COURT FILE NO.: CR-19-1991-0000
DATE: 2021 04 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. E.R.
BEFORE: D. E. Harris J.
COUNSEL: Hillson Tse for the accused
Jessyca Greenwood for the complainant
Keeley Holmes for the Crown
DATE: March 31, 2021 by Zoom video conference
PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE COMPLAINANT IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THIS JUDGMENT CONFORMS WITH THIS BAN.
PUBLICATION IS BANNED PURSUANT TO S. 648(1) OF THE CRIMINAL CODE
MILLS AND SEABOYER RULING
[1] The accused is charged with historical sexual offences against his son. He brings a Mills application for production of counselling records. The Crown brings a Seaboyer application.
[2] With respect to the production application, Mr. Tse on behalf of the defendant requested an order that the complainant provide any contact or other information that could assist in locating two therapists who may have treated the complainant back in the 1990’s. Thus far, the complainant has been quite co-operative in supplying information with respect to the location and involvement of therapists he has seen over the years. But Mr. Tse thought he had more information to give.
[3] Ms. Greenwood, acting for the complainant, advised at this hearing that with respect to these two therapists, the complainant has no further information he can provide. Mr. Tse, quite reasonably, was satisfied with this response and did not pursue the request for an order compelling the complainant to give further information.
[4] One other therapist has been located and produced records under seal for the Mills procedure. She treated the complainant after the initial complaint to the police in 2017. The parties all agreed that the most expeditious and fair procedure would for me to inspect the documents for likely relevance. After inspecting them, I ruled them inadmissible at the hearing.
[5] As was evident from the therapist’s notes, the complainant mentioned his father’s abuse but only in the most general way. In my view, Justice Doherty’s words in R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.) are directly on point,
71…In my view, the mere fact that a complainant has spoken to a counsellor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant's credibility.
72 I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant's credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value. To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O'Connor, between relevance for the purposes of determining the Crown's disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge.
(Emphasis Added)
[6] The therapy records in this instance would be of no use to the accused at trial and should not be produced. The records simply document that the complainant talked to this therapist about the abuse at his father’s hands. There is no detail of any kind in the notes. Taking into consideration that this was subsequent to the complaint to the police, nothing would be gained by releasing these records to the defence. That disposes of the Mills application.
[7] With reference to the Seaboyer application, R. v. Barton, 2019 SCC 33 (S.C.C.) holds that when the Crown intends to adduce sexual history evidence, although Section 276 pertains only to defence evidence, the same policy concerns operative in a defence application must be addressed. The Supreme Court held that the common law Seaboyer approach should be applied in these circumstances: Barton, para. 80.
[8] There was no real dispute with respect to the admissibility of the Crown evidence proposed in this case. The Crown alleges that the accused directed that the complainant and his sister engage in sexual acts in his presence. He masturbated while this took place. I do not believe that this evidence is encompassed by the presumptive exclusion in Section 276(2) of the Criminal Code because the sexual acts alleged constitute the “subject matter of the charge” before the Court. Such evidence does not need to be channelled through the Section 276 analysis and would not, by parallel reasoning, need to be scrutinized under Seaboyer either. Specifically, this allegation is part and parcel of count #2 of the indictment charging the offence of gross indecency. It is not extrinsic evidence as envisioned by the presumptive prohibition. In any case, even if the presumptive exclusion were to be said to apply, because of the accused’s presence and participation in the sexual activity, it is inconceivable that this evidence would not be admissible. It is devoid of twin myths reasoning and has significant probative value with only minimal prejudicial effect. It is my understanding that Mr. Tse did not argue that this evidence ought not to be held admissible.
[9] There may also be evidence that the complainant and his sister engaged in sexual activity when the accused was not present. I agree with the Crown that in law this evidence is markedly different than the evidence of the sexual activity with the accused present. For this evidence to be admissible, the defence would have to make and succeed with a Section 276 application. I note that Ms. Tse did not disagree with this suggestion. It seems there is no present intention to make such an application.
[10] That dispenses with the legal issues argued on this hearing. I would add that it would be advisable that counsel be as cautious as possible with the complainant’s evidence at trial. The preliminary hearing transcript demonstrates that he was a witness prone to blurting out unresponsive information during his testimony. In a jury trial, which this is currently slated to be, that could pose a significant challenge both for counsel and the trial judge.
D.E. Harris J.
DATE: April 8, 2021
COURT FILE NO.: CR-19-1991-0000
DATE: 2021 04 08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. E.R.
BEFORE: D. E. Harris J.
COUNSEL: Hillson Tse for the accused
Jessyca Greenwood for the complainant
Keeley Holmes for the Crown
ENDORSEMENT
D.E. Harris J.
DATE: April 8, 2021