Best Practices where there is Family Violence (Criminal Law Perspective)
5. Pre-Trial Decisions and Procedures
In family court and child protection proceedings, the court is concerned with making decisions that will result in the best outcome for the whole family. There is an expectation of openness and mutual disclosure on the part of the parties in order to allow the court to make the right decision. In relation to proceedings involving children, decisions will be made in accordance with the over-arching principle of what is in the best interests of the child.
The focus in criminal proceedings is considerably narrower – courts are tasked with deciding whether the Crown has proved beyond a reasonable doubt that an offence has been committed. While the welfare of the child and the family may be a relevant consideration on sentencing, it plays no role in determining whether an accused should be convicted.
It is important to keep in mind this difference in approach as a case makes its way through the criminal justice system – as it will impact decisions relating to cooperation with child protection officials, information sharing, and participation in counselling or treatment programs.
5.2 Cooperating with Child Protection Authorities
In many jurisdictions, there is a policy that the child protection authorities are contacted by police or the Crown in all cases involving family violence, even where the alleged victim is not a child. The child protection agency often contacts and seeks to interview the accused. In any case where a child is the complainant, the police and/or Crown must inform the relevant child protection agency who will then likely start its own investigation (Smith, 2004: 6).
Accordingly, many if not most accused will have some interaction with a child protection agency during the course of his or her criminal court proceedings. Cooperation with these authorities is not mandatory, but in most cases is advisable.
5.2.1 The Role of the Child Protection Agency
When concerns are raised about a family’s ability to care for a child, a child protection agency may take steps to investigate the care the child is receiving. If the child protection worker determines that the child is in need of protection, the children's aid society may start a court application against the child's parents or caregivers. In Ontario, child protection services are provided by children’s aid societies (sometimes called family and child services).
The Children’s Aid Society (CAS) will initiate court proceedings where it believes that a child is in need of protection (Glass and Jain, 2007: 9). The agency has the statutory power to apprehend a child and take him or her to a place of safety pending the completion of an investigation if the agency believes that the child is at imminent risk of harm (See, in Ontario, s. 40(10) of the Child and Family Services Act, R.S.O 1990, c. C.11 (CFSA). In Ontario, where a child has been removed by the CAS, the agency must have the matter in front of a judge within five days of the apprehension.
Although procedures and steps differ in jurisdictions across the country, in general child protection proceedings move quickly. In Ontario, there may be multiple case management and settlement conferences. Where no agreement can be reached between the parties, the matter will proceed to trial.
In the course of child protection proceedings, the CAS and the child’s parent or caretaker will generally both be represented by lawyers. The court may appoint an independent legal representative for the child pursuant to s. 37 of the CFSA where the court believes a lawyer for a child is necessary to represent the child's interests in protection proceedings. The Office of the Children’s Lawyer (a branch of the Ministry of the Attorney General) provides the legal representation in these cases.
The grounds under which a child can be found “in need of protection” are set out in s. 37(2) of the CFSA. These grounds include physical, emotional and/or sexual abuse. The Act also allows the court to make a finding that the child is “a child in need of protection” if the child is at risk of suffering abuse. Where a court makes a finding that the child is in need of protection under the CFSA, a number of dispositions are available. These dispositions range from placing the child with a parent under the supervision of the CAS to making the child a permanent ward of the Crown without access to the parent.
5.2.2 Working with the Child Protection Agency
A family that finds itself involved with a child protection agency must remember the importance of being cooperative with the Society to the extent that they are able. Refusing to take steps to address the issues that lead to the involvement with the CAS will not end the Society’s involvement with the family and will likely be viewed unfavorably by a judge at a child protection proceeding (Law, 2012).
A parent who is charged with a criminal offence in addition to being involved in child protection proceedings may be hesitant to cooperate with the CAS for fear that it will have a negative impact on the criminal proceedings. This can hinder the resolution of the child protection matter. Rather than refusing to cooperate until the completion of the criminal charges, steps can be taken in the child protection context to minimize the risk of self-incrimination by an accused parent.
At the outset of the investigation the CAS will request that one or more of the parents sign consent forms for the release of items of information from third parties, such as teachers, relatives and doctors, to the CAS. While the parent should be amenable to cooperating with the CAS, the release of all such information may not be necessary for the CAS to conduct its investigation. The parent therefore ought to seek the advice of legal counsel experienced in child protection matters, who can narrow the scope of information released to the CAS without compromising the CAS’ investigation (Glass and Jain, 2007: 10).
The CAS will inevitably attempt to interview the child or children in the investigation. Steps can be taken to prevent the CAS interviewer entering a fishing expedition for incriminating information during the interview (Glass and Jain, 2007: 11). The parent can request, personally or through their counsel, that the interview not be held at the CAS office; that they be able to observe the interview; and that the interview be videotaped. At the Gatehouse facility (described in section 4.2.2), for example, there are two-way mirrors so that a parent and counsel can observe the interview. Counsel can attempt to obtain an agreement in advance as to the scope of the interview and intervene if the interviewer asks “grossly leading questions or conducts the interview inappropriately.” (Glass and Jain, 2007: 11)
The CAS will also attempt to speak to the parent directly. The parent would be wise to retain counsel at the outset of contact with the CAS and advise the CAS of his or her representation. Counsel can then become the direct contract between the CAS and the parent. Furthermore, counsel can request to be present when the CAS attempts to interview or otherwise speak with the parent.
5.2.3 Admissibility of Statements made to Child Protection Authorities
Any statement made to the CAS by an accused likely cannot be used against him or her in the criminal court proceedings unless the trial judge is convinced beyond a reasonable doubt that the statement was made voluntarily.
In criminal law all out-of-court statements by an accused person to a “person in authority” must be made freely and voluntarily. In this context, a statement to a member of the Children’s Aid Society will be admissible only if the CAS member is not a “person in authority” or the prosecution proves that the statement was made voluntarily.
The Supreme Court of Canada delineated who constitutes a “person in authority” in R. v. Hodgson and reiterated this delineation in R. v. Grandinetti. The test of who is a “person in authority” is largely subjective, focusing on the accused person’s “perception of the person to whom he or she is making the statement. The operative question is whether the accused, based on his or her perception of the recipient’s ability to influence the prosecution, believed either that refusing to make a statement to the person would result in prejudice, or that making one would result in favourable treatment.” (Grandinetti, 2005: para. 38) The test includes an objective element which is concerned with the reasonableness of the accused's belief that he or she is speaking to a person in authority.
Prior to Hodgson the Alberta Court of Appeal considered in R. v. Sweryda whether a social worker constitutes a person in authority. In Sweryda, the Court concluded that the social worker was a “person in authority” because he or she was investigating an alleged criminal act with the power to institute a prosecution against the accused person. Sweryda and Hodgson, taken together, suggest that a CAS member will constitute a person in authority when his or her role dovetails with the conventional investigatory and prosecutorial agencies of the state. Lorne Glass and Seema Jain note that in considering this issue the governing statute will be an important factor (Glass and Jain, 2007: 15-16). In particular, in Ontario consideration ought to be given to the following statutory powers granted to CAS members under the Child and Family Services Act:
- The power to apply to the court to determine whether a child is in need of protection (s. 40(1));
- The power to apply for a warrant to bring a child to a place of safety (s. 40(2));
- The power to enter without a warrant a premise, by force if necessary, to find and remove a child (s. 40(6));
- The power to call for assistance of a police officer in removing a child (s. 40(8));
- The duty to report that a child is in need of protection or may be suffering from abuse (s. 72);
- The creation of an offence for anyone who obstructs a child protection worker (s. 206(2)).
If a determination is made that the CAS worker is a person in authority, the statement will only be admissible against the accused if the court is satisfied beyond a reasonable doubt that the statement was made voluntarily.
The voluntariness test is primarily concerned with whether an accused person was able to make a meaningful choice about whether to speak to the person in authority. The court will consider all of the circumstances in determining whether the conduct of the authorities deprived the suspect of making a meaningful choice by reason of threats, inducements, oppression, coercion, trickery, misinformation, or other abuse (R. v. Oickle, 2000). Moreover, if the Crown does prove beyond a reasonable doubt that the statement was made voluntarily, the accused person’s concomitant right to silence will be deemed to have been not violated (R. v. Singh, 2007: para. 37).
Since the voluntariness test is primarily contextual, a determination of the voluntariness of a parent’s statement to a CAS member, presuming that the CAS member is deemed to be a person in authority, will be highly dependent on the circumstances.
5.2.4 Checklist for Interviews with the Children’s Aid Society
Given that the CAS is likely to pursue an investigation where a parent refuses to participate in an interview and that a negative inference can be drawn by the refusal to participate, as a practical reality, an accused parent is likely to speak with CAS investigators at some point (Law, 2012). Criminal law counsel can take the following steps to avoid, to some extent, the dangers of self-incrimination, inconsistent statements, etc. associated with providing a statement to the child protection authorities:
- Counsel should speak to the CAS in advance of the interview and find out the potential areas of questioning. The authorities may be willing to provide a detailed outline of the allegations against the client;
- Review the proposed and anticipated areas of questioning with the client in advance of the interview and obtain answers from him or her;
- Conducting a “practice interview” with the client will serve to refresh the client’s memory and allow the lawyer to assess the client’s performance;
- Counsel should press the client on suspicious statements and remind the client of the importance of telling the truth. This may reduce the possibility of the client lying or making innocent mistakes in the actual interview;
- Ensure that the interview with the CAS is recorded in some manner. It is best if the statement is video recorded. At minimum, an independent note taker should be present;
- Counsel should insist on being present for the interview;
- To assist in any argument at trial that the statement should not be admissible, counsel should ensure that the record clearly reflects that the CAS worker is a person in authority and that the client is only speaking out of a hope for some advantage (avoiding child protection proceedings) or fear of prejudice or most likely, both.
Case Study – Children’s Aid Society of Huron County v. R.G. (2003), 124 A.C.W.S. (3d) 712
R.G. and S.R.(1) have two children. In July of 2000, R.G. separated from S.R.(1) after he assaulted her. S.R.(1) was charged and later convicted of this assault and the Children’s Aid Society became involved with the family. R.G. eventually moved in with another partner. In December of 2000, a neighbour overheard R.G.’s partner abusing one of her children, S.R.(2). The child was brought to the hospital by the neighbour where a number of red welts were found on the child’s legs. As a result of those injuries, the CAS went to the mother’s home and apprehended her other child, K.R. K.R. was found to have significant injuries to the side of his face including some bleeding in the ear area. Shortly after the children were apprehended, the R.G.’s partner was charged with assaulting S.R.(2) and R.G. was charged with assaulting K.R.
R.G. denied assaulting K.R. Her evidence was that she was out shopping when the injuries occurred.
Ultimately, the partner pleaded guilty to assaulting S.R.(2). The charge against the mother regarding K.R. was withdrawn at the time of the trial in November of 2001. At that time, the mother pleaded guilty to a minor assault on S.R.(2). In the interim, however, child protection proceedings moved forward with the mother reluctant to be fully cooperative for fear that it would prejudice her in the criminal court proceedings. She made almost no progress in terms of addressing the issues that brought her children into care.
In the course of the child protection proceedings, a parental capacity assessment was ordered. At the time it was completed, the mother was still subject to outstanding criminal charges relating to the very reason that the children were apprehended. In assessing the efficacy of the assessment, Justice Glenn noted:
In these circumstances, exercising a right to remain silent ran contrary to the assessor’s need to obtain information on how the children came to be harmed. Speaking frankly, however, it could have risked having these statements introduced at the criminal trial as a confession.
Dr. Walter J. Friesen, Ph.D., C. Psych., completed the parental capacity assessment of the mother and the father in March of 2001. In this assessment, the mother was strikingly defensive in her responses. She portrayed herself as an exemplary citizen, an excellent parent and a person without psychological, interpersonal or moral vulnerabilities. One will never know how different this aspect of the assessment might have been had her criminal matters already been resolved and the protection issues already determined by the court.
The fact that the society felt that she misrepresented herself to the assessor has haunted her throughout the rest of the child protection proceedings since it believed that she had poor insight into her failings as a parent. Her apparent lack of insight was one of the important basis on which the psychologist determined that her prognosis for change was poor.
In child protection proceedings, the best tack a parent can take generally involves open discussion of parenting shortcomings and co-operation with the child protection authorities. The dynamics of a criminal case, however, will sometimes dictate the opposite approach. Justice Glenn makes two suggestions for ameliorating this situation and preventing child protection proceedings from coming to a stand still during the resolution of parallel criminal charges:
First, criminal counsel must become aware of the potential cost of delay and silence in the face of companion protection proceedings. Second, all parties should explore the possibility of holding a combined settlement conference and criminal pre-trial in an effort to resolve the shared facts between each case. If the resolution of a protection issue is delayed because it is tied to a criminal charge, this issue should be flagged for the next status review proceeding and resolved as soon as possible.
5.3 Use of Evidence from Family Law Proceedings in Criminal Proceedings
5.3.1 The Deemed Undertaking Rule
During a family law proceeding, the parties are entitled to specific items of disclosure under provincial family law legislation. In Ontario, for example, the Rule 20 of the Family Law Rules affords each party the opportunity to question the other side (on consent or with a court order); Rule 13 provides for the disclosure of each party’s financial statements; and Rule 19 governs document disclosure. Rule 20(24) replaces the common law “deemed undertaking” rule and binds the parties and their lawyers with an undertaking to use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained.
The deemed undertaking rule (and its statutory counterparts) was considered by the Supreme Court in Juman v. Doucette. The Court noted that statutorily compelled discovery is an invasion of a person’s “private right to be left alone with your thoughts and papers, however embarrassing, defamatory or scandalous.” (Juman v. Doucette, 2008: para. 24) At the same time, the Court recognized that a proper discovery is necessary to “prevent surprise or ‘litigation by ambush,’ to encourage settlement once the facts are known, and to narrow issues even where settlement proves unachievable.” The Court further noted that a party to litigation who has “some assurance that the documents and answers will not be used for a purpose collateral or ulterior to the proceedings in which they are demanded will be encouraged to provide a more complete and candid discovery.” (Juman v. Doucette, 2008: para. 26) Accordingly, the Court concluded that “unless a statutory exemption overrides the implied undertaking, the onus will be on the person applying for the exemption or variation to demonstrate on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy, protection against self-incrimination, and the efficient conduct of civil litigation.”
The Family Court Rules, O. Reg. 383/11 specifically Rule 20(25), provides four limited exceptions to the undertaking:
- the person who gave the evidence consents;
- the evidence is filed with the court, given at a hearing or referred to at a hearing;
- the evidence is used to impeach the testimony of a witness in another case; or
- in a later case between the same parties or their successors, if the case in which the evidence was obtained is withdrawn or dismissed.
Accordingly, pursuant to Rule 20(25)(b) and (c) any affidavit or application filed with the family court can be used in the criminal proceedings. So, for example, a complainant can be cross-examined by the accused or his lawyer in respect of affidavits filed in support of emergency motions for access, support or exclusive possession of the home that disclose information in relation to the allegations forming the base of the criminal trial. Family law counsel must ensure that complainants understand the importance of consistency with the statements made to the police in relation to these allegations. False or misleading information, especially in relation to ex-parte motions, are grounds for setting the order aside. Moreover, any inconsistencies or falsehoods contained in the affidavits will likely become the focus of cross-examination of the complainant should the criminal charges proceed to trial.
Similar caution should be exercised by accused. Because evidence filed or utilized in family law proceedings is subject to being produced in criminal proceedings, family law counsel should consider asking criminal counsel to review affidavits before they are filed with the court. This practice ensures consistency and comfort with the level of disclosure being made in the family court proceedings.
5.3.2 Protection from Self-Incrimination
The Supreme Court of Canada recently held, in R. v. Nedelcu,that compelled testimony provided in a civil proceeding is admissible against an accused person in a criminal trial, for the purpose of challenging his or her credibility where the evidence is not “incriminating.” In that case, Mr. Nedelcu and the victim worked together. One day after work, Mr. Nedeluc took the victim for a ride on his motorcycle. The victim was not wearing a helmet and was ejected from the back of the bike when the vehicle crashed. The victim suffered permanent brain damage. Mr. Nedelcu was charged with dangerous driving and impaired driving causing bodily harm. He was also sued in a civil action by the victim and his family. He was examined for discovery as part of those proceedings. In discovery, he testified that he had no memory of the events that day from 5pm to the following day at 11am when he woke up in hospital. Fourteen months later at his criminal trial, however, he gave a detailed account of the accident and the events preceding it. He testified that he recalled about 90 to 95 percent of what occurred the day of the accident. The Crown sought leave to cross-examine the respondent on his discovery evidence. A voir dire followed and the trial judge ruled that the discovery evidence could be put to the respondent for the purpose of impeaching his credibility.
The Court of Appeal allowed Mr. Nedelcu’s appeal. Citing the Supreme Court’s decision in R. v. Henry, the Court concluded that s. 13 of the Canadian Charter of Rights and Freedoms and s. 5(2) of the Canada Evidence Act prohibit an accused’s compelled evidence in a civil proceeding from being used at the accused’s subsequent criminal trial for any purpose.
The Crown has appealed the decision in Nedelcu to the Supreme Court of Canada. The Crown argues first, that civil discovery evidence should not be considered “compelled” for the purpose of s. 13 of the Charter; and second, that even if the evidence was compelled, the Crown should be entitled to use that evidence to impeach the credibility of the accused at a criminal trial.
The Supreme Court of Canada found that evidence given in a discovery in a civil proceeding is “compelled” and that “incriminating evidence” may not be used for any purpose in a criminal proceeding. Where, however, as in Nedelcu, the evidence is not “incriminating,” in the sense that it does not prove or assist in proving an element of the offence for which the witness is being tried, it can be used to impeach the witness’ testimony. More specifically, the Court held that the use of non-incriminating discovery evidence for impeachment does not trigger the application of s. 13.
5.4 Use of Counselling and other Support Services in Criminal Proceedings
As part of the integrated approach to cases of domestic violence in the criminal justice system, complainants and accused are meant to have access to a variety of support services and treatment options. This section explores concerns as to when and what information disclosed during participation in these services may be disclosed or produced either in the criminal or family law proceedings.
5.4.1 Third Party Record Applications
The Crown has a constitutional obligation to provide disclosure to an accused. The Crown is obligated to produce to the defence all relevant, non-privileged information in its possession or control, whether or not the Crown intends to introduce the information as evidence, and whether or not the information is exculpatory or inculpatory (R. v. Stinchombe, 1991).
In some instances, an accused person will want to obtain information that falls outside the scope of the Crown’s disclosure obligations, for instance, because it is not in the hands of the Crown. Medical, psychiatric, therapeutic, educational, and child welfare records are all examples of materials an accused person may seek in the course of criminal proceedings.
Such records may be useful to an accused in a number of ways. They may provide prior inconsistent statements about the criminal allegations that can be used to impeach the credibility of the complainant. They may reveal evidence of a motive to fabricate. Or they may establish a pattern of false allegations on the part of the complainant.
However, because of the conflicting interests at stake when an accused wishes to delve into the private and potentially very personal records of a complainant or witness, Parliament and the Supreme Court of Canada have set out specific rules governing the procedure for the production of third party records in the course of a criminal proceeding.
In R. v. O’Connor, the Supreme Court set out a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown. A similar, but more restrictive regime set out in ss. 278.1 to 278.91 of the Criminal Code governs the production of records where the accused is charged with a sexual offence and the records sought contain personal information over which there is a reasonable expectation of privacy (commonly referred to as the Mills regime).
22.214.171.124 The O’Connor Regime
The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the record holder to attend court with the targeted records or materials.
The accused must also bring an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant to the his or her trial. Notice of the application must be given to the prosecuting Crown, the record holder and the person who is the subject of the records (the complainant or witness).
The application is brought before the judge seized with the trial – though the application will often be brought before trial commences – who will determine whether production should be compelled in accordance with a two-stage test that was established by the Supreme Court in O’Connor. First the accused person must satisfy the judge that the record is “likely relevant” to the proceedings. The judge may then order production of the record for the court’s inspection. At the second stage, with record in hand, the judge determines whether, and to what extent, production should be ordered to the accused.
In O’Connor and subsequent cases, the Supreme Court has explained that the burden of establishing “likely relevance” at the first stage of the application is a significant but not onerous hurdle. Under the O’Connor regime, likely relevance means 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” (O’Connor, at para. 22 (emphasis deleted)). An “issue at trial” here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case” (O’Connor, at para. 22). At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position (R. v. McNeil, 2009: para. 33).
Likely relevance has “a wide and generous connotation” and includes all information that may reasonably be thought to assist the accused in the exercise of his right to make full answer and defence. At this stage of the inquiry, the only issue is whether the information is “likely” relevant and considerations of privacy should not enter the analysis. (R. v. O’Connor, 1995: para. 24; R. v. McNeil, 2009: paras. 32 and 44)
If likely relevance is demonstrated by the accused, the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production should be ordered to the accused. The following, non-exhaustive, list of factors may be considered in determining whether or not to order production to the accused (R. v. O’Connor, 1995: para. 31):
- the extent to which the record is necessary for the accused to make full answer and defence;
- the probative value of the record in question;
- the nature and extent of the reasonable expectation of privacy vested in that record;
- whether production of the record would be premised upon any discriminatory belief or bias”; and
- the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question.”
More recently, in R. v. McNeil, the Supreme Court has explained that once a court has found that the records sought are relevant to the accused’s case, the second stage balancing exercise is “easily performed.” Justice Charron held:
In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this way: If the third party record in question had found its way into the Crown prosecutor’s file, would there be any basis under the first party Stinchcombe disclosureregime for not disclosing it to the accused? (R. v. McNeil, 2009: para. 42)
126.96.36.199 The Mills Regime
Parliament responded to the Supreme Court’s decision in O’Connor by enacting a statutory regime to deal specifically with the procedure to be followed for the production of third party records in cases involving allegations of sexual offences. The Supreme Court upheld the constitutionality of the legislative scheme in the 1999 decision of R. v. Mills.
Notably, the statutory regime enacted by Parliament for sexual offences applies to all records over which a complainant or witness has a reasonable expectation of privacy, whether those records are in the possession or control of a third party or of the prosecutor in the proceedings. Absent an express waiver from the complainant or witness to whom the record relates, production can only be made on application to the court and in accordance with the balancing test set out in the Code provisions. As the Supreme Court has explained, this “statutory regime therefore constitutes an exception to the common law regime of Crown disclosure under Stinchcombe.” (R. v. McNeil, 2009: para. 21)
The Mills regime reflects the heightened privacy interests presumed to exist in the records targeted by the statutory regime. It maintains the two-stage application procedure set out in O’Connor but differs significantly “in that much of the balancing of the competing interests is effected at the first stage in determining whether production should be made to the court for inspection.” (R. v. McNeil, 2009: para. 32)
Sections 278.3 to 287.7 mandate a multi-stage procedure:
- First the accused must make a written application for production to the trial judge. Section 278.3(3) provides that a record may be produced if it is relevant to an issue at trial or to the competence of a witness. Section 278.3(4) lists a series of “mere assertions” which, by law, cannot establish “likely relevance.” It is not sufficient, for example, for the accused to assert that the record relates to the incident that is the subject-matter of the proceedings or that the record may disclose a prior inconsistent statement of the complainant or a witness.
- The application must be served on the prosecutor, the person in control of the record and the complainant or witness to whom the records relate.
- At the same time, the accused must serve a special subpoena on the record holder. This form of subpoena notifies the person that the record does not need to be disclosed to any party or brought to court until a judge has made an order for production.
- At the first stage, an in camera hearing is held in which a judge determines whether the record custodian should be ordered to produce the record to the court for review. The judge may order production if it is established that “the record is likely relevant to an issue at trial or to the competence of a witness to testify,” and production of the record is “necessary in the interests of justice.” (s. 278.5(1)) The test to be applied by the trial judge is set out in s. 278.5(2). In general terms it requires the judge to consider the accused’s right to make full answer and defence as well as the privacy and equality rights of the person to whom the records relate. The judge is also directed to consider broader societal concerns including society’s interest in encouraging complainants to obtain treatment.
- If the judge decides that the record should be produced to the judge, the court must then decide whether to disclose the record to the accused. Generally, this determination will be made by the judge in the absence of the parties. However, the judge may hold an in camera hearing if it will assist in making the determination. The test for determining whether to order disclosure is set out in s. 287.7(1) and (2) and involves the application of the same factors that the judge applied under s. 278.5. The judge is required to give reasons for his decision.
- Where the judge decides that a record should be produced to the accused, subsection 278.7(3) permits the judge to impose conditions on the disclosure to protect the interests of justice and the privacy and equality of the complainant. For example, the judge may require that the record be edited.
The courts have made clear that before the test of “likely relevance” will be met, an accused must do more than demonstrate that a complainant or witness has spoken to a counselor or doctor about incidents underlying the criminal charges faced by the accused. Instead, 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.” (R. v. Batte, 2000: para. 72)
188.8.131.52 Resisting Defence Applications for Production
Where an application for third party records is made by an accused person, the witness or complainant who is the subject of the record should be aware that, like the record holder, he or she is entitled to appear and make submissions at the hearing of the application. They are not compellable witnesses and no order for costs may be made against a record holder, complainant or witness in respect of their participation at the hearing (s. 278.4).
Nevertheless, financial barriers may discourage a complainant from retaining independent counsel to represent his or her interests on the application. State funding for independent counsel for complainants and witnesses on a third party records application differs by province. Legal Aid Ontario has developed a program whereby financially eligible complainants in sexual assault cases whose records are sought can receive funding to obtain advice and assistance from counsel.
Complainants or witnesses considering retaining counsel in relation to a third party record application should be aware that the Crown prosecutor represents the interest of the state and the public – not the complainant. At times the interests of the Crown may differ from the record holder and/or the individual to whom the records refer. It is important for a complainant to understand that Crown counsel is not his or her lawyer.
5.5 Use of Child Protection Files in Criminal Proceedings
The contents of CAS files may be of considerable interest to an accused involved in a criminal trial. The legal principles governing the disclosure and production of those files will depend on the manner in which the investigation unfolded.
5.5.1 Joint CAS and Police Investigations
Where there is a joint CAS and police investigation (e.g. joint interview conducted by the police and CAS of the child and the accused), the CAS investigation file will likely be considered within the control of the Crown and subject to the accompanying disclosure requirements whether the offence is governed by the Mills or O’Connor regime. Even in cases of sexual offences, the child production records will not fall within the statutory scheme set out in s. 278.1 to s. 278.8, if the records are found to be made by “persons responsible for the investigation… of the offence.”
5.5.2 CAS Files as Third Party Records
Where the CAS and the police have not conducted a joint investigation and the Crown is not in possession of the child protection file, the CAS materials will be considered a “third party record.” It is not uncommon for an accused charged with an offence involving allegations of abuse of a child to bring an application to obtain production of the child protection file. This file may include investigative notes, videotaped interviews, supervision notes, statements from the child, doctors, teachers, and extended family. The file may also include medical, psychological and educational records.
The production of child protection files is governed by the statutory and common law rules (the Mills and O’Connor regimes) described in the section above and the determination of whether to produce the records to an accused must take into account the high expectation of privacy held in respect of this sort of record. Children may be under a legal compulsion to attend at CAS, they are likely unfamiliar with child protection and criminal proceedings, they are encouraged to communicate highly personal and private information to child protection authorities and they are assured of the confidentiality of the information provided. Courts have also noted the vulnerable position of children who become wards of the CAS and the potentially therapeutic nature of the relationship between the child and CAS.
In R. v. Mills, the Supreme Court held that sensitivity to equality and privacy interests is required in the context of third party record applications to ensure that individuals whose lives are heavily documented are not subject to wrongful scrutiny. This concern is particularly relevant in the context of children in the care of a child protection agency (R. v. Mills, 1999: para. 92)
Where the records sought by the accused relate to a child protection file, the relevant Children’s Aid Society which is the holder of the records, will have standing at the hearing. The primary role of counsel for CAS is to “educate the Court regarding the privacy interests at stake, and the effect that production may have on their ability to meaningfully assist children in need of protection if confidentiality is not assured.” (Mandhane, 2007: 4). The child who is the subject of the records sought is also entitled to be represented by independent counsel.
5.5.3 CAS Files in the Possession of an Accused
An accused may have received disclosure of CAS files in the course of a child protection proceeding. Even in this type of case where the accused has already obtained information in a child protection file, that material will not automatically be admissible in criminal proceedings. In R. v. T.C., the Ontario Court of Appeal upheld the trial judge’s decision not to allow the accused to cross-examine the complainant on a report prepared by a social worker for the purpose of child protection proceedings. The complainant had received counselling as a result of her complaint of sexual abuse by the accused. There was no suggestion that the accused did not have lawful possession of the report.
Nevertheless, the Court of Appeal held that the trial judge was right to exclude the evidence on the basis that its prejudicial effect substantially outweighed its probative value. As the trial judge found, the report had only slight probative value. Most of the matters upon which the accused sought to cross-examine the complainant, such as her animus towards him, had already been fully disclosed through other means, such as her statements to the police and cross-examination at trial. On the other hand “the use of the report in these proceedings did have a substantial prejudicial effect in distorting fact finding and interfering with an important therapeutic relationship.” (R. v. T.C., 2004: paras. 29-30)
5.6 Use of an Accused’s Counselling Records
Participation in counselling or other services may also raise areas of concern for an accused person. As described above, the Supreme Court of Canada has held that statements made in the course of discovery testimony in a civil action are “compelled” and therefore cannot be used against an accused person at a subsequent criminal trial where they incriminating. The protection against self-incrimination does not apply, however, where the statement of an accused is not compelled. For that reason, utterances made by an accused during marital counselling, for example, may be admissible against him or her during criminal proceedings.
5.6.1 Case Study - R. v. Pabani (1994), 89 C.C.C. (3d) 437 (Ont. C.A.)
The case of R. v. Pabani provides an example of how statements made in the course of marital counseling can be introduced at a later criminal trial. Mr. Pabani was convicted of the murder of his wife. On appeal, he argued that statements made in the course of counseling sessions intended to assist he and his wife to reconcile should not have been admitted at trial. The Court of Appeal did not accept that argument:
In June of 1988, the wife moved out of the matrimonial home. Efforts were made, however, to mend the broken marriage. Through the mediation of a mutual friend, Muntaz Merali, the appellant and the deceased agreed to meet in the presence of their priest to discuss the future of their relationship. The priest was Nazim Ali Hirani who occupied the office of Moog, the most senior position of a priest in the Ismaili religion. His wife, Yasmin Hirani, also occupied a high religious position in the Ismaili mosque.
Three meetings took place with the Moog and Mrs. Hirani at the Hirani home. Throughout, the wife placed four terms as pre-conditions to her return: first, the appellant would have to agree to cease the violence, on this she was adamant; second, the payment of the money owed by the appellant to his father-in-law would have to take place; third, the deceased's social insurance number would have to be returned to her; and fourth, the appellant's family would have to agree to stop speaking swahili in the wife's presence because this was a language she did not understand. The appellant agreed to all of these conditions. He implicitly conceded that there had been violence in the marriage, and although it was not discussed in great length during the meetings with the Moog, the appellant pledged to discontinue this behaviour. The appellant had previously admitted to Merali that there had been violence in the relationship, but said that his wife had made too much of it.
The content of these meetings was allowed as evidence during the trial of the appellant. Defence counsel objected to the admission of this evidence, particularly the appellant's implied admissions of violence; it was, counsel submitted, privileged information, divulged pursuant to an attempted marital reconciliation. Defence counsel submitted that both the Divorce Act, 1985, S.C. 1986, c. 4 (now Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)), and the common law created a privilege for such discussions in order to encourage full and frank disclosure during reconciliation. This privilege had not been waived by the appellant, and in the submission of his counsel, the contents of these privileged conversations ought not to have been admitted at trial. Additionally, defence counsel had argued that the statements fulfilled the four conditions for the establishment or recognition of privilege abstracted from the cases by Wigmore, Evidence in Trials at Common Law, McNaughton rev., vol. 8 (Toronto: Little Brown, 1961), para. 2285 and quoted and adopted by Spence J. in Slavutych v. Baker,  1 S.C.R. 254 at p. 260, but this argument was not made on appeal.
The trial judge found as a fact that at the time of the admissions by the appellant, Muntaz Merali and the Hiranis were acting in the course of marital reconciliation, and in particular that Merali was facilitating the reconciliation of the marriage by acting as a conduit between the couple during their marital complaints. He was satisfied, as well, that the admissions of the appellant as to violence in the marriage, money problems, difficulties with the appellant's family and other minor problems, were made in confidence. Nonetheless, the trial judge found that the privilege invoked by the defence did not bar the admission of the evidence in question. There were no divorce proceedings initiated at the time these conversations took place and the Divorce Act could not be invoked. Additionally, Then J. held that it was not the intention of Parliament to allow this privilege to shield an accused from criminal proceedings. Similar reasons led the trial judge to deny the applicability of a common law privilege.
The trial judge’s decision was upheld by the Court of Appeal. The Court held that s. 10(5) of the Divorce Act, which provides that “evidence of anything said or of any admission or communication made in the course of assisting spouses to achieve a reconciliation is not admissible in any legal proceedings,” only applies where the statements were made in a divorce proceedings and to a person nominated by the court under s. 10(4) to assist the spouses to achieve reconciliation.
5.6.2 Participation in “PARS”
Where the charge arises from an allegation of domestic violence, the Crown will often insist that the accused complete a Partner Assault Response (PARS) program before withdrawing the charge (usually accompanied by the accused signing a peace bond). PARS is a counseling and education service offered by various community-based agencies. It is a 16-week program that “gives offenders the opportunity to examine their beliefs and attitudes towards domestic abuse, and to learn non-abusive ways of resolving conflict.”
PARS is designed for individuals who have assaulted their partners and the program requires that participants admit responsibility for their actions. Before being accepted into the program, individuals are often required to sign a form acknowledging that their behaviour caused their partner to be afraid. These requirements may cause difficulty for clients who specifically deny the allegations forming the basis of the charge and are agreeing to enter a peace bond as a way of expeditiously resolving the criminal charges. As is discussed further below, in section 184.108.40.206, entering into a peace bond may itself be considered an acknowledgement of wrongdoing in parallel family court proceedings.
5.7 Use of the “Crown Brief” in Family Law and Child Protection Proceedings
A litigant in a family law matter or child protection proceeding may seek to obtain the materials in a “Crown brief” – which contains the materials disclosed by the Crown to an accused person during the course of a criminal matter.
5.7.1 The General Rule – P.(D.) v. Wagg
The ability of a family law litigant or the CAS to obtain a Crown brief is governed in large part by the principles articulated in P.(D.) v. Wagg, 2004.
In Wagg,the Court of Appeal for Ontario held that so long as there is a law which empowers a litigant to seek the production of materials from the opposing party, that litigant can request the Crown’s brief. Before production of the brief is made, notice must be given to the appropriate authorities, namely the Attorney General and the relevant police service (Wagg, 2004: para. 17). If the appropriate authorities consent to the production of the materials, the materials can be produced to the requesting party. If the appropriate authorities do not consent, a motion can be brought to a Court to adjudicate the production request (Catholic Children's Aid Society of Toronto v. T.K., (2004): paras. 36-40). In its adjudication the Court will examine whether some of the documents are subject to privilege or public interest immunity, and whether disclosure would be in the public interest. The court will consider “whether there is a prevailing social value and public interest in non-disclosure that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information.” (Wagg, 2004: para. 17)
Generally, information that was used in open court during a criminal proceeding should be disclosed, with potential exceptions for materials where privacy interests are particularly high – for example, private records of sexual assault complainants or confidential medical records (Addario, 2011).
The production of materials in a Crown brief in a civil matter raises the vexing issue of how to treat evidence which has been obtained in violation of one of the litigant’s Charter rights. Indeed, in Wagg statements in the Crown’s brief were held to be inadmissible at the criminal trial because the criminal trial judge ruled that the admission of these statements would bring the administration of justice into disrepute. Rosenberg J.A. stated in Wagg that this type of evidence ought to be produced to the requesting party in the civil matter, presuming, of course, that the evidence satisfies the requisite degree of relevance for production. The trial judge in the civil matter would then determine whether the admission of this evidence would bring the administration of justice into disrepute in the context of a civil trial. The civil trial judge must have particular regard to the “effect of excluding the evidence on the administration of justice bearing in mind, for example, that the plaintiff played no part in the Charter violation and that she may require the evidence to assist her in proving her case.” (Wagg, 2004: 69)
5.7.2 Information Sharing Between Police Services and Child Protection Agencies
220.127.116.11 Joint Protocols
The circumstances giving rise to an investigation by a child protection agency often also give rise to a criminal investigation. In light of this overlap, it makes sense that police and child protection agencies would cooperate in order to 1) obtain all relevant information; 2) protect the integrity of the investigation process; and 3) relieve the burden on the children involved. With these goals in mind, protocols have been developed in many jurisdictions in Canada to guide joint investigations by police and child protection agencies (Murphy, 2007: 1).
These protocols outline best practices for joint investigations. They provide guidance on conducting the initial interview with the child and alleged abusers and any examination of the child by medical professionals. They also generally set out expectations in regard to ongoing communication between the police and the CAS during the course of the criminal and child protection proceedings that follow. The protocol for Kingston, for example, recommends that the CAS and the police discuss what conditions of release would be appropriate if the accused is granted bail in the criminal proceedings. Following the bail hearing, the protocol recommends that police obtain a copy of the recognizance of bail and provide it to the CAS. If a child protection worker notes any breach of bail, the police can be contacted immediately (Child Abuse Protocol for Kingston and Frontenac, 2009).
The protocols may also set out expectations in relation to communication between child protection workers and the Crown prosecutor. For instance, the Kingston protocol provides that where the CAS believes that release conditions should be amended to allow for interaction between the child and the accused, the child protection worker, the police officer and/or assigned Crown counsel will discuss the matter before taking any steps to allow for access (Child Abuse Protocol for Kingston and Frontenac, 2009: 34)
Despite the existence of these joint protocols, according to Helen Murphy of the Catholic Children’s Aid Society (CCAS) of Toronto, “in the information-sharing process between the CAS and the police, the CAS sometimes feels like the disadvantaged partner in a bad marriage.” According to Ms. Murphy, who is Chief Counsel at CCAS Toronto:
The prevailing perspective amongst members of the police services seems to be that what’s yours is ours, and what’s ours is ours, and you can’t have it. CAS counsel often find themselves presented with a situation wherein the police expect to receive any information in the Society’s possession that may be relevant to the criminal investigation, and, at the same time, are not prepared to provide any information that the police may have that is also relevant to the child abuse investigation (Murphy, 2007: 2).
The concern from the police perspective is often that untimely disclosure of information to the CAS may compromise the police investigation and the prosecution of criminal charges. This concern arises, in part, because the criminal proceedings and child protection proceedings are unlikely to proceed at the same pace. Information provided to the CAS by police may be disclosed to the accused parent in the course of child protection proceedings that are statutorily mandated to proceed to court very quickly, particularly where a child has been apprehended. Ms. Murphy suggests that resistance to information sharing in these circumstances can often be resolved through discussions between counsel for the CAS and counsel for the Crown. Such discussions, however, require that a Crown is assigned to the criminal matter at an early stage of the proceedings (Murphy, 2007: 3). This may not occur as a matter of course in all jurisdictions.
18.104.22.168 Motion for Production
Like the CAS, Counsel at the Office of the Children’s Lawyer will at times require information in the hands of the police in order to make appropriate recommendations as to custody and access and to adequately represent children in child protection proceedings. Counsel at the OCL, Caterina Tempesta, indicates that there is generally little resistance from the police services to providing criminal records and occurrence reports in respect of a parent. However, where the records sought by the OCL are part of an ongoing criminal investigation, counsel for the OCL will typically have to bring a Wagg application. OCL counsel will also be involved with, and often supportive of, Wagg applications brought by the CAS (Tempesta, 2012).
Pursuant to ss. 74(2), (3) and (3.1) of the Child and Family Services Act a child protection agency has the power to bring a motion for the production of a Crown’s Brief. Section 74 enables the agency to apply at any time for production of a record that “may be relevant” to the child protection proceedings.
Opposition to these applications most frequently comes from the Attorney General. In Children’s Aid Society of Algoma v. D.P., 2007, for example, the Children’s Aid Society was seeking records of all police investigations, probation, and correctional services records involving the parents in a situation where domestic abuse was an outstanding issue. The Attorney General for Ontario intervened on behalf of itself, the various police services, probation and parole services and correctional services in order to prevent the disclosure of these records to the agency. The parents took no position in respect to the request for those records. The position of the Attorney General was that it had an obligation, because of the decision in Wagg, to protect the privacy of the witnesses and others whose names appeared in the records sought by the agency.
In Children’s Aid Society of Algoma v. D.P., the Court held that pursuant to this legislation, materials in a Crown brief which are relevant to the child production proceedings will, in most cases, be produced to the CAS. The Court noted that it was required to balance privacy interests, public policy in maintaining the integrity of criminal investigations, the importance of the information to the Society and to the parents and children implicated in the proceeding. In balancing those interests, the Court noted that “individuals who give police information that raises concerns about the wellbeing of a child, should expect that that information will be transmitted to a children's aid society, as police officers are required to report reasonable suspicions that a child may be at risk to a children's aid society.” (Children's Aid Society of Algoma v. D.P., 2007: para. 21) Indeed, section 72 of the Child and Family Services Act requires any person to report child abuse or similar harm to the CAS.
With regard to safeguarding the content of the information in the Crown brief, the Court held:
While there may be records which are exceptionally sensitive and touch upon intensely private matters and should be protected from disclosure even to [a] children's aid society, on the ground that they are of marginal utility to an investigation, in most cases production of relevant police records to a children’s aid society will not undermine the reasonable expectations of privacy of a third party referred to in those records (Children's Aid Society of Algoma v. D.P., 2007: para. 27).
In some circumstances, the privacy interests of a third party may require that certain personal or otherwise private information be redacted from the Crown brief prior to production of the documents (Children's Aid Society of Algoma v. D.P., 2007: para. 27-29).
Counsel for the CAS and the OCL confirm that applications brought pursuant to s. 74 of the CFSA are generally successful but express concern about the time and expense involved for all parties. These concerns mirror issues flagged by Justice Rosenberg in his decision in Wagg. Justice Rosenberg acknowledged that the procedure outlined in Wagg is not perfect. The requirement of notifying the appropriate authorities in order to make a production request and the possible requirement of an interlocutory procedure creates delay and cost to an already expensive and backlogged litigation process (Wagg, 2004: para. 50). Rosenberg J.A. hoped aloud in Wagg that most production requests would be resolved on consent without court intervention: “I would expect that the parties and the state agents could usually agree to disclosure of the materials in many circumstances. Where the party in possession of the Crown brief has access to the materials, fairness will generally dictate that they be produced to the other side.” (Wagg, 2004: para. 51) As well, the parties “should agree to produce any information in the Crown brief that was used in court in the course of the criminal prosecution, subject to some interest of superordinate importance, such as private records of sexual assault complainants or confidential medical records.” (Wagg, 2004: para. 52)
 Manitoba and Prince Edward Island have also enacted rules governing when relief should be given against implied or “deemed” undertakings. See Queen’s Bench Rules, M.R. 553/88, r. 30.1 (Manitoba) and Rules of Civil Procedure, r. 30.1 (Prince Edward Island).
 Bill C-53, An Act to amend the Criminal Code (mega-trials) (short title: Fair and Efficient Criminal Trials Act), was introduced and received first reading in the House of Commons on 2 November 2010. The bill died on the Order Paper when the 40th Parliament was dissolved on 26 March 2011. The Act would amend the Criminal Code to allow for the appointment of a case management judge who could, among other things, hear disclosure and production applications.
 For discussion, see Saadia Dirie, O’Connor/Mills Survey Report: Draft Client Satisfaction Evaluation (Legal Aid Ontario, 2002) at 5, as cited in Lisa Addario, Six Degrees from Liberation: Legal Needs of Women in Criminal and Other Matters (Ottawa: Department of Justice, 2002) at Chapter Three, “Women as Witnesses, Complainants and Third Parties in Cases of Intimate Violence and Sexual Assault”.
 See, e.g., R. v. Jeanveau, 2007, R. v. L.G., 2003 and R. v. Hudson, 2001.
 The legislative authority governing disclosure and production in child protection proceedings varies by province. See, e.g. Children’s Act, R.S.Y. 2002, c. 31, ss. 119(1)(c) and 119(3) in the Yukon; Child Youth and Family Enhancement Act, R.S.A. 2000, c. C-12, s. 108(1)(b) in Alberta; Child Family and Community Services Act, R.S.B.C. 1996, c. C. 46, s. 65(1) in British Columbia; Child and Family Services Act, C.C.S.M. c. C.80, s. 4(2)(b.1) in Manitoba; Youth Protection Act, R.S.Q. P.34.1, s. 45 in Quebec; Family Services Act, S.N.B. 1980, c. F-2.2, s. 31(2.6) in New Brunswick; Children and Family Services Act, S.N.S. 1990, c. 5, s. 26(1) in Nova Scotia; Child Protection Act, R.S.P.E.I. 1988, c. C-5.1, ss. 12(3)(k) and 12(4) in Prince Edward Island; and Child, Youth and Family Services Act, S.N.L. 1998, c. C-12.1, ss. 20(1) and 20(2) in Newfoundland.
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