records that are sought are, similarly, highly probative given the facts that the Complainant suffers from memory issues concerning the alleged incident, that there were no eye witnesses to any of the incidents, that no witness has been put forward who is able to corroborate any of the allegations, the delay in time between the dates of the alleged incidents and the filing of a police complaint, and the obvious issues with the complainant’s credibility and/or reliability.

i) Full Answer and Defence : The records sought are material to the Applicant’s ability to make full answer and defence to the charges before the Court. In this case, there were no eyewitnesses to the alleged incidents and no witnesses who are able to corroborate the Complainant’s allegations. The accused has at this point only a single police statement. The Complainant alleges that she spoke to a “sexualized violence counsellor” at Dalhousie concerning her allegations.

The Complainant’s articulation of the alleged incidents pre- dated any communication with police; it therefore constitutes her initial disclosure of same. The records prepared by that counsellor may very likely reduce to writing what, exactly, the content of the allegations communicated by the Complainant were. That information is of significant value to the applicant in testing the evidence of the Complainant.

In the particular circumstances of this case, the records may contain information that bears on the Complainant’s credibility in the sense that they may reveal factors relevant to the reliability of the memory. ii) Probative Value : In this particular case it is submitted that the counselling records are of very high probative value. This prosecution involves she-said versus he-said allegations, no eye witnesses to any alleged incident, and no witness has been put forward who is able to corroborate in any way the allegations of the accused.

Beyond same, the complainant on her own admission suffers from memory issues relating the alleged incidents and there was a delay between when the incidents allegedly occurred and when she reported same to police and gave her Police Statement. The records were presumably recorded by unbiased medical professionals and essentially fossilize the records of the events as they were told by the complainant over her years of counselling.

The counselling records sought were prepared, in time, closer to the dates of the alleged incidents and may provide significant insight into what, exactly, the complainant alleged at the time that she discussed the allegations with the counsellors. iii) Nature and Extent of Reasonable Expectation of Privacy : There is no dispute that prima facie counselling records are often afforded a relatively high level of reasonably expectation of privacy.

Where the records relate to material issues for trial (and not peripheral issues) and where the probative value is high, reasonable expectation of privacy becomes less important in the overall analysis. iv) Discriminatory Belief : The Dalhousie counselling records are not sought for any discriminatory purpose. They are sought because it is anticipated that they will contain information with respect to the contents of the Complainant’s allegations prepared in time closest to the alleged incidents.

v) Potential Prejudice to Personal Dignity/Right of Privacy : The potential prejudice to the personal dignity and right of privacy of the Complainant is minimal here. The targeted records are of a limited nature, they are specific, and cover presumably a short period of

time, potentially only one or a few counselling sessions. Beyond containing the Complainant’s initial disclosure of the allegations, it is doubtful that they contain much by way of additional personal information. vi) Society’s Interest in Encouraging reporting of Offences : An order for the production of the sought counselling records should have a minimal, if any, impact on society’s interest in encouraging reporting of offences.

The targeted documents are sought for the purpose of receiving a the Complainant’s initial disclosure of the alleges temporally closest to the dates of the alleged incident, which facts will in any event come out at trial. The production of this information should properly have no negative impact on the desire of a member of the public in like circumstances to report an alleged offence. vii) Society’s Interest in Encouraging Obtaining of Treatment by Complainants : Societal interest is not a paramount consideration in deciding whether a targeted record should be ordered to be produced ( O’Connor , supra ).

It is to be weighed in taking into account competing interest. Here, the counselling records are sought for a legitimate purpose that goes to the root of trial fairness and the ability of the Applicant to make full answer and defence. In these circumstances, it is submitted that in this case this factor should be given little if any weight. viii) Effect on Trial Process Integrity : The production of the sought records will not have any negative effect on trial process.

The Non-disclosure of same will have a significant negative effect on the trial process and will prevent the Applicant from making full answer and defence.

For the foregoing reasons, it is respectfully submitted that all of the targeted records sought on this application should be ordered to be produced to the Court. [As appears in original] [ 35 ] In relation to the likely relevance of the counseling records from Leeside and Dalhousie, the Crown says: The Applicant seeks copies of the Complainant’s counselling records from Bryony House and Dalhousie University, and her medical records from her primary care physician and her psychiatrist.

The Applicant relies on what it characterizes as the Complainant referencing “difficulty with her memory” in her January 2020 Statement as the basis for seeking her counselling records.

At para 39 of the Applicant’s brief on September 9, 2021, the Applicant argues that “Establishing whether the complainant’s description of the alleged events has changed over time is especially important given the striking inconsistencies between her statement to police and her testimony at the preliminary inquiry.” However, there was no preliminary inquiry of the charges faced by the Applicant – the Crown proceeded by direct indictment. Accordingly, there is no evidence of any inconsistencies, striking or otherwise, with the Complainant’s January 2020 Statement.

Furthermore, the caselaw has addressed the lack of probative value of counselling records, given the context in which therapeutic records are made and the fact that this renders them potentially unreliable as a factual account of an event. Mills, Osolin, supra. [ 36 ] In relation to the counseling records, the complainant says: Records from Bryony House (now to be Leeside Transition House) 6. The Complainant acknowledged in her police statement that she spoke with someone at Bryony House in Halifax, Nova Scotia relating to the allegations before this Court.

She did not give specific names of the individuals she spoke with and said she only “talked to them a bit”. There is also no indication of when and to what extent she spoke with this individual(

s) from Bryony House. 7. In reviewing the application with the Complainant, the Complainant realized she made an error as to the record holder for counselling services she received outside of Dalhousie University/Kings College. She made inquiries in the past few days to confirm that the correct record holder is Leeside Transition House in Port Hawkesbury, Nova Scotia. 8. The information that is available on the evidentiary record is limited to the details as outlined above which is insufficient to pass the stage one of the s.278 for production to the court for review.

The Defence has not identified any sufficient case-specific information that ties these counselling records to an issue at trial. Records from Dalhousie Health and Wellness 9. The Complainant also acknowledged in her police statement that she spoke with a counsellor through the Dalhousie Health and Wellness as she was a student attending University of Kings College during the relevant times. However, the Complainant clarified that she did not go into the specific details of the sexual assault incidents (exhibit “E” of Defence’s affidavit, September 10, 2021).

There is also no indication of when she spoke with this counsellor about the subject-matter. 10. At least twice, the Complainant mentioned in her police statement that she did not go into the details of the ‘sexualized violence’ with this counsellor. This is determinative on the analysis that this record has not met the threshold of stage one on the likely relevance to an issue at trial. The Defence has not identified any sufficient case-specific information that ties these counselling records to an issue at trial.

Arguments respecting the records generally [ 37 ] In relation to all four sets of records, the Crown says that they are not necessary in the interests of justice for the following reasons:

The requirement that the production of this Honourable Court be “necessary in the interests of justice” gives substance to the requirement that the trial judge consider the broad range of rights and interests affected, before ordering production to the Court. It is submitted there are at least three constitutional principles implicated when personal records are sought by an Applicant: full answer and defence, privacy, and equality. No single constitutional right is absolute or capable of trumping others and each right must be defined [in] the context of the other implicated rights. Mills, supra at paras. 61-64 The facts to be considered are set out in

section 278.5(2):

a) the extent to which the record is necessary for the accused to make 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 offenses;

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. It is respectfully submitted that the production of the Complainant’s medical and counselling records is not necessary to the Applicant’s right to make full answer and defence. The records are not probative to the matters at issue and may well distort the truth-seeking function of the Court, given the difference between the types of disclosures made for health care and therapeutic services as compared to for court purposes. Moreover, the Complainant’s privacy and equality rights will be prejudiced if production of the records is ordered.

When considering the nature and extent of the reasonable expectation of privacy with respect to the record, the Court may consider the nature of the record itself as an informational basis upon which to make a decision. It is respectfully submitted that the Complainant’s expectation of privacy in her medical and counseling records is of the highest degree. Both types of records will ordinarily be expected to contain information about “one’s lifestyle”, “intimate relations” and “a biographical core of personal information”.

A review of the records sought to be produced by the Applicant will be an intrusion on the Complainant’s dignity and privacy. In sections 278.5(2)(f) & (g), Parliament has codified its recognition of society’s interest in encouraging the reporting of sexual offences and the obtaining of treatment by victims. A review of the Complainant’s records in this matter could discourage the Complainant and others similarly situated from freely discussing private matters with health care providers, counselors or therapists. [ 38 ] In relation to all fours sets of records, the complainant says: 21.

For the Court to balance the interest of the Applicant’s right to make full answer and defence against the Complainant’s privacy rights over her sensitive records is to consider

section 278.5(2). The Complainant disagrees with the Defence’s assertion that the factors under subparagraphs (v), (vi), (vii) are minimal. Neither of the factors enumerated under s.278.5 have overriding consideration on their own. It is the totality of the factors that informs the Court to balance the competing rights and interests of the Complainant and the Applicant. 22.

Simply arguing that the Complainant has an identified mental health diagnosis and that the said diagnosis impacts the reliability of the Complainant’s evidence without stronger case-specific information is prejudicial to her personal dignity and right to privacy. Mental health stigmatization permeates all facets of society. It is invisible and the lack of education in the understanding of people living with BPD often attracts prejudice, social isolation and discrimination. 23.

Ordering the production of counselling and mental health records on the available evidentiary foundation have an impact on society’s interest in encouraging the reporting of offences. The productions of these records can lead to complainants feeling that their actions in seeking treatment or having a mental health illness is being used to undermine their credibility. 24. It is submitted that the Complainant’s privacy interest in these sensitive records outweighs the Applicant’s right to full answer and defence.

The potential probative value of the evidence that the Defence seeks through the records is low while the privacy interest in the counselling records is high. Stage One Analysis Medical Records [ 39 ] I will first determine whether none, some, or all of the records should be produced for the court’s review pursuant to

section 278.5.

[ 40 ] Without prompting, T.O. told the police at several points in her January statement that she had memory problems, specifically in relation to the crimes she has alleged. Without prompting she indicated that while she was in Greece her medication cycle for “borderline” became disorganized. She said she went into hysterics, feared Mr. K. was seeing someone else, and decided she would contact the police when she returned to Canada.

She also suggested, however, that her memory may have improved over time. [ 41 ] Through her own police statement, T.O. makes a direct, case-specific link between her description of her disorganized cycle of medication for borderline, her “hysteria,” and her decision to contact the police at some future date about Mr. K.

This, combined with her references to her own failure to understand why her memory was poor regarding certain of the facts comprising her complaint, and her statement that her memory may have improved over time, makes the two doctors records likely relevant for the purpose of Stage One. [ 42 ] In considering 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, personal security, and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates, I find as follows: (

a) the extent to which the record is necessary for the accused to make a full answer and defence; [ 43 ] Records which could explain why T.O. felt compelled to make a police complaint after a disorganized medication cycle that resulted in hysteria, and why she alleges memory issues, could be necessary for Mr. K. to make full answer and defence. (

b) the probative value of the record; [ 44 ] The records could be probative to a significant issue-whether or not the complainant’s recollection of events was impacted by a disorganized medication cycle. (

c) the nature and extent of the reasonable expectation of privacy with respect to the record; [ 45 ] The expectation of privacy is extremely high regarding medical and psychiatric records. However, the complainant raised this issue on her own, unprompted, within her police statement. (

d) whether production of the record is based on a discriminatory belief or bias; [ 46 ] There is no likely relevance merely because T.O. has “borderline” (as of yet, the term “borderline” has not been expanded upon), nor because she merely takes some sort of medication. The medical records are relevant because the complainant told the police she felt compelled to make these complaints after her medication

schedule became disorganized and she then became hysterical. This, combined with her comments about memory issues surrounding this incident, make the records likely relevant. (

e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; [ 47 ] Examining anyone’s medical records can negatively impact on that person’s personal dignity and right to privacy. T.O. will be exposed to the same negative impact. (

f) society’s interest in encouraging the reporting of sexual offences; [ 48 ] Any time a complainant’s personal information is accessed following the reporting of a sexual offence, this can have the effect of discouraging future reporting. (

g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and [ 49 ] From the explanation in T.O.’s police statement, I understand that the medical treatment in question pre-dates the alleged sexual assaults. Therefore, producing the records should not have significant impact on the encouraging of treatment by complainants in sexual assault cases. (

h) the effect of the determination on the integrity of the trial process. [ 50 ] In light of the details of the complainant’s statement as discussed above, the integrity of the trial process will be bolstered, not eroded, by the disclosure of T.O.’s relevant medical records. [ 51 ] On balance, I order disclosure of Dr. Keshen’s and Dr. Archibald’s records for my review at Stage One. Counseling records [ 52 ] All that Mr. K.’s application reveals is that T.O. made a complaint of purely physical assaults by him (with no sexual component) in May 2019.

She then made complaints of sexual assaults during the exact same time frame in December 2019 and January 2020, and indicated that she received counseling regarding the alleged assaults at some time prior to the January 2020 statement. There is no explanation as to whether the counseling occurred prior to the May statement, subsequent to the May statement, or both before and after the May statement. There is no case-specific evidentiary foundation at this stage to make the counseling records likely relevant. Mr.

K. does not get past Stage One in relation to the counseling records, and I will not review them. [ 53 ] That said, once trial commences, it is certainly possible that when T.O. is cross-examined, a different evidentiary foundation could be established. At that point it would be open to Mr. K. to renew his s. 278.5 application regarding the counseling records. Stage One Conclusion [ 54 ] Mr. K. has proven likely relevance in relation to the medical records for Dr. Keshen and Dr. Archibald. In balancing the s.

278.5 factors, those records should be disclosed and reviewed by me. [ 55 ] Mr. K. has not proven the likely relevance of the Leeside and Dalhousie counseling records. Those records will not be reviewed by me at this stage of the proceedings. STAGE TWO [ 56 ] In Mills , the majority set out the test at Stage Two: 139 Once the first hurdle is passed and the records are produced to the judge, the judge must determine whether it is in the interests of justice that they be produced to the defence.

Again the judge must be satisfied that the records are “likely relevant” and that production, this time to the accused, is necessary in the interests of justice. In making this decision, the judge must once again consider the factors set out in s. 278.5(2). 140 The respondent accepts that weighing competing interests is appropriate at this second stage of the analysis. However, the respondent contends that the requirement under s. 278.7(2), that the trial judge take the factors specified in s. 278.5(2)(

a) to (

h) into account, inappropriately alters the constitutional balance established in O’Connor . Specifically, the respondent contends that ss. 278.5(2)(

f) and (

g) elevate the societal interest in encouraging the reporting of sexual offences and encouraging of treatment of complainants of sexual offences, to a status equal to the accused’s right to make full answer and defence. This, he suggests, alters the constitutional balance established in O’Connor , where the majority specifically determined these factors to be of secondary importance to defence interests in any balancing of competing interests and better taken into account through other avenues. The respondent also contends that s. 278.5(2)(

h) unfairly requires trial judges to consider the effect of disclosure on the integrity of the trial process. The respondent submits that this is a question going to admissibility. 141 These concerns are largely answered by the analysis advanced under s. 278.5(2), discussed at greater length above. Trial judges are not required to rule conclusively on each of the factors nor are they required to determine whether factors relating to the privacy and equality of the complainant or witness “outweigh” factors relating to the accused’s right to full answer and defence.

To repeat, trial judges are only asked to “take into account” the factors listed in s. 278.5(2) when determining whether production of part or all of the impugned record to the accused is necessary in the interest of justice (s. 278.7(1)). [ 57 ] The parties filed comprehensive materials regarding both Stage One and Stage Two in advance of the initial hearing. At the Stage Two hearing, the parties essentially reiterated their positions on Stage One and what was in their briefs regarding Stage Two. Additionally, Dr. Archibald made the following submissions: Dr. Archibald: Thank you for the opportunity.

I would like to make a submission. In hearing what I’m hearing and knowing that the two sides are looking for something very different from the records, I submit that the, from what I’ve heard, the relevance of the records would want to be something that should be looked at by a medical expert in order for the purposes of their use to see that justice were done, should your decision be to further utilize these records in this criminal case.

The Court: Okay, so just to make sure I’m clear on what you’re saying, I mean you know what’s in the records, I’ve looked at the records, but I can’t even come close to saying that I understand them the way that you wrote them. You’re saying that if any of those records are disclosed, in order for me, if I’m the ultimate trier of fact at a trial, to make any sense out of those records, if any of them are disclosed and used there would…really should be a medical expert, some sort of an expert, to interpret what is in those records. Is that what you’re saying? Dr. Archibald: That is exactly what I’m saying.

The Court: Okay, thank you. Is there anything else you want to say? Dr. Archibald: Nothing further. Thank you. Analysis [ 58 ] I have reviewed the records in accordance with s. 278.6. In considering the application of sections 278.5(2)(

a) to (h): (

a) the application was made in accordance with subsections 278.3(2) to (6); [ 59 ] The application was made in accordance with s. 278.3. (

b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; [ 60 ] Having reviewed the records, I am satisfied that certain of the records are likely relevant to an issue at trial. T.O.’s memory issues and reason for reporting two different sets of offences within the same time frame, but reported at different times, will be a significant issue at trial. (

c) the production of the record is necessary in the interests of justice [ 61 ] In considering the factors set out at s. 278.5(2), I reach the following conclusions: (

a) the extent to which the record is necessary for the accused to make a full answer and defence;

[ 62 ] The selected records speak to the medications T.O. was prescribed at the time of the alleged offences, her trip to Greece, and her various police statements. The records also speak to the mental health status diagnosis of T.O. at these times. Again, according to her own statement, T.O. was on vacation in Greece when her medication

schedule became mixed up. She became hysterical and decided she had to give the police a statement about Mr. K. upon her return to Canada. She gave a statement to the police in May 2019 alleging physical assaults. There was no mention of sexual assaults. Then, in December 2019 and January 2020, she gave more statements, in which she alleged sexual assaults at the exact same time as the physical assaults. In her January 2020 police statement she said on several occasions that her memory was poor, and/or jumbled, and she did not know why. I am satisfied that certain of the records I have reviewed are necessary for Mr. K. to make full answer and defence. (

b) the probative value of the record; [ 63 ] The probative value of the records is high in that it discloses the types of medication prescribed to T.O. at the relevant times and her related mental health diagnosis, but does not rise to the level of a “smoking gun”. (

c) the nature and extent of the reasonable expectation of privacy with respect to the record; [ 64 ] The nature and extent of the reasonable expectation of privacy with respect to records of T.O.’s psychiatrist and family doctor is very high; (

d) whether production of the record is based on a discriminatory belief or bias; [ 65 ] The production of the record is not based on a discriminatory belief or bias. Instead it is linked to case-specific factual issues. (

e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; [ 66 ] The potential prejudice to the personal dignity and privacy of T.O. is high, as the records relate to her mental health diagnosis and her medications. However, she raised those issues without prompting during a recorded police interview that was disclosed to Mr. K., and about which she can be questioned in court. (

f) society’s interest in encouraging the reporting of sexual offences; [ 67 ] Society has a strong interest in the reporting of sexual offences. However, as noted above, T.O. raised these issues without prompting during her police interview. In these circumstances, the release of related records should not have a chilling effect on the reporting of sexual offences. (

g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; [ 68 ] Similarly, society has a strong interest in encouraging the obtaining of treatment by complainants of sexual offences. However, T.O. raised these issues without prompting during her police interview that was disclosed in the normal course to the accused. In these circumstances, the release of related records should not have a chilling effect on the obtaining of treatment by other complainants. (

h) the effect of the determination on the integrity of the trial process. [ 69 ] The release of relevant medical records in these circumstances will not negatively impact the integrity of the trial process. In this case, having reviewed the medical records, I am satisfied that if the relevant medical records are not disclosed to Mr. K., the integrity of the trial process will be impugned. Conclusion [ 70 ] Having weighed the s. 278.5(2) factors, selected medical records from Dr. Keshan and Dr. Archibald are likely relevant to an issue at trial, are necessary for Mr.

K. to make full answer and defence, and having considered T.O.’s right to privacy, personal security and equality, these selected records must be disclosed to Mr. K. [ 71 ]

Section 278.7 describes the conditions a judge can impose if production is granted: 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). Factors to be considered

(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, personal security and equality of the complainant or witness, as the case may be, and of 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. Conditions on production

(3) If the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions: (

a) that the record be edited as directed by the judge;

(

b) that a copy of the record, rather than the original, be produced; (

c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court; (

d) that the record be viewed only at the offices of the court; (

e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and (

f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record. Copy to prosecutor

(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so. Record not to be used in other proceedings

(5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings. Retention of record by court

(6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it. [ 72 ] In accordance with that section, the selected records will be edited by me. Mr.

K. will receive an edited copy of the records and the originals will remain sealed in the court file. The conditions for production will include: • Mr. K., nor his counsel, must not disclose a copy of the records to anyone except a qualified medical doctor or psychologist retained by Mr. K.; • The records, with the exception of those shared with a qualified medical doctor or psychologist, must remain in the offices of Mr.

K.’s lawyer; • Any records shared with a medical doctor or psychologist must not be copied or shared by that medical doctor or psychologist and must remain in the offices of that medical doctor or psychologist; and • An exact copy of the record produced to Mr. K. will be produced to the Crown with similar restrictions. Arnold, J.