COURT FILE NO.: 108/19
DATE: 2021-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.T.
Accused/Applicant
M. Ward, for the Crown/Respondent
R. Brooks, for the Accused/Applicant
HEARD: October 29, 2021
REASONS FOR DECISION ON DEFENCE PRETRIAL APPLICATION
conlan J.
I. Introduction
The Indictment
[1] M.T. stands charged that he sexually assaulted his domestic partner, X.Y. (fictitious initials), on May 5, 2018, contrary to section 271 of the Criminal Code.
Defence Pretrial Application
[2] The accused has applied for an order “[t]hat the defence may subpoena K.H., a registered psychotherapist, to testify at trial with respect to information she has about a joint counselling session (including records) provided to the accused…and the complainant…”.
[3] It was argued in the written application materials, and it was submitted orally by counsel for the accused at the hearing, that the order sought is necessary “to impeach the credibility of [X.Y.]”, because this is a “classic W.D. case”.
The Uncontroverted Background Underlying the Application
[4] At the preliminary inquiry, X.Y. testified. She was not asked directly by the Crown, in-chief, about anything that she might have said to any counsellor or therapist. In the course of answering another question, however, the complainant volunteered that she had told the accused’s therapist, in the presence of the accused, at a joint counselling session, that she had been raped by the accused.
[5] In cross-examination at the preliminary inquiry, the defence confirmed the details of the disclosure.
[6] I am satisfied on balance, having reviewed the transcript, that X.Y. was referring to K.H. as the specific therapist in question.
[7] The defence suspected that X.Y. was either mistaken or lying about having made that disclosure, and the defence believed that the records and the evidence of the therapist would prove that.
[8] At a judicial pretrial conference in the Superior Court of Justice, another judge directed that, if the accused wanted to have the therapist give evidence at trial, then a third-party records application was required to be brought. The accused complied with that direction.
[9] This Court became involved at the first stage of the third-party records application. The Court decided to review the therapist’s records. At the second stage, this Court ordered that one record, a typed document regarding the joint counselling session in question on May 23, 2018, be produced to the defence. That was done.
[10] This Court then ordered that there be a further hearing to determine, generally, the admissibility at trial of the proposed evidence of the therapist and her records.
[11] That further hearing was held. The accused and the therapist testified, and submissions were made by counsel.
[12] There is nothing mentioned in the therapist’s notes, whether handwritten or typed, of any rape or sexual assault of any kind. K.H. testified that, had X.Y. stated anything about that during the May 23, 2018 joint session, K.H. would remember such a disclosure now and also would have made a note of it at the time.
[13] The inference to be drawn from the evidence of the therapist, argues the defence, is that X.Y. made no such disclosure to the therapist on May 23, 2018, and thus X.Y. was either mistaken or deliberately lied at the preliminary inquiry. Either way, her credibility is damaged, it is submitted.
II. Analysis
[14] In my view, through no fault of Ms. Ward or Mr. Brooks, this entire application was spawned by something improper that transpired at the preliminary inquiry.
[15] With respect, as soon as X.Y. stated at the preliminary inquiry that she told a therapist about having been raped by the accused, the presiding judge ought to have ruled that the said evidence was not admissible. No further questions about it should have been permitted, whether in direct or cross-examination.
[16] If no judge was actually presiding at the time (I cannot be sure from the transcript filed as to whether it could have been a “discovery” hearing with the judge absent at the material time), then the said evidence was still inadmissible.
[17] The evidence was inadmissible for a host of reasons.
[18] First, it amounted to improper oath-helping in that it was a prior consistent statement made by the complainant and in the absence of any allegation of recent fabrication or anything else that would have otherwise made such a presumptively inadmissible piece of evidence admissible (such as for narrative purposes).
[19] Counsel did not identify for the judge, or on the record between themselves, any legitimate purpose for receiving such evidence, and none would have been apparent at the time. R. v. Llorenz, 2000 CanLII 5745 (ON CA), at paragraph 30.
[20] Second, the evidence was an alleged out-of-court statement made by X.Y. which could have only reasonably served to prove the truth of its content, that is that the complainant was raped by the accused, and thus, out of the mouth of the receiver of the statement (the therapist), the evidence was also presumptively inadmissible as hearsay.
[21] Hence, any thought at the preliminary inquiry that perhaps the questioning should be permitted to continue because the evidence might be admissible later, through the therapist, was not a sure-footed one. R. v. J.A.T., 2012 ONCA 177, at paragraphs 94-95.
[22] Third, and perhaps most important, the evidence was simply irrelevant. What did it matter, either at a preliminary inquiry or at the subsequent trial, that X.Y. confided in a therapist? Or that she didn’t? Or when she did or didn’t? It was (and still is) a side-issue, a distraction, that has nothing to do with whether the prosecution can prove beyond a reasonable doubt that M.T. intentionally touched X.Y. in a sexual manner and without her consent.
[23] “Relevance demands a determination of whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of another fact more probable than it would be otherwise”. R. v. Jackson, 2015 ONCA 832, at paragraph 122.
[24] The evidence adduced at the preliminary inquiry bears no relation to that basic definition of relevance.
[25] Now, the defence wants to use evidence improperly admitted at the preliminary inquiry to impeach the credibility of the complainant. This Court, respectfully, cannot permit that to occur.
[26] Whether (i) there really is anything here capable of impeachment, that is whether the notes and evidence of the therapist really do stand in direct contradiction with, or are inconsistent with, that of the complainant, and/or (ii) whether the accused has satisfied the test for admissibility at trial of the therapist’s notes as per subsection 278.92(1), and following, of the Criminal Code, are not determinative of the application.
[27] What is determinative is that the evidence that grounds the application should not have been admitted to begin with, and that evidence remains presumptively inadmissible, and thus there is nothing to try to impeach the complainant on.
[28] Perhaps the circumstances will change at trial. For now, however, the application must be dismissed.
[29] This Court orders that (i) the complainant’s evidence at the preliminary inquiry about what she allegedly said to the therapist, and (ii) the therapist’s notes (handwritten and typed) of the session in question, and (iii) the therapist’s viva voce evidence about the session in question, are all inadmissible at trial.
[30] There is no prejudice that will result to the accused’s ability to make full answer and defence. Mr. Brooks submitted that this is a “he said/she said” case. It still is. But that is so on the basis of what will be said at trial, with room for certain exceptions of course about the admissibility of prior out-of-court statements. None of those exceptions applies at this time.
Conlan J.
Released: November 2, 2021
COURT FILE NO.: 108/19
DATE: 2021-11-02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
M.T.
REASONS FOR DECISION ON Defence PreTrial Application
Conlan J.
Released: November 2, 2021