Her Majesty the Queen v. Abdalla Abdulkadir Musse, 2012 ONSC 6097

COURT FILE NO.: 0105/12

DATE: 20121026

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Rochelle Liberman, for the Crown

Susan Chapman, for the Complainant

Respondent

• and -

ABDALLA ABDULKADIR MUSSE

Marietta Hristovski, for the Defendant/Applicant

Applicant

HEARD: October 22, 2012,

at Toronto, Ontario

Michael G. Quigley J.

Reasons For Ruling

Re: Section 278 Third Party Records Application

[1]

Introduction

The accused, Abdalla Musse, stands charged with sexual assault. At the commencement of his trial on Monday, October 22, 2012, he brought this application under section 278.1 of the Criminal Code for an order disclosing records of the Toronto Police Services relating to the complainant, S.M..

2In particular, the applicant seeks copies of occurrence reports that are in the possession of the Toronto Police Service. Since 2007, there were several occurrence reports prepared by the Toronto Police Service relative to S.M.. The applicant claims that those records are probative of issues in this trial, namely, whether the complainant is credible and reliable. As such, the defendant brings this application for the disclosure of those third-party records claiming that it is necessary that the applicant have access to those records in order to be able to make full answer and defence, and to have a fair trial.

3At the preliminary inquiry that was held on February 17, 2012, the complainant made reference in her evidence to an incident where she alleged that she was found “not criminal responsible”. She testified at the preliminary inquiry that she was charged for slashing her neighbour’s tires, a person who she claimed was abusing her. She also made reference in her testimony to another incident where she said she was found not guilty of something because of self-defence. On this application, the applicant seeks an order of the court pursuant to section 278.2 (1) of the Code to have access to the police occurrence reports that are alleged to be in the hands of the TPS in relation to the complainant's 2009 finding of being not criminally responsible.

[4]

Factual Background

In this case, the complainant alleges that she attended a house party in the City of Toronto in the early morning hours of April 16, 2011 where she met the applicant. According to her evidence, at about 03:30 in the morning, she accepted a ride home from the applicant and from some other males who she did not know. She asked to be dropped off in the area near where she lived, but the applicant told her instead that they were going to carry on to where he lived. Upon reaching his residence, he allegedly led her to the basement of the apartment, and that is where the initial sexual assault allegedly took place.

5Then it is claimed that the complainant left that basement apartment, followed by the applicant and that they shared a cigarette out on the porch. At that time, the accused gave S.M. a hug that led to a further unwanted sexual contact. Finally, S.M. attempted to flee but the applicant is alleged to have pursued her into an adjacent field, brought her down to the ground and continued to sexually assault her on the ground in that field.

6He then left. She called the police on 911. She was picked up by a police cruiser and taken to a police station where she gave a video statement to the police very soon after the occurrence is alleged to have occurred, but it took the police some time to locate the accused. He was not arrested until August 20, 2011.

[7]

Legal Framework

The rules outlined in the treatment of applications for third-party records relating to complainants in sexual assault are laid out in sections 278.1 through 278.8 of the Criminal Code. Section 278.3(3) requires that an accused make an application in writing and have provided both particulars identifying the record that the accused seeks to have produced, the name of the person who has possession or control of the record and the grounds upon which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify. In such cases, the sections shift the burden of proof to the accused to show that the disclosure of the records sought is indeed in the interests of justice: see R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 (S.C.C.). In doing so, Parliament has attempted to balance the privacy interests and rights of the complainant and the accused's right to make full answer and defence.

8Ms. Chapman appeared as counsel for S.M. to oppose the defendant’s third-party records application. She observes that the onus is on him to establish the likely relevance of the records in question. S.M. was asked if she had ever been diagnosed with a mental disorder and her answer was no. However, as Ms. Chapman observed, even if there were such a diagnosis, it would be incumbent upon the applicant to put forward some evidence to establish that the diagnosis was one with the potential to undermine the credibility or reliability of the complainant, and no such evidence was advanced.

9The issue on this application is whether the applicant has established that the TPS occurrence reports that he seeks are likely to be relevant to an issue at trial, and whether or not the production of such records is necessary in the interests of justice. Of great importance to that question are the limitations that are set out in section 278.3(4).

10That section stipulates a number of grounds which are insufficient on their own and as bare assertions by an accused, to establish that the records sought to be obtained are of likely relevance to an issue at trial or to the competence of a witness to testify. Eleven separate grounds are stipulated. Three are particularly relevant in this case. They are subsection (d), that the record may disclose a prior inconsistent statement of the complainant or witness; subsection (e), that the record may relate to the credibility of the complainant or witness; and subsection (f), that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling.

11In this case, the applicant’s counsel relies on the decision of our Court of Appeal in R. v. Batte, 2000 5751 (ON CA), [2000] O.J. No. 2184 (C.A.) to support her view that the records sought relate directly to the reliability and credibility of the complainant’s evidence and fall well within the exception set up by Parliament and the judiciary. She says they cross the relevance threshold where they have “some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value”.

[12]

Analysis

However, I disagree with the defence fundamentally on this application. I acknowledge that the TPS occurrence reports might have some impeachment value in the hands of a skilled cross-examiner. They might be used to attack the credibility or the reliability of the complainant’s evidence on a theory that she has mental issues as allegedly established by a finding that she was not criminally responsible in the 2008 occurrence. Yet that impeachment purpose is impermissible when it is the sole purpose for which the third-party records are sought.

13The defence argued that the complainant’s reference to the prior occurrences as constituting two events rather than three is refuted by the existence of four separate Informations in which charges were laid against her. However, I reject this line of argument and that such a minor discrepancy could amount to a factual matter of sufficient relevance or likely relevance in this case that it would displace the prohibition on the introduction of third party records where sought solely for one of the three purposes enumerated above, or other prohibited purposes in s. 278.5. It is plain from her preliminary inquiry testimony that she has in mind and describes two separate occurrences that give rise to the charges, and it is plain that she groups them into two occurrences, not more, regardless of separate Informations that may have been created.

14More importantly, however, while the complainant may have been charged she does not have a criminal record. These matters have all been dealt with and are behind her. They do not constitute prior discreditable conduct upon which she can properly be subjected to cross-examination.

15At the first stage, likely relevance requires at a minimum that I be satisfied that there is a reasonable likelihood that the information is logically probative to an issue at trial or the competence of the witness to testify. However as our Court of Appeal has observed in R. v. Batte at para. 75:

The mere assertion that a record is relevant to credibility is not enough. An accused must point to some “case specific evidence or information” to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value.

16Initially, the applicant sought the production of certain clinical psychiatric and psychological records but, happily, that was abandoned during argument. It seems plain that the purpose for the request of that documentation related to the desire to explore the medical and psychiatric history of the complainant, clearly forbidden territory, or at least territory entitled to a heightened level of scrutiny under s. 278.3(4)(b) before production is permitted. That heightened level of scrutiny must be provided to preclude the exploitation of the so-called “twin myths” and stereotypes to drive applications for production of records in sexual assault cases: R. v. Mills, above, at paras. 90, 92 and 119.

17The same principle applies, in my view, relative to the TPS occurrence reports. It is difficult to see how those occurrence reports can pass the initial threshold of likely relevance when the complainant has testified that she has not been convicted of any offence that could provide an access portal through which such occurrence reports could be used as the framework for a credibility and reliability focused cross-examination of the complainant and her evidence on this matter. Equally importantly, however, is the fact that those matters occurred three years before this assault is alleged to have taken place.

18Ms. Chapman made reference to the decision of Justice Spies in R. v. R.L., [2007] O.J. No. 4095 (S.C.J.). In that case, at paragraphs 40 and following, Justice Spies considers whether records of arrests of the complainant, in that case under the Mental Health Act, were of likely relevance in the context of the case before her. At paragraphs 57 through 60, Justice Spies considers the likely relevance of such documentation at the first stage of the third-party records application such as this:

57. I turn then to the test for production of third-party records to the court, which at the first stage of the process is governed by s. 278.5(1) of the Criminal Code.

58. In my opinion these arrest records that should be treated in the same way as I dealt with the records concerning psychiatric, psycho-educational, neuropsychological or psychological records relating to the complainant's admission, assessment and treatment by various institutions referred to in paragraph (b) of the Amended Notice of Application.

59. In coming to this conclusion, I rely on the fact that the records may contain opinions and observations relevant to the treatment of the complainant, given the wording of s. 17 of the Mental Health Act. For the reasons already stated, I view the arrest records as part of the psychiatric records that resulted from any treatment that followed even though I recognize that these records remained in the possession of the police and did not formally become part of the complainant's medical records that followed these arrests. The complainant has a strong privacy interest in these records.

60. For the same reasons that I gave in connection with the complainant's psychiatric treatment and counselling records, I have concluded that the applicant has not persuaded me on the evidence before me that there is a reasonable possibility that the records of arrest under the Mental Health Act are logically probative to the complainant's diagnosis of Fetal Alcohol Syndrome and her credibility.

19The judge went on to reach the same conclusion relative to police occurrence reports that related to the complainant. The records in question were not connected to the investigation leading up to the particular prosecution. The question became whether or not those records were likely relevant to an issue at trial and whether the production of those records was necessary in the interests of justice. To the extent that those records demonstrated general bad behaviour on the part of the complainant, as in this case, the judge there had no evidence in front of her to show that that evidence was necessary in the context of the issues that were alive in the case before her. Further, and of importance in this case, given that certain of the records had been created some years before, they were most likely to be too remote in time to have any character that could be of assistance concurrently with the proceeding in front of her, to constitute a serious impairment of her current credibility, anymore than the 2008 occurrence reports can have such value here.

20In that case, the judge permitted certain of the records to move to the second stage of the third-party records application because there was a temporal nexus between the dates embraced within those records, and the date of the alleged offense. That was not the case here. There was no equivalent temporal nexus here.

[21]

Conclusion

For these reasons, I am not satisfied that the third-party records sought by the defence display the attributes of "likely relevance" that is necessary before they can be considered for production at the second stage of the third-party records application.

22The application is dismissed.

Michael G. Quigley J.