WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
The order which has been made does not relate to Caitlin Coleman, who is a complainant. It relates to another complainant.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Joshua Ainslie Boyle
Before: Justice Peter K. Doody
Reasons on Objection (whether s. 278.92 prohibits contents of personal record being put to complainant in cross-examination)
Heard on: April 8, 2019
Reasons for Order released on: April 11, 2019
Counsel:
Jason Neubauer & Meaghan Cunningham — counsel for the Crown
Lawrence Greenspon, Eric Granger & Ninetta Caparelli — counsel for the Accused
Decision
CONTEXT AND ISSUE
1Joshua Boyle is charged with 19 offences – 2 counts of sexual assault with a weapon, 9 counts of assault, one count of uttering a death threat, one count of criminal harassment, 3 counts of unlawful confinement, 1 count of causing the complainant to take a noxious thing, 1 count of assault with a weapon, and 1 count of public mischief.
2On March 12, 2019 I ordered that portions of a record kept by a health care provider in respect of the complainant be released to Defence counsel and Crown counsel under s. 278.7 of the Criminal Code. I held that a statement purported to be made by the complainant and recorded by the health care provider could be inconsistent with the allegations made by the complainant.
3During the course of cross-examination of the complainant Caitlin Coleman at trial, defence counsel asked her if she had had an opportunity to review the records. This prompted an objection by Ms. Cunningham, Crown counsel, who indicated that she was concerned that this line of questioning was leading into what was prohibited by s. 278.92 of the Criminal Code unless an order was obtained under s. 278.94.
4In discussion before me, Mr. Greenspon, defence counsel, said that where he was planning on going with his questions was to confirm the contents of a meeting between Ms. Coleman and the health care provider and "confront her with what it is [the health care provider] noted about what he was told by Ms. Coleman." He said that he was not seeking to enter the records as an exhibit but he was seeking to confront Ms. Coleman with what appeared to him to be a contradiction as to the timing of the incidents which she says occurred which are the subject of the charges. He noted that there appeared to be a contradiction between what she has told the court and what she told the healthcare provider. As he put it, his intention was "not to file but to confront".
5In submissions before me the following week, when this objection was fully argued, he said that he wanted "to put to her that you told [the health care provider] on such and such a date there were no incidents." He said he might finish the question by saying that the reason that the health care provider "put it that way is there were no incidents that happened in November". Eight of the 19 counts allege offences that took place in November.
6Crown counsel submitted that the question before me was whether an order under s. 278.92 was required before counsel defending a charge of sexual offence could put to a complainant the contents of a record in which the complainant had a reasonable expectation of privacy and which was in the possession of the defendant.
7In light of the context in which this objection arose and defence counsels' stated intentions, I agree that that is the issue.
8I should note that this matter was argued before me two days ago. I delivered my Decision yesterday morning, and said that my reasons would be released shortly. It is important for the trial moving forward that my reasons be released quickly. I am thus releasing them with the knowledge that if I had taken more time my thoughts would have been more clearly expressed.
STATUTORY FRAMEWORK
9The relevant sections, enacted by S.C. 2018 c. 29, are as follows:
Admissibility — accused in possession of records relating to complainant
278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or
(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
Requirements for admissibility
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge shall consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society's interest in encouraging the reporting of sexual assault offences;
(c) society's interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant's personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
10The record produced under s. 278.7 was a "record" as that term is used in s. 278.94. The term "record" is defined in s. 278.1 as follows:
278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
11These provisions came into force on December 13, 2018. Counsel were unable to find any prior consideration of this issue. This is therefore a case of first impressions on a point which is important to the procedure to be followed in trials of charges of sexual offences.
POSITIONS OF THE PARTIES
12Mr. Greenspon submits that an order under s. 278.92(2) is required only if defence counsel seeks to have admitted into evidence the record itself – i.e. the physical or digital record, whether its contents are recorded on paper or some other medium. It is his position that no such order is required to ask the complainant about the contents of the record. If the complainant does not agree with the proposition that the record contains certain information, an order would be required before the record itself could be admitted into evidence.
13Mr. Greenspon submits that all that s. 278.92 provides is that "no record relating to a complainant that is in the possession or control of the accused… shall be admitted in evidence" except with an order under s. 278.92(2). Asking a complainant a question designed to elicit the contents of a record does not, in his submission, amount to having the record "admitted in evidence."
14Ms. Cunningham submits that that is too narrow an interpretation of the statute. She submits that, properly interpreted, the section requires an order under s. 278.92 before any of the record's contents can be put to the complainant. Any other interpretation, she submits, would render the section effectively meaningless and be contrary to the clear intention of Parliament.
15I have concluded that an order under s. 278.92 is required before defence counsel may put to a witness in the trial of a sexual offence the contents of a record in the possession of a defendant in which the complainant had a reasonable expectation of privacy.
ANALYSIS
Principles of Statutory Interpretation
16The Ontario Court of Appeal recently summarized some essential principles of statutory interpretation in R v. Stipo, 2019 ONCA 3. Watt, J. wrote at paras. 175 to 179:
175 It is well settled that statutory interpretation cannot be founded on the wording of the legislation alone. Instead, the approach is that advocated by Elmer Driedger in his Construction of Statutes (2nd ed, 1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18.
176 This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu, at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.
177 It is also a well-established principle of statutory interpretation that the legislature, in this case Parliament, does not intend to produce absurd consequences. Absurdity occurs if the interpretation
i. leads to ridiculous or frivolous consequences;
ii. is extremely unreasonable or inequitable;
iii. is illogical or incoherent;
iv. is incompatible with other provisions or with the object of the enactment; or
v. defeats the purpose of the statute or renders some aspect of it pointless or futile.
See, Rizzo, at para. 27.
178 Other principles of statutory interpretation, such as the Charter values presumption, are only applied when the meaning of the provision is ambiguous. An ambiguity must be real in that the words of the provision, considered in their context, must be reasonably capable of more than one meaning. These meanings must be plausible, each equally in accord with the intentions of the statute: Bell ExpressVu, at paras. 28 and 29.
179 Courts are also required to interpret legislation harmoniously with the constitutional norms enshrined in the Charter. For Charter values are always relevant to the interpretation of a disputed provision of the Criminal Code: Mabior, at para. 44; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 18-19.
What Parliament Intended
17These principles require that I interpret the statutory language in s. 278.92 commencing with the "fundamental question of what Parliament intended", considering the language of the provision, its context, and its purpose.
18The Honourable Senator Murray Sinclair was the sponsor in the Senate of Bill C-51, which became S.C. 2018 c. 29. When he moved third reading of the bill on October 3, 2018, he said the following:
Bill C-51's changes safeguard the privacy interests of victims while upholding an accused's right to a fair trial, and they reinforce the long-standing rule that it is never permissible to introduce evidence of prior sexual activity in a criminal trial for the sole purpose of showing that a victim is more likely to have consented to the sexual activity at issue or is less worthy of belief.
19In response to a question from another senator about the effect of the Bill's provisions regarding the application and admissibility process relating to complainant's records, and the potential requirement for the defendant to disclose elements of its case and the relevance of the evidence to the complainant, who would have an opportunity to appear at the hearing, Senator Sinclair said:
This measure requires that an accused person, who is in possession of records that they wish to use to cross-examine a complainant at trial, must give notice that they intend to use those records and what those records are, and then a judge must rule on their ability to use those records to cross-examine the complainant. The complainant then has the right to appear, with or without counsel, to argue about the potential usage of those records. What that is, in effect, is a requirement for an accused to disclose the documents that they have in hand.
They also argue that it impinges upon the accused's right to silence, but it does not do that because an accused does not have to testify either during the proceeding regarding the documents nor does an accused have to testify at all during the trial. It is his lawyer who can use those documents if the trial judge determines they can be used for cross-examination purposes. So the accused's right to silence is not impinged by that requirement.
20The Honourable Jody Wilson-Raybould, Minister of Justice, made the following statements to the Senate Standing Committee on Legal and Constitutional Affairs when that committee was studying Bill C-51 on June 20, 2018:
In addition, Bill C-51 proposes to implement a recommendation made by this committee in its December 2012 statutory review of the Criminal Code provisions relating to records production in sexual offence proceedings. It was one of the committee's recommendations that a procedure be set out to govern the admissibility and the use of a complainant's private records that are in the hands of the accused.
It is precisely what Bill C-52 will do, by requiring a court to consider a series of factors before deciding whether the private record of the complainant that is in the hands of the accused can be used in a trial relating to a sexual offence. These factors are similar to those that a court must consider when applying the rape shield provisions, and they include both the right of the accused to make a full answer and defence and the complainant's dignity and right of privacy.
Together, Bill C-51's proposed sexual assault amendments reflect the critical need to respect all interests in a criminal trial: the rights of the accused; the truth-seeking function of courts; and the privacy, security and equality interests of the victim.
21The December 2012 report from the Senate Standing Committee on Legal and Constitutional Affairs contained the following at pages 18 to 20:
The committee is mindful of the view that the Supreme Court has held that the Criminal Code scheme governing records production is distinct from the rules that govern the admissibility of evidence or the permissible lines of cross-examination during criminal trials. [citing R v. Shearing, 2002 SCC 58 at paras. 94-98 and 101-106] The principles of fundamental justice prevent the exclusion of evidence that tends to prove an issue in a case, unless its prejudicial effect substantially outweighs its probative value. We agree with Justice L'Heureux-Dubé's dissenting opinion in R v. Shearing, however, that the "[p]rivacy rights and equality rights of the complainant overlap to some extent in assessing the potential prejudice of the questioning and the concomitant limits that should be placed on the right to full answer and defence." [citing Shearing at paras. 164 and 170]
We are of the view that accused persons should not be able to use information or adduce evidence obtained through possession of complainants' private records for the purpose of advancing "groundless myths and fantasized stereotypes" that encourage inferences pertaining to the consent or credibility of sexual offence victims. [citing R v. Mills, [1999] 3 S.C.R. 668 at para. 90 and R v. Seaboyer, [1991] 2 S.C.R. 577] The Committee agrees with the Privacy Commissioner that individuals may retain important privacy interests in information that is in the possession of an accused person. Moreover, we see no logical reason to deny to individuals who have been sexually victimized the same legal protection of their privacy, security and equality rights afforded to other victims of sexual offences.
Therefore, we believe that in a trial on a sexual offence charge, in which an accused is in lawful possession of a complainant's private records and wishes to use these records for the purposes of cross-examination or seeks to introduce them into evidence, judges should take into account, when weighing prejudicial effect against probative value, factors similar to those governing their determinations on third party records applications under section 278.5(2) of the Code and the admissibility of evidence of a complainant's prior sexual activity under section 276(3) of the Code.
In this context, the right of the accused to make full answer and defence ought to be understood in light of a complainant's privacy and equality interests, as set out by the majority of the Supreme Court in Mills, as well as the complainant's right to security of the person, including the individual's personal safety. [citing Mills, para. 94] In addition, the committee is of the view that privacy, security and equality interests of complainants may, in some circumstances, require that a judge place limits on the ability of the accused to take personal possession of records. The evidence we have heard during this study has convinced us that an in camera hearing should be held before either the trial judge or a case-management judge to determine these issues. We are of the view that complainants should have the opportunity to make submissions during these hearings and should be granted procedural protections similar to those found in the third party records production scheme, adapted as necessary to the determinations on the permissible use and admissibility of evidence. …
Recommendation 4
That the Government of Canada consider amending the Criminal Code to set out a procedure governing the admissibility and use during trial of a complainant's private records, as defined in section 278.1 of the Criminal Code, which are not wrongfully in the hands of the accused. This procedure should define the purposes for which such records may not be admitted or used and set out the relevant factors for trial or case-management judges to consider in making their determinations, bearing in mind the rights of the accused under the Canadian Charter of Rights and Freedoms.
That complainants have the opportunity to make submissions at an in camera hearing and that appropriate procedural protections, along the lines of those contained in sections 278.1-278.01 of the Criminal Code be made applicable to such hearing.
22This recommendation is the one which Minister Wilson-Raybould told the committee Bill C-51 proposed to implement. The Bill was subsequently passed by the Senate.
23The purpose of the recommendation is apparent from the report to which the minister referred in her address to the committee. It is the same purpose cited by Senator Sinclair when he moved third reading of the Bill – to safeguard the privacy interests of victims while upholding an accused's right to a fair trial.
24Mr. Greenspon submitted that the new provisions did not implement the entire committee recommendation, because s. 278.92(1) says only that the record cannot be admitted into evidence without an order, and did not say, as the committee recommended, that the record could not be "used during trial" as the recommendation said, or for the purposes of cross-examination, as the body of the report said. In my view, that submission rests on the assumption that the language adopted by Parliament did not achieve both purposes. That is the issue before me. Mr. Greenspon's submission does not weaken my conclusion that the purpose or objective of the provisions recommended by the committee in 2012, said to be the source of Bill C-51 by its responsible Minister, and enunciated by Senator Sinclair when moving third reading. I have set out that purpose in the preceding paragraph.
25That purpose is also apparent from the scheme of the new provisions. They require that, before a record containing a complainant's private information (a shorthand description) can be admitted into evidence by an accused, the judge must conduct two in-camera hearings. If the judge determines, after reviewing detailed particulars of the evidence that the accused seeks to adduce and the reasons why the defence submits the evidence will be relevant to an issue at trial, that the proposed evidence is "capable of being admissible under subsection 276(2)", he or she is required to order a second hearing at which the complainant is entitled to appear personally or by counsel. Before the record can be admitted into evidence, the judge must determine that it is admissible under either s. 276(2) (if the evidence would be of sexual activity other than that the subject of the charge) or s. 278.92(2)(b) (in any other case). The judge is required to consider, in determining whether the proposed evidence is admissible, a list of factors set out in s. 278.92(3) which include the right of the accused to make full answer and defence and the potential prejudice to the complainant's personal dignity and right of privacy. The scheme clearly envisages those things being considered before the information contained in the record can be admitted in evidence.
26I conclude that, to use Professor Dreidger's words adopted by Watt, J.A. in Stipo, the scheme of the Act, the object of the Act, and the intention of Parliament in enacting s. 278.92 was to safeguard the privacy interests of victims while upholding an accused's right to a fair trial. The words of the enactment must be "read in their entire context and in their grammatical and ordinary sense harmoniously" with that scheme, object, and intention.
27If the defendant is correct, and no order is required before his counsel can ask the complainant about information contained in a complainant's private record, the statutory provision would not safeguard her privacy interest at all. If the question was whether she agreed that she told the health care provider something that was inconsistent with what she had testified to at trial, and she admitted that she had, the information in the record – what she told her health care provider – would become publicly known. Her privacy rights would not have been considered before that information was released.
28In my view, that result would be "absurd" in the sense used by Watt, J.A. in Stipo. It would defeat the purpose of the scheme established by s. 278.92 to 278.94.
Language of the Section
29That is not the end of the matter. If Parliament chose to use words which, on their clear and plain meaning, do not achieve the objective, or cannot be read harmoniously with the scheme of the statutory enactment, courts cannot stretch or bend their meaning out of shape to achieve the objective. I am satisfied, however, that the words chosen by Parliament do achieve the objective.
30Mr. Greenspon submits that s. 278.92(1) only prohibits admission into evidence of "the record" – in the language of the section"no record relating to a complainant that is in the possession of the accused … shall be introduced into evidence" except in accordance with the section. He submits that the "record" is the physical document itself. He points to the definition of "record" in s. 278.1, which defines it to mean "any form of record that contains personal information for which there is a reasonable expectation of privacy". He submits that by asking the complainant to confirm information that is in the record, he is not putting the record into evidence.
31In my view, such an interpretation ignores the reality of what is occurring when the question is put to the witness. If she responds in the affirmative, the record is effectively proven. The physical document (if there is a physical document) is not necessary. What is relevant to the trial from the record is what the complainant said when she spoke to the health care provider.
32The Supreme Court of Canada has recognized that when a witness is asked to confirm the contents of a document in which a witness has privacy interests, the relevant issue is one of admissibility of the information contained in the document. In the Shearing case, Binnie, J., writing for a majority of the Supreme Court, held that that was the issue to be considered when defence counsel was cross-examining a complainant in a sexual assault trial about the contents of a diary she had kept which had come into the accused's hands. Defence counsel wanted to put to the complainant that the diary entries were inconsistent with her evidence at trial. Binnie, J. held that the issue was whether disclosure of the private information from the diary was admissible as evidence. He wrote that the issue should have been determined by the approach to admissibility of evidence outlined in R v. Seaboyer, [1991] 2 S.C.R. 577, and confirmed in R v. Osolin, [1993] 4 S.C.R. 595 – whether, as he put it at para. 109:
Cross-examination on the diary would create prejudice to the complainant that "substantially outweighed" its potential probative value to the appellant, and in that regard whether cross-examination on the absence of entries recording abuse relied upon "rape myths" or the equivalent.
33I note that what would have been entered into evidence, had the cross-examination achieved what defence counsel intended, would have been the fact that the complainant had written things in the diary which were inconsistent from what she had said at trial. The diary itself did not have to be entered into evidence to achieve that result. Yet the Supreme Court held that the issue was the "admissibility" of that evidence.
34Similarly, if the complainant answers "yes" to defence counsel's question asking her if she had told her health care provider what she is recorded to have said, it is the fact that she said that on the prior occasion which will be admitted into evidence. The issue before me is, as it was for the trial judge in Shearing, whether that evidence is admissible. It makes no difference whether that evidence will come from the physical record or oral evidence.
35Defence counsel submitted that the decision of the Supreme Court of Canada in R v. G.D.B., 2000 SCC 22, supports his submission that a record is not admitted into evidence when questions are asked about its contents. In that case, defence counsel had an audio tape of a conversation between the complainant and her mother. The complainant was unaware the tape existed. Defence counsel asked the complainant to confirm the contents of the tape. The complainant denied having had contact with her mother at the time the tape was alleged to have been made. She had no recollection of the detailed conversation which was put to her in cross-examination. The defendant did not seek to prove the tape or its contents in any other way. Major wrote, in describing the facts of the case "Trial counsel chose not to introduce the tape in evidence."
36Defence counsel submitted that in writing this, Major, J. was endorsing the proposition that questions asked about a record was not introducing or admitting the record in evidence. I do not accept that submission. Had the complainant testified that she had engaged in the conversation said to be recorded, it would have been a different matter. In my view, the recording, or at least the conversation contained in the recording, would have been admitted into evidence. But the conversation was never proven. The record was not introduced into evidence. Most importantly, the Supreme Court was not dealing with a statutory prohibition on admitting the tape into evidence. In the case before me, counsel is hoping for an affirmative response to his question to the complainant seeking to have her confirm the statement recorded in the health care provider's notes. If she does, the statement will be admitted into evidence.
37Mr. Greenspon submitted that the failure to make explicit reference to cross-examination in s. 278.92 was evidence that Parliament intended the section to apply only to proving the record itself, and not to raising it in cross-examination. He points to the 2012 Senate committee report which referred to both use of a record in cross-examination and introduction of the record into evidence. This submission ignores the reality, recognized by the Supreme Court in Shearing, that evidence can be admitted in a number of different ways. One of them is by cross-examination. But evidence elicited by cross-examination has been admitted. It was not necessary to explicitly refer to cross-examination in s. 278.92. The intended purpose was achieved by the language used.
38In my view, what s. 278.92 prohibits doing without leave of the court is admission into evidence of the information in a private record of the complainant in sexual assault cases. That is the "mischief" at which the section is aimed. And that is what is meant by the word "record" in the context in which it is used in s. 278.92 – the information contained in a record as defined in s. 278.91.
39It would be rare that the record itself would be introduced into evidence. It is, if defence counsel is correct, a prior inconsistent statement of the complainant. The health care provider's records would normally only be used to refresh the memory of the witness who is asked whether something happened as recorded in the statement. A common example of this is police notes. They are normally not admitted into evidence in the sense of the notes themselves being entered as exhibits, but the information contained in them is admitted into evidence after the officer refreshes his or her memory by consulting the notes. The record itself would only be entered into evidence if it met the requirements of "past memory recorded", something that is rarely sought and is difficult to establish. If the record referred to in s. 278.92 did not mean the information contained in the record rather than the record itself, the section would achieve little. It would certainly not achieve what Parliament intended it to.
40Mr. Greenspon submitted that there would be little purpose to an application under s. 278.92 when the record had already been released after an application under s. 278.4, as happened for the record in issue. It is true that, in deciding to release the record in issue, I concluded that the test in s. 278.5 had been met. That test contains many similarities to the test in s. 278.93. But it is not exactly the same. Equally importantly, the context is different. In an application for production the issue is whether the record should be produced. That is a different question than whether the record should be admitted into evidence, as the Supreme Court of Canada recognized in Shearing.
41Mr. Greenspon submitted that it would be incongruous for a defendant who was in possession of a complainant's private record to be in a worse position than a defendant who was not in possession of such a record. He submitted that a defendant who did not have a record would be free to ask a question (such as whether the complainant had made a prior inconsistent statement) without an order, while if the statute bore the meaning contended for by the Crown, a defendant who did have the record would require an order. In my view, it is not that simple. Defence counsel would not be able to ask such a question unless he or she had a good faith basis for doing so. Furthermore, any question which had the potential to cause prejudice to the complainant would have to meet the test outlined in Seaboyer, Osolin, and Shearing and the trial judge would have to determine whether the proposed cross-examination would create prejudice that substantially outweighed its potential probative value to the accused. Section 278.92 is a statutory development and codification of the principles underlying that test.
42Counsel spent some time exploring the meaning of the French version of s. 278.92. The relevant provision is:
278.92 (1) Dans les poursuites pour une infraction mentionnée ci-après, ou pour plusieurs infractions dont l'une est une infraction mentionnée ci-après, un dossier se rapportant à un plaignant qui est en possession de l'accusé ou sous son contrôle et que ce dernier se dispose à présenter en preuve ne peut être admissible qu'en conformité avec le présent article …
43In my view, there is no significant difference between the English and French versions.
44The English version says that no record in the possession or control of the accused "and which the accused intends to adduce" shall be admitted in evidence without leave of the court. The word "adduce" is defined in the Canadian Oxford Dictionary (2d edn) (Oxford University Press, 2004) as a verb meaning "cite as an instance or as proof or evidence".
45The same word is used in s. 278.94 which provides that if the judge to whom an application has been brought decides that "the evidence sought to be adduced" is capable of being admissible under s. 276(2), he shall hold a hearing to determine whether it is admissible. The same word is used in s. 276(2), which provides "no evidence shall be adduced by or on behalf of the accused" that the complainant has engaged in other sexual activity without leave of the trial judge. The language of s. 276(2) has always been understood to mean that no evidence shall be tendered without leave, whether by cross-examination or otherwise. It is clear to me that the meaning of the word "adduced" in s. 278.92 is to cite as evidence – to enter into or tender as evidence.
46That is the meaning of the French phrase "presenter en preuve". The "Justice Sector Lexicon" produced the Ontario Ministry of the Attorney General translates the phrase "presenter en preuve" as "enter into evidence /to, put in evidence /to".
47Both versions, by using a phrase meaning enter into evidence, make it clear that an accused person who wishes to enter into evidence a private record of the complainant must obtain leave of the court in accordance with s. 278.92 to 278.94 before it can be admitted into evidence. There is no ambiguity or difference between the two versions.
CONCLUSION
48The defendant cannot introduce into evidence, whether by cross-examination or otherwise, any information contained in the record of the health care provider without complying with the procedure set out in sections 278.92 to 278.94.
Released: April 11th, 2019
Signed: Justice Peter K. Doody
