WARNING 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 08 06 Court File No.: Toronto 4810 998 22 10005270-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

KAVIT SHAH

Before: Justice Christine Mainville

Section 278.92 Application – Step 2, heard on July 30, 2024 Reasons for Judgment released on August 6, 2024

Counsel: Rishabh Nigam................................................................................... counsel for the Crown Nick Kandel.................................................................................. counsel for the Applicant Amanda Ross…………………………………………………counsel for the Complainant

Mainville J.:

[1] Mr. Shah is a registered physiotherapist charged with one count of sexual assault. The assault is alleged to have taken place during a physiotherapy treatment session with the complainant, at the Bloor West Physiotherapy clinic.

[2] Mr. Shah seeks the court’s authorization to make use of the clinic’s physiotherapy records for the Complainant at his upcoming trial. He filed an application under ss. 278.92 - 278.94 of the Criminal Code. At the first stage of the ensuing process, the Crown conceded that the records sought to be adduced were capable of being admissible under s. 278.92(2).

[3] At this second stage, the Applicant Mr. Shah needs to satisfy the court, on a balance of probabilities, that (1) the evidence is relevant to an issue at trial; and (2) the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice: s. 278.92(2).

[4] The Crown and Complainant oppose the application. The primary argument is that the Applicant has not established a proper evidentiary foundation for the application, having not filed an affidavit authored by either himself or another person with personal knowledge of the records and their origin, sufficient to establish the records’ authenticity.

Legislative Framework

[5] Section 278.92(2)(b) provides that a record as defined in s. 278.1 is inadmissible unless the judge determines, in accordance with the procedures set out in sections 278.93 and 278.94, “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.”

[6] Section 278.92(3) provides that the following factors must be considered in determining whether the records are admissible:

(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.

Factual Framework

[7] The Complainant is said to have attended the clinic four times in August of 2022, in relation to a knee injury. The Applicant was the Complainant’s physiotherapist on all these occasions except for the last attendance.

[8] It is alleged that on the second-to-last attendance at the clinic, the Applicant began to massage the Complainant’s neck and shoulders, and sexually assaulted her by touching her stomach, squeezing her breasts, and caressing her lips.

[9] The Applicant has pled not guilty and will take the position that there was no sexual touching. Any touching was within the scope of appropriate treatment and based on the type of treatment sought and consented to. Based on the clinical notes, it will be suggested that the Complainant experienced pain in the supraclavicular and upper chest areas, not merely knee pain.

[10] The central issue at trial will be the Complainant’s credibility and reliability. She is anticipated to be the only witness called by the Crown.

[11] The Complainant’s physiotherapy file at the clinic, which the defence seeks to adduce at trial, contains several documents related to her attendance at the clinic, including an intake form, a treatment program, and notes taken by the Applicant during his sessions with the Complainant. This includes notes from the session when the alleged sexual assault occurred.

[12] The defence argues that the clinic notes contain prior inconsistent statements from the Complainant. It also seeks to rely on the records given that they provide a contemporaneous or near contemporaneous account of certain aspects of the Complainant’s attendance at the clinic, including on the day of the alleged incident.

[13] In particular, the intake form contains information suggesting that the Complainant expressed pain in her shoulders and that that area of her body was included in her treatment plan, also included as part of the subject records. In her statement to the police, the Complainant alleges that the Applicant touched her shoulders as of her first visit even though she never complained of pain in that area.

[14] Similarly, the notes of the final session between the Applicant and the Complainant state that she expressed pain in her supraclavicular area and upper chest. Those areas of the body were added to her treatment plan. This is not referenced in the Complainant’s statement to the police.

Application Record

[15] The defence filed an affidavit from an associate lawyer at defence counsel’s firm. It sets out, based on the lawyer’s information and belief, that the Complainant’s physiotherapy file was provided to the Applicant’s counsel through disclosure, and that the records – which are appended to the Affidavit – contain notes and information from all of the Complainant’s visits at the clinic where the Applicant works as a registered physiotherapist. The affidavit also states that “the records contain notes from the applicant and other individuals at the clinic involved in the complainant’s treatment that were made in the usual course of business and were recorded contemporaneously or near-contemporaneously with the event that was recorded.” The affidavit also appends a transcript of the Complainant’s statement to the police reporting her allegations.

[16] It is agreed amongst the parties that the records were provided to the defence through disclosure, and that they were obtained from the clinic by the police. They contain some redactions, and the defence takes no issue with those redactions.

[17] The Crown however observed that no waiver was obtained from the Complainant in respect of these records, and that they were disclosed in error.

[18] Section 278.93(2) requires that the application be in writing, and that it set out “detailed particulars” of the evidence sought to be adduced, and the relevance of that evidence to an issue at trial. The “detailed particulars” requirement is satisfied if “judges are equipped to meaningfully engage with the s. 276 [or s. 278.92] analysis and that the defence evidence does not take the Crown or the complainant by surprise”: R. v. R.V., 2019 SCC 41, at para. 48.

[19] The legislative scheme does not include any requirement that a personal affidavit be filed in support of the application.

[20] In fact, the Supreme Court in J.J., at para. 150, specifically referenced the possibility that an affidavit not be filed in support of an application under s. 278.92:

The record screening regime places no burden on the accused to submit an affidavit and undergo cross-examination. If an affidavit is submitted in support of the application, “[i]t need not be the accused [themselves] who presents evidence; it can be anyone with relevant information who can personally testify to its truth” (Darrach, at para. 53). Nor does it require the accused to testify. The accused is simply not compelled to be a witness within the meaning of s. 11(c) by the operation of ss. 278.92 to 278.94. [Emphasis added.]

[21] The rules of evidence are generally relaxed in the context of pre-trial motions. Hearsay-based affidavits are not infrequently filed in support of such motions. Indeed, such an affidavit was filed in the case of R.V. in support of an application under s. 276, where the Supreme Court ultimately determined that the application ought to have been granted: see Appellant’s factum, S.C.C. File No. 38286, at para. 14, which reflects the fact that aside from disclosure materials, the application record consisted of an affidavit from a paralegal employed by counsel for the applicant, reciting the position taken in the notice of application.

[22] As stated by Justice Code in R. v. Niemec, 2022 ONSC 5549, at para. 35, “common law case management powers have always allowed the court to limit the use of full evidentiary voir dires, when deciding the admissibility of evidence. The only evidentiary ruling that has always required a full voir dire, absent a waiver, is when determining the voluntariness of a statement made to the police.”

[23] In that case, the applicant had filed an affidavit in support of his ss. 276 and 278.92 applications, but counsel for the complainant took issue with the fact that the court was asked to rely on submissions from counsel regarding the applicant’s account of the events at the time of the alleged offence, and this not being addressed by way of affidavit evidence: para. 34.

[24] Justice Code stressed the importance of robust case management powers in the post-Charter era, where the number of pre-trial proceedings has increased dramatically: Niemec, at paras. 36 and 38. Relying on R. v. Felderhof (2003), 180 C.C.C. (3d) 498 (Ont. C.A.), he pointed to the power “to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form”: para. 38. Finally, making note of the Supreme Court’s comments at para. 150 of J.J., he “was satisfied that the present Application could be properly decided on the basis of an evidentiary record that included some affidavit evidence and some reasonably reliable hearsay evidence.”: paras. 39-40.

[25] Like in Niemec, I am satisfied that the hearsay evidence produced by way of the associate’s affidavit, including the Complainant’s statement to the police, in addition to the records themselves, provide me “with a sufficient basis to assess probative value and prejudice at the pre-trial admissibility stage of proceedings”: Niemec, at para. 40. The application record sufficiently equips me to meaningfully conduct the s. 278.92 analysis, in consideration of the factors referenced under subparagraph (3).

[26] The fact that the police obtained the records directly from the clinic also tends to alleviate some of the concerns raised by the Crown and the Complainant. While no waiver was obtained – which could impact the privacy analysis – the way in which the records found themselves in the hands of the police and before the Court is relevant in terms of the records’ origination and chain of custody.

[27] The concerns raised by the Crown and Complainant about fabrication and the falsity of some of the statements contained in the records are better addressed at trial.

[28] In some cases, such concerns could carry weight in the s. 278.92 analysis, as they did in R. v. N.G., 2024 ONCA 20, at paras. 37-39. The circumstances of that case, however, were fairly unusual. Amongst other concerns with the electronic messages the applicant sought to adduce, the applicant had obtained the messages by taking the complainant’s phone away from her and withholding it in such a way as to prevent verification of their authenticity. The manner in which the records were obtained raised concerns relating to society’s interest in encouraging the reporting of sexual assaults, if they were to be admitted into evidence.

[29] Here, by contrast, the records were obtained from the clinic by the police. The physiotherapy clinic would be expected to maintain records like the ones being adduced here. The parties can only point to the fact that the Applicant is the author of the central clinic notes to argue that they were potentially created to protect himself from allegations of sexual assault. There is no evidence before me that the records are or may have been fabricated or falsified. While it remains possible that the Applicant made false notes or made changes to the records before they were provided to the police, that is an issue best left for trial should the defence seek to prove the statements contained therein. The weight to be attributed to the records can be assessed in the context of all the evidence heard at trial. It would not be appropriate for me to pre-judge the issue at this stage.

[30] As I made clear at the hearing of the application, should I authorize the records to be adduced pursuant to s. 278.92, this does not mean that the records could be admitted in evidence for the truth of their contents, without further authentication evidence enabling the defence to file them as exhibits. The defence does not seek to do so at this time. It seeks to adduce the records in cross-examination of the Complainant, and make use of them for the purposes described above and within the parameters of other rules of evidence.

[31] The Complainant argues that “[t]he admission of unauthenticated personal treatment records of dubious origin in the absence of a proper evidentiary foundation can only have a chilling effect on the willingness of complainants to report: if they report a sexual assault by a trusted healthcare provider, they risk being undermined at trial by unauthenticated, doctored/fraudulent notes containing statements falsely attributed to them, and disputing the very act of assault, created by the very individual who assaulted them.”

[32] But this overlooks the fact that should the Complainant dispute aspects of the records in cross-examination, the records will have to be properly authenticated before being admissible. Moreover, there are restrictions on the way the statements contained therein could be used at trial. For instance, prior consistent statements of the accused contained therein could not serve to bolster his credibility.

[33] Ultimately, I am satisfied that the present record is sufficient to enable me to adjudicate the application.

Analysis

[34] The proposed relevance of the records relates to the nature of the complaints made and the resulting touching that occurred at the Complainant’s physiotherapy appointments, and her credibility and reliability in that regard. These issues are central to this trial.

[35] The records may be used in an effort to establish that the Complainant has made inconsistent statements in respect of these issues, and to suggest that she made other statements recorded therein.

[36] Referring the Complainant to details of her attendances at the clinic could indeed be used to test her recollection of the events, “an integral part of an accused’s right to make full answer and defence”, as stated by the court in R. v. Inkpen, 2023 BCPC 284, at paras. 3 and 52, in reference to an entry in the complainant’s medical chart made by the accused in that case.

[37] The records could well serve to refresh the Complainant’s memory, if indeed such events took place. Certainly, the defence should be permitted to suggest as much, by reliance on the records. The contents of the records are probative of what touching in fact took place or not and for what purpose during the physiotherapy sessions. If accepted, they may well advance the Applicant’s narrative and undermine the Complainant’s account.

[38] Indeed, if the Complainant did complain about non-knee related pain and consented to some form of treatment in that regard, that may well serve to support the accused’s position regarding the nature of the touching that did take place during the session. He should be permitted to rely on the records to suggest as much.

[39] The Applicant should be permitted to advance his own account of that interaction, including attempting to do so through the Complainant. He should also be able to test the Complainant’s account and potentially establish prior inconsistent statements. Section 10 of the Canada Evidence Act entitles a party to cross-examine a witness on a prior statement reduced to writing. Section 11 also enables cross-examination on an alleged inconsistency contained in an oral statement.

[40] For instance, the Complainant may well agree that she reported certain complaints to the Applicant and that a treatment plan was devised and agreed to in relation to these complaints. The Complainant may also of course deny having made some of the statements attributed to her in the clinical notes. Should these statements not be adopted, and should the defence wish to prove an inconsistent statement or the fact that a statement was indeed made, it can then take the necessary steps to establish these.

[41] Ultimately, the records in this case may be used to establish prior inconsistent statements, and thereby tend to undermine the Complainant’s credibility and/or reliability.

[42] In R. v. Brown, 2019 ONSC 1335, the defence was permitted to adduce the complainant’s hospital records largely on the basis that statements contained therein were inconsistent with the complainant’s police statement.

[43] The Complainant’s position is that the records were fraudulently created by the Applicant, and do not accurately reflect her statements or the Applicant’s actions, thereby making them irrelevant to her credibility and reliability. It would be entirely inappropriate and premature for me to make such a finding on a pretrial motion. I have earlier explained why the authentication concerns raised do not trouble me at this juncture.

[44] While – considering the Complainant’s position – it can be presumed that she will deny having made the complaints referenced in the records, her account may well be more nuanced when specific aspects of the records are put to her. Some of these nuances may or may not align with the accused’s position. Either way, her answers are probative on this issue.

[45] Cross-examination is of course central to the truth-seeking function of trial. As the Supreme Court has stressed, “[a]t 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”: R. v. Lyttle, 2004 SCC 5, at para. 1. See also para. 41; R.V., at para. 39. I am not to consider “the probability that [the] questioning would be successful, but rather whether the answers would be probative.”: R.V., at para. 62.

[46] In Niemec, the defence sought to adduce text messages setting out terms and conditions of a sexual encounter between the accused and complainant. The central issue in the case was whether the accused violated the terms of the agreement. At para. 17, the court stated that “the Crown cannot open up this issue in-chief and then expect that the defence will not explore it in cross-examination.” The defence was permitted to use the evidence of prior sexual activity to rebut an issue raised by the Crown.

[47] Similarly, in this case, the issue of what the Complainant attended physiotherapy for and what treatment and resulting touching was consented to, will inevitably be raised during the Complainant’s examination-in-chief. In response, the defence will argue that whatever touching took place was medically indicated based on the Complainant’s reported ailments or was otherwise appropriate. The parameters of the Complainant’s treatment and of her consent will be a central issue at trial. The defence ought to be permitted to explore these parameters by reliance on the clinical records.

[48] Ultimately, the notations in the records and the Complainant’s answers to them are probative of what touching took place during the impugned session and for what purpose. They have significant probative value.

[49] The Complainant conceded that were it not for the above evidentiary issues on this application, her position would be different. Indeed, she recognizes that her expectation of privacy in the records “is not at the highest end of the privacy spectrum”, noting that the notes purport to describe routine and consensual physiotherapy treatment. The Complainant states that “[w]ere the notes an accurate reflection of the conversations and physical acts that actually took place” during her sessions, she would not oppose this application.

[50] Again, I am not at this juncture positioned to make any findings relating to the accuracy of the records. That is a matter properly left for trial, with the benefit of all the evidence. The fact that the records do not entirely align with the Complainant’s version of events is no basis to exclude them from evidence. Rather, the apparent inconsistencies are precisely the point. The Applicant should have an opportunity to canvass these with the Complainant in cross-examination. Her position on the inaccuracy of the records can be provided at that time. Needless to say, the fact that a record may contradict a complainant’s account is not itself a reason to exclude it.

[51] I find that the Complainant’s privacy interests in the records are limited. Despite being an enumerated record in s. 278.1, the nature of the information contained in the records is fairly mundane. They contain some biographical details and reveal the reason the Complainant attended physiotherapy, the treatment she purportedly received, and the individuals involved in the treatment. The areas of the body mentioned are not private areas of her body. The records do not contain the Complainant’s medical history or mental health history (if any), nor do they contain any information about her lifestyle or other sensitive personal information. The records in this case do not strike at the Complainant’s more intimate self.

[52] Information that is not highly sensitive or highly personal will attract a lesser degree of privacy: J.J., at paras. 45, 53.

[53] Moreover, the stated relevance of the records does not purport to introduce sexual assault myths and stereotypes. Nor would their use distort the outcome of the case: J.J., at paras. 130, 132.

[54] The danger of prejudice to the administration of justice in admitting the records is low, as the Complainant has a minimal privacy interest in the records, the records do not advance any sexual assault myth or stereotype, and they will have minimal impact on the Complainant’s dignity. In contrast, preventing the Applicant from making use of these records would prejudice the proper administration of justice by unduly constraining his right to make full answer and defence. I find that trial fairness would be better preserved if they are permitted to be adduced.

[55] I deem the records to be admissible for use at trial, for the purposes set out by the defence.

[56] The application is therefore granted, and the defence is permitted to adduce the records at trial for the purposes described above. For greater clarity, and given the additional arguments raised by the Crown concerning the records, the s. 278.92 concerns are definitively addressed by this application, so long as the purposes for which the records may later seek to be tendered align with those set out in this Application.

Released: August 6, 2024 Signed: Justice Mainville