CITATION: R. v. Armstrong, 2016 ONSC 1657

COURT FILE NO.: 15-10000290-0000

DATE: 20160309

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STACY ARMSTRONG

Erin Winocur, for the Crown

David Quayat, for Mr. Armstrong

Dawne P. Way, for the Complainant

HEARD: March 4, 2016

r.f. goldstein j.

REASONS FOR JUDGMENT

1P.D.M., the complainant, is a former sex trade worker. The Crown alleges that in 1998 she was sexually assaulted. The perpetrator’s DNA was identified as belonging to Mr. Armstrong, the accused, in 2014. In her testimony at the preliminary inquiry, P.D.M. said that she always used a condom while working and that she never had a sexually transmitted disease, or S.T.D. She also indicated at the preliminary inquiry that she had previously been sexually assaulted. That previous sexual assault had been the subject of charges. She had testified. The accused was acquitted.

2Mr. Quayat, Mr. Armstrong’s lawyer, says that the main issue at trial will be credibility. He argues that he needs to test P.D.M.’s assertion that she never had an S.T.D. He also needs to explore her criminal associations as well as the facts behind the other trial. He brings a third party records application for all this material.

3In my view, virtually none of the material sought should be produced for review. It is almost entirely irrelevant. For the reasons that follow the application is dismissed with one exception. That exception is this: the Crown will provide particulars of the time and place of the previous trial involving P.D.M.

BACKGROUND

4According to the Crown’s allegations, on June 28, 1998 the complainant was residing at the Drake Hotel. It was in the morning. She was outside the hotel, at the front, waiting a lift from her boyfriend and another friend. She was going to an appointment at her methadone clinic.

5She was not working that day but a man rode up on a bicycle and asked her for a “date.” They made an agreement for her to provide oral sex for $40. They went to the laneway behind the Drake. She went to take a condom from her purse. He then asked whether a condom was necessary. She insisted it was. He started to pull down her pants. She fought back. He was much larger than her. She ended up on her back on a metal grate. He then attempted to penetrate her for a few seconds but was not fully successful. He was spitting on his hand and touching her vagina in an attempt to lubricate her. He then got frustrated, grabbed her purse, and left. She got up and went to the front of the hotel, where her boyfriend worked. He pointed to the man, and they gave chase along with another friend of the complainant. They eventually lost him.

6The complainant completed a “rape kit” at the hospital, where various swabs and samples were taken. The swabs were tested for DNA. The matter then lay dormant until 2014, when there was a “hit”. Mr. Armstrong was identified as the donor of the DNA. He now faces a charge of sexual assault. His trial is set for May 24, 2016.

ANALYSIS

7The accused seeks production of the following material:

(a) The complete OHIP billing records related to P.D.M.

(b) All police records with respect to P.D.M.

(c) The particulars of the time and place of P.D.M.’s testimony in the earlier sexual assault trial and preliminary inquiry.

(d) Occurrence reports in relation to that sexual assault allegation.

8This application engages what is commonly known as the Mills regime: R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668. This regime is set out at s. 278.1 to s. 278.91 of the Criminal Code. The scheme applies to sexual offences brought under several different sections of the Criminal Code. Under the Mills regime no “record”, as defined in s. 278.1, may be produced to an accused person except in accordance with the provisions of s. 278.3 of the Criminal Code. A “record”, in essence, is a document that contains personal information for which there is a reasonable expectation of privacy. A record does not include a record made in the course of an investigation or prosecution for the offence.

9Briefly, this is the Mills regime:

• An accused person must bring an application to a judge. The application record must set out particulars. The particulars must identify the record and the name of the person with custody of it.

• The accused must serve the application record on the complainant, the custodian of the record, and the Crown.

• The accused must also serve a subpoena on the custodian.

• The application must set out the grounds on which the accused intends to establish that the record is likely relevant to an issue at trial or the competence of a witness to testify.

• At the return of the application the judge determines at an in-camera hearing whether the record should be produced for his or her review. The judge assesses whether the record is likely relevant to an issue at trial (or the competence of a witness) and whether production is necessary in the public interest.

• If the answer to these questions is “yes” the judge may order production for his or her review. The judge then considers the factors set out in s. 278.5(2) in determining whether to order production.

10Thus, the Mills regime essentially sets out a two-stage process: the judge first decides whether he or she should review the record; at the second stage the judge determines whether the record should be produced to the Accused in whole or in part.

11We are here at the first stage. At this stage, my function is to determine whether the accused has established that the records are likely relevant and whether production is necessary in the interests of justice.

12I turn now to the specific records sought by the accused.

(a) The complete OHIP billing records related to P.D.M.

13In her testimony, P.D.M. indicated that she had never had an S.T.D. and that she always used a condom while working. Mr. Quayat argues that the Accused is entitled to test that assertion. He says the Accused is entitled to determine if P.D.M. is credible on that point. He wants to see if the complainant did, in fact, have an S.T.D. at some point in time. The Accused therefore seeks her entire OHIP billing records. These are the decoded records that indicate the time, place, date, and type of service that was provided.

14On its face this request violates several paragraphs of s. 278.3(4) of the Criminal Code:

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:

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

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

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

15There is nothing in either the preliminary inquiry transcript or in the evidence generally to suggest a basis for seeking these records, beyond wanting to test the credibility of the complainant. Without more, that is simply not enough.

16I understand Mr. Quayat’s point that he is not seeking the actual therapeutic records, but only the billing records. I do not accept that the records will not actually reveal any details about any particular medical condition or therapy. The billing records would certainly disclose a significant amount of personal information on their own. The records would also enable the Accused to go to P.D.M.’s health care providers and seek the actual medical records. I can only imagine that the way this would work in practice is that the Accused would obtain the billing code for some kind of treatment or test. The records of the therapy or test would then be sought to see if it was a test for an S.T.D. or some kind of therapy.

17It is hard to imagine a more significant intrusion into a person’s most intimate and private details than trolling through their medical records unlimited by time or event. Furthermore, whether or not P.D.M. actually had an S.T.D. at some point in her medical history can only be of marginal relevance to her credibility. Even if it was “likely relevant”, under the circumstances here I do not see how it could be in the interests of justice to allow an accused person to troll through the medical records of a sexual assault complainant simply to see if there was something there. To grant this aspect of the application would amount to permitting random virtue testing of the Complainant by the Accused.

18In this case, in balancing the right of the accused to make full answer and defence P.D.M.’s right to privacy, the balance favours privacy. I therefore decline to order production of the OHIP billing records.

(b) All police records with respect to P.D.M.

19Mr. Quayat argues that he needs all of the police records in relation to P.D.M. He particularizes the records as:

a. Police occurrence reports with respect to P.D.M.;

b. Records relating to the disposition of all criminal charges against P.D.M. regardless of what the disposition was;

c. Police notes and videotaped statements with respect to items a. and b.; and,

d. All Manix, 208 FIR, or police contact reports relating to P.D.M.

20This request is very broad. Mr. Quayat already has the complainant’s criminal record. He seeks not only the underlying occurrence reports for her convictions, but, in essence, any contact she has ever had with the Toronto Police. This aspect of the request is a classic fishing expedition.

21Mr. Quayat relies on R. v. Bottineau, 2005 63780 (ON SC), [2005] O.J. No. 4034, 32 C.R. (6th) 70 (Sup.Ct.). In that case, the accused sought police occurrence reports relating to prospective witnesses. The occurrence reports were unrelated to the prosecution. In that case, Watt J. (as he then was) held that such reports are not third party records. As such, he found that they were not covered by the third party records regime set out in R. v. O’Connor, [1995] 5 S.C.R. 411.

22With respect, this aspect of Bottineau has been overtaken by R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390. Karkatsanis J. clearly stated at para. 2:

I conclude that the Mills regime applies to police occurrence reports that are not directly related to the charges against the accused. Privacy is not an all or nothing right. Individuals involved in a criminal investigation do not forfeit their privacy interest for all future purposes; they reasonably expect that personal information in police reports will not be disclosed in unrelated matters. Moreover, while the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.

23Thus, the Mills regime applies to police occurrence reports. I must assess whether the records are likely relevant, and whether it is in the interests of justice to disclose them. I interpret the comments of Karakatsanis J. to mean that the disclosure of such reports is not automatic. Even if the Crown is in possession of such reports it need only give notice to the accused. Such reports are not automatically disclosed as the fruits of the investigation.

24I will deal first with occurrence reports underlying P.D.M.’s criminal convictions.

25Mr. Quayat relies on R. v. Miller (1998), 1998 5115 (ON CA), 131 C.C.C. (3d) 141, [1998] O.J. No. 5356 (C.A.) as authority for the proposition that the Accused is enitled to cross-examine on the facts underlying P.D.M.’s previous offences. He is, therefore, entitled to the occurrence reports.

26Mr. Quayat is surely correct that the Accused is entitled to cross-examine, but it does not follow that the Accused is automatically entitled to the underlying occurrence reports. The entitlement to cross-examine on the underlying facts of the conviction of a witness does not, in and of itself, entitle the accused to the police occurrence reports. That rule must be read in light of s. 278.3(4)(e), which I have set out earlier in these reasons: court may not order production of a record simply because “it may relate to the credibility of the complainant or witness”.

27It bears noting that the underlying evidence of a conviction may not be introduced independently as it would breach the collateral fact rule: R. v. A.R.B. (1998), 1998 14603 (ON CA), 41 O.R. (3d) 361, [1998] O.J. No. 3648 (C.A.). I appreciate that is not the same as putting the facts to the witness, but the cross-examiner is stuck with whatever answer the witness gives. That alone diminishes the relevance of the occurrences.

28Furthermore, the request relates to material that is very remote. I find it difficult to understand the relevance, say, of an occurrence report relating to P.D.M.’s conviction for possession of a narcotic in 1986 – thirty years ago. The Accused already knows that P.D.M. had addiction problems and was in a methadone program on the day of the alleged sexual assault. As another example I also find it difficult to understand the relevance of the underlying occurrence report for a conviction for communication purpose of prostitution. The Accused already knows that P.D.M. was a sex trade worker. How could an occurrence report from 1986 (for something that is not even an offence anymore: R. v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101) – again, thirty years ago – possibly affect her credibility any more than the fact of the conviction?

29That, however, is only one problem with the request for the occurrence reports underlying the criminal convictions. The other problem is that they are unanchored to any specific allegation. The only conceivable use that I would think could be made of these occurrence reports would be launch an assault the character of the victim.

30As a practical matter, as well, it strikes me that it is a real misallocation of police resources to embark on a hunt for notes relating to minor offences thirty years ago.

31I therefore dismiss this aspect of the application.

32I turn now to the request for all other police occurrence reports or evidence of other police contact with P.D.M. This is a broad request for police occurrence reports of whatever nature in respect of any activity. It stretches the bounds of relevance much too far. Such a request would include casual discussion on the street for which there is a card, an occurrence report relating to a neighbor complaining about a barking dog, or any crime where P.D.M. had been a victim.

33Furthermore, as with other aspects of this application, the request is unanchored to any specific allegation. There must be something more than a mere assertion that if the reports exist, they must be relevant. Again, the statutory scheme demands more – as do the basic evidentiary rules relating to relevance and collateral facts. This aspect of the request is also dismissed.

(c) The particulars of the time and place of P.D.M.’s testimony in the earlier sexual assault trial and preliminary inquiry.

34At the preliminary inquiry, Mr. Armstrong’s counsel cross-examined P.D.M. about the earlier sexual assault trial and preliminary inquiry. P.D.M. was aware that the accused had been acquitted but did not know why. Mr. Armstrong’s counsel did not ask P.D.M. the name of the accused, which might have led to the particulars that he seeks in this application. Crown counsel does not have the transcripts but does have particulars of the time and place that P.D.M. testified.

35Ms. Way, counsel for the complainant, and Crown counsel, Ms. Winocur, both argue that I should not order disclosure. They give different reasons for opposing this aspect of the production. Ms. Way argues that Mr. Quayat is foreclosed from obtaining this information because he did not lay a sufficient foundation at the preliminary inquiry. Ms. Winocur argues that the material sought is simply irrelevant.

36With respect, I disagree. I do not see how there can be a reasonable expectation of privacy in the time and place that a person has testified in a public proceeding. Nor can there be a reasonable expectation of privacy in the contents of that testimony. If there is no reasonable expectation of privacy, then the Mills regime simply does not apply. I do agree that the particulars are not the fruits of the investigation. They do not fall under the Stinchecombe disclosure regime.

37I am therefore left to fall back on the residual regime for non-private third party records set out in R. v. O’Connor. It is still up to the accused person to establish likely relevance: Quesnelle, at para. 13.

38I have grave doubts about the usefulness of the transcripts of that earlier proceeding. The fact of an acquittal is meaningless. Furthermore, P.D.M. cannot even be cross-examined on a previous adverse finding of credibility, had there been one: R. v. Ghorevi (1999) 1999 19941 (ON CA), 46 O.R. (3d) 63, [1999] O.J. No. 3241 (C.A.). That said, I am unable to say that it is entirely irrelevant. Given the complete lack of any privacy interest in the information, I think that the balance tips towards ordering disclosure.

39I am aware that there is a publication ban on the complainant’s name. The fact that there is a publication ban does not confer any kind of privacy interest in the contents of the transcript or the information. The publication ban relates to information that could identify the complainant.

40I therefore order the Crown to disclose particulars to the Accused of the time and place of the earlier proceeding.

(d) Occurrence reports in relation to the earlier sexual assault trial.

41In R. v. Riley (1992), 1992 7448 (ON CA), 11 O.R. (3d) 151 (C.A.) the complainant had alleged that another man sexually assaulted her on an earlier occasion. That other man was acquitted. The accused proposed calling that other man as a witness. The trial judge refused to allow the witness to be called. The Court of Appeal upheld the trial judge and found that such evidence was inadmissible to suggest a pattern of false accusations or to attack the complainant’s credibilty, unless the allegations were recanted or demonstrably false. See also: R. v. C.C., 2015 ONCA 59, [2015] O.J. No. 456 (C.A.) at para. 32.

42Here, there is no suggestion that P.D.M. has recanted, and it cannot be said that the allegation is demonstrably false. Indeed, given the DNA results it would be very difficult for the Accused to succeed in such an allegation. Given my findings in relation to the other occurrence reports, it is obvious that these occurrence reports are no more relevant.

DISPOSITION

43The application is dismissed with one exception. The Crown shall furnish particulars to the Accused identifying the time and place of the earlier trial involving P.D.M.

R.F. Goldstein J.