SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: 831/12
DATE: 20140321
BETWEEN:
HER MAJESTY THE QUEEN
Mr. A. Shatto, for the Crown
- and -
J.E.
Mr. H. Thompson, for the Defence
Defendant
HEARD: March 21, 2014
REASONS FOR DECISION ON THE COMPELLABILITY OF EVIDENCE AT TRIAL BY THE MEDIATOR
Conlan J.
INTRODUCTION
[1] Mr. J.E. stands charged with 11 criminal offences. He is being tried before me, without a jury, in the Superior Court of Justice at Walkerton.
[2] J.E. has pleaded not guilty to every charge.
[3] A summary of the charges against Mr. E. are as follows. Note that, at the end of the Crown’s case at trial and without objection from the Defence, counts 1 and 4 were amended to widen the alleged offence periods. Also note that, at the end of the Crown’s case at trial and at the request of the Crown, made quite responsibly by Mr. Shatto I might add, a finding of not guilty was registered on count 8, and that charge was dismissed. There was no evidence of any alleged threat made by J.E. on or about February 25, 2012.
Count 1 – between January 1, 2004 and December 31, 2005, in London, attempt to choke MJK, contrary to section 246(a) of the Criminal Code of Canada (“CCC”).
Count 2 – in 2006 in Kincardine, assault MJK, contrary to section 266 CCC.
Count 3 – in 2006 in Kincardine, attempt to choke MJK, contrary to section 246(a) CCC.
Count 4 – between January 1, 2004 and December 31, 2005, in London, assault MJK, contrary to section 266 CCC.
Count 5 – on or about January 11, 2012, utter a threat to cause death to MJK, contrary to section 264.1(1)(a) CCC.
Count 6 – on or about February 5, 2012, assault MJK, contrary to section 266 CCC.
Count 7 – on or about February 24, 2012, assault MJK, contrary to section 266 CCC.
Count 8 – on or about February 25, 2012, utter a threat to cause bodily harm to MJK, contrary to section 264.1(1)(a) CCC.
Count 9 – between November 2011 and February 2012, criminal harassment (repeated following) of MJK, contrary to section 264(2)(a) CCC.
Count 10 – on or about December 6, 2011, utter a threat to cause serious bodily harm to MJK, contrary to section 264.1(1)(a) CCC.
Count 11 – between November 2011 and February 2012, criminal harassment (repeated communication with) MJK, contrary to section 264(2)(b) CCC.
THE EVIDENTIARY ISSUE
[4] The Crown’s case has closed. The Defence elected to call evidence. The second witness called by the Defence is Nancy Macivor, a lawyer who specializes in collaborative family law and mediation.
[5] Ms. Macivor assisted the parties with closed mediation, subject to confidentiality by contract entered in to by the parties, in late 2011. Specifically, the contract signed by the parties provided that nothing arising from the mediation could be used in any legal proceeding, and further, Ms. Macivor could not be called as a witness in any legal proceeding vis a vis anything arising from the mediation.
[6] Consequently, after being called to the witness box by the Defence, Ms. Macivor has objected to answering any questions about the mediation, except to say that no agreement was reached.
[7] I heard submissions from the Defence, the Crown and Ms. Macivor on the evidentiary issue to be decided. Ms. Macivor declined to seek legal advice before making her submissions. The Crown takes no position on the issue. The Defence seeks a ruling that Ms. Macivor answer the questions posed to her.
THE LAW and ANALYSIS
[8] I find that mediation, generally, is subject to settlement privilege and, thus, communications arising therefrom are generally inadmissible at any legal proceeding. Johnstone v. Locke, 2011 ONSC 7138 – Ontario Superior Court of Justice.
[9] Nevertheless, to determine whether privilege applies in this particular case, I ought to examine the four criteria established by Wigmore in his classic text on evidence. Children’s Aid Society of London and Middlesex v. C.D.B., [2011] O.J. No. 5526 (S.C.J.).
[10] The decision in this case turns solely on the fourth consideration – whether the prejudice or injury that would result from the disclosure, at this criminal trial, of the information at the mediation session is lesser or greater than the benefit gained to ensure a correct disposal of the criminal litigation.
[11] In my view, Ms. Macivor must be directed to answer the questions posed to her about the mediation, for these two reasons.
[12] First, the privilege is that of the parties, and the complainant has already waived the privilege by testifying at trial about the mediation and what transpired therein, including a specific allegation of an assaultive and/or threatening gesture made by J.E. towards the complainant during a mediation session. Obviously, the accused waives the privilege as well.
[13] Second, although I accept that we want to avoid any chilling effect on the importance of confidentiality of mediation generally, that concern is substantially outweighed by the right of this accused to make full answer and defence by testing the veracity of what the complainant testified to.
[14] In short, to sustain Ms. Macivor’s objection would seriously handcuff the Defence and be contrary to the interests of justice.
[15] The evidence of Ms. Macivor is crucial to a proper assessment of the complainant’s credibility.
CONCLUSION
[16] I rule that Ms. Macivor’s evidence is admissible. In this particular case, settlement privilege does not apply. I direct that Ms. Macivor shall answer the questions posed to her, subject of course to other objections that may be raised.
Conlan J.
Release Date: March 21, 2014
COURT FILE NO.: 831/12
DATE: 20140321
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
J.E.
Defendant
REASONS FOR DECISION
ON THE COMPELLABILITY OF
EVIDENCE AT TRIAL BY THE MEDIATOR
Conlan J.
Released: March 21, 1014