WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider:

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c. 43, ss. 4, 8; 2010, c. 3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court of Appeal for Ontario

Date: 2019-01-11

Docket: C62057

Judges: MacPherson, Paciocco and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

P.B. Appellant

Counsel

Peter Thorning and Deepa Negandhi, for the appellant

Justin Reid, for the respondent

Hearing

Heard: January 7, 2019

Appeal

On appeal from the conviction entered by Justice Brian P. O'Marra of the Superior Court of Justice, sitting with a jury, on November 14, 2014, and from the sentence imposed on July 29, 2016, with reasons for sentence reported at 2016 ONSC 4350.

Reasons for Decision

Conviction Appeal

[1] P.B. was convicted by a jury of sexual interference and sexual assault of his daughter, A.B., relating to one incident of sexual touching occurring between June 1, 1997 and August 31, 1998. A.B. was approximately 11 years old at the time. P.B. was also convicted of sexual assault and incest relating to numerous incidents involving A.B. between August 1, 2004 and September 12, 2012, including frequent sexual intercourse with A.B.

[2] P.B. appeals all of his convictions, alleging that the Crown breached its disclosure obligations relating to therapeutic records arising from counselling received by A.B. in New York between January and March 2003. He also appeals his sentence, based solely on his double jeopardy in having been convicted of sexual interference and sexual assault relating to the same 1997/1998 incident.

[3] At the conclusion of oral argument we dismissed the conviction appeal, and allowed the sentencing appeal on consent, with reasons to follow. These are our reasons. We will address the conviction appeal first.

Crown Disclosure Obligations

[4] P.B. claims that the Crown breached its disclosure obligations relating to A.B.'s therapeutic records that were in its possession. Those records were not produced to P.B. until the second day of trial after A.B. waived her privacy interest.

[5] P.B. does not contend that the Crown should have produced those records sooner. During oral argument he agreed that because of the combined effect of Criminal Code, R.S.C. 1985, c. C-46, ss. 278.2(2) and 278.3(1), the Crown was not authorized to do so until A.B.'s waiver, absent a third party records disclosure order. He argues, instead, that a disclosure breach occurred because, prior to A.B.'s waiver, the Crown had already decided it would use the records as part of its case, yet failed in its duty under Criminal Code, s. 278.2(3) to notify P.B. of the likely relevance of the records as required by R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 16.

[6] In our view, P.B. has not shown that the Crown decided it would use the records as part of its case before those records were disclosed. Instead, the transcripts suggest that it was after A.B. waived her privacy interest in the records and those records were copied and viewed by the parties that the potential use of the records at trial by the Crown first arose. Simply put, P.B. has not established the lynch-pin factual premise of his disclosure breach claim.

Impairment of Right to Full Answer and Defence

[7] Even if P.B. had established that the Crown failed to comply with s. 278.2(3), we would not have allowed the conviction appeal. To succeed in a non-disclosure appeal an appellant must do more than show that the Crown breached its disclosure obligation. The appellant must also show that his right to make full answer and defence has been impaired as a result of the non-disclosure, by showing that there is a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process: R. v. Dixon, [1998] 1 S.C.R. 244, at paras. 32-34; and R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777, at para. 74. P.B. has not done so.

[8] First, the therapeutic records the Crown possessed were of limited use to P.B. because they support the allegations that P.B. sexually abused A.B. He argues, however, that had the Crown provided s. 278.2(3) notice relating to those records he would ultimately have discovered two pages from A.B.'s therapeutic records dated January 15, 2003 that the Crown did not have, and which contain entries suggesting that A.B. was never sexually assaulted. We are not persuaded that disclosure by the Crown that it possessed therapeutic records relating to A.B. that supported the Crown's case would have led P.B. to secure the missing January 15, 2003 pages. In our view, P.B.'s theory of prejudice is simply too attenuated and speculative to support a finding that his right to full answer and defence has been compromised.

[9] Second, prior to the criminal trial, P.B.'s civil counsel obtained the therapeutic records, including the missing pages, through the civil discovery process arising from a lawsuit between P.B. and A.B. The fact that P.B. and his criminal counsel appear not to have appreciated that his civil counsel had these records does not change the fact that P.B.'s agent, and therefore P.B., had possession of the records. Nothing in the implied undertaking rule prevented P.B. from using those records to impeach A.B.'s testimony: see Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.1.01(6). In effect, P.B. is seeking to obtain a remedy on appeal based on the failure of the Crown to disclose records P.B.'s civil counsel already held on his behalf. This is not a solid foundation for claiming that non-disclosure by the Crown impaired the verdict and the fairness of the trial.

[10] Finally, P.B. knew during the preliminary inquiry, if not before, that the investigating police force had the therapeutic records, and P.B. was permitted to ask extensive questions at the preliminary inquiry about the records in order to facilitate a third party records application. Yet that application never came. In these circumstances, a failure by the Crown to alert P.B. to the relevance of the records would have been harmless. Even at the trial, after A.B. had been examined-in-chief, P.B. chose to proceed without the missing pages, rather than adjourn the trial. Thus, P.B. had the means to obtain the records held by the Crown but made a tactical choice not to pursue them before trial, and then, after receiving production of the therapeutic records held by the Crown, chose to proceed without the missing pages he now contends were crucial to his full answer and defence.

[11] In all of the circumstances, we are not satisfied that, even if it occurred, non-disclosure compromised P.B.'s right to make full answer and defence.

Sentencing Appeal

[12] With respect to the sentencing appeal, the Crown concedes that P.B. should not have been convicted and sentenced for both sexual interference and sexual assault relating to a single act of sexual touching in 1997/1998. The Crown and P.B. agree that we should substitute a stay on the sexual assault conviction, in accordance with the principles outlined in Kienapple v. R., [1975] 1 S.C.R. 729.

[13] In terms of the sentence itself, the parties agree that there is no basis for interfering with the trial judge's overarching objective of imposing an eight year global sentence, minus six months' credit for stringent bail conditions. Therefore, P.B. does not ask us to reduce his sentence by the 12 months that the trial judge had imposed consecutively on the 1997/1998 sexual assault count. The parties agree that a proper outcome is to leave the overall sentence unaffected by the Kienapple error by adding four months to each of the three remaining convictions.

Disposition

[14] We therefore dismiss the conviction appeal.

[15] We allow the sentencing appeal and set aside the conviction on Count 3, the 1997/1998 sexual assault charge. We substitute a stay.

[16] The sentence on Count 2 is varied to 1 year and 4 months. The sentence on Count 4 is varied to 2 years and 4 months consecutive. On Count 5, the sentence is varied to 4 years and 4 months consecutive, minus 6 months' credit for stringent bail conditions.

"J.C. MacPherson J.A."

"David M. Paciocco J.A."

"I.V.B. Nordheimer J.A."