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Title: R. v. D.D.W.
Cite: 114 C.C.C. (3d) 506
Court: BC CA
Justices: McEachern C.J.B.C., Prowse and Hall JJ.A.
Result: Appeal dismissed
Charges: Incest, Rape and Indecent assault
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 Edit
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 Edit
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-Dubé 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 protected, by being left alone. …2. if there were any breach, that the provisions of the former were justified upon a s. 1 Oakes analysis [ R. v. Oakes (1986), 24 C.C.C. (3d) 321]. With respect, I agree with these conclusions. Any constitutional override would have to be on a case by case basis, and not upon any lack of constitutionality of the Adoption Act. II. This case, in my view, is not one of those clearest of cases where a stay should be directed. Certainty, such as might be furnished by DNA testing, is much to be desired, but as there was no misconduct on the part of the Crown or anyone in relation to this desired information, and no assurance DNA testing could be achieved or that it would be helpful in any event, it is difficult to see how this case could be classified as one of the clearest of cases. As the trial judge mentioned, the accused was as able to defend himself in a credibility contest as most of those accused with sexual offences. Edit
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. Edit
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,  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,  4 S.C.R. 411, 103 C.C.C. (3d) 1, Madam Justice L'Heureux-Dubé, 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 government-funded transition house could not be viewed as having been in the possession of the Crown. In that case, the documents had been destroyed and the defence was seeking a stay of proceedings. I accept the proposition that Crown agents or departments which are involved in the investigation of a criminal case with respect to a particular accused should disclose documents relating to that investigation to Crown counsel, and, as a corollary, that Crown counsel should take steps to obtain all such documents from those investigating agents or departments of which it is aware. In this case, however, the Ministry of Social Services was not involved in the investigation of the accused. It has no connection with this case other than the fact that it happens to be in possession of records which the accused wishes to obtain to further his defence. These records are held subject to statutory authority which requires that they be disclosed to no one, except in limited circumstances which do not pertain here. Crown counsel's access to these records is no greater than that of the defence. They cannot be said to be in Crown counsel's possession for purposes of disclosure. ...the principles of disclosure set forth in Stinchcombe would not require the Crown to disclose these records even if they were deemed to be in Crown counsel's possession, since there is clearly an issue of privilege attaching to the documents which would have to be resolved by the court prior to disclosure. I would dismiss this ground of appeal. ...I share the view of Charron J. (as she then was) in R. v. Olscamp (1994), 91 C.C.C. (3d) 180 (Ont. Ct. (Gen. Div.)), that the court's power to order DNA testing of a third party can be found under s. 24(1) of the Canadian Charter of Rights ...In my view, the court would be loathe to make such an intrusive order except in the most rare and compelling of circumstances, since to do so would tend to bring the administration of justice into disrepute in the eyes of the public. Rather, the court would be required to consider whether the refusal to make such an order would significantly impair the accused's ability to make full answer and defence, and, if so, what remedy would be appropriate by way of redress. ...In this case, the decision of the trial judge refusing to order disclosure of the adoption file effectively disposed of the application for DNA testing… In these unusual circumstances, I regard this child's right to privacy and security of the person as so critical and fundamental that it could not be placed at risk by the traditional "balancing of interests approach" set forth in such cases as O'Connor, supra. The O'Connor decision was not designed to address the problem facing us here and is not readily adapted to do so. the only other situation in which the courts have refused to engage in this balancing of interests analysis because of the vital interests at stake is in the case of informer privilege. (See, for example, R. v. Leipert (6 February 1997), File No. 25293 (S.C.C.)) [reported 112 C.C.C. (3d) 385]. While the analogy is less than perfect, I am satisfied that the potential consequences to this child of being informed of the alleged circumstances surrounding her conception would be as psychologically devastating to her as the potential consequences to an informer of having his or her identity revealed during the course of criminal proceedings. In this case, I have concluded that the child's right to privacy and security of the person must be protected. That does not mean that the accused's right to make full answer and defence must be compromised, or must yield to the rights of the child, if he can establish a breach, or apprehended breach, of his right to make full answer and defence. I am persuaded that the accused's inability to obtain access to relevant and cogent evidence which had the potential to significantly undermine the credibility of the complainant on a point which became a significant one during the course of the trial, impaired his right to make full answer and defence in a substantial way so as to constitute a breach of his rights under s. 7 of the Charter. In my view, the accused in this case has a much stronger basis for arguing that his right to make full answer and defence was impaired than, for example, the accused in Carosella. In Carosella, the principal argument relied upon by the accused for production of the missing records was, apparently, that they may disclose inconsistent statements of the complainant which would be useful to the defence in cross-examination. The majority of the Court, nonetheless, upheld the trial judge's decision that the inability of the accused to access the records interfered with his right to make full answer and defence and that a stay of proceedings was the appropriate remedy. Here, by way of contrast, the accused was seeking to obtain existing and specific evidence which indisputably had the potential to seriously undermine the credibility of the complainant. ...I see no alternative but to grant a judicial stay of proceedings on the basis that there is no other manner of effectively redressing the accused's inability to make full answer and defence. The Supreme Court of Canada has upheld judicial stays of proceedings arising from the inability of the accused to make full answer and defence in two recent decisions: Carosella, supra, and R. v. MacDonnell (13 February 1997), File No. 25165 [reported 114 C.C.C. (3d) 145]. In my view, a stay of proceedings in this case is in accord with the authorities which say that a stay should only be granted in the clearest of cases. In my respectful view, this is one of those cases. I would allow the appeal, set aside the convictions and stay the proceedings against the accused. Edit
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