Her Majesty the Queen v. Papageorgiou [Indexed as: R. v. Papageorgiou]

65 O.R. (3d) 1

[2003] O.J. No. 2282

Docket No. C39011

Court of Appeal for Ontario,

Labrosse, Weiler and Cronk JJ.A.

June 10, 2003

Charter of Rights and Freedoms -- Fundamental justice -- Unrepresented accused -- Disclosure -- Accused charged with sexual assault -- Accused discharging counsel and seeking production of videotape of complainant's statement to police -- Evidence establishing accused had viewed videotape in defence counsel's office before discharging counsel -- Crown's disclosure obligations being satisfied by providing self- represented accused with opportunity to view videotape at Crown's office -- As Crown did not breach its disclosure obligations summary conviction appeal judge erring in granting stay of proceedings based on Crown's failure to grant accused unconditional access to videotape -- Crown appeal allowed.

The accused was charged with sexual assault. A videotape of the complainant's statement to the police was provided to defence counsel and was seen by the accused in defence counsel's office. When the accused discharged his counsel, counsel returned the videotape to the Crown. At an informal judicial pre-trial, the accused sought production of the videotape. The Crown offered to make the videotape available for viewing by the accused at the Crown's office, but refused to give him the tape itself. The pre-trial judge made no ruling on the issue, and instead told the accused to present his request for the videotape to the trial judge. At trial, the accused did not request the production or the viewing by the trial judge of the videotape. He was convicted. The summary conviction appeal court allowed the accused's appeal, stating that the Crown could not restrict the accused's access to the videotape because of the "sensitive" nature of the proceedings. A stay of proceedings was granted. The Crown appealed.

Held, the appeal should be allowed.

In sensitive cases involving allegations of sexual abuse and a unrepresented accused, the Crown's disclosure obligations are satisfied by providing the self-represented accused with an opportunity to view the complainant's videotaped statement at the Crown's office. The Crown's proposal for the provision of further access to the videotape in this case was unobjectionable unless there was an evidentiary basis on the record before the summary conviction appeal court judge to support the conclusion that there was a reasonable possibility that the accused's right to make full answer and defence would be impaired. No such evidence was adduced by the accused, nor was any challenge to the Crown's conduct brought by the accused under the Canadian Charter of Rights and Freedoms. There was no breach of the Crown's disclosure obligations in this case. Even if it were otherwise, this was not one of the clearest of cases in which the extreme remedy of a stay of proceedings was appropriate. [page2]

APPEAL by the Crown from a stay of proceedings.

Cases referred to

R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, 166 N.S.R. (2d) 241, 222 N.R. 243, 498 A.P.R. 241, 50 C.R.R. (2d) 108, 122 C.C.C. (3d) 1, 13 C.R. (5th) 217; 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

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 24(1)

Authorities referred to

Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions ("Martin Report") (Toronto: Queen's Printer for Ontario, 1993)

Alexander Hrybinsky, for appellant. Panagiote Papageorgiou, respondent, in person.

[1] BY THE COURT: -- The Crown seeks leave to appeal and, if leave be granted, appeals the decision of the summary conviction appeal court judge which allowed the respondent's appeal from a conviction for sexual assault and imposed a stay of proceedings. For the reasons that follow, we would allow the appeal and restore the conviction imposed at trial.

(1) Facts

[2] The respondent was charged with sexual assault. The Crown elected to proceed summarily and the trial was scheduled for January 25, 2002 in the Ontario Court of Justice. At a remand court hearing or "informal" judicial pre-trial held on January 17, 2002, the respondent discharged his counsel. He sought production of a videotape of the complainant's statement to the police, which had earlier been provided to his counsel and seen by the respondent in his counsel's office. When counsel was discharged by the respondent, he returned the videotape to the Crown. The Crown took the position that, since the respondent was no longer represented by counsel, the videotape would be made available for viewing by the respondent at the Crown's office, but that the tape itself would not be given to him. The presiding pre-trial judge felt that a copy of the videotape should be provided to the respondent; however, he made no ruling in that regard. Rather, he told the respondent to present his request for the videotape to the trial judge.

[3] The trial was held before Cleary J., as scheduled, on January 25, 2002. The respondent represented himself and was [page3] assisted by his son. The complainant alleged that the respondent sexually assaulted her in her apartment by repeatedly kissing her and touching her body. The respondent denied her version of events and testified that it was the complainant who made sexual advances towards him. Two brief references were made to the videotape by the respondent's son during his cross-examination of the complainant on behalf of the respondent. Those references concerned what the complainant had called the respondent in the videotape, and her description of the respondent. There was no request by the respondent for the production, or the viewing by the trial judge, of the videotape.

[4] On January 31, 2002, the respondent was found guilty of sexual assault and received a suspended sentence, plus 12 months' probation.

[5] The respondent appealed his conviction to the summary conviction appeal court by a notice of appeal dated February 26, 2002. One of the stated grounds of appeal related to the videotape. Subsequently, the respondent also brought an application to obtain a copy of the videotape. That application was dismissed by Hamilton J. who endorsed on the application record that the appeal judge could determine if production of the videotape was necessary.

[6] The appeal was heard before Hawkins J. on September 27, 2002. The appeal was allowed and the proceedings were stayed. The entire endorsement of the summary conviction appeal court judge reads as follows:

The Crown seeks to restrict the condition under which the videotape of the complainant's statement may be viewed by the accused e.g. in the Crown's office during business hours. This is allegedly a practice because of the "sensitive" nature of sexual assault (and similar) proceedings. I see no reason why the accused's access be so limited. This is the fourth appearance by the accused. In view of this the appeal is allowed and the proceeding stayed. It might be useful if the Crown appealed this ruling.

The Crown now appeals that ruling.

(2) The Disclosure Issue

[7] The videotape in question was provided by the Crown to counsel for the respondent and was viewed by the respondent with his counsel prior to January 17, 2002. After he was discharged by the respondent, defence counsel gave the videotape back to the Crown. The Crown opposed the respondent's subsequent request for production of a copy of the videotape, but offered to afford the respondent an opportunity to view the videotape at the Crown's offices. The issue that arises on this appeal is whether, in those circumstances, the Crown's disclosure [page4] obligations concerning the complainant's videotaped statement were satisfied.

[8] The Crown's disclosure obligations in a criminal case are well-established. The Crown has a legal duty to disclose all relevant information to the defence. That duty, however, is not absolute. The Crown retains a discretion concerning the withholding of information and the timing and manner of disclosure, and regarding the relevance of information. The Crown's discretion in that connection is reviewable by the trial judge, who must be guided by the controlling principle that, unless non-disclosure is justified by the law of privilege, information should not be withheld from the defence if there is a reasonable possibility that the withholding will impair the right of an accused to make full answer and defence: R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, 18 C.R.R. (2d) 210, at paras. 11 and 19-21, per Sopinka J.

[9] In this case, the Crown did not fail to make disclosure of the videotape prior to trial. It did so prior to the discharge by the respondent of his trial counsel. The evidence established that the respondent reviewed the videotape, together with his counsel. Accordingly, as the Crown properly submits, the issue here is not one of non-disclosure but, rather, the adequacy of the form of further disclosure proposed by the Crown.

[10] The Crown submits that in sensitive cases involving allegations of sexual abuse and a self-represented accused, as in this case, the Crown's disclosure obligations are satisfied, and the public interest is fostered, by providing the self- represented accused with an opportunity to view the videotaped statement of a complainant at the Crown's office. On the facts of this case, we agree with the Crown for the following reasons.

[11] The Crown relies upon the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen's Printer for Ontario, 1993), in which the Crown's disclosure obligations to an unrepresented accused are addressed. In that Report, the Advisory Committee recommends at p. 217:

9. (a) Defence counsel should not leave disclosure material in the unsupervised possession of an accused person.

(b) An unrepresented accused is entitled to the same disclosure as the represented accused. However, if there are reasonable grounds for concern that leaving disclosure material with the unrepresented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, Crown counsel may provide disclosure by means of controlled and supervised, yet adequate and private, access to the disclosure materials. Incarcerated, unrepresented accused persons are entitled to adequate and private access [page5] to disclosure materials under the control and supervision of custodial authorities. Crown counsel shall inform the unrepresented accused, in writing, of the appropriate uses and limits upon the use of the disclosure materials.

(Emphasis added)

[12] In its commentary to those recommendations, the Advisory Committee states at pp. 218-19:

It is a basic principle, of course, that the unrepresented accused, like the accused who is represented, is entitled to full disclosure.

There is, however, one obvious difference between the represented and the unrepresented accused that has a direct and practical bearing on disclosure. Where an accused is unrepresented, there is no officer of the Court, acting for the defence, who can ensure that the disclosure material is used only to prepare to answer the charge, and not for some other improper purpose. . . .

Ultimately, defence counsel, as an officer of the Court, is expected to act responsibly. An unrepresented accused, however, is not required to comply with professional standards. Providing full disclosure to an unrepresented accused, when there is a reasonable basis for concern as outlined in paragraph 9(b), may, therefore, in the Committee's view, be accomplished in a somewhat different manner.

The Committee has recommended that, where there is a reasonable basis for concern that leaving disclosure materials with the unrepresented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, Crown counsel should take such reasonable steps as are necessary to prevent these harms, by providing private access to disclosure materials (or copies thereof) in controlled conditions. . . .

Where there is a reasonable basis for concern, which leads to disclosure being made in a supervised setting as provided for in paragraph 9(b), the accused must none the less be provided with full disclosure. Further, the Committee wishes to emphasize that the supervision required in these circumstances cannot impair the right of the accused to prepare, in a reasonable manner, to meet the charge(s) he or she is facing. . . .

(Emphasis added)

[13] The Advisory Committee also recommends, at p. 222 of its Report, that Crown counsel should provide to the accused: "[A] reasonable opportunity, in private, to view and listen to the original or a copy of any audio or video recordings of any statements made by a potential witness other than the accused."

[14] The disclosure recommendations of the Advisory Committee properly recognize, and underscore, the harmful consequences that can flow from the improper use of disclosure materials and the importance of preventing what the Committee described at p. 218 of its Report as the risk of "grave interference with the administration of justice". The risk of harm from the improper use of disclosure materials is particularly pronounced, in our view, in cases involving sexual abuse. The Report of the [page6] Advisory Committee, in the context of such cases, reflects the important public policy concern that sensitive materials, including statements by complainants, not be exposed to misuse by unrepresented litigants during or after pending criminal proceedings. For that reason, the Committee endorsed the provision by the Crown to an unrepresented accused of private access to disclosure materials, including videotaped witness statements, under controlled circumstances.

[15] The approach urged by the Advisory Committee was adopted by the Crown in this case. Disclosure of the videotape was first provided to the respondent through his counsel. Thereafter, in accordance with the Report of the Advisory Committee, the Crown offered to provide the respondent with another opportunity to view the videotape under controlled conditions, that is, at the Crown's offices during business hours.

[16] The Crown's proposal for the provision of further access to the videotape was unobjectionable unless there was an evidentiary basis on the record before the summary conviction appeal court judge to conclude that there was a reasonable possibility that the respondent's right to make full answer and defence would be impaired thereby. No such evidence was adduced by the respondent in this case, nor was any challenge of the Crown's conduct brought by him under the Canadian Charter of Rights and Freedoms. Moreover, although expressly informed by the pre-trial judge of his ability to renew his production request before the trial judge, the respondent failed to do so.

[17] In our view, therefore, there was no breach of the Crown's disclosure obligations in this case concerning the complainant's videotaped statement. The statement had already been disclosed and, when the respondent became self represented, the proposed additional access to the videotape was in conformity with the recommendations of the Advisory Committee's Report. The position of the Crown was reasonable in the absence of any evidence of prejudice to the respondent. In any event, it was open to the summary conviction appeal court judge to order the production of the videotape if he believed that it was necessary to permit the respondent to properly present his appeal and to make full answer and defence. There was, however, no valid reason to allow the appeal.

(3) The Stay of Proceedings

[18] On the facts of this case, for the reasons given, it cannot be said that the manner of disclosure was inadequate and constituted a breach of the respondent's Charter rights. Even if it were [page7] otherwise, however, this case is not one of those clearest of cases requiring the extreme remedy of a stay of proceedings. The record does not support a conclusion that the respondent's right to make full answer and defence was impaired, or that irreparable prejudice would result to him under the Crown's production proposal. See R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, 50 C.R.R. (2d) 108. Thus, there was no evidentiary basis for the granting of any remedy under s. 24(1) of the Charter.

(4) Disposition

[19] For these reasons, leave to appeal is granted and the appeal is allowed. The conviction imposed at trial is restored and the imposed stay of proceedings is set aside. The appeal from conviction is remitted to the summary conviction appeal court for disposition on the merits.

Appeal allowed.