Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems
Chapter 6 - Evidentiary issues
Evidentiary issues are extremely complex and can be very overwhelming for self-represented litigants. In the context of parallel or related proceedings involving family violence, there are a number of evidentiary issues that may potentially arise and which are related to coordination and safety, notably:
- Whether evidence from one proceeding may be produced by the parties as evidence in another proceeding (e.g. criminal to family and vice versa); and
- Whether the scope of disclosure of information to the accused in the criminal proceeding, or to the parent(s) in child protection proceedings, may have safety implications for the victim(s) of family violence.
In addition to litigants’ attempts to obtain evidence from one proceeding to place before another related proceeding, there is also the issue of whether the court can consider orders from a related proceeding even when the litigants have not introduced the orders into the record. This is particularly relevant where litigants are self-represented.
6.1 Evidence from one proceeding to another
When parties are involved in multiple proceedings stemming from situations of family violence, they may well find information and documents gathered for one case or investigation to be relevant and useful in another related court proceeding. For example, documents gathered by police as part of a criminal investigation or in preparation for a trial (known as Crown prosecution records or briefs) can include such information as:
- The statements given to the police by the accused, the complainant(s), and witnesses;
- “Will say statements” summarizing the anticipated evidence of the witnesses;
- Police occurrence or incident reports;
- Forensic reports;
- Medical reports; and
- Police officers’ statements and notes.
These may be very helpful to a parent who is attempting to gain custody or access to children in a private family law matter, especially when these documents support allegations of intimate partner violence or child abuse on the part of the other parent. Child protection officials may also want to access these police and prosecution records when attempting to establish a case that a child is in need of protection due to family violence. Likewise, information compiled by child protection agencies may be helpful to prove or defend against criminal charges relating to intimate partner violence or child abuse. These include:
- Investigative notes;
- Taped interviews;
- Statements from family, friends and neighbours; and
- Medical, psychiatric, therapeutic and educational records.
However, as we will see in this section, a party’s ability to access these documents or to file them as evidence will depend on more than mere relevance to the case.Footnote 255
Any party wishing to access information originally generated for the purpose of one proceeding and have it admitted as evidence in another proceeding must request it pursuant to the relevant court rules, which will vary according to jurisdiction and type of proceeding. However, even where production of information and its admissibility in court is provided for by statute or common law, trial judges always have the discretion to exclude evidence when the prejudicial impact outweighs its probative value. The court’s determination is therefore often highly contextual, requiring a delicate balancing of the various interests at stake.
The following sections describe certain challenges related to production of records in the context of criminal or civil trials. Most of the barriers to accessing and admitting potential evidence are grounded in statutory and common law rules. This section also points out some of the challenges that disclosure rules can pose to the safety of victims of family violence. The chapter ends with a discussion of recent initiatives which help provide courts with a consistent framework determining the admissibility of relevant police-generated records in civil matters, as well as to facilitate parties’ access to this information.
6.1.1 Criminal trials
The Crown prosecuting a criminal matter may be barred from submitting information that was generated for a civil or child protection case given the criminal law rules regarding hearsay,Footnote 256 prior statements,Footnote 257 self-incrimination,Footnote 258 and the non-admissibility of involuntary out-of-court statements.Footnote 259 Parties may furthermore be restricted from accessing and filing child protection records – however relevant – on the basis of the public interest in promoting therapeutic and other relationships of trust, as well as by concerns to protect the privacy of individuals who deal with social agencies.Footnote 260 In summarizing the position of the Children’s Aid Society (CAS) in R v Medwid, the Ontario Court of Justice confirmed the importance of privacy:
Applications involving [CAS] records tend to place an already marginalized group at a further disadvantage by making them the subject of additional scrutiny based solely on the fact that their lives have been documented by reason of their involvement with social agencies. As well, therapeutic records developed in the course of contact with social agencies hold a particular privacy interest because they are characterized by an inherent assumption of confidentiality and trust, such that revealing the records bears the risk of impairing the dignity of the subject person.Footnote 261
It should be noted that in the bail context the rules of evidence are relaxed. The court may make its decision about whether to detain or release the accused pursuant to Part XVI of the Criminal Code based on evidence considered credible or trustworthy notwithstanding that the evidence may not be admissible at trial.Footnote 262 Thus in the bail context it is possible for the court to consider information from third parties, such as a child protection agency, to decide whether the accused should be released or detained in custody. Of particular relevance in the child protection context is paragraph 518(1)(d.1) of the Criminal Code which directs a justice deciding whether to release or detain an accused to take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of, or witness to, an offence.
6.1.2 Disclosure to the accused in the criminal proceeding and to parents in child protection proceedings
Disclosure rules in the criminal and the child protection contexts are grounded in constitutionally protected rights. Disclosure in the criminal context can potentially place the accused in an advantageous position with respect to a family law matter in which the other parent may not have access to the same evidence related to incidents of family violence. There are also concerns that the accused might receive disclosure of sensitive information in the possession of the Crown or may have a right to access sensitive information in the possession of a third party. For instance, information gathered in the context of a risk assessment related to whether the victim is in another romantic relationship could trigger retaliatory violence against the victim should the accused obtain the information through either disclosure or through a right to access information. Similar concerns arise in the context of disclosure of records to an allegedly abusive parent in the context of child protection hearings.
In order to ensure that the Charter rights of the accused to make full answer and defence are respected, the defence has the right to disclosure of all relevant information in the Crown’s possession (Crown disclosure) as well as a right to access material in the possession of a third party (third party disclosure).Footnote 263 In R v Stinchcombe, the Supreme Court of Canada clarified and consolidated the general principle of Crown disclosure, as summarized in R v Taillefer:
The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea. Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. This Court has defined the concept of “relevance” broadly…Footnote 264
The obligation of the police to provide the prosecution with disclosure under Stinchcombe is limited to all materials pertaining to the investigation of the accused.Footnote 265 The Crown then has some very limited discretion with respect to the manner and timing of disclosureFootnote 266 to the defence but the absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege, most notably informer and solicitor-client privilege (two forms of “class privilege”)Footnote 267 and privilege in counselling records.Footnote 268 Solicitor-client privilege has been classified as a principle of fundamental justice by the Supreme Court of Canada.Footnote 269 Therefore, the obligation to produce solicitor-client privileged materials through disclosure, as with informer privilege, arises only when the accused’s innocence is at stakeFootnote 270 or where there is a threat to public safety.Footnote 271
With regards to third party records (including psychiatric, medical or other counselling records), the privilege must be assessed on a case-by-case analysis according to the Wigmore test for privilege.Footnote 272 Moreover, access to third party records to which the complainant has a reasonable expectation of privacy is governed by both the common law rules (known as the O’Connor rules)Footnote 273 and by sections 278.1 to 278.91 of the Criminal Code. The statutory provisions cover and include education, employment, child welfare and social services records,Footnote 274 however, these provisions apply only to listed sexual offences; for non-sexual family violence offences, the O’Connor rules would apply.
It should be noted that privilege belongs to the “holder”, for whose benefit it was created, and can therefore be explicitly or implicitly waived.Footnote 275 Therefore, in most cases where confidential information was provided by a victim to a counsellor and then subsequently shared with others upon the consent of the victim (e.g. through a risk assessment) the privilege will likely have been waived. Moreover, the disclosure rules apply to all relevant material even if the material is not in the hands of the Crown. Production requests for third party records may result in disclosure unless the records can be withheld under sections 278.1 to 278.91 of the Criminal Code (for sexual offences) or under the O’Connor rules.Footnote 276
In child protection cases, standards for disclosure are set out in provincial child protection legislation.Footnote 277 In addition, as noted above, constitutional disclosure requirements similar to those in the criminal context, apply in the context of child protection matters since the state removal of the child from parental custody constitutes an interference with the psychological integrity of the parent and triggers Charter protection.Footnote 278
6.1.3 Family law and child protection trials
Police investigation and child protection files are routinely shared between these two agencies on an informal basis. This is especially true if police and child protection officers are conducting a joint investigation in their efforts to obtain all relevant information required to ensure the safety of victims of family violence. However, where there has been disagreement over the production of police investigation records in child protection cases, courts have placed a strong emphasis on accessing information which can help to determine the best interest of the children, even at the expense of privacy concerns or potential Charter violations. While police reports and witness statements may be of questionable value as evidence of parental capacity, (especially if they have not led to the laying of actual criminal charges and have not been scrutinized under cross-examination), evidence of past criminal behaviour has generally been considered relevant to child custody disputes and protection applications. These documents will normally be redacted or information withheld to reflect concerns for the integrity of the criminal justice system, the goal of witness cooperation, party and third party privacy rights, safety concerns and Crown privileges.
Tensions are heightened, however, when such Crown prosecution/police investigation records are sought by child protection agencies when there is an ongoing criminal matter, especially when the documents at issue will be subsequently disclosed to parents who are themselves implicated in the criminal file. It is important to keep in mind that in the child protection context, parents have the right to access most of the documents in the hands of child protection agencies relating to their case. Therefore, releasing police files to these agencies may directly result in their being released to the parents. In such circumstances, there may be a real concern that prematurely exposing prosecution/investigation records will jeopardize the integrity of the criminal investigation or trial. On the other hand, given the often slow pace by which criminal matters proceed through the courts, the urgency of having child custody and protection issues handled quickly with the help of the broadest possible evidentiary record is also of great public interest. Courts have asserted that when it comes to family violence, neither system is paramount. Indeed, since both systems are designed to protect the safety of those vulnerable to family violence and abuse, when interests collide, courts will have to engage in a fact-driven and sensitive balancing process. As noted in Children's Aid Society of Algoma v S BFootnote 279:
In reality, the collective criminal justice system and child protection system are integrated and have separate and overlapping features to protect the mother and the children. Neither system by itself offers the optimal protection of the mother or the children. Only a blend of the two systems and proceedings can optimize the protection of the mother and children.
6.1.4 Practical issues
A review of the law in this area demonstrates that it is highly complex, even for those who are legally trained. One can only imagine how overwhelming evidentiary issues would be for unrepresented litigants, who comprise a large number of individuals in the family law context. A self-represented litigant, seeking to have information from a criminal proceeding introduced as evidence in a family law trial, will likely find it extremely challenging. In some cases, this may result in inconsistent findings in the criminal and family cases. Mr. Justice Harvey Brownstone has written the following about this issue:
There have been cases in which a family court was not satisfied on a balance of probabilities that Parent A assaulted Parent B, and yet a criminal court was satisfied beyond a reasonable doubt that the assault occurred. How could this happen if the standard of proof in family court is so much lower than in criminal court? If the evidence was not even compelling enough to convince a family court judge that Parent A probably assaulted Parent B, how could a criminal court judge (or jury) find beyond a reasonable doubt that the assault happened?
There can be several reasons for this apparent inconsistency. Different evidence may have been presented in each case. For example, medical records providing the injuries may have been presented in the criminal court case but not in the family court case. Witnesses who observed the incident may have testified in the criminal court but not in the family court case. I have seen this happen in cases in which the assaulted party did not have a lawyer in the family court case and did not put the best available evidence before the court. In criminal court, this problem does not exist because the prosecution does all of the work in obtaining and presenting the evidence needed to prove the offence.Footnote 280
6.1.5 Judicial consideration of orders and evidence not on the record
Concerns have been expressed regarding how a judge might consider orders and evidence from another proceeding, where that evidence has not been adduced by the litigants and therefore not on the record before the court. A judge may be placed in a difficult position, being aware of a relevant order or evidence in another proceeding involving the same litigants and yet not wanting to intrude on the adversarial process and jeopardize trial fairness by considering evidence which has not been formally admitted.Footnote 281 There is jurisprudence which highlights this evidentiary issue.Footnote 282 Proponents of the Integrated Domestic Violence Courts in the State of New York assert that the court can take judicial notice of information contained in another case where notice has been provided to both parties and the information has been made part of the record.Footnote 283 It is unclear in the Canadian context whether the doctrine of judicial notice would apply in such circumstances.Footnote 284
6.2 Promising practices
6.2.1 D P v Wagg
Although determining when to order the production of Crown prosecution records is a highly contextual exercise, certain guidelines are being developed. The Ontario Court of Appeal, in the 2004 case of D P v WaggFootnote 285 adopted a screening process which has since been widely applied when these records are being sought for use in a civil matter. In Wagg, the plaintiff brought a civil action for damages arising out of an alleged sexual assault by the defendant. The defendant had not been criminally convicted, since the charges were stayed due to unreasonable delay. In support of her civil action, the plaintiff was seeking the production of statements the defendant had given to police during the criminal investigation. These statements had been held to be inadmissible at the criminal trial because the Court found that the right of the accused to counsel under section 10(b) of the Charter had been violated.
As a result of disclosure during the criminal trial, the defendant in Wagg was in possession of the police investigation records held by the prosecution. Under the Ontario Rules of Civil Procedure, there was no mechanism to put the Crown on notice regarding the production request, and no way to afford the Crown the opportunity to be heard on the matter. In order to address this issue, and in particular concerns related to privacy and the integrity of the criminal process, the Ontario Court of Appeal confirmed the use of a process which has come to be known as the Wagg screening mechanism, and ordered the evidence to be produced. While emphasizing the importance of having the most complete form of discovery possible in civil proceedings, Justice Rosenburg accepted that there may be compelling public interest reasons for withholding some information.Footnote 286
The process adopted by the Court of Appeal in Wagg is as follows:
- A party in possession of Crown prosecution materials must disclose their existence in the affidavit of documents if they are party to a civil proceeding in which the materials may be relevant.
- Secondly, that party should not disclose the full contents of the records until the Crown, the police, or both have consented to its release, or until a court order has been issued compelling its disclosure. When deciding whether to compel disclosure, the court must be satisfied that the record in question contains information that may be relevant.
- If this threshold is met, the court then embarks upon a weighing process in order to determine whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information.”Footnote 287
Justice Rosenberg recognized that the Wagg screening process could add significant delay and cost to litigation.Footnote 288 However, he thought that most production requests could be resolved on consent:
I would expect that the parties and the state agents could usually agree to disclosure of materials in many circumstances. Where the party in possession of the Crown prosecution records has access to the materials, fairness will generally dictate that they be produced to the other side.…
As well, the parties and the state agents should agree to produce any information in the Crown prosecution records that was used in court in the course of the criminal prosecution, subject to some interest of superordinate importance, such as private records of sexual assault complainants or confidential medical records.Footnote 289
While not adopted in every jurisdiction, the Wagg screening process has been used both in and outside of Ontario and has been mentioned with approval by the Supreme Court of Canada.Footnote 290
Since Wagg had to do with private parties litigating a civil matter, the issue quickly arose whether the Wagg procedure also applied when public bodies such as CAS were seeking access to prosecution records. Indeed, amongst the explosion of requests for prosecution records made to the Ontario Ministry of the Attorney General following Wagg, twenty percent involved child protection cases, second only to motor vehicle accidents.Footnote 291 A 2007 decision, Children’s Aid Society of Algoma v D P,Footnote 292 settled the issue, confirming that Wagg does apply to CAS applications for third party records.
In Algoma, the CAS was concerned that children in a reportedly high-conflict and violent household were at risk of emotional harm and exposure to inappropriate conduct. The CAS requested that the Attorney General (AG) of Ontario disclose police records, the contents of Crown prosecution records and probation and parole records in relation to the children’s mother and her boyfriend. The AG asserted a privacy interest on the part of third parties identified in the records. The AG also expressed concern that there would be a "litigation chill" for criminal matters if the information was produced: witnesses might be reluctant to cooperate with police if their names might afterwards be disclosed to the CAS.Footnote 293
The CAS argued that the privacy rights of those third parties should be trumped by the need to protect the best interest of the children. In this case, there was no ongoing criminal investigation, the integrity of which might be affected by the production of records. Justice Pardu agreed that privacy and public interest concerns may potentially limit production, although that will be rare considering the “substantial public interest in supporting the work of children's aid societies.”Footnote 294 Ultimately, CAS was given access to the files, with the exception of internal police codes, Finger Print Service numbers, and confidential informant names which were redacted. In addition, for copies provided to the children’s parents by way of disclosure, the court further ordered the removal of third party social insurance, driver's license and license plate numbers, dates of birth, telephone numbers and addresses. The court stated that:
[I]ndividuals who give police information that raises concerns about the wellbeing of a child, should expect that that information will be transmitted to a children's aid society, as police officers are required to report reasonable suspicions that a child may be at risk to a children's aid society. (…) While there may be records which are exceptionally sensitive and touch upon intensely private matters and should be protected from disclosure even to [a] children’s aid society, on the ground that they are of marginal utility to an investigation, in most cases production of relevant police records to a children’s aid society will not undermine the reasonable expectations of privacy referred to in those records.Footnote 295
It should be noted that there are different practices in various provinces and territories with respect to Wagg applications with varying degrees of cooperation between the child protection and Crown prosecution services.
6.2.2 Uniform Prosecution Records Act
In 2010, the Uniform Law Conference of Canada (ULCC) adopted a uniform law in order to provide a consistent set of rules regarding the admissibility of Crown prosecution recordsFootnote 296 in civil and administrative proceedings.Footnote 297 The effect of the Uniform Prosecution Records Act would be to extend the principles adopted in D P v Wagg uniformly across Canada when the Crown or police refuse to produce requested documents.Footnote 298
According to the Uniform Prosecution Records Act, under ordinary circumstances, prosecution materials can only be produced upon the consent of the Attorney General or the Ministry responsible for the investigation and prosecution of the offence, or of the relevant police force.Footnote 299 The only exception would be when a court orders production under the rules established in the Act.Footnote 300 This rule does not apply to prosecution records being shared between child protection authorities.Footnote 301 Subsection 3(3) empowers courts to make a determination as to who should receive notice of an application for disclosure, with the expectation that those who are the subject of the prosecution records will have the reasonable opportunity to make representations.
When considering whether to compel production despite objections, subsection 4(2) directs the court to take into consideration the following factors:
- The stage in the proceeding at which the court hears the application;
- The specific purpose for which the application is made and the anticipated use of the prosecution record in the proceeding;
- Whether the information contained in the prosecution record is readily available from another source;
- The role of the following persons in the investigation or prosecution to which the prosecution relates:
- The party, if any, wishing to produce the prosecution record;
- Any party to whom or on whose behalf the prosecution record would be produced;
- The privacy interests of any person who is referred to in the prosecution record;
- In the case of a child protection proceeding, the best interests of the child who is the subject of the proceeding;
- Any other relevant factor.
According to subsection 4(3) of the Uniform Prosecution Records Act, the court is to refuse an application for production if there is an ongoing investigation or prosecution to which the record relates, unless the records are being sought for a child protection proceeding, or unless other special circumstances militate in favour of production. It is worth noting that the best interests of the child who is the subject of a private custody or access matter in a family court is not specified as a relevant factor which would weigh in favour of compelling production.
6.2.3 Use of access to information legislation
Because the Wagg application process does not appear to be widespread across the country, litigants in many jurisdictions rely upon applications for information through the relevant access to information legislation. For example, in Alberta the Freedom of Information and Protection of Privacy ActFootnote 302 contains a section that allows a public body (which would include Crown prosecutors) to disclose personal information under the following relevant circumstances:
40(1) A public body may disclose personal information only
(v) for use in a proceeding before a court or quasi-judicial body to which the Government of Alberta or a public body is a party,
(ee) if the head of the public body believes, on reasonable grounds, that the disclosure will avert or minimize an imminent danger to the health or safety of any person,
(gg) to a law enforcement agency, an organization providing services to a minor, another public body or any prescribed person or body if the information is in respect of a minor or a parent or guardian of a minor and the head of the public body believes, on reasonable grounds, that the disclosure is in the best interests of that minor.
For more information on privacy legislation and the exchange of information, see Chapter 7.
6.2.4 Ontario protocols
As indicated by Justice Rosenburg and by the Uniform Prosecution Records Act, the Wagg decision does not preclude the Crown or relevant police forces from choosing to release their own materials. According to Helen Murphy of the Catholic Children’s Aid Society of Toronto, resistance to information sharing in these circumstances can often be resolved through discussions between the counsel for child protection and counsel for the Crown, provided that a Crown is assigned to the criminal matter at an early stage of the proceedings.Footnote 303 Taking this arrangement one step further, a protocol has recently been implemented in Ontario to facilitate the release of information directly between police services and a CAS, without the need for the involvement of the Ministry of the Attorney General. According to the protocol, the CAS files a Wagg motion with the court and serves the police, who respond with a template order for the court. The protocol specifies that when there are no outstanding charges or ongoing proceedings, the police force is empowered to release the police-generated information in its possession, subject to a number of considerations including statutory protections, public interest immunity and/or privileges and third party privacy. Information is provided which covers the essential substance needed to inform the applicant of the child welfare concerns (i.e. synopses, statements, police officer notes, forensic reports). The recipient must also agree not to use the information outside of the child protection proceeding for which it is being sought.
While third parties have an interest in protecting their privacy in these matters, it would be extremely time intensive if not impossible to try to contact them all to obtain their consent to disclosure. Therefore, the Attorney General and police have tried to assess the appropriate balance between relevancy and privacy when it comes to third parties whose information is being sought through a Wagg motion. Routine redactions include addresses, personal information, driver’s licence and health care numbers, unrelated criminal records, psychiatric records, medical history, journals, autopsy photos and statute-based exclusions (such as DNA information, wiretap materials, youth records and information obtained via a search warrant under the Criminal Code).
According to the Ontario Ministry of the Attorney General, the template order has been a success; the demand to the AG’s office has dropped considerably and there has not been one litigated case since the template order came into use. Nonetheless, the Ministry of the Attorney General’s office continues to handle about five hundred disclosure requests per year and, given how context-sensitive these requests can be, there remain opportunities for creativity and compromise in crafting the release order. A very similar template order is currently being introduced for use by the Ontario Office of the Children’s lawyer.
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