COURT FILE NO.: CR-1027-18
DATE: 2020-01-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
S. L.
Applicant
Kara Vakiparta, for the Crown
Stephanie Farrell, for the Applicant
John Saftic, for the Complainant
HEARD: January 23, 2020
DECISION ON APPLICATION
R.D. Gordon, J.
Overview
[1] The applicant received production of private third-party records of the complainant pursuant to an application brought under ss. 278.2 to 278.8 of the Criminal Code of Canada. He now wishes to adduce all or part of those records at his trial. I am asked to determine whether he must first comply with ss. 278.92 to 278.94 of the Criminal Code, and if so, whether he has so complied.
Background
[2] The applicant is charged with sexual assault, sexual interference, and invite sexual touching alleged to have occurred between September of 1992 and December of 1996. At the time, the complainant was a Crown ward in foster care. She was three years old in 1992.
[3] The applicant was the son of the complainant’s foster parents. He was 18 years of age in 1992.
[4] In the course of these proceedings, the applicant brought an application for disclosure of records pertaining to the complainant and held by the local Children’s Aid Society (the “CAS”). On September 12, 2018, the Crown, the applicant, the complainant and the CAS consented to an order by which the complainant’s CAS records would be vetted by the CAS and disclosed to the Crown, the defence and counsel for the complainant. The records were subsequently disclosed in accordance with that order.
[5] At the preliminary hearing, the complainant provided a detailed account of a discussion with a CAS worker in which she disclosed specific allegations against the applicant. She testified that the CAS worker would make regular visits to the foster home and would speak privately with her and inquire about how things were going. She testified that she was truthful and honest with the CAS worker.
[6] The complainant’s brother was in foster care at the same home. He also testified at the preliminary hearing and confirmed the regular attendance of the CAS worker and recalled that complaints made to her were recorded by the worker in a book.
[7] The CAS records pertaining to the complainant encompass 2,136 pages and apparently include many minute details of the complainant’s time in this foster home. The sole reference in the notes to any complaint concerning the applicant is a caseworker note dated September 29, 1995:
“Vanessa supposedly told [vetted name] she was uncomfortable with Sam babysitting. [Vetted name] told Rollande – Rollande talked to Karen – Sam never touches kids – never bathes them, etc. Vanessa said she never said this to her mother – Karen decided Sam not to babysit to protect him.”
[8] The applicant submits that the testimony of the complainant that she provided detailed complaints to her CAS worker concerning the applicant is inconsistent with there being such limited reference to any complaint against the applicant appearing in those records. He wishes to adduce evidence of the notes at trial to challenge her credibility.
[9] The applicant raises two issues:
Does the admissibility framework set out in s. 278.92 of the Criminal code apply to records that have been produced to the Applicant in a pre-trial application under s. 278.2-278.8 of the Criminal Code?
If yes, is the evidence he seeks to adduce relevant to an issue at trial and does it have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice?
Analysis
Does s. 278.92 apply?
[10] Canadian criminal law has entered a new and long overdue era in which adjudication of sexual offences requires a balancing of interests. The court must, of course, consider an accused’s right to a fair trial and to make full answer and defence. But it now must also consider a complainant’s right to privacy and personal dignity, and society’s interest in encouraging the reporting of sexual offences and the obtaining of treatment by complainants. It is in the context of this new era that I am asked to determine if s. 278.92 applies when the records in question have been obtained by the accused pursuant to an order for production made under s. 278.2 through 278.7.
[11] Section 278.92 provides as follows:
• 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…
[12] The CAS documents clearly constitute a record relating to a complainant. They are in the possession of the applicant. The applicant intends to adduce them. At least on its face, all of the requisites for the application of the section exist.
[13] However, the applicant asks the court to distinguish between records that have come into his possession by way of a production order made under s. 278.7, and records that are otherwise already in his lawful possession. He submits that s. 278.92 applies to the latter, but not the former and offers four reasons why.
[14] First, he argues that interpreting s. 278.92 in a manner that applies it to any “record” renders the words “In the possession or control of the accused” meaningless. Put another way, he submits that if Parliament had intended to apply s. 278.92 to all “records” the defence intends to adduce, regardless of the source of the records, it could have done so without adding the words “in the possession or control of the accused”.
[15] I disagree. Requiring the applicant to comply with s. 278.92 when the records are in his possession or control does not equate to the requirement that s. 278.92 apply to all records he intends to adduce. Section 278.92 differentiates between records relating to a complainant that are in the possession or control of the applicant, and records relating to a complainant that are not in the possession or control of the applicant. If the record is not in the possession or control of the applicant and he intends to adduce evidence of it, he need not comply with the section. Accordingly, the section does not purport to apply to all records. If an applicant has knowledge of records that are neither in his possession nor his control and is able to establish the relevance of those records, he may adduce evidence of them without complying with this section.
[16] The second argument offered by the accused is prefaced on the argument that s. 278.92 applies to all records. As I have determined that it does not apply to all records the second argument is of no moment.
[17] The third argument offered by the applicant is the wording of s. 278.7. He argues that because s. 278.7(5) specifically addresses the use of records produced to an accused pursuant to a production order but does not indicate that their use is circumscribed by s. 278.92, it must have no application to such records.
[18] I disagree. Sections 278.7 provides the mechanism by which records of a complainant that are in the possession of someone other than the accused may eventually be produced to an accused. Subsection 278.7(5) provides that no part of the record that is produced to an accused pursuant to a production order may be used in any other proceedings. The production process is undertaken with a view to the use of the records in the proceeding in which the application is made. Subsection (5) simply codifies that the records may not be used in any other proceedings. It does not speak to admissibility of the records in the proceeding before the court or, for that matter, any other proceeding.
[19] The final reason offered by the applicant is his contention that s. 278.92 was enacted in response to the decision of R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 (SCC), a case involving records that had not been produced through the third party records regime and were otherwise lawfully in the possession of the accused. He argues that if the section was enacted to address the situation in Shearing, and Shearing dealt with records that had not been produced through the third-party records regime, s. 278.92 should be restricted to records in the lawful possession of the accused that were not produced through the third-party records regime.
[20] Although I may agree that s. 278.92 had its genesis in Shearing, I do not agree that Parliament’s intent was to limit its application to records not obtained through the third-party records regime and otherwise lawfully in the possession of an accused. In Shearing, the court was acutely aware of the fundamental difference between production and admissibility, as evidenced by the following passages:
96 …To treat production as a proxy for admissibility would complicate proper hearings under ss. 278.1 to 278.9, where trial judges proceed on the basis that the issue at the early stage is only production. Admissibility is properly left to be determined later when the matter is ripe for decision.
103 In my view, the trial judge erred in extrapolating the O’Connor test from the issue of production of information not previously disclosed to the defence and applying it to the admissibility (or use in cross-examination) before the jury of evidence already in the possession of the defence.
104 A simple “balancing of interests” test (O’Connor, supra, at paras. 129 and 150) cannot be equated to “substantially outweighs” (Seaboyer and Osolin)…
[21] This test for admissibility is fundamentally different from the test for production, and for good reasons. To begin with, when production is considered it is unlikely there can be a full appreciation of the relevance of the record or its probative value. This would be why the test for production is “likely relevance” and the test for admissibility 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”. Secondly, there is a potentially significant difference in the assessment of the impact on the complainant’s right to privacy and personal dignity. No longer is he or she facing production of records restricted to the accused and the crown with provision that they not be disseminated. He or she is now facing the prospect of being confronted with those records in open court and being cross-examined on their contents. He or she is faced with those records being disclosed to those in attendance, including friends and family, the accused and all who are present in support of him or her, and to complete strangers. Media presence may extend disclosure of the contents of the records to the public at large, albeit without information that would serve to identify the complainant specifically. As put by Green J. in R. v. J.P., 2019 ONCJ 871, “A decision as to admissibility can well have greater visceral impact on a complainant”.
[22] Finally, the applicant also raised potential inefficiencies should s. 278.92 apply to records in his possession that have already been subject to review for the purposes of production. There can be little doubt that he is correct. However, trial inefficiency does not allow me to ignore a test for admissibility of evidence legislated by parliament. If trial inefficiencies arising from this provision are found to be jeopardizing the right of an accused to be tried within a reasonable time, there is a remedy available.
[23] In my view, s. 278.92 codifies the test for admissibility of records of the complainant in the possession or control of an accused, no matter how the records have come into his possession or control.
Compliance with s. 278.92
[24] A determination of admissibility under s. 278.92 is a two-step process. In step one, the court must determine if the application: (1) Is made in writing; (2) Sets out detailed particulars of the evidence the accused seeks to adduce and the relevance of that evidence to an issue at trial; (3) Has been given to the prosecutor and the court at least seven days in advance of the step one hearing; and (4) Is with respect to evidence that is capable of being admissible. If the requirements of step one are met, step two is undertaken – a hearing to determine if the evidence is admissible under s. 278.92(2).
Step One
[25] The applicant asks for permission to adduce into evidence or cross-examine the complainant on, the CAS records, and more particularly, to cross-examine the complainant on the absence of any entries related to the allegations that are before the court.
[26] The Crown questions whether the applicant has met the requirement of “detailed particulars”.
[27] This application is somewhat unusual because the applicant wishes to use the records not for what is contained in them, but for what is not. Accordingly, the applicant cannot provide greater particularization with respect to their use. He says these are records in which one would expect to find the complaints of the complainant if in fact she made them. His interest is in showing that the complaints were not recorded and have the court draw the inference that they therefore were not made.
[28] Although more detailed particulars would normally be required of an applicant, in the circumstances of this case I am satisfied that the particulars provided meet the requirements of the section.
[29] No other issue has been taken with the requirements of step one, and I find them to have been satisfied.
Step Two
[30] Step two of the process requires me to determine whether the evidence is relevant to an issue at trial, whether it has significant probative value, and whether its probative value is substantially outweighed by the danger of prejudice to the proper administration of justice, having regard to factors set out in subsection (3).
[31] In my view, the records are relevant and of potentially significant probative value.
[32] The credibility of the complainant is a significant issue. The absence of entries relating to sexual abuse by the applicant is significantly probative for two reasons: (1) The complainant testified that she reported sexual abuse by the applicant to her CAS worker and (2) It might reasonably be expected that such a report would be recorded and acted upon by the CAS worker.
[33] In considering the factors set out in ss. (3), I note the following:
• Cross-examination of a complainant on apparent inconsistencies between their evidence and the records for the purpose of impeachment is an important aspect of an applicant’s defence. The applicant’s right to make full and answer and defence favours admissibility.
• Child protection records attract a high degree of privacy. By their nature, they are likely to reveal why a complainant was in need of protection from their own family, what medical treatment they received, and what behavioural challenges they presented, among other things. To open those records in a public trial would not encourage the reporting of sexual offences.
• There is a reasonable prospect that the evidence will assist in arriving at a just determination in this case, as the complainant’s credibility and reliability is of significant importance in the case against the applicant.
• The records are not likely to result in any discriminatory belief or bias.
• There is potential significant prejudice to the complainant’s personal dignity and right of privacy should the applicant be allowed to cross-examine her on the records without limitation.
[34] On consideration of all of these factors, I find that there is a danger to the proper administration of justice should the records be adduced by the applicant in their entirety. However, with appropriate limitations, that danger does not substantially outweigh their probative value.
[35] Clearly, cross-examination of the complainant on the caseworker note dated September 29, 1995 is appropriate.
[36] In addition, cross-examination on the records in general terms to establish their breadth and to gain an admission that they contain no other reference to any sexual misconduct on the part of the applicant is appropriate. If the complainant is not willing to concede that the records contain no other reference to the allegations made, the appropriate course is to ask the complainant to direct the court to those parts of the records she believes references them. Counsel for the complainant has advised the court that the complainant has had an opportunity to review the records in their entirety and could be given a further opportunity to do so. Proceeding in this fashion would, to the extent possible, respect the privacy rights and personal dignity of the complainant.
[37] The Applicant also argued that the appropriate time for the admissibility arguments concerning this evidence is at trial when there exists a more fulsome record to determine its probative value. Where, as here, there are transcripts and evidence establishing probative value, and no reason to believe the evidence will change, it is appropriate to determine admissibility in advance of trial. This will assist with trial efficiency, allow the accused to develop his trial strategy in advance, and will reduce the logistical pressures associated with having to arrange representation of the complainant at the last minute. Of course, should her evidence change at trial such as would require reconsideration of admissibility, either the Crown or defence would be at liberty to request such reconsideration.
The Honourable Mr. Justice Robbie D. Gordon
Released: January 28, 2020
COURT FILE NO.: CR-1027-18
DATE: 2020-01-28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
S. L.
Applicant
Decision on Application
R.D. Gordon, J.
Released: January 28, 2020