WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 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.

The order which has been made does not relate to the complainant. It relates to another complainant.

An order was made under s. 278.95(d) allowing the reasons to be published, broadcast or transmitted.

Court Information

Ontario Court of Justice

Date: April 15, 2019

Court File No.: Ottawa 18-RD19579

Parties

Between:

Her Majesty the Queen

— AND —

Joshua Ainslie Boyle

Before

Justice Peter K. Doody

Ruling under s. 278.94 (Admissibility of complainant's private records)

Heard on: April 11, 2019

Reasons for Order released on: April 15, 2019

Counsel

Jason Neubauer & Meaghan Cunningham — counsel for the Crown

Lawrence Greenspon, Eric Granger & Ninetta Caparelli — counsel for the accused

Ian Carter — counsel for the complainant

Decision

DOODY, J.:

[1] Introduction

[1] This is my ruling on a defence application for an order under s. 278.94(4) authorizing the admitting into evidence of a record of a counselling session of the complainant with a psychologist.

Background

[2] Joshua Boyle is charged with 19 offences – 2 counts of sexual assault with a weapon, 9 counts of assault, one count of uttering a death threat, one count of criminal harassment, 3 counts of unlawful confinement, 1 count of causing the complainant to take a noxious thing, 1 count of assault with a weapon, and 1 count of public mischief.

[3] On March 12, 2019 I ordered that portions of a record kept by the psychologist in respect of the complainant be released to defence counsel and Crown counsel under s. 278.7 of the Criminal Code. I held that a statement purported to be made by the complainant and recorded by the psychologist could be inconsistent with the allegations made by the complainant.

[4] The trial commenced March 25, 2019.

[5] During the course of cross-examination of the complainant on April 3, 2019, the 7th day of trial and the complainant's 5th day of testimony, defence counsel asked her if she had had an opportunity to review the record which I had ordered to be produced. This prompted an objection by Crown counsel, who indicated that she was concerned that this line of questioning was leading into what was prohibited by s. 278.92 of the Criminal Code unless an order was obtained under s. 278.94.

[6] The complainant's evidence could not be continued until that issue, and a separate issue about introduction by the defence of evidence of the complainant's sexual activity other than the sexual activity that forms the subject-matter of the charge, were both determined. The objection raised an issue about the meaning and applicability of s. 278.92 which was enacted by S.C. 2018 c. 29 and came into force on December 13, 2018. It had not previously been determined.

[7] Three more Crown witnesses were called on Thursday, April 4, 2019. The remaining Crown witnesses could not be called until the s. 278.92, s. 278.94, and s. 276 issues were determined. Court did not sit on Friday, April 5 so counsel could prepare the application for a determination of the meaning and applicability of s. 278.92 and the application for a determination of whether the evidence of other sexual activity could be adduced by the defence (the s. 276 application).

[8] On April 8 and 9, 2019, counsel made submissions on the s. 278.92 issue. On April 10, I announced my decision, with reasons to follow, that the defendant cannot introduce into evidence, whether by cross-examination or otherwise, any information contained in the record of the health care provider without complying with the procedure set out in sections 278.92 to 278.94. Immediately after I announced my decision, defence counsel served and filed a notice of application under s. 278.93 for a hearing under s. 278.94 and, if a hearing were to be granted, for an order under s. 278.94(4) for an order permitting him to admit into evidence the contents of the records of the health care provider's session with the complainant of January 10, 2018.

[9] Crown counsel immediately consented to an order under s. 278.93(4) authorizing service of the notice of application less than seven days before the hearing, and to an order granting the application for a hearing under s. 278.94 to determine whether the evidence was admissible. Thus a separate hearing under s. 278.93(4) was avoided. I made those orders.

[10] I had previously ruled, on January 13, 2019, that the complainant must be served with the record in an application under s. 278.94. She is entitled by s. 278.94(2) and (3) to be represented by counsel and to appear, make submissions and be represented by counsel at the s. 278.94 hearing.

[11] On April 10, 2019, the date the application record was served on Crown counsel, it was provided to counsel for the complainant. Complainant's counsel had already agreed to appear and participate in the hearing on behalf of the complainant the next day, April 11.

[12] On Thursday, April 11, 2019, I released my reasons for my decision announced the day before that this application was required. The same day, I heard submissions on this application.

[13] The same day, defence counsel served and provided to me the application record seeking a hearing under s. 278.94 for a determination of the s. 276 application. Crown counsel immediately consented to an order under s. 278.93(4) for a hearing under s. 278.94 to determine the s. 276 application. Thus a separate hearing to determine that issue was avoided.

[14] I set out this background to illustrate the interruption and delay of this trial necessitated by the application to determine the effect of s. 278.92(1), this application and the s. 276 application which I will hear today, Monday, April 15, 2019, immediately after these reasons are delivered.

[15] It would have been better if these applications had been heard before trial in the time set aside for them. I do not criticize counsel for not dealing with these issues until now. Quite the contrary. The way in which the s. 276 issue arose could not have been anticipated, and the meaning of s. 278.92(1) had not yet been determined. Hopefully, these things will not be a regular occurrence in trials of sexual offences. That hope may be far-fetched. I would be remiss, however, if I did not commend all counsel for the expeditious way in which this application and the s. 276 application was dealt with, for Crown counsel's consent to the order to hold a hearing under s. 278.94 for both this application and the s. 276 application which will be heard immediately after these reasons are delivered, and for complainant's counsel's consent to hearing these applications on short notice. Without this cooperation and common sense, the trial of these charges would be at significant risk of not being completed in the 8 weeks of court time allocated. As a result, I remain hopeful that the evidence and submissions will be completed in that time.

Context

[16] In my decision of March 12, 2019, I released a redacted version of the records dealing with the sessions the psychologist had with the complainant on December 21, 2017; January 10, 2018; February 5, 2018; March 23, 2018; April 30, 2018; and July 18, 2018.

[17] I stated in my reasons for that decision that the records contained information which may have impeachment value. I wrote at paragraphs 8 and 9:

8. A note made by the psychologist in a session with the complainant on January 10, 2018, contains the following:

Husband did assaulted me while we were imprisoned & since. He only stopped from when we were released for 3 months. Began again in Dec.

9. From the materials filed on this application, it appears that the complainant and the defendant, and their children, were released from imprisonment in early October, 2017 and arrived in Ottawa on October 14, 2017. At least 10 of the 19 counts allege that the defendant engaged in behaviour toward the complainant between October 14, 2017 and November 30, 2017 which was assault or included acts which come within the legal definition of assault. This note seems to indicate that the complainant made a statement to the psychologist which is inconsistent with those allegations.

[18] I wrote at paragraph 15 of that decision:

15. I have redacted much of the record kept by the psychologist in order to protect the complainant's personal privacy interests and personal dignity in information which is not relevant. I have, however, not redacted all of the record other than the portion I have quoted in these reasons. That portion of the record has the potential to be taken out of context if some of the other information in the record is not disclosed. In the interests of fairness to the Crown, the defendant, and the complainant, I have decided to disclose those portions of the record necessary to put the part I have quoted into context.

[19] The record received by the defendant and Crown counsel was thus not complete.

[20] Defence counsel wishes to adduce evidence related to two excerpts from the record – the words

Husband did assaulted me while we were imprisoned & since. He only stopped from when we were released for 3 months. Began again in Dec.

and the words

Went to police Dec. 30. He decided to lock me in bedroom for foreseeable future so I ran for it. Technically, he called police but I knew he would. Sgt. Showed up. Arrested husband. Now safe.

[21] I will call these the "first excerpt" and the "second excerpt". Both were in the notes of the January 10, 2018 session.

[22] The defendant wishes to adduce evidence related to these two excerpts from the notes to prove that the complainant made the statements adduced to her at that time.

[23] He wishes to adduce the first statement as a prior statement which is inconsistent with evidence given by the complainant at trial. She testified that the defendant assaulted her and was abusive to her on November 5, 2017; November 14, 2017; and November 27, 2017.

[24] He wishes to adduce the second statement to prove that the complainant did not tell the psychologist on January 10, 2018 that she was assaulted by the defendant on December 30, 2017. She testified that she was assaulted by the defendant on that date. She testified that the defendant hit her on the face, quite hard, and he may have slapped her. The statement to the psychologist about the events of December 30, as recorded in the excerpt of the report of the January 10 session, does not say that she told the psychologist she had been punched or slapped in the face. Defence counsel wishes to have the complainant confirm, based on this note, that she did not tell the psychologist those things. He will then ask me to infer that she did not do so because she was not assaulted on December 30, and her testimony at trial that he did is not credible.

[25] The issue is whether each of those two portions of the record are admissible.

Statutory Framework

[26] The relevant sections, enacted by S.C. 2018 c. 29, are as follows:

Admissibility — accused in possession of records relating to complainant

278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society's interest in encouraging the reporting of sexual assault offences;

(c) society's interest in encouraging the obtaining of treatment by complainants of sexual offences;

(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(e) the need to remove from the fact-finding process any discriminatory belief or bias;

(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(g) the potential prejudice to the complainant's personal dignity and right of privacy;

(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(i) any other factor that the judge, provincial court judge or justice considers relevant.

Analysis

(a) First Excerpt

[27] The first excerpt sought to be adduced by the defendant is directly contradictory of testimony she gave at trial.

[28] This statement is not about sexual activity of the complainant. Consequently, it is admissible, under s. 278.92(b), if

a. it is relevant to an issue at trial; and

b. it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[29] Crown counsel and counsel for the complainant do not oppose an order allowing this statement to be adduced at trial. They concede that this statement, if it was made, is relevant to an issue at trial – the credibility of the complainant. I agree.

[30] They do not concede that the inconsistency is material or significant. That having been said, they are content to leave that issue for argument after the evidence is adduced.

[31] In my view, the statement does have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[32] The test set out in s. 278.92(b) is the same as the test set out in s. 276(2) for the admission of evidence of other sexual activity of the complainant, with two differences. Subsection 276(2)(a) prohibits the introduction into evidence of other sexual activity if its purpose is one of the two "twin myths" described in s. 276(1); and s. 278.94(3)(c) adds "society's interest in encouraging the treatment by complainants of sexual offences" to the list of factors that must be considered under both s. 276(2) and 278.94(2).

[33] There is little jurisprudence under s. 278.94(2). I was referred to only one decision, R. v. Brown, 2019 ONSC 1335, in which MacLeod J. allowed cross examination on what was said to be a prior inconsistent statement of the complainant which was contained in hospital records.

[34] In my view, the jurisprudence under s. 276 is applicable to applications under s. 278.94(2).

[35] The requirement that the evidence have "significant probative value" means that the evidence must have more than "trifling relevance" and is capable, in the context of all of the evidence, of leaving the fact finder with a reasonable doubt. The requirement that the significant probative value is not "substantially" outweighed by the danger of prejudice to the proper administration of justice serves to protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to have significant probative value. (R. v. L.S., 2017 ONCA 685 at para. 89; R. v. Darrach, 2000 SCC 46 at paras. 39-41)

[36] Evidence of a prior inconsistent statement by a complainant in a case like this one where the most significant evidence is oral testimony of the complainant is of more than trifling relevance. Inconsistent statements by witnesses are among the more important methods available by finders of fact to determine the credibility and reliability of witnesses. In many cases, they are the only tool.

[37] I recognize that there are issues with respect to the statement at issue. It is contained in a psychological counselling record. As the Supreme Court of Canada noted in R. v. Mills, [1993] 3 S.C.R. 668, counselling or therapeutic records can be highly subjective documents which attempt merely to record an individual's emotions and psychological state. Often such records have not been checked for accuracy by the subject of the records, nor have they been recorded verbatim. These issues are all proper subjects for examination and consideration if and when it is necessary to determine the weight to be given to the alleged statement. In the circumstances of this case, however, I am of the view that these issues do not substantially outweigh the significant probative value of the prior inconsistent statement.

[38] Nor, in my view, do the factors set out in s. 278.92(3) justify a conclusion that the dangers of prejudice to the proper administration of justice substantially outweigh the significant probative value of the alleged prior inconsistent statement.

[39] I adopt the reasons of MacLeod J. in Brown, where he wrote:

In this case there is obvious concern in relation to factors (c), (g) and (h) [of s. 278.92(3)] as the complainant was seeking treatment and there are many reasons she might have chosen to give information in a therapeutic setting which does not concur with information she later gave to the police. Nevertheless, factors (a) and (d) weigh heavily in favour of permitting the records to be used for the limited purpose of impeaching the anticipated testimony of the complainant.

… a previous inconsistent statement is an important tool of cross examination subject to requirements set out in the Canada Evidence Act. Moreover, the right of full answer and defence is a right guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. It would be unjust not to permit the accused the use of these records to prove prior inconsistent statements

[40] The defendant will be allowed to adduce evidence of the statement contained in the first excerpt from the record.

(b) Second Excerpt

[41] In my view, the second excerpt is different from the first. It does not meet the first stage of the analysis, the test of whether it is relevant.

[42] The defendant is attempting to introduce this excerpt in order to prove that the complainant did not tell the psychologist that she had been assaulted by the defendant on December 30, 2017. He is seeking to prove that fact in order to support an inference that she was not, in fact, assaulted. It is thus not a statement which is directly contradictory to her trial testimony. It is a piece of evidence which the defendant submits will support the inference I have described.

[43] Binnie J., on behalf of a majority of the Supreme Court of Canada, dealt with a similar issue in R. v. Shearing, 2002 SCC 58. In that case, the defendant was charged with a number of historic sexual offences. One of the complainants had kept a diary which had come into the possession of defence counsel. The trial judge refused to permit defence counsel to cross-examine the complainant on the absence of entries in the diary relating to the alleged offences. His ruling was a result of him applying the test for production of third party records as set out in R. v. O'Connor, [1995] 4 S.C.R. 411. The Supreme Court of Canada held that that was an error, because the issue was not production of the diary (which the accused already had) but admissibility of its contents.

[44] Binnie J. dealt with the issue of relevance of the absence of entries of the offences at paragraphs 119 and 120. He wrote:

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, [page 82] 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 [the complainant] 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.

[45] That, however, was not the end of the matter. Binnie J. emphasized the importance of cross-examination to the defence of a criminal charge. At paragraph 122, he referred to L'Heureux-Dubé J.'s reasons at paragraph 124 of O'Connor where she wrote that a defendant must be free to demonstrate the relevance of a live issue at trial, so long as he did not resort to stereotypical lines of reasoning. The majority of the court held that the absence of reference to the assaults was a proper subject of cross-examination. At paragraphs 144 to 147, Binnie J. wrote:

144 In my view, KWG's diary ought not to have been ruled untouchable in this respect and I think that if the trial judge had properly directed himself on the Osolin test, he would have reached a different conclusion.

145 Firstly, the absence of any entries relating to physical or sexual abuse was a live issue with respect to the credibility of KWG that was potentially of probative value, depending on her responses. The trial judge had already concluded that there was sufficient potential contradiction between KWG's evidence-in-chief and certain of the diary entries to justify calling on her for an explanation before the jury. Questions dealing with the absence of entries were no more intrusive into her privacy than those he had already permitted. The trial judge had decided that it was open to the defence to argue that the contemporaneous diary showed a more accurate picture of KWG's life in 1970 than her unaided evidence-in-chief 27 years later.

146 Secondly, the probative value to the defence depended on establishing the premise that if the physical and sexual abuse occurred, it would have been recorded. The defence was rightly precluded from assuming the truth of that premise, but it did not follow that the defence should also be precluded from attempting to demonstrate it with this particular diary on the particular facts of a case. As previously noted, both the trial judge and Donald J.A. seemed to consider such cross-examination would be proper provided the result was not an indiscriminate rehash of every entry in the diary, as the defence had demanded.

147 Thirdly, the court ought not to have assumed what her responses to those questions would be: Osolin, supra, at p. 674. Both the trial judge and the Court of Appeal assumed questions about the absence of entries could have been easily answered by KWG. If so, there was even less reason to prevent them from being asked.

[46] The situation before me is not as it was in Shearing. I am bound by s. 278.92, which was not in force at the time Shearing was decided. It prohibits the admission into evidence of a private record relating to the complainant unless it is established, among other things, that it is relevant. On the present record, relevance has not been established because there is as yet no evidence to support, as Binnie J. wrote at paragraph 119 of Shearing, "a rational basis for the inference [the defence] ultimately wished to draw, namely that the non-recording of a certain type of information was circumstantial evidence that the alleged abuse never happened."

[47] Without such evidence, I cannot conclude that the failure of the complainant to tell her psychologist about the alleged assault of December 30 is relevant to the issue of whether that assault happened.

[48] That is not to say that the defendant cannot attempt to adduce such evidence. He could question the complainant about her visit to the psychologist without reference to the record. He has already done so, without objection from the Crown. This cross-examination would not be able to refer to information contained in the record, as I ruled in my decision of April 11, 2019 dealing with the effect of s. 278.92. But the cross-examination would be otherwise unencumbered. If he could establish, through cross-examination or otherwise, that the failure of the complainant to tell her psychologist about the alleged assault is relevant on the basis described by Binnie J. at paragraphs 119 to 122 of Shearing, he would be partway to establishing relevance.

[49] But even if he could do so, he would face another hurdle.

[50] In order for the defendant to establish that the second excerpt was relevant, he would have to establish both that the absence of mention of the alleged assault was relevant, and that the complainant did not tell the psychologist about it. The latter point cannot be established without a review of the entire record. The entire record is not before me.

[51] I released, under s. 278.7, the first excerpt and other excerpts, including the second excerpt, so that the first excerpt could be seen in context. After I reviewed the entire record and determined which portions to redact, I returned it to the sealed envelope in which it had been placed when the record holder attended in response to the subpoena. I do not recall what was in the portion of the record which was redacted. I have, both theoretically and in reality, disabused my mind of those portions of the record.

[52] I have concluded that I cannot look at it again unless another application is brought under s. 278.3 for its production.

[53] The second excerpt was released in order to put the first excerpt in context. Different issues may arise with respect to whether I should examine or release other portions of the record. If an application were brought for the release of other portions of the record, it would have to contain, as required by s. 278.3(3), the grounds on which the defendant relies to establish that it is likely relevant. The complainant would be entitled to be heard on the issue of whether it should be produced to me for review. I would have to consider the matters set out in s. 278.5(2), as explained by the Supreme Court of Canada in R. v. Mills, [1999] 3 S.C.R. 668, before deciding whether to review the record. If I did decide to review it, I would have to consider the matters set out in s. 278.7(2) in determining whether to release it. I cannot conclude, on the state of the evidentiary record before me, that the second excerpt is the only mention of the December 30 events contained in the psychologist's record.

(c) Conclusion re Second Excerpt

[54] I conclude, on the present state of the evidentiary record, that the defendant cannot establish that the second excerpt is relevant to an issue at trial. If that situation were to change, I would consider a second application under s. 278.3 for production of the record and, potentially, under s. 278.93 for an order under s. 278.94(4) to admit the record or a portion of the record into evidence.

Released: April 15th, 2019

Signed: Justice Peter K. Doody