R. v. Lafontaine, 2015 ONCJ 753

ONTARIO COURT OF JUSTICE CITATION: R. v. Lafontaine, 2015 ONCJ 753 DATE: 2015·12·22 COURT FILE No.: Peterborough 15-1469 BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID LAFONTAINE Before Justice S. W. Konyer Heard on December 22, 2015 Reasons for Judgment released on December 22, 2015 Ms. A. Kok ............................................................................................... counsel for the Crown Mr. D. McFadden ................................................ counsel for the defendant David Lafontaine Mr. M.

Gonsolus ......................................... counsel for the complainant Fabienne Lehmann KONYER J.: [1] David Lafontaine is charged with assaults and similar offences against the complainant in this matter, Fabienne Lehmann,which are alleged to have occurred on three different dates: March 1, 2013; January 1, 2015; and March 8, 2015. I understand that Mr.Lafontaine and Ms. Lehmann were involved in a domestic relationship at the time of the alleged offences. I also understand that Ms.Lehmann reported these matters to the police in July 2015. [2] Mr.

Lafontaine’s matters are scheduled for trial before me at a future date. Mr. Lafontaine has brought an application forproduction of records held by two distinct third parties – the Peterborough Regional Health Centre and the Brampton Civic Hospital. Inaccordance with the procedure set forth in R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, the defence has filed a writtenapplication and has subpoenaed the holders of the records in question. The Crown takes no position on the application. Ms. Lehmannhas retained counsel and resists the application, arguing that Mr.

Lafontaine has not met the “likely relevance” threshold which isnecessary before the court can order production of the records for its own inspection. [3] The undisputed facts that are relevant to my determination of this issue are found in the affidavit of Mr. Lafontaine. Noother evidence was called on this application. Ms. Lehmann did not challenge the factual claims made by Mr. Lafontaine through cross-examination on his affidavit, nor did she put forward any evidence of her own. [4] The relevant and undisputed facts are: • On March 8, 2015, one of the dates where Mr.

Lafontaine is alleged to have assaulted her, Ms. Lehmann was hospitalized at thePeterborough Regional Health Centre. This occurred after she left the family home, and crawled across ice to a neighbours homewearing only a t-shirt. She was covered in cuts and bruises and had frost bitten hands and feet, and the neighbours apparently called 911on finding her

• Prior to her discovery by the neighbours, Ms. Lehmann was exhibiting bizarre behaviour at home. She told Mr. Lafontaine that shewas “leaving this planet” and that she had been “having an affair with a genetically modified cyber soldier who was in prison in theU.S.A.” Their son reported hearing banging noises coming from her room shortly before it was discovered that she had jumped out awindow and run away. • When Mr. Lafontaine was informed that Ms. Lehmann had been taken to hospital, he attended with their son.

He claims that she didnot recognize either of them due to the fact that she was hallucinating and in a psychotic state. They were subsequently informed thatMs. Lehmann had been committed to the psychiatric ward of the hospital where she remained for several weeks. • Mr. Lafontaine was arrested by members of the Peterborough Police Service on March 8, 2015, questioned and released thefollowing day. • In May 2015, Ms. Lehmann, who was by then living back at the matrimonial home, had another psychotic episode witnessed in partby Mr. Lafontaine and her son.

This apparently involved her waking in the middle of the night and accusing Mr. Lafontaine of being her“ex-boyfriend’s twin lover” and accusations that he “had a knife”. The following day, Ms. Lehmann left the house without notice andwas reported missing. She was eventually located by police at Pearon Airport in Toronto and taken to the Brampton Civic Hospital as aresult of apparently delusional behaviour. Mr. Lafontaine was informed by a doctor that she had been diagnosed with psychosis and hadexperienced hallucinations. [5] The principles that apply to this application are well known.

At the initial stage, to warrant production of the records to thecourt for inspection, Mr. Lafontaine, as the applicant, must satisfy me that the records sought are likely relevant to an issue at trial. Asthe Ontario Court of Appeal held in R. v. Jackson, 2015 ONCA 738 , [2015] O.J. No. 5713, “an applicant must establish a basisthat could enable the presiding judge to conclude that there is actually further material in existence that may be useful to the applicant inmaking full answer and defence, in the sense that the material is logically probative” [para 79].

The material must be likely relevant to anissue in the proceedings, which may include substantive issues, the credibility of witnesses, or the reliability of evidence. [6] The burden on the applicant to demonstrate likely relevance has been described as significant but not onerous.

It issignificant in order to weed out unmeritorious applications, but it is not onerous since it would be unfair to require an applicant to point tothe specific use to be made of material he has not seen. [7] What will not suffice to pass the test of likely relevance is a mere assertion that a complainant has received treatment orcounseling, or a mere assertion that a witness is unreliable simply because they have been treated for a mental illness. Something moreis required: see R. v. Summerhayes, [2012] O.J.

No. 236, at para. 10. [8] In this case, the records from the Peterborough Regional Health Centre relate to treatment following an apparent psychoticbreak including hallucinations on the very date that Mr. Lafontaine is alleged to have assaulted her. Ms. Lehmann’s grasp of reality atthe time the Crown alleges she is the victim of a crime is relevant to her credibility as a witness and to the reliability of her evidence thatshe was the victim of an assault.

This is so not merely because there is evidence that she suffered from a mental illness, but rather on thebasis of the case-specific evidence before me that this illness appears to have caused Ms. Lehmann to suffer hallucinations on the datethat she claims Mr. Lafontaine assaulted her. [9] Accordingly I am satisfied that the applicant has met the onus of establishing the likely relevance of the records belonging tothe Peterborough Regional Health Centre as a result of the admission of Ms. Lehmann on or about March 8, 2015.

I will therefore orderproduction of those records to the court for inspection. [10] The records from the Brampton Civic Hospital stand on a different footing and relate to a subsequent psychotic episodeapparently suffered by Ms. Lehmann in May 2015, some some months after the alleged March assault, and some months before her Julystatement to the police which resulted in Mr. Lafontaine being charged.

Her counsel correctly points out that the mere fact that Ms.Lehmann was treated for mental illness on a date unconnected to either the offences or her complaint is not sufficient to satisfy the“likely relevance” threshold. As Trotter J held in Summerhayes, supra, “without more, it is impermissible to draw a direct line betweenmental illness and testimonial unreliability” [para 8]. [11] What I have in evidence before me, however, is that Ms. Lehmann has alleged a pattern of domestic violence by Mr.Lafontaine over an extended period of time. There is also evidence before me that Ms.

Lehmann has periodically suffered delusionalbreaks from reality which are linked to at least some of the allegations against Mr. Lafontaine. Although he is not charged with anyoffences arising from the May occurrence, it appears as though Ms. Lehmann still made allegations against him, including an allegationthat Mr. Lafontaine had a knife and a request to her son to call 911. [12] It may be open to Mr. Lafontaine, in order to make full answer and defence to the charges he is facing, to establish a linkbetween Ms. Lehmann’s delusional episodes and her claims of criminal assault by him.

In this sense, the records from the BramptonCivic Hospital are likely relevant to her credibility and to the reliability of her allegations. Mr. Lafontaine has established a case-specificlink between the material sought and an issue at trial. Accordingly, I am also ordering production of the records from the BramptonCivic Hospital as a result of Ms. Lehmann’s admission in May 2015 to the court for inspection. Released: December 22, 2015

Signed: “Justice S.W. Konyer”