R. v. D.D.W.

114 C.C.C. (3d) 506

Facts

BC CA

charged with incest, rape and indecent assault in relation to his younger sister complainant gave birth to a daughter who was given up for adoption...In order to disprove paternity, and to attack the credibility of the complainant, the accused sought the court's assistance in obtaining DNA testing of the complainant's child...The trial judge held that the identity records of the child were not in the possession of the Crown and that the accused's right to make full answer and defence had not been infringed by the failure to provide him with an opportunity to obtain samples of bodily fluids from the child allegedly born of the incestuous relationship. As a result, the trial judge dismissed the application. The trial judge also dismissed the accused's applications for a declaration that the confidentiality sections of the Adoption Act, R.S.B.C. 1979, c. 4, were of no force or effect, and for a stay of proceedings based on the inability of the accused to make full answer and defence

Reasons

BC CA

per MCEACHERN C.J.B.C.: 1. The purpose of the disclosure sought on this application was clearly contrary to the best interests of the child and contrary to the reasonable privacy expectations of the child and her parents as contemplated by the Adoption Act. The right to make full answer and defence, however, is not an absolute right: R. v. Olscamp (1994), 91 C.C.C. (3d) 180 (Ont. Ct. (Gen. Div.)) at 185. Moreover, it has been stated that no one has the right to a perfect trial. Perfection is tempered by balancing concepts such as relevance and privacy, the end result being that the trial will be fair. Whether this "defence" right will prevail over competing rights and interests must be determined by a relevance and balancing process that has become common in Charter jurisprudence as discussed in cases such as O'Connor and Carosella, (both supra). the court lacks authority except possibly in the most compelling circumstances not present in this case to require the child to furnish a bodily sample for DNA testing ....the first question to be decided is whether the information in question would meet the threshold of disclosure established in either Stinchcombe or O'Connor, i.e., being information of likely relevance that would be turned over to the accused after consideration by the court. ...it becomes necessary to balance the competing interests. I would apply the test in O'Connor rather than Stinchcombe because the documents are not in the possession of the Crown. Thus, the first question is whether the Superintendent should be required to disclose the identity and whereabouts of the child so that she may be asked to give an informed consent to furnish a sample that might establish that she is the product of an incestuous incident...After considering all relevant authorities and circumstances, the learned trial judge concluded that the right of the accused to make full answer and defence had not been infringed by the failure to provide him with an opportunity to obtain samples of bodily fluids from the child. ... Melvin J. was right in deciding not to require disclosure of the name and whereabouts, if known, of the child. In supporting this view, I have applied the O'Connor test which the majority, quoting from L'Heureux-Dub� J. at p. 441-42, requires the judge to: ... examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence. � "(1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias" and "(5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question." five factors that tip the scales against the accused in this case. 1. totally and completely innocent, non-participating person 2. production of the identification records may do nothing for the accused and could do irreparable harm to the child 3. the accused in his statement to the police admitted some incidents of sexual misconduct towards his younger sister..Fourth, the accused has not agreed to furnish his own sample for testing. Fifth, a balancing process such as is required in this case depends ultimately upon the view of the judge upon the relative significance of the competing interests. The right to make full answer and defence is indeed a most important, constitutionally protected right, but so is privacy, particularly for innocent children...the judge decided that the right of the accused to explore this possibly illusive defence did not outweigh the statutory and intensely private right of this young person to be p

Reasons

BC CA

Per HALL J.A: I concur generally in the reasons and conclusion of the Chief Justice and would therefore dismiss the appeal. However, I would like to add a few brief comments as to why I believe that this result occasions no injustice to this appellant. ...it is significant that not only did evidence concerning sexual relations emanate from the complainant but that sexual activity was admitted by the appellant...For good policy reasons, the legislative regimes in the provinces across Canada have long protected and fostered the confidentiality interests of adopted persons and adopting parents.... I do not believe that in this case the appellant had any "right" proceeding from the Charter or otherwise to break in upon the privacy rights of the adopted child and adopting parents. ...Concerning the right to make full answer and defence by the appellant relative to his opportunity to test the credibility of the complainant herein, it seems to me that there existed a substantial body of evidence that was available to the appellant concerning this paternity issue.

Reasons

BC CA

Per PROWSE J.A. (dissenting): the denial of the accused's application to access the adoption file and thereby ascertain the identity of the child for the purpose of obtaining a blood sample for DNA testing constituted a substantial interference with his right to make full answer and defence. I also conclude that the only effective remedy available to the accused in these circumstances is a judicial stay of proceedings. ...four issues: (1) the "indivisibility of the Crown" as it relates to disclosure; (2) whether the court had the jurisdiction to make an order that the child provide a blood sample for DNA analysis; (3) whether the ruling denying the accused access to the child's adoption records, thereby precluding him from pursuing a blood sample from the child for DNA testing, violated his right to make full answer and defence; (4) if the accused was denied the right to make full answer and defence, what is his remedy? ...Counsel for the accused submits that the Crown is "indivisible" and, thus, documents held by one Crown ministry should be deemed to be in the possession of Crown counsel and subject to disclosure to the accused in accordance with the principles set forth in R. v. Stinchcombe, [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277�.R. v. Gingras (1992), 11 C.R. (4th) 294, 71 C.C.C. (3d) 53, the Alberta Court of Appeal rejected the suggestion that there was an onus on Crown counsel to make inquiries of all government departments to determine whether any records which might relate to the criminal prosecution were available and, if so, to obtain them and disclose them to the accused. In that case, the records sought by the accused were prison records held by an institution in Saskatchewan. ...R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, Madam Justice L'Heureux-Dub�, speaking for herself and three other members of the court, cited Gingras for the proposition that the Crown's obligation to disclose does not extend to records which are not within its possession or control. It is evident from her reference to Gingras that she would not have regarded documents such as those at issue here as being in the possession of Crown counsel. The New Brunswick Court of Appeal took a much broader view of the obligations of Crown counsel in R. v. Arsenault (1994), 93 C.C.C. (3d) 111. At p. 117 "the material in the file will have been generated or compiled through a police investigation. When disclosure is demanded or requested, Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. Counsel cannot be excused for any failure to make reasonable inquiries when, to the knowledge of the prosecutor or the police, there has been another Crown agency involved in the investigation. Relevancy cannot be left to be determined by the uninitiated. If Crown counsel is denied access to another agency's file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be in the best interests of the accused."...In Arsenault, Crown counsel was aware that the Ministry of Health and Community Services had been involved in the investigation of the accused. At that time, there was an established written protocol in place between the Department of the Attorney General and the Department of Health and Community Services with respect to pre-trial disclosure of records to the Crown in criminal prosecutions. The Ministry of Health and [page530] Community Services failed to provide the Crown with some of the evidence it had gathered prior to trial. ...Arsenault was followed by the New Brunswick Court of Appeal in R. v. Blyth (1996), 105 C.C.C. (3d) 378, where the court upheld a stay granted by a trial judge in similar circumstances This Court distinguished Arsenault in R. v. L. (P.S) (1995), 103 C.C.C. (3d) 341, in finding that documents which had been in the hands of a govern

Another Issue

BC CA

1. adoption records ... locate the child, and furnish a DNA sample 2. confidentiality sections Adoption Act no force or effect 3. application for a stay of proceedings based upon the inability of the accused to make full answer and defence