Her Majesty the Queen v. Truscott [Indexed as: R. v. Truscott]

83 O.R. (3d) 272

Court of Appeal for Ontario,

McMurtry C.J.O., Doherty, Weiler, Rosenberg and Moldaver JJ.A.

October 18, 2006

Criminal law -- Evidence -- Third party records -- G testifying for Crown at T's 1959 murder trial -- Neither party seeking to call G at reference but T seeking to rely on fresh evidence of two witnesses that G told fellow nursing students in 1966 that she lied at T's trial and that she sought psychiatric hospital admission at time of rehearing in Supreme Court of Canada to avoid testifying -- T seeking production of evaluation records pertaining to G's performance during her nursing rotation in 1966 and records relating to G's admission to hospital -- Records meeting test of "likely relevance" for step one of O'Connor as relevant to credibility of proposed fresh evidence witnesses -- Appellate court reviewing records and determining G's nursing rotation records should be produced as providing independent confirmation of portions of fresh evidence tendered and causing limited prejudice to G's dignity -- Records from psychiatric hospital not produced as G had high expectations of privacy in those records and information contained in single page conclusory form not sufficiently probative to outweigh G's privacy interest -- Application for production allowed in part.

The Minister of Justice directed a Reference to the Court of Appeal in the matter of T's 1959 murder conviction, directing the court to decide the case as if it were an appeal by T on the issue of fresh evidence. As a 13-year-old girl, G had testified for the Crown at T's trial. Two witnesses, H and S, testified in 2002 before a Commission investigating T's conviction that G told fellow nursing students in 1966 that she had lied at T's trial. They also testified that G sought psychiatric hospitalization in 1966 when the Supreme Court of Canada was rehearing the case to avoid testifying again. T brought an application for the production of certain third party records relating to G: evaluation records pertaining to G's performance during her nursing rotation at a particular hospital in 1966 (the "DH records"), and the medical records relating to G's admission to another hospital in 1966 (the "JGH records") on the basis records supported credibility of fresh evidence of witnesses.

Held, the application should be granted in part.

Both sets of records met the first step of O'Connor for production to the court for review as they were likely relevant to an assessment of the credibility, reliability and probative force of H and S's evidence under the Palmer criteria for admission of fresh evidence. The DH records met the second part of the test for the production of third party records. They provided independent confirmation of H and S's testimony that G was a nursing student in 1966 and that she was admitted to a psychiatric facility. Producing those records would cause minimal prejudice to G's personal dignity, particularly considering that they did not reveal her current name. Accordingly, the privacy interest at stake was limited and did not outweigh the relevance of the records to the issue of the admissibility of the tendered fresh evidence of H and S. In contrast, the JGH records consisted of a mere one-page discharge form and a consent form. The discharge form contained a bald and conclusory diagnosis. The information in the JGH records was not sufficiently probative to outweigh G's high expectation of privacy in her psychiatric records. The JGH records were not to be produced. [page273]

APPLICATION for production of third party records.

Cases referred to R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1 (sub nom. R. v. O'Connor (No. 2)), apld Other cases referred to R. v. Archer, 2005 36444 (ON CA), [2005] O.J. No. 4348, 203 O.A.C. 56, 202 C.C.C. (3d) 60, 34 C.R. (6th) 271 (C.A.); R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, [1997] O.J. No. 3042, 116 C.C.C. (3d) 481, 9 C.R. (5th) 38 (C.A.); R. v. J. (J.-L.), [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 2000 SCC 51, 192 D.L.R. (4th) 416, 261 N.R. 111, 148 C.C.C. (3d) 487, 37 C.R. (5th) 203 (sub nom. R. v. J.-L.J.); R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22 (sub nom. Palmer and Palmer v. R.); R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161, [1996] O.J. No. 2695, 108 C.C.C. (3d) 310, 50 C.R. (4th) 245 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1-278.91 [as am.], 696.1 [as am.], 696.3 [as am.]

Marlys Edwardh, James Lockyer, Philip Campbell and Hersh E. Wolch, Q.C., for appellant/applicant Steven Murray Truscott. Rosella Cornaviera, Gregory J. Tweney, Alexander Alvaro and Leanne Salel, for respondent Her Majesty the Queen. Diane Oleskiw and Renu Mandhane, for responding party on application Jocelyne Gaudet.

[1] BY THE COURT: -- In October 2004, the Minister of Justice for Canada directed a Reference to this court under s. 696.3(3) (a)(ii) of the Criminal Code, R.S.C. 1985, c. C-46 in the matter of the conviction of Steven Truscott on a charge of murder in 1959. This court has been asked to decide the case as if it were an appeal by Mr. Truscott on the issue of fresh evidence.

[2] In the context of this Reference, the appellant ("applicant") brings an application in writing for the production of nursing school evaluation records and specified medical records pertaining to Jocelyne Gaudet, one of the Crown's key witnesses at Mr. Truscott's trial. We are prepared to decide this application on the basis of the written submissions provided by counsel for the applicant and counsel for the responding party to the application, Ms. Gaudet. [See Note 1 below] The Crown supports the position of the responding party, but has not offered any submissions on the application. [page274]

Nature of the Application

[3] The applicant applies for production of two sets of third party records related to Ms. Gaudet: (i) the evaluation records formerly held by the Jeffrey Hale Hospital in Montréal pertaining to Ms. Gaudet's performance during her nursing rotation at the Douglas Hospital in 1966 ("Douglas Hospital records"); and (ii) the medical records held by the Sir Mortimer B. Davis Jewish General Hospital in Montréal, formerly known as the Jewish General Hospital, that relate to Ms. Gaudet's admission to this institution on or about September 30, 1966 ("JGH records").

[4] The Douglas Hospital records were obtained by the Honourable Fred Kaufman in the course of his investigation on behalf of the Minister into the applicant's conviction. These records were obtained without Ms. Gaudet's authorization. They were filed as an exhibit to the examination of Ms. Gaudet, which was conducted by Justice Kaufman's investigative counsel, Mark Sandler, in March 2003. The transcript of this examination was filed as part of the sealed application record before us. The Douglas Hospital records are currently held under seal by the Court of Appeal. The JGH records were produced by the Hospital pursuant to a subpoena served on it by the applicant and are also currently held under seal by the Court of Appeal.

Background to the Application

[5] Jocelyne Gaudet's testimony as a 13-year-old girl was used to advance the Crown's theory at trial that on the night of Lynne Harper's disappearance, Steven Truscott was looking for Ms. Gaudet who he had arranged to meet near Lawson's bush. When she failed to appear, his attention turned to Lynne Harper. The Crown also used Ms. Gaudet's trial testimony to challenge Mr. Truscott's description that he gave in statements to the police of his movements on the county road on the evening of June 9, 1959.

[6] The applicant is tendering as fresh evidence on the Reference to this court the evidence of Elizabeth Hulbert and Sandra Stolzmann, two witnesses who testified before Justice Kaufman in 2002 and before this court in June 2006. Their evidence is being tendered to challenge Ms. Gaudet's credibility and the reliability of her trial testimony. Ms. Hulbert and Ms. Stolzmann have given evidence that in 1966, they were nursing students who performed a rotation in psychiatry at the Douglas Hospital in Montréal. Their testimony is to the effect that one evening around the time of the rehearing of the Truscott case in the Supreme Court of Canada (the Reference before the Supreme [page275] Court commenced on October 5, 1966), during a social gathering of nursing students, Ms. Gaudet [See Note 2 below] admitted to lying in her testimony at Mr. Truscott's trial. They further testified that Ms. Gaudet sought hospitalization at a psychiatric institution in order to avoid testifying before the Supreme Court of Canada.

[7] During Mr. Sandler's examination of Ms. Gaudet, he told her about the version of events described by Ms. Hulbert and Ms. Stolzmann. Ms. Gaudet testified that she had no recollection of either woman, she denied being hospitalized during her rotation at the Douglas Hospital, she denied having publicly discussed her involvement in the Truscott case and she denied having lied in her testimony at trial. She further testified that she has memory problems caused by a brain injury that she suffered sometime after 1984.

[8] Mr. Sandler went on to read to Ms. Gaudet certain sections of the Douglas Hospital records entitled "Remarks of the Instructor" and "Clinical Experience". By way of summary of what was read to Ms. Gaudet, the portion of the records entitled "Remarks of the Instructor" state that during the period from September 12 to 28, 1966, Ms. Gaudet initially seemed relaxed and cheerful, but gradually became tense and preoccupied with her own problems. She took some time off duty, but when she returned to work, she was too tense and restless to carry out her nursing duties. She rested in a nursing home until arrangements were made for admission to the Jewish General Hospital ("JGH"). The date of her admission to the JGH was recorded in the Douglas Hospital records as September 30. After being read this portion of the records, Ms. Gaudet responded that she did not remember going to a psychiatric institution and she insisted that she had graduated with her class and did not repeat any nursing rotations.

[9] In the proceedings before this court, neither party is seeking to call Ms. Gaudet to testify.

Positions of the Parties

[10] Counsel for the applicant submits that the requested records pertaining to Ms. Gaudet are likely to be relevant as fresh evidence on the Reference. The applicant's counsel contends that both sets of records will confirm the evidence of Ms. Hulbert and Ms. Stolzmann regarding Ms. Gaudet's admission to a psychiatric facility. Counsel further argues that the records will independently confirm that Ms. Gaudet's fear of testifying before [page276] the Supreme Court, or her fear of being exposed as a liar if she had to testify, caused her to seek hospitalization at a psychiatric institution on the eve of the Supreme Court Reference.

[11] Counsel for the responding party take the position that the court must be satisfied that the proposed fresh evidence of Ms. Hulbert and Ms. Stolzmann is potentially admissible as fresh evidence in the proceedings before this court prior to considering the merits of the application to produce and receive the third party records, citing in this regard R. v. Archer, 2005 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (C.A.), at para. 102. Counsel argue that Ms. Hulbert and Ms. Stolzmann's evidence is inadmissible for the truth of the contents because their evidence does not meet the requirements for admitting hearsay evidence as established by the Supreme Court of Canada in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, [1993] S.C.J. No. 22, 79 C.C.C. (3d) 257. In addition, counsel argue that their evidence does not meet the test for admitting fresh evidence as established by the Supreme Court in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 50 C.C.C. (2d) 193. Counsel claim that because the evidence of Ms. Hulbert and Ms. Stolzmann is inadmissible, it cannot be used as a foundation for producing Ms. Gaudet's school and medical records.

[12] In reply submissions, counsel for the applicant contends that the court should not concern itself at this stage with the question of the admissibility of Ms. Hulbert and Ms. Stolzmann's evidence, nor should the issue of the admission of fresh evidence be dealt with here. These issues must be dealt with on the main appeal, after receiving submissions from counsel for the parties to the Reference. At this stage, the court should concern itself only with the test for production of third party records as established by the Supreme Court of Canada in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 103 C.C.C. (3d) 1. Alternatively, if the court decides that the admissibility of their evidence is to be assessed now, counsel submits that Ms. Hulbert and Ms. Stolzmann's evidence is admissible under the principled approach to hearsay and, further, that it satisfies the Palmer criteria for admission.

Should the Court Rule on the Admissibility of Ms. Hulbert and Ms. Stolzmann's Evidence at this Stage?

[13] We agree with counsel for the applicant's submission that the issue whether Ms. Hulbert and Ms. Stolzmann's evidence will ultimately qualify as fresh evidence under the Palmer test is not the decisive issue on this application. Indeed, the question whether their evidence satisfies the Palmer test is affected by [page277] the outcome of this application, because a determination of the credibility, reliability and probative force of their evidence turns to some extent on the corroborative effect, if any, of the requested records. The issue whether the evidence of Ms. Hulbert and Ms. Stolzmann meets the test for fresh evidence will be decided after hearing submissions of counsel for the appellant and the respondent Crown on the argument of the Reference.

[14] It is necessary at this point, however, to consider whether the evidence of Ms. Hulbert and Ms. Stolzmann constitutes potentially admissible evidence. This is because the applicant's position in favour of production of the third party records rests in part on the basis that the requested records will confirm the content of the tendered fresh evidence of Ms. Hulbert and Ms. Stolzmann. If their evidence is not potentially admissible because it is barred by the hearsay rule, then one of the applicant's principal arguments in favour of production of the records cannot possibly have any force.

[15] Having said that, we are satisfied that Ms. Hulbert and Ms. Stolzmann's evidence constitutes admissible evidence in the threshold sense that Doherty J.A. discussed in Archer, supra. As Doherty J.A. explained in Archer [at para. 102]:

Fresh evidence is admissible on appeal where the interests of justice warrant its admissibility. The criteria governing the exercise of the appellate court's power to receive fresh evidence are well known and need not be repeated here: see R. v. Palmer and Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 at 205 (S.C.C.); R. v. Levesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193 at 202-203 (S.C.C.). Before these criteria are engaged, however, the material must constitute admissible evidence. The rules governing the admissibility of evidence in criminal trials apply to evidence proffered on appeal under s. 683(1): R. v. O'Brien (1977), 1977 168 (SCC), 35 C.C.C. (2d) 209 (S.C.C.) at 216-17; R. v. Babinski (1999), 1999 3718 (ON CA), 135 C.C.C. (3d) 1 (Ont. C.A.) at 21 [leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 21].

(Emphasis added)

[16] We are satisfied that Ms. Hulbert and Ms. Stolzmann's evidence constitutes admissible evidence in this threshold sense. Leaving aside the issue whether the statements communicated by Ms. Gaudet to Ms. Hulbert and Ms. Stolzmann are admissible pursuant to the principled approach to hearsay, the statements could at a minimum be admissible for the fact that they were made. The fact that Ms. Gaudet stated she lied at Mr. Truscott's trial could be used to question the overall reliability and worth of her evidence at the trial.

Test for Production of Third Party Records

[17] Turning to the primary issue on this application, the parties agree that the issue of whether to make an order to [page278] produce the requested records is governed by the common law procedure for production set out by the Supreme Court of Canada in R. v. O'Connor, supra. [See Note 3 below] In O'Connor, the Supreme Court established a two-step test. At step one, the applicant must establish that the records are "likely relevant" to an issue at trial or to the competence of a witness to testify. In other words, there must be "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify": R. v. O'Connor, supra, at para. 22 per dissenting reasons of Lamer C.J.C. and Sopinka J. If the applicant meets step one, the court will examine the records and will then conduct a balancing exercise whereby the applicant must satisfy the court that the salutary effects of producing the records outweigh the deleterious effects of production: O'Connor, para. 21.

Step One of the O'Connor Test

[18] In the context of this Reference, the applicant at step one must establish that the records are likely relevant to an issue in these proceedings. Whether or not Mr. Truscott had arranged to meet Ms. Gaudet as she testified to at trial is a fact in issue in these proceedings, as is the timing of his movements along the county road. Another issue in these proceedings is whether the evidence of Ms. Hulbert and Ms. Stolzmann, which is being proffered by the applicant to challenge the credibility and reliability of Ms. Gaudet's trial testimony, meets the Palmer criteria for admission as fresh evidence.

[19] Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely: R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52, 148 C.C.C. (3d) 487, at para. 47; R. v. Watson (1996), 1996 4008 (ON CA), 30 O.R. (3d) 161, [1996] O.J. No. 2695, 108 C.C.C. (3d) 310 (C.A.), at pp. 171-72 O.R. pp. 323-24 C.C.C.; R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35, [1997] O.J. No. 3042, 116 C.C.C. (3d) 481 (C.A.), at pp. 43-44 O.R., pp. 492-93 C.C.C. Under the O'Connor test, the burden on the applicant at this stage is to establish the likely relevance of the records sought.

[20] In the usual O'Connor application, the applicant is not aware of the contents of the record being sought. However, in the case of the Douglas Hospital records, the applicant and the court [page279] are aware of significant content from these records. The transcript of the examination of Ms. Gaudet, which refers to these records, was released to counsel for the applicant and the Crown for the purpose of preparing submissions on the application to the Minister of Justice under s. 696.1 of the Criminal Code. In addition, Justice Kaufman referred at some length to the content of the Douglas Hospital records in his report to the Minister, which was also provided to the parties. The transcript and excerpts from Justice Kaufman's report are included in the application materials before us. From what is known of the Douglas Hospital records, they do not refer to Ms. Gaudet's involvement in the Truscott proceedings in any way. Presumably if the records included such a reference, Justice Kaufman would have mentioned this.

[21] Logic and human experience would provide some support for the line of reasoning that the upcoming Reference into Mr. Truscott's conviction was the cause of Ms. Gaudet's preoccupation in September 1966 and that it prompted her admission to the JGH on September 30. However, there could have been a variety of other reasons for her admission to the JGH, which were entirely unrelated to the Truscott proceedings. Similarly, logic and human experience indicate that Ms. Gaudet may have wanted to avoid testifying at the Reference so that she would not be exposed as a liar at the trial. Again, however, there could have been various other reasons why Ms. Gaudet wanted to avoid testifying at the Reference, if indeed that was her motivation for being admitted to the JGH. Having regard to the test for relevance, the Douglas Hospital records do not contain information making it more or less likely that Ms. Gaudet lied at Mr. Truscott's trial, or that she sought admission to the JGH to avoid being exposed as a liar.

[22] However, the Douglas Hospital records and the JGH records satisfy the likely relevance test with respect to the issue of the admissibility of Ms. Hulbert and Ms. Stolzmann's evidence. The existence of the Douglas Hospital records was not known until after Ms. Hulbert and Ms. Stolzmann provided affidavits to Justice Kaufman setting out their recollections of Ms. Gaudet's behaviour in the fall of 1966. The known content of the Douglas Hospital records provides confirmation for their evidence, insofar as these records confirm that Ms. Gaudet was a nursing student in 1966 on a rotation at the Douglas Hospital, and that she was admitted to the JGH on September 30, 1966, less than a week before the Reference began in the Supreme Court. Accordingly, these records satisfy the test of being "likely relevant" to an assessment of the credibility, reliability and probative force of [page280] Ms. Hulbert and Ms. Stolzmann's evidence under the Palmer criteria for admission of fresh evidence.

[23] It also seems likely that the JGH records will contain other information relevant to the credibility and reliability of Ms. Hulbert and Ms. Stolzmann's accounts. Furthermore, there is a reasonable possibility that the JGH records will contain relevant information bearing on whether or not Ms. Gaudet admitted to having lied at the trial, or whether she sought admission to the hospital to avoid testifying at the Reference before the Supreme Court. The proximity in time between Ms. Gaudet's admission to the JGH and the commencement of the Supreme Court Reference makes it reasonable to assume that Ms. Gaudet informed her treating physicians of her involvement in the Truscott case or expressed her thoughts about the impending Reference. Any such conversations would likely be documented in the JGH records as part of the assessment of her mental state.

Step Two of the O'Connor Test

[24] Having been satisfied that both records meet the likely relevance test, the panel inspected the remainder of the Douglas Hospital records and the JGH records in accordance with the procedures established in O'Connor. The second step of the O'Connor test requires the court to go on to decide, based on the inspection of the records, whether and to what extent the records should be produced to the applicant and made part of the public record. [See Note 4 below] In making this decision, the court must balance the salutary and deleterious effects of production on the right to make full answer and defence and on the right to privacy and equality, taking the following factors into account:

(a) the extent to which the record is necessary for the accused to make full answer and defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record; [page281]

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy or security of any person to whom the record relates.

[25] Based on our inspection of both sets of records and having regard to the submissions of the parties to this application, we would order that the Douglas Hospital records be produced to the applicant and made part of the public record. We would refuse to order production of the JGH records and would order that they remain sealed.

[26] As noted, the Douglas Hospital records provide independent confirmation of Ms. Hulbert and Ms. Stolzmann's testimony that Ms. Gaudet was a nursing student at the Douglas Hospital in 1966 and that she was admitted to a psychiatric facility on September 30, 1966. We recognize that Ms. Gaudet has a reasonable expectation of privacy in the Douglas Hospital records. However, this privacy interest must be contrasted with the far more significant privacy interest that resides in records made in the course of receiving medical treatment or counselling for sexual assault or sexual abuse. The Douglas Hospital records relate to Ms. Gaudet's performance as a student nurse 40 years ago. Producing the records will cause minimal prejudice to Ms. Gaudet's personal dignity, particularly considering that the records do not reveal her current name. Accordingly, the privacy interest at stake is limited and does not outweigh the relevance of these records to the issue of the admissibility of the tendered fresh evidence of Ms. Hulbert and Ms. Stolzmann.

[27] In contrast, the JGH records consist of a mere one-page discharge form and a consent form. The discharge form contains a bald and conclusory diagnosis. That being so, there is not sufficiently probative information in the JGH records to the issue at hand to outweigh the responding party's high expectation of privacy in her psychiatric records.

Conclusion

[28] For these reasons, the application is allowed with respect to the Douglas Hospital records and dismissed with respect to the JGH records.

Application granted in part. [page282]

Notes ----------------

Note 1: Ms. Gaudet is currently living under a different name.

Note 2: Ms. Hulbert testified that she thought Ms. Gaudet went by the name of Phoebe at that time. Ms. Stolzmann knew her as Kim Gaudet.

Note 3: This is not a case where an accused stands charged with a sexual offence and is requesting production of third party records and thus the procedures for production set out in ss. 278.1 to 278.91 of the Criminal Code do not apply.

Note 4: Ordinarily at the second step of the O'Connor test, the court will also decide if a summary of the records should be produced to the applicant to him to make submissions related to the balancing exercise. In this case, counsel for the applicant has abandoned the requst to have a summary of the JGH records. Counsel did not seek a summary of the Douglass Hospital records because, as explained above, most of the contents are already known.