Court File and Parties

COURT FILE NO.: CR-18-4282 RELEASED ORALLY DATE: 20190611 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – K.K. Applicant

Counsel: Eric Costaris, for the Crown Kenneth S. Marley, for the Applicant John Liddle and Kevin Shannon, for the Respondent Complainant and Third Party Recordholder

HEARD: June 10, 2019

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted or transmitted in any manner.

This judgment does comply with this restriction and so can be published.

Ruling (Third Party Records)

CAREY J.

Introduction

[1] The applicant seeks an order, pursuant to s. 278.5 and s. 278.7 of the Criminal Code, for the production to counsel for the applicant of certain records pertaining to the complainant in this case, T.V.

[2] The applicant is charged with two historical sexual assault charges that are alleged to have occurred between August 1, 1978 and December 31, 1982, under the sections in force in that time period – s. 143, rape, and s. 146(1), sexual intercourse with a female under 14 years. At the time of the allegations T.V. was between the ages of nine and 13. According to his birthdate, K.K. would have been between the ages of 22 and 25. The allegations were made to police and the charges were laid when T.V. was 48 years of age.

[3] At the preliminary hearing, held June 14, 2018, T.V. testified and was cross-examined by counsel for the applicant. Following the preliminary hearing, K.K. was committed to trial by Justice Dean on both counts, on consent of the defence.

[4] The evidentiary basis for the application is derived exclusively from T.V.’s evidence, a transcript of which was included in the application record. Counsel for the respondent is in concurrence with the factual summation provided by the applicant’s counsel in the applicant’s factum, at paras. 4 through 8. In summary, it is agreed that T.V.’s evidence was that she was repeatedly abused by the applicant for approximately four years (age nine to 13).

[5] T.V. testified that memories of the events were repressed by her as a teenager but “came back...like a flash movie” when she was 19 years of age. She testified that “after the passing of my father, my memories came back stronger....” It is agreed that T.V. is imprecise or uncertain about the alleged sexual assaults, including: when the abuse began; when sexual penetration first occurred; and the number of times the penetration and other sexual touching occurred. It is also agreed that T.V. is not sure when the alleged abuse ended or the details of the first sexual contact.

[6] T.V. said that she has seen Steven Kerr for counselling for different issues over the years, but after her father’s death she went back to see him around April of 2017. The counselling has focused, since that time, with what was done to her by K.K. when she was between the ages of nine and 13. She said Mr. Kerr “knows” what was done to her and that he took notes of their conversations in the counselling sessions. She said she reported her allegations to the police after she started seeing Mr. Kerr again in the spring of 2017. She was still in counselling at the time of the preliminary hearing. When asked, in cross-examination, whether she was encouraged by Mr. Kerr to contact the police about her accusations, she responded, “The encouragement was that I needed to move forward and put this part of my life behind me, and that involved contacting the police.” She said going to the police was her idea.

Position of the Parties

[7] As is usually the case, Mr. Costaris for the Crown takes no position on this application.

[8] Mr. Marley submits that on the basis of the evidence outlined at the preliminary hearing, the reliability and credibility of T.V. will be central issues in this trial. The applicant submits that based on T.V.’s evidence it is likely that within Mr. Kerr’s notes and records there will be an account of the details of T.V.’s allegations, and given the admitted uncertainty in T.V.’s memory it is at least conceivable that there will be inconsistencies between the version of events given to the police and what was told to Mr. Kerr. Any inconsistencies will be important to the court in assessing reliability and credibility.

[9] In addition, the applicant said there is at least a temporal, if not causal, connection between T.V.’s counselling sessions and her going to the police with her allegations.

[10] The applicant relies on R. v. Mills, [1999] 3 S.C.R. 668, and argues that a balancing of the accused’s rights to make full answer and defence with the privacy and equality rights of T.V. is required under s. 278.3. Those rights are not engaged, they concede, where the information sought will only distort the truth seeking purpose of the trial. The applicant said this information will assist the court by testing T.V.’s testimony against specific details provided to her counsellor and asks this court to review the notes and records produced to edit out all but information relevant to the allegations against K.K., thus ensuring her dignity, privacy and security.

[11] The Crown identifies an order seeking production of third party records as one requiring a two-stage process. Firstly, a determination of whether the required evidentiary basis of whether the information requested is “likely to be relevant to an issue at trial”. The Crown concedes that the likely relevant standard is not a high one because of the obvious challenge in trying to show the relevance of records that the applicant has not seen. I note that the information contained in Mr. Kerr’s notes is also unknown to the respondent. T.V. agrees that notes were taken but was unaware of their contents.

[12] The respondent complainant relies on R. v. Bradley, 2015 ONCA 738, for the proposition that T.V.’s characterization of the statements made to her counsellor will not be dispositive of the application. Were it otherwise, all applications would fall on the say so of the witness whose credibility is being challenged. The respondent complainant agrees with the applicant on the tests set out in Mills, and that as set out in this court by Pomerance J. in R. v. W.F., close cases ought to be decided in favour of production.

[13] The respondent complainant points out that it is not necessary for the Crown to prove specifics of when a historical sexual offence occurred nor is the lack of a recent complaint or how a sexual complainant might act germane to this trial. The courts have been historically reluctant to order production of counselling records because they have not generally been reviewed by the person being interviewed, not recorded verbatim, and are highly subjective unlike police statements.

Analysis

[14] I have been persuaded by the submissions of both parties and the case law that the applicant has cleared the bar for this court to review the contents of the sealed envelope (Exhibit ‘A’) that contains the notes and other information provided by Mr. Kerr. I do so because trial fairness requires, especially in historical sexual assaults, that the accused be allowed every reasonable opportunity to test the evidence of what may be the only witness against him.

[15] Reliability and credibility of a complainant is crucial. An accused facing allegations that stretch back 40 years, as is here, is not required to prove his innocence. He is, however, entitled to raise a reasonable doubt by relying on inconsistencies, contradictions, or details that might allow him to raise defences such as alibi, consent, or an improper motive on the part of the complainant to have the defendant charged. While it is true here that the preliminary hearing evidence reveals previous complaints at various times by the complainant to both other counsellors and other people, this evidence all comes solely from the complainant. Given what she has said about the nature of her memory and how it has returned at different times, it is in my view critical that this court examine the proffered material from Mr. Kerr if there is any possibility that there will be information in those notes that can assist this court in its truth-finding function.

[16] I am satisfied that I can protect the privacy and security interests of the respondent complainant in a way that will not deter victims of crime from seeking counselling, by a careful review and summary of the notes and other materials.

Stage Two

[17] The material provided to me consisted of photocopies of Dr. Kerr’s handwritten notes of counselling sessions held between June 8, 2017 and February 20, 2019. I see no relevance, to this trial, of the disclosure of the number of sessions or the exact dates of sessions. I would not characterize the notes as any more than brief summaries of the sessions. The notes are completely lacking in details of the allegations. There is nothing in the notes indicating that there were any steps taken to help the witness recover memories or that any therapies were engaged in that regard.

[18] The tenure of the notes is consistent with the complainant’s evidence at the preliminary hearing as to how she came to make the allegations and the emotional rollercoaster that one would reasonably expect to be experienced by a person in her position.

[19] Exhibit ‘A’ also contains letters from Mr. Kerr to the provider of the complainant T.V.’s employee benefits. None of these letters provide any details about the allegations but rather focus on the need for support and counselling ahead of the complainant’s giving of evidence at the preliminary hearing and trial.

[20] I am unable to find any basis in law or in the material before me for finding that the applicant’s full right of answer and defence requires the release of this material. On the contrary, in my view releasing the material given its contents would only serve to discourage victims of abuse from seeking counselling and from going forward with allegations of this nature.

[21] The application is dismissed.

Released Orally: June 11, 2019 Released in Writing: June 13, 2019

COURT FILE NO.: CR-18-4282 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – K.K. Applicant RULING (third party records) Carey J.

Released Orally: June 11, 2019 Released in Writing: June 13, 2019