COURT FILE NO.: 17-DV6308
DATE: 2019/02/26
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. John Brown[^1]
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Anya Kortenaar, for the Crown Michael Spratt, for the Accused Blair Crew, for the Complainant
HEARD: February 19, 2019
Ruling Pursuant to s. 278.92 of the Criminal Code
[1] This is a ruling pursuant to s. 278.92 of the Criminal Code of Canada. This is a new section of the Code enacted as part of Bill C-51, given Royal Assent on December 13, 2018. It is part of a series of amendments to the procedure for conducting a voir dire in relation to the production of records under s. 278. The amendments expand the prohibition on the use of personal records to include records already in the possession of the accused. In addition, the procedures for the voir dire under either s. 276 (2) or s. 278.92 (2) are harmonized and codified in new ss. 278.93 and 278.94. Under the amendments, the complainant is given standing at the hearing and the right to counsel although the complainant is not compellable.
[2] Section 278.1 defines “record” to mean any form of record that contains personal information for which there is a reasonable expectation of privacy” and includes medical, psychiatric, therapeutic and counselling records amongst others as well as diaries, personal journals or similar records. No such record may be admitted in evidence unless it has been screened and assessed against a number of factors enumerated in the Code. Section 278.92 deals with such records that are already in the possession of the accused whereas other similar sections deal with records that are sought by way of a third party records application.
[3] Although I gave an oral ruling at the hearing, I indicated I would provide written reasons as this is one of the first times that s. 278.92 has come before the court since coming into force. Because some guidance from jurisprudence is in the interests of justice, pursuant to s. 278.95 of the Code, I authorize publication of these reasons provided they are anonymized to comply with the publication ban made under s. 486.4. For that reason, I will use pseudonyms in referring to the accused and the complainant. I will refer to the complainant as Jane Doe and the accused as John Brown.
Background
[4] Mr. Brown is charged with 11 offences including three counts of sexual assault, one count of assault, threatening to kill an animal, and assault by threatening with a weapon. The issue of records arises because the complainant attended at the hospital for treatment for panic attacks and depression contemporaneous with one or more of the incidents that are the subject of the criminal charges. At that time she reported information to a social worker and physician which are at odds with the statement she subsequently gave to the police.
[5] The hospital records were obtained by the police pursuant to an authorization signed by the complainant and were subsequently produced to the accused as part of the Crown disclosure. The accused seeks to make use of these records for cross-examination purposes and perhaps to call the physician or social worker to prove the statements allegedly made by the complainant were accurately recorded. Between the time of the disclosure and the date of the trial, the amendments to the Code came into effect.
[6] Due to the amendments, this application proceeded as a two part process. Firstly, on February 6th, 2019 on application by the Crown with the consent of the accused, Justice Ratushny made an order ordering publically funded counsel for the complainant pursuant to the protocol for legal aid management of court ordered publically funded counsel (Rowbotham Pilot Project). This resulted in Mr. Crew being retained to represent the complainant on this application.
[7] At the pre-trial motion on February 19th, 2019, the defence sought leave to use the records in question for the purpose of cross-examination. The Crown conceded that the materials should be admissible weighing the test set out in s. 278.92 (2) (b) of the Code and the factors found in s. 278.92 (3). On behalf of the complainant, Mr. Crew argued against use and admissibility on the basis of a continuing reasonable expectation of privacy in the records.
Analysis
[8] Pursuant to s. 278.92 (1) (b) of the Code, no record in the possession of the accused relating to a complainant may be used at the trial unless “the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.” In making that determination, the court must apply the factors in subsection (3) which reads as follows:
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
[9] In this case there is obvious concern in relation to factors (c), (g) and (h) as the complainant was seeking treatment and there are many reasons she might have chosen to give information in a therapeutic setting which does not concur with information she later gave to the police. Nevertheless, factors (a) and (d) weigh heavily in favour of permitting the records to be used for the limited purpose of impeaching the anticipated testimony of the complainant.
[10] Although I agree with Mr. Crew that medical and therapeutic records do not purport to be transcripts or verbatim recordings of what the complainant said, a previous inconsistent statement is an important tool of cross examination subject to requirements set out in the Canada Evidence Act[^2]. Moreover, the right of full answer and defence is a right guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms[^3]. It would be unjust not to permit the accused the use of these records to prove prior inconsistent statements
[11] In conclusion, the notes made by the social worker and physician who interviewed the complainant during her visit to the Ottawa Hospital may be used by the accused during the trial for purposes of cross examination. In addition, if it is necessary to call a witness to prove that statements were made and accurately recorded, the records may also be used for that purpose.
[12] These reasons may be published providing anonymity is preserved.
Date: February 26, 2019
Mr. Justice C. MacLeod
COURT FILE NO.: 17-DV6308
DATE: 2019/02/26
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen v. John Brown
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Anya Kortenaar, for the Crown Michael Spratt, for the Accused Blair Crew, for the Complainant
ruling pursuant to s. 278.92 of the criminal code
Mr. Justice Calum MacLeod
Released: February 26, 2019
[^1]: This is a pseudonym to permit publication of these reasons. There is a ban pursuant to s. 486.4 of the Criminal Code prohibiting publication of any information that could identify the complainant in this proceeding. In addition there is an automatic prohibition on publication pursuant to s. 278.95 of the Code except as permitted by a judge’s order. [^2]: R.S.C. 1985, c. C-5 [^3]: S. 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1