SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR 10-10000700-00
DATE: 20121002

RE: R. v. Paul Gibson

BEFORE: M.A. Code J.

COUNSEL:
Karen Simone, for the Crown
Linda Choi, for the Defence

HEARD: September 28, 2012

ENDORSEMENT

[ 1 ] This is a ruling concerning the admissibility of certain documentary evidence tendered by the Crown at a dangerous offender hearing. I convicted the accused Paul Gibson (hereinafter, Gibson) of sexual assault and sexual assault causing bodily harm in relation to two young boys after a trial by judge alone. My written reasons for judgment, dated February 13, 2012, are found at 2012 ONSC 900 .

[ 2 ] Over seven months have passed since the date of conviction. This delay has been caused by the Crown seeking and obtaining the Attorney General’s consent to a dangerous offender Application, by the Crown’s psychiatrist (Dr. Pallandi) then assessing the accused and preparing a report and finally, by the defence retaining a second psychiatrist (Dr. Woodside) to assess the accused and prepare a further report. We are now ready to set a date for the hearing.

[ 3 ] In order to schedule only the amount of time needed for the hearing, and no more, I am ruling in advance on the admissibility of the Crown’s documentary evidence. The documents have all been filed and marked as Exhibits 3 and 4 in the course of various remand appearances. In addition, the documents have been considered by the Crown’s expert and they will be considered by the defence expert who is now conducting his assessment of the accused.

[ 4 ] I am satisfied that the documents are all admissible. They were obtained by the Crown from six agencies and can be summarized as follows:

(i) Between July 1990 and February 1992, the Children’s Aid Society of Toronto (the CAS) kept a file on Gibson’s family. Gibson was fourteen years old when the file was opened. He had been the subject of certain complaints, and one criminal charge, alleging sexual misconduct with other children. The one criminal charge was apparently dismissed at a court proceeding and the CAS never sought or obtained any supervisory orders relating to the family. The parties agree that these records are not admissible to prove the fact of any sexual misconduct by Gibson as none of these early complaints ever resulted in a conviction and the alleged sexual misconduct cannot otherwise be proved to the requisite criminal standard. See: R. v. Lewis (1984), 1984 2027 (ON CA) , 12 C.C.C. (3d) 353 (Ont. C.A.); R. v. Pike (2010), 2010 BCCA 401 () , 260 C.C.C. (3d) 68 (B.C.C.A.); R. v. S. (C.L.) (1999), 1999 2984 (ON CA) , 133 C.C.C. (3d) 467 at paras. 26-31 (Ont. C.A.). The Crown seeks to rely on the CAS records only to show the dynamics of the Gibson family at the time and to show that counseling was made available to Gibson and his response to it;

(ii) The program that Gibson was referred to by the CAS was known as “SAFE-T” (Sexual Abuse: Family Education and Treatment Program) and it was run by the Thistletown Regional Centre of the Ministry of Community and Social Services. They kept a file on Gibson, from January 1991 until April 1991, concerning his response to the program that they offered. Gibson would have been fourteen years old at the time;

(iii) Gibson’s first Youth Court conviction was on October 31, 1991, for carrying a concealed weapon. He was fifteen years old and was placed on probation for nine months. As a result, the Ministry of Community and Social Services kept a file on Gibson, concerning his probation, until the order expired on July 31, 1992. By the end of this period, Gibson would have just turned sixteen years old;

(iv) Gibson’s more significant Youth Court convictions were entered on November 25, 1993. He was now seventeen years old and was sentenced to nine months open custody and was placed on probation for fifteen months in relation to three counts of invitation to sexual touching and one count of abduction of a child under age fourteen. The charges appear to have been laid in March 1993, when Gibson was sixteen years old, and an older adult co-accused was also charged. The probation order required Gibson to “continue treatment and counselling” and it referred to an existing program and report from the J.D. Griffin Adolescent Centre that appears to have been filed with the Court at the time of sentencing. The Ministry of Correctional Services kept a file on Gibson relating to this second period of probation;

(v) During the nine month period of open custody, from November 25, 1993 until August 24, 1994, Gibson was referred to the Hincks-Dellcrest Centre of the Ministry of Correctional Services. They kept a file which includes a large number of “psychiatric notes” from the senior psychiatrist at the Centre, Dr. Sowa. Gibson was eighteen years old at the end of this open custody period of his sentence;

(vi) As noted previously, Gibson had attended a program at the J.D. Griffin Adolescent Centre in late 1993, while awaiting trial and sentencing on the various charges that he was facing. They kept a file on him which includes two “assessment reports” from social workers named Arlene Sager and Chris Brown. It appears that they continued to see Gibson during 1994, while he was serving his nine month open custody sentence, as their reports are both dated in 1994.

[ 5 ] The above records represent Gibson’s only prior contacts with the criminal justice system or with any agencies that have provided him with counselling or with psychiatric treatment. The present offences, on which he awaits sentencing, were committed in the summer and fall of 2009. At that time, Gibson was thirty-three years old. He is now thirty-six years old. It can be seen that there is a fifteen year gap between 1994, when Gibson completed his only previous custodial sentence, and 2009 when the present offences were committed.

[ 6 ] I am satisfied that all of the above documentary records tendered by the Crown are admissible. They are clearly relevant to the dangerous offender Application as they provide evidence of Gibson’s only prior correctional history, his only prior treatment history, and his only prior record of criminal conduct. Although the records are hearsay, they are admissible at a sentencing hearing. The dangerous offender Application is a sentencing hearing and it is the rules of evidence relating to sentencing that govern. See: R. v. Wilband , 1966 3 (SCC) , [1967] 2 C.C.C. 6 at 9-10 (S.C.C.); R. v. Jones (1994), 1994 85 (SCC) , 89 C.C.C. (3d) 353 at 394, 396 and 398 (S.C.C.); R. v. Johnson (2003), 2003 SCC 46 () , 177 C.C.C. (3d) 97 at para. 23 (S.C.C.).

[ 7 ] The common law allows hearsay to be admitted at a sentencing hearing, provided it is “credible and trustworthy” and provided the Crown takes on the burden of proving any aggravating factors that are disputed to the normal criminal standard of proof beyond reasonable doubt. See: R. v. Gardiner (1982), 1982 30 (SCC) , 68 C.C.C. (2d) 477 at 514 (S.C.C.); R. v. Albright (1987) , 1987 26 (SCC) , 37 C.C.C. (3d) 105 at 111 (S.C.C.). These common law rules were subsequently codified in ss. 723 and 724 of the Criminal Code .

[ 8 ] I am satisfied that the records tendered by the Crown are “credible and trustworthy” in the sense that they were prepared contemporaneously by professionals who were carrying out important and responsible public duties. See: R. v. Gregoire (1998), 1998 17679 (MB CA) , 130 C.C.C. (3d) 65 at paras. 53 and 62-3 (Man. C.A.); R. v. Piché (2006), 2006 ABCA 220 () , 210 C.C.C. (3d) 459 at paras. 9-20 (Alta. C.A.). There may be certain parts of certain records that are less reliable and that are not entitled to any weight. For example, police synopses of the offences that Gibson was convicted of in 1993 form part of the correctional records. The facts set out in a police synopsis at the time of arrest are often not reliable and do not always reflect the facts that are later proved at trial or admitted on a guilty plea. See: R. v. L. (J.K.) (2012), 2012 ONCA 245 () , 290 O.A.C. 207 at paras. 88-94 (Ont. C.A.); R. v. Ziegler , 2012 BCCA 353 at paras. 61-2 and 76 . The Crown accepts this proposition and only relies on the police synopses to establish the dates of the offences and the dates of Gibson’s arrest and not to prove the facts of the offences. I am satisfied that the police synopses are reliable for these limited purposes.

[ 9 ] Ms. Choi does not dispute the admissibility of many of the records. She mainly attacks their weight. She agrees that the two experts, who will both testify at the sentencing hearing, can refer to the records and can indicate what weight they have attached to the records. Her only real concerns, that relate to admissibility in her submission, are that the CAS records not be used to prove earlier sexual misconduct by Gibson in 1990 and that the authors of some of the assessments made of Gibson in 1993 and 1994 be made available for cross-examination. The former point, concerning the limited use of the CAS records, is conceded by the Crown, as I have already noted earlier in these reasons. The latter point, concerning the alleged need to produce some of the authors of the 1993 and 1994 assessments, is provided for in certain circumstances both at common law and pursuant to s. 723(5). It is not a point that relates to the admissibility of the documents. In R. v. Albright , supra at 114-115, Lamer J. (as he then was) gave the unanimous judgment of the Court and held that in cases where an admissible hearsay document’s “accuracy is seriously put in issue, it would be incumbent upon the Crown to call whomever signed the [document] and make him or her available for cross-examination by the accused”. Section 723(5) of the Criminal Code similarly provides that “hearsay evidence is admissible at sentencing proceedings, but the court may, if the court considers it to be in the interests of justice, compel a person to testify”.

[ 10 ] I will determine, at the sentencing hearing, whether the accuracy of the 1993 and 1994 assessments has been “seriously put in issue” and whether it is “in the interests of justice” to have the Crown produce their authors for cross-examination, once I have heard all of the evidence that will be called and once I have read the written arguments (or facta) to be filed by the parties prior to the hearing.

[ 11 ] For all these reasons, the documentary records tendered by the Crown in Exhibits 3 and 4 are admissible at the sentencing hearing. I have made no findings, at this stage, as to the weight of the documents which all relate to a time period when Gibson was age fourteen to eighteen.

M.A. Code J.

Date: October 2, 2012