COURT FILE NO.: CR12-175
DATE: 20121218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Andrew Shatto for the Crown
H. Thompson for W.A.
- and -
D.W.
Jill Gamble, for the Defendant
Defendant
HEARD: December 14, 2011
REASONS FOR RULING ON
THIRD PARTY RECORDS APPLICATION
Conlan J.
INTRODUCTION
[1] Mr. D.W. stands charged with six criminal offences. Those charges are as follows.
HER MAJESTY THE QUEEN PRESENTS THAT D.W., between the 1st day of June 2004 and the 31st day of January 2008, at the Township of Southgate, Central West Region, did repeatedly commit a sexual assault on M.A., contrary to section 271 of the Criminal Code of Canada;
AND FURTHER, THAT D.W., between the 1st day of June 2004 and the 31st day of January 2008, at the Township of Southgate, Central West Region, did repeatedly for a sexual purpose touch M.A., a person under the age of fourteen years, directly with a part of his body to wit: his penis, contrary to section 151 of the Criminal Code of Canada;
AND FURTHER, THAT D.W., between the 1st day of June 2004 and the 31st day of January 2008, at the Township of Southgate, Central West Region, did repeatedly for a sexual purpose incite M.A., a person under the age of fourteen years, to touch directly a part of his body to wit: the penis of D.W., contrary to section 152 of the Criminal Code of Canada;
AND FURTHER, THAT D.W., between the 1st day of January 1988 and the 31st day of December 1994, at the Town of Mount Forest, Central West Region, and elsewhere in the Province of Ontario, did repeatedly commit a sexual assault on W.A., contrary to section 271 of the Criminal Code of Canada;
AND FURTHER, THAT D.W., between the 1st day of January 1988 and the 31st day of December 1994, at the Town of Mount Forest, Central West Region, and elsewhere in the Province of Ontario, did repeatedly for a sexual purpose touch W.A., a person under the age of fourteen years, directly with a part of his body to wit: his penis, contrary to section 151 of the Criminal Code of Canada;
AND FURTHER, THAT D.W., between the 1st day of January 1988 and the 31st day of December 1994, at the Town of Mount Forest, Central West Region, and elsewhere in the Province of Ontario, did repeatedly incite W.A., a person under the age of fourteen years, to touch directly a part of his body to wit: the penis of D.W., contrary to section 152 of the Criminal Code of Canada.
[2] The complainant, M.A., is the granddaughter of Mr. D.W.. The complainant, W.A., is the daughter of Mr. D.W..
[3] Mr. D.W. has brought a third party records Application to obtain all treatment records for W.A. that are in the possession of the Homewood Health Centre. This is the Court’s decision on the first stage of the Application, that is, whether the said records ought to be produced to the Court for review.
[4] W.A., through her counsel Mr. H. Thompson, opposes the Application at this first stage. The Crown takes no firm position either way but has made some helpful submissions on what analysis the Court ought to undertake.
[5] This Application was argued at court in Owen Sound on December 14, 2012. The Court reserved its decision. A publication ban has been ordered on the names and identities of the complainants. The hearing was held in camera.
THE LAW
[6] Mr. D.W. bears the burden of proving on balance that the records are likely relevant to an issue at trial or to the competence of a witness to testify, and that production of the records is necessary in the interests of justice: subsections 278.5(1)(b) and (c) of the Criminal Code of Canada.
278.5 (1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1), the judge is satisfied that
(b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and
(c) the production of the record is necessary in the interests of justice.
[7] The Court shall consider the salutary and deleterious effects of the determination on the right of Mr. D.W. to make full answer and defence and on W.A.’s right to privacy and equality. In particular, I shall consider these factors under subsection 278.5(2) of the Criminal Code of Canada.
(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account:
(a) the extent to which the record is necessary for the accused to make a full answer and defence;
(b) the probative value of the record;
(c) the nature and extent of the reasonable expectation of privacy with respect to the record;
(d) whether production of the record is based on a discriminatory belief or bias;
(e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates;
(f) society’s interest in encouraging the reporting of sexual offences;
(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and
(h) the effect of the determination on the integrity of the trial process.
[8] The decision of Justice Whitten in Regina v. Johnston, [2002] O.J. No. 5549 (S.C.J.) bears some similarities to the matter before this Court. I thank counsel for W.A. for providing the decision to me. Mr. Johnston was charged with sexual offences against four young complainants. The accused brought an Application for production of therapeutic treatment records regarding the main complainant. The decision of Whitten J. includes these observations which make reference to the cross-examination of the complainant at issue by Mr. Johnston’s counsel at the Preliminary Inquiry.
65 Counsel for Mr. Johnston posed a series of questions with respect to the treatment J.B. had received over the years. J.B. testified she had not participated in hypnosis, nor had she been involved in memory regression (explained as working back through your memory). She had not engaged in imaging. She was asked the following with respect to shock treatment, and gave the following answers:
"Q. Did that electro-shock have any impact on your memory?
A. The only impact it had on my memory was anything that occurred during the shock treatments. It had nothing, no effect on anything prior to that or in between the two sessions.
Q. And what was the impact the electro-shock had upon your recollection of these events?
A. It didn't change my recollection of these events."
(Preliminary Hearing page 174, line 1017, Transcript, page 177, line 24-29, page 178, line 20-23)
66 J.B. was asked a series of questions with respect to her memory generally.
"Q. Is your recollection of these events today as clear as it was in 1963 or 1964?
A. Yes, I believe it is.
Q. So you believe that which you were able to recall today, you weren't in a better position to recall it in 1963 or 1964?
A. Probably in 1963 or 1964 I was better able to say the date, the time, but the events are still the same."
67 Asked if her memory had faded, J.B. stated that it had not. It was as good as it had ever been.
(Preliminary Hearing page 179, line 243, Transcript, page 180, line 1-4)
68 Her decision in 1997 to go and look for Mr. Johnston was a decision that she had made on her own, without the benefit of counselling or therapists supporting her. No one had ever suggested to her that it would be part of her therapy to go find him and confront him. She stated, "I had lived with it long enough. Lust couldn't fight my depression and my suicidal feelings any longer. I had to try and do something."
(Preliminary Hearing page 220, line 2126, Transcript, page 224, line 23-28)
[9] Justice Whitten ultimately dismissed the Application by Mr. Johnston at the first stage. The Court concluded that Mr. Johnston had failed to establish that the records sought to be produced were “likely relevant”.
THE EVIDENCE
[10] The two principal items of evidence on this Application, which I have read in their entirety, are the transcript of W.A.’s police interview on 15 November 2011 and the transcript from the Preliminary Inquiry held on 13 June 2012.
[11] The following is the most relevant excerpt from the transcript of W.A.’s police interview.
W.A.: She’s been my big sister since I was (pause) twelve (12) or thirteen (13). I’m not really good with time frames.
Dickey: Sure.
W.A.: Just, due to some treatments that I’ve had done. My time frames are kinda …
Dickey: Okay.
W.A.: Like, I can’t pin dates, I can’t like, very clearly, so I’ll be upfront about that right now.
Dickey: Okay.
W.A.: I can’t.
Dickey: I appreciate that.
W.A.: Like my mind just doesn’t allow me to … some things I can, but since I had shock treatment there at therapy.
Dickey: Yeah.
W.A.: That has taken a lot of my memory … a lot of my memory I still don’t have back.
Dickey: Yeah.
[12] The following is the most relevant excerpt from the transcript of defence counsel’s cross-examination of W.A. at the Preliminary Inquiry (pages 86 through 90).
Q. So, on November 15th, 2011, it’s fair to say you didn’t have a memory of what you were wearing at the time of this incident in Ireland, is that fair to say?
A. I, I wouldn’t say that’s really fair to say. I would say that maybe at the time I did my statement I wasn’t really – I was more concerned about Megan. I was more concerned about a lot of other things. I didn’t really know exactly – my mind was pretty much boggled that day is what I would say.
Q. So when you told Constable Dickey that you wouldn’t even know what you were wearing at the time, what did that mean? Was that you don’t remember or you’re just too confused to talk about it or what, what does that mean, I wouldn’t even know?
A. I think I was just – the whole day was just stressful just being there. I was stressed out maybe just didn’t even think at the moment. Like I wasn’t really, at that time maybe couldn’t think and I was trying to just do my statement and go.
Q. And you were under oath obviously, at the time …
A. Yes.
Q. … you were speaking …
A. Yes.
Q. … to Constable Dickey and you were certainly trying to be truthful, correct?
A. Yes.
Q. So, when you couldn’t tell him what you were wearing, I wouldn’t even know …
MR. SHATTO: Sorry, I am just going to rise, I don’t think …
MS GAMBLE: It wasn’t under oath?
MR. SHATTO: It wasn’t a sworn videotaped statement.
MS GAMBLE: Okay, I apologize.
MR. SHATTO: Just for the record. I don’t think it was.
MS GAMBLE: Q. Okay. So you were certainly trying to be truthful though …
A. Yes.
Q. … to Constable Dickey correct?
A. Yes.
Q. And even if you weren’t under oath, everything you were telling Constable Dickey was the truth, is that correct?
A. Yes. Yes.
Q. You weren’t trying to lie to Constable Dickey?
A. No.
Q. Or make anything up?
A. Absolutely not.
Q. So, when did this memory start to fill in about all this major detail you were able to tell us about today about this incident in Ireland? When did that start to come to you?
A. Well, I’ve had to sit back pretty much my whole life and hide everything inside of me. Not being able to really talk to anybody about it. It’s not like I had supportive family members. Didn’t really have anybody to talk to and to come out and, you know I’ve had time to sit by myself and maybe memory that I didn’t have then I have now.
Q. So you’re saying your memory’s improved since November 15th, 2011?
A. I wouldn’t say it was, it was improved. I’ve just got more, like my head’s – I’ve had time to be clear. Like I’ve had time to not, it was a very stressful day being there with my daughter. It was very stressful that I had to come forward period. Like, I was just stressed about the whole thing so when I did my statement I, I absolutely told the truth about everything I could think of at that time and maybe at that time I could not sync (sic) of what I was wearing in that moment of time.
Q. And there’s a lot of detail that you didn’t tell Constable Dickey that again you filled in today about that incident in Ireland. Is that fair to say?
A. That’s fair to say but I’ve also asked to make an additional video statement and I didn’t get that request so I have no choice but to tell the truth today and tell you what I know.
Q. Now you talked a little bit again to Constable Dickey about some treatment that you had. Did you have some electric shock treatment?
A. That would be correct.
Q. And when did you undergo those treatments?
A. In 2010.
Q. And that was under a doctor’s care and doctor’s order?
A. I was in Homewood Health Centre for three and a half months.
Q. And how many electric shock treatments did you receive while at Homewood?
A. Does that really matter, like does it matter if I had twenty or if I had forty or if I had one?
Q. It seems to me in your statement to Constable Dickey that the electric shock treatments may have affected some memory or could impact your memories and that is why I am asking.
A. It could impact your memory and it’s temporary. So, at the time if my memory was affected at the time that does not mean that my memory is gonna (sic) be affected now. And when you’re molested or somebody hurts you maybe you don’t remember it right in that moment of time but things come to your head as they come to your head. I don’t think you really have any control over that, so if you’re asking me if I was, like uncapable (sic) of remembering what was going on around me or what has happened in my life that’s not the case. I knew exactly what was going around me, like I knew exactly what was going on.
Q. So are you indicating though at the time you were receiving electric shock treatments in 2010, your memory might have been affected for these periods of time?
A. While I was in hospital, certain parts of my memory was affected that was short-term memory.
Q. And you’re lead to believe that by what the doctors have told you – that short-term memory could have been affected, or how are you coming to that conclusion?
A. I watched a video about it before I even did it. I had, my parents were invited to come to the interview which they refude (sic) to come, refused to come to, to help me understand what shock treatment therapy was. I was at the end of my rope. I had nothing left to do. It was either shock treatment or my life. So, I had no choice but to take the shock treatment therapy. I went on my own. I had no support – nobody there to say you shouldn’t do it, you should do it. So I did what I thought I knew was best for me and it just happened that it didn’t work for me.
Q. And what do you mean it didn’t work?
A. It’s supposed to help you be able to get rid of certain, the way my mind works, I guess, and that didn’t happen. I’m not a doctor, I can’t speak for the psychologist, I can’t speak for the people who done the shock treatment but whatever it was supposed to do, it did not do.
Q. Now you talked a lot to Mr. Shatto about incidents that occurred in Grey county so around the Mount Forest area …
A. Yeah.
Q. … and you stated that none of those incidents occurred at your home, is that correct?
A. What incidents would, like can you …?
Q. Well you’ve talked a lot about incidents, you didn’t go into detail …
A. Well we lived …
Q. … but incidents with your father touching you, you touching him and I believe you said they almost all happened in the vehicle …
A. They did all happen in the vehicle.
ANALYSIS AND CONCLUSION
[13] This case is not the same as that which confronted Justice Whitten. The complainant at issue there was clear that the electro-shock treatments had no effect on her memory of anything prior to the treatments and no impact on her recollection of the material events underlying the charges.
[14] Considering as a whole W.A.’s comments to the police officer in her statement and her testimony at the Preliminary Inquiry, it is clear that the treatments that she received affected her memory of time frames and dates; and that the shock treatments have taken a lot of her memory, even if that impact was temporary and limited to short-term memory.
[15] The memory of W.A., and the reliability of her memories which form the basis of her allegations against Mr. D.W., are to be the key issues at this trial. Given what W.A. told the police officer as qualified by her testimony at the Preliminary Inquiry, I am satisfied that the defence has established on balance that the records being sought are likely relevant to an issue at trial. This is not a case where the defence simply asserts that the records being sought may be relevant generally to the credibility of the complainant – that is insufficient.
[16] Further, I am satisfied that Mr. D.W. has established on balance that production of the records is necessary in the interests of justice, at least at this first stage of production to the Court for review. The balancing of the factors listed in subsection 278.5(2) is not akin to a scientific experiment. There is a good deal of discretion involved. Suffice it to say that I do not take lightly W.A.’s privacy interests in these records and her right to be treated with dignity and respect. Although she volunteered the information about the shock treatments to the police officer, the fact is that she strongly opposes any invasion of her privacy which will inevitably result from even the Court reviewing the records in question. I conclude, however, that Mr. D.W.’s right to make full answer and defence and the probative value of the records being sought outweigh the other factors in this particular case.
[17] Despite the able arguments of W.A.’s counsel, Mr. Thompson, the Application is granted at this first stage. Homewood Health Centre has already deposited with the Court, in response to the subpoena issued by the defence, the records being sought. This Court orders that those records currently sealed shall be unsealed and submitted to me for review in accordance with subsection 278.6(1) of the Criminal Code of Canada. Once I have completed that review, all counsel will be contacted to schedule a further court attendance to deal with the second stage of the Application, that is, whether all or part of the records ought to be produced to the accused.
Conlan J.
Released: December 18, 2012
COURT FILE NO.: CR12-175
DATE: 20121218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
D.W.
Defendant
REASONS FOR RULING ON THIRD PARTY RECORDS APPLICATION
Conlan J.
Released: December 18, 2012