WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Citation and Court Information

Citation: R. v. P.G., 2012 ONCJ 881

Date: 2012-06-07

Court File No.: Central East Region-Newmarket 09-10788

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— AND —

P.G.

Before: Justice Peter C. West

Application Heard on: May 7, 2012

Ruling on Application to Cross-examine Complainant on Personal Diaries Obtained by Defence, released on: June 7, 2012

Counsel

Mr. R. De Chellis — for the Crown

Ms. J. MacEachen — for Complainant, K.B.

Mr. L. Kinahan — for the accused P.G.

Decision

WEST J.:

[1] Mr. P.G. faces trial on a charge of sexual assault of his step-daughter, when she was 12 to 15 years of age. The crimes against P.G. are alleged to have occurred over a three and a half year period ending May 31, 2007.

[2] P.G.'s trial commenced on December 13, 2011 with the complainant testifying in-chief. Her evidence in-chief continued on December 14 and the cross-examination had only just begun when Mr. Kinahan, on behalf of P.G., quoted from the complainant's personal diary, which he had possession of. The complainant became visibly upset, started to cry, and then asked if she could take a break. A short recess was taken and the Crown provided me with the decision of R. v. Shearing, 2002 SCC 58, which dealt with a very similar circumstance, relating to the defence, in that case, coming into possession of the complainant's diary and its subsequent admissibility and use in cross-examination.

[3] I will deal with the Shearing case in greater detail later in my reasons, but suffice it to say that, in light of Shearing, I am of the opinion Mr. Kinahan ought to have requested a voir dire, prior to the commencement of the trial and prior to the complainant giving her evidence in-chief, to determine the issue of the admissibility and use of the complainant's diary. The consequence of the tactic of surprising the complainant with the diary during cross-examination has had the deleterious effect of significantly delaying the orderly continuation and completion of P.G.'s trial and, in particular, the evidence of the complainant.

[4] As a result of Mr. Kinahan's disclosure that he was in possession of the complainant's personal diaries, the cross-examination of the complainant and the continuation of the trial was adjourned until after the complainant was able to retain counsel, obtain legal advice and a date was set for a hearing into the admissibility and use to be made of the diaries by the defence in cross-examination of the complainant.

[5] It was agreed by all parties that I could review the three diaries and loose papers in the complainant's handwriting prior to argument and I was provided with a bound document containing photocopies of the originals. My understanding is that the originals were turned over to the Crown Attorney's office on December 21, 2011, upon agreement of all parties.

[6] It is Mr. Kinahan's position that cross-examination in respect of the complainant's diaries should be allowed in respect of four separate issues:

1. There is a complete lack of any mention of the sexual abuse alleged against P.G. in the diaries, which were written between January 2005 and December 2005;

2. There are only 2 references to P.G. giving the complainant money in the diaries;

3. The fact that the complainant did not bear any ill-will towards her biological father; and

4. The relationship which existed between the complainant and her mother.

[7] It is Mr. Kinahan's position that these areas bear on the credibility of the complainant and, in fact, the absence of any reference in the diaries to the allegations of sexual abuse, undermine the complainant's credibility and provide a motive for her to manufacture the allegations.

[8] In his Notice of Application, dated December 21, 2011, Mr. Kinahan also argued that a number of entries contained in the diaries "also display a propensity of the complainant to lash out at anyone who she perceives had done her wrong no matter how slight and also tends to question the complainant's own acceptance of her grasp on reality as the documentation is replete with references to her desire to end her own life as a result of what she perceives other people have done to her." Mr. Kinahan did not pursue this argument during oral submissions.

[9] It was also Mr. Kinahan's position, in his written materials, that "the privacy interests of the complainant are, if not completely abandoned, substantially diminished by her actions" respecting the diaries; namely, when the complainant left P.G. and her mother's residence in 2007, she did not take her diaries with her. Further, when she returned to her mother's residence in 2008 she did not retrieve the diaries and, once again, she left them in the residence when she left permanently, in 2009.

[10] Ms. MacEachen, on behalf of the complainant, takes the position that there is a continuing privacy interest in the diaries by the complainant, despite her leaving them in her mother's residence. Mr. Kinahan, during the oral argument, agreed with this proposition. Further, Mr. Kinahan also conceded that there are many entries and sentiments contained in the three diaries which are not relevant to the issues in this trial. It is Ms. MacEachen's position that there is a very high privacy interest in a diary and Mr. Kinahan should not be permitted to cross-examine the complainant on any of the entries in the diaries because the prejudice caused to the complainant substantially outweighs any potential probative value to the defence.

Factual Background

[11] The complainant's birthday is […], 1992. She has one sister, who was born on […], 1999. Her biological parents separated in January 2000. P.G. started dating the complainant's mother approximately a year to a year and a half after her father moved out of the family home. P.G. moved into the house where the complainant and her mother and sister lived in Pickering.

[12] P.G. and the complainant's mother were married and the family moved to a bungalow […] McCowan Road in Whitchurch-Stouffville. It is alleged by the complainant that P.G. began coming into her bedroom on the main level of the house. He sat on her bed and she felt him touching her. Initially she thought she was dreaming and she was not sure if it was P.G. who was coming into her room when she was sleeping.

[13] As a result, the complainant described waking up earlier than her normal time of 6 a.m. and trying to see who was touching her.

[14] The complainant would be squinting her eyes and she saw that it was P.G. who was coming into her bedroom, sitting on her bed and touching her breasts under her clothes. He would do this for 10 to 15 minutes. She then began lying on her stomach to prevent P.G. from touching her breasts, but she would feel P.G. put his hands between the bed and her bed clothes, ultimately putting his hand under her clothes and touching the nipples of her breasts. P.G. would touch and grab and squeeze her breasts. He would also move his hand lower and he touched the complainant's pubic hair. P.G. would be attempting to put his hand under her underwear to the top of her vagina. In order to get P.G. to stop the complainant would fidget and she tried to give him signals that she was waking up. He never penetrated her vagina with his fingers.

[15] When P.G. did these things to the complainant, she never said anything to him and he never said anything to her. The complainant did not know any of the specific dates that P.G. came into her bedroom and touched her, but she believed it started when she was in grade seven, when she was twelve. She never recorded the dates that P.G. came into her bedroom. Most of what was happening occurred before the complainant moved to her father's house in May 2007.

[16] The complainant did not tell her mother about what P.G. was doing because she did not have a solid relationship with her mother and she believed that it would have been another thing that her mother would not show any interest in.

[17] The complainant testified that P.G. touched her breasts 10 to 12 times and touched her pubic hair three or four times. She was not keeping score, she did not take notes each time it happened and this is just a "guesstimate". It was not something that only happened one or two times.

[18] The complainant moved to her father's house in 2007 because she and her mother were not getting along; they were having a lot of fights. In the summer of 2008, she was visiting at her mother's house and she decided to stay. Around Halloween she was in the house alone with P.G. and he asked to speak to her in his car. He told her that he could not talk in the house because there was a recording device. He told her in the car that he had overheard her talking to one of her girlfriends about a boy that she was seeing. P.G. told her that he thought "she looked so good that night at the party that he would've fucked [her]." He also told her that he had read her diary, which upset the complainant and freaked her out. The complainant testified that she kept the diary hidden when she lived at her mother's house and that she changed the spots she hid it in all the time.

[19] In answer to a question by the Crown, the complainant testified that she never wrote in her diary about the sexual abuse done to her by P.G., as she did not want to recall what happened.

[20] The complainant did not tell anyone what P.G. had done to her until her father's sister was visiting from overseas at Christmas 2008. The complainant was staying with her father during the Christmas break and she confided in her aunt about what P.G. had done to her. She asked her aunt not to tell anyone and her aunt agreed that what the complainant had told her was in confidence between them.

[21] On February 6, 2009, the complainant was picked up after school by her father and he drove her to York Regional Police. During the car ride he would not tell her where they were going, he only said "it was because of P." She met with a detective who asked her if she had a conversation recently with her aunt. The detective asked if anything had happened with P.G. and the complainant testified she lied and said nothing happened. She told the detective that her father and her aunt had ulterior motives for making this allegation up. She testified that she lied because she was not ready to give a disclosure. She had been dragged to the police station by her father and she was not ready to talk about what had happened. She was not ready to talk about what P.G. had done to her with her mother and she was not ready to talk to a police officer or anyone else.

[22] The complainant testified that she told her mother the next day what P.G. had done to her previously. She told her mother that she had lied to the police when she told them nothing had happened. Her mother did not believe that P.G. had sexually abused the complainant and called her daughter a liar.

[23] Her mother and P.G. had planned a cruise, after Christmas, to celebrate P.G.'s birthday and the complainant went on the cruise because everyone had their own room and there were eleven family members who went. After they returned from the cruise, the complainant testified that it was difficult living with her mother and P.G., so she went to stay for a short time with her father. She was still upset that her father had taken her to the police without talking to her first. Eventually, in the summer of 2009, she moved in with her boyfriend's family. She disclosed to her boyfriend and his parents that she had been sexually abused by P.G. and they arranged for her to be seen first by a psychiatrist and then by a counsellor.

[24] As a result of her meetings with her counsellor, the complainant decided that she would speak to the police to tell them what had occurred when she was twelve to fifteen years of age. The complainant testified that she never told her counsellor the specific details concerning the sexual abuse by P.G. On November 10, 2009, the complainant met with a female York Regional Police detective and provided a second statement where she provided details of the sexual abuse by P.G.

[25] The complainant also testified that during the period of time P.G. was sexually abusing her, he would leave money on her pillow. He would leave her a $50 bill. This happened on a number of occasions. When she was older, she viewed this money as "hush" money.

[26] In cross-examination, the complainant testified that her relationship with her mother was not a healthy one. Further, she agreed that she probably expressed her anger about her mother a few times. This was in answer to a question by Mr. Kinahan that she considered her mother to be "the bitchiest, slut, whore, fucker, witch, two-faced lying bitch [you'd] ever fucking met." The complainant testified that she did not hate anyone, she did not agree with the way her mother was parenting her. Mr. Kinahan then had this exchange with the complainant:

Q. As far as you're concerned she could go to fucking hell and rot – rot there in misery. Right?

A. Not necessarily, no.

Q. Pardon me?

A. I don't agree with that, no.

Q. You were going to kill her.

A. No, I was not going to kill her.

Q. You were going to kill her and then you were going to kill yourself.

A. That's not true.

Q. Doesn't ring a bell at all?

A. No.

Q. The answer I was getting that from is actually getting it from your diary. Those are your words, ma'am. Ask (sic) me if this rings a bell to you, "Mom, I've come to realize it's not my mom I should be hating, it's me I should be hating. If I wouldn't…

A. Okay, can I take a break please?

Q. …answer back so much I would actually have a conversation with her."

[27] It was agreed by the Crown and defence that an application would be brought by the defence respecting the admissibility and use to be made during the complainant's cross-examination of the three diaries, which were in the possession of the defence. The Crown advised that the authorization to retain a lawyer to represent the complainant had been given and a date was to be set when the matter could be argued.

Analysis

[28] The facts in Shearing are very similar to the present case. One of the complainants in Shearing kept a daily diary for eight months in 1970, which was during the 10-year period of the allegations of sexual abuse. The diary made no mention of such abuse. When the complainant left the house, her mother put her belongings in a box in a storage area shared with others. Over 22 years later, after charges had been laid against the accused, another resident in the house stumbled across the diary and turned it over to the defence without alerting the complainant, the police or the Crown. The existence of the diary was not disclosed by the defence until mid-trial, after the complainant had completed her evidence-in-chief.

[29] Binnie J., for the majority, held that ss. 278.1 to 278.9 of the Criminal Code did not apply to the diary because those sections "address the production not the use or admissibility of personal information…." The simple fact is that in Shearing, and the present case, the defence had possession of the diary and were therefore not engaged in "a fishing expedition". The issue therefore, is the admissibility of the diaries' contents and the use to be made of those contents in cross-examination.

[30] In R. v. Seaboyer, McLachlin J., (as she then was) noted that "our courts have traditionally been reluctant to exclude even tenuous defence evidence…" and affirmed that the defence has a right to use evidence in its possession unless its prejudicial effect "substantially outweighs" its probative value.

[31] The Seaboyer test was affirmed in R. v. Osolin, per Cory J.:

Generally, a complainant may be cross-examined for the purpose of eliciting evidence relating to consent and pertaining to credibility when the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice which might flow from it. Cross-examination for the purposes of showing consent or impugning credibility which relies upon "rape myths" will always be more prejudicial than probative. Such evidence can fulfil no legitimate purpose and would therefore be inadmissible to go to consent or credibility.

[32] The issue, as defined by Binnie J., is whether "cross-examination on the diary would create prejudice to the complainant that 'substantially outweighed' its potential probative value" to the defence and in that regard, "whether cross-examination on the absence of entries recording abuse relied upon 'rape myths' or the equivalent."

[33] The trial judge in Shearing permitted cross-examination on specific entries in the diary that were inconsistent or contradictory with the complainant's testimony at trial. He did not permit the defence to cross-examine on the absence of any entries in the diary detailing the alleged abuse:

I do not make any ruling about how the defence may argue its case to the jury, but I am satisfied that on this issue, the privacy interest outweighs the potential probative value. In my view, the probative value of demonstrating that [KWG] did not write in her diary a description of any particular sexual assault by [the appellant] is minimal and the intrusion upon her privacy is considerable. [Defence counsel] may not conduct that particular sort of cross-examination with the diary.

[34] In dealing with whether a witness' credibility could be challenged on the absence of entries dealing with physical or sexual abuse, Binnie J. made these observations:

119 The courts have recognized, no doubt belatedly, that certain techniques of cross-examination traditionally employed in sexual assault cases have distorted rather than advanced the search for truth. This case illustrates one of the problem areas. The omission to record some piece of information is only probative if there is a reasonable expectation that such a record would be made (R. v. R.M. (1997), 93 B.C.A.C. 81, at paras. 45-49; Wigmore on Evidence, vol. 3A (Chadbourn rev. 1970), at para. 1042). A pilot's log will record relevant flight information, because that is its purpose, but not what he or she had to eat for breakfast over the Atlantic Ocean. Hospital records will include medical observations but not what television station the patient happened to be watching that evening. What was objectionable about the defence approach here was that it overlooked (or perhaps resolutely resisted) the need to lay before the jury a rational basis for the inference it ultimately wished to draw, namely that the non-recording of a certain type of information was circumstantial evidence that the alleged abuse never happened.

120 The problem lies in the unspoken and unproven premise. KWG was obviously under no legal or other duty to record such observations. She clearly did not follow a regular practice of making such entries because no entries of any kind of abuse were made. All sides agree that the diary entries were "mundane". Why assume that a diary devoted to "mundane" entries would necessarily report on episodes of physical and sexual abuse? On what logical basis would such a non-record give rise to an inference of testimonial deficiency or fabrication? In the absence of some evidentiary basis for the premise that abuse ought to have been recorded, the result of allowing the cross-examination to proceed as proposed by the defence ("the entire contents are fair game") would be to allow the defence to go to the jury at the end of the trial and to point to the absence of entries in an effort to suggest -- nod nod wink wink -- that women and children who are sexually and physically abused do not suffer in silence, but must and do confide their inner hurt even if only to their private diaries.

121 While in most instances the adversarial process allows wide latitude to cross-examiners to resort to unproven assumptions and innuendo in an effort to crack the untruthful witness, sexual assault cases pose particular dangers. Seaboyer, Osolin and Mills all make the point that these cases should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma: Mills, supra, at paras. 72, 117-19; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at para. 63. This is the law and the trial judge was right to apply it.

[35] Mr. Kinahan is not seeking to go through the entire diary to demonstrate that none of the entries relate to any of the allegations of sexual abuse made by the complainant. It is his intent to put to the complainant the omission in her diaries of any reference to what she says P.G. did to her. In fact, the complainant in her evidence in-chief, prior to her becoming aware that Mr. Kinahan had possession of her diaries, testified that she had kept a diary but did not record any of the instances of sexual abuse she described in it because she did not want to recall what P.G. had done to her. Consequently, the issue has already been raised by the complainant and the defence, in my view, would have been permitted to explore the absence of entries relating to sexual abuse in the complainant's diaries, even if the original diaries were not in Mr. Kinahan's possession.

[36] Further, I have read the diaries and it is common ground that there is no reference, in any of the diaries, to any instances of sexual abuse involving P.G. towards the complainant. There are, however, numerous entries to which the complainant's privacy interests would clearly apply. Mr. Kinahan concedes that there are a number of entries that the complainant clearly has a high expectation of privacy in relation to and he has no intention of cross-examining on those.

[37] The observations of Hill, J., in R. v. D.M., are appropriate:

A diary generally contains significantly intimate thoughts, ideas and emotional recordings. As such, there exists a high expectation of privacy in a personal diary and, with disclosure, even to the court, prejudice is occasioned to the personal dignity and right to privacy of the complainant.

[38] The reaction of the complainant when Mr. Kinahan surprised her with her diaries' entries was something that, in my view, reflects the highly private and personal nature of what she wrote back in 2005, when she was only 12 and 13 years of age. She was clearly upset that the contents of her diaries were now in the possession of the defence. I observed the expression on her face, as well as the tears which welled up and began to flow prior to her leaving the courtroom.

[39] In Shearing, the majority held that "the absence of any entries relating to physical or sexual abuse was a live issue with respect to the credibility of KWG [the complainant] that was potentially of probative value, depending on her responses." It was Justice Binnie's position that the probative value to the defence depended on establishing the premise that if the sexual abuse occurred, it would have been recorded. I agree that the truth of this premise is not one that can be assumed, however, the defence should be given the opportunity to attempt to demonstrate it by cross-examination of the complainant. Of course, as was also indicated by Justice Binnie, cross-examination on what the complainant did not write down in her diaries "would be a high-risk tactic for the defence capable of generating some devastating answers, to put it mildly."

[40] Accordingly, I will allow Mr. Kinahan to generally question the complainant about the absence of any entries in her diaries relating to the alleged sexual abuse by P.G. I am not permitting, however, cross-examination on specific entries contained within the diaries to demonstrate the absence of any reference to the sexual abuse alleged against P.G.

[41] Having reviewed the diaries, there are only two references to money: On January 16, 2005, the complainant won a bet with P.G. and won $50 and on March 15, 2005, the complainant earned $140 by working 16 hours at the Shop. I will permit cross-examination concerning the absence of any reference to P.G. putting a $50 bill on the complainant's pillow in the diaries.

[42] I do not agree with Mr. Kinahan that there is any inconsistency or contradiction between the complainant's evidence respecting her relationship with her mother during the trial and the entries I was directed to by Mr. Kinahan. In my view, these entries in her diary are the type of intimate, very personal and emotional writings referred to in the cases, to which a very high expectation of privacy exists. Applying the Seaboyer and Osolin test, it is my opinion that any cross-examination on the entries relating to the complainant's relationship with her mother would create prejudice to the complainant that substantially outweighs any potential probative value to the defence. There is, in my view, no inconsistency between what is recorded in the diaries in respect of the complainant's mother and what she has testified to in court. Consequently, the potential probative value of any cross-examination on these entries would be weak in relation to the complainant's credibility.

[43] Mr. Kinahan drew my attention to a number of entries relating to a cruise that the complainant went on with P.G. and some of his children. In my view, Mr. Kinahan can cross-examine on this event without having to refer to specific entries in the complainant's diaries. At this point there is no evidence to suggest that her evidence will be inconsistent or contradictory with the diaries' entries. It may be that the relevance of the entries in the diary, which relate to her attitude and feelings about the cruise, will take on an added significance depending on the complainant's answers to Mr. Kinahan's questions. If such a circumstance occurs, Mr. Kinahan can renew his application to cross-examine the complainant on specific entries.

Released: June 7, 2012

Signed: "Justice Peter C. West"