DATE: 20050630

DOCKET: C41710

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – R.S.B. (Appellant)

BEFORE:

LABROSSE, SHARPE and LANG JJ.A.

COUNSEL:

Brian H. Greenspan

For the appellant

Leslie Paine

For the respondent

Constance Baran-Gerez

For the Intervenor

HEARD:

June 27, 2005

On appeal from the judgment of Justice P.J. Flynn of the Superior Court of Justice dated October 28, 2003.

E N D O R S E M E N T

[1] The appellant was convicted by a Superior Court Judge sitting alone of one count of sexual exploitation and one count of sexual assault. He pleaded guilty to one count of breaching the conditions of his release pending trial. The appellant was sentenced to forty-five months imprisonment. He appeals the convictions for sexual exploitation and sexual assault and seeks leave to appeal sentence. The complainant was the appellant’s stepdaughter. The appellant testified and denied the complainant’s allegations.

[2] At issue on the conviction appeal are two rulings made by the trial judge. Both rulings concerned a diary kept by the complainant. At trial, the appellant had in his possession two extracts (Exhibits A and B) from the diary made at around the time of his alleged sexual misconduct in which the complainant described him in favourable terms. The appellant sought to cross-examine the complainant on those extracts to contradict her evidence that she “hated” him as a result of his sexual abuse. Crown counsel objected to use of the diary extracts. This prompted the appellant to bring an application pursuant to s. 278 .3 of the Criminal Code for production of the entire diary. A voir dire was conducted. The complainant testified that she had written favourable things about the appellant in her diary because she knew that he read it and she wanted to please him as she had no place else to go.

[3] Applying R. v. Shearing (2001), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.), the trial judge ruled that as Exhibits A and B were in the appellant’s possession, their admissibility fell to be determined by the test mandated by R. v. Seaboyer (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.), namely, did the prejudice “substantially outweigh” the probative value of the evidence. He found that the appellant had wrongfully removed the diary extracts. The trial judge ruled that as the extracts were “private” and “not relevant to any central issue in this trial”, they should be excluded.

[4] The trial judge dismissed the s. 278.3 application, refusing even to order that the diary be produced for his own inspection pursuant to s. 278.5. The trial judge emphasized the complainant’s privacy interest in the diary, and ruled that the defence had failed to demonstrate that the diary was likely relevant to issues at trial or that production was necessary to afford full answer and defence. The trial judge found that as the appellant had letters from the complainant in which she praised him as “the best Dad in the world”, he could make out his defence without the diary.

[5] For the following reasons, we conclude that he erred by refusing to permit the appellant to cross-examine the complainant on Exhibits A and B, the diary extracts already in his possession. First, we agree with the appellant’s submission that when assessing the complainant’s privacy interest, the trial judge failed to give appropriate consideration to her evidence that she wrote what she did because she knew the appellant read her diary. While we certainly do not condone the appellant’s conduct in reading his step-daughter’s diary and taking pages from it, her evidence that she wrote things in it knowing that he did so significantly diminishes the nature of her privacy interest in the diary. Moreover, as the appellant already had Exhibits A and B, the complainant had already lost any element of confidentiality that she might assert against him with respect to those extracts. Second, we fail to see how it can be said that these extracts were not relevant to a central issue in the trial. They may not relate specifically to the alleged assaults, but they certainly did have a bearing on the complainant’s credibility with respect to her relationship with her stepfather and that was the central issue. The appellant should have been afforded the right to cross-examine the complainant on Exhibits A and B.

[6] The respondent argues that the trial judge erred by applying Seaboyer and that, having found that the appellant wrongfully removed Exhibits A and B, he should have considered their admissibility as part of the s. 278.3 application. The respondent submits that we should apply L’Heureux-Dubé J.’s dissent in Shearing as the majority ruling was premised on the accused’s lawful possession of the diary at issue in that case. We disagree. In Shearing, at para. 89, Binnie J. described the issue as being the status of the information in the diary, not ownership of the diary, and ruled: “Return of the diary, as proposed by my colleague L’Heureux-Dubé J. at para. 161, would seem to me to shut the barn door after the horse has escaped.” The status of the information in the case at bar is that when she wrote her diary, the complainant knew that its contents would be known to the appellant. We do accept, however, that wrongful taking or possession of the diary extracts was a factor to be considered in the Seaboyer analysis of prejudice and probative value and we do not intend to exclude from future consideration the possibility that in an appropriate case, an accused might well be disentitled to use a record wrongfully obtained.

[7] We also conclude that the trial judge erred in refusing to order that the entire diary be produced for his own inspection pursuant to s. 278.5 to enable him to assess the appellant’s s. 278.3 application. As already mentioned, the nature and extent of the complainant’s expectation of privacy in the diary was significantly diminished by her admission that she wrote certain portions knowing that the appellant would see them. The extracts in the appellant’s possession demonstrated that the diary contained some material necessary for the appellant to make full answer and defence. The request for production was not based upon a discriminatory belief or bias, it did not relate to treatment of the complainant, and its production to the trial judge for his inspection would not impair rights and interests protected by s. 278.5.

[8] In our view, the convictions cannot stand in light of these errors. Accordingly, we allow the appeal, set aside the convictions for sexual exploitation and sexual assault and order a new trial. In view of our conclusion with respect to the conviction appeal, it is unnecessary for us to consider the sentence appeal.

“J-M. Labrosse J.A.”

“Robert J. Sharpe J.A.”

“S.E. Lang J.A.”