COURT FILE NO.: 4685/19
DATE: 2021/10/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. J.P.B., C.G.B., S.J.A., C.L., and W.J.V.
BEFORE: The Honourable Justice Robert B. Reid
COUNSEL: P. Vadacchino and C. Lapointe, Counsel, for the Crown, Applicant
S. Buchanan, Counsel, for J.P.B., Respondent
M. Peterson, Counsel, for C.G.B., Respondent
B. Simpson, Counsel, for S.J.A., Respondent
E. Gok, Counsel, for C.L., Respondent
D. Protomanni, Counsel, for W.J.V., Respondent
HEARD: October 1, 2021
decision on scope of cross-examination pursuant to s. 11 of the canada evidence act
[1] C.B., one of the complainants in the trial of this matter gave evidence as a Crown witness. Counsel for J.P.B. attempted to cross-examine as to oral statements made by C.B. pursuant to s. 11 of the Canada Evidence Act. The Crown objected, submitting that the information recorded and upon which the cross-examiner intended to rely did not constitute statements within the meaning of the Act. Submissions were received and on October 1, 2021, I provided a bottom-line decision orally, with written reasons to follow. These are those reasons.
Background:
[2] The co-accused in this case are alleged to have committed a variety of offences, mainly of a sexual nature, involving a total of 10 victims. Amongst them, they face about five dozen individual counts.
[3] C.B. is a daughter of the accused, J.P.B. She is currently 30 years of age. Seven of the counts relate to sexual offences allegedly committed by him against her between 1996 and 2006 when she was between about six and 15 years of age.
[4] Family and Children’s Services Niagara (“FACS”) were involved with the B. family on several occasions over the years between 2001 and 2005 and again in 2010. C.B. would have been between 11 and 20 years old at the time of those contacts. Details of meetings were recorded in notes made by FACS workers and which have been disclosed by the Crown.
[5] Exhibit “N” was submitted as a representative example of the information recorded by FACS workers and on which counsel for J.P.B. wishes to cross-examine under s. 11 of the Act. It relates to an investigation that occurred between June 21, 2001 and July 25, 2001. In it, there are a variety of documents containing reasons for the referral, investigation plans, and actions taken by FACS. Some of the materials are typed on FACS forms and others are handwritten onto a printed form, typically entitled “Case Note/Contact Sheet”.
[6] Typed narratives of contacts with B. family members are included. They are written in the third person.
[7] In some cases, the information is referred to collectively, for example: “all of the children denied…” or “children do not disclose…”.
[8] A fourteen-page typewritten document entitled Investigation of Allegations/Concerns contained in Exhibit N includes worker observations and the recounting of comments made by C.B. It is signed and dated by the worker two days after the interview took place.
[9] Within the Investigation of Allegations/Concerns document, the interviewer includes observations such as “[C.B.] was excited about dinner that night …”. When reference is made to what C.B. is alleged to have said, it is likewise in the third person: “[She] described usually having sandwiches for lunch…”. None of the notes show any comments in quotation marks nor do they purport to be a verbatim account from the person interviewed.
Positions of the parties:
[10] Counsel for J.P.B. wishes to cross-examine on apparent inconsistencies between evidence given in chief by C.B. at the trial and statements given by her to the FACS workers as contained in the FACS records. If the statements are not admitted, counsel intends to prove that they were made by reference to the FACS records. Inconsistencies could support a submission that the witness is not credible.
[11] In addition, counsel notes his intent not to offend the so-called rule in Brown v. Dunn in which the cross-examining party who intends to contradict a witness with independent evidence should direct the witness’ attention to the purported contradiction.
[12] The Crown relies on the lack of accuracy and therefore reliability in giving the status of “statements” to the FACS worker notes as well as the lack of contemporaneity as between the taking and recording of the information.
Analysis:
[13] Where an oral statement has been made, the cross examiner has the right to explore inconsistencies. The procedure for doing so is set out in s. 11 of the Act:
Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
[14] A concern arises where the alleged statement may not be reliably recorded. The matter is addressed in McWilliams’ Canadian Criminal Evidence dealing with the related issue under s. 10(1) of the Act as follows:
Sometimes…the record of the prior statement is of uncertain reliability. If so, using it to confront the witness in cross-examination may be unfair to the witness and the calling party, and may also hold the potential to mislead the fact finder. This is especially the case where the record consists of notes made by a police officer or other third party, as opposed to records that are prima facie very accurate such as a signed witness statement or an audio or video recording. Notes of uncertain accuracy may contain outright errors, yet be used in cross-examination to convince the jury that the witness is the one who is mistaken or, worse yet, lying. The adverse effect on credibility may be such that the cross-examiner need not call the author of the notes to the stand to prove the statement by extrinsic evidence if denied. The damage will have been done through cross-examination alone.[^1]
[15] In R. v. B. (S.), 1996 CanLII 7978 (ON SC), 28 O.R. (3d) 409, the defence sought to cross-examine the complainant using various documents, including police officers' notes, a Crown counsel disclosure letter, and a pre-sentence report concerning the accused in an earlier proceeding. The complainant had not verified the contents of the documents. The defence sought to use inconsistencies between the complainant’s testimony and the documents to impeach the witness’ credibility.
[16] Hill J. ruled that the documents could not be used for this purpose because there was no evidence that the witness had seen or read any of them. There was also no indication that the authors of the documents had attempted to quote the witness rather than recording an impression or summary. As Hill J. explained, “The truth-seeking objective of the criminal trial is not advanced by unfairly creating a suggestion that the witness has previously made an inconsistent statement reduced to writing when she has not.”
[17] A similar result occurred in R v. S.G. [1999] O.J. No. 5156 (S.C.J.), where the accused was denied the request to cross-examine the complainant on notes taken by a Children’s Aid Society intake worker. The notes were a summary of what the witness had indicated to the worker. Although the worker testified that they were “fairly accurate”, they did not purport to be verbatim. The notes were held not to be an oral statement made by the complainant.
[18] The defence referred to a decision of the Nova Scotia Court of Appeal in R. v. Eisenhauer, 1998 NSCA 60, [1998] N.S.J. No. 28 to support the position that information secured from a witness by a third-party could constitute an oral statement under the Act. At trial in that case, the court had allowed cross-examination on various alleged prior statements. The appeal focused on how the prior statements were to be proved since the trial judge had not allowed the third- party interview notes to be presented to the witness in cross-examination. The Court of Appeal found that the absence of formal proof was little more than a technical detail in that the evidence contained in the notes had already been placed indirectly before the jury by the author and full cross-examination had occurred.
[19] I conclude that the decision in Eisenhauer is not helpful in this case since the question of whether the interview notes constituted an oral statement under the Act for the purposes of cross-examination was not dealt with directly by the Court of Appeal.
[20] In this case, the FACS notes are clearly not verbatim. They are summaries of what was purportedly said by C.B. to the worker. The notes were not made contemporaneously but at some time, perhaps as much as several days, following the event. There is no evidence that they were read over or reviewed by C.B. It would be unfair to suggest to the jury that C.B. had made prior inconsistent statements when the notes upon which that supposition is based do not contain clear evidence of what was allegedly said. The truth-seeking objective of the criminal trial is not advanced by allowing that basis for cross-examination.
[21] It goes without saying that there is no restriction on cross-examining as to the purported content of the FACS interviews. The witness can either agree or disagree with the propositions proposed. Doing so would fully satisfy the fairness principles encompassed in Brown v. Dunn in the event that conflicting evidence is offered later by the defence. The restriction is in applying the procedure in s. 11 of the Act to characterize the content of the FACS notes as prior inconsistent statements.
Reid J.
Released: October 13, 2021
COURT FILE NO.: 4685/19
DATE: 2021/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Crown/Applicant
– and –
J.P.B., C.G.B., S.J.A., C.L., and W.J.V.
Defendant
decision on scope of cross-examination pursuant to s. 11 of the canada evidence act
R.B. Reid J.
Released: October 13, 2021
[^1]: S Casey Hill, Louis P Strezos & David M Tanovich, Canadian Criminal Evidence, 5th ed, (Toronto: Thomson Reuters Canada, 2013, loose-leaf), pt IV at ch 20.