COURT OF APPEAL FOR ONTARIO

DATE: 20000229

DOCKET: C29185

RE: HER MAJESTY THE QUEEN (Respondent) v. P.E. (Appellant)

BEFORE: WEILER, ROSENBERG and FELDMAN JJ.A.

COUNSEL: R. Peter Napier,
for the appellant

Christine Bartlett-Hughes,
for the respondent

HEARD: March 31, 1999

On appeal from his conviction by His Honour Judge J. Peter

Coulson on December 15, 1997 and from the sentence imposed on

March 5, 1998

E N D O R S E M E N T

[1] The appellant appeals from his conviction for indecent

assault on a female and from the sentence of two years less one

day imprisonment. At trial, the appellant sought production from

third parties of certain personal records concerning the

complainant. In particular, the appellant applied for production

of notes taken by a psychotherapist who had provided the

complainant with counselling over a period of almost two years.

The trial judge applied the provisions of Bill C-46 and refused

to order production of the records. The principal ground of

appeal raised by the appellant concerned the constitutionality of

Bill C-46.

[2] On March 31, 1999, this court heard the appeal from

conviction and sentence with respect to all of the grounds of

appeal except the constitutional challenge. We reserved our

decision to await the decision of the Supreme Court of Canada in

R. v. Mills. That decision was released on November 25, 1999 and

is now reported at 1999 637 (SCC), 139 C.C.C. (3d) 321. The Supreme Court upheld

the legislation. The parties have filed written submissions to

deal with the effect of the decision in R. v. Mills.

[3] For the reasons that follow we would dismiss the appeal from

conviction and sentence.

THE FACTS

[4] The complainant is the appellant’s stepdaughter. She lived

with the appellant and her mother when she was between the ages

of five and eighteen years. The complainant testified that the

appellant began to sexually abuse her when she was ten years of

age and stopped the abuse when she was sixteen years of age. The

complainant was thirty-seven years of age when she complained to

the police.

[5] The complainant testified that the sexual abuse occurred

frequently, virtually whenever the appellant had the opportunity.

The abuse included acts of fellatio, cunnilingus, and

masturbation. There were no acts of sexual intercourse. The

complainant described three incidents in particular detail. She

described the other incidents only in broad terms by the type of

act and the location.

[6] The abuse ceased when the complainant turned sixteen. The

appellant came into her room at that time and told her that he

would leave her alone but that he wanted her to promise that she

would never tell anybody.

[7] The only defence witness was the complainant’s twin brother.

He testified to two conversations with the complainant. In the

first conversation, around the time of the wedding of their

sister in August 1995, the brother testified that the complainant

told him that the appellant had “fooled around with her”. The

brother testified that he asked the complainant if anything

sexual occurred and she said, “no”. The second conversation

occurred about a year later. The complainant told him that the

appellant had sexually assaulted her and she was taking him to

court. She was hysterical at the time and was concerned that she

would not get any money from the appellant in his will. The

complainant testified that her brother’s recollection of these

conversations was not accurate. She testified that she did tell

him in the first conversation that the appellant sexually abused

her, but she did not provide any details. In the second

conversation, she gave him certain details of the abuse.

[8] The appellant did not testify. The theory of the defence

appears to have been that the complainant laid the charges to get

money from the Criminal Injuries Compensation Board, or out of

revenge because the appellant was not giving her any money.

THE APPEAL FROM CONVICTION

The Mills issue

[9] At trial, the appellant sought notes taken by an unknown

physician in Sharbot Lake who referred the complainant to a

therapist at the Kingston Sexual Assault Crisis Centre, the notes

of the therapist at the Centre, and the notes of a

psychotherapist at the Kin Family Centre. The trial judge

refused to order production of any of the notes. On the appeal,

the appellant only pursued the ruling as it applied to the

therapist at the Kin Family Centre. The complainant saw this

therapist on a weekly basis for about a year from August 1995.

After the first year, she began to see the therapist either

biweekly or monthly until eventually contact was infrequent and

often only on the telephone. The last contact with the therapist

was on June 4, 1997. The complainant went to the police in June

of 1996, that is, while she was seeing the therapist. There were

about thirty hourly counselling sessions between June 1996 and

June 1997.

[10] The appellant filed his application for access to the third-

party records on May 2, 1997. At that time, the governing law

was as set out in R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1

(S.C.C.). On May 12, 1997, Bill C-46 was proclaimed in force and

amended the Criminal Code to include ss. 278.1 to 278.91. These

sections, rather than O’Connor, now govern the production of

records containing personal information as defined in s. 278.1,

in proceedings for certain offences set out in s. 278.2.

Indecent assault under former s. 149 of the Criminal Code, R.S.C.

1970, c. C-34 is one of those offences. The trial judge applied

those provisions. He held that the appellant had not met the

threshold test of likely relevance as set out in s. 278.5 to

warrant production to the judge.

[11] The hearing to determine production of the records was based

entirely on submissions. Neither party called any evidence. The

therapist from the Kin Family Centre made brief submissions to

the trial judge. In the course of those submissions, she

disclosed that she and the complainant “dealt with a number of

issues”. She agreed with the trial judge’s suggestion that “some

of them touched upon the issues in this case”. She stated that

in her opinion disclosure would be detrimental to the complainant

and the complainant’s relationship with other family members.

[12] In the course of his submissions, counsel for the appellant

indicated that he was aware that the complainant had disclosed

the abuse to her husband and had discussed it with other persons

before she sought counselling. At trial, there was no suggestion

that the complainant had recovered the memories of the abuse

through therapy or that the counselling had influenced her

recollection of the events.

[13] The trial judge gave the following reasons for refusing to

order that the records be disclosed to him for review:

There is a possibility that if we knew all

about everything this woman said to her

psychologists, her counsellors, that we might

discover something relevant but it never rises

above the level of possibility in my view.

The information given by this woman to her

psychotherapist is likely to have had to do

with healing her real or her perceived injuries.

Any revelations to her psychotherapist cannot

be said to be likely relevant to whether the

original incident complained of happened. There

is, in my view, no reasonable possibility that

the information would be logically probative of

the truth or falsity of the original allegation.

Now, I am compelled to consider the

Criminal Code and whether or not it

constitutes a complete codification of the

procedure to be used by a judge in making

these determinations. I refer to s. 278.1

and following of the Criminal Code,

relatively new provisions. Section

278.3(3)(b) reads as follows:

"An application must be made in writing

and set out,

(b) the grounds on which the

accused relies to establish that the

record is likely relevant to an issue at

trial or to the competence of the

witness to testify."

Competence to give evidence is not

an issue that is claimed by the

defence in this case so I am

limited therefore to considering

whether the grounds on which the

accused relies to establish that

the record is likely relevant to an

issue at trial.

Frankly, I do not think that has been

made out but I have gone on and read further,

and s. 278.3(4) reads as follows:

"Any one or more of the following

assertions by the accused are not sufficient

on their own to establish that the record is

likely relevant to an issue at trial or to

the competence of a witness to testify."

And I refer to paragraph "B",

"That the record relates to medical or

psychiatric treatment, therapy or counselling

that the complainant or witness has received

or is receiving."

I can see nothing more in the

assertions of defence counsel on behalf

of the accused than a claim that the

records of [the psychotherapist] relate

to anything more than medical or

psychiatric treatment, therapy or

counselling that the complainant or

witness has received or is receiving.

There is not anything else but that, and

I am commanded that any one or more of

the following assertions by the accused

are not sufficient.

[14] In his written submissions, counsel for the appellant argues

that the trial judge erred in holding that the documents were not

likely relevant within the meaning of s. 278.5. He relies on the

close temporal connection between the creation of the records and

the decision to bring the charges. He argues that the records

may have contained information concerning the unfolding of events

underlying the complaints, may have revealed the use of therapy,

which influenced the complainant’s memory and may have contained

information bearing on the complainant’s credibility.

[15] Section 278.3(4) lists a series of “assertions” that cannot

on their own establish that a record is likely relevant.

Included in that list are the following:

(b) that the record relates to medical

or psychiatric treatment, therapy or counselling

that the complainant or witness has received or

is receiving;

(c) that the record relates to the

incident that is the subject-matter of the

proceedings;

(d) that the record may disclose a prior

inconsistent statement of the complainant or

witness;

(e) that the record may relate to the

credibility of the complainant or witness;

(f) that the record may relate to the

reliability of the testimony of the

complainant or witness merely because the

complainant or witness has received or is

receiving psychiatric treatment, therapy or

counselling;

…

(k) that the record was made close in

time to a complaint or to the activity that

forms the subject-matter of the charge

against the accused.

[16] All of the submissions made by the appellant fall within one

or the other of these categories. In Mills at p. 380, the court

held that an accused is not prevented from relying on these

assertions “where there is an evidentiary or informational

foundation to suggest that they may be related to likely

relevance”. There is no such foundation. As we have pointed

out, there was nothing to suggest that the complainant had

recovered these memories of abuse or that the counselling had

influenced her memory. The submissions made on the application

at trial and on this appeal amount to nothing more than bare

assertions. There is, in the words of the court in Mills at p.

380, “no case-specific evidence or information to show that the

record in issue is likely relevant to an issue at trial”.

[17] The appellant also submits that the trial judge took too

narrow a view of likely relevance as he failed to consider the

possibility that the information contained in the records may

have also led the appellant to other witnesses or shed light on

the unfolding of events. There is no merit to this submission.

There is nothing to suggest that anything in these records could

have led to other witnesses or information or shed light on the

narrative. The complainant and the appellant were not strangers.

The complainant was the appellant’s stepdaughter. The Crown had

made full disclosure to the appellant, and his counsel made

reference to that disclosure in his submissions to the trial

judge. The suggestion that the therapist’s notes might have

revealed the existence of witnesses, about whom the appellant had

no information, is pure speculation.

[18] In our view, the trial judge did not err in refusing to

order production of the therapist’s notes.

The Reasons for Judgment

[19] The appellant submits that the trial judge erred in finding

that the complainant’s ability to recall only certain incidents

was “telling” and supportive of her credibility. He argues that

“absent expert evidence to establish that a selective ability to

recall was consistent with the pattern of assaults alleged” the

complainant’s limited recall weighed against the reliability of

her evidence.

[20] In our view, the trial judge’s reasons are not fairly open

to this criticism. The portion of the reasons complained of is

as follows:

The fact that there is repetition alleged about

some sorts of incidents and one particular incident

which sticks in her mind which she says was not

repeated I find telling.

[21] In this passage, the trial judge was referring to the

complainant’s description of a particular incident when she was

twelve years of age. The complainant’s mother sent her home from

a neighbour’s house to get something. When she arrived home the

appellant was there. He took the complainant to her bedroom, had

her take down her pants and he pulled down his. He then put his

penis between her legs and started to rub very fast against her

genitals. This hurt her and she jumped away. A few seconds

later the appellant told her to get dressed because her mother

was coming. She ran to the bathroom and urinated. She noticed

blood in the urine. Later she told the appellant about this and

he “looked surprised”, said he was “sorry, he didn’t mean it” and

not to tell her mother. That was the only occasion when this

kind of conduct occurred. Later, in her testimony the

complainant testified that while all of the incidents were

painful to recall, “certain ones…really stick in your mind

because they’re the most…painful”.

[22] In our view, it is not accurate to say that the complainant

had a limited recall. What she said was that certain events,

like the one just described, were different and she could recall

them in detail. The other abuse, such as the repeated acts of

fellatio and masturbation were similar and she could not recall

anything that distinguished any of those acts from others.

[23] Further, contrary to the appellant’s submission, the trial

judge did not use the complainant’s alleged selective recall as

positive evidence consistent with abuse. In the impugned

passage, he was dealing solely with the attack on the

complainant’s credibility. The trial judge took a common sense

approach to the complainant’s evidence. He did not require

expert evidence to accept the complainant’s explanation that

certain events stood out from the others.

[24] We would not give effect to this ground of appeal.

THE SENTENCE APPEAL

[25] The appellant is 61 years of age. He has no previous

criminal record. He was a good provider for his family. In his

submissions, counsel for the appellant pointed out a number of

factors that he considered to be mitigating. There were no acts

of intercourse, although the act in the complainant’s bedroom

might well have been an attempt, the appellant ceased the abuse

voluntarily, and the abuse stopped about twenty years earlier.

On the other hand, the abuse was serious and prolonged. It had a

serious impact on the complainant as disclosed in her testimony

and her victim impact statement.

[26] At trial, the only contest between defence counsel [not Mr.

Napier] and Crown counsel was whether the trial judge should

impose a high reformatory or low penitentiary sentence. The

trial judge accepted the defence submissions and imposed the

former. On appeal, the appellant nevertheless argues that the

sentence was manifestly excessive and that the appropriate range

was twelve to eighteen months' imprisonment. We do not agree.

The offences were of considerable gravity and involved a high

degree of moral blameworthiness. The appellant was in a position

of trust. He abused that trust repeatedly over many years.

DISPOSITION

[27] Accordingly, the appeal from conviction is dismissed, leave

to appeal sentence is granted but the appeal is dismissed.

(signed) "K. M. Weiler J.A."

(signed) "M. Rosenberg J.A."

(signed) "K. Feldman J.A."