ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-DV6293
DATE: 2014/12/04
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
J.A.B.
Applicant
Tim Wightman, for the Crown
J. Michael Spratt, for the Applicant
J. Barrow, for A. Lavoie
HEARD: November 13, 2014 (at Ottawa)
DECISION ON S. 278 (3) APPLICATION
KANE J.
BACKGROUND
[1] Mr. B. is charged with three counts of sexual assault contrary to ss. 271 (1) and 271 (1) (a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”) of M. B. on January 5, 2012. He was arrested and charged with these offences on February 23, 2012.
[2] The allegations are that the accused assaulted the complainant in a sexual manner on three occasions on January 5, 2012, including using force to have sexual intercourse against her will.
[3] On January 5, 2012, the accused and the complainant were married, living together and caring for their young son and two older children of the complainant.
[4] The complainant testified at the Preliminary Inquiry that she wanted the actions of the accused against her that morning publically recorded, so she attended a community health clinic later on January 5, 2012, where she met with a nurse practitioner to whom she communicated these allegations.
[5] The complainant consented to the police obtaining the clinical notes from the Community Health Services. These notes have been disclosed to the accused.
[6] According to the notes of the nurse practitioner:
(1) The complainant told the nurse that early on the morning of January 5, 2012, in their home; the accused grabbed her arm, forced her upstairs and used physical force to have sexual intercourse which he conducted in a rough manner.
(2) Although the complainant did not verbalize her objection to the accused, she communicated to her husband that this sexual aggression was against her will.
(3) The complainant wanted to document what he accused had done to her but she did not want to proceed with any charges.
(4) The complainant agreed when asked if she wished to meet with A. Lavoie, a Woman’s Abuse Counsellor.
(5) The complainant then left the nurse’s office, met with A. Lavoie and then returned and met with the nurse practitioner who documented bruising on the complainant’s buttocks, thigh and forearm which the complainant stated were caused that morning by the accused.
[7] Police were called and attended the home of this couple two days later, on January 7, 2012. The complainant told police the accused had announced he was moving out of their home and was taking their son with him. She stated she was concerned that if her husband took their son, she would never see the child again. The complainant also told police that the accused had forced sexual intercourse on her on January 5, 2012, against her will.
[8] The complainant was interviewed by police on January 8, 2012, during which she repeated her allegations of being sexually assaulted by the accused on January 5, 2012. The complainant stated that when she and the accused were sexually intimate together, prior to January 5, some of those occasions included consensual rough physical conduct between them.
[9] The complainant testified at the Preliminary Inquiry that she met with the counsellor A. Lavoie several times after January 5, 2012, until approximately May or June, 2012.
RELIEF SOUGHT
[10] In this application, Mr. B. requests an order pursuant to s. 278.3 of the Code directing production of the records and notes of the counsellor, A. Lavoie, in dealings with the complainant.
[11] Specifically, the defence seeks the January 5, 2012, counselling or therapeutic records of A. Lavoie, discussing the alleged January 5th sexual assault and the records of that counsellor from January 5 to June, 2012, again limited to the alleged January 5, 2012 allegations of assault by the accused.
DEFENCE POSITION
[12] Defence counsel indicated that the defence at trial will not be whether the complainant consented to sexual relations with the accused on January 5, 2012. The defence rather will be that:
(1) The accused and the complainant had no sexual conduct on January 5, 2012.
(2) The bruising noted by the nurse on January 5, 2012, occurred from consensual sexual activity between this couple prior to that date.
(3) The complainant is fabricating the allegations of forced sexual intercourse on January 5, 2012.
[13] As to the necessity and entitlement to obtain the records sought, the defence argues that:
(1) The statements made by the complainant to the counsellor about the January 5, 2012 sexual assault allegations are relevant to the complainant’s credibility and reliability.
(2) In order to rebut fabrication, the Crown at trial will point to the complainant’s attendance with a counsellor on January 5, 2012, and until June, 2012.
(3) Non-production of these records will impair the accused’s ability to defend these charges.
COMPLAINANT’S POSITION
[14] The complainant opposes production of the records of the counsellor’s meetings with her because:
(1) Such counselling records are sought solely to attack the credibility of the complainant.
(2) Such records are personal and private as they originate from private counselling and should not be produced.
(3) The complainant’s repeated and the relatively quick reporting of the alleged abuse in this case to the nurse and the police, distinguishes this from other cases where the allegations were only disclosed long after the fact.
[15] The Crown took no position on the merits of this application.
DISPOSITION AND REASONS
[16] This s. 278 inquiry involves a two-stage inquiry and threshold levels.
[17] At stage one, the issue is whether the accused, applicant, has met the requirements of s. 287.3 and 278.5 of the Code. If that threshold is met, the next stage is whether the court, following the s. 278.6 review, is satisfied that the requirements of s. 278.7 are established to justify production.
STAGE 1 INQUIRY
[18] The submission that the counselling records must be produced as they are relevant to the complainant’s credibility and reliability, is insufficient justification alone under s. 278.3(4) (d) and (e).
[19] The mere fact that a complainant has spoken to a counsellor about the abuse, or matters touching on the abuse, does not make a record of those conversations likely relevant to a fact in issue or to a complainant’s credibility: R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (Ont. C.A.), paras. 70-71 and 77.
[20] Such confidential records will only meet the likely relevant threshold if it is shown that they contain statements on matters potentially relevant to the complainant’s credibility, and there is some basis for concluding they potentially contain information not already known to the accused or have some potential impeachment information. Re Batte, supra, para. 72
[21] The defence asserts the factors listed in s. 278.3 (4) (a) to (e) (h) (i) and (k). Those assertions, individually or combined, are to be considered but alone, are insufficient: R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 (SCC), para. 118.
[22] Under s. 278.5, records of counselling between a woman alleging abuse and a counsellor providing services to such victims, are “records” under s. 278.1. Such records engage a reasonably high level of privacy and are not producible to the accused pursuant to s. 278.2, unless ordered released.
[23] The requirements of s. 278.3 (2) to (6) in this case are established.
[24] The next question is whether the accused has established the records are likely relevant to an issue at trial and production thereof is in the interest of justice given the factors listed in s. 278.5(2).
[25] As stated, the reasonable expectation of privacy as to these records is high.
[26] The accused, whether based on the testimony of the complainant at the Preliminary Inquiry, the notes of the nurse practitioner and her statements to police, was unable to establish direct contradictions in such statements as contemplated in Batte, supra, paras. 68-71 and 76.
[27] The complainant prior to communicating her complaint to police on January 7, 2012, had already communicated and “documented” this allegation on January 5, 2012, with the nurse practitioner which directly contradicts the accused’s version that there was no sexual intimacy between them on January 5, 2012.
[28] The notes of the nurse practitioner records the allegation as to the misconduct occurring on January 5, 2012, the wish of the complainant that such allegation be “documented” and her position that she did not want to proceed with any charges. The defence has this nursing record.
[29] This record of the woman “documenting” being sexually abused, and her not wishing to charge her partner, potentially feeds into a discriminatory bias; namely, if a woman is truly sexually abused, she would report that to police and this complainant was unwilling to do that. There are many factors impacting whether a woman is prepared to report criminal activity against her partner, including but not limited to, the facts in this case that the complainant was married to the alleged perpetrator, the well-being of their children if he is charged criminally and her immigration status. The accused was the immigration sponsor of the complainant’s outstanding application for Canadian status.
[30] The above potential bias in the existing evidence already exists, independent of the documentation requested. The defence is already able to use as part of his defence, the nursing records recording reluctance on January 5, 2012 to report the allegations to police and the fact that she did exactly the opposite on January 7, 2012. The accused already has evidence of these alternate positions to use in his defence.
[31] The defence without the documents requested, in addition already has the argument that the January 7th reporting of these allegations to police was a ploy by the complainant to use the police to force the accused to vacate the matrimonial home and leave their son in her custody. The notes of one police officer hint at that suspicion.
[32] If the complainant in a meeting with the counsellor discussed the possibility of reporting her allegations to police and again decided not to, the accused already has as part of his defence, evidence of considering whether to report it to police and the decision not to do so.
[33] If the complainant however adopted the same reluctance with the counsellor against reporting these allegations to police, that further decision not to report, feeds into and strengthens the above bias. That bias renders such further decision not to report, less probative and potentially misleading in the decision to be made by the jury. These three factors are relevant considerations under ss. 278.5 (b), (d) and (h).
[34] If the counsellor on January 5, 2012, suggests to the complainant that her January 5 allegations against her husband are serious and that she should consider reporting them to police, which she then does two days later; that suggestion does not alter or weaken the January 5 reporting of abuse to the nurse practitioner, the January 5 decision to not report to police, the fact that the complainant met with a counsellor on January 5, 2012, the threatened departure on January 7th of the accused with their son or the short time frame involved in these events.
[35] On these facts, the accused has not shown that his ability to defend these charges is impaired without the documentation requested, given the competing interests listed in ss. 278 (2) and (5) (f) and (g). The privacy of these records, on these facts, must be afforded due weight.
[36] For the above reasons, this s. 278 (3) application is dismissed at stage 1.
Kane J.
Released: December 4, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
J.A.B.
Applicant
DECISION ON S. 278 (3) APPLICATION
Kane J.
Released: December 4, 2014