SUPREME COURT OF Nova Scotia
Citation: R. v. E.W., 2020 NSSC 191
Date: 20200619
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 One Application
|
Judge: |
The Honourable Justice Joshua M. Arnold |
|
Heard: |
June 15, 2020, in Bridgewater, Nova Scotia |
|
Written Decision: |
September 3, 2020 |
|
Counsel: |
Roland Levesque, for the Crown Robert Chipman, QC, for the Defence Carbo Kwan, for the Complainant |
By the Court:
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 counselling records. His grounds for disclosure of these third party records were not clearly articulated in his brief and as a result the arguments made by the Crown and the complainant were very general in nature. This is my decision in relation to Stage One of that application.
Facts
[3] No viva voce evidence was called on this application. 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.
[4] 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, r. ……….., 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.
[5] 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 her school 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.
[6] ……. ………. 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.
The Law
Third Party Records Applications
[7] 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. 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.
[8] Section 278.3(1) requires a production application to be made before the trial judge. The hearing is held in camera (s. 278.4). As for records in the possession or control of the accused, s. 278.92(1) states:
278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused - and which the accused intends to adduce - shall be admitted in evidence 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 from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
[9] 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.
[10] 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.
[11] 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.]
[12] In R. v. McNeil, 2009 SCC 3, Charron J., for the court, discussed the test for 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, [1995] 1 S.C.R. 727, at para. 32). The importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminal proceedings remains a pressing concern, more than a decade after O'Connor. On the other hand, the relevance threshold should not, and indeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that may assist in making full answer and defence, "to demonstrate the specific use to which they might put information which they have not even seen" (O'Connor, at para. 25, quoting from R. v. Durette, [1994] 1 S.C.R. 469, at p. 499).
[13] Third party records applications therefore involve 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 One
[14] E.W. made an application in accordance with the Criminal Code for disclosure of the counselling records of his daughter, S.W. He has complied with the procedural requirements in that the Notice of Application was made in accordance with ss. 287.3, 297.92 and 287.93; the affidavit of Jessica Droham-Burke, a lawyer at Nova Scotia Legal Aid, was filed in support of the application; a brief and book of authorities has been filed; and Form 16.1 was issued by the court and served on the third party record-holders, as well as the Crown and the complainant.
[15] E.W. seeks disclosure of S.W.’s counselling records as prepared by …..….. ……. As noted above, following a counselling session on May 3, 2018, Mr….. …… made a referral to the Department of Community Services, Child Protection Services Division. E.W. says I should review the records, which he says are likely relevant for the following reasons:
33. Respecting the first stage, it is submitted that the record is likely relevant to an issue at trial and its production is necessary in the interest of justice. An issue at trial would include the unfolding of events that form the subject matters of proceedings.
34. Cases where likely relevance was made out include:
• Counselling records where it appeared that the complainant’s memory of what took place with the accused had been enhanced or refreshed during counselling sessions: R. v. Fones, [2009] MBQB 65.
• Counselling records with respect to a case of historical sexual abuse where the complainant had disclosed the abuse to the counsellor before reporting it to the police. The court found likely relevance, since credibility and reliability of the complainant’s account was a live issue: R. v. G.J.S., 2007 ABQB 757.
[16] The Crown says the records should not be disclosed, for the following reasons:
60. Looking at the excerpts of such testimony which accompanies the Affidavit of Jessica Drohan-Burke; the Crown submits that this only establishes two things: firstly that Ms. [W.] spoke to …………. about what had happened with her father in their meeting of May 3rd, 2018 and secondly, that no accurate record of such conversation was maintained by ………...
…
62. Such facts do not rise to a level of showing that these case notes are “likely relevant to an issue at trial”. Indeed this is why in the Defense Application for the production of these records/case notes, the Defense states that they “may disclose a prior inconsistent statement of the complainant.” That they “may relate to the credibility of the complainant.” And that they “may relate to the reliability of the testimony of the complainant.” [Emphasis in original]
63. These are all insufficient reasons to order production of such case notes as is made clear under Section 278.3(4) (c) (d) and (e) and simply amounts to a fishing expedition.
64. There is nothing to support the Defense allegation in [its] Application that the records “have probative value.”
[17] The complainant says that the records should not be disclosed because:
3. [S.W.] (herein referred to as the “Complainant”) opposes the s. 278 application on the basis that the Defence has not demonstrated the likely relevance of the counselling records to an issue before the Court and production is not necessary in the interests of justice.
4. The Defence relies on assertions that fall within the ambit of the prohibited reasons set out in s. 278.3(4) paragraphs (a) to (k).
5. The counselling records engage one of the highest expectations of privacy and the Complainant’s privacy interest in these records outweighs the Defence’s right to full answer and defence given the probative value is low.
…
10. It appears that the Defence believe they have grounds for likely relevance on the mere fact that the Complainant had made disclosures of sexual abuse to the counsellor before it was reported to the police. It is submitted that these are insufficient grounds and the Criminal Code expressly forbids it…
…
15. Based on the above authorities, it is submitted that in the Complainant’s view, the Defence has relied on assertions that fall within the ambit of the prohibited reasons set out in s. 278.3(4) paragraphs (a) to (k). In the case at bar, there is no evidence that the counselling precipitated the complainant to the police. The Complainant was a minor at the time of disclosure to ……… and he had a professional duty to report the allegations to the police.
16. The Defence has failed in any meaningful way to articulate the likely relevance of the records to any issue at trial and is therefore embarking on a fishing expedition. If the facts relied on by the Defence are considered sufficient to pass the test for production, it would be inconsistent with caselaw that speak to case-specific evidence as showing relevance of the records to an issue at trial.
[18] S.W. relies on the law as set out in Mills in support of the application:
15. One of the seminal cases in dealing with production of records as defined under Section 278.1 is R. v. Mills [1999] 3 SCR 668. Therein the SCC made a full and complete review of Bill C-46 which enacted the present criminal code provisions dealing with an Application for counselling/therapeutic records; notably sections 278.1 to 278.91 of the Code.
16. Parliament’s goal in enacting Bill C-46 which came into force on May 12th, 1997 was clarified at paragraph 96 of the Mills decision; notably that… “In enacting Bill C-46, Parliament was concerned with preserving an accused’s access to private records that may be relevant to an issue on trial, while protecting the right to privacy of complainants and witnesses to the greatest extent possible.” [Emphasis by counsel]
17. In assessing the constitutional validity of such provisions, Justices McLachlin and Iacobucci who rendered the majority decision, highlighted the three principles which were at play in evaluating the competing interests of the accused and the person whose records were sought by stating at paragraph 61… “At play in this appeal are three principles, which find their support in specific provisions of the Charter. These are full answer and defence, privacy, and equality.” [Emphasis by counsel]
[19] In R. v. Batte (2000), 145 C.C.C. (3d) 449, [2000] O.J. No. 2184 (Ont. C.A.), the court explained the evidentiary requirement on an applicant to be successful at Stage One:
68 There was no evidence that the records had any direct relevance to the question of whether the appellant committed the acts alleged against him. By that I mean, there was no evidence that anything in the records would be admissible as a free-standing piece of evidence going to the question of whether the abuse occurred. The potential relevance or evidentiary value of the records rested in their potential to refresh the memory of D.S.D. or impeach her credibility. Clearly, Ms. Neumin's impressions of the "subtext" of the conversations and her interpretation of what D.S.D. said or meant had no relevance.
69 There was also no evidence that the counselling process precipitated or contributed to D.S.D.'s decision to go to the police. The evidence was to the contrary. D.S.D. went to the police and gave them a statement some five months before she began counselling. Furthermore, there is no evidence that the counselling process played any role in reviving, refreshing or shaping the memory of D.S.D. Finally, there is no evidence that D.S.D. suffered from any emotional or mental problem which could have any impact on her reliability or veracity, and the nature of the allegations themselves did not suggest any such problems.
70 The appellant's position with respect to the likely relevance of the records must come down to this. The records contained statements made by D.S.D. that referred to the alleged abuse and to matters affecting her credibility. Anything said by D.S.D. about the abuse or about a matter which could affect her credibility passes the likely relevance threshold, even absent any suggestion that the statements differ from or add anything to the complainant's statement and testimony at the preliminary hearing.
71 If the likely relevance bar is that low, it serves no purpose where the records relate to counselling or treatment connected to allegations of sexual abuse. It is impossible to imagine that such records would not contain references to the alleged abuse or matters that could affect the credibility of the complainants' allegation of abuse. In my view, the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.
72 I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value. To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the purposes of determining the Crown's disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.
[20] Similarly, in R. v. D.W.L., 2001 NSCA 111, dealing with an application for the production and review of a complainant’s diary, the court said:
23 It is clear from s. 278.5(1) of the Code that the judge may order that the diaries be produced to the court for review if the judge is satisfied that the diaries are "likely relevant" to an issue at trial or to the competence of a witness to testify. The onus is on the applicant to establish likely relevance.
24 Further, an assertion that the diaries exist, and an assertion as to what those diaries may disclose, are not sufficient on their own to establish that the diaries are likely relevant to an issue at trial or to the competence of a witness to testify.
[21] In adopting the reasoning in Batte, Flinn J.A. said:
26 This test was followed by the Ontario Court of Appeal in R. v. Batte, [2000], 49 O.R. (3d) 321. While the case fell to be decided on common-law principles (because the matter was heard by the Motions Court before the enactment of s. 278 of the Code) Justice Doherty noted that the applicable law in respect of likely relevance had not changed. Writing for the unanimous court, Justice Doherty said at para. 75:
The determination of likely relevance under the common law scheme requires the same approach. The mere assertion that a record is relevant to credibility is not enough. An accused must point to some "case specific evidence or information" to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.
[22] E.W. relies on R. v. Fones, 2009 MBQB 65, in support of his assertion that he has proven the likely relevance of the records for Stage One. In Fones, the application for records was based in part on the timing of the police complaint, after counselling. In reviewing the law on this issue the court stated:
13 Krindle J. was also considering a motion for production of counseling records in R. v. M.A.S., [2000] M.J. No. 516 (Q.B.) and discussed the type of evidence that could lead to a finding of likely relevance to support an order that the records be reviewed by a judge. In that decision, she stated as follows:
[12] There is simply no evidential basis before me to permit me to find that whatever transpired between the worker and the complainant leading up to the making of the complaint by the complainant in any way tainted the complaint that was made. There is no evidentiary basis before me to permit me to find that anything transpired between the worker and the complainant leading up to the making of the complaint. The complainant was on the stand at the preliminary. She was questioned. She was not asked about how it was that she came to speak to the worker about the alleged sexual assaults by her brother or what the worker may have said to her first, if anything.
14 Easton J. dealt with the question of the production of counseling records in R. v. Peddle, [2000] N.J. No. 156 (S.C. Tr. Div.):
[21] The Applicant also raises the point that the complainant saw a medical doctor, a psychiatrist and a counselor for a period of time prior to the laying of the complaints against the accused. He is asking me to draw the inference that the presence or participation of these individuals may have been instrumental in the laying of criminal charges. However, even if that is the case, there is nothing untoward in that. ... What is frowned upon, of course, is any manipulation, psychological or otherwise, of a person to persuade him or her to lay charges against another person. Here, there is no evidence to support a finding that illegal, improper, unethical or questionable practices or methods were employed. The fact that charges were laid at the time they were laid, after professional help was sought, is not at all unusual. Specifically, of course, this is addressed directly by s. 278.3[4](k) of the Criminal Code.
15 In Batte, Doherty J. made similar comments as follows:
[69] There was also no evidence that the counseling process precipitated or contributed to D.S.D.'s decision to go to the police. The evidence was to the contrary. D.S.D. went to the police and gave them a statement some five months before she began counseling. Furthermore, there is no evidence that the counseling process played any role in reviving, refreshing or shaping the memory of D.S.D. Finally, there is no evidence that D.S.D. suffered from any emotional or mental problem which could have any impact on her reliability or veracity, and the nature of the allegations themselves did not suggest any such problems.
16 As Doherty J. noted at para. 76 of Batte, information that the complainant's statement to the police differed from her testimony at the preliminary inquiry, coupled with the fact that the complainant spoke to a therapist about these matters between the statement and the preliminary inquiry, may establish that the statements she made to the therapist touching on matters relevant to her credibility had potential impeachment value and were, therefore, likely relevant. Similarly, evidence of a connection between the evidence given at the preliminary inquiry and the sessions with her therapist would also have established potential impeachment value.
[23] E.W. also relies on R. v. G.J.S., 2007 ABQB 757, where the court was dealing with an allegation of historical sexual assaults. Statements about the incidents were made to a counselor years before the police became involved. In determining if the applicant should be successful at Stage One, the court stated:
25 Because this is a case involving an incident that is alleged to have occurred some twenty years ago, and because the complainant provided details of the incident to her counsellor several years or more before going to the police, I conclude that the threshold for likely relevance has been met. This is not a case of stereotypical speculation. Instead, it is a case where prior statements describing the circumstances of the alleged offence exist. Not all such statements will satisfy the threshold requirements, but where statements are made years closer to the events in question than statements which have been made to investigating authorities, it is very difficult to conceive that such statements are not likely relevant to issues of credibility and the reliability of the later statements.
26 These are serious charges. There is clear evidence that there are statements relating to the incidents themselves that pre-date statements given to the police. It is necessary in the interests of justice that these factual statements at least be reviewed by me so that I can more accurately balance their relevance, the complainant's privacy interests, and the accused's rights.
[24] The complainant in this case alleges sexual abuse between 2009 and 2014. She started counselling with ………. in 2017. On May 3, 2018, she told him about alleged abuse, and he very quickly started the process leading to the police involvement. I conclude from the evidence that S.W.’s disclosure during counselling precipitated the police involvement.
Analysis
[25] E.W. is relying on the fact that the counselling precipitated the police complaint in support of his application. This is a very discrete point. As noted earlier, section 278.3(4) sets out a list of assertions that are insufficient grounds on their own for production of records. In this case, the following are most relevant: (a) the record exists; (b) the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving; (c) the record relates to the incident that is the subject-matter of the proceedings; (d) the record may disclose a prior inconsistent statement of the complainant or witness; (e) the record may relate to the credibility of the complainant or witness; (f) 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; (h) the record relates to the sexual activity of the complainant with any person, including the accused; (i) the record relates to the presence or absence of a recent complaint; (k) 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. (Other considerations identified in s. 278.3(4) are not relevant here.)
[26] Therefore, some of the grounds that E.W. relies on would be insufficient on their own. However, the fact that the counselling precipitated the police involvement is likely relevant to an issue at trial.
[27] I have determined that the threshold set out in s. 278.5 has been met by E.W. in relation to Stage One, in that he has established that the requested records are likely relevant to an issue at trial and that production of the records is necessary in the interests of justice, based on the fact that the record indicates that the counselling precipitated the police involvement.
[28] I have also considered the salutary and deleterious effects of the determination on E.W.’s right to make full answer and defence and on the right to privacy, personal security and equality of S.W. and any other person to whom the record relates. In particular, I considered the following factors as directed by s. 278.5(2):
(a) the extent to which the record is necessary for the accused to make a full answer and defence
[29] Knowing how and 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. This factor weighs in favour of E.W.
(b) the probative value of the record
[30] The probative value of the record is of some significance since it will explain how the police came to investigate this matter which 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
[31] The complainant’s expectation of privacy in relation to her counselling records is high. This factor weighs against E.W.’s application.
(d) whether production of the record is based on a discriminatory belief or bias
[32] 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
[33] The release of private counselling records could have a prejudicial effect on S.W.’s personal dignity and her right to privacy. This weighs against E.W.’s application.
(f) society's interest in encouraging the reporting of sexual offences
[34] 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
[35] Society has a strong interest in encouraging the obtaining of treatment by complainants of sexual offences, such as S.W. in this case. Ordering counselling records be produced can have a chilling effect on complainants of sexual offences seeking counselling. This weighs against E.W.’s application.
(h) the effect of the determination on the integrity of the trial process
[36] Ordering production of S.W.’s counselling records for my own review at Stage One will have little effect on the integrity of the trial process. Alternatively, refusing to review records that disclose how and why the police became involved in investigating E.W. could have a negative effect on the trial process. This weighs in favour of E.W.
Conclusion
[37] 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 particularly strongly in favour of review by the court. I conclude that I should review the requested records.
Arnold, J.