IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  R.B.P. (the “Accused”) has been charged with an offence that:

[2]           In the course of the trial of this matter before me, it became apparent that information had been provided to a foster mother of the young complainant A.P. (age 7 at the date of the alleged offence who is now age 10) (the “Complainant”) to the effect that she had experienced the phenomena of hearing voices.  It was further disclosed to that foster mother that the time frame for this experience stretched back to a period of time when the Complainant was living with her father, the Accused, which fell within the charge period.

[3]           Based on that information, and based on some additional information which was used by Crown to obtain an adjournment of the trial of this matter in the summer of 2016, defence has brought on an application pursuant to s. 278.3 of the Criminal Code for production of certified medical records and reports relating to the treatment, diagnosis, and opinions in connection with the hospitalization of the Complainant from July 3, 2016, to July 12, 2016, at the Victoria General Hospital.  The stated grounds for that disclosure is that this information is required by the Accused to make full answer and defence to the charges that he faces.

[4]           The documents that were before the court for the adjournment application in the summer of 2016 included a handwritten letter signed by a Dr. -- I am going to pause here.  Is it Copey?

[5]           MR. SHEETS:  I was -- I was suggesting it was Cooper, but . . .

[6]           THE COURT:  Well, I believe it to be Copey, and whom I believe to be a Psychiatrist at the Victoria General Hospital.

[7]           In addition, there was a Discharge Summary and Safety Plan dated July 8, 2016.  That particular document was also provided to Crown.  The Complainant is a child who is in the care of the Ministry of Children and Family Development (“MCFD”) and it acts as guardian of that child.  As I understand it, the procedure followed for obtaining these documents, because MCFD is entitled to receive them, was therefore that MCFD sought to obtain this information and did obtain the information from Victoria General Hospital.  That information, in turn, was passed over to a Crown Counsel, who is not the Crown Counsel presently with conduct of this case.

[8]           That information was before the court and remained in the court file since approximately July 13, 2016.

[9]           The handwritten letter of July 13, 2016, provides an opinion to the effect that it would not be in the best interests of the child to be required to testify in court for a period of at least six to eight months, based on the fact that there would be stress for the child Complainant having to give testimony, and for her “to relive” what is described in that letter as “past trauma.”  The opinion further expressed in that particular letter is that giving testimony would be “extremely destabilizing to the [child’s] mental state.”

[10]        The Discharge Summary and Safety Plan which was presented to the court by Crown describes, in the second paragraph on the first page, that the child Complainant provided information to the attending psychiatrist.  I quote from that particular provision:

[11]        It is information provided by the trial testimony in the cross-examination of the foster mother about the Complainant’s mental health, which is being relied upon by the Accused in terms of the application before me.

[12]        The application is opposed by the Complainant.  Counsel has been appointed for the Complainant by the guardian, being the Ministry of Children and Family Development.

[13]        At the hearing, legal representation was provided by Crown and also by the Vancouver Island Health Authority (“VIHA”) who is the owner and the custodian of the records that are being sought.

[14]        The provisions of the Criminal Code referred to above (being sections 278.1 to 278.91) deal with applications in sexual offence proceedings.  The two leading cases that deal with this regime are R. v. Quesnelle, 2014 SCC 46, and R. v. Mills (1999) 1999 CanLII 637 (SCC), 3 SCR 668.

[15]        The procedure that is outlined in those sections of the Code contemplates a two-stage procedure.  At the first stage, the accused makes an application to the trial judge to have the record produced to the trial judge for review (see s. 278.5).

[16]        If the court orders production to itself, the judge reviews the records and determines whether any part of it should be produced to the accused (see s. 278.7).

[17]        At both stages, the defence must establish that the record is likely relevant to an issue at trial or the competence of a witness to testify and that production of the record is necessary in the interests of justice.

[18]        In determining whether the threshold is met, the judge must consider the salutary and deleterious effects of the determination on the accused's right to make full answer and defence, and on the right to privacy, personal security, and equality of the complainant or witness, specifically taking into account eight listed factors.

[19]        In this case, the records that are being sought by the Accused are among those listed in s. 278.1, and those particular records give right to a reasonable expectation of privacy, and it is so presumed.

[20]        In this case, the statutory procedures that are outlined in s. 278.3 have been complied with by the Accused.  The application has been brought before me as the trial judge.  The application is in writing and, in my view, adequately particularizes the record sought, the person who has possession or control of the record, and the grounds on which the Accused relies to establish likely relevance.

[21]        All the appropriate parties have been served with the application.  The custodian of the records has been served with a Form 16.1 subpoena and the hearing has been conducted in camera pursuant to s. 278.4(1) and 278.6(2).

[22]        The test or threshold in each stage is identical, except that at the first stage there is the added element that the judge must be satisfied that procedural requirements have been met (see s. 278.5(1)(a)).  Also, the judge in making the determination at the first stage does so without viewing the records.

[23]        The threshold applicable in both stages, as noted above and as set out in sections 278.5 and 278.7(1) and (2), is that the judge must be satisfied that:

[24]        As also previously noted, in making the above determination the judge must consider the salutary and deleterious effects of the determination on:

[25]        In doing so, the judge must consider the following eight factors:

[26]        In Mills, the court held that although s. 278.5(2) states that the judge “shall” take factors (a) to (h) into account, the judge need not engage in a conclusive and an in-depth evaluation of each factor.  Essentially, the section serves as a checklist and the factors must be taken into account to the extent possible when the judge is determining whether an order is necessary in the interests of justice (see Mills at paragraph 134).

[27]        If, at the first stage, the accused has established that the record is likely relevant, but at the end of the balancing process the judge is uncertain about whether production is necessary to make full answer and defence, then the judge should err on the side of production to the court  (see Mills at paragraph 132 and 138).

[28]        In both Mills (at paragraph 45) and the Supreme Court of Canada decision of R. v. O'Connor, (1995) 1995 CanLII 51 (SCC), 4 SCR 411 at paragraph 22, the likely relevance test is explained.  The likely relevance threshold is higher than the test for disclosure under R. v. Stinchcombe.  Unlike the Crown disclosure context where the relevance is understood to mean that the material "may be useful to the defence;" the threshold of "likely relevance" requires “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".  The onus is on the accused to establish "likely relevance."

[29]        Sections 278.3(4)(a) to (k) lists eleven assertions which are not sufficient on their own to establish that the record is likely relevant to an issue at trial or the competence of a witness to testify.  I need not repeat those particular subsections but simply to note the fact that they are not sufficient on their own.

[30]        In Mills, the Supreme Court of Canada held that the purpose of s. 278.3(4), is to "prevent speculative and unmeritorious requests for production", especially those based on "myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records".  However, the court goes on to say at paragraph 120 as follows:

[31]        In this case, the applicant Accused submits that the requirements have been made out in the first stage and, specifically, the likely relevance test has been met such that the records ought to be disclosed to the court for further review. 

[32]        The position adopted by the Accused is that the records go to the issue of the competence of the witness (being the Complainant), and, in particular, whether or not the competence of the witness is in question during the period of time where the alleged offences took place.

[33]        The Complainant opposes the disclosure of the records.  The first basis for doing so is the assertion that the applicant has not met the requirements of the likely relevance test.  Alternatively, and in addition, the Complainant opposes the release of the records citing the significant and identified policies of right to privacy, security of the person, and equality, and in particular, the view that psychiatric illness, or a psychiatric consultation, is not enough to establish likely relevance.

[34]        In that regard, the Complainant cites the provisions of R. v. O'Connor, supra, at paragraph 143, where Madam Justice L'Heureux-Dube, speaking for the majority of the court on this point, in her discussion of likely relevance stated as follows:

[35]        Similarly, the Complainant says that there is little probative value in the records that are being sought by the Accused.

[36]        In that regard, reliance is placed upon Mills at paragraph 136, where Madam Justice McLachlin, as she then was, wrote as follows:

[37]        Crown indicates that they are here in what they refer to as a “neutral role.”  They are taking no particular position with respect to the disclosure of the records being sought.  They do, however, make submissions with respect to how those records should be handled by way of further court order, should it be the decision of the court to, first, order disclosure to the court, and then subsequent to that, for the court to order further disclosure to the parties.

[38]        The Crown does raise the question as to what use the records will be put to by defence, and, in that regard, Crown is cautionary about the relevance of the records, and whether or not there is much in the way of probative value for those records, especially if any attempt is made by defence to treat them as something in the nature of a prior inconsistent statement.

[39]        Senior counsel for Vancouver Island Health Authority (“VIHA”) attended the hearing from its outset.  The position being advanced by VIHA is really one of an explanation of the important role of VIHA and the requirements that govern the maintenance and control over the records.

[40]        Counsel for VIHA has referred the court to the statutory requirements that bind VIHA, and, in particular, the provisions contained within the Hospital Act of British Columbia, the Hospital Act Regulations as well as the Freedom of Information and Protection of Privacy Act.

[41]        In counsel's submissions, it was made very clear that strict compliance with those statutory requirements, as well as with the professional obligations of medical care providers, are paramount in the handling and the dealing with any documentation.  It is clear on the basis of submissions I have heard on behalf of VIHA that the procedures which gave rise to the production of both the reports that are presently before the court, being the handwritten letter from the psychiatrist, as well as the Discharge Summary and Safety Plan, made their way to the MCFD as guardian of the child, hence, the subsequent release of that documentation to Crown was beyond the control of VIHA.

[42]        One feature of this case which is somewhat unique is the existence of the two documents which were released to Crown for the purposes of obtaining the adjournment of the trial in July of 2016.  The evidence of the social worker who acts as the de facto guardian for the child in her capacity as a representative of the MCFD was to the effect that the disclosure was made to Crown only for the purposes of the adjournment application and not for any additional purposes.

[43]        While I accept that that may have been the intention of the representative for the MCFD, there does not appear to be either any written or oral instructions given to Crown Counsel limiting the further use of that documentation.  I say that not in a critical sense, but rather based on the information that is before me. 

[44]        I have concluded that the information, once disclosed to Crown and then subsequently by Crown, was done so appropriately and necessarily for the purposes of obtaining the adjournment.  Once that information has been disclosed, it is within the court records and I am of the view that it can, for the purposes of this application, be relied upon by defence in order to point to the relevance of obtaining the documents which are the subject of this application.

[45]        I do note, however, that there may be an expressed waiver of applications under sub-sections 278.1 to 278.9(1) of the Code with respect to a record in the possession or control of the prosecutor.  In particular, under s. 278.2(2), any waiver must be informed and expressed.  In Mills, the majority held that the "express waiver" required by s. 278.2(2) may be met by words or conduct or requires that the witness have knowledge of the laws, protection, and the consequences of waiving these protections (see Mills at paragraph 114, 17 and 62). (Also, see R. v. Plaunt, 2006 OJ No. 2175 (S.C.))

[46]        In this case, in my view, the disclosure of the two documents, namely, the handwritten note of the psychiatrist and the Discharge Summary and Safety Plan, were subject of a waiver which may be and was met by the conduct of the guardian in terms of the release of those documents to Crown Counsel to obtain the adjournment being sought by the guardian and by Crown.

[47]        Having regard to the evidentiary information before me that is being presented by the Accused, I am satisfied that for the purposes of this first stage the applicant has met the likely relevance test, and specifically that the information is logically probative to an issue at trial or the competence of a witness to testify.  Specifically, I am of the view that it relates to the competence of a witness to testify.

[48]        Having come to that conclusion, I am of the view that a review by the court of the documentation that is the subject of this application is appropriate and that those documents, at this stage, meet the requirements for the court to consider whether or not they are essential for full answer and defence, or likely are required for full answer and defence by the Accused.

[49]        I see no other available sources in order to get the information that is contained within those records.

[50]        My decision relies upon the guidance provided by Mills in paragraph 94, where the court says as follows:

[51]        When balancing the competing rights in this case, I am of the view that for the purposes of the first stage of the procedure, that the records must be disclosed to the court.

[52]        That concludes my reasons with respect to this matter.  I will, therefore, direct that the records that are the subject of this application in the possession of Vancouver Island Health Authority, which are available in court today, be turned over to the court for the purposes of conducting a review of those records.