Non-Publication and Non-Broadcast Order Notice

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

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

Ontario Court of Justice

Date: 2023 10 18 Court File No.: Toronto 48179982270004414

BETWEEN:

HIS MAJESTY THE KING

— AND —

J.R.

Before: Justice David Rose Heard on: October 17, 2023 Reasons for Judgment released on: October 18, 2023

RULING ON COMPELLABILITY OF CONTACT INFORMATION FOR COMPLAINANT’S PARTNER AND MOTHER

Counsel: B. McCallum......................................................................................... counsel for the Crown D. Brown, L. Board................................................................. counsel for the accused J.R.

Rose J.:

[1] The complainant is currently in cross-examination. At the end of yesterday’s evidence the defence asked me for an order that they be permitted to ask the complainant for the contact information for two persons and if the complainant refuses that I order her to provide that information. The defence undertakes not to share that information with J.R. and that either the Crown or Victim Witness Assistance Program be the intermediary. This is therefore an application by the defence for a ruling that the contact information of two other persons known only to the complainant is compellable information from the complainant.

[2] Some background information will assist to set the stage. The complainant in this sexual assault trial has now testified for the better part of two days. In cross-examination yesterday Mr. Brown pressed her on persons who she had contact with about this incident. One was her boyfriend D.B. In testimony she said that she told him that she had been sexually assaulted. She was not sure when. In her evidence she did not go into the detail of the assault because she did not want him to know the details. She told him she had been sexually assaulted and was going to report it to the police. That was it, nothing else.

[3] The complainant was also cross-examined about her contact with her mother on the day of the allegation. Apparently she had told the police in her initial statement to them that she was texting with her mother when she went to meet J.R. in downtown Toronto. In cross-examination she said that she was texting her mother with her location but not the reason she was going to Toronto. Mr. Brown elicited evidence from the complainant that she never told her mother of a need for help after the incident said to be the sexual assault. In her evidence she said that such information was “too intimate and I did not want to bug her about things to stress her out”.

[4] The complainant provided the names of her partner and mother, and said that if she were forced to she would provide the contact information. As she said about giving her mother’s contact information, “If I have to. I do not want to drag her into this”.

[5] The defence argues that this furnishes a basis on which the complainant must be compelled to provide the contact information for her partner and mother. The defence argument is that the defendant has a right to investigate the complainant’s evidence on these points by interviewing her partner and mother to confirm or deny her truthfulness on these two points.

[6] The Crown resists this by arguing that such evidence is irrelevant by operation of the collateral facts rule.

[7] Mr. Brown offered R. v. Charlery 2011 ONSC 2952 as authority for the proposition that contact information for potential witnesses is compellable from a witness. I disagree. In Charlery the accused was about to stand trial for first degree murder. Several eyewitnesses to the homicide were under subpoena by the Crown at the start of the trial but the defence were stymied in their efforts to interview those witnesses because the Crown had redacted their contact information on the basis of fear by the witnesses.

[8] Benotto J., sitting as a trial judge, ordered the Crown to provide that information to the defence. Her analysis and findings fell under orthodox first party disclosure rules. In other words the Crown was compelled to provide information to the defence which was relevant in law, see Charlery (supra) at paras. 17 and 19. Her analysis in that ruling balances the potential privacy claim of an eyewitness in the context of information deemed relevant in law which is in the possession of the Crown. The privacy claim by the Crown was said to be only generalized, not specific. What was left unsaid in Charlery is that there is no property in a witness, but Benotto J.’s ruling is entirely consistent with that axiom.

[9] In Benotto J.’s finding the issue was one of “manufactured complexity”.

[10] In this case the contact information is not in the possession of the Crown. There is no allegation of that. I also infer this because I have already heard and ruled on one disclosure application by the defence, see R. v. J.R. 2023 ONCJ 422. At no time has the defence brought to my attention a failure by the Crown to disclose the information sought in this application.

[11] This argument can be disposed of by application of the collateral fact rule. For sake of brevity, David Watt K.C. summarized the rule this way:

The collateral facts or collateral issues rule prohibits the introduction of evidence for the sole purpose of contradicting a witness' testimony concerning a collateral fact. The rule seeks to avoid confusion and proliferation of issues, wasting of time, and introduction of evidence of negligble (sic) assistance to the trier of fact in determining the real issues of the case. It endeavours to ensure that the sideshow does not take over the circus. In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence.

A collateral fact is one that is not connected with the issue in the case. It is one that the party would not be entitled to prove as part of its case, because it lacks relevance or connection to it. A collateral fact, in other words, is one that is neither

i. material; nor ii. relevant to a material fact.

See Watt’s Manual of Criminal Evidence at Ch. 22.03

[12] What the complainant’s partner or mother would say about utterances made by the complainant is exactly that. It is evidence for the sole purpose of potentially contradicting the complainant about what she said to them. For purposes of a trial about a sexual assault where the only witness is the complainant’s evidence, evidence of her partner and mother which would have been about her demeanour well after the fact is collateral. A party cannot generally impugn a witness’ credibility by contradicting the witness on collateral issues even where the core issue in the trial is credibility. Prejudice to the trial process is relevant in determining the probative vs. prejudicial analysis, see R. v. B.(A.R.) (1998), 128 C.C.C. (3d) 457 (Ont. C.A.). This is a distant sideshow in the words of Watt, and therefore irrelevant.

[13] There is another reason why the application is denied. The evidence that the complainant’s mother was informed of the complainant’s location on the day of the incident was provided to the police in her initial statement, which was in the original first party disclosure. The defence has been in possession of that material for some time and, as regards that information, there is no reason why this should not have been the subject of a pre-trial motion for third party disclosure. I would not interrupt or distract this trial for something so distant and for which a remedy should have been sought much earlier. There have been many pre-trial motions in this case but this was not among them.

[14] For these reasons, and despite Mr. Brown’s able argument, the application is dismissed.

Dated this 18th day of October 2023

David S. Rose Ontario Court of Justice