COURT OF APPEAL FOR ONTARIO

DATE: 20000404

DOCKET: C26933

M25333

M25518

M25519

McMURTRY C.J.O., MORDEN and CHARRON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN ) for the appellant

Respondent )

• and - ) Trevor Shaw,

) for the respondent

DENNIS RODGERS )

Appellant ) Alexander Toffoli,

) for Mr. Richard Cote

Heard: March 22, 2000

CHARRON J.A.:

[1] The appellant was convicted of sexual assault on November 26, 1996 after a trial before Poupore J. and a jury, and he was subsequently sentenced to four years’ imprisonment. His appeal against conviction is scheduled to be heard before this court on May 18, 2000.

[2] The appellant raises the ineffective assistance of his trial counsel as one of the grounds of his appeal. In particular, he submits that trial counsel failed to adduce credible and relevant exculpatory evidence of another suspect, Mr. Richard Cote. In support of this ground of appeal, the appellant intends to bring an application for the introduction of fresh evidence at the hearing of his appeal. In order to assist in the gathering of the proposed fresh evidence, he brings three applications to the court. In the first application, the appellant seeks an order compelling Mr. Cote to attend for examination; in the second, he seeks an order for the production of the medical records of one Dr. Tissot-Van Patot relating to Mr. Cote; and in the third, he seeks an order compelling one Dr. Anthony McFarthing to attend for examination and an order for production of Dr. McFarthing’s file relating to Mr. Cote for the time period surrounding the assault.

[3] In the event that the appellant’s application to introduce fresh evidence on his appeal is successful, the Crown intends to bring an application to introduce fresh evidence in reply. Accordingly the Crown also brings an application before this court to assist in the gathering of this proposed reply evidence. The Crown seeks the production of certain psychological records and to examine the doctors who created them. A psychological assessment of the appellant was completed by Dr. Paul Valliant on January 31, 1994 while the appellant was under a probation order for a prior sexual offence. A subsequent progress note was completed by Dr. Valliant on August 15, 1995. Both the assessment and the progress note are referred to in the Pre- Sentence Report in this matter. The Crown seeks production of both the assessment and the progress note and seeks to examine Dr. Valliant. A further psychological assessment of the appellant was completed by Dr. Bruce Malcolm on July 10, 1997, while the appellant was incarcerated for the offence under appeal. This is known as a “risk assessment” because it assesses the needs of and risks posed by offenders under the care of Corrections Canada. The Crown seeks production of the assessment and seeks to examine Dr. Malcolm.

[4] In order to put these various motions in context, it is helpful to briefly outline the facts of the offence and the background facts concerning the particular motions.

[5] The offence for which the appellant was convicted occurred on August 14, 1995. On that day, the 15 year old complainant was assaulted while she walked to a variety store near her home. She was grabbed from behind as she walked down the road, was dragged backwards off the road, down onto some train tracks, along the tracks to an embankment under a train trestle, and was sexually assaulted. After the assault was over, she managed to make it to the variety store, where she reported the assault.

[6] In his factum the appellant describes the circumstances involving Richard Cote as follows:

Richard Cote, …who lived in the area, was among the other potential suspects investigated by the police. Cote originally came to the police’s attention through a doctor at Sudbury Hospital, Dr. Tissot. Tissot contacted police after reading a description of the suspect in the newspaper. Dr. Tissot had recently treated an individual who resembled the description of the suspect. The individual had attended Sudbury General Hospital on July 12, 1995 to seek medical treatment to control his sexual urges. This individual told Dr. Tissot he had just attempted to sexually assault a female, but the female got away. He also told Dr. Tissot that he liked teenaged girls, and had sexually assaulted teenaged girls and had approached a lot of teenaged girls in the Donovan area. This individual also mentioned something to Dr. Tissot about a train trestle in the Donovan area.

Dr. Tissot again saw this individual on August 12, 1995, two days before the complainant was assaulted. The individual advised Dr. Tissot that he needed another shot because he felt like he was going to sexually assault someone. Dr. Tissot described the patient as a white male, 39 years old, approximately 6 feet tall, medium build, with dark short hair, a beard and a moustache. The individual was also wearing thick glasses.

[7] On December 3, 1999, the appellant obtained an order from this court compelling the attendance of Dr. Tissot for examination. No order was sought or made with respect to any records that may be in the possession of Dr. Tissot. On December 22, 1999, Dr. Tissot was examined and, although he refreshed his memory using medical records, counsel for the doctor raised the fact that the order did not specifically provide for the production of the medical records and Dr. Tissot refused to produce them. It is for this reason that the appellant now seeks production of those records in order to, as counsel put it in his materials, “correct an earlier oversight” in not seeking production of the records. Mr. Cote was served with this application together with the application to compel his own attendance.

[8] Dr. McFarthing is a staff psychiatrist at Sudbury General Hospital. Mr. Cote came into his care in July 1995 and was in his care at the time of the offence (August 1995). Mr. Cote apparently reported having aberrant sexual urges, and Dr. McFarthing gave Mr. Cote injections of Androcur-Depot, a drug designed to stop those urges. Although Dr. McFarthing has continued to treat Mr. Cote, the appellant only seeks production of the doctor’s file relating to Mr. Cote from July through September, 1995.

[9] On March 7th, this court made an order appointing counsel to represent Mr. Cote.

Motion to compel attendance of Mr. Cote

[10] In response to the appellant’s motion, Mr. Cote filed an affidavit dated March 14, 2000 wherein he asserts that he was not, and could not have been, involved in the assault.

[11] There is no question that the general rule is that Mr. Cote would have been compellable as a witness at Mr. Rodgers’ trial if he had relevant evidence and that, in exchange, he would receive evidentiary immunity for any self-incriminating statements: R. v. S. (R.J.) (1995), 1995 121 (SCC), 96 C.C.C. (3d) 1 (S.C.C.); British Columbia Securities Commission v. Branch (1995), 1995 142 (SCC), 97 C.C.C. (3d) 505 (S.C.C.). It is common ground between the parties that the appellant has established the threshold test of relevance with respect to this witness.

[12] Mr. Cote’s counsel argued before this court, however, that Mr. Cote came under an exception to the general rule of compellability because the predominant purpose in compelling this testimony was to incriminate Mr. Cote. In support of this proposition, counsel relies on the decisions in R. v. Primeau (1995), 1995 143 (SCC), 97 C.C.C. (3d) 1 (S.C.C.) and R. v. Jobin (1995), 97 C.C.C. (3d) 97 (S.C.C.). The exception discussed in these cases does not apply to Mr. Cote. In both these cases, the Crown sought to compel the witness to testify against an accused person and the question was whether the predominant purpose was to incriminate the witness, in which case the witness could claim an exception to the general rule of compellability. In this case, it is the defence who seeks to compel Mr. Cote and the predominant purpose in seeking his testimony is not to incriminate him but rather to provide exculpatory evidence for Mr. Rodgers.

[13] In these circumstances, I see no reason why the general principle of compellability should not apply and would grant the order sought.

Motion to produce notes of Dr. Tissot-Van Patot

[14] While working in the emergency department of Sudbury General Hospital on July 7, 1995, Dr. Tissot saw Mr. Cote, who, as indicated earlier, informed Dr. Tissot that he was sexually attracted to teenage girls and had attempted to assault a young girl. Dr. Tissot admitted Mr. Cote to the psychiatric ward of the hospital. Mr. Cote returned to the emergency ward and saw Dr. Tissot again on August 12, 1995, at which time he was injected with a drug which had been prescribed to him in order to reduce his sexual urges. As stated above, Dr. Tissot has already been examined, but the appellant now seeks production of any medical records he may have relating to these two visits.

[15] At the hearing of this application, this court raised with counsel the question of the applicability of ss.278.1 to s.278.91 of the Criminal Code with respect to the production of Dr. Tissot’s records. It is clear that these provisions apply to medical records relating to a witness in a sexual assault proceeding, and hence to a person in Mr. Cote’s position. Counsel for the appellant and for the Crown confirmed that this issue had not been raised at the time that the order compelling Dr. Tissot was obtained. Given that Dr. Tissot has already been examined, counsel for Mr. Cote indicated at the hearing that his client was not objecting to the production of these notes. Based on this consent, I would grant an order compelling Dr. Tissot to produce the records in question.

Motion to compel attendance of Dr. McFarthing and for production

of his records

[16] As stated above, Dr. McFarthing was Mr. Cote’s psychiatrist at the time of the assault. The appellant seeks an order requiring the attendance of Dr. McFarthing to be examined and an order compelling him to produce his file in relation to Mr. Cote for the period of July through September of 1995.

[17] Counsel for the appellant conceded that medical records relating to Mr. Cote fall within the scope of the statutory regime for the production of records set out in ss. 278.1 to 278.91 of the Code. He argues however that the order sought on this application falls outside this regime because it is sought under s.683(1) of the Code, which confers certain powers on a court of appeal or a judge of that court.

[18] I do not agree. The order sought on this application is made in the context of a proposed application to introduce fresh evidence. The admissibility of the proposed fresh evidence must always be considered on such an application. No order could be made at trial for the production of Mr. Cote’s records without compliance with the relevant statutory provisions. The law can be no different on an application to introduce fresh evidence. A proper application must be made to this court, albeit under s.683(1), but in conformity with the requirements of ss.278.1 to 278.91. These provisions cannot be circumvented by compelling the attendance of the holder of the records: see s.278.4(2).

[19] Since this application was not brought within the relevant statutory framework, it is my view that it cannot be determined on the basis of the material before this court. I would therefore dismiss the application without prejudice to the appellant’s right to bring a fresh application if so advised.

Motion by the Crown

[20] The Crown seeks production of a psychological assessment prepared by Dr. Valliant as well as a risk assessment that was conducted by Dr. Malcolm during the appellant’s incarceration for the offence in this case. The Crown also seeks to examine these two psychologists. In support, the Crown has offered an affidavit which includes the Pre-Sentence Report and its references to Dr. Valliant’s assessment, as well as general statements about the existence of and purpose behind the risk assessment prepared by Dr. Malcolm.

[21] Once the accused introduces evidence relating to the propensity of a third party, usually to establish that third party as an alternate suspect, the Crown may in reply offer propensity evidence relating to the accused. Otherwise, the trier of fact would be left with a distorted view of the facts: R. v. McMillan 1977 19 (SCC), [1977] 2 S.C.R. 824; R. v. Parsons (1993), 84 C.C.C. (3d) 226 (Ont. C.A.).

[22] In this case, it is clear that the appellant seeks to introduce evidence about Mr. Cote’s propensity in relation to his sexual urges toward teenage girls for the purpose of presenting him as an alternate suspect and thereby to exculpate the appellant. If this evidence is admitted on the appeal, it will be open to the Crown to bring its application to introduce reply evidence. The reply evidence must, however, be relevant.

[23] In so far as the application relates to Dr. Valliant, it is my view that the Crown has presented a sufficient evidentiary basis to establish relevance. I would therefore grant an order compelling Dr. Valliant to attend for examination and for the production of his assessment report and progress notes. There has, however, been no showing of threshold relevance as to the risk assessment. The general statements about the purpose of such an assessment without further elaboration or details do not meet the test. I would therefore dismiss the application as it relates to Dr. Malcolm.

Conclusion

[24] In summary, I would grant the application to compel the attendance of Mr. Cote; I would grant the application for the production of the medical records of Dr. Tissot relating to Mr. Cote; and I would order production of the assessment and progress note completed by Dr. Valliant and order his attendance for examination. I would dismiss the application relating to Dr. McFarthing. I would also dismiss the application by the Crown as it relates to Dr. Malcolm.

(signed) "Louise Charron J.A."

(signed) "I agree R. McMurtry CJO"

(signed) "I agree J. W. Morden J.A."

RELEASED: April 4, 2000