Katlin Cousineau died at the hands of her housemates. Katlin was 23yrs old and developmentally delayed. When the two first met Katlin and Susan Balogh were neighbours and when Katlin and her husband separated she moved in with Balogh and her partner. In 2004 Paul Bradey and Balogh started an affair. Balogh left her partner and moved in with Bradey- taking Katlin with her. Thereafter the three moved into a new place and were joined by Balogh’s friend Matthew Sitte.

Katlin died in the basement of that shared residence. She had blowtorch burns all over her body. Katlin was viciously abused by Sitte and Bradey- Balogh also participated in the abuse. Katlin was assaulted physically and sexually and on numerous occasions drugged. She was deprived of the necessities of life- forced to sleep on the concrete floor with a sheet and a pillow and made to use a bucket instead of a toilet.

The blowtorch burns covering Katlin’s body were inflicted over a number of days while she was alive. When she finally succumbed to the injuries Balogh, Bradey and Sitte hatched a plan to burn the home down to conceal their crime and collect the insurance money from the ‘accidental’ fire.

Forensic investigation quickly unraveled the plot and the three were charged with Katlin’s murder.

Sitte pled guilty to second degree murder. Balogh pled guilty to criminal negligence causing death. Both testified at Bradey’s trial for the Crown.

Bradey was found guilty of first degree murder, arson and rendering an indignity to Katlin’s body.

Bradey appealed his conviction: 2015 ONCA 738. One of those grounds of appeal was that the trial judge erred in denying Bradey’s application for Balogh’s psychological records from the correctional facility she was being held.

Brady’s application for these records arose mid-trial. In chief Balogh was asked whether she had ever told anyone the truth about what happened before telling the jury. Balogh responded that she had told her psychologist.

The psychologist in question was the psychologist at Grand Valley where Balogh was serving her sentence.

Bradey sought production of the records from Grand Valley that included statements Balogh had made:

About the offence
About her relationship with Bradey
About her plea to the lesser included offence of criminal negligence causing death

Counsel was appointed to represent Balogh. Both Balogh and the Crown resisted the application.

On the application the Crown called a psychologist from Grand Valley but not the one Balogh had dealt with. The witness testified that:

Psychologists are not required to note everything a patient says and patients are not consulted about the accuracy of what has been recorded
Releasing such notes could damage a therapeutic relationship and impede an inmate’s rehabilitation

Bradey argued that production of the records would allow him to challenge Balogh’s assertion that she had told the whole truth to the jury.

The trial judge dismissed the application finding that Bradey had failed to establish the likely relevance of the records.

The trial judge’s findings were summarized by the Court of Appeal as follows:

the mere fact that a witness has spoken to a counsellor about matters touching the issues at trial does not make a record of those observations "likely relevant to a fact in issue or the witness' credibility";

the records only pass the likely relevance threshold if there is some basis to conclude that the statements have the potential to provide an accused with some added information not already available to him or to have some impeachment potential;

confidentiality is paramount in the relationship and a high expectation of privacy attaches to the records with the result that unsupported, at large assertions of likely relevance fail to meet the threshold standard for review; and

the witness' statement about the consistency between the account to her psychologist and that provided to the jury demonstrates no inconsistency [para 62].

On appeal Bradey argued that the trial judge erred in dismissing the application. The Court of Appeal held that the trial judge erred in ruling that the test for likely relevance was not met however upon review of the records the Court of Appeal ruled against production.

Watt JA writing for a unanimous court on the issue of production noted the following important points:

First, the records themselves contain onlygeneralized and references to the offence and the guilty plea which were not inconsistent with her testimony [para 1-7].

Second:

the principal purpose for which the records were sought was to impeach Balogh's credibility and the reliability of her evidence on the basis of statements inconsistent with her trial testimony. At trial, she was cross-examined for several days. A prominent feature of the cross-examination was her impeachment by statements made elsewhere -- to investigators and at the preliminary inquiry -- relative to, but said to be inconsistent with, her trial testimony. These statements were accurately recorded and, in some instances, under oath. Her testimony at trial was the subject of a Vetrovec caution.

In light of this, it is difficult to see how the production of these records would have furthered the appellant's ability to make full answer and defence. That difficulty is compounded as the casual reference to relevant events in summary form in a single document affords no basis for cross-examination under s. 10(1) or, for that matter, under s. 11 of the Canada Evidence Act.

Moreover, the records are sought in relation to collateral issues -- the credibility of Balogh and the reliability of her evidence. Information relating to collateral issues, more accurately, failure to direct its production, does not impair an accused's right to make full answer and defence: O'Connor, at para. 161 [paras 107-109].

Third, the fact that the records originated in a therapeutic context is a relevant consideration. Such records have been found to be inherently unreliable. “there is no requirement that the notes accurately record any statements.” Such notes are generally not reviewed by the patient for accuracy, such was the case here.

Fourth, “despite the reduced expectation of privacy inherent in the correctional context, the Clinical Progress Notes originated in a therapeutic relationship. Disclosure of information revealed in that relationship may be injurious to the relationship and stunt its rehabilitative purpose.” [para 111]

As such the appeal on this ground (as well as the others) were dismissed.