The ABC’s of Third Party Records

The ABC’s of Third Party Records

Paper delivered to the Windsor Criminal Lawyers’ Association,
Continuing Legal Education Program, July 24, 2014

In criminal proceedings in Canada, often the defence requires production of a witness’ personal records. In assessing whether to permit production of those records, the court has to balance the privacy interests of the witness against the accused’s right to have access to all information beneficial to his or her defence. The records are referred to as “Third Party Records”, meaning they are in the possession of another party. This paper explores the main themes involved in this aspect of criminal procedure.

A
is for Application, as in Notice of Application. The Code provides that any application for the production of Third Party Records (TPR’s, herein), be given on 7 days notice to all affected parties. And no, you cannot bring the Application during a preliminary hearing [s. 278.3(2)]. There is nothing, however, to prohibit bringing the Application mid-trial, or even rejuvenating a failed effort, other than the risk of being the subject of judicial and crown scorn (in other words, the usual).

What can you put in your Application? Just about anything. Use it as an opportunity to “frame the case”. According to O’Connor: “….the Applicant may resort to the Crown’s disclosure, to its own witnesses, and to cross-examination of the Crown witnesses at both the preliminary inquiry and the trial. On some occasions, it may also be necessary to introduce expert evidence to lay the foundation for a production application.

B
is for Batte, a decision of the Ontario Court of Appeal. It is the hallmark case for considering the test of “likely relevance”–the legalese cornerstone of production.

I consider Batte the most restrictive pronouncement on the issue of TPR production. Sadly, it was decided at a time when TPR Applications were all the rage, and beleaguered Justices needed defence lawyers to back off and give them some breathing room. The decision has an eerie parallel to the “insufficient grounds” sections of the Code–after going through those (sections 278.3(4) et seq.), a normal-thinking person might be left wondering whether anything could ever be produced in a million years. Batte is also the case that comments most directly on the issue of likely relevance, which arguably could consist of any of the following:

● Whether it was established that certain of the records contained references to topics that were relevant to issues at trial, and particularly to the credibility the complainant;

● Whether there was evidence that the records had any direct relevance to the question of whether the appellant committed the acts as alleged;

● Whether there was evidence that anything in the records that would be admissible as a “free-standing” piece of evidence going to the question of whether the abuse occurred;

● Whether the potential relevance or evidentiary value of the records rested in their potential to refresh the memory of one of the complainants, or impeach her credibility;

● Whether there was evidence that the counseling process played any role in reviving, refreshing or shaping the memory of the complainant;

● Whether there was evidence the complainant suffered from any emotional or mental problem, which could have any impact on her reliability or veracity;

● Whether the Applicant could point to some “case specific evidence or information” to justify that assertion that the records were relevant to credibility;

● Whether the Applicant could show that the statements contained in the record had some potential to provide added information to the accused, or some potential to impeach the credibility of the complainant.

C
is for Carosella. Believe it or not, the genesis for TPR’s came right here from little old Windsor. (I believe the case was before the late Kenny Ouellette and that it was argued by Don Tait and Nat Bernardon.) The case touched on several legal issues that were in their then-infancy: lost evidence, judicial stays, disclosure obligations, privacy interests, the rewriting of sexual offences, third parties. Carosella was charged in 1992 with gross indecency covering the timeframe 1964 – 1966. The complainant initially attended a Sexual Assault Crisis Centre where she provided a narrative. Before going to the police, the complainant agreed that whatever she told the Centre could be subpoenaed to court.

At trial, an order was issued compelling the Centre to disclose notes of the interview with the complainant. But quite sneakily the Centre had shredded the notes of the complainant’s interview, as part its stated policy of combating production orders. (As I recall, the complainant was actually advocating production of the records, had they been in existence.) At trial, a stay application was brought, and through evidence of the Centre’s director the Court learned that approximately 300-400 other files had been shredded en masse.

The Supreme Court of Canada confirmed the trial judge’s ruling that a stay was appropriate. The Court confirmed that “the entitlement of an accused person to production either from the Crown or third parties is a constitutional right” and noted (although this position would later be revisited in R v La) that “to require the accused to show that the conduct of his or her defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced. It would require the accused to show how the defence would have been affected by the absence of material which the accused has not seen.”

The Court held that if the material that was shredded met “the threshold test for disclosure or production, the appellant’s Charter rights were breached without the requirement of showing additional prejudice”. Because the notes related to the subject matter of the trial and were able to “shed light on the ‘unfolding of events’ or credibility”and were likely “the first written record of the allegations,” the trial judge was justified in determining that whatever was in the notes was relevant and material, and quite capable of forming the foundation for cross-examination.

D
is for Darrach. I know you are saying to yourself, isn’t this is supposed to be the ABC’s of TPR’s, and isn’t Darrach a case about prior sexual history and the twin myths. What gives?

Three Charter principles wind their way through both the Seaboyer and TPR regimes, namely: full answer and defence, privacy and equality. The Court in Darrach defined these rights relationally: “the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses”, and that crafty defence lawyers should not be permitted to sidestep Seaboyer and go to Mills instead:

Mills upheld the constitutionality of the provisions in the Criminal Code that controlled the use of personal and therapeutic records in trials of sexual offences. The use of these records in evidence is analogous in many ways to the use of evidence of prior sexual activity, and the protections in the Criminal Code surrounding the use of records at trial are motivated by similar policy considerations. L’Heureux-Dubé J. [in Mills]warned that the production of therapeutic records should not become a tool for circumventing s. 276: ‘[w]e must not allow the defence to do indirectly what it cannot do directly’.

E
is for Evidence. Time and time again I am unfortunately in the position of having to argue (on behalf of complainants), that there is an insufficient evidentiary foundation for a TPR application and that we should therefore all go home.

In my view, defence counsel have to be tougher when it comes to OCJ Justices shutting down questioning that would assist in forming the foundation for a TPR application. I recently argued a case in Superior Court where the PH Justice made the following commentary to a defence lawyer who was legitimately pursuing a line of questioning related to the medical care of the complainant: “Well, you can ask her if she’s under the care of a psychiatrist even today and that’ll be as far as we’re going to go in that area”. The net effect of this comment was to curtail further, legitimate inquiry.

The Ontario Court of Appeal examined the issue of the extent of counsel’s questioning in R v EB, (a diary case, and which happily, for memory purposes, also begins with the letter “E”) wherein it was determined that “that there is no absolute bar to all questioning of a complainant at a preliminary inquiry concerning a private record, and that ss. 278.1 to 278.91 of the Criminal Code, by their terms, and the decisions in Mills and O’Connor do not preclude such questioning”.

The court recognized the quandary in such circumstances facing defence counsel (ironically similar to the application process itself), namely that it was “unlikely that the [accused] could obtain information relating to the complainant’s diary by any available means other than through limited cross-examination of the complainant”.

The court provided guidance as to the proper range of cross examination, stating that “only those questions which implicate the private or personal domain of the author of the record are impermissible. It follows that where it is acknowledged, as in this case, that cross-examination on the actual contents of the diary is impermissible, it is necessary to assess the proposed questions to determine whether they will intrude on the intimate and personal aspects of the recorded life experiences, thoughts and feelings of the diarist”. The court recognized that counsel “should be permitted to ask the complainant at the preliminary inquiry if a particular topic is covered within his diary, but should not be permitted to question the complainant about what he wrote or recalls recording concerning the identified topic”.

In other words, you can dance around the records as much as you like, but you cannot ask the complainant what was said.

F
is for fishing expedition. One thing about defence lawyers is that sometimes they never know when to stop. In White, the trial justice ordered disclosure of five years of the complainant’s medical records. Post-conviction, counsel argued at the OCA that not enough records were produced, and that it needed the records to firm up its contention that the complainant suffered from Munchausen’s Syndrome–a psychiatric condition marked by compulsive lying and tale-telling–bearing in mind there was no direct evidence in the piles of records the defence already had, that this was an accurate or even possible diagnosis. The Court of Appeal would have none of it:

There is also no merit to the submission that the trial judge should have looked at all of the records to see if they could afford some basis for the advancing of an opinion at trial that the complainant suffered from Munchausen Syndrome even if that diagnosis had not been previously made. The trial judge could not possibly make the kind of expert assessment which would be needed to determine whether the medical records could support a diagnosis of Munchausen Syndrome. Furthermore, although the defence had received considerable disclosure prior to bringing this application, there was no attempt made to put expert evidence before the trial judge suggesting what indications there were in the disclosed records, apart from the social worker’s notes, which could possibly support a diagnosis of Munchausen Syndrome.

This submission really comes down to the contention that a trial judge should, on request, examine a complainant’s medical and psychiatric records to see if they could possibly afford a basis for an expert opinion at trial that the complainant suffered from some physical or psychiatric problem which could be relevant to her credibility or reliability. This is exactly the kind of invasive “fishing expedition” which O’Connor declares to be improper and seeks to prevent.

Despite how awful this case is for the defence, when confronted with it be quick to point out that the court, at page 760, stated that the “likely relevance standard is not a high one” and add that, well, at least you are not as greedy as the lawyers in that case!

G
is for Gayme. This is the other half of the Seaboyer title of cause. The reason this case is important has nothing to do with Third Party Records Applications, it has to do with the general law of evidence.

What Gayme tells us that there are different standards for the admission of evidence between the Crown and the defence. This should be one case that every defence counsel is aware of. The standard of admission for defence evidence is less than that for the Crown. If you think I am joking, reference this passage:

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

It is a handy case to reference in the event your trial is going badly and if the only evidence you have is something that is arguably inadmissible, like some third-party hearsay or your client’s highly calculated post-offence self-serving statement. And in any event, if it goes from bad to worse to downright awful, there is nothing wrong with quoting this case as a last ditch effort, which not only will show you know the law, but it puts something on the record in the event of an appeal.

H
is for hearing. Things you need to know:

i) the hearing is in camera;
ii) neither the complainant nor the record holder are compellable at the hearing, although they may attend and make submissions;
iii) at the conclusion, the judge may attach conditions to the production of the record;
iv) the record produced to the accused cannot be used in any other proceeding.

Q: What if you have both sexual offences and non-sexual offences on the same indictment?
A: s. 278.2 states that the provision applies “in respect of two or more offences that include an offence referred to in paragraphs (a) to (c)”…i.e. a sexual offence and a non-sexual offence. Ergo, the statutory regime applies.

I
is for inquiries. Reasonable ones. By the Crown. In McNeil, the SCC affirmed again that the Crown is cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant to the prosecution or the defence. This Court also recognized that police have a duty to disclose, without prompting, “all material pertaining to its investigation of the accused” as well as other information “obviously relevant to the accused’s case”.

J
is for joint counseling records. In R v RC, the OCA ruled that such records are included within the TPR regime. In this case, the husband and wife had consulted with a psychotherapist. Although the defendant husband had been present during the counseling sessions, the Court ruled not only that the joint counseling records were “records” within the meaning of the Code, but also that there was, presumptively, an expectation of privacy.

The information that the respondent sought to have produced was of this nature. It was about her “lifestyle, intimate relations or … religious opinions”. The fact that the respondent was present for some of these sessions and may have been privy to some of the disclosures by the complainant and the advice from Dr. Hardin did not undermine her reasonable expectation of privacy. First, if the respondent was present, it was likely because Dr. Hardin felt it would be helpful in treating the complainant. Thus, for example, disclosures in group therapy would not lose the protection of the Code provisions because other persons were present. Second, as the Mills analysis makes clear, the intrusion against which these provisions offer protection is not just intrusion by the accused but by the state”.

K
is for KTD (R v). This is a case from 2003 that I argued before the late Justice Ducharme. I took the position, on behalf of the respondent, that certain school records could be disclosed, with my consent. The court disagreed that I had the authority to make such a concession:

I would simply observe that concessions of counsel are irrelevant to and cannot fetter or oust the court’s jurisdiction to apply the standards for production required by the statutory scheme. In paragraph 8 of the Notice of Application, Tab 2 of the Application Record, counsel asserts that it was the school counselor who notified the Windsor-Essex Children’s Aid Society. Other documents reproduced in the Application Record, however, make clear that the complainant’s mother contacted the C.A.S. after the complainant had earlier confided in her maternal grandmother. The school counselor directed the complainant to the Sexual Assault Crisis Centre. But why does that fact, standing alone, establish the likely relevance of the counselor’s notes? Counsel says that those notes are likely relevant because they represent the first written record of the complaint.
Pressed to specify why a record should be produced merely because it is “first,” counsel for the applicant could say only that it was possible “the record may disclose a prior inconsistent statement” and “may relate to the credibility of the complainant.” Counsel also emphasized that the school counselor’s notes are likely relevant because the counselor referred the complainant to the Sexual Assault Crisis Centre rather than to the police.

L
is for L.P.M. (R v). This is a handy Ont. SCJ case in reference to CAS records. Useful on the issue of production of CAS records where the records contain the first statement of abuse to an investigative body. This is a nice, tidy decision by Justice Lane:

As the defence sets out in its application for production, in 1987 the C.A.S. investigated an allegation by the complainant to her stepmother that the accused had kissed her on the bum. I found the records likely relevant. They appear to be the first statement made to an investigative body about improper conduct by the accused in the indictment. They record interviews with the complainant. They are likely to assist with the evolution of the allegations before the court. There is a reduced expectation of privacy in records prepared by a body like the C.A.S. when the contact is initiated to spark an investigation. Balancing that interest against the right of the accused to make full answer and defence, I conclude that the accused’s interest is more pressing. For these reasons, I ordered production of the documents with the exception of those that were either administrative in nature or clearly of no probative value.

M
is for McNeil. (It is also for Mills, but you already know about that case.) McNeil was a case that involved a dirty cop. The question to be determined was whether police disciplinary records were the subject of an O’Connor type application. The court determined that police disciplinary records fell within the Crown’s first party disclosure obligation–but only in a case such as this one where the character of the police officer/witness was a critical component of the case.

The court ruled as follows:

I agree that it is “neither efficient nor justified” to leave the entire question of access to police misconduct records to be determined in the context of the O’Connor regime for third party production. Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting. For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent upon the police force, in fulfillment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action. Of course, not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s case. The officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence. The kinds of information listed in the Ferguson Report [i.e. contraventions of criminal and PSA matters, either concluded or pending] can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel.
With respect to records concerning police disciplinary matters that do not fall within the scope of first party disclosure obligations, procedures such as those recommended in the Ferguson Report, tailored to suit the particular needs of the community in which they are implemented, can go a long way towards ensuring a more efficient streamlining of O’Connor applications for third party production. Trial courts seized with motions for disclosure under Stinchcombe or applications for third party production are well placed to make appropriate orders to foster the necessary cooperation between police, the Crown and defence counsel.

N
is for the nature of the records. Different records generate different degrees of a privacy interest and the expectation of privacy is heightened when the relationship between the complainant and the record keeper is most attenuated. Dull and boring records warrant a reduced privacy expectation. As was stated in Shearing, “A pilot’s log will record relevant flight information, because that is its purpose, but not what he or she had to eat for breakfast over the Atlantic Ocean.”

Somewhat more formally, the proposition was re-stated in Mills:

The court is entitled to look at the nature and purposes of the record, as well as the record taking practices used to create it. Some records are created for purposes different than the fact finding process engaged in by the courts. This is particularly the case with a therapeutic record. Counselling and therapeutic records can be highly subjective documents which attempt merely to record an individual’s emotions and psychological state. Often such records have not been checked for accuracy by the subject of the records, nor have they been recorded verbatim. All of these factors may help a trial judge when considering the probative value of a record being sought by an accused.

O
is for O.Reg 206/00. I often hear from counsel that the Children’s Aid Society is an investigative body, that they keep notes of their interviews, and that they are under a statutory duty to do so, but rarely does the authority for this proposition surface. You will find it in O.Reg 206/00 to the Child and Family Services Act. In particular, you will find it at s. 3 & s. 4 of the Regulation:
A society shall ensure that when a child protection worker first meets with a child and family who are the subject of a child protection investigation, the worker conducts a safety assessment in accordance with the Child Protection Standards and takes the actions that are immediately necessary to protect the child…and after completing a child protection investigation, a society shall…record the findings of the investigation.
P
is for Pomerance, Justice R. I argued a case in front of her a few years ago which, happily for all of us, I lost. Beth Craig was the lawyer. The case was R v WF. The issue was whether the defence could obtain CAS records where the sister of the complainant had, years earlier, (arguably) been coached at the instance of mother to fabricate a sexual assault tale against grandad. The issue of “coaching” was a live one in the current trial involving the younger sister and a different accused.

The case is helpful in this regard–it is a nice restating of the proposition that in close cases, the court ought to err on the side of production. I refer to this as the so-called, “the tie goes to the runner rule” (there is also some language in Mills and O’Connor to this effect). Justice Pomerance stated it in this way:

This is a close case. It is by no means an overwhelming case for production, but nor is it obvious that the application should be dismissed. In finding that the records should be produced for inspection by the trial judge, I have considered the fact that close cases should be decided in favour of the accused. This is because of the “catch 22” that confronts the defence. The onus on the defence is designed to discourage and prevent fishing expeditions. I am satisfied that the application in this case is not of the fishing variety. There is a sufficient basis to ground the application. It is not borne of speculation, but rather is based on a concrete item of evidence contained in the disclosure materials.

Q
is for Quesnelle*, another case where the SCC had to show the OCA how out of touch with reality the OCA is. The case involved the production of police occurrence reports involving the complainant, a sex worker. The OCA had ruled that those types of police occurrence reports were so low on the scale of records that they could not even be considered records, and that complainant’s who engaged the police were implicitly waiving their privacy interests in police occurrence reports. Boy, were they wrong. According to the SCC,

The mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution. The Mills provisions echo this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials. For example, the fact that a complainant has reported sexual violence in the recent or distant past, provides sexual services for money, or suffers from addiction is not, without more, enough to render a police occurrence report “relevant”…. However, occurrence reports which raise legitimate questions about the credibility of the complainant or a witness, or some other issue at trial, will be treated as relevant.

*The author is personally grateful to the Supreme Court of Canada, for issuing this judgment on July 9, 2014, thereby making it easy to find a something beginning with the letter “Q.” This note also will serve to foreshadow problems the author will soon encounter in finding other topics to attach to letters.

R
is for Riley. This is the leading case on what is known as the collateral fact rule–namely a rule that prohibits the defence from contradicting a witness on a “collateral” matter. Be familiar with it because it crops up in the TPR regime:

….if it is seen that the accused’s inquiry is essentially in the direction of an issue that is collateral, production ought not to be ordered: Where the defence seeks to justify disclosure on the basis of anticipated relevance to particular issues, some inquiry is warranted into whether or not these issues are collateral to the real issues at trial. Since the defence cannot pursue inconsistencies on collateral issues, the defence is really no better off having production on that issue. It follows that failure to produce information relating only to collateral issues will not impair the accused’s right to full answer and defence. (Mills)

The application of this rule can and does get confused, intertwined and intermingled, with the competing right to a wide latitude in cross-examination, including forays into a complainant’s prior disreputable conduct. Beware, for present purposes, that the invocation of the collateral evidence rule may disrupt an otherwise valid TPR application.

S
is for subpoena. You need to get a special one for sexual assault cases. It is Form 16.1. These are issued over the counter in SCJ. My experience in OCJ is to provide a draft subpoena and affidavit and have it issued in chambers.

T
is for Third Party Records (you were warned, supra, in the footnote to Q).

U and V
are for …. come on! Do you know how hard it is to find something that begins with these letters?!
W is for waiver. It should be remembered that the Code specifically permits the complainant to waive the application of the Code where the records are in the possession or control of the prosecutor: see s. 278.2. There is good authority in Mills for the reception of records wherein there is an informed waiver:

If the complainant or witness waives the protection of the legislation, the documents must be disclosed to the defence: s. 278.2(2). Waiver should not be read in a technical sense. Where the complainant or witness, with knowledge that the legislation protects her privacy interest in the records, indicates by words or conduct that she is relinquishing her privacy right, waiver may be found. Turning records over to the police or Crown, with knowledge of the law’s protections and the consequences of waiving these protections, will constitute an express waiver pursuant to s. 278.2(2).

X, Y and Z
are for….seriously….what did I tell you about U and V already…did you actually think it would get this far!

In closing, my colleagues, carry these remarks with you, attributable to Eddie Greenspan:

There are three things you need to be a good trial lawyer. The first thing you need is a good case. The second thing you need is a good judge. And the third thing you need is good luck…and good luck to all of us!

July 21, 2014

John Liddle

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About johndliddle

John Liddle is a Windsor, Ontario criminal defence lawyer. He was called to the bar in 1990 and is a member in good standing of the governing body for Ontario lawyers, the Law Society of Upper Canada. He has been a sole practitioner concentrating on the practice of criminal law since 1992. He has experience in handling all manner of criminal cases in all levels of criminal courts in Ontario.
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