



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the
Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted
in
    any way,
in proceedings in respect of

(a)
any of
the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read
at any time
before
    the day on which this subparagraph comes into force, if the conduct alleged
    involves a violation of the complainants sexual integrity and that conduct
    would be an offence referred to in subparagraph (i) if it occurred on or after
    that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
in respect of
the offences referred to in paragraph
    (1)(a) or (b), the presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to
make an application for
the
    order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings
in respect of
an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice may make an order
    directing that any information that could identify the victim shall not be
    published in any document or broadcast or
transmitted
    in any way
.

(2.2) In proceedings
in respect of
an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to
make an
    application for
the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
in respect of
an offence under section 163.1, a
    judge or justice shall make an order directing that any information that could
    identify a witness
who is
under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
transmitted in any way
.

(4)     An order made
    under this section does not apply
in respect of
the
    disclosure of information
in the course of the
    administration
of justice when it is not the purpose of the disclosure
    to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every
    person who
fails to comply with
an order made
    under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
    offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who
fails
    to comply with
the order, the publication in any document or the
    broadcasting or transmission
in any way
of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.C., 2021 ONCA 401

DATE: 20210610

DOCKET: C67856

Fairburn A.C.J.O., Jamal and
    Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.C.

Appellant

Geoff Haskell, for the appellant

Samuel Greene, for the respondent

Heard: October 26, 2020

On appeal from the conviction entered by
    Justice J. Christopher Corkery of the Superior Court of Justice, on August 1,
    2019, and from the sentence imposed on October 17, 2019.

Jamal J.A. (dissenting):

A.

introduction

[1]

The appellant, K.C., was convicted following
    trial by judge alone of sexual assault and sexual interference of two young sisters,
    D. and S., and of invitation to sexual touching of D. The abuse was alleged to
    have occurred between February 2008 and August 2015, when the complainants were
    in the care of the appellant and his wife, J.C. The appellant was sentenced to
    five years in prison.

[2]

The appellant now appeals his conviction and seeks
    leave to appeal his sentence. On the conviction appeal, he submits that the
    trial judge erred by dismissing his application for third-party records of the Ontario
    Childrens Aid Society (CAS) and in making credibility determinations. On the
    sentence appeal, he asserts that the trial judge erred in evaluating the mitigating
    and aggravating factors for sentence and by not explaining the reason for rejecting
    his submission for a three to four-year sentence.

[3]

For the reasons that
follow, I would dismiss the conviction appeal, grant leave to appeal
    the sentence, and dismiss the sentence appeal.

B.

background

(a)

The complainants

[4]

The complainants, D. and S., are sisters. Beginning
    in 2006 or 2007, the appellant and his wife looked after them periodically, initially
    as paid caregivers and later without payment. They continued to look after the
    complainants until 2015.

[5]

D. testified that the appellant began sexually abusing
    her when she was about 8
years old
or younger.
    S. testified that he began sexually abusing her when she was 9 years old and
    continued to do so until she was 11 years old.

[6]

D. and S. were about 15
½
and 14 years old at the preliminary inquiry and about 17 and 15
    years old at the trial.

(b)

The CAS investigation

[7]

For almost a decade, the complainants went back
    and forth between their parents home and the home of the appellant and his
    wife. The complainants often stayed with the appellant and his wife for long
    weekends, holidays, and summers.

[8]

In August 2015, when D. and S. were about 13 and
    12 years old, the appellant and J.C. complained to the CAS that the
    complainants parents home was unsafe.

[9]

What led to the CAS complaint was disputed. The appellant
    and J.C. testified that the complainants had objected to the poor living conditions
    at their parents home and had said that they wanted to stay permanently with
    the appellant and J.C. The appellant and J.C. referred to notes reflecting this
    perspective written by the complainants before their CAS interviews. The complainants,
    however, testified that J.C. made them write those notes to prepare for the
    interviews and pointed to language that only an adult would use.

[10]

The CAS interviewed the complainants in August
    2015. The CASs records of those interviews and the CASs follow-up was the
    focus of the third-party records application.

[11]

At both the preliminary inquiry and
trial,
the complainants testified that they lied to
    the CAS during the interviews. They explained that J.C. was eavesdropping from
    the next room, so they told the CAS what J.C. told them to say  they lied
    about the degrading conditions in their parents home. They testified that they
    did not tell the CAS that the appellant sexually abused them. At the
    preliminary inquiry, D. testified that she did not disclose the abuse
    because J.C. was listening in the next room and she would get mad at me if I
    told anything of that. S. testified that she did not do so because the
    appellant and J.C. scared me and they used to always tell us  what happens in
    this house stays in the house  they were very scary. They scared me.

[12]

Because the complainants did not disclose the
    sexual abuse to the CAS, no criminal investigation was
launched
    at that time
. The CAS concluded that the complainants parents home was
    safe and directed that the complainants be returned to them. The complainants
    never stayed with the appellant and J.C. again.

(c)

The complainants allegations of sexual abuse

[13]

About a year after the complainants returned to
    their parents home, they told their mother that the appellant had sexually
    abused them. In early September 2016, their mother went to the police. Each
    complainant gave a videotaped statement to the police, which they adopted at
    the preliminary inquiry and trial:

·

D. told the police that the appellant would
    enter the complainants shared bedroom and bed at night. She said the appellant
    touched her breasts and the outside and inside of her vagina and once tried to
    remove her underwear and force his penis into her vagina. He only stopped when
    she kicked him away. She also said he once made her put his penis into her
    mouth and told her to [s]uck it like a lollipop. She said this incident
    happened in the basement of the appellants home.

·

S. told the police that the appellant touched
    the outside of her vagina and once tried to remove her shorts, but she resisted
    by rolling onto her stomach.

[14]

At the preliminary inquiry and trial, both
    complainants elaborated on their videotaped statements and disclosed more
    incidents of sexual abuse:

·

D. testified about an incident when she woke up
    in the basement to the appellant watching pornography on television. She said
    the appellant moved towards her, put his dick on [her] face, and ejaculated
    on her face. He then mov[ed] [his penis] all over [her] face. She disclosed other
    incidents of the appellant forcing her to engage in oral sex on him, although
    she acknowledged that she had told the police this had happened only once. She explained
    she did not disclose all the abuse to the police because she had tried to block
    out painful memories and found it difficult to discuss these issues.

·

S. also recalled waking up to the appellant
    watching pornography but was scared, froze, and eventually fell asleep.

(d)

The trial judges ruling dismissing the third-party records
    application

[15]

At the start of the trial, the appellant applied
    for production of the CAS records relating to its interviews of the complainants
    in August 2015 and any follow-up from those interviews, which occurred more
    than a year before the complainants told their mother about the abuse and the
    appellant was charged. The complainants and their mother opposed the
    application.

[16]

On the application, the appellant accepted that
    the complainants did not disclose the sexual abuse to the CAS but submitted that
    the CAS records were essential for him to make full answer and defence. He claimed
that
the records were likely relevant to impeach
    the complainants credibility and to show
that
they
    had fabricated the allegations of sexual abuse after the CAS investigation. He claimed
    the records would allow him to compare the complainants testimony at the
    preliminary inquiry about what they allegedly told the CAS with what the CAS recorded.
    He argued there was an evidentiary basis to seek the records because at the
    preliminary inquiry the complainants admitted that they had lied to the CAS and
    said that they are suggestible because they suffer from fetal alcohol syndrome.

[17]

In oral reasons, the trial judge dismissed the
    application. He concluded that the records were not likely relevant to an issue
at trial
and held that it was not necessary
    in the interests of justice for them to be disclosed to him for review. He ruled
    that the complainants admission
that
they had
    lied to the CAS about the living conditions of their parents home was not
    sufficient for the court to review those records.

(e)

The reasons for conviction and sentence

[18]

The trial judge reviewed the evidence of the
    four witnesses who testified: the complainants, the appellant, and his wife.

[19]

The trial judge noted inconsistencies in the
    complainants evidence but overall was impressed by their testimony and found
    them to be credible and reliable. He found that although both complainants said
    they suffered from fetal alcohol syndrome, this did not affect their reliability.
    Both complainants testified in a way he found compelling, candid, sincere, and
    believable. Their evidence was measured and the detail which they provided
    of what transpired in their young lives was persuasive. They acknowledged
    where there was an inconsistency and explained where their memory was not clear.
    There was no evidence of exaggeration or fabrication. The trial judge found no
    evidence of collusion between the complainants and concluded that they had no
    motive to fabricate the allegations against the appellant more than a year
    after leaving his home for the last time.

[20]

In their testimony, the appellant and J.C. denied
    the allegations outright, but the trial judge found them to be neither credible
    nor reliable. He viewed their attempts to address the several inconsistencies
    in their evidence as inadequate. He did not believe the appellants evidence or
    accept his denials. He also found that aspects of J.C.s evidence made no
    sense and highlighted his concern that J.C. seemed aware of the complainants evidence
    as to where the sexual abuse occurred, suggesting she may have breached a court
    order excluding witnesses.

[21]

Based on all the evidence, the trial judge found
    the appellant guilty beyond a reasonable doubt and convicted him of the offences
    with which he was charged. The trial judge sentenced him to consecutive sentences
    of 3
½
and 1
½
years for the offences against D. and S.,
    respectively, for a total sentence of 5 years.

C.

analysis

[22]

I will address the following three issues:

1.

Did the trial judge err by dismissing the application
    for third-party records in the possession of the CAS?

2.

Did the trial judge err in making his findings
    of credibility?

3.

Did the trial judge err in imposing a five-year
    sentence?

Issue #1: Did the trial judge err in dismissing the application for
    third-party records in the possession of the CAS?

(a)

Introduction

[23]

The appellants first ground of appeal asserts
    that the trial judge erred in dismissing his application for third-party records
    in the possession of the CAS. To address this ground, I will first outline the
    statutory scheme for producing third-party records for sexual offences. I will
    then address the claimed errors in the trial judges analysis. As I will
    explain, although I agree with the appellant that the trial judge erred in part
    of his analysis, I conclude he did not err in dismissing the application.

(b)

The statutory scheme

[24]

Sections 278.1 to 278.91 of the
Criminal
    Code
, R.S.C. 1985, c. C-46, govern the production to an accused of a
    record in a prosecution for a sexual offence
listed
in
    s. 278.2. Under this statutory scheme, which was
found
    to be
constitutional in
R. v. Mills
, [1999] 3 S.C.R. 668, Parliament
    sought to recognize the prevalence of sexual violence against women and
    children and its disadvantageous impact on their rights,  and to reconcile fairness
    to complainants with the rights of the accused:
Mills
, at para. 59;
R.
    v. McNeil
, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 30.

[25]

The records subject to this scheme are defined
    broadly in s. 278.1 as any form of record containing personal information for
    which there is a reasonable expectation of privacy, including:

medical, psychiatric, therapeutic,
    counselling, education, employment,
child welfare
, adoption and social
    services
records
, personal journals and diaries, and records containing
    personal information the production or disclosure of which is protected by any
    other Act of Parliament or a provincial legislature, but does not include
    records made by persons responsible for the investigation or prosecution of the
    offence. [Emphasis added.]

[26]

By identifying certain records in s. 278.1,
    Parliament wanted to avoid a case‑by-case reappraisal of the need to
    protect categories of records that could be presumed to be subject to a reasonable
    expectation of privacy. Absent evidence from the accused to the contrary, a
    trial judge may assume that a reasonable expectation of privacy attaches to the
    categories of records enumerated in s. 278.1:
R. v. Clifford
(2002),
    58 O.R. (3d) 257 (C.A.), at para. 49;
McNeil
, at para. 32; and
Mills
,
    at para. 99.

[27]

A two-stage process applies under this
    statutory scheme: (i) disclosure to the judge (s. 278.5); and (ii) production
    to the accused (s. 278.7):
Mills
, at para. 53.

(i)

Disclosure to the judge

[28]

At the first stage, under s. 278.5 the judge may
    order the record holder to produce the record to the court for review by the
    judge if the judge is satisfied that: (a) the application was made
in accordance with
ss. 278.3(2) to (6); (b) the
    accused has established that the record is likely relevant to an issue at
    trial or to the competence of a witness to testify; and (c) the production of
    the record is necessary in the interests of justice.

[29]

Likely relevance in s. 278.5 is a threshold
    higher than the threshold for Crown disclosure under
R. v. Stinchcombe
,
    [1991] 3 S.C.R. 326, where relevance means may be useful to the defence:
Mills
,
    at para. 45. However, the threshold for likely relevance is not an onerous
    burden: see
Mills
, at paras. 46, 124 and 126;
R. v. Batte
(2000),
    49 O.R. (3d) 321 (C.A.), at paras. 65 and 76. Under s. 278.5, likely
    relevance requires a
reasonable possibility
that the information is
    logically probative to
an issue at trial or the competence of a witness to
    testify
:
Mills
, at para. 45 (italics added; underlining in
    original), citing
R. v. OConnor
, [1995] 4 S.C.R. 411, at para. 22,
per
Lamer C.J. and Sopinka J. (dissenting, but not on this point);
R. v.
    L.M.
, 2014 ONCA 640, 122 O.R. (3d) 257, at para. 37.

[30]

Section 278.3(4) lists eleven assertions that,
    on their own, cannot meet the likely relevance threshold: s. 278.3(4);
Mills
,
    at para. 52. These assertions include, for example, that the record relates to
    medical or psychiatric treatment, therapy or counselling that the complainant
    or witness has received or is receiving (s. 278.3(4)(b)); that the record
    relates to the incident that is the subject-matter of the proceedings (s.
    278.3(4)(c)); that the record may disclose a prior inconsistent statement of
    the complainant or witness (s. 278.3(4)(d)); and that the record may relate
    to the credibility of the complainant or witness (s. 278.3(4)(e)).

[31]

An accused may nevertheless rely on these
    assertions if there is an evidentiary or informational foundation to suggest
    that they may be related to likely relevance:
Mills
, at para. 120. The
    accused must point to case specific evidence or information to show that the
    record is likely relevant to an issue
at trial
or
    the competence of a witness to testify:
Mills
, at para. 120.

[32]

However, just because an accused provides case-specific
    evidence or information to support an assertion in s. 278.3(4) does not mean that
    the likely relevance standard is met. That determination remains subject to the
    trial judges ultimate discretion:
Mills
, at para. 120.

[33]

In deciding whether to order disclosure to the
    judge, the judge must also determine whether disclosure is necessary in the
    interests of justice: s. 278.5(1)(c). In doing so, the judge must weigh
    the accuseds right to make full answer and defence against the complainants
    rights to privacy, personal security, and equality based on the factors in s.
    278.5(2):
Mills
, at paras. 53, 85 and 126. These factors
are as follows
:

(a)
the extent to which the record is necessary for the accused to make
    a full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable
    expectation of privacy with respect to the record;

(d) whether production of the record is based
    on a discriminatory belief or bias;

(e) the potential prejudice to the personal
    dignity and right to privacy of any person to whom the record relates;

(f) societys interest in encouraging the
    reporting of sexual offences;

(g) societys interest in encouraging the
    obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the
    integrity of the trial process.

[34]

As explained in
Mills
, at para. 101,
    [t]he balancing process required at the first stage ensures that records are
    not needlessly or casually produced to the court for review.

(ii)

Production to the accused

[35]

If the first stage is met, the record is disclosed
    to the judge for review. At the second stage, the judge reviews the record
in the absence of
the parties to determine whether
    it should be produced to the accused and may hold a hearing if necessary: ss.
    278.6(1)-(2).

[36]

The judge may order the record produced to the
    accused, subject to conditions, if, after reviewing the record, the judge is
    satisfied that the record is likely relevant to an issue at trial or to the
    competence of a witness to testify and its production is necessary in the
    interests of justice: s. 278.7(1).

[37]

In making this determination, the judge must again
    consider the salutary and deleterious effects of production on the accuseds
    right to make full answer and defence and on the rights to privacy, personal
    security, and equality of the complainant or witness or any other person to
    whom the record relates based on the factors in s. 278.5(2): s. 278.7(2);
Mills
,
    at para. 54.

(c)

The appellants arguments

[38]

The appellant asserts that the trial judge erred
    in dismissing the third-party records application by concluding that the
    appellant had not established the records were likely relevant and that disclosure
    to the judge was not necessary in the interests of justice. I will address
    each
argument in turn
.

(i)

Did the trial judge err in concluding that
    the records were not likely relevant?

[39]

The appellant argues that the trial judge misinterpreted
    the scope and purpose of s. 278.3(4) of the
Criminal Code
. He also submits
    he provided case-specific evidence or information to establish the likely
    relevance of the CAS records to challenge the complainants credibility because
    the complainants admitted at the preliminary inquiry
that
they had lied to the CAS.

[40]

I agree with the appellant on these points.

[41]

The trial judge erroneously interpreted the list
    of eleven assertions in s. 278.3(4) of the
Criminal Code
as a
    prohibited list of grounds that cannot be relied on to support production of
    third-party records, even if there is case-specific evidence or information to
    show that the records are likely relevant to an issue
at
    trial
or the competence of a witness to testify.

[42]

In his oral ruling on the third-party records
    application, the trial judge
first
set out ss.
    278.3(4)(d) and (e), which stipulate that assertions that the record may
    disclose a prior inconsistent statement of the complainant or witness or that
    the record may relate to the credibility of the complainant or witness are on
    their own insufficient to establish that the record is likely relevant to an
    issue
at trial
or to the competence of a
    witness to testify. He then stated that although the appellant had
    established that the records related to credibility and inconsistency, that
    could not meet the likely relevance standard because this conclusion was
    precluded by ss. 278.3(4)(d) and (e). He stated:

In this case, the accused has not established that
beyond credibility and inconsistency
, the material contained in the
    records would relate in any other way to the allegations before the Court.
In
    my view, this is precisely the possible evidence that is precluded by sections
    278.3(4)(d) and (e)
. [Emphasis added.]

[43]

As explained at para. 31 above,
the trial judges interpretation of ss. 278.3(4)(d)
    and (e) is wrong in law. The assertions in s. 278.3(4) are only not
    sufficient on their own to establish likely relevance  they do not preclude
    the disclosure of third-party records to the judge when there is case-specific
    evidence or information to show that the records are likely relevant to an
    issue
at trial
or the competence of a witness
    to testify:
Mills
, at para. 120.

[44]

Even so, the
trial judges finding that the appellant had established that the
    records relate[d] to credibility and inconsistency is supported on the
    record before him and strongly suggests that he would have found the records
    met the likely relevance standard but for his error in interpreting s. 278.3(4).

[45]

The Crown, however, asserts that the appellant
    did not establish the likely relevance of the CAS records because the
    complainants already admitted at the preliminary inquiry
that
they lied to the CAS. The Crown states in its
    factum that plumbing the precise details of the complainants statements to
    CAS on this collateral issue could provide nothing of value beyond that which
    the defence already had.

[46]

I do not agree with the Crowns submission that
    the appellant failed to meet the likely relevance threshold.

[47]

The following settled legal principles are not in
    dispute:

·

Case-specific evidence establishing that the records
    relate to a complainants credibility
at trial
may
    meet the likely relevance threshold: see
McNeil
, at para. 33;
R.
    v. Bradey
, 2015 ONCA 738, 127 O.R. (3d) 721, at para. 82;
L.M.
,
    at para. 37; and
Batte
, at paras. 53 and 64.

·

To meet the likely relevance threshold on a
    matter potentially relevant to the complainants credibility, the accused must establish
    a reasonable possibility that the records contain information not already
    available to the defence
or information useful for impeachment
: see
R.
    v. Sutherland
(2001), 156 C.C.C. (3d) 264 (Ont. C.A.), at para. 14
    (emphasis added), leave to appeal refused, [2002] S.C.C.A. No. 21; see also
Batte
,
    at para. 75 (the records contain information which is not already available to
    the defence
or has potential impeachment value
) (emphasis added); and
L.M.
,
    at para. 37.

[48]

Here, the appellant established a reasonable
    possibility that the CAS records had potential impeachment value. As already
    noted, the trial judge himself found that the appellant had established that
    the CAS records related to credibility, but he erroneously concluded that disclosure
    to him was precluded based on a misinterpretation of s. 278.3(4).

[49]

The trial judges finding that the appellant
    established that the CAS records related to the complainants credibility was
    amply supported by the record and attracts appellate deference, despite his
    error of law in applying the likely relevance standard. The appellant adduced
    case-specific evidence or information that the records were likely relevant to
the complainants credibility through
the complainants
    admissions at the preliminary inquiry
that
they
    had lied to the CAS during their interviews in August 2015. This evidence established
    a reasonable possibility that the CAS records would have potential impeachment
    value because they would allow a comparison of what the CAS recorded with what
    the complainants testified they told the CAS. The potential impeachment value of
    the CAS records was therefore not speculative. As trial counsel for the
    appellant stated on the application for production, the appellant was seeking
    verification of what the complainants actually said to the CAS because they
    now acknowledged that they lied to the CAS. Trial counsel stated that [t]his
    is an attempt to challenge the [complainants] credibility regarding the
    evidence that the [complainants] have actually given about statements theyve
    made to CAS. The complainants admissions at the preliminary inquiry thus provided
    an evidentiary basis for a reasonable possibility that the CAS records would be
    logically probative of the complainants credibility, and met the likely
    relevance standard.

[50]

As noted above, the
Crown nevertheless asserts that the CAS records could provide
    nothing of value beyond that which the defence already had because the
    complainants had already admitted at the preliminary inquiry that they lied to
    the CAS. Moreover, the Crown notes that there was no suggestion that the
    records contained any information about the allegations against the appellant,
    as the complainants stated that they never told the CAS that the appellant
    sexually abused them.

[51]

These considerations do not undercut the
    conclusion that the appellant had established a reasonable possibility, based
    on case-specific evidence, that the records contained information useful for
    impeachment. Even so, the points raised by the Crown are important. That the
    defence already knew that the complainants lied to the CAS and that the records
    contain no allegations of sexual abuse against the appellant should be
    considered in weighing whether disclosure is necessary in the interests of
    justice. Similarly, that the records contain no allegations of sexual abuse
    against the appellant means that the records may have low probative value and
    did not form part of the case he had to meet, factors that may be considered in
    weighing whether disclosure to the judge is necessary in the interests of
    justice. As I explain below, these are significant considerations that weigh against
    disclosure to the
judge in this case
.

[52]

I would add that the Crowns approach puts the appellant
    in an impossible situation: he needs case-specific evidence to establish the likely
    relevance of the records for impeachment, but the Crown says that same evidence
    undercuts his claim of likely relevance.

[53]

I conclude that the trial judge erred in
    determining that the CAS records were not likely relevant. The appellant
    provided case-specific evidence to establish a reasonable possibility that the
    CAS records had potential impeachment value.

[54]

Before turning to consider whether disclosure of
    the CAS records to the judge was necessary in the interests of justice, I
    wish to acknowledge that since preparing these reasons I have had the benefit
    of reading the reasons of my colleague Fairburn A.C.J.O. While I respectfully
    disagree with how she applies the statutory test and the governing jurisprudence
    for production of third-party records, I will not address our disagreements point
    by point as I believe my reasons, read as a whole, already explain our points
    of difference.

[55]

I would note, however, that my colleague concludes
    that the appellant established the likely relevance of the CAS records partly
    on the basis that there is a reasonable possibility that they would show the
    complainants motive to fabricate the allegations of sexual abuse against him.
    Respectfully, I do not agree. Before this court, neither the appellants factum
    nor his oral argument addressed or even mentioned motive to fabricate as a
    basis for the likely relevance of the CAS records, nor was this issue mentioned
    in the Crowns factum or oral argument. Instead, the appellant raised, and the
    Crown addressed, only the arguments that I have considered above. In these
    circumstances, I prefer to reach my conclusion on likely relevance based on
    the parties submissions to this court.

[56]

I now turn to consider the appellants arguments
    on whether disclosure of the CAS records to the judge was necessary in the interests
    of justice.

(ii)

Did the trial judge err in concluding that disclosing
    the CAS records was not necessary in the interests of justice?

[57]

The appellant submits that the trial judge erred
    in interpreting and applying the standard of whether it was necessary in the interests
    of justice to disclose the CAS records to the judge by: (1) mischaracterizing the
    records sought as therapeutic counselling records; (2) failing to consider the
    appellants right to full answer and defence, in balancing the appellants
    right to full answer and defence against the complainants rights to privacy,
    personal security, and equality based on the factors in s. 278.5(2); and (3)
    conflating likely relevance with necessary in the interests of justice.

[58]

I do not agree with these submissions.

[59]

First, although the trial judge cited case law referring
    to therapeutic records as one type of highly private record often found in the
    possession of child welfare authorities, he did not suggest that all records held
    by a child welfare authority are necessarily therapeutic or counselling records
    or that the records here were therapeutic or counselling records. He understood
    that the appellant was not seeking therapeutic or counselling records: on the application,
    the appellants trial counsel

confirmed that she
    sought only records relating to the interviews in August of 2015 and any
    follow-up from that and no other involvement of this family and,
    specifically, not records of counselling being provided to the complainants or
    any member of this family.

[60]

I also see no error in the trial judges
    conclusion that the CAS records sought here attracted a high expectation of
    privacy, even though they were not therapeutic or counselling records. Parliament
    specifically listed child welfare records as a class of records that
    presumptively attract a reasonable expectation of privacy, whether or not they
    relate to counselling or therapy. Records in the possession of child welfare authorities
    can be multifaceted and often involve documentation regarding counselling
    and therapy (
R. v. J.B.
, 2013 ONSC 481, at para. 28), but they need
    not do so to warrant high privacy protection.

[61]

In this regard,
I agree with the reasons expressed by Katarynych J. in
R. v.
    T.F.
, 2009 ONCJ 656, [2009] O.J. No. 5802, at paras. 93-121, for rejecting
    the proposition that child welfare records attract lesser privacy protection
    when they do not relate to the childrens counselling or therapy. As Katarynych
    J. explained, child welfare records, even when not relating to counselling or
    therapy, can overarch the whole of a foster childs life in foster care and include

particularly
    intrusive documentation of very personal information: para. 97. They can reach
    much deeper into a foster childs life and times than records of a course of
    therapy, and therefore deserve similar privacy protection to thoughts laid
    bare during a course of therapy: at para. 110. Trust-like relationships
    developed by children with child welfare authorities can be a powerful
    endorsement of that childs worth and a key to the childs growth and
    development within the foster care system: at para. 111. As Katarynych J. observed,
    [a] foster childs trust and communication to persons who have earned [the
    childs] trust are deserving of protection. The communications within those
    trust-like relationships emerge from the trust, and establishing trust is tough
    in foster care: at para. 114.

[62]

Applications for production of child welfare
    records implicate not only the privacy but also the equality of the affected
    children because those childrens lives have been heavily documented by child
    welfare authorities:
Mills
, at para. 92; see also
R. v.
    Medwid
, [2008] O.J. No. 4614 (S.C.), at para. 21. Through no fault of
    their own, such children are at risk of being treated with less dignity and as
    less worthy of respect and consideration than other children whose lives have
    not been heavily documented by the state.

[63]

I therefore reject the appellants contention that
    the trial judge misunderstood
the nature of
the
    CAS documents
at issue
or
that
those documents were entitled to lesser
    protection than counselling records.

[64]

Second, I see no basis to accept the appellants
    claim that the trial judge ignored the appellants right to make full answer
    and defence in balancing that right with the complainants rights to privacy,
    personal security, and equality based on the factors in s. 278.5(2). The trial
    judge noted that he had to be satisfied that the records are likely relevant
    to an issue at trial and that production is necessary in the interest of
    justice. He then said that he had given specific consideration to the
    criteria set out in sub-section 278.5(2) of the
Criminal Code
and
    278.3(4) of the
Criminal Code
. He cited from
Mills
, at para.
    61, which directs that the rights to be balanced include full answer and
    defence, privacy, and equality. Finally, he discussed the very high privacy
    rights attaching to CAS records and concluded that, although the complainants
    had admitted that they lied to the CAS, investigating the records to determine
    the extent of their lies is insufficient for this Court to review the records.
    The trial judges explicit statement and his process of analysis refute the claim
that
he ignored the appellants right to make full
    answer and defence.

[65]

In effect, the
trial judge ruled that because the complainants had admitted they
    lied to the CAS, the appellant had what he needed to challenge the
    complainants credibility without invading their privacy and equality rights.
    Whether the information sought from the third-party records is available from
    other sources is a proper consideration to weigh in determining whether
    disclosure is necessary in the interests of justice: see s. 278.5(2)(a);
Clifford
,
    at para. 65. In
Clifford
, at para. 65, Rosenberg J.A. noted that [l]ikely
    relevance is not the sole consideration in ordering disclosure of third-party
    records to the judge and that s. 278.5 permits the judge to take into
    account a broader range of interests, including the privacy rights of the complainant
    and whether the information sought from [the third-party records] could be
    obtained from other sources.

[66]

Although the trial judges oral reasons are
    brief and somewhat conclusory, I read them as having determined that the CAS
    records affected the appellants right to make full answer and defence only
    marginally and that any impact was substantially outweighed by the impact
    disclosure would have on the complainants rights to privacy and equality. The
    records had limited impact on the appellants right to full answer and defence
    because: (i) the records were of relatively low probative value as they related
    to CAS interviews more than a year before the complainants first alleged that
    the appellant had sexually abused them; and (ii) the appellant already had what
    he needed to challenge the complainants credibility arising from those
    interviews because the complainants admitted at the preliminary inquiry
that
they had lied to the CAS.

[67]

The trial judges approach reflected the
    observations in
Mills
, at para. 131, that [w]here the privacy
    right in a record is strong and the record is of low probative value or relates
    to a peripheral issue, the judge might decide that non-disclosure will not
    prejudice the accuseds right to full answer and defence and dismiss the
    application for production. Because the records to which the appellant sought
    access were not part of the case he had to meet, the complainants significant privacy
    and equality rights weighed more heavily in the balance: see
Mills
, at
    para. 71. I therefore see no error in the trial judges conclusion. It attracts
deference
on appeal:
Sutherland
, at
    para. 13.

[68]

Third, I reject the appellants assertion that
    the trial judge conflated the likely relevance threshold and the necessary
    in the interests of justice analysis. His argument relies on the following
    passage of the trial judges reasons, which he says shows the trial judge based
    his conclusion on necessary in the interests of justice
entirely
on his conclusion that the appellant had
    failed to establish likely relevance:

The accused has
not satisfied me
that apart
    from the possibility that the records would contain inconsistent statements by
    the complainants
that the records are relevant to an issue at trial.
Accordingly
,
    I am not satisfied that production of the records is necessary in the interest
    of justice
. Accordingly, the accuseds application is dismissed.
    [Appellants emphasis.]

[69]

The appellant submits
that
this passage shows that the trial judge saw likely relevance as a
    prerequisite to meet the interests of justice threshold.

[70]

I do not agree. Although I accept
that
this passage is poorly worded, I am satisfied
    that the trial judge considered whether disclosure was necessary in the
    interests of justice and weighed the factors
listed
in
    s. 278.5(2)  which is what he said he did. The trial judges reasons show
that
he weighed the extent to which the record is
    necessary for the accused to make a full answer and defence (s. 278.5(2)(a)),
    the nature and extent of the reasonable expectation of privacy with respect to
    the record (s. 278.5(2)(c)), and the potential prejudice to the personal
    dignity and right to privacy of any person to whom the record relates (s. 278.5(2)(e)).
    He concluded that the significant impact of disclosure on the complainants
    rights to privacy and equality outweighed any minimal impact on the appellants
    right to full answer and defence. I see no basis to interfere with that conclusion.

[71]

My colleague highlights that at trial the centrality
    of the CAS investigation played out exactly as the defence said it would on the
    third-party records application, though she notes this is not relied on to show
    why it was necessary in the interests of justice for the trial judge to review
    the records. The third-party records application must be reviewed on the basis of
    the information available to the trial judge at the time of the application. The
    appellant could have renewed the application as the trial unfolded:
Mills
,
    at para. 145;
Clifford
, at paras. 57, 64 and 67. He chose not to do
    so. In any event, the appellants right to make full answer and defence to the
    charges against him and to respond to the case he had to meet was not
    compromised. He received a fair trial.

[72]

I therefore conclude that the trial judge did
    not err in refusing to order disclosure of the CAS records to the judge for
    review. I would dismiss the appellants first ground of appeal.

Issue #2: Did the trial judge err in making his credibility findings?

[73]

The appellants second ground of appeal challenges
    the trial judges credibility findings, alleging uneven scrutiny of the
    evidence, insufficiency of reasons, and failure to reconcile inconsistencies in
    the complainants evidence. He asserts that the trial judge attacked his and
    his wifes credibility mainly because they failed to remember immaterial details
    but ignored material inconsistencies between the complainants evidence.

[74]

Given how trial judges must evaluate the credibility
    of child witnesses and the appellate deference owed to their credibility
    findings,
each of these arguments
faces
    significant hurdles on appeal.

[75]

The applicable legal principles are not in
    dispute:

·

Courts should adopt a common-sense approach when
    evaluating the credibility of child witnesses:
R. v. W.(R.)
, [1992] 2
    S.C.R. 122, at p. 134. Although the credibility of a child witness should be
    carefully assessed, a flaw in the evidence of a child witness should not be
    given the same effect as would a similar flaw in the testimony of an adult:
R.
    v. B.(G.)
, [1990] 2 S.C.R. 30, at p. 55. Inconsistencies, especially on
    peripheral matters like time and location, should be considered in
the context of
the age of the
witness at the time of the events
to which the
    witness is testifying:
W.(R.)
, at p. 134;
R. v. A.M.
, 2014
    ONCA 769, 123 O.R. (3d) 536, at para. 11.

·

Appellate courts
give
    significant deference to
credibility findings. Assessing credibility is a
    difficult and delicate subject, often defying precise and complete verbalization.
    Trial judges enjoy a unique position and the inestimable advantage of seeing
    and hearing the witnesses in evaluating their credibility:
R. v. Wadforth
,
    2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 66; see also
W.(R.)
, at
    p. 131. The Supreme Court recently underscored that a trial judges findings of
    credibility deserve particular deference and that in our system of justice
    the trial judge is the fact finder and has the benefit of the intangible impact
    of conducting the trial:
R. v. G.F.
, 2021 SCC 20, at para. 81.

·

An argument based on uneven scrutiny of the
    evidence is difficult to make successfully. Credibility findings are the
    province of the trial judge and attract significant appellate deference. Appeal
    courts view this argument with skepticism because it is often little more than
    a thinly-veneered invitation to reassess on appeal the credibility
    determinations made at trial:
R. v. Chanmany
, 2016 ONCA 576, 338
    C.C.C. (3d) 578, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 88;
R.
    v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 30. Although a
    majority of the Supreme Court in
G.F.
expressed serious reservations
    about whether uneven scrutiny is a helpful or independent ground of appeal, the
    court did not decide the point: at paras. 100-1.

·

Where a case turns largely on determinations of
    credibility, the sufficiency of the reasons should be considered in light of
    the deference afforded to trial judges on credibility findings. Rarely will the
    deficiencies in the trial judges credibility analysis, as expressed in the
    reasons for judgment, merit intervention on appeal:
R. v. Dinardo
,
    2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26; see also
G.F.
, at
    paras. 68-82.

·

A trial judge need not review and resolve every
    inconsistency in a witness evidence, but they should address and explain how
    they resolved major inconsistencies in the evidence of material witnesses:
A.M.
,
    at para. 14.

[76]

When I evaluate the appellants arguments
    against these principles, I am not persuaded that appellate intervention
    is warranted.

[77]

First, I reject the appellants argument that
    the trial judge erred by doubting the appellants credibility based on the
    appellants inconsistent evidence about a bus stop incident in May 2016, nine
    months after the complainants had returned to their parents home. The
    appellant gave this evidence in chief in response to a question about why the
    complainants might have fabricated the allegations of abuse against him. He
    said he and his wife stopped at S.s bus stop and called her over to their car.
    He said she was crying and said her parents were saying the appellant and his
    wife were bad and evil people and she felt like her parents were brainwashing
    her. After giving this evidence, the appellant was impeached on cross-examination.
    He had told the police in his videotaped statement
that
he ran into S. at the bus stop, but
at trial
he admitted this was not true and he and his wife had gone to the bus
    stop specifically to see S., even though in 2015 he had been told by the
    complainants mother to have no further contact with them. He also acknowledged
    that he had intentionally withheld information from the police during his police
    statement about what S. had said at the bus stop to see if it was useful  within
    the court.

[78]

The appellant says that the trial judge erred in
    treating this evidence as going to his credibility rather than his reliability.
    He claims the evidence had nothing to do with the allegations of sexual abuse. I
    disagree.

[79]

The evidence on the bus stop incident occurred
    at a critical moment in the trial when the appellant was presenting his theory
    of the complainants motive to fabricate. The appellant was impeached on that
    evidence and he admitted that he had misled the police and intentionally withheld
    information from them. This evidence thus spoke directly to his credibility. The
    trial judge determined that the appellants evidence gave him great concern
    and was confused at best, and wholly inconsistent, at worst. I see no error
    in the trial judge relying on this evidence to evaluate the appellants credibility.

[80]

I also disagree with the appellants claim
that
this evidence was immaterial to the sexual
    abuse allegations. The evidence spoke to the appellants credibility, the
    central
issue at trial
. The trial judge could
    consider that the appellant had been successfully impeached when trying to explain
    the complainants motive to fabricate and his reason for intentionally withholding
    information from and misleading the police.

[81]

Second, the appellant claims that the trial
    judge improperly found him not credible in part by relying on inconsistencies
    in his wifes evidence. Those inconsistencies related to when the appellant and
    his wife had tenants in their basement and when the appellant stopped storing
    his work clothes in the room where the complainants slept.

[82]

I agree that the trial judge disbelieved aspects
    of the evidence of the appellants wife. He noted that she changed her evidence
    when advised of her husbands evidence about when the appellants clothes were
    no longer stored in the complainants room and he found her evidence made no
    sense. He found [m]ore troubling her awareness of the complainants in-court
    testimony about the abuse having taken place in the basement, despite an order
    excluding witnesses. However, I do not read the trial judges reasons as having
    rejected the appellants denials based on having rejected his wifes evidence. Instead,
    the trial judge properly addressed the wifes evidence because that was part of
    the defence evidence before him. Far from disclosing error, the trial judge was
    simply weighing the evidence of all the witnesses in deciding whether he had a
    reasonable doubt as to the appellants guilt.

[83]

Lastly,
the appellant asserts that the trial judge failed to address material
    inconsistencies in the complainants evidence. He accepts that the trial judge said
    he was [s]ensitive to the inconsistencies in their evidence but claims that
    his analysis of the complainants credibility was generic and vague.

[84]

I do not accept this submission. The trial judge
    amply explained his basis for believing the complainants evidence. After comprehensively
    reviewing their evidence, he explained that their detail[ed] and measured
    accounts were persuasive partly because they acknowledged where there was an
    inconsistency and explained where their memory was not clear. He found no material
    inconsistencies relating to the sexual abuse allegations. Both complainants testified
    that they were sexually abused by the appellant over several years. Both said
    he came into their room at night, touched their arms and legs, and sometimes
    touched their vaginas. Both said he did this when retrieving his clothes for
    work the next day. And both recalled an incident in the basement when he was
    watching pornography on the television.

[85]

The trial judges reasons explain why he
    accepted the complainants evidence that the appellant had sexually abused them,
    why he rejected the appellants denials, and why the evidence
as a whole
did not leave him with a reasonable
    doubt. The trial judge examined the complainants evidence under a common-sense
    approach, mindful that they were recounting events that happened when they were
    young children and that any frailties in their evidence related to peripheral,
    not core, issues.

[86]

I therefore conclude that the trial judge made
    no error in his credibility assessments. The appellants arguments on uneven
    scrutiny and insufficiency of reasons amount to mere disagreement with the
    credibility findings. The trial judge
was entitled to
    disbelieve
the appellants denials of the abuse and his reasons amply
    permit appellate review. I would dismiss this ground of appeal.

[87]

I would therefore dismiss the conviction appeal.

Issue #3: Did the trial judge err in imposing
    a five-year sentence?

[88]

Finally, on the sentence appeal, the appellant submits
    that the trial judge erred in his treatment of certain mitigating and
    aggravating factors and failed to articulate the basis for rejecting the
    defences position on sentence.

[89]

I would not give effect to these submissions.

[90]

An appellate court can interfere with a sentence
    in only two situations: (1) if the sentence is demonstrably unfit; or (2) if the
    sentencing judge made an error in principle that had an impact on the sentence:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26;
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41, and 44; and
R.
    v. Suter
, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24.

[91]

The appellant does not argue that the five-year
    sentence imposed for the serious sexual offences against two young complainants
    was demonstrably unfit. Instead, he asserts that the trial judge made several
    errors of principle that warrant appellate intervention.

[92]

First, the appellant asserts that the trial judge
    improperly discounted the appellants prospects for rehabilitation and failed
    to give effect to mitigating factors because he noted that the appellants positive
    antecedents were not at all unusual for sexual offenders in these
    circumstances.

[93]

I do not accept this argument. The trial judge
    did consider the appellants positive antecedents as mitigating factors. He
    noted that the appellants presentence report spoke well of him, he was a contributing
    member to his family and community, and he had no criminal record. But the
    trial judge gave these factors less weight, as he was entitled to do, because sexual
    misconduct involving children often occurs in private and will not be reflected
    in the offenders reputation in the community. As the trial judge appropriately
    noted, citing
R. v. G.W.
, 2017 ONSC 3149, at para. 27, often those
    who commit such deplorable, deviant, self-gratifying sexual acts upon children
    as he has in private present as trustworthy and respectable publicly. I see no
    error in that approach.

[94]

Second, the appellant asserts that the trial judge
    erred by highlighting as an aggravating factor that the complainants were much
    younger than 18 years of age. The appellant says that because he was sentenced
    for convictions under ss. 151 and 152 of the
Criminal Code
, which
    require the Crown to establish that the victim was under 16 years of age, [t]he
    fact that the victims were children cannot be an aggravating factor.

[95]

I do not accept this submission. In
Friesen
,
    the Supreme Court stated that [t]he age of the victim is also a significant
    aggravating factor. [C]hildren who are victimized at a younger age must endure
    the consequential harm of sexual violence for a longer period of time than
    persons victimized later in life: at para. 134. The court held that the
    specific age of the victim is relevant to both the gravity of the offence and the
    degree of responsibility of the offender because the power imbalance between
    children and adults is even more pronounced for younger children: at paras.
    134-35. The court also ruled that the moral blameworthiness of the offender is
    enhanced when the victim is particularly young and is thus even more vulnerable
    to sexual violence: at para. 135.

[96]

It was thus entirely proper for the trial judge
    to consider as an aggravating factor that the complainants were young children when
    the appellant sexually abused them, beginning when they were less than 10 years
    of age. The trial judge was also entitled to find that the complainants had [nowhere]
    to turn while they lived with the appellant and his wife. As the Supreme Court
    has recognized, younger children are often helpless without the protection and
    care of their parents  their dependency is usually total:
Friesen
,
    at para. 134, citing
R. v. Magoon
, 2018 SCC 14, [2018] 1 S.C.R. 309,
    at para. 66.

[97]

Third, the appellant notes that the trial judge did
    not refer to the defences position on sentence, not even in passing. The defence
    had sought a sentence in the range of three to four years. The appellant
    asserts that the trial judges failure to mention the sentence sought by the
    appellant resulted in a sentence that lacked sufficient analysis and now
    frustrates appellate review.

[98]

I disagree. The reasons must be read alongside
    the submissions of counsel, which clearly articulated the appellants position
    on sentence. Read as a whole, the reasons sufficiently explain why the
    appellant was sentenced to five years in prison given the prevailing case law. The
    sentence imposed heeded the strong message sent by the Supreme Court in
Friesen
,
    that sexual offences against children are violent crimes that wrongfully
    exploit childrens vulnerability and cause profound harm to children, families,
    and communities: at para. 5. The Supreme Court directed that sentences for sexual
    assaults against children must increase and that mid-single digit
    penitentiary terms are normal and upper-single digit and double-digit
    penitentiary terms are neither unusual nor reserved for rare or exceptional
    circumstances: at paras. 5, 114.

[99]

As a result, the reasons permit effective
    appellate review:
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at
    para.
25;
R. v. J.J.R.D.
(2006), 215 C.C.C.
    (3d) 252 (Ont. C.A.), at paras.
53-54, leave to appeal
    refused, [2007] S.C.C.A. No. 69.

[100]

I therefore see no basis to intervene with the sentence.

D.

disposition

[101]

I would dismiss the conviction appeal, grant leave to appeal the
    sentence, and dismiss the sentence appeal.

M.
    Jamal J.A.




Fairburn A.C.J.O.:

A.      Overview

[102]

I have reviewed the reasons written by my colleague. I agree with my
    colleagues conclusions concerning the trial judges credibility findings and
    the sentence appeal. Respectfully, however, I do not agree with my colleagues
    determination of the third-party records issue.

[103]

I accept my colleagues helpful articulation of the legal principles
    governing third-party record applications, and I have nothing to add. I also
    accept the manner in which the trial judges error has been described in my
    colleagues reasons. I read the trial judges reasons as suggesting that s.
    278.3(4)(e) of the
Criminal Code
, R.S.C. 1985, c. C-46, precludes
    access to third-party records that are relevant only to a question of
    credibility. This is not so.

[104]

As early as
R. v. Mills
, [1999] 3 S.C.R. 668,

the
    law has provided that where there exists case specific evidence or information
    to show that the record in issue is likely relevant to an issue at trial or the
    competence of a witness to testify, the statutory threshold of likely
    relevance under s. 278.5(1)(b) of the
Criminal Code
, which is the
    first step of the first stage of the third-party records analysis,

may
    be within reach:
Mills
,

at para. 120;
R. v. L.M.
, 2014
    ONCA 640, 122 O.R. (3d) 257, at paras. 36-37. Therefore, while a mere
    assertion that a record is likely relevant to an issue catalogued under s.
    278.3(4) of the
Criminal Code
is insufficient to reach the necessary
    statutory threshold, case specific evidence or information justifying that
    assertion permits a finding of likely relevance, even where it pertains
    strictly to a question of credibility:
R. v. Batte

(2000), 49
    O.R. (3d) 321 (C.A.),

at para. 75.

[105]

My first point
    of departure from my colleagues reasoning relates to the manner in which the
    likely relevance of the Ontario Childrens Aid Society (CAS) records should
    be articulated. When properly characterized, the likely relevance of the CAS
    records leads to my second point of departure, as I find that it was necessary
    in the interests of justice for the trial judge to review the CAS records.

[106]

For the reasons
    that follow, I would set aside the convictions and order a new trial based
    solely on the third-party records issue.

B.      THE Likely Relevance OF THE CAS RECORDS

[107]

The case specific evidence informing the likely relevance of the CAS
    records can be traced to two sources: (1) a series of notes admittedly
    handwritten by one of the complainants, S., contrasting the unbearable
    conditions in the complainants parental home with the supposedly wonderful
    conditions in the home of the appellant and his wife; and (2) the
viva voce

testimony of the complainants and their mother at the preliminary inquiry.

[108]

My colleague maintains, at para. 49 of his reasons, that the likely
    relevance of the CAS records arises from the reasonable possibility that they
    would have potential impeachment value because they would allow a comparison
    of what the CAS recorded with what the complainants testified they told the
    CAS. Respectfully, while the CAS records would certainly provide the
    opportunity for conducting this comparative exercise between what the
    complainants testified to and what they said on an earlier occasion, that could
    be said for many third-party records applications. In my view, something more
    is required to cloak the records in likely relevance. In this case, that
    something more came from S.s handwritten notes and the evidence elicited at
    the preliminary inquiry.

(1)

The Handwritten Notes

[109]

The handwritten notes were written by one of the complainants, S.,
    in preparation for the interviews with the CAS. At the preliminary inquiry, S.
    claimed to have written those notes at the behest of and with the assistance of
    the appellants wife. The defence counsel used the content of the handwritten
    notes at the preliminary inquiry to question the complainants during
    cross-examination.

[110]

There was a stark contrast between what was contained in the notes
    and the sexual abuse that was reported only after the CAS investigation was
    complete and the complainants had returned to live at their parental home.
    Among other things, the notes suggested that the complainants were emotionally
    and physically abused in their parental home. They also suggested that the
    complainants were called highly derogatory names in that home, none of which
    are necessary to repeat in these reasons. In a different series of handwritten
    notes titled What goes on in the [parental] house!, S. also suggested that
    she and her sister were forced to take naked photos of their mother. S. also
    wrote that she was scared to go [to the parental] home because they will keep
    and abuse me again and again.

[111]

Conversely, the handwritten notes suggested that the appellant and
    his wife made the complainants feel safe and that they had been with them for
    10 ½ yrs [sic] and have yet seen [
sic
] them yell punch hit sware [
sic
]
    or
abuse us in any way
 (emphasis added). The
    notes also referenced the fact that the appellant and his wife would take
    care of the complainants and support [them] all the way.

[112]

There is no dispute that the notes were written at a time when the
    sexual assaults, which had been allegedly occurring over many years, were said
    to be still taking place. Indeed, the indictment framed the offences as
    occurring between February 1, 2008 and August 31, 2015. The CAS investigation
    was commenced in August 2015.

(2)

The
Viva Voce
Testimony from the Preliminary Inquiry

[113]

The complainants and their mother testified at the preliminary
    inquiry. Their testimony formed the second piece of case specific evidence
    demonstrating the likely relevance of the CAS records.

[114]

The defence counsel went into the preliminary inquiry armed with
    S.s handwritten notes. The complainants were then questioned about what they
    had said to the CAS worker. They admitted to telling the CAS worker about the
    abusive conduct they said they were enduring in the parental home. They also
    admitted that they said nothing to the CAS worker about the sexual abuse
    perpetrated in the appellants home. Indeed, both complainants admitted that
    they had told the CAS worker that they did not want to return to their parental
    home, as they wished to reside with the appellant and his wife.

[115]

While admitting they had said those general things to the CAS
    worker, the complainants attempted to distance themselves from those statements
    at the preliminary inquiry. The reversal of their position was dramatic. At the
    preliminary inquiry, both complainants said that they actually did not want to
    reside with the appellant and his wife. They suggested that some of the things
    they told the CAS worker were lies. In the case of D., she admitted that she
    knew that what she said could carry consequences, including that she could
    have been removed from her parental home.

[116]

The complainants offered multiple explanations for why they said
    that they lied to the CAS worker, including that: (1) they had been
    brainwashed by the appellants wife into saying what they said; (2) S.
    admitted that she has a history of exaggerating and would sometimes cry wolf
    and lie; (3) D. admitted that she has memory problems; and (4) D. and the
    complainants mother testified that both complainants had fetal alcohol
    syndrome, with D. testifying that this condition made her gullible  [and]
    easy to play with. As well, both complainants suggested that the appellants
    wife, whom they said they were afraid of, was surreptitiously listening in on
    the CAS interviews from a different room in the appellants home, making it
    harder for them to tell the truth to the CAS worker.

[117]

The complainants mother also testified at the preliminary inquiry.
    She explained how it first came to be that the complainants started staying with
    the appellant and his wife. The relationship commenced as one involving paid
    respite care for the complainants because their parents were struggling with so
    many children, many of whom had significant needs. It eventually turned into a
    more long-term relationship, one where the complainants had come to refer to
    the appellant and his wife as Papa and Nana and would frequently go stay at
    their home, including for long periods of time.

[118]

The mother acknowledged also being swept up in the CAS investigation.
    She maintained that the allegations were unfounded. She further claimed that
    the complainants had told her that they made those allegations because the
    appellant and his wife had promised them electronics and shopping trips. The
    mother also maintained that the appellant and his wife wanted the complainants
    to be in their home to help with housework and grocery shopping.

[119]

The complainants mother expressed the view that the appellant and
    his wife were using the CAS to attempt to keep her children: they were using
    Childrens Aid to  to keep my children. She admitted: I was angry. I was
    upset. I was hurt. I wanted my girls home.

[120]

It was only after the CAS investigation was complete, and the
    complainants had been back in the parental home for about a year, that they
    raised the sexual assault allegations for the first time.

(3)

The Appellants Third-Party Records Application

[121]

The appellant argued at the third-party records application that the
    CAS records were relevant to two issues at trial: (1) to impeach the
    credibility of the complainants; and (2) to support the argument that the
    complainants had a motive to fabricate the allegations of sexual assault
    following the CAS investigation.
0F
[1]
The
    complainants and their mother were represented by counsel during the
    third-party records application, and they opposed the production of the CAS
    records. The Crown who appeared at the third-party records application took no
    position.

[122]

At the third-party records application, the appellant pointed out
    that the complainants apparently went from expressing their desire to live with
    the appellant and his wife to claiming that they had been seriously sexually
    abused by the appellant in that home for many years. The only thing that had
    changed between the CAS investigation and the reporting of the allegations to
    the police was that the complainants had returned home to live with their
    parents.

[123]

As the defence counsel put it in the third-party records
    application, [s]uddenly, after CAS completes their investigation, the complainants
    completely change their story about their experiences with the [appellant and
    his wife]. The defence said that the records would reveal exactly what was
    said to the CAS worker by the complainants, and those details could be used to
    underscore the complete change [in] their story. In addition, the defence
    argued that the records would provide better insight into the scope of the CAS
    investigation, thereby underscoring the motive to fabricate that was said to
    arise from the mothers anger over the fact of the CAS investigation.

(4)

Analysis of the Likely Relevance of the CAS
    Records

[124]

In my view, the CAS records were likely relevant to the issues of
    credibility and motive to fabricate. The CAS investigation stood at the heart
    of the appellants defence, and the CAS file on the matter constituted the only
    independent record of what actually happened in the investigation and what the
    complainants actually said to the CAS worker.

[125]

The defence should not have been required to rely upon the testimony
    of the complainants for an accurate recounting of what they told the CAS
    worker. Whether they lied to the CAS or not was not the question requiring
    resolution on the third-party records application. While the complainants said
    they lied to the CAS worker, maybe they did lie or maybe they did not lie. That
    would be a question for the trier of fact.

[126]

The sole question for the resolution of the first step of the first
    stage of the third-party records analysis  likely relevance  was whether
    there was a reasonable possibility that the information contained in the
    records would be logically probative to an issue at trial:
Mills
, at
    para. 45, citing
R. v. OConnor
, [1995] 4 S.C.R. 411, at para. 22, per
    Lamer C.J. and Sopinka J. (dissenting, but not on this point). In my view, the
    CAS records were logically probative for exactly the reasons the defence
    counsel said at the third-party records application. Perhaps most powerfully,
    there was more than a reasonable possibility that they would contain
    statements made to a CAS worker that were the exact opposite of what the
    complainants were going to testify to at trial. In my view, the defence should
    not have had to rely upon the complainants, who candidly acknowledged having
    some difficulty with truth-telling, to catalogue the things that they said to
    the CAS worker.

[127]

While I do not suggest for a moment that statements of that nature
    cannot coexist with conditions of sexual abuse, and indeed they sometimes will,
    this does not undermine the fact that such statements can be logically
    probative of issues of credibility and reliability. Therefore, I see the likely
    relevance of the CAS records in this case as extending well beyond having some
    potential impeachment value arising from inconsistencies that may materialize
    through a comparative exercise between the CAS records and what the
    complainants testified they told the CAS.

[128]

Moreover, the entire CAS investigation was said to be the catalyst
    for a motive to fabricate. As Doherty J.A. said in
Batte
, at para.
    120: It is difficult to think of a factor which, as a matter of common sense
    and life experience, would be more germane to a witness credibility than the
    existence of a motive to fabricate evidence.

[129]

There is no magic in the use of the term motive to fabricate
    because, at its core, it just means that there exists a reason for why someone
    might lie. The trial judge dealt with the motive to fabricate/reason to lie
    defence position in his ruling, the ruling appealed from, referencing the fact
    that: The defence argues on this application that the mother may have
    manipulated [the complainants] out of anger and frustration as a result of the
    CAS investigation. There was an evidentiary foundation for that position, as
    reflected in the transcript of the mothers testimony from the preliminary
    inquiry, which transcript formed part of the record placed before the trial
    judge during the third-party records application, and which transcript the
    parties agree is properly part of the record on appeal.

[130]

As the appellant argued in his factum and in oral submissions on
    appeal, the evidentiary foundation on the third-party records application,
    including the preliminary inquiry evidence, demonstrates the major concerns
    about [the complainants] reliability and credibility. In this regard, the
    appellant emphasized in his factum on appeal the following passage from the
    trial judges ruling:

In their preliminary inquiry evidence, the
    complainants testified that they spoke well of [the appellant] and his wife and
    poorly about their mothers home.
Then, when the CAS investigation was
    completed,
the complainants suddenly and completely changed their story
,
    raising new allegations against [the appellant]
. [Emphasis in the
    appellants factum.]

[131]

The completely changed
    their story language, located in the trial judges reasons, and emphasized by
    the appellant on appeal, is the very foundation of the fabrication argument at
    trial and on appeal: that the complainants fabricated the allegations only
    after returning to their mothers home. Given the complainants
    acknowledgements that they had some difficulty with the truth, including that
    S. had a history of exaggerating and lying and that D. is gullible
[and] easy to play with
, there was also an evidentiary foundation
    for this position. That evidentiary foundation was reinforced by their mothers
    testimony, acknowledging that, given their fetal alcohol syndrome, the
    complainants were like sponges and would sometimes tell lies, as people could
    put words in their mouths.

[132]

Coming to understand
    the depth of the complainants mothers anger over the CAS investigation was
    critical to the defence counsels theory regarding a motive to fabricate.
    Without the CAS records, the defence was deprived of the most accurate insight
    into the factual underpinnings motivating that anger.

[133]

In my view, the CAS records easily passed
    the likely relevance threshold under s. 278.5(1)(b) of the
Criminal Code
.

C.      THE PRODUCTION OF THE CAS RECORDS IS Necessary in
    the Interests of Justice

[134]

My colleague, at para. 66 of his reasons, characterizes the trial
    judge as having found that the CAS records affected the appellants right to
    make full answer and defence only marginally and that any impact was
    substantially outweighed by the impact disclosure would have on the complainants
    rights to privacy and equality. For the purposes of these reasons, I am
    prepared to accept this characterization of the trial judges finding. My
    colleague endorses the trial judges reasoning and conclusion on this point.
    Respectfully, I do not.

[135]

I take no issue with the strong privacy interests contained in the
    CAS records and have nothing to add to my colleagues helpful review of the
    legal authorities on this point. In these reasons, I have kept squarely in mind
    the privacy, personal security, and equality of children who come into contact
    with the CAS, many of whom already come from highly marginalized and difficult
    circumstances:
Mills
, at para. 92;
R. v. A.M.
, 2008 CanLII
    59561 (Ont. S.C.), at para. 21. As Wein J. noted in
A.M.
, at para. 21,
    those who come into contact with the CAS are at risk of having their lives
    documented, which places an already marginalized group at a further
    disadvantage by making them the subject of additional scrutiny. I agree with
    that important observation, and I endorse the view that CAS records must be
    carefully guarded. Even so, they cannot be guarded at all costs.

[136]

Section 278.5(2) of the
Criminal Code

provides a
    list of many factors to be taken into account when determining whether the trial
    judge should review the third-party records after the issue of likely relevance
    has been determined in the affirmative. While the nature and extent of the
    reasonable expectation of privacy with respect to the record and the
    potential prejudice to the personal dignity and right to privacy of any person
    to whom the record relates are factors under ss. 278.5(2)(c) and (e) of the
Criminal
    Code
, there are others. For example, s. 278.5(2)(a) requires the judge to
    take into account the extent to which the record is necessary for the accused
    to make a full answer and defence. All of these factors and more are to be
    considered when determining whether it is necessary in the interests of justice
    that the likely relevant third-party records should be produced to the trial
    judge for review.

[137]

As I read my colleagues decision, at para. 66, the first reason
    given to explain why the appellants ability to make full answer and defence
    was outweighed by the complainants rights to privacy and equality is that the
    CAS records only had a relatively low probative value.

[138]

The difference between third-party records that are found to be
    likely relevant, yet of only low probative value, is a nuanced one. I need
    not delve into that distinction because, in my view, the CAS records were not of
    low probative value. To the contrary, and for the reasons already expressed,
    the CAS records stood at the other end of the probity spectrum. The preliminary
    inquiry evidence demonstrated that there was a near certainty that the CAS
    records would contain reliable, independent evidence of what was said to the
    CAS worker, which would stand in opposition to what the complainants would
    testify to at trial. There was also a near certainty that the CAS records would
    contain reliable, independent evidence about the CAS investigation itself,
    something that would further inform the defence counsels allegation of a
    motive to fabricate.

[139]

The second reason given by my colleague, at para. 66 of his reasons,
    to explain why it was unnecessary in the interests of justice for the trial
    judge to review the CAS records is that the appellant already had what he
    needed to challenge the complainants credibility arising from those [CAS]
    interviews
because the complainants admitted at the
    preliminary inquiry that they had lied to the CAS
 (emphasis added).

[140]

Respectfully, I do not agree with this reasoning because, in my
    view, it does not grapple with the true relevance of the CAS records. The fact
    that the complainants testified at the preliminary inquiry that they had lied
    to the CAS worker was not relevant to whether there was a reasonable
    possibility that the information contained in the CAS records would be
    logically probative to an issue at trial:
Mills
,

at para. 45,
    citing
OConnor
, at para. 22,
per
Lamer C.J. and Sopinka J.
    (dissenting, but not on this point). While the complainants evidence regarding
    their lies to the CAS worker and their reasons for having lied would no doubt
    weigh heavily in the assessment of their credibility at trial, that evidence
    did not serve to neutralize the probative value of what was very likely to be
    found in the CAS records. To suggest otherwise is the equivalent of saying that
    the complainants should be believed when they say they lied to the CAS worker.
    However, what if they told the truth to the CAS worker and were later lying at
    the preliminary inquiry about having not told the truth? Surely that was an
    issue for the trier of fact to sort out at trial.

[141]

This is not a case where the defence was grasping at straws about
    what might be in the CAS records. It is a case where everyone knew that the CAS
    records likely contained references to what the complainants told the CAS
    worker, and that those things would stand as the antithesis to what they would
    testify to at trial. All the defence needed were the actual CAS records, which
    would have provided the most accurate look into the CAS investigation and the
    most precise description of what the complainants actually told the CAS worker.

[142]

In short, the defence should not have been required to rely on the
    evidence of the complainants to recount with accuracy the things they said to
    the CAS worker or the circumstances surrounding the CAS investigation, both of
    which went to the very core of the appellants defence. This is particularly
    true given that the complainants had an admittedly difficult relationship with
    the truth.

[143]

Accordingly, in my view, the appellant did not already have what he
    needed to challenge the complainants credibility because the complainants
    admitted that they had lied.

[144]

Along these same lines, while I do not rely upon the trial record
    itself for the purposes of explaining why it was necessary in the interests of
    justice for the trial judge to review the records, it is worthy of mentioning
    that the centrality of the CAS investigation played out exactly as the defence
    counsel said it would at trial. So much so that the only thing missing from the
    trial were the actual CAS records that would have provided the most accurate
    account of the circumstances surrounding the investigation.

[145]

Even the trial Crown appreciated the relevance of the CAS
    investigation to the appellants defence, asking the complainants questions
    about the following topics:

How the CAS became involved;

Why they had lied to the CAS worker about the
    conditions of their parental home and of the home of the appellant and his
    wife;

Whom they spoke to at the CAS, the name of the
    CAS worker who interviewed them, and the spelling of her name;

The locations where the interviews with the
    CAS worker took place and who was present at those interviews; and

Why they no longer stayed at the home of the
    appellant and his wife after August 2015, which was the month that coincided
    with the CAS investigation.

[146]

Notably, both the
    appellant and his wife testified at trial, denying having coached the
    complainants to lie to the CAS. They also denied being involved in the
    preparation of S.s handwritten notes. While the appellants wife admitted at
    trial that she took the initial steps to get the CAS involved, she testified
    that she did so in consultation with a lawyer and only because the complainants
    were making so many concerning allegations about their parental home
    environment.

[147]

Again, this was not
    your typical third-party records application. There was nothing collateral or
    peripheral about the CAS investigation or the records recording that
    investigation. Considered in its entire context, and as informed by how the
    trial unfolded, the CAS investigation was central to the appellants defence at
    trial. Consistent with how it was argued at the third-party records
    application, the appellants defence played through as expected. The only thing
    they did not have were the actual CAS records that would have provided an
    accurate look into what was actually said and what actually happened in that
    CAS investigation.

[148]

In my view, it was necessary in the
    interests of justice for the trial judge to move to the second stage of the
    third-party records analysis and review the CAS records.

D.      The Second Stage OF THE THIRD-PARTY RECORDS
    ANALYSIS

[149]

The respondent argues that if this court finds a reversible error in
    the trial judges approach to the third-party records application, then rather
    than sending the matter back to a new trial, this court ought to receive and
    review the CAS records that were filed as a sealed exhibit at trial and conduct
    the second stage of the third-party records analysis. Only after that determination
    is made could this court decide whether a new trial is necessary.

[150]

The respondent is proposing that we use this courts power under s.
    683(1)(a) of the
Criminal Code
to order the production of the sealed
    CAS records. While there is some authority for this court to conduct such an
    exercise, I would decline to do so here: see
R. v. Bradey
, 2015 ONCA
    738, 331 C.C.C. (3d) 511, at paras. 72-74, 104-12.

[151]

In my view, the likely relevance of the CAS records is clear in this
    case, as are the interests of justice. The trial judge should have looked at
    the CAS records, and the second stage of the analysis should have unfolded in
    accordance with the statutory scheme.

[152]

I have little doubt that, subject to editing, the CAS records would
    have been released, in light of the evidence given at the preliminary inquiry
    and the central focus of the appellants defence at trial. Considering the
    entire context of this case, to embark upon the second stage of the analysis at
    this point would only serve to slow the new trial down.

E.      disposition

[153]

I would set aside the convictions and order a new trial. Presumably,
    if the parties and the Superior Court of Justice were in agreement, the issue
    involving the third-party records could proceed directly to the second stage of
    the analysis at the new trial.

Released: J.M.F. June 10, 2021

Fairburn
    A.C.J.O.

I
    agree. Coroza J.A.





[1]
The appellants Notice of Application sought all records of the
    [CAS] in relation to [the complainants mother] and [the complainants]. During
    oral submissions at the third-party records application, the defence counsel
    narrowed the application, targeting only the records related to the interviews
    conducted in August 2015 and any follow-up from those interviews. The defence
    counsel acknowledged that if, by chance, the CAS records contained reference
    to other involvement with the complainants or their family, that this was not
    something that the defence was seeking to have disclosed.


