WARNING

This appeal is subject to a mandatory publication ban under s. 278.9. This section of the Criminal Code provides:

278.9 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 278.3;

(b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or

(c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim 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) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

Date: 20221219 Docket: C66468

Roberts, Zarnett and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

M.B. Appellant

Counsel: Emily Lam and Vinidhra Vaitheeswaran, for the appellant Jennifer Epstein, for the respondent

Heard: May 19, 2022

On appeal from the conviction entered on November 20, 2018, by Justice George J. Brophy of the Ontario Court of Justice.

Zarnett J.A.:

Introduction *[^intro_footnote]

[1] During 2015, the appellant (who was then 16) and the complainant (who was then 17) spent time together at the appellant’s family residence. On one occasion, during a weekend in March 2015, the appellant engaged in sexual intercourse with the complainant, after she had said “no”. Approximately two years later, she reported the incident to the police. [^1]

[2] The appellant was tried as a youth, pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1, on a charge of sexual assault. The complainant, the appellant, and the appellant’s sister testified at trial. The trial judge found the sexual contact was non-consensual. He also found that although there was an air of reality to a defence of honest but mistaken belief in consent, the defence did not apply since the appellant “did not take the necessary steps to make sure that [the complainant] was consenting to the sexual contact [the appellant] wanted with her”. The trial judge convicted the appellant and imposed a sentence of two years’ probation.

[3] The appellant appeals his conviction. He raises three grounds.

[4] First, supported by fresh evidence, [^2] the appellant argues that his trial counsel provided him with ineffective legal assistance. According to the appellant, his trial counsel (i) failed to properly advise him about testifying, depriving him of a meaningful choice as to whether to do so, and (ii) failed to provide adequate legal advice and based his strategy on a mistaken understanding of the law about sexual assault and the defence of honest but mistaken belief in consent. The appellant submits that these failings gave rise to a miscarriage of justice.

[5] Second, the appellant submits that the trial judge erred in dismissing his application under s. 278.3 of the Criminal Code, R.S.C. 1985, c. C-46, for production of records concerning the complainant’s counselling and therapeutic sessions that took place after the incident but before she reported the incident to the police.

[6] Third, the appellant argues that the trial judge improperly curtailed the cross-examination of the complainant concerning statements she made to the appellant’s sister following the incident.

[7] For the reasons that follow, I would dismiss the appeal. The appellant has not met his burden of showing that the legal assistance he received from trial counsel resulted in a miscarriage of justice. Nor am I persuaded that the trial judge made an error in dismissing the s. 278.3 application, or that he improperly curtailed cross-examination.

The Uncontested Background

[8] The appellant and the complainant met in 2014 at a teen mental health inpatient program. They developed a friendship. The complainant visited the appellant’s family residence and had a number of weekend and overnight visits there between Christmas 2014 and March 2015. On those visits, the appellant and the complainant would sometimes lie on the appellant’s bed together and cuddle, physical contact that each found reassuring, as both of them suffered from anxiety and stress.

[9] On one of those visits, on the weekend of March 19, 2015, the contact was much different than anything that had occurred before. The complainant and the appellant had sexual intercourse on the bed in the appellant’s room.

[10] Approximately two years later, the complainant reported the incident to the police, leading to the charge of sexual assault.

The Section 278.3 Application

[11] On the Monday following her sexual interaction with the appellant, the complainant attended a hospital and discussed the incident with a counsellor. Approximately one year after the incident, she participated in prolonged exposure therapy with a psychologist, which involved discussing the incident. The sessions were audio recorded.

[12] When the complainant went to the police, she told them about the prolonged exposure therapy sessions, that they were recorded, and that they consisted of her talking to her therapist about what happened. While describing the sessions, she told the police that “if there was something where, like, I said I was being vague, um, about it, [the therapist] would be, like, well tell me about it. Like, he would prompt me so I would get … all the detail out”.

[13] The appellant brought a pre-trial application under s. 278.3(1) of the Criminal Code seeking an order for the production of the complainant’s counselling and therapeutic records. The appellant argued that the counselling sessions began close in time to the incident, and that the prolonged exposure therapy sessions took place a year before the police interview and involved the therapist “pressing [the complainant] to describe the incident in detail”. Those facts justified the production of the records, on the appellant’s submission, since when the complainant met with the police, she referred to her memory having faded over time, and in respect to some matters, to her having tried to “block out everything”.

[14] The trial judge dismissed the application. He concluded that the application did not clear the first stage of “likely relevance and the interests of justice”. He stated that there had to be something more than simply an argument that the records would provide ammunition or information to impeach the complainant’s credibility, but that something more was not present. Much of what could be anticipated in the records was already known, including that the complainant was disturbed about what she said happened, that she has some mental health issues, and that she had some gaps in her memory. There was no case specific information that overrode the important privacy interests in the therapeutic records. Nor did he consider that the right to full answer and defence would be compromised by refusing to make the requested order. He stated that “nothing … tells me that disclosure of those therapeutic records would in any significant way assist the defence.”

The Evidence About the Incident at Trial

(1) The Complainant’s Evidence and Cross-Examination

[15] According to the complainant’s evidence at trial, although she voluntarily lay down with the appellant on his bed, the intercourse that followed was not consensual. She testified that the appellant forcibly removed one leg of her pyjama pants, inserted his penis into her vagina, pulled her on top of him, and pinned her to him with his arms. She did not consent to this and testified that she said “no” or “stop” multiple times.

[16] In cross-examination, trial counsel challenged the complainant on various aspects of her evidence. One topic was that, on the day following the incident, the complainant told S.B., the appellant’s sister (who was 12 years old at the time), what occurred. Trial counsel put a number of propositions to the complainant about what she told S.B. The propositions were that the complainant told S.B that she cannot trust her own judgment, that she exaggerates things, and that she did not know if the appellant had raped her.

[17] The complainant was asked whether she told S.B. that she had borderline personality disorder and that people with it exaggerate. She did not dispute that she had said those things but could not recall doing so. She was asked if she told S.B. that she did not trust her own judgment, and indicated that she would not have said this in a general sense but had trust issues and trouble reading people. She was asked whether she told S.B. that she did not know whether the appellant had raped her, and she explained that she knew the sex was non-consensual but did not know whether it fit within the definition of rape.

[18] The appellant’s trial counsel then told the trial judge that he felt obliged to tell the complainant that S.B. had recorded matters about their conversation in her diary. [^3] The trial judge disagreed with the stated purpose of mentioning the diary in this way to the complainant, namely that trial counsel was obligated to do so. The trial judge permitted trial counsel to ask the complainant if she was aware that S.B. kept a diary, but not to suggest what S.B. had said in her diary.

[19] The result was that the trial judge permitted the appellant’s trial counsel to put the propositions to the complainant and question her about them, but not to tell the complainant what S.B. had written about them in her diary.

(2) The Defence Evidence

[20] The appellant’s position at trial was that the complainant did consent, or if she did not, that he honestly but mistakenly believed that she did.

[21] The appellant testified that while he and the complainant were lying on his bed, the complainant assisted him in taking down her pyjama pants. When he started to insert his penis into her vagina, she said “no” in a breathless and soft manner and he stopped at that point, understanding her “no” to mean “we shouldn’t be doing this”, which he interpreted to be a concern about getting caught. He testified that his parents’ and sister’s bedrooms were on the same floor.

[22] The appellant described how he and the complainant continued lying together on his bed, pressed up against each other, and after waiting for approximately three minutes, that he started to insert his penis into her vagina again. At that point, according to the appellant, the complainant positioned her body to assist and actively participated in sexual intercourse. He testified that they did not have any conversation, but he believed she consented based on her non-verbal conduct. He also testified that he asked the complainant whether he could ejaculate in her and that she said “yes, if [he] was clean”. He thought that meant she was consenting if he had no diseases.

[23] S.B. also testified for the defence. She gave evidence that the complainant had spoken to her on the day following the incident and that she (S.B.) had made notes in her diary. As the trial judge summarized her testimony, S.B. confirmed that the complainant had told her that “[S.B.’s] brother had basically raped her. He had persuaded her to get in bed, pulled down her pants and she had pulled them back up and said ‘no’ and then they had sex after that”. S.B. had also recorded the complainant to have said that she was being treated for a borderline personality disorder, that she cannot trust her own judgment because borderline personality disorder exaggerates things, and, at the end of the conversation, that the complainant was not sure if the appellant sexually assaulted her.

The Trial Judge’s Reasons for Conviction

[24] The trial judge considered the complainant’s evidence to be clear, straightforward, and “not damaged in cross-examination in any way”. He also found the appellant to be a good witness who testified without evasion, but he noted there were differences between the appellant and the complainant on key aspects of the incident and “the crucial issues of consent”.

[25] The trial judge found that the Crown had proven beyond a reasonable doubt that the complainant did not subjectively consent. He accepted her evidence that she said “no”, and had tried to pull up her pyjama pants when the appellant pulled them down. The trial judge also noted the “unusual way in which the physicality of this event unfolded, that is to say no kissing, no caressing, no conversation, [and] nothing that might be described as foreplay”.

[26] The trial judge found that there was an air of reality to the appellant’s defence of honest but mistaken belief in consent. But he ultimately concluded the defence did not apply. He reviewed the law about the defence, including the requirement that the accused has taken reasonable steps to ascertain consent. He noted that an accused cannot assert a belief that “no” meant “yes” or that a lapse of time or equivocal conduct converted a “no” into consent. He rejected the appellant’s evidence that the complainant had assisted him in removing her pyjamas or positioned her body to facilitate the intercourse, finding she did neither. He also found that there was no conversation other than the complainant saying “no”. He stated that “[the appellant] did not take the necessary steps to make sure that [the complainant] was consenting”.

Analysis

(1) The Ineffective Assistance of Counsel Ground of Appeal is Not Established

(a) The Legal Framework

[27] A claim of ineffective assistance of counsel has a factual component, a performance component, and a prejudice component. The appellant must establish (i) the facts material to the claim on a balance of probabilities, (ii) that trial counsel’s performance was incompetent and thus ineffective, and (iii) that a miscarriage of justice resulted because the ineffective representation made the trial unfair or casts doubt on the reliability of the verdict: R. v. Fiorilli, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 48-49; R. v. White, 2022 SCC 7; R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 64.

[28] Once the facts are established, the court will consider the prejudice component first, since there is no reason to subject counsel’s performance to judicial scrutiny if the prejudice component cannot be met: Fiorilli, at para. 49; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29.

[29] Where the ineffective assistance of counsel is said to have deprived the accused of the right to make a fundamental choice concerning the defence, the prejudice component is not automatically established. To satisfy the prejudice component, the evidence must, in most cases, establish not only loss of a right to make an informed choice but, in addition, a reasonable possibility that if properly informed the accused person would have acted differently: White; R. v. McDonald, 2022 ONCA 838, at para. 31. In White, at para. 7, the Court stated the following:

In G.D.B., the Court explained that counsel’s failure to discuss and obtain instructions on fundamental decisions relating to an accused’s defence “may in some circumstances raise questions of procedural fairness and the reliability of the result leading to a miscarriage of justice” (para. 34). R. v. Stark, 2017 ONCA 148, 347 C.C.C. (3d) 73] itself recognizes this at para. 32. However, the Court has never provided that the loss of those decisions alone warrants a new trial on ineffective assistance grounds. To the extent that Stark suggests otherwise, it is incorrect. The accused must, in most cases, demonstrate more than the loss of choice.

(b) Advice Concerning the Right Not to Testify

[30] The appellant argues that his trial counsel failed to properly advise him of his right not to testify, or of the advantages and disadvantages of testifying in his own defence, effectively depriving him of the right to decide whether to do so. He points to the fact that trial counsel did not obtain written instructions about the decision to testify. He described meeting with counsel in advance and during the trial, reviewing what his evidence would be. He deposed that once trial preparation started, he thought he had to testify and it never occurred to him that he could refuse to do so.

[31] Trial counsel, on the other hand, gave evidence that he did advise the appellant that he had the right not to testify, and that the decision whether to do so was the appellant’s to make. Trial counsel described his strategy as including an attempt to undermine the complainant’s evidence. He deposed that he told the appellant that if at the end of the Crown’s case he thought an acquittal was likely, he might advise the appellant not to testify. But because of the divergence between the appellant’s and the complainant’s versions of events and because he believed that, as a practical matter, the defence of honest but mistaken belief in consent would require defence evidence, he advised the appellant from the outset to assume he would have to testify and he prepared accordingly. He also deposed that he explained to the appellant at the close of the Crown’s case that it was highly likely that he would be convicted if he did not testify.

[32] In my view, the appellant has not established that his counsel failed to advise him of the right not to testify, or of the factors that would influence that decision, including the strength of the Crown’s case and the likely result if the appellant did not give evidence. In other words, the appellant has not established that he was denied the right to decide whether to testify, or that he was provided with no meaningful advice about the existence of that right. In his affidavit, the appellant describes meeting with counsel to review his version of the events, and going over a detailed statement with counsel who explained that this would “be the basis of my evidence if I were to testify ” (emphasis added). It is difficult to square that statement with a belief on the part of the appellant, allegedly induced by trial counsel, that the appellant did not have a right to decline to give evidence.

[33] Given that the appellant has not established that trial counsel failed to make him meaningfully aware of his right not to testify, the appellant’s contentions that aspects of trial counsel’s advice concerning his proposed evidence were incompetent are unavailing, since even if they were accepted, it does not follow that the appellant has established that a miscarriage of justice was the result.

[34] In White, the allegation of ineffective assistance was that Mr. White had been deprived of the fundamental right to elect the mode of trial, as his counsel had not explained that right to him. The Court explained that, even accepting Mr. White’s version of events, the claim of ineffective assistance was not made out, as Mr. White did not establish the prejudice component – that a miscarriage of justice occurred. Mr. White did not state that if the right had been explained to him, he would have made a different election. It could not be said that his trial was unfair.

[35] In this case, there is no evidence to support a finding of a reasonable possibility that, if properly advised, the appellant would have decided not to testify, or that, if granted a new trial, he would make a different decision about giving evidence than he made in his last trial. His affidavit is silent on these points. There is no basis to consider the trial unfair because the appellant testified at it, in the absence of any suggestion from him that if properly informed he would have declined to testify.

[36] There is also nothing here to suggest that if the appellant had made a different choice about testifying, the verdict may have been different. In the absence of a conclusion that the trial was unfair, the appellant would have to demonstrate this to succeed in showing a miscarriage of justice: R. v. K.K.M., 2020 ONCA 736, at paras. 92-93. As explained above, the trial judge accepted the complainant’s evidence, noting it was not shaken in cross-examination. The appellant ultimately did not raise a reasonable doubt by his own evidence, but he was convicted because of the complainant’s evidence, and would have been had he not testified.

(c) Trial Counsel’s Alleged Inadequate Advice and Lack of a Proper Appreciation of the Law of Sexual Assault

[37] The appellant swore that he had the impression that, if he testified in accordance with his trial preparation, he would have a strong defence of consent or honest but mistaken belief in consent. Trial counsel denies that he advised the appellant to that effect, but the appellant nevertheless criticizes trial counsel for leaving the appellant with an overly optimistic view of his chances at trial – for not being firm enough in his advice to the appellant of the risk of conviction. In addition, the appellant criticizes trial counsel for even considering that there could be a successful defence of honest but mistaken belief in consent, given the evidence that the complainant said “no”. The appellant argues that there was no air of reality to that defence notwithstanding the trial judge’s holding that there was.

[38] The appellant’s arguments elide the centrality of the prejudice component of an ineffective assistance claim. There is no suggestion here that trial counsel overlooked a better defence that was available to the appellant, instead pursuing a weaker one. Nor is there any evidence that the appellant would have acted differently had he received different advice. Complaints about the defence being weaker than trial counsel led the appellant to believe do not undermine the reliability of the guilty verdict. Nor do such complaints rise to the level necessary to show an appearance of unfairness of the trial, justifying a new one.

[39] I would reject the ineffective assistance of counsel ground of appeal.

(2) The s. 278.3 Application Was Properly Dismissed

(a) Legal Context

[40] Subject to limited exceptions, s. 278.2(1) of the Criminal Code prohibits production, to the accused in a sexual assault case, [^4] of any record relating to the complainant that contains personal information for which there is a reasonable expectation of privacy, including therapeutic or counselling records.

[41] Section 278.3 provides one of the exceptions. It permits the accused to apply before trial for production of a record. The complainant has standing to be heard on the application, with counsel. The application is conducted in camera.

[42] The application has two stages. In the first stage, the judge decides whether the record should be produced to the judge for review. To make such an order, the judge must be satisfied that the application was made in accordance with the Criminal Code’s requirements, that the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify, and that the production of the record is necessary in the interests of justice. In determining whether to order the production of the record, the judge is directed to consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security, and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates: ss. 278.5(1), (2).

[43] If the application passes the first stage, the judge reviews the record. After that review, if “the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed”: s. 278.7.

[44] Section 278.3(4) specifies certain matters that are insufficient grounds on their own to show that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

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:

(a) that the record exists;

(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;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant’s sexual reputation; or

(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.

[45] In R. v. K.C., 2021 ONCA 401, 157 O.R. (3d) 161, at para. 31, Jamal J.A. (as he then was), dissenting, but not on this point, explained that:

An accused may nevertheless rely on [the assertions in s. 278.3(4)] if there is an ‘evidentiary or informational foundation to suggest that they may be related to likely relevance’ … The accused must point to ‘case specific evidence or information’ to show that the record is likely relevant to an issue at trial or the competence of a witness to testify. [Citations omitted].

(b) The Appellant’s Arguments

[46] As noted above, the trial judge dismissed the appellant’s application for production of the counselling and therapeutic records relating to the complainant’s attendances at the hospital shortly after the incident, and for prolonged exposure therapy about a year after the incident. He held that the application failed at the first stage, because it was not shown that production was justified due to “likely relevance and the interests of justice”. He was not satisfied there would be any effect on the right to full answer and defence, as it was not shown that the “therapeutic records would in any significant way assist the defence.”

[47] The appellant makes two arguments against the trial judge’s conclusion. First, he argues that the trial judge erred because, contrary to K.C., he treated any reliance by the appellant on the assertions in s. 278.3(4) as proscribed. The appellant refers to the trial judge’s reference to the description, by complainant’s counsel, of the assertions listed in s. 278.3(4) as a “black list”.

[48] Second, the appellant submits that the trial judge should have found that there was case specific information that established likely relevance, even if related to the assertions in s. 278.3(4), namely that the counselling process played a role in “prompting” the complainant’s memory whereas she said she had blocked parts of her memory when she gave her police statement. The appellant’s argument equates the “prompting” the complainant told the police occurred at the counselling sessions with “reviving”, “refreshing”, or “shaping” her memory.

(c) Discussion

[49] In my view, the trial judge correctly understood that the list in s. 278.3(4) was of assertions that are not sufficient on their own, but that the appellant was entitled to rely on those assertions if they were tied to case specific information. Although he referred to the complainant’s counsel’s reference to a “black list”, he also referred to the appellant’s trial counsel’s submission that he was to look at “case specific information that allowed [him] to look past the prohibitions that are set out in s. 278.3(4)”. He questioned the appellant’s trial counsel to ensure he understood “all the case specific information you’re advancing” and identified, to the stated satisfaction of the appellant’s trial counsel, the core facts relied on by the appellant. [^5] Read as a whole and in light of the submissions made, the trial judge’s reasons show he properly understood that the assertions in s. 278.3(4) could be relied on if tied to case specific information.

[50] The trial judge’s reasons show that he considered the case specific information that was relied on before him – that the counselling sessions began close in time to the incident, that the prolonged exposure therapy sessions took place a year before the police interview and involved the therapist “pressing [the complainant] to describe the incident in detail”, and that when the complainant met with the police, she referred to her memory having faded over time, to trying to “block out everything”, and to some matters she could not recall.

[51] The trial judge did not err, however, in refusing to consider closeness in time to the incident, or the fact that the therapy records might be compared to the police statement or the trial evidence, as justifying production. As Fairburn A.C.J.O. underscored in K.C., those kinds of considerations would be true for many third-party records applications, and something more is required to cloak the records in likely relevance: at para. 108.

[52] Nor was there a basis, given what the complainant told the police she could and could not recall, to consider the records to be likely relevant. In her police statement, the complainant recalled the essential aspects of the incident. That she told the police there were gaps in her memory on what were properly considered to be peripheral details does not provide the “something more” necessary to make the records likely relevant.

[53] I do not accept the appellant’s argument, which does not appear to have been made to the trial judge, that the complainant, in using the term “prompted” to describe what her therapist did at the therapy sessions, was saying that the sessions shaped, enhanced, or revived her memories.

[54] What the complainant said on this subject bears repeating. She told the police that in her discussions with the therapist, “I had to say it with my eyes closed and go through it … and then if there was something where, like, I said I was being vague, um, about it, [the therapist] would be, like, well tell me about it. Like, he would prompt me so I would get the, all the detail out of it.”

[55] Nothing in this statement suggests that the therapist shaped, enhanced, or revived the memory of the complainant. The complainant was not suggesting that her memory was changed by the discussion with, or any “prompting” by, the therapist. Her contrast between being vague and being detailed related to how she expressed her memory, not to differences in the clarity of her memory itself. All she said was that when she recounted something in a vague manner to the therapist, he encouraged her to say it in a detailed way by saying “tell me about it”, which she then did.

[56] I would reject this ground of appeal.

(3) The Trial Judge Did Not Improperly Curtail Cross-Examination

[57] The appellant’s trial counsel submitted to the trial judge that, when he put certain propositions to the complainant about what she said to S.B., he felt obliged to tell her that S.B. had made notes of their discussion in her diary.

[58] The trial judge responded that he did not view the appellant’s trial counsel as being under any such obligation. The appellant does not challenge the correctness of that aspect of the ruling. And there is no question that the appellant’s trial counsel was permitted to cross-examine the complainant on what she said to S.B.

[59] Nonetheless, the appellant argues that the effect of the trial judge’s ruling was to prevent the appellant’s trial counsel from mentioning to the complainant that S.B. had recorded matters in her diary, and that this constituted curtailing cross-examination. I disagree.

[60] First, the basis on which the appellant’s trial counsel put the matter to the trial judge was a perceived obligation under the principle in Browne v. Dunn (1893), 6 R. 67 (H.L.). This principle requires a party who intends to challenge a witness’ credibility by calling contradictory evidence to give the witness an opportunity to address the contradictory evidence in cross-examination: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 75, leave to appeal refused, [2016] S.C.C.A. No. 203. The principle is grounded in fairness. It does not speak to the scope of cross-examination as much as it speaks to the possible remedies flowing from a breach of the principle. In other words, counsel’s request to the trial judge appears to have been primarily focused on ensuring he would not be prohibited from having S.B. testify about her diary notations if he did not tell the complainant about them. The trial judge did not find a breach of the principle, and no such prohibition was placed on the examination of S.B.

[61] Second, the trial judge permitted full cross-examination of the complainant on the statements she made to S.B. The complainant did not deny the appellant’s trial counsel’s suggestions that she said certain things to S.B. The complainant provided explanations as to what she meant by those statements. It is unclear what would have been gained by telling the complainant what was written in the diary, and, in any event, S.B. testified and identified what she wrote in her diary. There was no curtailment of the evidentiary record, and thus no prejudice to the appellant from the trial judge’s ruling.

[62] I would reject this ground of appeal.

Conclusion

[63] For these reasons, I would dismiss the appeal.

Released: December 19, 2022 “L.R.” “B. Zarnett J.A.” “I agree. L.B. Roberts J.A.” “I agree. Coroza J.A.”

[^intro_footnote]: These reasons were released only to the parties on December 13, 2022, because s. 278.9(1) of the Criminal Code, R.S.C. 1985, c. C-46 imposes a publication ban relating to the third party records application. The parties advised in further submissions, after the Crown had consulted the complainant, that they have no objection to the full publication of our reasons. We have determined that it is in the interests of justice for this court to exercise its inherent jurisdiction and publish these reasons, without redaction: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294. [^1]: For simplicity, I refer to the circumstances giving rise to the charge as the “incident” without in any way diminishing its seriousness. [^2]: The fresh evidence – consisting of an affidavit of the appellant, an affidavit of trial counsel, and a transcript of trial counsel’s cross-examination – is admitted on consent. [^3]: Counsel described the source of the obligation he was concerned about as follows: “maybe it’s a Browne and Dunn or something like Browne and Dunn ” . [^4]: Among other offences. [^5]: Trial counsel stated: “I think you, you understand my argument very well, Your Honour.”