ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)890/15
DATE: 2015 11 20
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
P.B.
Applicant
Tyler Powell, for the Crown
Joanna Birenbaum for the Complainant
G. Gross-Stein, for the Applicant
HEARD: November 9, 2015
PUBLICATION BAN
An order has been made pursuant to s. 486.4(1) of the Criminal Code of Canada prohibiting the publication broadcast or transmission of any information that could identify the complainant.
RULING ON PRODUCTION OF THIRD PARTY RECORDS TO THE COURT
Baltman J.:
Overview
[1] The Applicant has been charged with a series of historical sexual offences against his biological daughter, who is now 37 years old.
[2] The Complainant initially contacted police in July 2014, when she was 36 years old. She reported that between the years of 1980 and 1988, from when she was two or three years old until she was ten, she was repeatedly sexually assaulted by the Applicant in their home and in a variety of public places.
[3] At the preliminary hearing in March 2015 the Complainant explained that she began to relive the abuse at the age of 18, in the form of nightmares and flashbacks, causing her to seek counselling from the Kawartha Sexual Assault Centre (“KSAC”). She agreed that after she began counselling “more memories” of the abuse came back to her.
[4] The Complainant also testified that since providing her statement to the police, she had a number of new memories come back to her, including that the abuse started when she was just a baby.
[5] The Crown has advised that it intends to call expert evidence at trial related to delayed memory recall in children who have been abused.
[6] The Applicant now seeks production of the KSAC records, pursuant to s. 278.3 of the Criminal Code.
Factual Background
[7] The Complainant is the biological daughter of the Applicant. She lived with the Applicant, her brother and her biological mother as a nuclear family until she was approximately eight years old, when her parents separated. For the next two years, until she was ten years old, the Complainant lived with the Applicant, in Mississauga. She and her brother then left his home and moved in with their mother, in Peterborough.
[8] During the time the Complainant lived with her mother she experienced vague feelings of discomfort, but had no conscious memory of having been abused.
[9] The Complainant initiated contact with the Applicant when she was 18 years old. They had only one visit at that time. According to her videotaped police statement (VPS), provided in July 2014, this visit triggered nightmares and memory flashes “like somebody trying to touch me when I was little”. By “little” she meant from when she was two or three years old. Those sensations persisted for several years and as a result, when she was 26 yrs. old, she sought counselling from KASAC.
[10] The Complainant also told police that the death of her paternal grandmother, in July 2013, was another trigger for memories of abuse.
[11] The abuse she recounted to the police includes full intercourse, both vaginal and anal, several times a week. Some of the assaults occurred in the living room of their home, while her mother slept upstairs; however on occasion they took place in public spaces, such as the bathroom stall of a grocery store or in the bushes adjacent to a park. She never told anyone because the Applicant threatened to hurt her mother or younger brother if she did. Neither her mother nor anyone else noticed anything unusual.
[12] At the preliminary inquiry in March 2015 the Complainant expanded the time frame of alleged abuse; she testified that she has “touch memory” of the Applicant touching her when she was even younger than two years, when she was “a baby”. She stated she could not provide details of the abuse or touching perpetrated on her as a baby, “only touch memory is all I remember, I’m sorry.”
[13] For the purposes of this application, the contentious evidence from the preliminary hearing is contained primarily in the following two extracts, when the Complainant was being cross-examined regarding when and how she came to recall being sexually abused by her father. In the first extract the Complainant was questioned about her memories of sexual abuse and whether counselling played any role in triggering those memories:
Q. Okay. And then when did the actual memories of your father doing things to you start coming back?
A. Before I went to visit him in – when I was 18, after I asked if I could come see him I started having a dream.
Q. So 17….
A. More like – yeah, about 18.
Q. Okay. And so before you went to visit your father, you said you started having a dream?
A. Yes.
Q. And what do you….
A. It was more like just flashes of things happening to some child. I didn’t know if it was me or who it was…
Q. Okay.
A. …but it was scaring me a whole lot.
Q. So you started having dreams about bad things happening to children or a specific child?
A. Yes.
Q. And when did you come to the realization that bad things had happened to you?
A. When I was 26.
Q. 26?
A. Yes.
Q. And what was it that triggered that memory?
A. I don’t know. I just – I guess just repeating it over and over again and watching my friend’s children, children grow up and seeing them fine and safe, and I kept having these dreams and I was talking with a counsellor and I repeated what happened and then, I guess, it went from there and slowly over the years I’ve realized as the memories have come out more and more that it, that it is – that it happened to me. I don’t know how else to explain it, ma’am. I’m doing my best.
Q. And I appreciate that. So you were 26 and friends started having children and you saw them having happy childhoods?
A. Yes.
Q. And realizes that’s not something you had had, is that what you’re saying?
A. Perhaps, in a sense, but I was dealing with those bad dreams quite frequently also.
Q. And at, at the time that we’re talking about now, you were having these dreams, you still hadn’t come to the realization that something happened to you, am I….
A. I had a sense it was – could have been me then. I just didn’t want to believe that happened to me.
Q. And was it, was it talking about it with a counsellor that made you realize these things had actually happened to you, or talking about it with somebody?
A. No, just as the feelings came up and the flashbacks came up, it – I was reliving it as me right in the situation. There was no way of denying it then.
Q. All right. So….
A. It was me experiencing it. It was no one else anymore. It wasn’t just seeing a kid from far away, I was feeling it, I was experiencing it. It was like reliving it all over again.
Q. So had you been having these flashbacks or dreams before the age of 26, just not realizing it was, it was you that you were thinking about, is that right? Or did the flashbacks and dreams not start until 26, I guess, is my question?
A. No, they were going on prior, the dreams and stuff, when I was 19, 20, 21, 22.
Q. So that’s something that you, you were experiencing for many years?
A. Yes.
Q. And then it was not until you were 26 that you came to the realization, oh, my goodness, it’s me in, in those dreams, is that what you’re saying?
A. No, I had a feeling it was me to some of the stuff that was coming up, but it was coming up in snippets, so it was like little flashes, so it was hard to make sense of, and now they come full circle and they’re actual full memories and I’m seeing what occurred. So, now, I know it’s me, it’s not was it or wasn’t it anymore.
Q. Is --- was the process – you said you went to counselling, and I’m not going to ask you much about that, at this point anyway, but was the process of going to counselling helpful to you in terms of remembering things that happened to you?
A. It, it felt nice that someone actually believed me and I had a place to air what I was feeling without being afraid of people thinking I was weird.
[14] The second extract is from her testimony a few pages later, when she is asked about the effect that counselling has had - either in coming to terms with what happened, or remembering more things:
Q. You’ve, clearly, over the years, since you started having counselling, more memories have come back to you, right?
A. Yes, ma’am.
Q. Do you know whether or not counselling has helped you with that, in terms of either coming to terms with what happened or remembering more things? Has counselling played a role in that for you?
A. Yes, I believe it has.
Q. Okay. I, I gather you never – this may seem obvious but I’m going to ask anyway just to be sure – you never told a teacher or anybody in school about what was happening to you as a child?
A. No, I actually believed that my, that my family would still be hurt. Even going to the police took a lot of nerve, when I told them I was still afraid that something would – bad happen to my family until I finally went and talk to the Peterborough police last year.
The Legal Framework
[15] Section 278.4 contemplates a two-stage procedure for gaining access to therapeutic records. At the first stage, the judge may order production of the record for her review if she is satisfied a) that the record is “likely relevant to an issue at trial”, and b) its production is “necessary in the interests of justice”.
[16] If the judge is satisfied of both those requirements, she moves to the second stage of the process, wherein she unseals and reviews the records, in the absence of the parties, to determine whether any part of the records should be produced to the accused.
[17] This application deals solely with the first stage, namely whether the information sought is a) likely relevant to an issue at trial, and b) its production is necessary in the interests of justice.
a. Likely relevance
[18] The burden of demonstrating likely relevance is on the accused. In R. v. O’Connor, 1995 SCC 51, [1995] 4 S.C.R. 411 the Supreme Court defined likely relevance as “a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (para. 22). This is a higher standard than the general relevance test used for disclosure, which merely considers whether the information “may be useful” to the defence. This test was reaffirmed by the Supreme Court in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras 28-9.
[19] Section 278.3(4) of the Code lists a series of factors that reflect common myths and stereotypes, which have in the past been used to undermine complaints of sexual abuse. The section prohibits an accused from relying on those factors, on their own, to establish that a record is likely relevant; however, it does not prevent him from relying on those assertions where there is an evidentiary foundation to suggest they are likely relevant: R. v. Mills 1999 SCC 637, [1999] 3 S.C.R. 668, para. 120.
[20] The likely relevance of counselling records in particular was canvassed in R. v. Batte (2000), 2000 ON CA 5751, 145 C.C.C. (3d) 449 (Ont. C.A.). There Doherty J.A. observed that the mere fact that a complainant has spoken to a counsellor about the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant’s credibility; such records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value: paras. 66-75.
[21] Significantly for this case, in Batte the Court of Appeal ruled that the trial judge should not have viewed the counselling records in issue, in part because there was no evidence that the counselling process either contributed to the complainant’s decision to go to the police or that it “played any role in reviving, refreshing, or shaping the memory” of the complainant (para. 69).
[22] The case law also establishes that while the likely relevance threshold is a significant burden for the accused, it should not be interpreted as “onerous”. The threshold is significant to screen out speculative and time-consuming production requests; however, the relevance threshold cannot be an onerous test to meet because accused persons cannot be required to demonstrate the specific use to which they might put information that they have not yet seen: O’Neil, para. 29; Batte, para. 76.
b. Necessary in the interests of justice
[23] Section 278.5(2) of the Code lists the factors which the judge must consider in deciding whether to have the record produced for her review. These include the effects of production on the accused’s right to make full answer and defence and the complainant’s right to privacy.
[24] In Mills the Supreme Court emphasized that it is whether production to the judge is necessary in the interests of justice. Where the privacy need is strong and the record has minimal probative value or relates to a peripheral issue, the judge may conclude that the accused’s fair trial rights will not be prejudiced by non-disclosure. However, if a judge is uncertain about whether production is necessary to make full answer and defence, she should rule in favour of inspecting the document (paras. 132, 137).
Submissions and Analysis
a. Has the Applicant demonstrated that the records are likely relevant?
[25] The Applicant’s argument is twofold. First, he maintains that the counselling process at KSAC triggered or at least shaped the Complainant’s recollection of the alleged abuse, and therefore the records are relevant to the credibility and reliability of her assertions. Second, he argues that the records are needed to respond to the Crown’s expert evidence, and to allow an expert retained by him to prepare a response.
[26] Dealing first with the submission that counselling shaped the Complainant’s memory, there is an important difference between memories being disclosed while a complainant is undergoing counselling, and, on the other hand, memories emerging because of the counselling. I recognize that in some cases that distinction may be subtle; that is precisely why the evidence obtained at the preliminary enquiry can be crucial. In this case counsel have focussed on three exchanges from the extracts set out above, which for convenience sake I repeat here:
Q. And was it, was it talking about it with a counsellor that made you realize these things had actually happened to you, or talking about it with somebody?
A. No, just as the feelings came up and the flashbacks came up, it – I was reliving it as me right in the situation. There was no way of denying it then.
Q. Is --- was the process – you said you went to counselling, and I’m not going to ask you much about that, at this point anyway, but was the process of going to counselling helpful to you in terms of remembering things that happened to you?
A. It, it felt nice that someone actually believed me and I had a place to air what I was feeling without being afraid of people thinking I was weird.
Q. You’ve, clearly, over the years, since you started having counselling, more memories have come back to you, right?
A. Yes, ma’am.
Q. Do you know whether or not counselling has helped you with that, in terms of either coming to terms with what happened or remembering more things? Has counselling played a role in that for you?
A. Yes, I believe it has.
[27] The import of the first two exchanges is unclear; the first answer is vague and does not identify a timeframe, and the second answer does not respond to the question posed.
[28] The third and final exchange, however, is significant. The Complainant first confirms that since she began counselling, “more memories” have come back to her. She is then asked whether counselling helped her come to terms with what happened or with “remembering more things”, and responds “yes”. Accepting that the question is somewhat ambiguous – coming to terms with what happened is different from remembering it – when coupled with the previous answer it is reasonable to infer that, from her perspective, the counselling process played a role in her memory recovery. Given the wording in Batte (evidence that the counselling process played any role in “reviving, refreshing or shaping” the complainant’s memory), I find this is sufficient to meet the threshold of likely relevance.
[29] The relevance of these records is further reinforced, in my view, by the anticipated expert evidence from the Crown regarding memory recall. This case is being tried before a jury, with the attendant risk that the triers of fact may be unduly distracted by scientific theory. Defence counsel’s ability to challenge the factual foundation for that evidence is unfairly curtailed if he is denied access to therapeutic records that may have played a role in the memories being recalled.
b. Is production of the records necessary in the interests of justice?
[30] The case against the Applicant rests almost entirely on the Complainant’s credibility and the reliability of her alleged memories. Both the disclosure and the Complainant’s evidence from the preliminary hearing raise legitimate questions about her credibility and reliability. She denies having any memory of the abuse for well over a decade. At the preliminary hearing she expanded significantly upon the allegations she had made to the police, alleging that she remembered being touched improperly not just when she was two or three years old, but as far back as when she was a baby. The allegations include frequent and full intercourse with a young child in both public and private spaces, apparently without anyone noticing anything amiss.
[31] In sum, these are perplexing and very troubling allegations, with the potential for very serious consequences to the Applicant. While recognizing that a review of the records by the court involves some incursion into the Complainant’s privacy, given the reality of the case against the Applicant I am satisfied that this review is necessary to permit him to make full answer and defence.
Conclusion
[32] The Applicant has established that the KSAC records are likely relevant to an issue at trial and that their production to the court is necessary in the interests of justice. The Application has therefore succeeded at the first stage.
[33] In accordance with this ruling, I shall proceed to review the KSAC records. This case will be spoken to on November 27th, in assignment court. If at that point, based on my review of the records I am considering disclosure to the Applicant, a date can be scheduled for submissions from the parties.
Baltman J.
Released: November 20, 2015
COURT FILE NO.: CRIMJ(P)890/15
DATE: 2015 11 20
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
P.B.
ruling on PRODUCTION OF third party records TO THE COURT
Baltman J.
Released: November 20, 2015