[Indexed as: R. v. S. (B.)]
Superior Court of Justice, Charbonneau J.
May 30, 2011
Criminal law — Disclosure — Production of third party records — Accused charged with physically and sexually abusing his two children — Accused applying pursuant to s. 278.3 of Code for production of all records relating to complainants in hands of two child protection agencies — Application granted with respect to one medical report and otherwise dismissed — Accused not identifying records with sufficient accuracy — Records (with exception of medical report) not meeting relevance criterion as accused had already received disclosure of large number of documents held by agencies which revealed contradictions in complainants’ testimony and possibility of undue influence by foster mother — Production of all records sought by accused not in public interest in any event as disclosure of all records held by agencies respecting complainants would be serious invasion of complainants’ privacy — Criminal Code, R.S.C. 1985, c. C-46, s. 278.3.
The accused was charged with offences arising out of the alleged physical and sexual abuse of his two children. He brought an application pursuant to s. 278.3 of the Criminal Code for the production of all records relating to the complainants in the hands of two child protection agencies.
Held, the application should be granted in part.
The accused did not identify the records with sufficient accuracy. The two agencies had a large quantity of records on the complainants which had nothing to do with the charges against the accused. Moreover, the accused failed to satisfy the court that the records sought (with one exception) would probably be relevant. A large number of confidential records held by the two agencies had already been disclosed to the defence. Those records clearly raised questions about contradictions in the complainants’ testimony and the possibility of undue influence by their foster mother. There was nothing to indicate that records other than those already disclosed to the defence would probably be relevant. The exception was a report of a medical examination of one of the complainants to determine whether there were signs that she had been sexually abused. That record was ordered produced to the court for review. Even if the accused had identified other records as probably relevant, the interests of justice would not be served by their production, as the accused already had at his disposal all the material necessary to make full answer and defence and as disclosure of all the records of the two agencies relating to the complainants would be a serious invasion of their privacy.
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 151 [as am.], 152 [as am.], 266 [as am.], 267(a), 278.1, 278.3, (3), (a), (5)
Application for production of third party records.
Carl Busque, for respondent.
John Gary McMahon, for applicant.
Lisanne McCullough, for Intégra Prescott-Russell children and adults.
James Murray, for Thunder Bay Children’s Aid Society.
 Charbonneau J.: — Mr. B.S. filed an application pursuant to s. 278.3 of the Criminal Code, R.S.C. 1985, c. C-46 asking the court to permit him to obtain disclosure of records compiled by the Thunder Bay District Children’s Aid Society (“Thunder Bay C.A.S.”) on J.S. and S.S. and the records compiled by Integra for Children and Adults of Prescott-Russell (“Integra”) on J.S. and S.S.
 The application describes the records requested as follow:
(i) Thunder Bay C.A.S.
(a) Disclosure of the records on J.S. in the possession or under the control of the Children’s Aid Society of the District of Thunder Bay for the period January 1, 1998 to December 31, 2000, including, but without limiting the scope of the application, the reports and notes by physicians, hospitals or other professionals working in the health care field; the notes and reports of workers responsible for J.S. and investigations relating to J.S.; and the notes and reports of psychiatrists, psychologists, social workers, counsellors and therapists.
(b) Disclosure of records of J.S. in the possession or under the control of Integra for Children and Adults of Prescott-Russell, formerly known as “Services to Children and Adults of Prescott-Russell” for the period April 1, 2000 to December 31, 2009, including, but without limiting the scope of the application, reports and notes of physicians, hospitals or other professionals working in the health care field; notes and reports of workers responsible for J.S. and investigations regarding J.S.; notes and reports on placements in foster homes or other types of residence; and notes and reports by psychiatrists, psychologists, social workers, counsellors and therapists.
(i) Thunder Bay C.A.S.
(a) Disclosure of the records on S.S. in the possession or under the control of the Children’s Aid Society of the District of Thunder Bay for the period January 1, 1998 to December 31, 2000, including, but without limiting the scope of the application, the reports and notes by physicians, hospitals or other professionals working in the health care field; the notes and reports of workers responsible for S.S. and investigations relating to S.S.; and the notes and reports of psychiatrists, psychologists, social workers, counsellors and therapists.
(b) Disclosure of records on S.S. in the possession or under the control of Integra for Children and Adults of Prescott-Russell, formerly known as “Services to Children and Adults of Prescott-Russell” for the period April 1, 2000 to December 31, 2009, including, but without limiting the scope of the application, reports and notes of physicians, hospitals or other professionals working in the health care field; notes and reports of workers responsible for S.S. and investigations regarding S.S.; notes and reports on placements in foster homes or other types of residence; and notes and reports by psychiatrists, psychologists, social workers, counsellors and therapists.
(c) The reasons in support of the application for records on J.S. are the following:
(d) The reasons in support of the application for records on J.S. are the following:
 The reasons in support of the application for records on J.S. are the following:
1. The applicant is charged with committing the following offences against J.S.: assaults contrary to section 266 of the Criminal Code of Canada; sexual interference contrary to section 151 of the Criminal Code of Canada; invitation to sexual touching contrary to section 152 of the Criminal Code of Canada; and assaults with a weapon (armed assault) contrary to section 267(a) of the Criminal Code of Canada.
2. The applicant is also charged with committing offences against S.S., the brother of J.S.
. . . . .
5. The indictment states that all counts relating to J.S. are deemed to have taken place in Thunder Bay between January 1, 1998 and May 31, 2000, but the disclosure of evidence indicates that:
(a) the applicant was not arrested until April 2009;
(b) the instant allegations all appear to have been made after J.S.’s family left Thunder Bay and settled in the community of Lefaivre;
(c) it would appear that most of the allegations of physical abuse and all the sexual allegations were made after J.S. was placed in the care of the Children’s Aid Society and the foster home of Micheline Forest.
6. At the preliminary inquiry, J.S. appeared to say that she did not speak to the Thunder Bay Children’s Aid Society, but there were reports concerning her injuries. However, there is incomplete documentation from that Society which indicates that J.S. took part in interviews with workers when she was living in Thunder Bay and J.S. did not appear to have made any allegations of abuse against her person at that time.
7. The disclosure of evidence contains incomplete documentation from the Prescott-Russell Children’s Aid Society which indicates that:
(a) J.S. spoke to workers in June 2000, but did not make any sexual allegations at that time;
(b) in September 2000 a worker allegedly spoke to J.S. about sexual abuse, but J.S. did not report such allegations at that time;
(c) it was not until November 2000 that J.S. made sexual allegations against B.S.
8. In addition to her testimony at the preliminary inquiry, J.S. participated in four video interviews, in particular on November 15, 2000, November 20, 2000, May 23, 2001 and March 7, 2007. Those videos show that the details, frequency and nature of her allegations changed, especially the sexual allegations.
9. During a break in the video interview of November 15, 2000 a discussion can be seen taking place between J.S. and the mother of the foster family. When the interview resumed, J.S. made another sexual allegation.
10. At the preliminary inquiry, J.S. allegedly testified that after she was placed in the care of the Children’s Aid Society she:
(a) underwent a medical examination confirming vaginal tears, but the disclosure of evidence appears to indicate that J.S. did not even make sexual allegations at that time; and
(b) obtained the professional services of a psychologist.
11. J.S. filled out a questionnaire in which she stated she had not suffered any injuries arising from the allegations, but that she went to see a physician to find out what had actually happened.
12. The records requested comply with the definition of “record” in section 278.1 of the Criminal Code of Canada.
13. The records requested are wholly or partly relevant to points at issue and the capacity of J.S. to testify, and will serve to:
(a) determine J.S.’s ability to recall or remember events exactly, which will be an important point at issue;
(b) determine J.S.’s credibility, which will be one of the most important points at issue;
(c) disclose all J.S.’s statements concerning the allegations, which will be of great relevance and importance in the proceeding, especially in the presentation of a full and complete defence;
(d) establish the existence of a motive for J.S.’s contradictory statements, which will be a central point in the case;
(e) provide information to explain the course of events which are the basis for the allegations alleged to have taken place nearly thirteen years ago;
(f) determine the influence of family members and the foster family, workers and other professionals on J.S.’s perceptions and memory.
14. The disclosure of the records to the applicant is essential for the presentation of a full and complete defence and will be in the best interests of justice.
15. The positive effects of the disclosure of records on the right to submit a full and complete defence will greatly exceed the prejudicial consequences for the privacy of J.S.
16. The rejection of the application would have prejudicial effects on the right to submit a full and complete defence which are much more serious than effects on the rights of J.S. to privacy and equality following disclosure of the records.
 The arguments in support of the application for records on S.S. are the same, with a few exceptions, as follows:
7. The disclosure of evidence contains incomplete documentation from the Prescott-Russell Children’s Aid Society which indicates that:
(a) S.S. spoke to workers in early June 2000, but did not appear to have made any sexual allegations or allegations of physical abuse against his person;
(b) it was S.S., in late August 2000, who first made sexual allegations relating to his sister J.S., but at that time he apparently denied having been the victim of sexual abuse himself.
9. At the preliminary inquiry, S.S. apparently said that on being placed in the care of the Children’s Aid Society he was in therapy for about a year.
 The accused B.S. is the father of S.S. and J.S. The indictment alleges that he committed assaults and sexual assaults on S.S. and J.S. between January 1, 1998 and May 21, 2000. The evidence submitted by the two parties allows me to find the existence of the following facts.
(1) The S. family, consisting of the accused, the mother D.J. and their five children, lived at various places in Thunder Bay for about two years from 1999 to 2000. In late April or early May 2000, the S. family moved to the village of Lefaivre, located in the United Counties of Prescott and Russell.
(2) While they were in Thunder Bay, the Thunder Bay District C.A.S. had to take actions concerning the S. family.
(3) Shortly after the S. family arrived in Plantagenet, Integra became involved with its life. In fact, on June 6, 2000, Integra decided to apprehend the five children in the family.
(4) The two eldest, J.S. and S.S., were placed with the same foster family.
(5) In the months that followed, the allegations which are the basis of the instant indictment were gradually disclosed to Integra by one or other of the children.
(6) Integra notified the police. In the presence of a constable from the Ontario Provincial Police, the children made statements to an Integra worker on November 15 and 20, 2000 and May 23, 2001.
(7) In May 2001, the Ontario Provincial Police sent the children’s information and statements to the Thunder Bay police, which took over the investigation.
(8) On March 7, 2007, a further statement by the two complainants was recorded by Integra in the presence of police officers from the Hawkesbury region.
(9) Unfortunately, for reasons that were not indicated to the court, the Thunder Bay police did not lay charges against Mr. B.S. until April 17, 2009.
 The evidence as a whole also indicates that there were significant variances in the sexual allegations made by the complainants against their father as time went by. These variances are apparent in the different videos. As indicated in the affidavit of Linda Foucault in support of the application, the records from the Thunder Bay C.A.S. and from Integra which the defence received from the prosecution directly indicate that there are certain variances, and possibly contradictions, regarding sexual attacks or absence of sexual attacks, according to what was said by the children to various persons concerned.
 In support of the application, Mr. MacMahon also entered in evidence extracts from the testimony by J.S. at the preliminary inquiry which appear to contain significant contradictions regarding the nature of the sexual attacks. Additionally, J.S. indicated at the preliminary inquiry that about a month after she was placed in the care of Integra she underwent a medical examination (translation) “to see if I had been sexually abused” and “they saw that it was forced and I had been torn”.
 In order to succeed on the application at bar, Mr. B.S. must meet the following requirements :
(1) meet the procedural requirements set out in s. 278.3(3) and (5);
(2) satisfy the court that the record is probably relevant to a point at issue;
(3) satisfy the court that disclosure of the record is in the interests of justice.
1. Procedural requirements
 In this regard, the applicant appears to have met most of the procedural requirements. However, the respondents objected to the lack of accuracy in the application, which does not enable the record or records to be identified as provided in para. (a) of subsection 278.3(3).
 I agree with the respondents that the application does not identify the documents with sufficient accuracy. The application in fact requests all records on the complainants under the control of either agency. In the case of the Thunder Bay District C.A.S., the period at issue is January 1, 1998 to December 31, 2000 and for Integra, from April 1, 2000 to December 31, 2009.
 Clearly these two agencies have a large quantity of records on the complainants which have absolutely nothing to do with the instant charges against Mr. B.S. Those records cover the entire range of services required by these children in all aspects of their lives. It is thus quite clear that the records compiled by child protection agencies enjoy the highest level of confidentiality. Consequently, the provincial statute on the matter gives such records the protection of special and substantial confidentiality.
 An applicant therefore may not simply request disclosure of all the records of such an agency. The applicant must provide sufficient details for the agency to be able to identify the documents requested without having to indicate in any way the nature of the various documents under its control. Such disclosure would in itself be a breach of confidentiality.
 It is clear that the applicant does not have specific knowledge of the documents under the control of the Thunder Bay C.A.S. or Integra. Accordingly, he cannot be required to identify each of the records he alleges is probably relevant with absolute accuracy. However, based on the evidence submitted in support of his application, he may give a sufficient description to identify the type or nature of the document sought. For example, he may specify the notes of interviews between a worker and the complainant at which relevant sexual assaults were discussed.
 It would be wrong to assume that this procedural requirement is just a technicality. On the contrary, it is only after the documents sought have been adequately identified that the court may decide on the basis of the evidence whether the document will probably be relevant to a point at issue, and if so whether disclosure of the record will be in the interests of justice.
 The defence did not amend its application during the oral submissions. It is true that the evidence in support of the application raises the possibility that the records may contain other documents in which the children mentioned or did not mention abuse by their father. The application remained unchanged and the request is for disclosure of all records.
 Only one specific piece of evidence was submitted as to the existence of a record. This was the testimony by J.S. that a month after being placed in the care of Integra she was examined by a physician to determine whether she had been sexually assaulted. I will return to this point in discussing the probable relevance of the records requested.
2. Whether records requested probably relevant
 The applicant did not satisfy the court that the records sought, namely all the records of the two agencies dealing with J.S. and S.S., will probably be relevant.
 Here, unlike many cases, the accused has received several documents from the records compiled by the two agencies on the complainants. The evidence in support of the application itself clearly indicates that the records disclosed by the Crown to the defence include notes on interviews by the Thunder Bay C.A.S. and the complainants, complaints received from various individuals by Integra, notes of various interviews with J.S. by Integra representatives, details of information allegedly received by Micheline Forest from J.S. about allegations of sexual abuse allegedly suffered by J.S. and notes on interviews by an Integra representative with J.S. in which the representative concluded that there was nothing to confirm such allegations.
 In addition, the defence has received a recording of all the complainants’ statements made between November 15, 2000 and March 7, 2007. The November 15 recording shows the foster mother speaking to J.S. during a break. Constable Bourgeois testified that during the break the foster mother mentioned to J.S. incidents or details which J.S. only disclosed after the break.
 What is noteworthy here is that a large number of confidential documents held by the two agencies have already been disclosed to the defence. These records as a whole, including the videos, clearly raise questions about contradictions in the testimony of the complainants and the possibility of undue influence by the foster mother.
 There is nothing in the evidence to indicate that records other than those already disclosed to the defence will probably be relevant. On the contrary, it is more likely than not, based on the evidence, that all the records that will probably be relevant have already been disclosed to the defence.
 It should be borne in mind that it was not until the summer of 2000 that the allegations surfaced. At that time, only Integra was responsible for J.S. and S.S. The Thunder Bay C.A.S. had not been involved for several months. On November 15, 2000, the allegations were forwarded to the police, who began their investigation immediately with the very first interview recorded. From there, the Integra information was sent to the Hawkesbury police, which sent it on to the Thunder Bay police. The result is that the defence has received from the Crown the relevant information contained in the Integra record.
 Consequently, the statement that there are other records in the possession of Integra that are probably relevant is simply a claim not based on the evidence. Apart from one document, what the defence is attempting is simply a fishing expedition.
 The exception is the report of the medical examination of J.S. to determine whether there were signs she had been sexually abused. The result of such an examination is probably relevant. J.S. testified that such an examination took place. Certain notes contained in the Integra records indicate that such an examination was under consideration. I am therefore satisfied that this document is probably relevant.
3. Whether disclosure of record in interests of justice
 First, I have to say that even if the applicant had identified enough other records as probably relevant, I am not persuaded that the interests of justice would be served by their disclosure to the defence. The court must here weigh the accused’s rights to a full and complete defence against the complainants’ right to protection of their privacy. In a situation in which the analysis raises a doubt, the right of the accused to a full and complete defence should be given priority.
 In the case at bar, I conclude that the evidence as a whole clearly indicates that the accused has at his disposal all the material necessary to submit a full and complete defence. There is nothing other than simple speculation to indicate that there is evidence in the records sought which he does not already have. On the contrary, the evidence indicated that the defence has already obtained a substantial arsenal to contest the central issue in this trial, namely the complainants’ credibility. He has all the information for cross-examination and for deciding which witnesses he should call in his defence. The accused is entitled to a full and complete defence, but not to an ideal defence.
 Further, disclosure of all the records of these two agencies over a ten-year period would be a serious invasion of the complainants’ privacy. It would mean exposing distinctly private aspects of the complainants’ lives to the search for a possible record that would probably not add anything to the grounds of the accused’s defence. In the circumstances of the case at bar, the complainants are entitled to have even a judge denied access to these confidential documents.
 I therefore conclude that it would not be in the interests of justice for all the records claimed by the defence to be disclosed.
 On the other hand, the report on the medical examination of J.S. raises a completely different question. The evidence was that it was prepared specifically to determine whether at the relevant time she had sustained sexual abuse. I conclude that the disclosure of such a record would be in the interests of justice. This report may contain information which is very relevant to the points at issue in the case at bar. Here, the accused’s right to a full and complete defence takes priority over the confidential nature of the record.
 I accordingly direct Integra to submit to me for review by the court all medical reports obtained by Integra directly or indirectly between June 1, 2000 and May 31, 2001, dealing wholly or partly with a medical examination of the person of J.S. to find or determine whether there were physical signs of sexual abuse.
 The registrar will deliver the Thunder Bay C.A.S. documents currently under seal in the court record to the Thunder Bay C.A.S.
 I cannot help repeating the comments I made to both counsel in court. In view of the unduly lengthy period before charges were laid and the fact that nearly all the participants live in the counties of Prescott and Russell, this trial should take place in eastern Ontario. I recommend both parties agree to this.
Application granted in part.