ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3676/10
DATE: 2012-01-12

B E T W E E N:

Her Majesty the Queen

Patricia Vadacchino, for the Applicant

Applicant

• and -

Antonio Gigliotti

Ronald Charlebois, for the Respondent

Respondent

HEARD: January 9, 2012

The Honourable Justice J. R. Henderson

RULING REGARDING THE ADMISSIBILITY OF EVIDENCE

Introduction

[ 1 ] This is my ruling as to whether an application to the medical officer of health made by the complainant, S.S., to have the accused, Antonio Gigliotti, provide a blood sample for testing pursuant to the Mandatory Blood Testing Act , 2006, S.O. 2006, c.26 (hereinafter called the “ MBTA ”) is admissible evidence in this criminal proceeding.

[ 2 ] The charges before this court include an allegation that Gigliotti sexually assaulted S.S. by engaging in sexual intercourse with her without her consent. S.S. will testify that she reported the matter to Niagara Regional Police, and then she attended at St. Catharines General Hospital for a Sexual Assault Examination Kit (hereinafter called the “SAEK”) which was administered by a registered nurse.

[ 3 ] The SAEK involved, among other things, a physical examination of S.S., the taking of various swabs, blood samples, and urine samples from S.S. for medical testing, and the provision by the registered nurse of advice and information to S.S..

[ 4 ] Part of the information provided to S.S. was that she could apply, pursuant to the MBTA , to a medical officer of health to have Gigliotti provide a sample of his blood that would be tested for communicable diseases, including HIV, Hepatitis B and Hepatitis C, as defined in the MBTA . S.S. was also informed that if Gigliotti failed to provide a blood sample at the request of the medical officer of health, then the medical officer of health could refer the application to a Board for a hearing.

[ 5 ] After receiving this information, S.S. chose to make an application to the medical officer of health to have Gigliotti provide a blood sample. The Crown wishes to introduce evidence through the registered nurse and through S.S. that S.S. was informed that she could make this application to the medical officer of health, and that S.S. did in fact make the application pursuant to the MBTA .

[ 6 ] The Crown does not intend to introduce evidence as to whether Gigliotti agreed or refused to provide a blood sample at the request of the medical officer of health, nor does the Crown intend to introduce evidence with respect to a hearing of the application by the Consent and Capacity Board.

[ 7 ] Section 8 of the MBTA reads as follows:

“The results of an analysis done pursuant to a request made by a medical officer of health under section 3 or an order of the Board under section 5 are not admissible in evidence in a criminal proceeding.”

[ 8 ] The Crown submits that S.S.’s application to have Gigliotti provide a blood sample is admissible as part of the narrative of the case, and as evidence in support of S.S.’s credibility.

[ 9 ] Counsel for Gigliotti contests the admissibility of this evidence on the grounds that it is not relevant to any issue before the court; that the admissibility of this evidence would be prejudicial to Gigliotti; and that evidence of S.S.’s application in the absence of the results of the blood testing would be confusing for the jury.

Analysis

[ 10 ] In order for proposed evidence to be admissible, the evidence must be relevant to an issue at trial, and there must be no specific rule of law that renders the evidence inadmissible. Further, a trial judge has the discretion to exclude any relevant evidence where its prejudicial effect exceeds its probative value.

[ 11 ] Regarding relevance, I accept that the proposed evidence is relevant to the issue of whether or not there was sexual contact between Gigliotti and S.S.. That is, the proposed evidence tends to show that S.S. acted in a manner that was consistent with sexual contact having occurred between Gigliotti and S.S..

[ 12 ] I do not accept the submission that this evidence applies to the issue of whether or not S.S. consented to the sexual contact. Clearly, S.S.’s request for Gigliotti to provide a blood sample could reasonably be made by S.S. whether the sexual contact was consensual or nonconsensual. Therefore, I find that the proposed evidence is only relevant to the issue of whether or not there was sexual contact between Gigliotti and S.S..

[ 13 ] Further, I find that the primary purpose of the proposed evidence relates to the credibility of S.S.. Whether or not the sexual contact occurred is an essential issue in this case, and S.S.’s testimony will be direct evidence on this issue. However, the fact that S.S. applied to have Gigliotti provide a blood sample is evidence whose primary purpose is to bolster S.S.’s credibility such that her testimony that there was sexual contact would be accepted. In summary, this evidence is relevant to support S.S.’s credibility regarding the issue of whether sexual contact took place.

[ 14 ] Contrary to the position taken by the Crown, I do not accept the submission that the application for a blood sample is admissible as part of the narrative of the case. Evidence may only be introduced as part of the narrative where it is necessary in order to provide chronological cohesion to the testimony of the witness. See the case of R. v. F.(J.E.) (1993) , 26 C.R. (4 th ) 220 (OCA) at p. 235 . In the present case, at the time that S.S. made the request for a blood sample from Gigliotti the narrative of the case had been completed. That is, both the actus reus and the mens rea of the offence, if there was an offence, were over by the time S.S. made an application under the MBTA.

[ 15 ] As to whether there are any specific rules of law that render this evidence inadmissible, the difficulty for the Crown is that S.S.’s application for Gigliotti to provide a blood sample must be characterized as a prior consistent statement. That is, by making an application for a blood sample, S.S. is essentially making a statement after the incident occurred that repeats her allegation that the incident had occurred. If the application for a blood sample is not part of the narrative, then the application for a blood sample is a statement made after the event, prior to the trial, which is consistent with S.S.’s expected testimony at trial. This type of evidence is generally inadmissible as it constitutes a self serving statement made by a witness, the sole purpose of which is to strengthen the testimony of that witness.

[ 16 ] At common law, the Crown was permitted, pursuant to the doctrine of recent complaint, to introduce evidence that the complainant had made a complaint about the incident within a short time after it had occurred. See Sopinka, Lederman and Bryant, The Law of Evidence in Canada , 2 nd Edition, (Markham: Butterworths, 1999), at ss.7.21.

[ 17 ] However, a 1983 amendment to the Criminal Code of Canada did away with the doctrine of recent complaint. The present state of the law in respect of recent complaint is (1) there is no longer a presumption that a complainant is fabricating her testimony because the complainant failed to make a complaint at the first reasonable opportunity, and (2) the Crown may not lead evidence of a recent complaint by the complainant unless the accused raises an allegation of recent fabrication or lack of recent complaint. See R. v. O’Connor (1995) , 100 C.C.C. (3d) 285 (OCA) at paras. 38-40 .

[ 18 ] At this point in this trial, Gigliotti has not raised recent fabrication or lack of recent complaint as issues. Therefore, at this point in this trial the proposed evidence is not admissible.

[ 19 ] If, however, Gigliotti raises these issues during the cross-examination of S.S., or at any time during the trial, the admissibility of S.S.’s application for Gigliotti to provide a blood sample may be revisited.

[ 20 ] Given my finding that this evidence is inadmissible at this point, I will not weigh the probative value of the proposed evidence against its prejudicial effect. I acknowledge that this evidence has some probative value with respect to S.S.’s credibility as it relates to the issue of whether sexual contact occurred. I also accept that there may be some prejudicial effect because a jury may be inclined to conclude that there must have been a sexual assault simply because S.S. asked for a blood sample. Further, there could also be some unwanted confusion if the jury becomes aware that an application for a blood sample was made, yet the jury is not provided with the results of any blood tests.

[ 21 ] I will not weigh any of these factors for the purpose of determining the admissibility of the proposed evidence unless and until the door for the possible admission of the proposed evidence is opened.

Conclusion

[ 22 ] In summary, I find that the evidence of S.S.’s application for Gigliotti to provide a blood sample is inadmissible as it should be characterized as a prior consistent statement made by the complainant. This type of evidence is only admissible in a sexual assault trial if the accused raises the issues of recent fabrication or lack of recent complaint.

[ 23 ] Because Gigliotti has not raised these issues at this point in the trial, the proposed evidence is not admissible. The matter may be revisited later in the trial if circumstances change.

Henderson, J.

Released: January 12, 2012

COURT FILE NO.: 3676/10
DATE: 2012-01-12

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen Applicant - and – Antonio Gigliotti Respondent RULING REGARDING THE ADMISSIBILITY OF EVIDENCE Henderson, J.

Released: January 12, 2012