Her Majesty the Queen v. B. (E.) [Indexed as: R. v. B. (E.)]

57 O.R. (3d) 741

[2002] O.J. No. 75

Docket No. C35477

Court of Appeal for Ontario

Moldaver, Feldman and Cronk JJ.A.

January 14, 2002

Application for leave to appeal to the Supreme Court of Canada was dismissed on January 9, 2003 (Iacobucci, Binnie and LeBel JJ.). S.C.C. File No. 29082. S.C.C. Bulletin, 2003, p. 32.

Charter of Rights and Freedoms -- Fundamental justice -- Full answer and defence -- Accused charged with sexual offences -- Accused permitted to cross-examine complainant at preliminary inquiry about private record made by complainant in order to lay foundation for application at trial under s. 278.3 of Criminal Code -- Questions implicating private domain of complainant not permitted -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C. 1985, c. C-46, s. 278.3.

Criminal law -- Cross-examination -- Preliminary hearing into sexual assault charges -- Scope of cross-examination of complainant regarding diary and other personal writings -- Accused seeking to lay foundation for application for production at trial under s. 278.3 -- Preliminary hearing judge disallowing questions pertaining to diary itself or its contents -- Accused successfully bringing certiorari application on basis ruling infringing his right to full answer and defence -- Crown appealing -- Accused's right to lay evidentiary foundation for production application at trial must be balanced against complainant's right to protect intensely personal writings -- Accused permitted to ask questions about diary generally including its location, whether in chronological order, whether entries dated but not to intrude on personal domain of complainant -- Accused not permitted to ask wide-ranging questions regarding contents of diary -- Crown appeal dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 278.3; Canadian Charter of Rights and Freedoms, s. 7

Charter of Rights and Freedoms -- Fundamental justice -- Full answer and defence -- Preliminary hearing into sexual assault charges -- Scope of cross-examination of complainant regarding diary and other personal writings -- Accused seeking to lay foundation for application for production at trial under s. 278.3 -- Preliminary hearing judge disallowing questions pertaining to diary itself or its contents -- Accused successfully bringing certiorari application on basis ruling infringing his right to full answer and defence -- Crown appealing -- Accused's right to lay evidentiary foundation for production application at trial must be balanced against complainant's right to protect intensely personal writings -- Accused permitted to ask questions about diary generally including its location, whether in chronological order, whether entries dated but not to intrude on personal domain of complainant nor to ask wide-ranging questions regarding contents of diary -- Crown appeal dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 278.3; Canadian Charter of Rights and Freedoms, s. 7

The accused was committed for trial on multiple counts of sexual assault related offences. The complainant had described one of the alleged assaults in writing on a piece of loose note paper, and stated at the preliminary inquiry that he made the note on a piece of paper because he was unable to find his diary. On cross-examination, defence counsel asked the complainant whether he had written anything in his diary about the incidents that resulted in the criminal charges. Before Crown counsel could complete an objection, the complainant replied that he had not done so. Defence counsel did not seek production of the diary at the preliminary inquiry, but wished to question the complainant on various matters relating to the diary, including certain of the topics in the diary, in order to lay the foundation for a subsequent production application at trial under s. 278.3 of the Criminal Code. The preliminary inquiry judge declined to permit the questioning. The accused brought a successful application for certiorari. The reviewing judge ordered the continuation of the preliminary inquiry to permit cross-examination of the complainant on the location of the diary; whether it contained descriptions of several encounters with the accused on occasions other than the alleged offence dates; whether it contained references to the presence of another person on those other occasions; and whether it included a chronological record of the complainant's activities over a period of time when the complainant had some involvement with the accused. The Crown appealed.

Held, the appeal should be dismissed.

The scope of relevance at a preliminary inquiry is broader than the narrow test for committal for trial. The discovery aspect of the preliminary inquiry is an important component of the constitutionally protected right of an accused to make full answer and defence. There is no absolute bar to all questioning of a complainant at a preliminary inquiry concerning a private record, and ss. 278.1 to 278.91 of the Criminal Code and the common law do not preclude such questioning. Rather, only those questions which implicate the private or personal domain of the author of the record are impermissible. The purpose of each question must be assessed keeping in mind the accused's right to discovery and the complainant's privacy interests in the intensely personal writings made in a diary or similar record. The complainant is the only source of information regarding the contents of the diary. Questioning of a complainant at a preliminary inquiry concerning a private record must be as limited as reasonably pos sible to respond to the accused's right to make full answer and defence. The complainant may be asked the questions that do not, by their nature or scope, in any way implicate the personal or private domain of the complainant. So long as the questions are properly limited, defence counsel may be permitted to ask questions about whether a particular topic is covered within his or her private record, but should not be permitted to question the complainant about what he or she wrote in the record concerning the identified topic.

APPEAL by the Crown from a decision allowing an application for certiorari in respect of committal for trial at a preliminary inquiry.

R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, consd Other cases referred to Canadian Broadcasting Corp. v. Dagenais, 1994 39 (SCC), [1994] 3 S.C.R. 835, 20 O.R. (3d) 816n, 120 D.L.R. (4th) 12, 175 N.R. 1, 25 C.R.R. (2d) 1, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269 (sub nom. Dagenais v. Canadian Broadcasting Corp.); R. v. Dawson (1998), 1998 1010 (ON CA), 39 O.R. (3d) 436, 52 C.R.R. (2d) 174, 123 C.C.C. (3d) 385, 15 C.R. (5th) 201 (C.A.), affg (1997), 1997 12348 (ON SC), 44 C.R.R. (2d) 359 (Ont. Gen. Div.); R. v. George (1991), 1991 7233 (ON CA), 5 O.R. (3d) 144, 8 C.R.R. (2d) 346, 69 C.C.C. (3d) 148 (C.A.); R. v. Girimonte (1997), 1997 1866 (ON CA), 37 O.R. (3d) 617, 48 C.R.R. (2d) 235, 121 C.C.C. (3d) 33, 12 C.R. (5th) 332 (C.A.); R. v. Hurrie (No. 2) (1997), 1997 12611 (BC SC), 12 C.R. (5th) 180 (B.C.S.C.); R. v. Hynes, 2001 SCC 82, 88 C.R.R. (2d) 222; R. v. J.F.S., [1997] O.J. No. 5328 (Prov. Div.); R. v. Kasook, 2000 NWTSC 33, [2001] 2 W.W.R. 683 (N.W.T.S.C.); R. v. M. (D.) (2000), 2000 22825 (ON SC), 37 C.R. (5th) 80 (Ont. S.C.J.); R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, 58 O.R. (2d) 543, 16 O.A.C. 81, 29 D.L.R. (4th) 161, 21 C.R.R. 76, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1; R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595, 109 D.L.R. (4th) 478, 162 N.R. 1, 19 C.R.R. (2d) 93, 86 C.C.C. (3d) 481, 26 C.R. (4th) 1; R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, 12 Alta. L.R. (3d) 305, 157 N.R. 321, [1993] 8 W.W.R. 287, 17 C.R.R. (2d) 297, 84 C.C.C. (3d) 203, 24 C.R. (4th) 47; R. v. R. (L.) (1995), 1995 8928 (ON CA), 127 D.L.R. (4th) 170, 28 C.R.R. (2d) 173, 100 C.C.C. (3d) 329, 39 C.R. (4th) 390 (Ont. C.A.); R. v. Russell, 2001 SCC 53, 203 D.L.R. (4th) 1, 157 C.C.C. (3d) 1, 44 C.R. (5th) 231; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, 4 O.R. (3d) 383n, 48 O.A.C. 81, 83 D.L.R. (4th) 193, 128 N.R. 81, 6 C.R.R. (2d) 35, 66 C.C.C. (3d) 321, 7 C.R. (4th) 117; R. v. Shearing (2000), 2000 BCCA 83, 143 C.C.C. (3d) 233, 31 C.R. (5th) 177 (B.C.C.A.) [Leave to appeal to S.C.C. allowed (2000), 147 C.C.C. (3d) vi, 263 N.R. 399n]; R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, 83 Alta. L.R. (2d) 193, 130 N.R. 277, [1992] 1 W.W.R. 97, 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277; Skogman v. R., 1984 22 (SCC), [1984] 2 S.C.R. 93, 11 D.L.R. (4th) 161, 54 N.R. 34, [1984] 5 W.W.R. 52, 13 C.C.C. (3d) 161, 41 C.R. (3d) 1 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d), 24 Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1-278.91, 278.2 [as am.], 278.3, 540(1)(a)

Christine Barlett-Hughes, for appellant. David North, for respondent. Michelle Fuerst, for intervenor, the Criminal Lawyers' Association

The judgment of the court was delivered by

[1] CRONK J.A.: -- This appeal involves the nature and extent of permissible cross-examination of a complainant, at a preliminary inquiry in a sexual assault case, concerning the complainant's diary, where the stated purpose of the questioning is to lay the foundation for a subsequent production application at trial under s. 278.3 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Following a preliminary inquiry held on August 28, 2000 before Justice L.E. Chester, the respondent was committed for trial on multiple counts of sexual assault-related offences. During the preliminary inquiry, counsel for the respondent sought to cross-examine the complainant on matters relating to his personal diary. The preliminary inquiry judge disallowed the proposed questioning. On November 17, 2000, Justice Ferguson granted the respondent's application for certiorari and remitted the matter back for the continuation of the inquiry. The Crown now appeals that decision. For the reasons that follow, I would dismiss the appeal.

Background Facts

[3] The complainant, the respondent's nephew, told police of two alleged incidents of assault by the respondent at the respondent's trailer on two different occasions in 1999. On July 15, 1999, the day prior to the second alleged incident, the complainant had written the following note on a piece of paper taken from a notepad:

A long time ago, oh, say 3 or 4 months ago, My Uncle [B. (E.) ] touched me and then made me touch him. I feel so guilty. I mean he's a guy+ I'm a guy so does that mean I'm gay? Probably not because he forced me. I HATE HIM.

The alleged incidents came to light when the complainant's note was discovered by his father.

[4] The complainant's evidence-in-chief at the preliminary inquiry was received by videotaped statement. In his statement, the complainant indicated that he had a journal or diary, but that he made the note on a piece of paper from a different notepad because, at the time, he couldn't find his diary.

[5] In his videotaped statement, the complainant also stated that some two to three weeks before the second alleged incident, and before he wrote the note, he informed a friend in general terms of the first incident with the respondent. He also indicated that the same friend had gone with him to the respondent's trailer after the first alleged incident, but before the second.

[6] The complainant's diary was not tendered as part of the Crown's case at the preliminary inquiry. On the record before this court, it does not appear that the diary was in the possession of the Crown prior to or at the time of the inquiry.

[7] Counsel for the respondent did not seek production of the diary, or any part of it, at the preliminary inquiry.

[8] On cross-examination at the inquiry, the complainant testified that he had not transposed the contents of the note into his diary. He was also asked on cross-examination whether he had written anything in his diary about the two incidents that resulted in the criminal charges against the respondent. Before Crown counsel could complete an objection, the complainant answered the question in the negative. In material part, the exchange was as follows:

Q. Have you written anything about these incidents, the two incidents that resulted in the criminal charges being laid against your Uncle [B. (E.)]? Have you written anything about those two incidents in your diary?

A. No.

[Crown Counsel] Objection. This is privileged under the Code. If counsel wants to get into a diary, he can't ask it at a prelim. He has to bring an application pursuant to the Criminal Code with regard to private matters, and I object to counsel getting in -- into this. The note was discovered by the parent, became public knowledge, but a diary or confidential items that persons write for themselves are protected under the Code without appropriate application and at a criminal hearing -- at a preliminary hearing there's no jurisdiction on the Court to -- to bring that application [sic].

[9] Counsel for the respondent thereafter sought to question the complainant on various matters relating to the diary, including certain of the topics in the diary. The preliminary inquiry judge declined to permit such questioning.

[10] On the respondent's certiorari application, the reviewing judge concluded that the proposed line of questioning was not prohibited by s. 278.3 of the Criminal Code or by any common law rule of evidence. He granted certiorari and ordered the continuation of the preliminary inquiry, to permit cross- examination of the complainant on:

(a) the location of the diary;

(b) whether the diary contains descriptions of several encounters with the respondent on occasions other than the alleged offence dates;

(d) whether the diary includes a chronological record of the complainant's activities over a period of time when the complainant had some involvement with the respondent.

Positions of the Parties

[11] Sections 278.1 to 278.91 of the Criminal Code are set out in full in Appendix A to these reasons. Having regard to the positions of the parties on this appeal, it is useful to now set out ss. 278.3(1) to (4):

278.3(1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry.

(3) An application must be made in writing and set out

(a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and

(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 a witness to testify.

(4) 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;

(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.

[12] The submissions of all counsel on this appeal focus on whether it is permissible for defence counsel to ask questions of the complainant at the preliminary inquiry concerning whether:

(a) the entries in the diary are dated;

(b) the diary is in chronological order;

(d) the diary is a hardcover bound book, a binder with looseleaf pages or a stenographic pad;

(e) the diary is still in existence;

(f) there are entries indicating the complainant's whereabouts during the time frame in which the offences allegedly took place;

(g) there are entries which would indicate where the complainant was during the weekends within the time frame referred to in the Information against the respondent and in the months of March, April and May (1999);

(h) there are any entries concerning what did take place during the complainant's visits to the respondent's trailer on the dates when the complainant alleges he was assaulted;

(i) there are any entries concerning any weekend visits to the respondent's trailer park; and

(j) there is a notation respecting the visit to the respondent's trailer by the complainant with his friend (prior to the occasion of the second alleged incident, but after the first alleged incident).

[13] All counsel agree that questions concerning the actual contents of a record containing personal information, such as the complainant's diary, are impermissible at the preliminary inquiry.

[14] Crown counsel acknowledges that at the preliminary inquiry the complainant could be asked, generally, if he made reports, oral or written, concerning the subject-matter of the charges against the respondent and, additionally, whether his diary exists. She argues, however, that a preliminary inquiry judge does not have jurisdiction to allow defence counsel to cross-examine a complainant who is alleging a sexual offence enumerated in s. 278.2 of the Criminal Code, on the contents of a record such as a diary. In her submission, virtually all of the questions proposed to be asked of the complainant intrude on the contents of the diary.

[15] In the alternative, Crown counsel argues that to determine the relevance of the "contents" of a record containing personal information, the complainant's constitutional rights to privacy, equality and security of the person must be balanced against the accused's constitutional rights to security of the person and to make full answer and defence. In these circumstances, she submits, the scope of cross-examination concerning the record must be limited by consideration of the principles enshrined in ss. 278.1 to 278.91 of the Criminal Code. It would follow that only general questions about the circumstances and manner in which the diary was made would be permitted, excluding any questions about the contents of the diary.

[16] Counsel for the respondent argues that a preliminary inquiry provides an opportunity for an accused to test and obtain discovery not only of the Crown's case but, also, to obtain evidence for a variety of applications, including a production application under s. 278.3 before the trial judge.

[17] He submits that an accused's statutory right to cross- examine witnesses called during a preliminary inquiry should not be limited absent a clear expression of Parliament's intention to do so. To do otherwise, he argues, would improperly restrict the respondent's right to cross-examine for the purpose of eliciting evidence to be subsequently relied upon on an application for production under s. 278.3, thereby impairing the respondent's constitutional right to make full answer and defence.

[18] He further argues that the proposed questions are intended to focus on the manner in which the diary was created and maintained by the complainant, the physical characteristics of the diary and a general description of the topics found within the diary. Consequently, he submits, the proposed questions do not require the complainant to provide or to recount his recollection of the exact contents of the diary.

[19] Counsel for the intervenor, the Criminal Lawyers' Association (the "CLA"), argues that s. 278.3, by its terms, does not preclude the suggested line of questioning at the inquiry. She submits that s. 278.1 is intended to prevent defence counsel from gaining production of a third party record at a preliminary inquiry merely on request. She maintains that neither ss. 278.1 to 278.91, nor the relevant jurisprudence, prohibit defence counsel from using the preliminary inquiry as an opportunity to attempt to lay an evidentiary foundation for a subsequent production application under s. 278.3.

Analysis

(1) The constitutional context

[20] At issue on this appeal is the proper balance to be struck between the constitutionally protected right of the complainant to privacy, and that of the accused to make full answer and defence. In this case, the engagement of these rights also requires consideration of the jurisdiction of preliminary inquiry judges.

[21] The tension between these competing constitutional rights has been considered by the Supreme Court of Canada in a number of cases in which the fundamental equivalency of such rights has been recognized. That court has stated:

On the one hand stands the accused's right to make full answer and defence. On the other hand stands the complainant's and witness's right to privacy. Neither right may be defined in such a way as to negate the other and both sets of rights are informed by the equality rights at play in this context.

(R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 139 C.C.C. (3d) 321 at p. 688 S.C.R., p. 339 C.C.C., per McLachlin and Iacobucci JJ.). Thus,

. . . Charter rights must be examined in a contextual manner to resolve conflicts between them. Therefore, unlike s. 1 balancing, where societal interests are sometimes allowed to override Charter rights, under s. 7 rights must be defined so that they do not conflict with each other. The rights of full answer and defence, and privacy, must be defined in light of each other, and both must be defined in light of the equality provisions of s. 15.

(Mills, at p. 689 S.C.R., p. 339 C.C.C. and Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, 120 D.L.R. (4th) 12).

[22] In Mills, an accused charged with sexual assault and unlawful sexual touching of a 13-year-old complainant sought production of the records of the complainant's psychiatrist. Without first bringing a production application, the accused unsuccessfully challenged the constitutionality of ss. 278.1 to 278.91. The majority of the Supreme Court of Canada stated, at p. 729 S.C.R., pp. 370-71 C.C.C.:

In summary, the following broad considerations apply to the definition of the rights at stake in this appeal. The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent. Most cases, however, will not be so clear, and in assessing applications for production courts must determine the weight to be granted to the interests protected by privacy and full answer and defence in the particular circumstances of each case. Full answer and defence will be more centrally implicated where the information contained in a record is part of the case to meet or where its potential probative value is high. A complainant's privacy interest is very high where the confidential information contained in a record concerns the complainant's personal identity or where the confidentiality of the record is vital to protect a therapeutic relationship.

(Emphasis added)

[23] Mills involved a production application relating to records in the possession of a third party. While we are not concerned with such an application in this case, in my view the principles outlined in Mills and related cases inform the assessment to be undertaken whenever the right of an accused to make full answer and defence, protected under ss. 7 and 11(d) of the Charter of Rights and Freedoms, is placed in direct or indirect competition with a person's reasonable expectation of privacy, protected under s. 8 of the Charter. Thus, consideration of the Mills principles is appropriate where the court is asked, as on the present appeal, to examine the privacy rights of a complainant in relation to his diary in light of the accused's statutory right to cross-examine witnesses at a preliminary inquiry and his constitutional right to make full answer and defence.

(2) The statutory context: [Sections 278.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) to [278.91](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[24] The common law rules governing production of confidential third party records were clarified by the Supreme Court of Canada in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1. This seminal case proposed a two-stage approach to determining whether such records should be produced to an accused in a criminal proceeding. The reasons of Justice L'Heureux-Dubé (for four members of the court) emphasized that such production applications should only be entertained at trial and, further, that a preliminary inquiry judge is without jurisdiction to order the production of such records.

[25] In response to O'Connor, ss. 278.1 to 278.91 of the Criminal Code came into force on May 12, 1997. These sections address the production in sexual offence proceedings of complainants' and witnesses' records in the possession of the Crown or third parties. They establish various protections for persons whose private records are sought to be obtained by an accused.

[26] A review of these sections reveals that Parliament adopted the approach to the assessment of production requests set out in Justice L'Heureux-Dubé's reasons in O'Connor. Thus, such applications cannot be made to a preliminary inquiry judge and must be made to the trial judge (ss. 278.3(1) and (2)). Further, under these provisions:

(a) personal journals and diaries are defined as "records" containing personal information for which there is a "reasonable expectation of privacy", thereby attracting the application of ss. 278.2 to 278.91 (s. 278.1);

(b) an accused bears the onus on a production application to set out, in writing, the grounds on which it is alleged that the requested record is of "likely relevance" to an issue at trial or the competence of a witness to testify (s. 278.3(3));

(c) certain assertions, if made by an accused, are insufficient on their own to establish the "likely relevance" of a record (s. 278.3(4));

(d) a complainant is not a compellable witness at a hearing to determine, for the purpose of a production application, whether a record should be produced to the trial judge for review (s. 278.4(2)); and

(e) in determining whether to order production of a record for review, the trial judge is required to balance all competing constitutional interests, including the complainant's right to privacy and equality and the accused's right to make full answer and defence (s. 278.5(2)).

[27] Thus, Parliament's legislative response to O'Connor explicitly recognizes the privacy interests which attach to personal journals and diaries, and mandates that reasonable expectations of privacy in relation to such records be respected and taken into account in determining production applications.

[28] As noted, Crown counsel argues that the principles enshrined in ss. 278.1 to 278.91 should inform the assessment of the propriety of the questions proposed to be asked of the complainant concerning his diary. The respondent and the CLA oppose this approach, on the ground that it would effect an improper inferential expansion of the reach of these sections.

[29] It is clear that ss. 278.1 to 278.91 pertain solely to production applications at trial. Thus, they do not directly govern the issue raised on this appeal. However, in my view, even without resort to these sections, a balancing of the expectation of privacy which attaches to the complainant's diary in this case, and the respondent's right to make full answer and defence, is required both by the constitutionally protected standards embodied in the Charter and by the common law, as established in Mills and O'Connor and related cases. In this wider context, ss. 278.1 to 278.91 may be viewed as reflecting Parliament's mandated approach to such balancing on the occasion of a production application.

[30] Moreover, ss. 278.1 to 278.91 are relevant to this appeal in at least one important respect. Section 278.3(3) obliges an accused to establish an evidentiary foundation of "likely relevance" to support an application for production of a private record. Counsel for the respondent argues that if he is precluded from asking any questions at the preliminary inquiry concerning the complainant's diary, save general ones, it is difficult to conceive of how the defence could ever meet the threshold requirement of establishing "likely relevance" for the purpose of a s. 278.3 application. He submits that while questions concerning the actual contents of the diary are impermissible, only those questions which bear on the "intensely private aspects" of the diary should be precluded.

[31] Counsel for the CLA similarly argues that not every question regarding the substantive contents of a private record is precluded. She suggests that at a preliminary inquiry defence counsel should be permitted to ask a complainant if a particular topic is covered within his or her private record, but should not be permitted to question the complainant about what he or she wrote in the record concerning the identified topic.

[32] In my view, the established jurisprudence and relevant policy considerations provide support for these propositions in two respects.

[33] First, the evidentiary basis necessary to support the analysis required to determine a s. 278.3 production application can be established through a variety of means, including by cross-examination of Crown witnesses at a preliminary inquiry. McLachlin J. (as she then was) and Iacobucci J., writing for the majority in Mills, stated at pp. 749-50 S.C.R., pp. 386-87 C.C.C.:

This [evidentiary] basis can be established through Crown disclosure, defence witnesses, the cross-examination of Crown witnesses at both the preliminary inquiry and the trial, and expert evidence, see: O'Connor, supra, at para. 146, per L'Heureux-Dubé J.

(Emphasis added)

The majority in Mills did not distinguish between the questioning of complainants and other Crown witnesses.

[34] In O'Connor, L'Heureux-Dubé J. commented, at p. 499 S.C.R., p. 66 C.C.C.:

In establishing the required evidentiary basis, the applicant may resort to the Crown's disclosure, to its own witnesses, and to cross-examination of the Crown witnesses at both the preliminary inquiry and the trial. On some occasions, it may also be necessary to introduce expert evidence to lay the foundation for a production application . . . regardless of when it is brought, an application for production will not succeed if it is not supported by evidence demonstrating the likely relevance of the records. [^1]

(Emphasis added)

[35] The developed jurisprudence also supports the position of the respondent and the CLA in a second respect. It evidences a trend to distinguish between cross-examination concerning a private record which intrudes on the private or personal domain of the author of the record, and that which does not.

[36] In R. v. J.F.S., [1997] O.J. No. 5328 (Prov. Div.), at a preliminary inquiry of an accused charged with a series of sexual assault offences, defence counsel sought to cross- examine a complainant on her possible involvement in therapy. Crown counsel objected on the basis that the questions were irrelevant or, alternatively, prohibited by ss. 278.2 to 278.8 of the Criminal Code. In rejecting this argument, Jennis Prov. J. held that cross-examination relating to the source and existence of third party records that "may likely be relevant to the allegations before the Court" was proper. He stated, at para. 16:

Where that line of questioning crosses over the boundary into the substance or contents of those records then those questions will have to be scrutinized to determine whether they potentially elicit information that would be considered part of the private or personal domain referred to by L'Heureux-Dubé J. in the Regina v. O'Connor case. If so, then those questions will not be permissible . . . [^2]

(Emphasis added)

[37] In further reliance on the reasons of L'Heureux-Dubé J. in O'Connor, Judge Jennis observed that to the extent that the defence seeks to elicit evidence through the questioning of the complainant which directly or indirectly bears on intensely private aspects of the complainant's life recorded in private records (at para. 10):

. . . it is precluded from doing so even though that type of evidence could assist in the discovery process and in laying the foundation for production of these records for trial. However, in my view, the defence is entitled to ask questions of the witness which will relate to the existence and source of such potential records provided that those questions do not call for answers which relate to those"Intensely private aspects" of the life of the witness or complainant as envisaged by L'Heureux-Dubé J. in the Regina v. O'Connor decision . . .

[38] The decision of the British Columbia Supreme Court in R. v. Hurrie (No. 2) (1997), 1997 12611 (BC SC), 12 C.R. (5th) 180 (B.C.S.C.) is to the same effect. That court held, at p. 186 C.R.:

. . . while a preliminary hearing judge does not have the power to order production, there is nothing in the legislation or in either of the judgments in R. v. O'Connor or the law generally that prohibits the exercise of the right of cross-examination at the preliminary inquiry to provide an evidentiary basis for such an application, which must be made to the trial judge. Whether that application is made prior to the trial or during it is a matter of timing and choice by counsel. Indeed, it would be hard to imagine any basis for objection to such a cross-examination, given that the issue of credibility, including aspects of recollection, is always a live issue even at a preliminary inquiry. [^3]

(Emphasis added)

(and see R. v. Kasook, 2000 NWTSC 33, [2001] 2 W.W.R. 683 (N.W.T.S.C.)).

[39] At issue in R. v. Shearing (2000), 2000 BCCA 83, 143 C.C.C. (3d) 233, 31 C.R. (5th) 177 (B.C.C.A.), leave to appeal to S.C.C. granted, 147 C.C.C. (3d) vi, was a ruling by a trial judge preventing defence counsel from cross-examining a complainant at trial on the contents of her diary where the purpose of the questioning was to establish that she did not record sexual abuse by the accused in the diary. In upholding the trial judge's decision to disallow such questioning, the British Columbia Court of Appeal concluded that to permit such questioning, for the stated purpose, would necessarily lead to a wide-ranging examination of the full diary, as counsel sought to demonstrate the significance, or otherwise, of the absence of recorded abuse. For this reason, the court declined to interfere with the trial judge's ruling but noted, at p. 253 C.C.C.: "If it had been possible to confine the questions simply to the fact that the entries made no mention of the abuse, without getting into the diary itself, the balance may have tipped the other way."

[40] These cases support the conclusion that questions of a witness at a preliminary inquiry concerning his or her private record are not impermissible per se; rather, they suggest that the purpose and reach of each question must be assessed, to evaluate whether the question seeks to elicit information touching upon the "private or personal domain", or the "intensely private aspects" of the life or recordings of the author of the record. Assuming that the questions are otherwise relevant, only questions of the latter type would be impermissible.

(3) The purpose of the preliminary inquiry and the right to cross-examine

[41] It is well-established that the primary purpose of the preliminary inquiry in Canada is to determine if there is sufficient evidence to warrant committing the accused to trial. Such inquiries have traditionally been regarded, however, as having a second function or aspect, in the nature of a discovery opportunity, permitting an accused to discover the Crown's case against him or her and to explore the credibility of the Crown's witnesses and the availability of potential defences. This second function or aspect of the preliminary inquiry has been recognized as an important component of the constitutionally protected right of an accused to make full answer and defence (Skogman v. R., 1984 22 (SCC), [1984] 2 S.C.R. 93, 13 C.C.C. (3d) 161 at pp. 171-72 C.C.C. and R. v. R. (L.) (1995), 1995 8928 (ON CA), 100 C.C.C. (3d) 329 at pp. 336-37, 127 D.L.R. (4th) 170 (Ont. C.A.)).

[42] Crown counsel in this case argues that the reasons of L'Heureux-Dubé J. in O'Connor, cast doubt on whether the discovery aspect of the preliminary inquiry is constitutionally mandated. [^4]

[43] In my view, this argument cannot succeed having regard to the recent decisions of the Supreme Court of Canada in R. v. Hynes, 2001 SCC 82, 88 C.R.R. (2d) 222 and R. v. Russell, 2001 SCC 53, 157 C.C.C. (3d) 1. In the former case, McLachlin C.J.C., writing for the majority, confirmed that while the paramount purpose of the preliminary inquiry is to "protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process" (per Skogman at p. 105 S.C.R.), nevertheless (at para. 31 [p. 236 C.R.R.]):

Over time, the preliminary inquiry has assumed an ancillary role as a discovery mechanism, providing the accused with an early opportunity to discover the Crown's case against him or her . . .

(Skogman, at pp. 105-06 S.C.R. and see R. v. Girimonte (1997), 1997 1866 (ON CA), 37 O.R. (3d) 617, 121 C.C.C. (3d) 33 (C.A.)).

[44] The discovery aspect of the preliminary inquiry is supported by the clear statutory right of an accused under s. 540(1)(a) of the Criminal Code to cross-examine witnesses called by the prosecution at the inquiry. Although the right to cross-examine is not unlimited, particularly in sexual assault cases, the fundamental importance of the right in the criminal process is unquestioned. It forms an integral part of an accused's constitutional right to make full answer and defence (R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595 at pp. 663-65, 109 D.L.R. (4th) 478, per Cory J.; R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, 66 C.C.C. (3d) 321 at p. 389 C.C.C., per McLachlin J.; R. v. George (1991), 1991 7233 (ON CA), 5 O.R. (3d) 144, 69 C.C.C. (3d) 148 (C.A.); and R. v. Dawson (1998), 1998 1010 (ON CA), 39 O.R. (3d) 436, 123 C.C.C. (3d) 385 (C.A.) at p. 391 C.C.C., per Carthy J.A.).

[45] As observed by Cory J. in Osolin, at p. 667 S.C.R., a careful balancing must take place to ensure ". . . that the complainant's cross-examination is relevant and pertinent and not needlessly extended for improper purposes".

[46] In this case, we are not concerned with a pre-trial production request by the respondent, nor could such an application be brought before the preliminary inquiry judge. We are concerned with the accused's fundamental right to cross- examine a complainant at a preliminary inquiry, as confirmed by statute, and the proper limitations on such cross- examination having regard to the competing constitutional rights of the complainant and the respondent. As discussed further in these reasons, in my view, the significant privacy interest of the complainant in his diary operates to limit the scope of permissible questioning, but does not preclude all questioning concerning the diary.

(4) Jurisdiction of the preliminary inquiry judge

[47] Crown counsel submits that a preliminary inquiry judge lacks jurisdiction to allow the defence to cross-examine the complainant in the manner suggested because the determination of the relevance of the proposed questions necessarily involves the balancing of the complainant's constitutional rights against those of the respondent, an assessment which is said to be beyond the power of the preliminary inquiry judge.

[48] It is clear that the jurisdiction of preliminary inquiry judges derives from statute and is constrained in relation to constitutional issues. [^5]

[49] In this case, however, no issue regarding the constitutionality of legislation arises, nor is it necessary for the preliminary inquiry judge, in assessing permissible cross-examination, to determine the scope of a right under the Charter or an alleged denial or infringement of such a protected right. Rather, what is necessary, in my view, is a determination of the relevance of each proposed question having regard to the purpose of the preliminary inquiry process. In Kasook, Vertes J. addressed these issues directly. He stated, at paras. 28 and 29 [p. 695 W.W.R.]:

I also cannot agree with the prosecution argument in this case that, due to the privacy interests sought to be protected by these Criminal Code provisions -- privacy interests that have a constitutional aspect in themselves -- Parliament intended to put any inquiry into private records beyond the scope of a preliminary inquiry judge . . .

In my view, there is nothing inherent in this subject that would necessarily preclude its consideration at the preliminary inquiry level other than the fact that the preliminary inquiry judge by statute does not have jurisdiction to hear an application for production. That is not the same thing as allowing questions as to the circumstances of the counselling so as to enable the defence to make an application in the appropriate forum. In my respectful opinion, the fundamental error in the Crown's submission on this application is that [it] conflates cross- examination as to the circumstances of counselling with the actual application for production.

(Emphasis added)

I agree with these observations.

(5) Application of these principles to this case

[50] In light of the principles described above, it remains to assess the propriety of the questions proposed to be asked of the complainant concerning his diary.

[51] Two features of this case merit emphasis.

[52] First, the complainant's diary was not tendered by the Crown as an exhibit at the inquiry and did not otherwise form part of the Crown's case. Similarly, we are not concerned in this case with waiver by the complainant of the application of ss. 278.1 to 278.91 of the Criminal Code in connection with a record in the possession or control of the Crown, which waiver is permitted under s. 278.2(2). This does not mean, however, that the probative value of the diary, or of information related to it, is presumed to be low.

[53] Second, although the Crown's objection to the question of whether the complainant had written anything in his diary concerning the alleged incidents of assault was made almost in tandem with the complainant's answer to the question, the complainant did testify that he had not written anything about the two alleged assaultive incidents in his diary. This response bears directly on the relevance of the remaining proposed questions regarding the diary and the probative value of any information to be obtained from responses to those questions.

[54] Stated differently, had the complainant confirmed that he made entries in his diary concerning the incidents of assault alleged against the respondent, the analysis of the relevance and scope of proposed cross-examination concerning the diary would be different. In this case, the reverse occurred, giving rise to a legitimate question regarding the probative value of cross-examination questions concerning the diary, its characteristics and contents, and the circumstances relating to its creation and maintenance by the complainant.

[55] However, the assessment of the relevance of the proposed questions and, hence, of the probative value of the information sought to be obtained from the complainant, does not end there.

[56] The admissibility of evidence at a preliminary inquiry, and the scope of permitted cross-examination, is determined by relevancy. This court held in R. v. R. (L.), at p. 336 C.C.C., that relevancy in this connection is not to be governed solely by the narrow test for committal. Rather, a broader approach to relevancy is mandated by the discovery feature of the preliminary inquiry.

[57] In O'Connor, in the reasons of the majority relating to records in the possession of third parties, it was established that the meaning of "relevance" in the disclosure context concerns whether the information may be useful to the defence. In the context of production, the test of relevance at common law is even higher: "the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (at p. 436 S.C.R., p. 19 C.C.C.). However, relevance "to an issue at trial" refers (at p. 436 S.C.R., p. 19 C.C.C.):

. . . not only to evidence that may be probative to the material issues in this case (i.e., the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case . . . .

[58] In O'Connor, L'Heureux-Dubé J. suggested that the assumption that private therapeutic or counselling records are relevant to full answer and defence "is often highly questionable" (at p. 481 S.C.R., p. 52 C.C.C.). However, Lamer C.J.C. and Sopinka J. [^6] disagreed and stated, at pp. 440-41 S.C.R., pp. 22-23 C.C.C.:

By way of illustration only, we are of the view that there are a number of ways in which information contained in third party records may be relevant, for example, in sexual assault cases:

(1) they may contain information concerning the unfolding of events underlying the criminal complaint . . .

(3) they may contain information that bears on the complainant's "credibility, including testimonial factors such as the quality of their perception of events at the time of the offence, and their memory since". . . .

[59] I again emphasize that we are not concerned on this appeal with either production or the disclosure obligations of the Crown. We are concerned, however, with the prospect that questioning the complainant regarding his diary may furnish evidence to the respondent upon which he would be legally entitled to subsequently rely for the purpose of a s. 278.3 production application at trial. We are also concerned with the possibility that such questioning, unless properly limited, may inevitably result in involuntary disclosure by the complainant of intensely private matters recorded in his diary, thus depriving him of the constitutionally protected reasonable expectation of privacy which attaches to his diary. In my view, the considerations of relevancy outlined by the majority in O'Connor do have significance in these circumstances.

[60] It is undisputable that the complainant's personal diary attracts a significant degree of privacy. The very nature of such a record imports an intention by the diarist that its contents remain confidential save as the diarist may voluntarily elect. As noted in Shearing, at p. 255 C.C.C.:

It is in the nature of most personal diaries that they will, in the words of Plant [R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, 84 C.C.C. (3d) 203 at para. 81]". . . reveal intimate details of the lifestyle and personal choices of the individual". Being forced to reveal the contents of a diary is akin to having one's inner discourse intercepted.

(and see R. v. M. (D.) (2000), 2000 22825 (ON SC), 37 C.R. (5th) 80 at p. 94 (Ont. S.C.J.), per Hill J.).

[61] I agree with counsel for the respondent and the CLA, however, that there is no absolute bar to all questioning of a complainant at a preliminary inquiry concerning a private record, and that ss. 278.1 to 278.91 of the Criminal Code, by their terms, and the decisions in Mills and O'Connor do not preclude such questioning. Rather, only those questions which implicate the private or personal domain of the author of the record are impermissible. It follows that where it is acknowledged, as in this case, that cross-examination on the actual contents of the diary is impermissible, it is necessary to assess the proposed questions to determine whether they will intrude on the intimate and personal aspects of the recorded life experiences, thoughts and feelings of the diarist.

[62] The questions sought to be asked by the respondent are set out in paras. 10 and 12 of these reasons. In my view, they may usefully be described as falling into two categories: (a) questions which do not, by their nature or scope, in any way implicate the private or personal domain of the complainant and (b), questions which, properly limited, need not and should not be permitted to result in a description of the actual contents of the diary so as to intrude on the private or personal domain of the diarist.

[63] The questions set out in subparagraphs 10(a), 12(a), 12(b), 12(c), 12(d) and 12(e) fall into the first category, while the questions set out in subparagraphs 10(b), 10(c), 10(d), 12(f), 12(g), 12(h), 12(i) and 12(j) fall into the second category. [^7] I conclude, with one important limitation, that the questions in both categories, as currently framed, may be asked of the complainant at the preliminary inquiry.

[64] In my view, questioning of a complainant at a preliminary inquiry concerning a private record must be as limited as reasonably possible to respond to the accused's right to make full answer and defence. Accordingly, the issue becomes how, not whether, cross-examination of the complainant can be limited "in a manner that accords appropriate constitutional protection to all of the constitutional rights at issue" (O'Connor, at pp. 480-81 S.C.R., p. 52 C.C.C., per L'Heureux-Dubé J.).

[65] I note also that, for the purpose of laying an evidentiary foundation for a production application under s. 278.3 of the Criminal Code in respect of the diary, it is unlikely that the respondent could obtain information relating to the complainant's diary by any available means other than through limited cross-examination of the complainant. There is no evidence in this case that any person other than the complainant has access to the diary or knowledge of its contents, its physical characteristics and the circumstances of its creation and maintenance. These are facts which, on the record before this court, are within the exclusive knowledge of the complainant.

[66] I conclude that the proper limitation in this case relates to those questions falling within category (b), described in para. 62 above. I do not agree with Crown counsel's submission that a blanket prohibition on all cross- examination concerning the contents of the diary is necessary or appropriate. Rather, in my view, no questions may be asked of the complainant touching upon his recollection of the exact contents of the diary or the content of actual entries in the diary. As suggested by counsel for the CLA, counsel for the respondent should be permitted to ask the complainant at the preliminary inquiry if a particular topic is covered within his diary, but should not be permitted to question the complainant about what he wrote or recalls recording concerning the identified topic. A wide-ranging exploration of the topics addressed in the diary is not permissible, however. For this reason, only those questions concerning content which fall within category (b), described in para. 62 above, and in the m anner now framed by counsel for the respondent, may properly be put to the complainant at the preliminary inquiry.

(6) Other issues

[67] Crown counsel also requests this court to articulate general guidelines to be followed in assessing the scope of permissible cross-examination at preliminary inquiries on personal records in the possession of third parties, including documents in the nature of therapeutic or counselling records. Having regard to the particular facts of this case, I do not think it appropriate or necessary to do so. The establishment of general guidelines regarding permissible cross-examination on personal records in the possession of third parties, if it is to occur at all, is best left to a case where the factual background so demands.

Conclusion

[68] Accordingly, I would dismiss the appeal.

Appeal dismissed.

APPENDIX A

R. v. B.(E.) -- C35477

278.1 For the purposes of sections 278.2 to 278.9"record" means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, 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.

278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of

(a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.

(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.

(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor's possession but, in doing so, the prosecutor shall not disclose the record's contents.

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.