ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-40000013-0000

DATE: 20131121

BETWEEN:

HER MAJESTY THE QUEEN

Respondents

– and –

A.A.

Applicant

J. Andres Hannah-Suarez, for the Crown

Janet MacEachen, for the Complainants

Iryna Revutsky. for the Defendant

HEARD: October 15, 2013

Allen J. (oRALLY)

Rulings on two applications

(Applications under sections 278 and 276 of the Criminal Code)

THE PROCEDURE

[1] The defence brings two applications. A.A. is before the court on charges that he sexually assaulted the complainants, MB and LS, who are cousins, when they were young. The defence seeks an order under s. 278 of the Criminal Code to release third party therapeutic and medical records of the two complainants. He also seeks permission under s. 276 of the Code to cross-examine the complainants about sexual activity with another person, ES, who was previously convicted of sexual assaults of both complainants.

[2] The complainants were represented by their own counsel. Neither the complainants nor the Crown called viva voce evidence. On the s. 278 application, the defence called Professor Tim Moore to give expert evidence on memory.

FACTUAL BACKGROUND

[3] On April 27, 2010, A.A. was arrested and charged with the offences against MB and LS. The basic facts are not in dispute and I summarize them as follows:

[4] In relation to MB, A.A. is charged that: between October 1, 1969 and December 31, 1977 he had illicit sexual intercourse with her; committed an act of gross indecency; committed an indecent assault; had sexual intercourse with her without her consent; and had sexual intercourse with her when she was under the age of 14 years. MB alleges that when she was between 4 and 9 years of age, A.A., her father (who she later came to believe was not her biological father) forced her to engage in oral sex and full intercourse on numerous occasions.

[5] In relation to LS, A.A. is charged that between January 1, 1979 and January 31, 1979 he indecently assaulted LS. LS alleges that when she was about 9 years of age, A.A., who is LS’s father’s brother-in-law, while carrying her to the house from the back seat of a car, touched her vagina under her clothes.

[6] Some 30 years later, MB and LS went together to the police and reported A.A.’s offences against them. Neither MB nor LS reported A.A.’s abuse to family members. They first disclosed this to treatment professionals many years later.

[7] Also pertinent to the applications in this case is the fact that in June 2010 MB and LS also complained to the police that ES, their uncle, sexually abused them at different times and in separate circumstances. LS alleged her abuse occurred between 1969 and1970 and MB alleged her abuse occurred between 1973 and 1975. In March 2012 ES was convicted of sexual assault in relation to both complainants.

[8] Both MB and LS sought medical treatment for emotional problems arising from their alleged abuse by A.A.. They disclosed this information at the preliminary inquiry that took place in December 2011.

APPLICATION FOR THIRD PARTY RECORDS

Complainants’ Medical/Therapeutic Evidence

[9] At the preliminary inquiry LS testified that from about the mid-2000s until she went to the police in 2010, she received treatment by various counsellors and medical facilities for panic attacks. LS testified the panic attacks were “triggered” by certain events such as taking medication and illnesses.

[10] LS testified she did not speak to her longstanding family physician, Dr. Allan Leung, about her emotional problems related to the sexual assaults. She felt that as a male he did not meet her needs and she was not comfortable speaking with him about this. LS testified that sometime between 2002 and 2004 Dr. Leung prescribed Paxil and Lorazepam for anxiety and depression. LS testified that she attended the emergency unit at Scarborough Centenary Hospital for anxiety and panic attacks. In about March 2010, she was admitted to Scarborough Grace with a virus and emotional symptoms of anxiety and panic. She was also seen by Rouge Valley Centenary Health Clinic.

[11] LS first went to counselling in about 2005/2006 at the health centre, Women’s Health in Women’s Hands, and returned there for further counselling in 2009. In around 2008/2009, LS sought treatment at Taibu Community Health Centre where she received a diagnosis of post-traumatic stress disorder and a prescription for Paxil and for Lorazepam in 2010.

[12] In relation to LS the defence seeks production of medical and counseling records from the following treatment providers and medical facilities:

(a) Women’s Health in Women’s Hands
(b) Dr. Allan Leung (family physician)
(c) Rouge Valley Centenary Heath Clinic
(d) Taibu Community Health Centre and
(e) Scarborough Grace Hospital

[13] MB testified at the preliminary inquiry that she had intermittent and unpredictable “flashbacks” about A.A.’s abuse throughout her life since the abuse. She explained that certain experiences in her life, like the birth of her daughter, were “triggers” for the memories. MB sought treatment before she went to the police. She testified she went to Catholic Family Services in Peel and Toronto. However, those agencies indicated they do not retain records beyond seven years and had no records related to MB. MB did seek treatment subsequent to attending the police. In around August 2010, for three months, MB began to see Pat Yuill, a female psychotherapist who was recommended by Victim Support Services for one-on-one counselling for childhood sexual abuse. In November 2011, MB began to see Jan Davies, a psychotherapist, also to deal with the sexual abuse.

[14] In relation to MB, the defence requests production of counselling records from:

(a) Pat Yuill

Overview of the Law on Access to Third Party Records

[15] Section 278 of the Code provides the procedure for an application for third party records. This is a two-stage process as set out in s. 278.5 and s. 278.6 of the Code.

(a) The judge considers whether to produce the record to the court for review;

(b) If the record, or parts of it, is produced to the court, the judge reviews the record to determine if the record, or parts of it, should be produced to the accused.

[16] At the current proceeding the court is required only to determine the first stage, as to whether the record should be produced to the court.

Whether to produce the record to the court for review

[17] The requirements for the production of records to the court are found in s. 278.5(1) which states:

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

(a) the application was made in accordance with subsections 278.3(2) to (6);

(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.

Proper Application Procedure

[18] There is no dispute in relation to s. 278.5(1)(a) that the application has been properly made in accordance with s. 278.3(2) to (6).

The Test of “Likely Relevant”

[19] The court must next determine under s. 278.5(1)(b) whether the accused has established that the record is “likely relevant” to an issue at trial. At s. 278.3(4), the Code enumerates several grounds that in themselves are not sufficient to establish the likely relevance of the record. That provision states:

278.3(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:

(a) that the record exists;

(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;

(c) that the record relates to the incident that is the subject-matter of the proceedings;

(d) that the record may disclose a prior inconsistent statement of the complainant or witness;

(e) that the record may relate to the credibility of the complainant or witness;

(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;

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;

(h) that the record relates to the sexual activity of the complainant with any person, including the accused;

(i) that the record relates to the presence or absence of a recent complaint;

(j) that the record relates to the complainant’s sexual reputation; or

(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.

[20] Courts have defined the likely relevant test and have spoken on how the presence or absence of the s. 278.3(4) assertions may be considered in determining whether a record is likely relevant. The Supreme Court of Canada defines the test as:

…there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.

[R. v. O’Connor, [1995] S.C.R. 411; 1995 9863 (NL CA), 103 C.C.C. (3d) 161, at para. 22, (S.C.C.)]

[21] The accused cannot succeed on an application by making vague assertions about the existence of a record,

…the accused (must) be able to point to case-specific evidence or information to show that the record in issue is likely relevant to an issue at trial or the competence of a witness to testify.

[R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, at para. 120, (S.C.C.)]

[22] As well, the accused

…cannot rely on speculative assertions or stereotypical assumptions.

[R. v. Batte, 2000 5751 (ON CA), 145 C.C.C. (3d) 449, at para 66, (Ont. C.A.)]

[23] The defence carries the burden to prove there is evidence that meets this test. On the weight of the burden, the Supreme Court held that in the first stage the burden should not be interpreted as onerous on the accused, although the court did call it “a significant burden” [R. v. O’Connor, para. 24 and R. v. Batte, at para 53].

Necessary in the Interest of Justice

[24] The third consideration, addressed in s. 278.5(1)(c), requires a balancing of competing interests to determine if the record is necessary to be produced in the interest of justice. The accused’s right to make full answer and defence must be weighed against a complainant’s right to privacy, an exercise that is particularly critical with sensitive personal information. Parliament enacted this provision as an additional screen in view of judges previously having routine access to records at the first stage which created a recurring violation of the privacy interests of complainants and witnesses [R. v. Mills, at para. 125].

[25] The balancing exercise has been expressed as follows:

The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in private records of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in the record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

[R. v. Mills, at para. 94]

[26] As the Court goes on to say, the balancing of the right of full answer and defence against the right to privacy and the decision whether to produce records are not in most cases straightforward exercises. The decision to order production of records must be made based on the particular facts of the case before the court.

[27] R. v. Mills provides guidance for balancing the competing rights and poses the following considerations for deciding whether a record should be produced to the court:

(a) the extent to which the record is necessary for the accused to make 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.

[R. v. Mills, at para. 127]

PARTIES’ SUBMISSIONS ON THIRD PARTY RECORDS

The Defence’s Position

[28] The defence seeks access to the complainants’ records on the following bases:

(a) to obtain information bearing on the complainants’ credibility and reliability;

(b) to obtain possible evidence of inconsistent statements made by them to their treatment providers about the alleged incidents;

(c) to obtain evidence as to why the complainants did not report the alleged abuse until 2010;

(d) to obtain statements in the treatment records that would contradict the complainants’ statements to the police discrediting A.A.;

(e) to obtain evidence that might show animus toward A.A. based on:

(i) the issue that A.A. might not be MB’s biological father;

(ii) the loss of an inheritance by MB;

(iii) the possibility that problems between the complainants and A.A. require a therapeutic explanation;

(iv) information about blame transferred to A.A. who was estranged from the complainants while not estranged from other members of the family; and

(v) information about the extended family being divided on the authenticity of the complainants’ allegations against A.A..

[29] The aspects of evidence listed under subparagraph (e), as I understand it, refer to the extent to which any animus on the part of the complainants toward A.A. may affect the credibility and reliability of their allegations against him.

[30] At the heart of what the defence is seeking from the complainants’ treatment records is evidence with which to measure the credibility and reliability of their accusations. The defence’s request appears to be directed at whether there might be other motives or explanations as to why they complained to the police about A.A. aside from the commission of sexual assaults. The defence asserts that the existence of any statements by the complainants if contradictory to other statements by them is a basis on which to test the credibility and reliability of their allegations. Access to this evidence, the defence submits, is critical to A.A. having an opportunity to make full answer and defence and in its view outweighs the complainants’ interest in privacy.

[31] The defence raises the further argument that in order to raise a proper defence, it requires the treatment records because of the possibility that the records might contain evidence that indicate the complainants confused their alleged sexual assaults by A.A. with the sexual assaults by ES. Later, I will return to this submission.

[32] The defence advances the further position that with the passage of 30 years, production of the records should be ordered to test the reliability of the complainants’ memories of their alleged experiences. The defence called viva voce evidence on the issue of memory to support its position that the records are necessary to address this issue in its defence.

[33] Timothy Moore, Ph.D., a professor of psychology and the Chair of the clinical psychology department at Glendon College testified for the defence. Professor Moore was called to comment on cognitive functions and mental processes associated with memory. Based on the complainants’ references to “flashbacks” and “triggered” memories during their testimonies at the preliminary inquiry, he was asked to comment on the usage of those terms and on suggestibility and memory and false memory syndrome. The defence also filed an article on the malleability of memory by Elizabeth F. Loftus and another on imagination and memory by Maryanne Garry and Devon L.L. Poleschek. Professor Moore was asked to comment on the articles.

[34] I found Professor Moore’s testimony of limited use to assist with the questions before the court. He conceded that his expertise is actually in the areas of fetal alcohol syndrome, children’s susceptibility to suggestion and false confessions and police interrogation. He further conceded he has no expertise in the effect of animus on memory, on therapeutic influence on the memory of adults or on clinical techniques. Professor Moore has never practised as a clinician or taught clinical technique. I find he lacks the expertise to assist on the issues before the court.

[35] I do however accept Professor Moore’s comments on the articles the defence filed. He concluded, as I and the complainants’ counsel did, that the articles address experiences that are not reflected in the evidence before the court. As the articles make clear, false memory syndrome refers to memories that might arise in a therapeutic setting where a patient attends therapy with no memory of an experience and under the influence of the therapeutic process comes to have a memory of an experience that did not in fact occur. This study of memory is not pertinent to the complainants’ circumstances. Their evidence is that they have always recalled the abuse by A.A.. They both testified that memories of the abuse would come to them as flashbacks and as a result of triggering events. Their reason for attending treatment was to get treatment for their emotional reactions to the memories.

[36] The defence argues in conclusion that the burden to establish likely relevance is not a weighty one and that it has satisfied the onus by providing the areas of factual inquiry it wishes to pursue through access to the records.

The Complainants’ Position

[37] The complainants submit the defence has not demonstrated the likely relevance of the medical records to an issue before the court. The defence, in the complainants’ view, relies on assertions that fall within the ambit of the prohibited reasons set out in s. 278.3(4) paragraphs (a) to (k). The complainants rely on the courts’ caution that the mere fact that a medical record exists and that a complainant sought medical assistance in relation to the allegations being tried is not sufficient to justify production of the records to the court. They raise the following further points that are pertinent to the court’s determination:

• that the defence is engaging in speculation, stereotypic assumptions and at large assertions that the records may relate to credibility [R. v. Batte, at paras. 53, 66, 71 and 72; and R. v. D.M., at paras. 43, 56 and 61]

The complainants submit the defence’s assertion that there may be contradictory statements in the records that might be relevant to the sexual assault allegations is a speculative, at large assertion and is insufficient to meet the likely relevant test.

• that the records may contain statements by the complainants that are inconsistent with other prior or subsequent evidence. [R. v. O’Connor, at para. 143; and R. v. Snipe, [2003] O.J. No. 4595, at paras. 4 and 5 (Ont. C.A.)]

Even if there were inconsistent statements in the records, the complainants argue, this alone would be insufficient to allow the production of the records.

• that the applicant must show evidence that the record will have direct relevance and be of a material nature to establish grounds for likely relevance [R. v. Batte, at paras. 68 and 76 and R. v. Snipe, at paras. 4 and 5]

The complainants’ view is that the speculative, non-specific nature of the evidence upon which the defence bases its request for production is also insufficient to meet the test.

• that private records should not be produced where information is otherwise available to the defence [R. v. Batte, at para. 72; R. v. G.S., 2001 8545 (ON CA), [2001] O.J. 1963, at para. 13, (Ont. C.A.)]

The complainants also submit the evidence sought through the treatment records could be available through the cross-examination of the complainants and other witnesses or through other evidence.

• in contemporary society a logical connection no longer exists between the genuineness of a complaint and the promptness with which it was made [R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 62, (S.C.C.); R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at pp. 4, 8, 9 and10, (S.C.C.)].

The complainants submit the fact that over 30 years passed before the complainants went to the police should not be regarded as a basis to discredit the veracity of their complaints.

[38] The complainants also cite case law that acknowledges the special privacy interests in some types of records, among these counselling, therapy and medical records. Privacy is essential for fostering and maintaining the trust relationship between the client and the treatment provider. The therapeutic relationship is safeguarded by the protection of a person’s reasonable right of privacy. Not only is privacy implicated by the disclosure of private records but so too is security of the person [R. v. Mills, at paras. 82 and 85].

[39] Courts have also cautioned on the lack of reliability in therapeutic records. R. v. O’Connor warns one should not presume from the fact a witness underwent treatment or counselling following a sexual assault that the medical record will contain evidence relevant to the defence.

While investigations and witness testimony are oriented toward ascertaining historical truth – namely, the facts surrounding the alleged assault – therapy generally focuses on exploring the complainant’s emotional and psychological responses to certain events, after the assault took place. Victims often question their perceptions and judgments, especially if the assailant was an acquaintance. Therapy is an opportunity for the victim to explore her own feelings of doubt and insecurity. It is not a fact-finding exercise [R. v. O’Connor, para. 144].

[40] On the question whether the complainants’ records are necessary in the interest of justice, the complainants submit their privacy interest in sensitive therapy/counselling records outweighs the defence’s right to full answer and defence. They argue the potential probative value of the evidence the defence seeks through the records is low while the privacy interest in the sensitive records is high. The complainants ask the court to find that the defence’s reasons for seeking the records do not weigh more in favour of full answer and defence and that accordingly, the records should not be produced to the court.

COURT’S DECISION ON THE APPLICATION FOR THIRD PARTY RECORDS

[41] For reasons set out below, I decline to make an order under s. 278.5(1) for the records to be produced for the court’s review. I find that the totality of the bases on which the defence seeks production of the records do not provide sufficient grounds to make this order.

[42] Clearly, a request for production based solely on a general wish to test credibility, in absence of defining a specific factual basis for the request, is not sufficient to obtain production. The defence has put before the court several areas of factual inquiry through which it seeks to challenge the credibility and reliability of the complainants’ allegations. However, based on the reasons it cites as the bases for its production request, the defence has not satisfied me of the likely relevance of the records to an issue at trial.

[43] The law is clear that without more a request for production based solely on a suspicion there may be inconsistent statements by the complainant in a therapeutic record is insufficient [R. v. O’Connor, at para. 143]. There was nothing said by the complainants at the preliminary inquiry that indicated that such statements were made. Speculation and at large assertions that such statements may exist do not satisfy likely relevance [R. v. Batte, at paras. 68 and 76 and R. v. Snipe, at paras. 4 and 5]. The mere fact a therapeutic record is known to exist is not an adequate basis on which to seek its production [s. 278.3(4)(a) of the Code].

[44] The defence also seeks the records on the possibility they contain information about animus toward A.A. that might have motivated the allegations against him rather than actual experiences of abuse. The defence advances several reasons the complainants might have animus: MB’s doubt as to whether A.A. is MB’s natural father as she grew up believing; the family inheritance issues; the family dysfunction; and divided beliefs in the family about the complainants’ allegations against A.A..

[45] I also find possible animus as a basis for requesting the records to be unpersuasive. Again, I do not find it would be appropriate or in accord with the principles enunciated by the courts for me to allow the records to be explored and fished through on speculation there might be expressions of animus in the records that underlie the allegations. This is a theory the defence can test through cross-examining the complainants or through the evidence of the complainants’ family members or other witnesses.

[46] The defence also asserts they require the records on the possibility they may contain evidence that the complainants may have confused their abuse by ES with their alleged abuse by A.A..

[47] I adopt the observation the Crown has made in their application to cross-examine the complainants on prior sexual activity (which I will deal with below). I agree it is not reasonable that the complainants would make this mistake. This is owing to the contrast in the circumstances of their experiences with ES and A.A.. That is, A.A. was in his 50s during the alleged sexual assaults on the complainants and ES was in his teens. Further, the venues and time periods for the assaults were different for the respective assaults on the two girls by A.A. and ES. The likelihood that evidence of this type of confusion exists in the records is negligible and certainly cannot be a basis to find the records likely relevant to issues in the trial.

[48] The defence further submits the records possibly contain information and statements by the complainants as to why they were not prompt in reporting the alleged abuse to the police. The suggestion behind this request seems to be that the complainants’ delay might be a basis on which to impugn their credibility about allegations against A.A..

[49] The courts have warned against drawing a connection between the genuineness of a complaint and the promptness with which it was made [R. v. D.D., at para. 62; and R. v. W. (R.), at pp. 4, 8, 9 and10]. I find it would therefore not be worthwhile to seek production of the record to obtain evidence that is not in and of itself necessarily probative of a lack of credibility. I find the defence can obtain evidence in this area at trial from cross-examining the complainants on their testimony at the preliminary inquiry and on any statements made to the police [R. v. Batte, at para. 72].

[50] The court is required to balance the interest of the accused’s right to make full answer and defence against the complainants’ privacy rights over their sensitive records. I will consider some of the guiding factors set down in R. v. Mills.

(a) The probative value of the record: The main issue before the court is A.A.’s guilt of the offences charged and the related issue of the credibility and reliability of the complainants’ allegations. The defence seeks through the records to find inconsistent statements, animus towards A.A., credibility issues related to the delay in making the allegations, the complainants’ confusion of sexual assaults by another family member with A.A., and possible therapeutic influence on the complainants’ memories. For reasons given above these are not sufficiently sound reasons for the production of the record. The defence has not shown that the record would assist in pursuing those areas of inquiry.

(b) Full answer and defence: The defence has not satisfactorily shown the necessity of the record to make full answer and defence. That is an important Charter-protected right but it is not enough to simply make a general assertion of the right without a clear indication of how the right will be adversely affected without production, particularly when that right is being weighed against sensitive privacy concerns.

(c) Expectation of Privacy: There is no question medical and therapeutic records come with an expectation of privacy as containing very sensitive information.

(d) Potential prejudice to dignity/privacy: Potential prejudice to the complainant’s dignity and privacy is a reasonable consequence of the embarrassment and humiliation that could come with third parties, including the court, having access to the records.

(e) Society’s interest: There is a broad social interest in encouraging victims of sexual offences to seek treatment and to take their complaints to the authorities. Society must ensure that persons who are victims of these heinous crimes feel safe in a therapeutic setting and free from unreasonable invasions on their attempts to come to terms with the trauma and seek treatment.

(f) The integrity of the trial process: The judicial system for its part must ensure its processes are not in fact or in perception regarded as venues for further victimization of complainants who have the courage to come to a public forum to air very traumatic experiences. The proper and sensitive handling of personal therapeutic records is critical to maintaining the