Ontario Criminal


Disclosure

GENERAL

Defence established that child protection records were likely relevant to credibility and reliability of children

Two accused charged with allegedly abusing, physically, their two children. Charges included assaults with weapons including wooden type kitchen utensil, black leather belt, mustard bottle and wooden spoon. Records in question had been deposited with court and remained sealed. Accused alleged that records in question were likely relevant to issue at trial, namely, credibility and reliability of children complainants. Records would show, submitted accused, that children had history of making false allegations of abuse. Accused, represented by different counsel, jointly applied to court for disclosure of records in possession of Bruce Grey Child and Family Services (BGCFS), both before and after alleged offences dates, related to allegations made by children that they were abused by other persons. Court to unseal records and review them then give to counsel judicial summary of those records before reassembling to address second stage of application, namely, whether all or some of records ought to be disclosed to defence. Court rejected defence assertion that records were likely relevant to competence of children, or either of them, to testify. Defence was confusing issue of competence with those of credibility and reliability. Defence had established on balance of probabilities that records were likely relevant to credibility and reliability of children and had potential impeachment value, regardless of fact that some of records had already been disclosed to counsel for one of accused in ongoing child protection proceeding. It was clear from evidence that children had made similar allegations against other persons, including foster parents and another individual. There was case specific evidence that those similar allegations against other persons had been recanted, at least partially, by children. There was case specific evidence that those similar allegations against other persons were false, or at least they were investigated and determined to be unfounded.

R. v. C. (J.) (Dec. 15, 2015, Ont. S.C.J., Conlan J., File No. CR-14-265-0000) 126 W.C.B. (2d) 548

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