R. v. N.R.H.

R. v. N.R.H.

Accused met procedural requirements and established a credibly-based probability of relevance through an existing 1998 psychological report and a 2006 videotaped statement; production of CAS records to the court was necessary in the interests of justice. After in-camera review, the judge balanced s.278.5(2) factors and ordered limited disclosure of investigatory (non-therapeutic) materials from the child's CAS file while refusing release of files and tapes that were tangential or overly prejudicial to non-parties.

Citation
2008 NSPC 38
Parties
Crown: Her Majesty the Queen; Accused: N.R.H.; Record Holder/intervener: Children's Aid Society of Cape Breton/Victoria; Mother/third Party: S.M.M.; Complainant: S.L.
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
4 July 2008
Procedural Posture
Criminal — Sexual Offence (criminal Code S.151(a)) / Pre Trial Application for Production and Release of Third Party Records Under S.278.3 (two Stage O'connor Process)
Outcome
Partial disclosure ordered after in-camera review; some CAS files and tapes withheld, specified portions of the child's CAS file and subfile ordered produced to counsel
Legal Topics
Production of Records, Section 278.3 Application, O'connor/mills Jurisprudence, Balancing Right to Full Answer and Defence and Privacy, Disclosure of Investigatory (non Therapeutic) Records
Source Language
English
Criminal Law Evidence Child Protection Privacy Law Production of Records Section 278.3 Application O'connor/mills Jurisprudence Balancing Right to Full Answer and Defence and Privacy +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Her Majesty the Queen

Crown

N.R.H.

Accused

Children's Aid Society of Cape Breton/Victoria

Record Holder/intervener

S.M.M.

Mother/third Party

S.L.

Complainant

Procedural Posture

Criminal — Sexual Offence (criminal Code S.151(a)) / Pre Trial Application for Production and Release of Third Party Records Under S.278.3 (two Stage O'connor Process)

Legal Issues

  1. 1 Whether the CAS records are likely relevant under s.278.3
  2. 2 Whether production of CAS records is necessary in the interests of justice under s.278.3/s.278.7
  3. 3 How to balance the accused's right to make full answer and defence against the complainant's and third parties' privacy rights using s.278.5(2) factors

Ratio Decidendi

Accused met procedural requirements and established a credibly-based probability of relevance through an existing 1998 psychological report and a 2006 videotaped statement; production of CAS records to the court was necessary in the interests of justice. After in-camera review, the judge balanced s.278.5(2) factors and ordered limited disclosure of investigatory (non-therapeutic) materials from the child's CAS file while refusing release of files and tapes that were tangential or overly prejudicial to non-parties.

Court Disposition

Partial disclosure ordered after in-camera review; some CAS files and tapes withheld, specified portions of the child's CAS file and subfile ordered produced to counsel

Orders

  • Order that CAS file CS338R01, Case ID 79751 pages 19-50 inclusive be copied and provided to Crown counsel and counsel for N.R.H.
  • Order that CAS subfile from July 14, 1997 to November 29, 2007 (intake sheets, case notes, case audit checklists, referral forms and reports) be copied and provided to Crown counsel and counsel for N.R.H.