W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(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,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.
DATE: 20020425
DOCKET: C30458
COURT OF APPEAL FOR ONTARIO
FINLAYSON, LASKIN and MacPHERSON JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Robert W. Hubbard, for the Department of Justice Canada and Amy Alyea, for the Attorney General of Ontario, co‑counsel for the respondent
Respondent
- and -
JOHN ALEXANDER ORPIN
Gregory Lafontaine, for the appellant
Appellant
Heard: March 11 and 12, 2002
On appeal from the convictions imposed by Justice Charles F. Doyle, sitting with a jury, dated April 17, 1998 and from the sentence imposed by Justice Doyle dated May 27, 1998.
FINLAYSON J.A.:
[1] The appellant appeals from convictions and a six-year global sentence on thirteen counts of historical assaults and sexual offences committed against five of his female patients from approximately 1977 to 1989.
OVERVIEW
[2] The appellant is a former doctor who, although he had not completed his training in psychiatry, practised as a psychotherapist in Toronto and Ottawa. In treating his patients he employed unconventional, even bizarre, therapies that were variously described as "talk therapy" "primal therapy" "regression therapy" "rebirthing" and "therapeutic touch." His treatments of patients frequently included sexual contact that progressed to spanking, bondage, oral sex and/or sexual intercourse. He used drugs such as Ketamine, a veterinary and human anesthetic that can cause dream-like states and hallucinations, on some of the women. One of the women, K.S., alleged that the appellant committed forced anal intercourse during a "therapy" session. The appellant also engaged in romantic relationships, which evolved out of the therapeutic relationships he had with some of the complainants.
[3] The appellant was charged and committed to stand trial on nineteen counts. The counts included assault, assault causing bodily harm, indecent assault, sexual assault, criminal negligence causing bodily harm, gross indecency, assault with a weapon, and sexual assault causing bodily harm. The appellant entered a plea of not guilty at trial. At trial Crown counsel withdrew one count of assault in respect of an alleged spanking incident involving one of the complainants.
[4] At trial before a judge and jury the appellant did not testify but his counsel admitted that most of the sexual activity occurred. The appellant's defence at trial was three-fold. First he argued that some of the alleged acts had simply not taken place. Second he argued that some of the alleged touching was legitimate therapy, or at the very least that he genuinely believed the conduct was legitimate therapy aimed at correcting problems the patients identified in their sex lives. With respect to the admitted sexual acts such as intercourse, the appellant maintained that not all of them took place within the therapeutic relationship, but rather that some occurred in the context of romantic affairs with the complainants. Third, he argued that the complainants consented to all the sexual acts he admitted to or that he honestly believed they had consented to them.
[5] The Crown argued that the alleged acts had taken place. The Crown also argued that the appellant knowingly abused his position of authority in respect of these vulnerable women and that any professed consent was therefore vitiated by fraud.
[6] At trial the Crown presented two similar fact witnesses, L.B. and M.T., who claimed to have suffered similar abusive treatment at the hands of the appellant. While M.T. testified at the trial, L.B., who now lives in the United States, was unwilling to attend court for the trial and did not actually testify. Rather, pursuant to the principled exception to the admission of hearsay in R. v. Khan (1990), 59 C.C.C. (3d) 92 (S.C.C.), her hearsay evidence from a 1987 professional misconduct hearing at the College of Physicians and Surgeons was read-in.
[7] A second witness' testimony was also read in. K.S, who testified at the preliminary hearing, was excused from testifying at trial due to ill health and the trial judge allowed her preliminary hearing testimony to be read into evidence.
[8] Both sides presented testimony from a number of experts in a number of areas. The evidence of the experts was important as it related to doctor and patient relationships, the issue of bona fides in sexual acts that occur during therapy, and ultimately the issue of consent. The experts all agreed, in substance, that there is a power imbalance in the therapist-patient relationship. They disagreed on whether it is inherently harmful for a patient to be engaged in a sexual relationship with a therapist. At the very least, one defence psychiatrist testified, not all doctors would have known in the early 1980s that such relationships are harmful to patients. In any event, the defence expert concluded there is nothing inherent in such relationships that would prevent a patient from being able to consent to sexual activity. He did agree that when a drug causing an altered state of mind is used on a patient before any mention of sex, then the ability to consent must be questioned.
[9] At the end of four weeks of testimony the jury deliberated for four days. However, prior to putting the case before the jury, the trial judge dismissed one count of criminal negligence causing bodily harm after concluding that the provisions of s. 204 as amended to s. 221 of the Criminal Code, R.S.C. 1985, c. C-46, as amended, did not cover the psychological harm being alleged.
[10] On April 17, 1998 the appellant was convicted of five counts of sexual assault, two counts of assault causing bodily harm, two counts of assault with a weapon, two counts of assault, and two counts of gross indecency. The appellant was acquitted of one count of indecent assault and one count of assault. The jury was deadlocked on two counts of sexual assault and the trial judge declared a mistrial on those counts. The appellant was sentenced to a total of six years imprisonment.
ANALYSIS
[11] I am of the view that there must be a new trial in this case. Therefore, I do not propose to go into the evidence in any detail, with the exception of the testimony provided by K.S. and the similar-fact hearsay evidence of L.B., each of which presents special problems. However, those individual cases aside, all the verdicts of guilty are fatally flawed by the failure of the trial judge to adequately instruct the jury on what in law constitutes consent in the peculiar circumstances of the alleged assaults. This is a stand-alone impediment to the Crown upholding the result below. However, this confusion over the issue of consent also spilled into the trial judge's instruction on the theory of the defence and in the result the appellant was denied a fair hearing.
The Trial Judge's Instructions on Consent
[12] In the circumstances of this case there was a significant risk that the jury would have been confused about the proper test to apply to determine the issue of consent. In a similar case, R. v. Makray (1982), 70 C.C.C. (2d) 479, this court determined what it considered appropriate in a charge to the jury. In that case an acupuncturist was charged with two counts of indecent assault arising from touchings and examinations conducted by him on two of his female patients. At trial the Crown argued that the appellant held himself out as a doctor and that the complainants' consent was obtained by false and fraudulent representations as to the nature of the treatments. Makray's appeal from conviction was allowed. Zuber J.A., for the court, held as follows, at p. 480:
The issue of whether or not the appellant is a medical doctor in this case is not determinative. The jury was, of course, entitled to take this evidence into consideration along with all the other evidence in deciding the central issue of fact, that is, whether or not the examination and touching was a part of the bona fide process of diagnosis and treatment because it was to this alone that consent was given. [emphasis added.]
The [trial judge's] instructions to the jury, however, do not assist in the identification of this issue as pivotal to conviction. The instructions leave it open to the jury to conclude that a misrepresentation by the appellant that he was a medical doctor would be a sufficient basis for conviction. In the identification of the real issue in this case the trial judge would, of course, also identify the credibility of the two complainants and the appellant as critical in the resolution of that issue. In our view, there was non-direction which amounted to misdirection in this case and as a result the verdict cannot stand. [Emphasis added].
[13] In the case at bar, the judge made a number of fatal errors in relation to the charge on consent. He failed to instruct the jury that its first task was to determine whether the criminal acts alleged in fact occurred. He then should have instructed them to distinguish between the alleged sexual acts that occurred within the therapeutic relationship and those which occurred outside of the therapeutic relationship. His instruction failed to specify that in order to convict with respect to the acts that occurred within the therapeutic relationship, the jury would have to determine that the complainants consented to the therapy and that it was not bona fide therapy because to the extent the jury found the complainants consented to treatment, that consent would only have extended to acts done for a bona fide therapeutic purpose. Finally, the trial judge failed to instruct the jury that in relation to those alleged acts, if any, which the jury found occurred outside of the therapeutic relationship, that they were to approach those acts as they would sexual assault in any other case: i.e. by determining whether the complainants gave valid consent.
[14] Instead the trial judge operated under the erroneous assumption that all of the conduct complained of was conducted under a therapeutic umbrella. Compounding this problem, the trial judge further confused the issue of consent by instructing the jury that each complainant would have to have given an "informed consent" to the various acts in which they engaged with the appellant in order for the consent to be valid.
[15] The trial judge's instruction on "informed consent" was as follows:
Consent means the voluntary agreement of the complainant to engage in the sexual activity in question. Evidence that the complainant struggled or resisted the accused is obviously very significant to this determination. But failure to resist does not necessarily mean consent. This is not an exhaustive list. You may find other factors that may assist you in your determination of this issue. Remember, the consent must be a true consent in that it was a genuine and also an informed consent or decision by the complainant to engage in the sexual activity.
There should be full information that is granted to a victim before it becomes an informed consent. But if it is not an informed consent, if there are so many things left out of an explanation, then of course the consent is simply not valid, if it affects of course that the victim or the complainant had in mind.
There is no consent where submission results from force, threats, fraud or the exercise of authority.
The agreement must come from the complainant, who must be capable of consenting to the activity. The complainant cannot be induced into consenting by someone abusing a position of trust. Further, there is no consent if the complainant expresses, by word or conduct, a lack of agreement to engage in the activity. Likewise, there is no consent where the complainant agrees to engage in sexual activity and then expresses, by words or conduct, a lack of agreement to continue with the activity. When a person consents to being touched, that consent only covers a certain amount of touching. It does not cover touching that goes beyond consent. [Emphasis added.]
[16] The trial judge went on in his charge to refer to s. 149 of the Criminal Code (as it was in 1978) dealing with assault on a female simpliciter. However, he then referred immediately to s. 149 (2) dealing with consent obtained by false and fraudulent representations as to the nature and quality of the act and erroneously imported the medical concept of "informed consent" into s. 149(2). He said:
You [the jury] have to determine then the consent that's required now, according to all of these medical associations and even the case law…. [I]f a consent was obtained by false or fraudulent representations as to the nature and quality of the act – in other words, it means that there is no informed consent….[Emphasis added.]
[17] He also defined "informed consent" by reference to the expert evidence thereby confusing the issue of whether the therapy was bona fides with whether the complainants were fully informed within the medical meaning of "informed consent."
But basically speaking, the doctors are saying that – Dr. Robinson [the Crown psychiatrist] said that there was to be no sexual relations, there was to be no touching, touch therapy, or things of that nature, so that you have to then decide whether there is a full consent, full informed consent that has been given and whether the patient was properly dealt with in the sense that the patient had consented to sexual intercourse taking place.
With respect to some of the case law, it says this:
Thus the nature of a complainant's relationship to her alleged assaulter, including the patient's lack of power and knowledge as well as the doctor's duty to perform medical examinations only for the good of the patient and in the patient's best interest, must be kept in mind when determining whether the patient in fact consented to the conduct in question. [Emphasis in original].
This is generally what is meant by the consent. There is a matter of full disclosure that must be made or that is expected to be made to the patient before entering into these relationships or entering into sexual intercourse or some other lesser activity – sexual activity with the therapist.
[18] Taken together, these excerpts from the trial judge's charge demonstrate how the charge as a whole, clouded in the words of Zuber J.A., the "issue … pivotal to the conviction" of whether the acts were part of the bona fide therapeutic treatment to which the complainants consented.
The Trial Judge's Review of the Appellant's Defence
[19] The trial judge's charge became trapped in the issue of the alleged therapeutic treatment that the appellant is said to have been administering. This likely resulted in the trial judge's treatment of the appellant's defence as limited to the issue of whether there was consent within the concept of consent in a doctor/patient relationship.
[20] The trial judge did not even put to the jury the appellant's denial that the events occurred or his argument that those which did occur did not take place in the circumstances that the complainants described. He ignored firstly, that defence counsel adamantly denied that certain of the conduct ever occurred (e.g., allegations by K.S. of violent serial rape and sodomy). This argument is totally inconsistent with a defence that the sex was consensual and raises no air of reality that the complainants consented to such conduct. By restricting the appellant to the defence of consent, the trial judge as good as invited the jury to convict on these counts.
[21] Secondly, the trial judge ignored defence counsel's contention that many of the admitted acts of intercourse were not actually part of any therapy but arose within the context of romantic relationships that evolved out of therapeutic relationships the appellant had with the complainants. The trial judge's instructions failed to capture this theory and did not include a sufficient review of the evidence to illuminate this prong of the defence theory. His constant repetition of the need for "an informed consent", the obligations within "fiduciary relationships", and the concerns about "representations as to the nature and quality of the act" restricted the appellant's defence to the sole issue of whether or not the complainants had consented to therapy that included sexual intercourse.
[22] The trial judge's basic misconception of what in law could amount to consent bleeds into the instruction on the theory of the defence to give a skeletal and misleading charge. On the theory of the defence the trial judge said:
The defence now for Dr. Orpin is simply to the effect that the consent was obtained by each of the persons. Nobody objected to it, and that is correct, that no one seems to have objected to certain – to opposition to any of these things. You've got spankings, you've got sexual intercourse to consider. If you do come to the conclusion that these things are true as a result of coming through from the mouth of several witnesses, then you have to decide whether there is consent on any of these questions. And if there is consent to it, then of course Dr. Orpin would have to be acquitted of all of those charges that deal with – if you are satisfied that there is nothing other than consent that has been given to Dr. Orpin, that would be the end of things, of all of the counts on the indictment.
[23] This charge lacks any specifics in respect of the individual complainants and ignores completely the appellant's denials that certain of the alleged conduct even occurred. The evidence respecting K.S. on counts relating to gross indecency, sexual assault, assault with a weapon, and sexual assault causing bodily harm is important here because it illustrates conduct by the appellant that permits of no air of reality to a defence of consent. It also demonstrates the need to refer to the evidence and relate the different defences raised to that evidence. K.S.'s preliminary hearing testimony, which was read‑in at trial due to her ill health, was dramatically illustrative of conduct that the appellant conceded occurred and that the appellant justified as therapy, as well as conduct that he simply denied occurred, and conduct that he argued arose out of a personal relationship which evolved out of the therapy sessions.
[24] K.S. testified at the preliminary hearing that she began to see the appellant in June or July of 1987 because of marriage difficulties. He presented various therapies to her, including primal therapy, magnetic fields, biofeedback, gas inhalation therapy, hypnosis and psychotherapy. She told the appellant that she did not want to engage in primal therapy. He gave her literature that included "The Art of Spanking." He often employed hypnosis. During one such session, without seeking her consent, he bound her hands above her shoulders. She tried to struggle out of the trance but the appellant "counted her down" in an effort to put her in a deeper trance. She said the bondage was painful and that she told the appellant to "stop it." He untied her.
[25] As a supplement to hypnosis he practised "Reichi" therapy, in which he put her head on his lap, near his groin, and moved her head and neck slowly to relax the muscles, then repeated the motions on her rib cage and breasts, under her blouse. Her breasts were numb, she said, so that she did not realize at the time that she was being violated. She alleged on that occasion during the therapy he committed forced anal sex and that the following week he forced her to have vaginal intercourse.
[26] The appellant through counsel vigorously denied the allegations of forced anal sex but conceded that most of the other conduct occurred and argued that it was justified as therapy to which K.S. had consented.
[27] However, there is another segment of her evidence that describes conduct that can never be therapy and much of which she could not have consented to in law: see R. v. Jobidon (1991), 66 C.C.C. (3d) 454 (S.C.C.). She testified that she continued therapy with the appellant and, on one occasion, accompanied him to his cottage, where he put her under hypnosis, took hold of her wrists and forced her to go upstairs. There, he shoved her face into a pillow, beat her backside with an object, stripped her, anally raped her and shoved her into bed. Thereafter, the couple followed a pattern by which they had one session at the appellant's office, after which they went to his cottage for another session, which frequently involved anal rape and beatings. Among other things, she said that she was tied to exercise ropes with black ropes and blacked out. She suffered bruises on her buttocks that lasted for several weeks.
[28] On the other hand, and reflecting adversely on her credibility, she saw the appellant outside of his office during 1988, including a trip with him to Parry Sound, and frequently had sex with him. She began to work for him after the therapeutic relationship ended and they went out together in public socially. Near the end of the relationship, in early 1989, the appellant used Ketamine on her, despite her objection. It paralyzed her body but not her mind. She was able to "trip on it" but she could not speak while under its effects. While she severed the relationship in 1989, she admitted in cross-examination that she and the appellant had a few sexual encounters between 1989 and 1992.
[29] Appellant's counsel repeatedly objected to the trial judge's instruction to the jury on the issue of consent and its relationship to the theory of the defence. Counsel protested that the trial judge was treating all sexual acts, including the anal intercourse, which was adamantly denied by appellant's counsel, as part of the therapy, when he instructed the jury that there would have to be an informed consent to that conduct.
[30] The trial judge re-charged the jury twice but on the first occasion he merely repeated what he had said in his first charge. After further objection he gave a third instruction, which, in the context of his example relating to K.S., simply made it worse. After confirming with the jury that the transcript of K.S. had been read to them the trial judge said:
I think I have been speaking of informed consent. I won't even bother to say "informed consent". But with respect to consent, I would ask you, if [K.S.] should have been told something about the December 3rd, '87 [the first act of anal intercourse] – in other words, I won't use the word "informed consent". I have in the past. But let's say that we just talk about consent. Should she have been told about what was going to happen on that day, December 3rd 1987. I assume that you read something about that particular occasion. But in any event, if you think that she should have been told something, you figure out then what it was that she should have been told that was coming on December 3rd, 1987, and then you decide what the result of that would be with respect to the principles that we have discussed, I think in the past two or three days, perhaps not fully or whatever it is.
[31] The appellant's defence to the beatings, the bondage and the anal rape was that these things did not happen at all. Consent on any definition was not put forward as a defence with respect to these acts. To restrict the appellant's defence to consent was most unfair to the appellant.
[32] In my opinion, a suitable charge which recognized the appellant's defence and appropriately put the issue of consent to the jury ought to have included these four critical questions:
Do you find that the alleged sexual acts occurred;
If you find that these acts did occur was each sexual act part of a therapeutic session and/or for a therapeutic purpose;
If you find that each sexual act was part of a therapeutic session or for a therapeutic purpose was the therapy bona fide; and
If you find that the sexual acts occurred but were not part of a therapeutic session or for a therapeutic purpose, did the complainant give a valid consent to the sexual act?
Failure to so charge the jury rendered the trial unfair and is a ground in itself for ordering a new trial. This failure has particular application to the counts in which K.S. was the complainant. Hers was the most damning evidence of all and yet was read in from the preliminary hearing without benefit of cross-examination before the jury. This made it all the more important that the trial judge clearly set out the defence and instruct the jury as I have set out above.
The Similar Fact Evidence
[33] By admitting L.B.'s testimony from a prior proceeding to be read-in as similar fact evidence, the trial judge gave an overly broad interpretation to the "necessity" requirement in the principled exception to the hearsay rule. The trial judge admitted L.B.'s evidence as similar fact evidence via a transcript of an earlier proceeding. The transcript was from her testimony at a 1987 College of Physicians and Surgeons' disciplinary hearing in which she testified against the appellant. As a result of that hearing the appellant's license was revoked. This testimony was of little probative value at the trial since the issue before the College was an accusation of sexual touching of a patient and before the College, consent to such acts was irrelevant and was not raised as a defence.
[34] At the time of the trial, L.B. was living in the United States and expressed her reluctance to come to Canada to testify. As a result, the trial judge admitted her testimony from the disciplinary hearing as similar-fact evidence under the "principled approach" in Khan, supra. This evidence was particularly damning because K.S. in her secondary evidence stated that hearing of the appellant's treatment of L.B. approximately one year later triggered her memory of events.
[35] L.B.'s evidence was that in 1984 she began to see the appellant because of depression related to her marriage and infertility problems. At the first session, the appellant described his treatment methods to her as a combination of primal therapy, transactional analysis and psychotherapy. He told her not to tell anyone about what went on at the sessions.
[36] At one session the appellant pushed and shoved her around the head and shoulders and held her down on a futon. He said that he was trying to make her angry so that she would stick up for herself.
[37] At three sessions in September 1984 he touched her in a sexual manner. He rubbed and hugged her in various places. At the third session, after he gave her something to read about spanking, he asked her to kneel over a stool, then pulled up her skirt, pulled down her pants and strapped her with a belt. When she told the appellant that he was hurting her, the appellant continued to spank her with a bare hand. She suffered bruises and welts from the spankings.
[38] The relationship evolved into an intimate one. They took walks in the Gatineaus, held hands and hugged. On one occasion, she visited the appellant at his apartment. He undressed her and he had her undress him. They engaged in various sex acts short of intercourse. The therapy ended in November 1984 but she continued to attend his workshops. After one workshop, the appellant asked her to go with him for a drink. They went back to his office and had intercourse. Following the last workshop she attended in late 1984 they went to a hotel where the appellant had made a reservation. They had intercourse and spent the night together. Similar events occurred in the following weeks.
[39] On this appeal the appellant takes objection to the admissibility of this evidence on the basis that L.B. was available and that accordingly resort to the principled exception to the admission of hearsay in Khan, supra, was not justifiable as necessary.
[40] Detective Brian Card of the Ottawa-Carleton Regional Police Force (as it then was) testified at the voir dire into the admission of L.B.'s similar fact evidence. He had been investigating the Orpin case since August 1994. He gave evidence about his efforts to contact L.B. and to convince her to testify at the trial. Detective Card's first contact with L.B. was at her Ontario residence on September 25, 1995, during which he informed her of the criminal investigation into the appellant's conduct.
[41] At that initial meeting, L.B. delivered to Detective Card "a lot of correspondence" between her and a lawyer who had acted on her behalf during the 1987 College disciplinary hearings. This correspondence included statements she had written for the College prosecutors. She gave copies of the statements to Detective Card even though the police had already seized copies of them from the College. Detective Card reviewed her statement with her and "went over what happened to her during her time as a patient."
[42] In 1995 L.B. gave a fresh statement to the police and, as a result of her statement the police laid several criminal charges against the appellant with respect to her allegations.
[43] To the best of Detective Card's knowledge L.B. left Ontario in August of 1996. He testified that he found out "through an answering message at her home" that she was living in the United States. Detective Card called her in an effort to have her testify at the preliminary inquiry. The following exchange took place at the preliminary hearing in direct examination between Detective Card and the prosecutor regarding L.B.'s attendance:
Q. When you spoke to her, did she indicate whether she was willing to return to Canada to testify at the preliminary hearing in this matter?
A. No. She advised me that she no longer wished to come back and testify, that she thought about it and that it was her wish not to come back and go through the process again.
Q. Did she elaborate on her reasons for that?
A. She was newly married, or not – she had been married by another husband, because her husband, during the time of John Orpin had – was killed and she's remarried –
Q. A motor vehicle accident?
A. In a motor vehicle accident. And she had remarried, and she felt, now that she was away from Ottawa and out of Canada, that she can try and get her life back together, and this would be too stressful for her to go through again.
Q. Is she still residing in the United States of America?
A. Yes, she is.
[44] It is evident from Detective Card's cross-examination that when he was told that L.B. "did not want to return to go though the process again" he made no effort to persuade her otherwise. As he put it"I did not pursue it after she told me. I respected her wishes".
[45] Evidently the trial judge admitted L.B.'s hearsay evidence as necessary on the basis that she refused to come to Ottawa to testify at the preliminary hearing and was therefore, unavailable for trial. That is placing her position much too high. She did not want to come and the police officer did not pursue the matter. Additionally neither Detective Card, nor the prosecutor, appears to have explored the possibility of compelling her testimony by taking commission evidence.
[46] This court held in Khan v. College of Physicians and Surgeons of Ontario (1992), 76 C.C.C. (3d) 10, that necessity cannot be equated with mere unavailability of a witness. Necessity in that case was about the need to place a child's evidence before the relevant tribunal. Doherty J.A., for the court, held as follows, at 24:
The fact that the child testifies will clearly impact on the necessity of receiving his or her out-of-court statement. Necessity cannot, however, be equated with unavailability. In Khan, McLachlin J. instructs us that necessary means "reasonably necessary" (at p. 104). In the context of cases involving an alleged sexual assault on a child, reasonable necessity refers to the need to have the child's version of events pertaining to the alleged assault before the tribunal charged with the responsibility of determining whether the assault occurred. In my view, if that tribunal is satisfied that despite the viva voce evidence of the child, it is still "reasonably necessary" to admit the out-of-court statement in order to obtain an accurate and frank rendition of the child's version of the relevant events, then the necessity criterion set down in Khan is satisfied: see Anne McGillivray"R. v. Laramee : Forgetting Children, Forgetting Truth" (1991), 6 C.R. (4th) 325 at pp. 335-41. [Emphasis added.]
[47] Similarly this court's judgment in R. v. Finta (1992), 73 C.C.C. (3d) 65 at 199, aff'd on other grounds (1994), 88 C.C.C. (3d) 417 (S.C.C.) stated:
Properly understood, the principle of necessity means not that the hearsay evidence is necessary for a party to prove his case, but that hearsay is the only available means of putting that evidence before the court. To be admissible, the evidence must be relevant to, but not necessarily dispositive of, an issue, and for hearsay to be admissible, it must be the only way of tendering that relevant evidence. Furthermore, it must exhibit indicia of reliability not required of evidence capable of being tested in court by cross-examination.
[48] The Saskatchewan Court of Appeal in R. v. Charles, [1997] 3 W.W.R. 556, allowed an accused's appeal from conviction in a case of domestic assault on the basis that the trial judge erred in admitting the victim's three out-of-court statements. The victim, the appellant's common law spouse, made three hearsay statements before trial alleging that the appellant and his son had beaten her. She made the first to a women's shelter worker, the second to a police officer, and the third in testimony at the son's trial. The case for necessity was based on the complainant's failure to appear in court on the date of the trial. Cameron J.A., after reiterating the proper approach to determining "necessity" noted, at paras. 4 and 6:
[4] She [the complainant] had failed to appear on an earlier occasion as well, though having been served with a subpoena, and in consequence a bench warrant for her arrest as a witness had then been issued. Rather than act upon the warrant, the prosecutor chose to serve her with a fresh subpoena, though for one reason or another, not disclosed at trial, he did not expect her to show up. …
[6] … [T]he trial judge was in no position to find that the complainant was unavailable or unable to testify as a witness by reason of death, as in R. v. Smith; or of testimonial incapacity or incompetence, as in R. v. Khan and R. v. Rockey; or of non-compellability, as in R. v. Hawkins. Indeed he could not so much as find she was unavailable or unable to testify, except in the soft sense she was not then present, could not readily be located, and apparently did not wish to appear and testify. And even at that, it was impossible for him to know the reason for this. …
[49] In concluding that the trial judge erred in admitting the evidence on the basis of necessity Cameron J.A. said the following, at paras. 9-11:
[9] Barring speculation, the complainant's failure to appear for the purpose of testifying cannot be specifically attributed. It can no more be attributed to fear and the threat of reprisal, let us say, than to affection and a desire to reconcile. And these are but limited examples of the myriad of forces potentially at work in these situations. Moreover, this speaks only to her absence. Whether, had she been present, she might or might not … have been willing to testify cannot be known.
[10] While the requirement of "necessity" remains to be bounded more fully than at present, making it difficult on occasion to determine whether it has or has not been fulfilled, we are satisfied the trial judge went too far in this instance. One might say the rationale for the principled exception to the hearsay rule lies in expedience, but it is not founded in expedience or convenience of the nature or degree relied upon by the trial judge. The concerns he acts upon, while no doubt real enough, are of highly dubious relevance to the application of the exception. Indeed, to find "necessity" based on nothing more than what was before the court in this instance, is virtually to find that this pre-condition to the admission of hearsay exists generally, and by definition, when it comes to the prosecution of spousal charges of assault and the allegations of the complaining spouse.
[11] In other words the mere unwillingness of the complaining spouse to testify at trial would constitute necessity. However generously and flexibly the notion of "necessity" is to be construed and applied, we do not think it can be made to extend this far without exceeding its bounds. The effect of so treating the exception to the rule would be to virtually abrogate the rule itself or its application.
[50] Similar reasoning can apply to this case. In my view, the trial judge evidently misapprehended the evidence regarding L.B.'s position on testifying. He stated that she had refused to attend for the trial. But her refusal had not been established. Moreover, there was no evidence before the trial judge that her testimony was non-compellable. In my view, the transcript of her evidence before the College of Physicians and Surgeons cannot meet the test of necessity as the courts, and indeed Crown counsel, defined it.
[51] In addition, this evidence likely would not meet the threshold test for reliability, as the transcript of the College hearing contained no cross-examination on the crucial issue of consent. L.B.'s evidence is probative of one issue only. That is the issue of whether sexual conduct occurred between the appellant and L.B. That issue is not contested here. The evidence does not provide any assistance on the issue of consent nor does it impeach the appellant's credibility.
[52] As appellant's counsel argued on appeal, it would be improper to rely on L.B.'s evidence from the disciplinary hearing. The only issue canvassed at the hearing was whether the alleged sexual acts had occurred, as the fact of sexual touching by a physician effectively constituted the offence. L.B. was not cross-examined at the disciplinary hearing on the issue of consent, which was central to the criminal trial.
Disposition
[53] For the reasons set out above, I would allow the appeal, set aside the convictions below and order a new trial.
Released: APR 25 2002 Signed: "G.D. Finlayson J.A."
GDF "I agree John Laskin J.A."
"I agree J.C. MacPherson J.A."