Her Majesty the Queen v. Denis Guindon, 2020 ONSC 1035
Court File and Parties
Court File No.: CR-18-SA5061 Date: 2020/02/18 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Denis Guindon, Applicant
Counsel: Michael Boyce, for the Respondent Joshua Clarke, for the Applicant Jo-Anne Meloche, for the Complainant, RB
Heard in Ottawa: February 12, 2020
Reasons for Decision
O’Bonsawin J.
Background
[1] Mr. Guindon is charged with committing indecent assault (s. 156) and buggery (s. 155) against the Complainant, RB, contrary to the Criminal Code (Code), R.S.C. 1970, c. C-34. Mr. Guindon’s trial is scheduled to take place from February 18-27, 2020. The alleged timeframe of these charges spans from May 1, 1974, to December 21, 1983.
[2] The Defence brings an Application for the following:
- an order permitting him to adduce evidence of other sexual activity; and
- an order admitting into evidence records relating to the Complainant in the Defence’s possession.
[3] More specifically, the Defence seeks to adduce: 1) evidence that the Complainant has made complaints of sexual assault by Mr. Levesque; and 2) the following records obtained from the Criminal Injuries Compensation Board of Ontario (“Board”) in respect of case file #1605-03453: a) letter from the Complainant; b) Application for Compensation signed May 9, 2016; c) letters from CB dated May 6, 2016 and September 21, 2016; d) letter from SB dated May 8, 2016; e) email from CB to Reuel Amdur dated September 18, 2016; f) emails between Reuel Amdur and CB dated September 22, 2016; and g) email from David Page dated October 27, 2016.
[4] The records sought were first obtained pursuant to a hearing as per s. 278.3 of the Code.
[5] The following is relevant information that has been provided to this court pertaining to the Defence’s Application. The Complainant’s Application to the Board refers to previous sexual history regarding Mr. Levesque at the first foster home in which the Complainant was placed.
[6] In his Application, the Complainant did not identify Mr. Guindon as someone who had sexually assaulted him. However, at a later date, the Complainant provided updated information and advised he had also been sexually assaulted by Mr. Guindon.
[7] Furthermore, during the preliminary inquiry, the Complainant was asked if he had been sexually assaulted in any other foster homes prior to arriving to the Guindon foster home and he replied that he had not.
Position of the Parties
[8] The Defence argues that the records sought to be adduced and the proposed evidence of other sexual activity are, to a certain extent, inconsistent with the Complainant’s evidence at the preliminary inquiry and are therefore relevant to an issue at trial, that being the credibility and reliability of the Complainant. He argues that the records sought are a source of information concerning the timing of the Complainant’s Application to the Board and the fact that in his original Application, the Complainant did not refer to Mr. Guindon. Therefore, this information is relevant to the Complainant’s motivation, and thus his credibility and reliability.
[9] The Defence further submits that the purpose of adducing the evidence that the Complainant had been sexually assaulted in another foster home will highlight the disparity in reporting as well as inconsistencies with the Complainant’s evidence at the preliminary inquiry and not to suggest that the Complainant is less worthy of belief by the virtue of having engaged in other alleged sexual activity.
[10] The Defence also raises that this allegation has already been subject to a hearing before the Board and therefore the potential prejudice to the Complainant’s privacy and dignity is minimal. In addition, the records sought have already been the subject of a hearing before this court.
[11] Lastly, the Defence submits that the disparity and inconsistencies, whether with respect to other sexual activity or the subject matter of these charges, have significant probative value that outweighs any danger to the administration of justice.
[12] The Crown takes the position that the Defence may rely on the inconsistencies in the Board documents as compared to the Complainant’s testimony at the preliminary inquiry. More specifically, all the non-sexual components regarding inconsistencies are fair game. For example, if the Complainant provided details about the abuse at the preliminary inquiry and there is something in the Board file that is inconsistent with this evidence, the Defence ought to put inconsistencies to the Complainant when they are related to specific abuse alleged against Mr. Guindon.
[13] Furthermore, the Crown does not take issue with the possibility that the Defence use the Board record to cross-examine the Complainant on the fact that in his original Application to the Board, he did not name Mr. Guindon as a person who sexually assaulted him.
[14] The Crown also submits that any prior sexual assault is collateral in nature and not tied to the core issue at trial, whether the Complainant was sexually assaulted by Mr. Guindon. This trial is about whether the Complainant was sexually assaulted by Mr. Guindon and not whether he was sexually assaulted by Mr. Levesque. The Crown relies on R. v. A.R.B., [1998] O.J. No. 3648 in which the Court of Appeal found that a witness’ credibility cannot be impugned by contradicting a witness on matters that are collateral, even in a case where the main issue is credibility. The court quotes Phipson and states:
A party may not, in general, impeach the credit of his opponent’s witness by calling witnesses to contradict him as to matters of credit or other collateral matters, and his answers thereon will be conclusive. This rule is not absolute. The test whether a matter is collateral or not is this: “if the answer of a witness is a matter which you would be allowed on your own to prove in evidence - if it had such a connection with the issues, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him” (para. 13).
[15] For his part, the Complainant argues that the Defence does not meet the requirements as per s. 276 of the Code. Protecting the security and privacy of the witness is a compelling interest for the proper administration of justice. It is critical that the relevance of sexual activity evidence to an issue at trial is “identified with precision” and anchored to a specific, legitimate purpose. Bare assertions that such evidence is relevant to context, narrative and credibility are insufficient.
[16] In addition, the Complainant submits that the Defence can still attack his motives, credibility and reliability as a witness on the facts of this case and are not dependent on any minor and understandable inconsistencies in his evidence regarding past emotionally traumatic sexual history.
[17] It is the Complainant’s position that the probative value of his omissions in these circumstances is tenuous compared to the highly prejudicial effect of bringing up his painful childhood experiences. The fact that the Complainant raised the allegations against Mr. Guindon a couple of months after the original Application to the Board was filed is of no probative value.
[18] Lastly, the Complainant argues that the line of enquiry sought by the Defence is why s. 276 was enacted: to protect the dignity and privacy of alleged victims of sexual violence and provide a safe venue for providing the best evidence.
Analysis
[19] I will begin by addressing the Crown’s argument about the evidence in question being collateral in nature. I agree with the Defence that para. 13 cited by the Crown in R. v. A.R.B. stands for the proposition that a party cannot impeach a witness by calling witnesses to contradict him on other collateral matters. This is not a case where other witnesses will be called to contradict collateral matters. This evidence will be used in cross-examination. Consequently, this is not a relevant consideration in this matter.
[20] I turn to my review of the relevant sections in the Code with regards to this Application that is made pursuant to s. 278.93 of the Code. Sections 278.93 and 278.94 state:
278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2). (2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court. (3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded. (4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).
278.94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
[21] The Crown raised that the Defence did not follow the requirements as per s. 278.93(2). The Crown advised that this Application could proceed if the Defence confirmed that the only live issue is whether the acts occurred. Since the Defence made such an agreement on the record, the Crown was in agreement to proceed despite this deficiency. With this agreement, I proceeded in camera to hear arguments regarding this Application.
[22] According to s. 278.92, the Board records that were released to the Defence as per my last ruling regarding the production of such records are inadmissible unless I order their production in accordance with the procedure set out in s. 278.93 and 278.94. Sections 278.92(1) and 278.92(2) read as follows:
278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or (b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, (a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or (b) in any other case, that 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.
[23] As per s. 278.92(3), in determining whether evidence is admissible under s. 278.92(2), the judge must 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.
[24] Section 276(1) provides context about evidence that the complainant engaged in sexual activity. More specifically, this section states:
In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 213, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief.
[25] With regards to proceedings for charges of sexual assault, s. 276(2) notes that evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence (a) is not being adduced for the purpose of supporting an inference described in subsection (1); (b) is relevant to an issue at trial; (c) is of specific instances of sexual activity; and (d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[26] The factors that must be considered by the judge as per s. 276(3) are as follows: (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) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (d) the need to remove from the fact-finding process any discriminatory belief or bias; (e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (f) the potential prejudice to the complainant’s personal dignity and right of privacy; (g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (h) any other factor that the judge, provincial court judge or justice considers relevant.
[27] Based on the Defence’s Application and arguments, I have broken down the information sought to be adduced into four categories:
- the fact that the Complainant’s Application to the Board refers to a previous sexual history regarding Mr. Levesque;
- in his Application, the Complainant did not identify Mr. Guindon as someone who had sexually assaulted him and later provided updated information and advised he had also been sexually assaulted by Mr. Guindon;
- during the preliminary inquiry, the Complainant was asked if he had been sexually assaulted in any other foster homes prior to arriving to the Guindon foster home and he replied that he had not; and
- information contained in certain documents related to Mr. Guindon allegedly sexually assaulting the Complainant.
[28] I will review each category according to my obligations as per s. 278.92.
1) The Complainant’s Application to the Board refers to a previous sexual history regarding Mr. Levesque.
[29] It is clear that this evidence falls under the purview of s. 276: it is previous sexual history. I find that this evidence fails the first condition for admissibility as per s. 276(2)(a). The Defence argues that this evidence will be used to attack the Complainant’s credibility. This evidence could be adduced for the purpose of supporting an inference that the Complainant is less worthy of belief because he claims he was sexually assaulted by other individuals when he was in foster care. Therefore, a further analysis is not required.
[30] The contents related to claims that the Complainant was sexually assaulted by other individuals when he was in foster care contained in his letter (pp. 91-92 of the Board records), CB’s letter dated May 6, 2016, SB’s letter dated May 8, 2016 (pp. 221-222) and the e-mail from Mr. Page to the Board dated October 27, 2016 (p. 244) cannot be used in cross-examination regarding this issue.
2) In his Application, the Complainant did not identify Mr. Guindon as someone who had sexually assaulted him and later provided updated information and advised he had also been sexually assaulted by Mr. Guindon.
[31] I find this evidence is not captured within the spirit of s. 276(1). The Defence points to this evidence not as evidence of sexual activity, rather evidence that the Complainant may have been inconsistent in his evidence because he only added Mr. Guindon’s name after the original Application to the Board was submitted. I agree. This is not evidence that will be put forward to demonstrate that the Complainant is less worthy of belief because of the sexual activity. It is evidence that relates to a possible inconsistency in the Complainant’s evidence about timing, not about the sexual activity with Mr. Guindon per se. Consequently, I will follow the analysis as per s. 278.92(2)(b).
[32] As per s. 278.92(2)(b), this evidence is relevant to an issue at trial: my assessment of a witness’ credibility and reliability. As I will describe afterwards, I find this evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[33] I turn to the review of the s. 278.92(3) factors. I find this evidence of timing is in the interests of justice, including the right of Mr. Guindon to make a full answer and defence. It does not impact the society’s interests regarding the reporting of sexual assault offences and in encouraging the obtaining of treatment by complainants of sexual offences. There is a reasonable prospect that this evidence will assist in arriving at a just determination in the case since it may be a component to consider when assessing the evidence as a whole. Since this is a question of timing, the need to remove from the fact-finding process any discriminatory belief or bias is not a relevant consideration. This is a judge alone trial, therefore, the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury is irrelevant. An issue of timing cannot prejudice the Complainant’s personal dignity and right of privacy nor impact the right of the Complainant and of every individual to personal security and to the full protection and benefit of the law. Lastly, it has been argued by the parties that on one hand, this information is private, and on the other hand, it is not. I have not been provided with any evidence as to how the Board treats the Application form and other documents it receives. Consequently, I cannot comment on this point.
[34] Based on my review of the evidence in light of s. 278.92 and its related factors, I find this evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This issue deals with a matter of timing. The probative value of this evidence relates to Mr. Guindon’s ability to make full answer and defence and does not affect the proper administration of justice.
[35] Consequently, the Defence can use the Application for Compensation signed May 9, 2016 (pp. 198-205) to cross-examine the Complainant on this issue.
3) During the preliminary inquiry, the Complainant was asked if he had been sexually assaulted in any other foster homes prior to arriving to the Guindon foster home and he replied that he had not.
[36] My analysis for this category of evidence will mirror my analysis with regards to the second category. I find this evidence is not captured within the spirit of s. 276(1). The Defence points to this evidence not as evidence of sexual activity, rather evidence that the Complainant may have made a prior inconsistent statement since the information in the Board record related to prior sexual assaults is different than his evidence at the preliminary inquiry. I agree. This is not evidence that will be put forward to demonstrate that the Complainant is less worthy of belief because of the sexual activity. I find that this evidence relates to a possible inconsistency in the Complainant’s evidence. Consequently, I will follow the analysis as per s. 278.92(2)(b).
[37] As per s. 278.92(2)(b), this evidence is relevant to an issue at trial: my assessment of the witness’ credibility and reliability. As I will describe afterwards, I find this evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[38] I turn to the review of the s. 278.92(3) factors. I find this evidence of possible inconsistency in the Complainant’s evidence is in the interests of justice, including the right of Mr. Guindon to make a full answer and defence. It does not impact the society’s interests regarding the reporting of sexual assault offences and in encouraging the obtaining of treatment by complainants of sexual offences. There is a reasonable prospect that this evidence will assist in arriving at a just determination in the case since it may be a component to consider when assessing the evidence as a whole at the trial. Since this is a question of possible inconsistency, the need to remove from the fact-finding process any discriminatory belief or bias is not a relevant consideration. As this is a judge alone trial, the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury is irrelevant. An issue of possible inconsistency cannot prejudice the Complainant’s personal dignity and right of privacy nor impact the right of the Complainant and of every individual to personal security and to the full protection and benefit of the law.
[39] Based on my review of the evidence in light of s. 278.92 and its related factors, I find this evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This issue deals with a possible inconsistency in the Complainant’s evidence. The probative value of this evidence relates to Mr. Guindon’s ability to make full answer and defence and does not affect the proper administration of justice.
4) Information contained in certain documents related to Mr. Guindon allegedly sexually assaulting the Complainant.
[40] This information which describes the alleged sexual assaults that the Complainant would have suffered at the hands of Mr. Guindon is not used to demonstrate that the latter is more likely to have consented to the sexual activity that forms the subject-matter of the charge or that he is less worthy of belief. I find this evidence to be relevant to an issue at trial: whether the Complainant was sexually assaulted by Mr. Guindon, it is of specific instances of sexual activity and it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
[41] I turn to a review of the factors of s. 276(3) in light of this evidence. I find this evidence is in the interests of justice, including the right of Mr. Guindon to make a full answer and defence. Society’s interest in encouraging the reporting of sexual assault offences is not diminished by this evidence since the Complainant first filed an Application to the Board. It is a reasonable prospect that the evidence will assist in arriving at a just determination in the case since it will provide narrative and context. There is no need to remove from the fact-finding process any discriminatory belief or bias. The risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury is not a relevant factor since this is a judge alone trial. There is a limited potential prejudice to the Complainant’s personal dignity and right of privacy. He has already provided this information to the Board in another administrative legal context to seek funding for treatment and compensation. Lastly, the right of the Complainant and of every individual to personal security and to the full protection and benefit of the law is not impacted.
[42] The content related to the Complainant’s claim the he was sexually assaulted by Mr. Guindon contained in his letter (pp. 91-92 of the Board records), CB’s letters dated May 6, 2016 and September 21, 2016 (pp. 222-223), email from CB to Reuel Amdur dated September 18, 2016 (p. 238), emails between CB and Reuel Amdur dated September 22, 2016 (p. 240) and Mr. Page’s email to the Board dated October 27, 2016 (p. 244), can be used in cross-examination on this issue.
Conclusion
[43] For all of the reasons above, the Application is granted in part.