Court File and Parties

COURT FILE NO.: SCJ 89-18 DATE: 2019/02/20 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Marney Mazurski, for the Crown

• and -

C.F. Accused Daniel Baker, for the Accused Ed Paquette, for the Complainant Scott Thompson, for the Record Holder

HEARD: February 7, 2019

Ellies J.

REASONS FOR DECISION

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.

OVERVIEW

[1] The Crown alleges that C.F. committed a number of sexual offences against the complainant, K. W., between June 2007 and October 2009, when the complainant was under the age of 14.

[2] The accused applies under s. 278.1 of the Criminal Code for production of records kept by a school counsellor whom the complainant began seeing before going to the police and whom the complainant continued to see afterward. The accused seeks production on the basis that the notes will provide information regarding an inconsistency between the complainant’s statements to the police and her preliminary inquiry evidence.

[3] For the following reasons, I have concluded that the record should be produced for my review.

FACTS

[4] The salient facts can be briefly stated.

[5] The accused is charged with sexual assault, sexual interference and sexual exploitation of the complainant. Before the allegations came to the attention of the police, the complainant began to see a counsellor at the college she was attending. The counsellor attended with the complainant when she first went to the police and was present with her when she gave two statements to the police on two separate occasions.

[6] The complainant continued to attend with the counsellor after giving the statements and was seeing the counsellor at the time she testified at the preliminary inquiry.

[7] The complainant and the Crown concede that the complainant never told the police in either statement that the accused engaged in cunnilingus with her. [1] However, while giving evidence at the preliminary inquiry, she testified during her examination-in-chief as follows (transcript, p. 60):

Q. Okay. Does anything else happen different from the acts you’ve described so far?

A. Yes.

Q. So tell me your recollection of that.

A. It happened – it was – a lot of this was at night, so this was another night, and he was doing what he has been doing, touching my breasts under the shirt, touching my vagina, but there was this one where I remember I woke up to him on top of me and my legs were spread out in like a V.

Q. Ummhmm.

A. This is when I saw his penis. It was – he was on top and he was licking me on my vagina. And….

Q. Can you remember the state of your clothes?

A. My pants – my shorts or pants were off but my shirt was on.

Q. Was this at night or in the morning?

A. At night.

Q. And again this sounds a little indelicate, but how is it that you come to see his penis?

A. After he was done licking me he stood up, he was on his knees, and I opened my eyes for a second and when I opened them he was like in front of me but on top of me at the same time and I saw his penis in front of me.

Q. Do you have a recollection, was he erect or not?

A. Yeah.

Q. When he was licking you what part of your body was he licking?

A. My vagina.

[8] The accused submits that this is a material inconsistency and that the interests of justice require that the counsellor’s records be produced to the court because there is a reasonable possibility that they will provide him with information he did not already have with respect to the inconsistency.

ANALYSIS

[9] Section 278.1 and the related Criminal Code provisions (the “production provisions”) were enacted in May 1997. On December 13, 2018 they were amended by the coming into force of Bill C-51. None of those amendments are at issue here.

[10] The production provisions apply to a “record” as defined by s. 278.1. There is no dispute that the counsellor's notes fit that definition and that the production provisions apply to the accused's application for production of those notes.

[11] Under s. 278.5(1), the accused must establish:

(a) that the application has been brought in accordance with the production provisions;

(b) that the record sought is “likely relevant to an issue at trial or to the competence of a witness to testify”; and

(c) that production of the record “is necessary in the interests of justice.”

[12] There is no issue that the application has been brought in compliance with the production provisions. The issues are whether the applicant has established that the record is likely relevant and that production is necessary in the interests of justice.

Likely Relevance

[13] The production provisions were enacted following the decision of the Supreme Court of Canada in R. v. O’Connor, [1995] 4 S.C.R. 411. In O'Connor, the Supreme Court devised a Charter-compliant common law process to govern requests for production of records containing personal information about complainants from third parties. Like the process set out in O'Connor, the production provisions require that the accused establish that the records are likely relevant. In O’Connor, the Supreme Court defined the meaning of the term “likely relevant” as follows (p. 436):

In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to the defence: [citations omitted]. In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak of relevance to “an issue at trial”, we are referring not only to evidence that may be probative to the material issues in the case (i.e., the unfolding of events), but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case. [Emphasis added.]

[14] While the decision of the Supreme Court laid the foundation for the subsequent enactment of the production provisions, those provisions do not mirror the O'Connor process in every way. In particular, pursuant to s. 278.3(4), it is not enough for the accused simply to make bald assertions, for example, that the record may disclose a prior inconsistent statement of the complainant or that the record may relate to the credibility of the complainant.

[15] The constitutionality of this qualification to the O'Connor process was challenged in R. v. Mills, [1999] 3 S.C.R. 668. In upholding the constitutionality of s. 278.3, the majority of the Supreme Court held (pp. 741-742):

The purpose and wording of s. 278.3 do not prevent an accused from relying on the assertions set out in s. 278.3(4) where there is an evidentiary of informational foundation to suggest that they may be related to likely relevance… The section requires only that the accused 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… [Emphasis added.]

[16] The need for case specific evidence or information was explained by the Ontario Court of Appeal in R. v. Batte (2000), 49 O.R. (3d) 321. In Batte, the accused brought an application prior to trial for production of records pertaining to counselling sessions involving two complainants with respect to whom he was charged with sexual offences. The complainants' credibility was central to the trial. The application judge held that the records were likely relevant and ordered that they be produced for his review. However, after reviewing the records, he declined to order disclosure of them to the accused.

[17] The accused was convicted and he appealed, partly on the basis that the records should have been produced to him.

[18] The Court of Appeal dismissed the appeal. After referring to the passage from Mills set out above, Doherty J.A., wrote for the court (at para. 75):

In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not readily available to the defence or has potential impeachment value. [Emphasis added.]

[19] The court was careful to point out that the need to show that the records may contain new information or have potential impeachment value did not raise the bar set by the Supreme Court in O’Connell. Doherty J.A. gave the following hypothetical as an example of a case in which an accused might satisfy the likely relevance requirement (at para. 76):

The requirement that an accused be able to show that the statements contained in the record have some potential to provide added information to the accused or some potential to impeach the credibility of the complainant is not an onerous one. For example, in this case, the appellant had the initial statement given to the police by [the complainant] before she commenced therapy. He also had a transcript of her lengthy examination-in-chief and cross-examination at the preliminary inquiry taken after she commenced therapy. Had counsel shown material differences between the initial statement and the preliminary inquiry testimony, these differences coupled with the fact that the complainant spoke to a therapist about these matters between the giving of the statement and giving any evidence at the preliminary inquiry may have established that statements she made to the therapist touching on matters relevant to her credibility had potential impeachment value and were, therefore, likely relevant. Similarly, had the appellant been able to produce evidence suggesting a connection between the evidence given by the complainant at the preliminary inquiry and the sessions with her therapist, this would also have established potential impeachment value. [Emphasis added.]

[20] The court in Batte held that the application judge should not have ordered that the notes be produced for his review. As the court pointed out, there was no evidence that one of the complainants had even spoken with her counsellor about the events that lead to the charges against the accused. Although there was evidence that the second complainant had spoken with the counsellor about the allegations of abuse, the court held that the accused had nonetheless also failed to establish that the records relating to that complainant were likely relevant. On behalf of the court, Doherty J.A. highlighted the fact that there was no evidence (paras. 68 and 69):

(a) that the notes contained evidence about the alleged abuse that would have been admissible on its own;

(b) that the counselling precipitated or contributed to the complainant deciding to go to the police; or

(c) that the counselling process played any role in reviving, refreshing or shaping the memory of the complainant.

[21] In the case at bar, there is evidence of (b) and (c). Unlike the facts in Batte, the complainant in this case did begin to see the counsellor before going to the police and the counsellor sat in with the complainant while she gave her statements to the police. Further, the complainant testified as follows at the preliminary inquiry during cross-examination (p. 86):

Q. Okay. So whose choice was it for you to meet with the detective when you did?

A. It was mutual. It was my choice from my parents, but when my counsellor expressed that I could talk to the detective I took it up and I wanted to.

[22] With respect to the role that the counselling played in the substance of the complaint, the complainant further testified (pp. 86-87):

Q. Okay. Now do you feel as though your memory of these events, and specifically the touching, do you feel as though it’s complete or are there parts of it that you might have blocked out or that you don’t remember?

A. There might have been parts that I blocked out and don’t remember. It happened to me roughly 10 years ago and it’s caused me a lot of pain so there was stuff that I tried blocking out and didn’t want to fully remember. So there could very well be stuff that I blocked out.

Q. Have things started to come back to you since coming forward?

A. Here and there and the stuff that I remembered you guys already asked, if I recall. There’s - I remembered stuff and then I told the detective or I told my counsellors or I told….

Q. Sure. So I guess what I’m asking you is since you came forward to the police and since you’ve been engaging in your counselling have things that you didn’t remember prior to those involvements with police and a counsellor have they started coming back?

A. Not a lot, but like one or two things.

Q. What details?

A. I forgot about the game, the pants game. I didn’t fully remember everything that happened and after talking to everyone, the detective and my counsellor and stuff things kind of popped up like more about it. Like, I remembered my brother doing his red ham thing but then I did not remember about my papa trying to make it into a game for himself as taking off his pants until I started talking to the counsellor and explaining everything that happened to me and then it came back.

Q. Was there any kind of stimulus or action that your counsellor undertook that caused that to come back into your mind?

A. No, I just told her everything that happened and then I remembered that one part. Nothing she said or did helped – like brought it back, I just remembered.

[23] The Crown contends that the complainant’s answer to the last question clearly establishes that the counselling process played no role in shaping the complainant’s memory. I disagree for three reasons.

[24] First, the accused is not obliged to accept the complainant’s opinion as to whether the counselling process had any effect on her memory. He is entitled to explore that issue, where he establishes the necessary prerequisites under the production provisions.

[25] Second, even if the accused was obliged to accept the complainant's opinion, it is clear from the complainant's testimony that, while what the counsellor said to the complainant may not have influenced the latter, what the complainant said to the counsellor did.

[26] Third, as in the hypothetical referred to in Batte, there is circumstantial evidence in this case arising from the difference between the complainant’s preliminary inquiry evidence and her statements to the police that the counselling process may have played a role in shaping her memory.

[27] I see nothing to distinguish the case at bar from the hypothetical set out by Doherty J.A. Indeed, there is possibly more case specific information in this case than in the hypothetical in Batte. The complainant in this case began to see the counsellor even before going to the police. The counsellor sat with the complainant while she gave her statements to the police. The complainant continued to see her counsellor and to discuss the alleged assaults up to and during the preliminary inquiry process. Finally, contrary to the submissions of counsel for the complainant and the record keeper, the accused has demonstrated a material inconsistency between the complainant's statements and her testimony at the preliminary inquiry.

[28] Counsel for the complainant and the record keeper submit that the complainant’s evidence about cunnilingus is merely a “detail” added to the allegations she made in her statements to the police. I am unable to accept that submission.

[29] In her evidence at the preliminary inquiry, the complainant described a series of assaults that escalated in the degree to which they violated her sexual integrity as a young girl. She testified that the accused first began to touch her breasts. He then proceeded to sucking her breasts, then to touching her vagina, and then to inserting his finger into her vagina. The complainant described this progression as a series of discrete events. She did the same with respect to the time she first saw the accused's penis, which she said happened when she woke up to find him licking her vagina. In my view, the omission in the complainant’s statements to the police of any allegation of cunnilingus constitutes an inconsistency with her preliminary inquiry evidence: see R. v. Hill, 2015 ONCA 616, at para. 45.

[30] The inconsistency is significant. The count of sexual assault in the indictment does not particularize the means by which the offence is alleged to have occurred. I agree with the submission of counsel for the accused that, if believed, the complainant’s evidence about cunnilingus could establish the actus reus for that offence. In my view, that makes the inconsistency a material one.

[31] For these reasons, the accused has established that the records are likely relevant.

INTERESTS OF JUSTICE

[32] The production provisions in the Criminal Code also differ from the process set out in O'Connor by requiring that the accused establish that production of the record is necessary in the interests of justice.

[33] I agree with the submission made on behalf of the record holder that the requirement that production be in the interests of justice requires the court to balance the potential of the records to assist the accused to make full answer and defence against the complainant's right to privacy, personal security and equality, taking into account factors listed in s. 278.5(2).

[34] I disagree, however, with counsel’s suggestion that production should only be ordered where there is “compelling” case specific information. That is not the test. As Doherty J.A. pointed out in Batte, the accused’s task in an application under the production provisions is not a particularly onerous one. As the Supreme Court of Canada said in Mills (at p. 717):

Our jurisprudence has recognized on several occasions “the danger of placing the accused in a ‘Catch-22’ situation as a condition of making full answer and defence”. [Citations omitted.] This is an important consideration in the context of records production as often the accused may be in the difficult position of making submissions regarding the importance to full answer and defence of records that he or she has not seen.

[35] The effect of counsel’s submission is to elevate some of the factors listed in s. 278.5(2) above others in importance. As the Supreme Court said in Mills, however (p. 753):

Trial judges are not required to rule conclusively on each of the factors nor are they required to determine whether factors relating to the privacy and equality of the complainant or witness “outweigh” factors relating to the accused’s right to full answer and defence. To repeat, trial judges are only asked to “take into account” the factors listed in s. 278.5(2) when determining whether production of part or all of the impugned record to the accused is necessary in the interest of justice (s. 278.7(1)).

[36] Even if I accepted the argument that compelling case specific evidence was required, I would find production necessary in this case in the interests of justice.

[37] Here, the counsellor was involved in the emergence and the shaping of the complainant’s evidence. I do not mean to suggest that the counsellor intentionally interfered with the integrity of the complainant’s memory. However, I do mean to suggest that there is at least a reasonable possibility that the counselling records may shed light on how the material inconsistency arose.

[38] I understand the highly private nature of the records at issue in this case, and in most cases, and the potentially deleterious effect on this complainant and other complainants who might be deterred from seeking counselling because of the potential for disclosure. I take into account, however, the measures that have been put in place to help to protect the complainant's rights in the production provisions. For example, even where an accused satisfies the requirements of s. 278.5(1), the records are not to be disclosed to anyone other than the motion judge. While I appreciate that that may be little comfort to a complainant with respect to whom I am still nonetheless a stranger, the complainant can rest assured that if production to the accused is ordered, it will be with respect only to those portions of the records that are likely relevant.

[39] In addition, I take into account the provisions permitting the court to hold a hearing in camera with respect to the extent of disclosure to be ordered under s. 278.6(1) and the potential conditions that may be imposed on production, set out in s. 278.7(3).

[40] Balancing these protective aspects of the production provisions against what I view as a significant possibility that the counselling notes will contain information not otherwise available to the defence or provide impeachment information, I have concluded that the notes should be produced for my review.

CONCLUSION

[41] For the foregoing reasons, I order that the records of the counsellor be produced for my review under s. 278.5(1) within 20 days of the release of these reasons. They shall be sealed and shall be delivered to the clerk of the court together with a copy of these reasons. The court staff shall be directed to this portion of the reasons.

[42] The package containing the notes shall not be opened, except by me.

[43] This matter will be addressed again at the assignment court to be held on March 4, 2019. At that time, a date will be set for a hearing to be held in camera pursuant to s. 278.6(2).

Ellies J.

Released: February 20, 2019

COURT FILE NO.: SCJ 89-18 DATE: 2019/02/20 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – C.F. REASONS FOR decision Ellies J. Released: February 20, 2018

Footnote:

[1] The video recorded statements have not yet been transcribed. Counsel for the record keeper has not conceded the inconsistency, but did not raise it as an issue in argument.