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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. M.G., 2024 ONCJ 666

DATE: 2024 12 18

COURT FILE No.: 23-48101907

Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

MG

Before Justice Cidalia C.G. Faria

Heard on December 13, 2024

Response to Motion for Directions on 278 released on December 18, 2024[^1]

Seeta Scully......................................................................................... counsel for the Crown

Anne Marie Morphew.............................................................. counsel for the accused MG

Faria J.:

I. Background

[1] On November 18, 2024, the 3-day trial of MG on two counts of sexual assault and one count of assault against his former wife, LSB, began.

[2] LSB was being cross-examined on details of an alleged 2006 sexual assault included in her direct examination, that were not included in her statement to police in March 2023. Her response to these questions referred to having “recovered” memories when she went to therapy after she provided her police statement.

II. Issue

[3] Is MG required to make a s. 278 Criminal Code application to cross-examine LSB on her evidence that she recalls more details about the 2006 sexual assault allegation because she went to therapy after providing a police statement?

III. Legal Principles

Legislation

[4] As both parties make submissions as to whether the s. 278 regime applies to the case at bar, it is helpful to provide the legislation referred to.

[5] The definition of record:

278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

[6] Production of record is governed by:

278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused 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 …… 271,

[7] The application for production is governed by:

278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried.

[8] The process to produce records in the possession of the accused relating to the complainant is set out in ss. 278.92 to 278.94.

IV. Position of the Parties

[9] In this case, both parties agree that any records, if they exist, and held by LSB’s therapist are records for the purpose of s. 278, and that LSB has a reasonable expectation of privacy in those records.

[10] Both parties also agree to the obvious, which is that the defence does not have possession of those records.

[11] As MG does not possess LSB’s therapeutic records, nor seeks production of her therapeutic records, it is his position the s. 278 regime does not apply in these circumstances.

[12] Instead, MG filed a Motion for Directions regarding 9 separate questions/areas he seeks to cross-examine LSB regarding her evidence that she “recovered” memories. MG submits the principles of relevance, materiality, and admissibility apply to the determination of the issue.

[13] MG further submits the principles outlined in Mills[^2] should inform this court’s assessment as the accused’s right to full answer and defence is placed in direct or indirect competition with a person’s reasonable expectation of privacy.[^3]

[14] The Crown submits the evidence MG seeks to adduce via the proposed cross-examination questions is the content of LSB’s therapeutic records, therefore a s. 278 application is required. She further submits that without a s. 278 application, MG would be violating LSB’s expectation of privacy in her therapeutic records.

V. Evidence

[15] During cross-examination LSB responded to questions that her evidence-in-chief contained more details about the 2006 allegation of sexual assault than her statement to police on March 1, 2023, as follows[^4]:

• LSB testified “I had to go back to therapy and my therapist walked me back through those very difficult images so I could piece some of it together.”

• LSB testified “After I spoke to the detective and I had to remember the facts, I went back and had a few sessions with my former therapist, and she helped me to go back to those moments and recover some of the memories.”

• She attended 3 or 4 sessions.

• She provided the name of the therapist.

• She described the designation of the therapist as a “psychologist”.

VI. Analysis & Findings

[16] The 9 specific questions the defence motion for direction seeks to ask are:

a. The number of counselling sessions.

b. The dates and duration of the counselling sessions.

c. The nature or type of counselling (i.e.: hypnosis, cognitive behavioural, one-on-one, group etc.)

d. How LSB recovered memories (i.e.: piecemeal, all at once, triggered by something, a flashback).

e. The role of the counsellor in recovering the memories (i.e.: were questions being asked; suggestions made, etc.).

f. Whether the recovered memories were consistent or changed over sessions or time.

g. The purpose of aiming to recover memories and details considering her testimony that she needed the “facts”.

h. Whether LSB made any notes or recordings of her recovered memories.

i. Whether LSB discussed her recovered memories with anyone else.

[17] During oral argument, the parties agreed the defence may ask the first two questions, (a) and (b) and the last two questions, (h) and (i) during cross-examination. These questions elicit evidence that would be permitted to establish a foundation to make a s. 278 application in any event.

[18] After further discussion, the parties also agreed that area (c) could be pursued via the following three more specific questions:

• Was your therapy group therapy or one-on-one?

• What kind of counselling did you receive if you know the name?

• Was it hypnosis?

[19] The defence withdrew its request to ask question (g) about the purpose of aiming to recover memories.

[20] The parties then ultimately requested the court provide direction on the remaining 3 areas of proposed cross-examination, namely, how LSB “recovered” her memory, the role of her therapist in that “recovery”, and whether these memories were consistent or changed over time.

[21] There is a distinction between the facts surrounding the context of a record, and the content of a record. The former is permitted to elicit the foundation to decide if a records application will be made, the latter is not permitted without a s. 278 application.

[22] The Crown is correct the defence cannot be permitted to circumvent the Criminal Code screening process by eliciting the content of records via cross-examination that it has not sought to obtain through a screening process.

[23] The Defence is also correct that the principles of the accused’s right to full answer and defence must be balanced with a witness’ reasonable expectation of privacy in her records when a court determines what is permissible cross-examination of that witness. MG is entitled to understand his position so as to ascertain whether to make a 278 application or not.

How LSB recovered her memories

[24] MG cannot be permitted to ask “how” LSB “recovered” her memories. To do so, would be to elicit details about the process of therapy, which, likely necessarily includes content of the therapeutic treatment.

[25] However, given that LSB used the word “recovered”, and the word can have different meanings in different contexts, MG is entitled to understand what this word means to LSB. The answer to that question provides no content of the therapy but does provide necessary information to MG’s determination of whether to make a s. 278 application. Counsel for MG may ask LSB:

You testified you “recovered” memories of the sexual assault of 2006 after your statement to police during therapy. Without telling the court what you did or did not say, what you did or did not do, during therapy, are you able to explain to the court what the word “recovered memory” means to you?

The Role of the Therapist

[26] Although the role of a therapist may reflect the context of a record, or how a therapeutic record is created, to ask what role a therapist played may elicit the content of the record. Therefore, neither an open-ended question nor specific suggestions are appropriate.

[27] Instead, MG may seek to elicit what LSB’s testimony means to her. Counsel may ask LSB:

You testified your therapist “walked you back” through difficult memories. Without telling the court what your therapist said or did, what does the term “walk you back” mean to you?

Whether the recovered memories were consistent, or changed over sessions or time

[28] The substance and purpose of this question requires LSB to testify directly about the content of her therapy and elicits what LSB did or did not say, when she said what, and when she recalled what over the course of her therapy.

[29] The answers to this question in cross-examination would be eliciting the content of highly personal therapeutic records. This question cannot be asked with out embarking on a s. 278 application.

VII. Conclusion

[30] For the reasons stated, I find MG is permitted to cross-examine LSB on what she means by her use of the term “recovered memory” and being “walked back” without a s. 278 application.

Released: December 18, 2024

Signed: Justice Cidalia C. G. Faria

[^1]: Oral reasons were read to the parties which included more repetition than these written reasons. The parties were informed that it is these written reasons that govern.

[^2]: R. v. Mills, [1999] 3 SCR 688

[^3]: R. v. E.B. 2002 23582 (ON CA), [2002] OJ. No. 75 (C.A.) ap paras. 23, 29.

[^4]: A transcript of the evidence was not provided to the court. Counsel for the Defence ordered the DRE oral tape of the proceedings to obtain these quotes, the Crown did not contest these quotes, and these quotes are substantively similar to the notes taken by the court.