R. v. Cardinal

Parties

Procedural Posture

Criminal / Pre Trial S.278.3 Production Application (in‑camera Review Under Ss.278.5 278.7)

Legal Issues

1. 1 Whether records of three third parties are likely relevant under s.278.5(1)(b)
2. 2 Whether production to the judge and thereafter to the accused is necessary in the interests of justice under ss.278.5 and 278.7
3. 3 Balancing accused's right to full answer and defence against complainant's privacy and societal interest in reporting/treatment

Ratio Decidendi

The judge ordered in‑camera production of records from all three third parties for review because the accused showed likely relevance; after review, the judge determined that only portions of the Kiwanis Emergency Youth Shelter records met the s.278.7 tests of likely relevance and necessity in the interests of justice and must be produced (with redactions), while records of Discovery Youth and Family Counselling Centre and Victoria Women's Sexual Assault Centre do not meet the tests and are not producible to the accused; complete records are sealed and retained by the court pending appeal.

Court Disposition

Application allowed in part: all three third parties ordered to produce records for judge's in‑camera review; portions of Kiwanis Emergency Youth Shelter records produced to accused (selected and redacted); records of Discovery Youth and Family Counselling Centre and Victoria Women's Sexual Assault Centre withheld...

Orders

• Pursuant to s.278.5(1) all three third parties produce records relating to the complainant and the November 2, 2010 incident to the judge for review
• Portions of Kiwanis Emergency Youth Shelter records (selected and redacted, numbered pages 1–10) to be provided to the accused, the Crown and Ms. Sophie Nielsen