Court Information
Information Nos.: 2811-998-11-13344, 2811-998-11-14284
Ontario Court of Justice
Her Majesty the Queen v. C. R.
Excerpt of Proceedings at Preliminary Inquiry
Reasons for Ruling
Before the Honourable Justice S. M. MacLean
Date: November 8, 2012
Location: Oshawa, Ontario
Publication Ban Notice
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 517(1), 486.4, AND 539(1) OF THE CRIMINAL CODE.
Appearances
- S. Khehra – Counsel for the Crown
- R. Steinberg – Counsel for C. R.
Table of Contents
| Item | Page |
|---|---|
| Reasons for Ruling, MacLean, J. | 1 |
Transcript Ordered: November 8, 2012
Transcript Completed: January 14, 2013
Ordering Party Notified: January 14, 2013
Proceedings
Thursday, November 8, 2012
Proceedings recorded but not transcribed
Reasons for Ruling
MacLean, J. (Orally):
I have determined that I am ordering that S. H. be produced for cross-examination. I am going to impose some limits on the cross-examination. I will go through my reasons for all of that now.
The Charges and Allegations
C. R. is charged with four sexual offences in relation to his foster daughter, S. H. The allegations are that on a few occasions, while both were fully clothed, that Mr. R. wrapped S. H.'s legs around his waist and he moved in a grinding motion against her. She was approximately 12 years old at the time and she is now 14 years old.
Admissibility of the Videotaped Statement
The Defence has conceded that the videotape statement provided by S. H. to the police on July 13, 2011, concerning these allegations, can be admitted into evidence as "credible and trustworthy" pursuant to section 540(7) of the Criminal Code. The videotaped interview is Exhibit 1.1 in these proceedings. A transcript prepared by Crown staff is Exhibit 1.2. The transcript of the same statement, prepared by Defence, is Exhibit 1.3. I want to thank both Crown and Defence for taking the time to have those transcripts prepared. They were of great assistance to the Court in following the videotape.
The Application for Cross-Examination
The ruling I now have to deal with is an application by the Defence to cross-examine S. H. pursuant to section 540(9). I have just indicated to counsel that I am ordering that S. H. be produced for cross-examination, and these are my reasons.
Section 540(9) of the Criminal Code states as follows:
"The justice shall, on application of a party, require any person whom the justice considers appropriate to appear for examination or cross-examination with respect to information intended to be tendered under subsection (7)."
Areas of Permitted Cross-Examination
The Defence is seeking to cross-examine S. H. on the following areas:
1. Contents of the Statement
On the contents of the statement tendered, pursuant to section 540(7), including issues such as contradictions between what S. H. says occurred with Mr. R. compared to what other witnesses, such as her brothers, say that they observed.
Ruling: I am permitting cross-examination on those areas.
2. Physical Possibility of the Alleged Acts
How the alleged abuse was physically possible, as described in the statement, given the relative physical positions of the complainant and Mr. R.
Ruling: I am permitting cross-examination on those areas. I accept that the Defence would be seeking to cross-examine broadly on the statement and its contents with respect to the allegations as a whole.
3. Genesis and Motive for the Complaint
The Defence seeks to cross-examine on issues relating to why the complaint was made including any motives behind the complaint. This includes whether the making of and timing of the complaint is related to other factors.
One of these factors is a concern that her biological mother, C.H.1, was encouraging her brother, C.H.2, to obtain a lawyer to fight to move back home with her, while not suggesting the same to S.H., which upset S.H. Reference to this issue is contained in Exhibit D, which is a letter dated July 12th, 2010, from Colleen McCullough, Children's Services Worker, to C.H.1, the biological mother of S.H. and her brother, C.H.2.
The issues relating to the motive behind the complaint also relates to a 2008 complaint made by her oldest brother, Cr., who alleged that he had observed sexual misconduct between Mr. R. and their foster sister, F. G. The Children's Aid Society investigated that complaint and determined that it was unfounded.
Ruling: I am permitting cross-examination on issues that relate to any of the areas concerning the motive behind why S. H. made the complaint that she did.
4. Delayed Disclosure
There are issues concerning why there was delayed disclosure, including why the complaint was raised when it was, to whom the disclosure was made and the details of the allegations provided to those people.
In the course of this preliminary inquiry witnesses for the Children's Aid did attend court and provided some of that information through disclosing their notes, and those notes are contained in Exhibit E on this application, the C.A.S. records.
Ruling: I am permitting cross-examination with respect to those issues relating to why there was delayed disclosure as it relates to both the reason for the delay and why the complaint was made, to whom it was made and the details of the allegations made to those parties.
5. Prior False Complaint
A false complaint made in 2005 by S.H. who complained to a fellow student that Mr. R. had hit her in the head. She later admitted that this was untrue and never intended it would go further than the recipient.
Ruling: I am permitting cross-examination on that issue.
6. Diversion Contract
The circumstances relating to a diversion contract entered into by S. H. under the Y.C.J.A. concerning what is believed to be an offence relating to dishonesty.
Ruling: I am permitting cross-examination but on a limited basis. I will not permit cross-examination on anything beyond the fact that the contract was entered into and what conduct led to the investigation, in other words, whether it was a crime of dishonesty or not. I will have to hear the questions as they come to determine how broadly they may be asked and I will wait to hear for objections from the Crown about the limits. Given the nature of diversion and the fact that no charge was ever laid I may limit that area but the fact that there was a diversion and whether it related to a crime of dishonesty, I find to be relevant so I will permit it but with a limited scope.
7. Mental Health Issues
The fact that S. H. has been diagnosed with Oppositional Defiance Disorder, that she was prescribed psychotropic medications for that disorder, the Defence wishes to explore issues that relate to the complainant's ability to perceive, recall and relate the events alleged.
Ruling: I am permitting limited cross-examination in that area. Again, I will have to hear the questions but the scope will be limited to the issues that relate directly to the witness's ability to perceive events as they occur, to recall those events or to relate the events.
We talked at length during submissions, Counsel and I, about the scope that would be permitted because of the privacy issues that are involved. The Crown has quite fairly pointed out that Mr. R. is in an advantageous position compared to other accused persons in that being the foster parent for this young lady he and his wife know a great deal more about her than other accused persons might know about the complainants in their cases.
The R.'s have access to information as the parents. They have knowledge about these issues, which was brought to my attention, in fact the Defence knows more about this than the Crown. So this is not really truly a discovery situation because the Defence knows, as what as a parent the person charged knows, as a parent, what the types of issues are that relate to this young lady, in terms of her mental health, physical health, the doctors she's seen, the treatments she's had, and the medications she's received. I would assume, in fact, that parents would supervise the provision of the medications. So in order to protect the privacy of this young lady (and it is not necessary for discovery to find these things out because in fact the Defence knows them already), it is my view that cross-examination in this area should be restricted to canvassing issues that relate only to the witness's ability to perceive, recall and relate the events alleged. So, I will permit questioning that relates to those areas only.
8. Foundation for Third Party Records Application
Details to lay the foundation for a Third Party Records Application.
Ruling: I am permitting cross-examination on that. To some extent I would assume, without knowing for sure, that Mr. R. and his wife would know this already - they would know who she's been seeing when she saw them, what it was for, that type of thing. So, I will permit as is the norm in any preliminary inquiry, information to lay the foundation for bringing the Third Party Records Application at trial. But the nature of the questions will be the usual ones. Who have you seen, how long have you seen them? I will permit a question that asks along the lines of, "Did you discuss with that person any of the allegations relating to Mr. R.," without going into the detail of what she discussed with those people. That will not be permitted. Just whether it was discussed. And if further direction is needed from me, I will invite counsel to make further inquiries, but I think that is fairly clear.
9. Misbehaviour at School
Misbehaviour at school.
Ruling: I will not permit cross-examination on this issue. The Defence wishes to explore issues relating to incidents in which S. H. acted in a manner to get two different teachers into trouble. That is the way it has been characterized. This includes writing a very mean, rude and sexual letter to a supply teacher, that is Exhibit F on these proceedings.
The Defence argues that this relates to the extent to which S. H. will go to get persons in authority in trouble, and thus goes to her character as well as her motive for accusing Mr. R. of these offences.
While I see some potential relevance to this issue, in my view it is so remote that it would be inappropriate in these proceedings to allow the witness to be questioned about her conduct at school when it has nothing to do with Mr. R. It may well be that a judge at trial will have to determine whether it is relevant in any way. To me it is so remotely relevant, if relevant at all, that it should not be permitted to be questioned about at these proceedings.
Clarification of Rulings
I wish to go through an analysis of the law and also a more detailed discussion of the positions of the Crown and Defence on these issues but before I go further, that is the end result which I have given you. The issues raised and the end result. I just want to make sure that I haven't missed any issue. I went through my notes carefully but I want Mr. Steinberg and the Crown to know as you leave here what can and cannot be asked about, as we move forward to January.
MR. KHEHRA: I need no clarifications, Your Honour. I'm content.
MR. STEINBERG: Your Honour, when you listed the subject headings earlier today Number 7 was who the complainant disclosed to first. Am I to assume that, I guess, that is subsumed as the heading under your disposition.
THE COURT: Number 4.
MR. STEINBERG: Number 4, delayed disclosure?
THE COURT: Yes.
MR. STEINBERG: Thank you.
THE COURT: So just to repeat, the whole issue about the disclosure is permitted to be cross-examined on, in other words who she complained to, what she told them about the allegations, why she told that person, and why she told them at that time. So, in other, words, the timing of the disclosure, why she told those particular people, everyone she disclosed it to, I guess. I have only heard about a couple of things, about her mother, the Children's Aid and her brother C.H.2. I think that's all I know about so far. So, does that answer your question?
MR. STEINBERG: Yes, thank you. And, I have nothing further.
THE COURT: All right. If something else comes to mind as I go through my reasons gentlemen if you could make a note I would be happy to return to that at the end.
MR. KHEHRA: Thank Your Honour.
THE COURT: I had different lists going and I was trying to combine the related issues, and I think I canvassed all of them with that list, but if I have overlooked anything I apologize. So if there is anything that I have overlooked that anyone thinks about later obviously you can address it with me in January even. I do not mind revisiting it if anyone needs further direction.
Legal Analysis
Introduction to the Case Law
So I wanted to turn to how I came to the decision about those issues as they relate to how I interpret the law in this area. I will start with an analysis of the legal cases that were given to me.
R. v. Rao – The Leading Authority
The first decision I would like to turn to is the most recent appellate authority which is R. v. Rao, 2012 BCCA 275. There are alternate citations but I will use the Quicklaw version. Some of the issues in that appeal were different because of the way that the preliminary inquiry judge chose to handle things, so I will not go through all of the issues, I am just going to relate it to the application of the law under section 540(9).
For my purposes the relevant analysis starts at paragraph 58 under the heading DISCUSSION OF THE SUBSTANTIVE ISSUES, subsection (1) The First Ruling - The Paper Committal. It is clear that the new section of section 540(7) does contemplate that a Crown could proceed by way of filing their evidence in a paper format, presenting the court with information either by video or in a written form. The purpose for the amendments in 2004 is one of the issues that was raised in this case, and it is canvassed in many of the authorities.
Paragraph 62 indicates as follows:
"I agree with the preliminary inquiry judge that s. 540(7) is intended to provide the Crown with an alternate method of presenting its case at the preliminary inquiry by filing "information" which would not previously have been admissible, as long at the preliminary inquiry judge is satisfied that the information is credible or trustworthy."
It is clear that the law does not require the Crown to do it in that fashion. The Crown could call viva voce evidence. The Crown is simply given an alternative way of proceeding by this section.
Paragraph 64 indicates as follows:
"The right of the Crown to tender its initial case by way of paper, however, does not detract from the right of the Defence to apply, pursuant to s. 540(9) of the Code, to examine or cross-examination "any person whom the justice considers appropriate", "with respect to information intended to be tendered as evidence under subsection (7)" It is apparent from the wording of s. 540(9) that it expressly anticipates that witnesses providing the information under s. 540(7) may be subject to cross-examination."
Paragraph 69 states as follows:
I am just paraphrasing a little bit of it. There were submissions that were made by the Crown in his factum with which the appellate court agreed, and he quotes those as follows, paragraph 64:
"...the respondent submits there is nothing in the Criminal Code amendments which precludes the Crown from tendering its entire case under s. 540(7), where the evidence is found to be credible [or] trustworthy, and where the Defence does not apply under s. 540(9) to cross-examination the persons who provides the statements.
Then paragraph 65 is a reference to the Quebec Court of Appeal's decision in R. v. P.M.:
"Although P.M., at para. 78, recognizes that the amendments did not diminish the ancillary discovery function of the preliminary..., the Court noted that s. 540(9) was an effective means by which an accused could prepare for trial..."
Now, the Crown in that case conceded that point and the Court of Appeal in British Columbia accepts that point. I obviously also agree that the cross-examination in general is an affective means by which an accused can prepare for trial, and that is an important point that I accept from Mr. Steinberg's submissions. That in order to effectively prepare for trial in this case he feels it is necessary to cross examine Ms. H. on the areas that I've discussed.
In paragraph 71 the British Columbia Court of Appeal goes on to refer to the Quebec Court decision in P.M., and quotes from paragraphs 78 to 81 of that decision. I am going to read the quote within Rao which refers back to other paragraphs that I was referred to in P.M.
"...even though the justice presiding over the preliminary inquiry makes sure essentially that there is evidence that an indictable offence has been committed, the accused is entitled to adequately prepare for his or her trial. This exploratory role of the preliminary inquiry, though ancillary, was not diminished by Bill C-15A [which introduced the 2004 amendments to Part XVIII of the Code], despite the fact that the rules relating to disclosure of evidence have been considerably broadened following R. v. Stinchcombe.
R. v. Francis – The Ontario Perspective
In R. v. Francis, Ratushny, J. of the Superior Court of Justice of Ontario wrote aptly on this subject:
"In R. v. Sonier, 2005 ONCJ 75, at para. 8, Omatsu, J. observed that in bringing in these new amendments, Parliament did not intend to eliminate the secondary discovery function of the preliminary inquiry or to convert preliminary inquiries into a paper hearing. I agree and see no reason to believe otherwise, particularly in light of the screening device and discovery mechanism purposes of the preliminary inquiry as described in Hynes supra, that appear alive and well at this time and are reflected in the retention of Part XVIII of the Criminal Code dealing with the preliminary inquiry and in s. 541, retaining the right of the accused to call its own witnesses."
The Importance of Cross-Examination
Professor Paciocco, [and I will pause to say as he then was, he is now Justice Paciocco], has contested the attempts to reduce this exploratory role, which he has linked directly to the obligation to disclose evidence. He wrote the following on this subject:
"Cross-examination can turn lines of disclosure into pages of discovery, enabling Defence counsel to explore information not found in what are often the selective, even skeletal statements obtained by the police. It permits the Defence to correct innocent non-disclosure, caused by prosecutors or police officers who fail to see the relevance of information that the accused uncovers during cross-examination, and it permits Defence counsel to observe the demeanour and quality of the witnesses, factors important in the tactical decision that counsel will make...
This ancillary role of the preliminary inquiry cannot be minimized, or even hidden, as the Crown proposes."
And I pause to say that I adopt the analysis of Justice Paciocco, (as he then was Professor Paciocco), in that there are very important purposes to cross-examination that go beyond simply discovery.
One of the arguments raised by Mr. Steinberg, in this case, is that many of the itemized areas that I have outlined already were not canvassed or were only canvassed in a cursory fashion by Detective Mitton, who conducted the interview. I agree with that observation.
This is not a case as we've seen in some of the other law that we reviewed where there is nothing further to be gained beyond the four corners of what is already in the statement. The areas that have been identified by Mr. Steinberg, in my view, go beyond the statement and while they rely in part on what the contents of the statement are, there are many areas which counsel wishes to explore that Detective Mitton would not know about to question about, and did not, in fact, question about. The areas that have been identified that I am permitting for cross-examination are areas which I consider to be relevant to the issues to later be tried for Mr. R.
The "Appropriateness" Standard and Relevance
One of the issues that came up during submissions before me is what the words in section 540(9) mean when they talk about witnesses "whom the justice considers appropriate". It is clear from my reading of the British Columbia Court of Appeal and the Quebec Court of Appeal decisions that those Courts equate "whom the justice considers appropriate" with words that import legal concepts of relevance. There is no Ontario Court of Appeal decision that I am aware of or that was brought to my attention that deals with these issues, so I am turning to the appellate authorities in British Columbia and Quebec to assist me with respect to how to interpret the words "whom the justice considers appropriate". There is absolutely no doubt that the judge has a discretion as to whether to permit the cross-examination, but notions of relevance to the issues to be litigated at trial, in my view, are imported into the analysis by these appellate courts and I apply that analysis here.
The relevance issue is not simply limited to what is necessary to seek committal, which is the primary purpose of a preliminary inquiry, but also to the ancillary purpose of discovery, which assists in making full answer and defence.
I point out that paragraph 73 of Rao goes on to say that,
"It is evident that the preliminary inquiry judge was of the view that the utility of s. 540(7) was defeated if the Crown could tender it's entire case on paper, on the one hand, only to be compelled to produce the witness for cross-examination, on the other.
The appellate judge goes on to say;
"I disagree. Section 540(9) does not give the Defence carte blanche in seeking to have witnesses called for cross-examination. As stated by the court in P.M., at para. 86:"
And then the judgement quotes from P.M. as follows:
"When all is said and done I do not feel it is necessary to add to the text of s. 540(9) in order to render Parliament's intent. In allowing or disallowing a cross-examination requested by the accused, the justice will consider, on the one hand, the accused's legitimate interests in preparing his or her defence and bringing out, at the preliminary inquiry stage, the insufficiency or the weaknesses of the Crown's evidence. Very obviously, the justice will make sure, on the other hand, that the cross-examination requested by the accused is relevant with regard to the particular situation of the person whose appearance is requested and to all of the circumstances of the case. If the relevance is not demonstrated the request will be denied."
Clearly, from what I have said already I find that relevance is demonstrated in those areas for which I am permitting cross-examination.
Balancing Vulnerability Against the Right to Cross-Examine
The Crown had asked me to exercise my discretion in this particular case given the nature of the allegations being sexual assault, given that the relationship between the complainant and the accused person, Mr. R., is one of foster daughter/foster-father. I am informed, through submissions, that S. H. may well have been taken in as a foster daughter as an infant or very young child, so this is - Mr. R. is pretty much the only father she's known, from what I am told by the Crown.
I am also being asked by the Crown to consider that as a 12 year old at the time of incidents and now a 14 year old witness, that S. H. is a vulnerable witness. I accept all of those submissions. The issue is one of balancing the impact on Ms. H. of having her testify against the ability of the Defence to cross-examine on those areas that are relevant to making full answer and defence. It is my view in this particular set of facts that the right to explore those areas that I have permitted outweighs the concerns raised on behalf of this young lady.
I am persuaded in my decision in balancing those factors first of all by the fact that the nature of the allegations here are not as intrusive as other types of sexual offences that we hear about. There is nothing that involves intercourse for example, threats of violence, nudity, anything of that sort. The nature of the allegations here - all sexual assaults are considered to be serous so it is not a question of being less serious. It is about being less intrusive in terms of what the complainant has to speak about.
Secondly I did not see any hesitation on the videotaped interview with Detective Mitton in terms of the complainant's ability to articulate what she claims happened or she did not seem to be overly traumatized, if I can put it that way, when discussing these issues.
There are clearly other cases where there are specific vulnerabilities identified. I did not have extra evidence to that effect. I accept that there is an inferred prejudice, so to speak, to a young person having to talk about these types of issues at all. So, I accept the Crown's submissions about vulnerability, but when I look at the circumstances of these facts I think that it is very important to look at the nature of it and how this particular witness appears to be able to communicate.
Protective Measures for the Witness
I am also mindful that, it is agreed that this witness will testify through the use of the closed-circuit CCTV room. We are very fortunate in this courthouse to have a set up where the witness never comes into the courtroom. There is a separate room with a separate entrance and a separate waiting area for vulnerable witnesses. The witness sees nobody but the judge on a video screen, the Defence counsel on a video screen and the Crown on a video screen. The person who is accused of these offences, Mr. R., will never be seen by this complainant while she is testifying.
I am also mindful that the Court has the ability to oversee the questions that are being put. Mr. Khehra's a very competent Crown. I expect he would object if he feels there is anything inappropriate. I certainly have an obligation to make sure that nothing inappropriate happens with respect to the nature of the questioning. Mr. Steinberg is a very capable, experienced Defence lawyer and I have no reason at all to question that he will behave anything but honourably with respect to the rulings that I have given and the types of questions that he can ask. If there is a difference of opinion between myself and Mr. Steinberg or the Crown and Mr. Steinberg, I will obviously deal with that. But I do have the ability to control the issues.
So, in terms of the impact on S. H. in having to testify in this case, it is my view that we can minimize some of the traumatic and negative effects that are contemplated in some of these cases, where the courts have decided that they will not produce the complainant to be questioned.
Section 541(5) – Alternative Remedy
I will indicate as well, I have gone back to discussing our case, and now I am going to go back to the law again for a bit. The Rao decision moves on to consider section 541(5) of the Criminal Code, which allows the Defence to call witnesses for the purpose of the preliminary inquiry. We did not spend a lot of time on that issue in this particular case. I did not hear a lot of submissions about that so I do not want to give reasons without having heard full submissions on that point, but certainly I acknowledge that the Defence, if I had denied the right for production under section 540(9), the Defence could have applied under section 541(5) to hear that witness, and I will leave it at that. I will not say anything more about that because we did not really go into much detail during submissions about that, and I do not need to determine that issue because it is moot given my ruling under section 540(9).
What I will say, though, is that it is interesting that under section 541(5) there is a relevancy issue and the Courts of Appeal in dealing with this whole area of the calling of these witnesses, in some respects it seems that they have looked at the language in section 541(5) and the relevancy issues that relate there. They seem to have imported it, as I have mentioned, into the section 540(9) analysis, and maybe that is where the relevancy issue is coming from to some extent, but they also go on at great length to talk about the ancillary purposes of the preliminary inquiry.
R. v. Bjelland – The Supreme Court Perspective
Now the Crown did draw to my attention today the decision of the Supreme Court of Canada in R. v. Bjelland, 2009 SCC 38, and particularly at paragraphs 32 to 36. It talks about whether the Defence has a right to cross-examine. In that case witnesses came to light after the preliminary inquiry was completed. And while I am mindful of those issues, it does not mean then that the accused in every case has an automatic right to cross-examine and I accept that is the law. In that particular case there was a claim by the Defence they were severely prejudiced in their fair trial rights because of their inability to cross-examine certain witnesses at the preliminary inquiry. It is on a completely different issue, with completely different factors, but the comments of the Supreme Court about cross-examining witnesses, I do take into consideration here. I will not quote them but I thank Mr. Khehra for drawing it to my attention because I think that does help the Courts in trying to decide how to exercise their discretion in a case such as section 540(9) and that there is not an unfettered right to cross-examine in all cases. So, really it comes back to, as I have mentioned a few times, the issue of relevance.
R. v. P.M. – The Quebec Court of Appeal Analysis
I have mentioned several times the decision of the Quebec Court of Appeal in P.M., so I just want to see if there are additional paragraphs that I would like to quote from. I do not know that there are but if I could just have a moment please.
I will note that paragraph 38 says as follows:
"...a justice who feels, as here, that the plaintiffs' testimony is relevant, must order them to appear."
Now, the Crown argues that Rao modifies it to some extent. I am not sure that that contradicts anything in Rao. Frankly I think they arrive at the same results by different routes, because in both cases it appears what they are saying is that where the material that is in question is relevant then, balancing all factors, the witness should be ordered to appear.
The Court of Appeal for Quebec seems to come out more strongly as indicating that where relevance is found the witness must be ordered to appear. I think that the Rao case modifies that to some extent - it tempers it a bit to recognize the discretionary aspect. I have turned my mind to that and if the Quebec Court of Appeal is right, then once I determine relevance I would have to order production without any discretion, but I have applied discretionary factors in this case, assuming that Rao is the correct law.
Again, at paragraph 50 there is a reference as I have mentioned to that the justice must deem the testimony to be relevant, and that is what I meant by they equate the appropriateness test to relevance.
Paragraph 75 revisits that same issue. Where it says:
"...the cross-examination of a witness whose statement has been filed will take place on request from the moment it proves relevant. This being a requirement that confers on the justice considerable latitude."
The other references, I believe, I have already read. In Rao they quoted from P.M. and that quote seems to start at about paragraph 78 and following of P.M., so I will not read the same things.
Paragraph 82 is of great assistance as well, in P.M. It is referring, I believe, to the case of R. v. Lyttle, where it says, as follows: Paragraph 82 says,
"Recently the Supreme Court pointed out the importance of cross-examination:
Cross-examination my often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed. That is why the right of an accused to cross-examine witnesses for the prosecution - without significant and unwarranted constraint - is an essential component of the right to make full answer and defence.
Commensurate with its importance, the right to cross-examination is now recognized as being protected by ss 7 and 11(d) of the Canadian Charter of Rights and Freedoms. See Osolin...
The right of cross-examination must therefore be jealousy protected and broadly construed. But it must not be abused..."
I will indicate that that line of reasoning is what has guided me in determining how to restrict, if at all, the areas of cross-examination. That is why I have permitted several areas of cross-examination, because I find them to be relevant to triable issues and I am mindful that I should not unduly restrict cross-examination in weighing and balancing all of the factors.
Part of the reason that I am not allowing the cross-examination on what happened at school with the teachers is being mindful that I am balancing issues, we have a young witness who is 14, who may have done these things when she was much younger, that has no direct bearing to Mr. R. As I said, I find it to be very tenuously or remotely relevant, and so I feel that it is appropriate when I am balancing the vulnerability factors and how upsetting it might be to her to be questioned about those issues when she is here to talk about Mr. R.'s case, I am certain it might be upsetting to her. I can predict that it might be upsetting to her to have to talk about letters which she wrote to teachers that have nothing to do with the allegations here. So, I am considering in terms of discretion, I am considering her vulnerability and the impact it might have on her to be questioned about those types of issues in relation to how relevant or remotely relevant they are.
Paragraph 86 of P.M., I do not think I have read this already but I just want to double check. I did. Paragraph 86 of P.M. is what I have already read in paragraph 73 of Rao. I have applied the standards that I have already mentioned there.
Paragraph 87 of P.M. goes on to say,
"Once cross-examination has been allowed, it will be up to the justice, whom the law now obliges to act accordingly, to protect vulnerable witnesses, more especially young people who are presumed victims of sex crimes, against abusive cross-examination."
I have already indicated that I am mindful of that duty and will undertake that duty, once we get to the cross-examination.
I should point out that the Quebec decision in P.M. went to the Supreme Court of Canada seeking leave to appeal, which was denied on I believe October 25th, 2007. I do not read French that well. I do a little bit but I believe - I could only find the French version, which is found at [2007] C.S.C.R. No. 287, and I normally see - there are usually two citations on Quicklaw, a French one and an English one and there was no English one listed. That is why I have given the French citation.
Other Authorities Considered
I want to mention the other cases that I was given to consider are R. v. Francis, which has already been quoted from in one of the other decisions. That is, R. v. Mantla, R. v. McFadden, 2010 BCPC 189, R v. Sweet, 2012 YKSC 37, and I have mentioned R. v. Rao already.
The decision of Sweet was relied upon by the Crown to suggest that I ought to consider restricting areas of questioning, and I have already indicated that I am doing that. I accept that in balancing the various factors in section 540(9) when permitting cross-examination, it does allow there to be some discretion as to what areas might be cross-examined on.
Also looking at R. v. Mantla, where the Crown referred me to several paragraphs - paragraphs 18 through to the end, primarily, but there is a quotation from the decision of R. v. Morgan, [2006] YKTC 79, where Chief Judge Faulkner wrote about his concerns about how the Defence would abuse the privilege of cross-examining.
I had mentioned during submissions that, with the greatest of respect, I do not share those views. There may well be the occasional counsel who abuses cross-examination. As the other appellate courts have said, it is my duty to make sure that does not happen but I am quite concerned about the cynical view held of Defence counsel by the Court in the Morgan case, so I do not adopt that. I do not accept that. I will be watching for that and I have no belief whatsoever that Mr. Steinberg would conduct himself in the way that is described there.
The chief judge also refers to the R. v. Townsend case. In Townsend, if I can just paraphrase it, it really talks about the issue that the desire to test credibility of a witness is not enough to allow for cross-examination, in other words, just because it might be nice to know something does not mean you should be allowed to cross-examine on it. I suppose that is generally accurate in terms of the principal. In this particular case, however, Mr. Steinberg has very adequately and fairly identified specific areas of cross-examination that have very clearly defined purposes, which are relevant to live issues that will be litigated in the trial. For example things such as a motive for why a witness makes a complaint and even issues in terms of her own health, of a narrowed exploration of factors that might affect her ability to perceive and recall events. This is not a situation where Defence is saying, "I just want to question about everything because I have a right to do that and I would just like to see what she has to say."
The Crown has very actively argued that some of these areas are already known to the Defence through Mr. R.'s position as a foster parent. I have already recognized that, but that does not mean that it is not appropriate to still ask her about them, to confirm what her position is on those areas. I will be mindful of the scope of questioning and if it appears that I need to give direction, I will. I will put it as simply as that.
I do not believe that there is any other case law that I wish to refer to. I just wish to take a moment to review the submissions of counsel to make sure that I have not overlooked anything that you wished me to consider so if you can give me just a moment I will take a quick look through my notes again.
R. v. W. – Distinguishing the Present Case
I forgot to mention the decision of my colleague, Justice Devlin, in the R. v. W. case. Crown counsel provided me, thank you for doing so, with the decision from June the 1st, 2012. I don't understand, there is a stamp on the front saying that there is a publication ban dated September 27th, 2012, it seems to post date the - so it was September 27th, 2012?
Proceedings recorded but not transcribed
THE COURT: What I will point out with respect to Justice Devlin's decision, is that she denied the request to have the witness produced for cross-examination. The complainant there was someone who obviously had suffered great violence at the hands of the accused person and was very fearful of her safety. The other thing that is an important factor is that Justice Devlin rejected all grounds upon which the Defence sought to cross-examine as being legitimate grounds, which is completely different from what I found here. So, if I can apply the relevance standard, it appears that Justice Devlin - she did not go through the caselaw which I did, but she basically appeared to reject the relevance of each of those areas. So Justice Devlin said there was no evidence to support that there were inconsistent statements. In my case I am informed by counsel, and I accept his word as an officer of the court, there may be inconsistencies between what her brothers said and what S. H. says.
Justice Devlin rejected the argument that there was some foundation to be laid for a third party records application. I do not know what information she had before her because it is not indicated, but in my case Ms. H. clearly is known to have mental health issues for which she is receiving medication, so there is a factual foundation or evidentiary foundation for that issue, that would suggest that it could be explored.
Justice Devlin also rejects that cross-examination is required to assess the quality of the evidence because she sees it as a roundabout way of saying that it is to deal with the issues of credibility. She said, "Since credibility findings cannot be made at the preliminary inquiry stage I reject this argument." With respect to my judicial colleague I believe this flies in the face of Rao and P.M., which talk about the ancillary, secondary function of the preliminary inquiry, the discovery aspect, and as I've mentioned already the analysis for example by Professor Paciocco as one example of the very legitimate purposes of cross-examination that can lay a foundation to deal with issues at trial later on. So, it is my view that to simply say because it involves credibility the witness should not be produced to be cross-examined, is not consistent with the law that I have reviewed today. Also, even if I felt that it was simply related to credibility then that is where I would have to do the balancing of factors with the vulnerability of the witness compared to the right to make full answer and defence. I have already addressed that so I will not go through that again.
In the W. case there was an issue about whether the complainant had a motive to fabricate or whether she might have been coached. There was no evidence to support either of these possibilities so Justice Devlin rejected that.
In the case before me I have issues relating to the biological mother treating S. H.'s brother differently than S. H. with respect to having her come home to live with her, if I can put it that way, C. H. It seems S. H. was upset about this whole issue about why her mother would encourage her brother to come home with her and not S, H. As I said, this is just one example of how the Defence is arguing here that that might, for example, be a motive to fabricate.
The other issue is the allegation relating to F. G., that was seen by S. H.'s brother, Cr., and questions of whether S.H. knew about that. We have got the issue relating to the false complaint about being hit on the head by Mr. R.
These are all just some examples of how I distinguish what Justice Devlin found in her case regarding potential areas where there might be motives to fabricate. I am not saying it is in fact a motive to fabricate. In my view, however, there is some evidentiary basis upon which the Defence might explore that.
There was some suggestion of recovered memory in the W. case. None of that is relevant to the case before me, so Justice Devlin rejected that and that is not a factor in my case (about recovered memory).
So I will return that transcript to you.
MR. KHEHRA: Thank Your Honour.
THE COURT: Thank you to Mr. Khehra, and I thank you for bringing this to my attention, and I think that is a good example of what the cases say, that each of these situations has to be determined on a case by case analysis depending on the facts before the judge.
Additional Considerations
One of the issues raised by the Defence in submissions was that the statement taken by Detective Mitton did not have a K.G.B. type caution at the beginning, in other words the usual form was not used that we see employed by the police when they are interviewing witnesses. Sometimes it is under oath, sometimes it is not, but there is a very detailed analysis of the importance of telling the truth, and the consequences of lying in that form.
The officer did that here in a cursory way. I am satisfied that it was impressed upon S. H. that she was supposed to be telling the truth to the officer and that there could be consequences of being charged, for example, if she was found to be lying. While it was not done perfectly or thoroughly it was done in a way that satisfies me that she was aware that she was to be truthful.
My decision in this case is not determined by that issue. My decision is determined by relevance, and I will leave it for another day whether the absence or presence of a K.G.B. warning would make a difference to producing a witness, but I do not think it really has much bearing here.
I also do not see this as a situation where it is simply a fishing expedition by the Defence. It is a bit of a two-edged sword when the Crown argues that while they already know all of this information or a lot of this information about S. H.'s background, because of being foster parents, (because that is true, they do), that it means that it may be less important to allow for discovery than in other cases.
On the other hand because of the knowledge base that the foster parents have here it gives the Defence very specific grounds to articulate why there are relevant areas to question about. So, as I said, it is a bit of a two-edged sword because the fact that the Rogers have access to this information has, in fact, persuaded me that it is not a fishing expedition. There are factual bases upon which the Defence believes that certain areas can be explored and I accept those arguments.
Clarification on Mental Health Questioning
The last thing that I want to say, just from my review of my notes, is that I think I have been clear about a certain issue but I want to be clearer if I have not been clear enough already. When it comes to the mental health issues relating to why S.H. is taking certain medications, Defence Counsel had asked whether he might be permitted to simply ask a general question, "What are your symptoms," whether it is oppositional defiance disorder or something else that she's taking medication for. I will not permit a broad based question such as, "What are your symptoms," because I am concerned that the answer may involve her disclosing private information that is irrelevant to these proceedings and would intrude upon her privacy, especially with her being a 14 year old girl.
I will ask that counsel restrict his questions to frame them in a way that is a leading question, to avoid the witness volunteering information which she should not tell us about. I can give her a caution about that when we get to that area if necessary, but if I hear that Counsel is asking it in a way that is complying with my intention in the spirit of what I am saying here, then I do not think I will need to. So, I will not permit a general question about, "What are your symptoms?" As I mentioned she might mention things like, for example, an inability to sleep, or other things that will not be relevant. I will ask Counsel, however, to focus the questions on symptoms that relate to the witness's ability to perceive reality, perceive events in general, and to recall and relate events.
So, an example would be, I would permit a question along the lines of, "Do you experience hallucinations, or do you experience delusions," because those might reflect altered perceptions of reality. Depending on the answers I might curtail questions, so we will just have to tread very carefully in that area. Why I say that is because I am mindful that the third party records sections exist for a reason. You should not allow areas of relevance to then intrude upon areas that will be the subject of a third party records application. So I am permitting the line of questioning to allow a foundation for the third party records application, but I do not think it is fair to the witness to be going much further than is necessary in that area. So only the symptoms that relate to those issues I have described.
And to clarify further, if, for example, "At the time that you are suggesting these things happened with Mr. R., were you experiencing any hallucinations or delusions?" I think that would be a fair question in light of my ruling.
So, I will just ask the Crown or Defence, do you think you need further direction from me on that or is that clear?
MR. KHEHRA: I certainly don't. It'll be Counsel. Certainly given the fact that it's in a - Counsel's in a cross-examination mode, I think he can put the pointed questions a lot easier than if....
THE COURT: You were doing it.
MR. KHEHRA: If I were doing it, correct, yeah.
MR. STEINBERG: It's true, that is to say because I can ask leading questions and I take notes from Your Honour's comments for my guidance when we return.
THE COURT: Does that assist you? I'm trying to be fair to allow you to explore those areas that might well impact on credibility or reliability even.
MR. STEINBERG: Yes, and to go further than you're suggesting I think would be questionably relevant. So I agree with you that it's just those subject areas that relate to her, well to the weight to be accorded to her testimony and so on and so they're relevant, but and I will take care in posing those questions to frame them in a way that won't encourage too broad a response.
THE COURT: I'll also ask that if the witness starts to volunteer information that appears to not be directly related to what you're asking for I'll ask you to stop her or I'll stop her if she gets into other areas that go beyond her capacities as a witness or her ability to perceive reality. You know, that type of thing.
MR. STEINBERG: Yes.
THE COURT: All right. So I've finished checking my notes and I don't think there is anything further that I wish to say in terms of my reasons or giving direction, so thank you both very much for the work you've done and I appreciate the submissions very much.
Proceedings recorded but not transcribed
THE COURT: January 24th, 2013, 407 court, at 9:30.
Proceedings recorded but not transcribed.
Matter Adjourned
Certificate of Transcript
Form 2 – Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Roberta McDowell, certify that this document is a true and accurate transcript of the recording of R. v. C. R., in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario L1G 0A2 taken from Recording No. 2811-408-400763-20121108-091301.DCR, which has been certified in Form 1.
Date: January 14, 2013
(Signature of Authorized Person)
Transcript Ordered: November 8, 2012
Transcript Completed: January 14, 2013
Ordering Party Notified: January 14, 2013