COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. P.E. (Appellant)
BEFORE: WEILER, ROSENBERG and FELDMAN JJ.A.
COUNSEL: R. Peter Napier,
for the appellant
Christine Bartlett-Hughes,
for the respondent
HEARD: March 31, 1999
On appeal from his conviction by His Honour Judge J. Peter
Coulson on December 15, 1997 and from the sentence imposed on
March 5, 1998
E N D O R S E M E N T
1The appellant appeals from his conviction for indecent
assault on a female and from the sentence of two years less one
day imprisonment. At trial, the appellant sought production from
third parties of certain personal records concerning the
complainant. In particular, the appellant applied for production
of notes taken by a psychotherapist who had provided the
complainant with counselling over a period of almost two years.
The trial judge applied the provisions of Bill C-46 and refused
to order production of the records. The principal ground of
appeal raised by the appellant concerned the constitutionality of
Bill C-46.
2On March 31, 1999, this court heard the appeal from
conviction and sentence with respect to all of the grounds of
appeal except the constitutional challenge. We reserved our
decision to await the decision of the Supreme Court of Canada in
R. v. Mills. That decision was released on November 25, 1999 and
is now reported at 1999 637 (SCC), 139 C.C.C. (3d) 321. The Supreme Court upheld
the legislation. The parties have filed written submissions to
deal with the effect of the decision in R. v. Mills.
3For the reasons that follow we would dismiss the appeal from
conviction and sentence.
THE FACTS
4The complainant is the appellant’s stepdaughter. She lived
with the appellant and her mother when she was between the ages
of five and eighteen years. The complainant testified that the
appellant began to sexually abuse her when she was ten years of
age and stopped the abuse when she was sixteen years of age. The
complainant was thirty-seven years of age when she complained to
the police.
5The complainant testified that the sexual abuse occurred
frequently, virtually whenever the appellant had the opportunity.
The abuse included acts of fellatio, cunnilingus, and
masturbation. There were no acts of sexual intercourse. The
complainant described three incidents in particular detail. She
described the other incidents only in broad terms by the type of
act and the location.
6The abuse ceased when the complainant turned sixteen. The
appellant came into her room at that time and told her that he
would leave her alone but that he wanted her to promise that she
would never tell anybody.
7The only defence witness was the complainant’s twin brother.
He testified to two conversations with the complainant. In the
first conversation, around the time of the wedding of their
sister in August 1995, the brother testified that the complainant
told him that the appellant had “fooled around with her”. The
brother testified that he asked the complainant if anything
sexual occurred and she said, “no”. The second conversation
occurred about a year later. The complainant told him that the
appellant had sexually assaulted her and she was taking him to
court. She was hysterical at the time and was concerned that she
would not get any money from the appellant in his will. The
complainant testified that her brother’s recollection of these
conversations was not accurate. She testified that she did tell
him in the first conversation that the appellant sexually abused
her, but she did not provide any details. In the second
conversation, she gave him certain details of the abuse.
8The appellant did not testify. The theory of the defence
appears to have been that the complainant laid the charges to get
money from the Criminal Injuries Compensation Board, or out of
revenge because the appellant was not giving her any money.
THE APPEAL FROM CONVICTION
The Mills issue
9At trial, the appellant sought notes taken by an unknown
physician in Sharbot Lake who referred the complainant to a
therapist at the Kingston Sexual Assault Crisis Centre, the notes
of the therapist at the Centre, and the notes of a
psychotherapist at the Kin Family Centre. The trial judge
refused to order production of any of the notes. On the appeal,
the appellant only pursued the ruling as it applied to the
therapist at the Kin Family Centre. The complainant saw this
therapist on a weekly basis for about a year from August 1995.
After the first year, she began to see the therapist either
biweekly or monthly until eventually contact was infrequent and
often only on the telephone. The last contact with the therapist
was on June 4, 1997. The complainant went to the police in June
of 1996, that is, while she was seeing the therapist. There were
about thirty hourly counselling sessions between June 1996 and
June 1997.
10The appellant filed his application for access to the third-
party records on May 2, 1997. At that time, the governing law
was as set out in R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1
(S.C.C.). On May 12, 1997, Bill C-46 was proclaimed in force and
amended the Criminal Code to include ss. 278.1 to 278.91. These
sections, rather than O’Connor, now govern the production of
records containing personal information as defined in s. 278.1,
in proceedings for certain offences set out in s. 278.2.
Indecent assault under former s. 149 of the Criminal Code, R.S.C.
1970, c. C-34 is one of those offences. The trial judge applied
those provisions. He held that the appellant had not met the
threshold test of likely relevance as set out in s. 278.5 to
warrant production to the judge.
11The hearing to determine production of the records was based
entirely on submissions. Neither party called any evidence. The
therapist from the Kin Family Centre made brief submissions to
the trial judge. In the course of those submissions, she
disclosed that she and the complainant “dealt with a number of
issues”. She agreed with the trial judge’s suggestion that “some
of them touched upon the issues in this case”. She stated that
in her opinion disclosure would be detrimental to the complainant
and the complainant’s relationship with other family members.
12In the course of his submissions, counsel for the appellant
indicated that he was aware that the complainant had disclosed
the abuse to her husband and had discussed it with other persons
before she sought counselling. At trial, there was no suggestion
that the complainant had recovered the memories of the abuse
through therapy or that the counselling had influenced her
recollection of the events.
13The trial judge gave the following reasons for refusing to
order that the records be disclosed to him for review:
There is a possibility that if we knew all
about everything this woman said to her
psychologists, her counsellors, that we might
discover something relevant but it never rises
above the level of possibility in my view.
The information given by this woman to her
psychotherapist is likely to have had to do
with healing her real or her perceived injuries.
Any revelations to her psychotherapist cannot
be said to be likely relevant to whether the
original incident complained of happened. There
is, in my view, no reasonable possibility that
the information would be logically probative of
the truth or falsity of the original allegation.
Now, I am compelled to consider the
Criminal Code and whether or not it
constitutes a complete codification of the
procedure to be used by a judge in making
these determinations. I refer to s. 278.1
and following of the Criminal Code,
relatively new provisions. Section
278.3(3)(b) reads as follows:
"An application must be made in writing
and set out,
(b) the grounds on which the
accused relies to establish that the
record is likely relevant to an issue at
trial or to the competence of the
witness to testify."
Competence to give evidence is not
an issue that is claimed by the
defence in this case so I am
limited therefore to considering
whether the grounds on which the
accused relies to establish that
the record is likely relevant to an
issue at trial.
Frankly, I do not think that has been
made out but I have gone on and read further,
and s. 278.3(4) reads as follows:
"Any one or more of the following
assertions by the accused are not sufficient
on their own to establish that the record is
likely relevant to an issue at trial or to
the competence of a witness to testify."
And I refer to paragraph "B",
"That the record relates to medical or
psychiatric treatment, therapy or counselling
that the complainant or witness has received
or is receiving."
I can see nothing more in the
assertions of defence counsel on behalf
of the accused than a claim that the
records of [the psychotherapist] relate
to anything more than medical or
psychiatric treatment, therapy or
counselling that the complainant or
witness has received or is receiving.
There is not anything else but that, and
I am commanded that any one or more of
the following assertions by the accused
are not sufficient.
14In his written submissions, counsel for the appellant argues
that the trial judge erred in holding that the documents were not
likely relevant within the meaning of s. 278.5. He relies on the
close temporal connection between the creation of the records and
the decision to bring the charges. He argues that the records
may have contained information concerning the unfolding of events
underlying the complaints, may have revealed the use of therapy,
which influenced the complainant’s memory and may have contained
information bearing on the complainant’s credibility.
15Section 278.3(4) lists a series of “assertions” that cannot
on their own establish that a record is likely relevant.
Included in that list are the following:
(b) that the record relates to medical
or psychiatric treatment, therapy or counselling
that the complainant or witness has received or
is receiving;
(c) that the record relates to the
incident that is the subject-matter of the
proceedings;
(d) that the record may disclose a prior
inconsistent statement of the complainant or
witness;
(e) that the record may relate to the
credibility of the complainant or witness;
(f) that the record may relate to the
reliability of the testimony of the
complainant or witness merely because the
complainant or witness has received or is
receiving psychiatric treatment, therapy or
counselling;
…
(k) that the record was made close in
time to a complaint or to the activity that
forms the subject-matter of the charge
against the accused.
16All of the submissions made by the appellant fall within one
or the other of these categories. In Mills at p. 380, the court
held that an accused is not prevented from relying on these
assertions “where there is an evidentiary or informational
foundation to suggest that they may be related to likely
relevance”. There is no such foundation. As we have pointed
out, there was nothing to suggest that the complainant had
recovered these memories of abuse or that the counselling had
influenced her memory. The submissions made on the application
at trial and on this appeal amount to nothing more than bare
assertions. There is, in the words of the court in Mills at p.
380, “no case-specific evidence or information to show that the
record in issue is likely relevant to an issue at trial”.
17The appellant also submits that the trial judge took too
narrow a view of likely relevance as he failed to consider the
possibility that the information contained in the records may
have also led the appellant to other witnesses or shed light on
the unfolding of events. There is no merit to this submission.
There is nothing to suggest that anything in these records could
have led to other witnesses or information or shed light on the
narrative. The complainant and the appellant were not strangers.
The complainant was the appellant’s stepdaughter. The Crown had
made full disclosure to the appellant, and his counsel made
reference to that disclosure in his submissions to the trial
judge. The suggestion that the therapist’s notes might have
revealed the existence of witnesses, about whom the appellant had
no information, is pure speculation.
18In our view, the trial judge did not err in refusing to
order production of the therapist’s notes.
The Reasons for Judgment
19The appellant submits that the trial judge erred in finding
that the complainant’s ability to recall only certain incidents
was “telling” and supportive of her credibility. He argues that
“absent expert evidence to establish that a selective ability to
recall was consistent with the pattern of assaults alleged” the
complainant’s limited recall weighed against the reliability of
her evidence.
20In our view, the trial judge’s reasons are not fairly open
to this criticism. The portion of the reasons complained of is
as follows:
The fact that there is repetition alleged about
some sorts of incidents and one particular incident
which sticks in her mind which she says was not
repeated I find telling.
21In this passage, the trial judge was referring to the
complainant’s description of a particular incident when she was
twelve years of age. The complainant’s mother sent her home from
a neighbour’s house to get something. When she arrived home the
appellant was there. He took the complainant to her bedroom, had
her take down her pants and he pulled down his. He then put his
penis between her legs and started to rub very fast against her
genitals. This hurt her and she jumped away. A few seconds
later the appellant told her to get dressed because her mother
was coming. She ran to the bathroom and urinated. She noticed
blood in the urine. Later she told the appellant about this and
he “looked surprised”, said he was “sorry, he didn’t mean it” and
not to tell her mother. That was the only occasion when this
kind of conduct occurred. Later, in her testimony the
complainant testified that while all of the incidents were
painful to recall, “certain ones…really stick in your mind
because they’re the most…painful”.
22In our view, it is not accurate to say that the complainant
had a limited recall. What she said was that certain events,
like the one just described, were different and she could recall
them in detail. The other abuse, such as the repeated acts of
fellatio and masturbation were similar and she could not recall
anything that distinguished any of those acts from others.
23Further, contrary to the appellant’s submission, the trial
judge did not use the complainant’s alleged selective recall as
positive evidence consistent with abuse. In the impugned
passage, he was dealing solely with the attack on the
complainant’s credibility. The trial judge took a common sense
approach to the complainant’s evidence. He did not require
expert evidence to accept the complainant’s explanation that
certain events stood out from the others.
24We would not give effect to this ground of appeal.
THE SENTENCE APPEAL
25The appellant is 61 years of age. He has no previous
criminal record. He was a good provider for his family. In his
submissions, counsel for the appellant pointed out a number of
factors that he considered to be mitigating. There were no acts
of intercourse, although the act in the complainant’s bedroom
might well have been an attempt, the appellant ceased the abuse
voluntarily, and the abuse stopped about twenty years earlier.
On the other hand, the abuse was serious and prolonged. It had a
serious impact on the complainant as disclosed in her testimony
and her victim impact statement.
26At trial, the only contest between defence counsel [not Mr.
Napier] and Crown counsel was whether the trial judge should
impose a high reformatory or low penitentiary sentence. The
trial judge accepted the defence submissions and imposed the
former. On appeal, the appellant nevertheless argues that the
sentence was manifestly excessive and that the appropriate range
was twelve to eighteen months' imprisonment. We do not agree.
The offences were of considerable gravity and involved a high
degree of moral blameworthiness. The appellant was in a position
of trust. He abused that trust repeatedly over many years.
DISPOSITION
27Accordingly, the appeal from conviction is dismissed, leave
to appeal sentence is granted but the appeal is dismissed.
(signed) "K. M. Weiler J.A."
(signed) "M. Rosenberg J.A."
(signed) "K. Feldman J.A."
