COURT FILE NO.: CR-20-0087-00

DATE: 2021 01 04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Jody Ostapiw for the Crown Respondent

• and –

B.G.

Glen Henderson for the Applicant

HEARD: December 7, 2020 by Zoom video conference

PUBLICATION IS BANNED PURSUANT TO S. 517(1) OF THE CRIMINAL CODE ONLY WITH RESPECT TO THE EVIDENCE OF THE ALLEGED OFFENCE AND ITS DETAILS, IDENTIFYING INFORMATION ABOUT THE DEFENDANT AND DETAILS OF HIS PERSONAL CIRCUMSTANCES

PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE COMPLAINANT IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE

RULING ON STAGE 1 OF APPLICATION TO TENDER RECORDS AND PAST SEXUAL HISTORY AT TRIAL

D.E HARRIS J.

1The Applicant B.G., charged with sexual assault (x4) and simple assault (x2) against his ex-wife, S.K., makes application under Section 278.93(4) of the Criminal Code for a ruling that sexual history evidence and several different categories of “records” as defined by Section 278.1 of the Code, are “capable of being admissible” and should graduate to the second stage of the admissibility analysis.

2Ms. Ostapiw has greatly facilitated the judicial screening process mandated by the Criminal Code by making reasonable concessions that most of the records tendered are not “records” as that word is used in Section 278.1. Common law admissibility analysis will govern those records. Likewise, Ms. Ostapiw has agreed that several categories of evidence are records but are capable of being admitted at trial and should proceed to the second stage of admissibility analysis. These include police occurrence reports, text messages, and audio recordings. There are several court records from India that have not been translated yet so her concessions, given that she has not see them, do not relate to those.

3The concessions made have left only two issues for decision now at this first stage: 1. Are the medical records of S.K. “records” in light of her signed waiver authorizing their release? and, 2. Are allegations of consensual sexual activity between the accused and the complainant capable of being admissible under Section 276(2)?

THE MEDICAL RECORDS

4Medical records would ordinarily be caught by the statutory scheme as they are specifically mentioned in Section 278.1 of the Code:

Definition of record

278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries …

S.C. 1997, c. 30, s. 1; S.C. 2018, c. 29, s. 23

(Emphasis Added)

5The defence argues that a waiver form signed by the complainant releasing her medical records extinguished her reasonable expectation of privacy and led to the records no longer falling within Section 278.1. I believe that the premise of the Applicant’s legal analysis is correct. Section 278.1 specifies that to be a record, the subject matter must contain personal information “for which there is a reasonable expectation of privacy.” If it were found that the complainant had relinquished her right to privacy, a medical record would no longer be caught by the Criminal Code scheme.

6I do not, however, agree with the Applicant that there was a waiver in this case. Waiver requires an onerous standard on the proponent. In practical terms, it will be a rare case in which the evidence will attain the level required to clear this hurdle.

7In this instance, the medical records of the complainant from September 24, 2017 were obtained by the police after the complainant signed a clinical/medical release form on February 5, 2019. These records have already been disclosed to the defence. However, if they are found to be “records” within the Code, Section 278.92(1) of the Code prohibits their use by the defence unless a judge holds pursuant to Section 278.92(2)(b) 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.” Because these records are not of sexual activity, subsection (a) which is pertinent to records of this kind does not apply.

8The background is that the complainant attended a medical clinic complaining of an ear injury. She said that she had been hit in the ear with a ball. Since then, she has said that she misled the doctor and that the real cause of the injury was an assault committed by the Applicant the day before her attendance. It was noted at the hearing that the Applicant has been charged with an offence arising out of this incident but, from my perusal, this offence does not appear on the indictment.

9The written release is a Peel Regional Police form. In it, the signee authorizes the police to obtain the medical records from the clinic and to indemnity the clinic and “save them harmless” from liability. The signee agrees that they have been advised by the police that the records are to assist in their investigation. There is also an acknowledgement that the records will be disclosed to the Crown, defence counsel and the defendant. In this instance, boxes on the form are checked to indicate that the complainant declined to review the records and declined independent legal advice.

10The purpose of the form is to clarify and to document that the complainant authorizes the police and the medical authorities to release the records for the purpose of criminal proceedings. In evaluating this release and whether it constitutes an effective waiver, the importance of personal privacy must be considered. Privacy is one of the values at the heart of the democratic ideal: Dagg v. Canada (Minister of Finance 1997 CanLII 358 (SCC), [1997] 2 S.C.R. 403 (S.C.C.) at para. 67; R. v. Sanelli, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30 (S.C.C.) at paras. 27-28; Hunter v. Southam 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 (S.C.C.) at para. 22-24. “Privacy [involves] concepts of intimacy, identity, dignity and integrity of the individual.” Canada (Information Commissioner) v. Canadian Transportation Accident Investigation & Safety Board, 2006 FCA 157, 267 D.L.R. (4th) 451 (F.C.A.) at para. 52, also see paras. 35-51

11Furthermore, waiver always requires a high threshold. The classic statement, albeit in the context of a defendant waiving a procedural right in a criminal proceeding, is from Korponay v. A.G. Can., 1982 CanLII 12 (SCC), [1982] 1 S.C.R. 41 at 49, 26 C.R. (3d) 343, 65 C.C.C. (2d) 65, 134 D.L.R. (3d) 354, (sub nom. R. v. Korponey) 44 N.R. 103 [Que.]:

… [waiver] is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.

12Waiver must be evaluated in the particular context in which it arises. In this case, the complainant is purportedly giving up a fundamental right, personal privacy. I do not intend to elaborate on precisely what standard of waiver ought to apply. On any reasonable waiver standard, the evidence in this case fails to attain the necessary threshold. It is hard to conceive that the mere signing of a form without any viva voce evidence elaborating on the circumstances would ever be sufficient to waive a reasonable expectation of privacy. In this instance, it cannot even be shown that the complaint read or understood the form. The police officer who co-signed the form with her was not called as witness to explain the process by which the complainant signed the form and whether she appreciated what she was signing. This was a minimum prerequisite.

13Furthermore, although the form does relate that the records will be disclosed to counsel and the defendant, that statement does not go far enough. Two central prerequisites to waiver articulated by Justice Doherty in R. v. Wills, 1992 CanLII 2780 (ON CA), [1992] O.J. No. 294, 12 C.R. (4th) 58 (Ont. C.A.) at para. 69 are not present in this case: 1. There is no indication that the complainant knew she had the right to refuse to agree to the release of the records, and; 2. Most significantly, it has not been shown that she was aware of the potential consequences of the consent. Although a lawyer would probably realize from the form that the complainant may well be questioned in court on the subject of the records during this prosecution, the complainant is not a lawyer and there is no evidence that she was aware of this. The use and potential confrontation in the public forum of a trial of what she said privately to a physician is qualitatively different than the Applicant and his lawyer merely having access to and reading notes of what she said.

14Therefore, there was no valid waiver. The records maintain their characterization as “records” under Section 278.1. Admissibility will fall to be determined under the second stage of the records regime in the Criminal Code.

THE ALLEGED SEXUAL ACTIVITY

15The Applicant has filed an affidavit which details his evidence of alleged sexual activity with the complainant outside the subject matter of the charges against him. This engages the legislative shield against admission of sexual evidence in Section 276 of the Criminal Code. At this first stage, the question is whether the evidence tendered is “capable of admission” within Section 278.93(4).

16Section 278.93(4) establishes a threshold screening mechanism to weed out unmeritorious sexual history applications. The lingering myths, stereotypes and outmoded thinking which distort the understanding of sexual history evidence require a two-stage approach. If the evidence does not surmount the first stage of being capable of being admitted at trial, then there is no need for the complainant to be heard and to be furnished with the right to counsel and the right to make submissions provided by Sections 278.94(2) and (3) of the Criminal Code.

17Thresholds of the kind established by Section 278.93(4) are not uncommon. “Capable of being admissible” by its language and function as a first stage screening mechanism dictates a broad, not overly strict approach. In practical terms, relevance will almost inevitably be the main focus. By definition and as a matter of logic and experience, relevance cannot be posited on twin myth reasoning: R. v. Goldfinch, 2019 SCC 38 (S.C.C.) at para. 56. Although one would have thought it was unnecessary, the recent amendments to the Code make the exclusion of twin myth reasoning explicit in determining admissibility: Section 276(2)(a).

18The factors in ss. 2 of Section 276 are elaborations of full answer and defence and the countervailing interests but play a greatly diminished role in the threshold examination. While the threshold inquiry is a derivative of the full statutory 276 regime, as a threshold step, in practice, it functions as a shadow of it. Nuances and the fine details, including weighing probative value and prejudicial effect as required by Section 276(2)(d), should await the rigorous and very specific analysis at the second stage.

19The Saskatchewan Court of Appeal in R. v. Ecker (1995), 1995 CanLII 3910 (SK CA), 96 C.C.C. (3d) 161 (Sask. C.A.) has held, and their comments have been adopted by the Ontario Court of Appeal in R. v. LeBrocq, 2011 ONCA 405, [2011] O.J. No. 2323(Ont. C.A.) at para. 8, that a judge should err on the side of finding the first stage is met,

61 …it would seem to me that such doubts as might exist at this [first] stage are better left to be resolved at the next or hearing stage. I say that for the reason the first stage entails only a facial consideration of the matter and only a tentative decision so far as the evidence appears capable of being admissible. Moreover, the courts must be cautious when applying the limits on the rights of an accused to cross-examine and adduce evidence. And so I am of the view that unless such evidence clearly appears to be incapable of being admissible, having regard for the criteria of subs. 276(2) and the indicia of subs. 276(3), the judge should proceed to the evidentiary hearing stage.

20The Crown argued that the proposed evidence promoted twin myth reasoning. However, it is common that sexual activity evidence outside the allegations in the indictment will, if left to the jury’s use without direction, create a substantial risk of improper reasoning. But as Justice McLachlin (as she then was) said in R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 (S.C.C.) at para. 58, the mischief caused by evidence of other sexual activity is the misuse of the evidence, not merely the admission of it. The effect of the evidence advancing twin myth reasoning ought not to be the focal point. If Section 276 evidence is to be admitted, the probative value towards a legitimate trial issue will require that the evidence be carefully limited by jury instructions on how the evidence can be used and how it ought not to be used: Goldfinch at paras. 74-75

21To paraphrase Ecker, only clearly unmeritorious applications—evidence of marginal relevance or going almost exclusively to twin myths reasoning--should be denied second stage examination. The protection of the accused’s right to full answer and defence, vital to a fair trial, requires this approach.

22It is my opinion that in this case, the evidence tendered by the Applicant in his affidavit has some relevance to the trial issues. Examining first the allegations against him, the indictment charges a total of four sexual assaults. There is one alleged in 2016, one in 2017 and two in 2018. It is agreed that the couple separated on April 9, 2018. The offence periods for the two 2018 counts are all post-separation: June 1-30, 2018 (count 5) and October 17, 2018 (count 6).

23The Applicant’s affidavit alleges that the two had consensual sexual intercourse several times after separation: that is, on June 3, 2018, then two more occasions that summer, once on August 5, 2018, once on September 23, 2018, and two other times that year in which the Applicant could not pinpoint the dates. He also attests that they had friendly meetings on other occasions in this time period when they did not engage in sexual activity.

24Therefore, some of the allegations of consensual sex are at the time of the allegations in count 5 (June 1-20, 2018) but all pre-date the time of the allegations in count 6 (October 17, 2018).

25At the preliminary hearing, the complainant testified:

i. The separation in April 2018 was at the Applicant’s initiative. The complainant was opposed to the Applicant’s divorce petition and wanted the Applicant to return home to live with her. She wanted time to repair the relationship.

ii. After separation, they would have fairly regular conversations on the phone that were sometimes friendly and sometimes would end in arguments and conflict.

iii. The two would meet face to face after separation starting in and around June, 2018 up to the sexual assault allegation of October 17, 2018 in count 6. At one point she said that there were quite a few meetings but then right afterwards seemed to say that there were only three in total. Later she said that it was only once.

iv. The complainant testified that she had no concerns during their entire relationship about her safety around the Applicant, including concern about sexual attacks, going right up through December 17, 2018, that is, past the last allegation on the indictment.

26In my view, this first stage of the Section 276 process is resolved in favour of the Applicant on the basis of analogous reasoning to that of Justice Doherty in R. v. L.S., 2017 ONCA 685, [2017] O.J. No. 4586 (Ont. C.A.). He concluded there,

88 I think that evidence that the relationship between E.K. and the appellant, including the sexual component of the relationship, carried on as it had before the alleged assault was relevant to whether the assault occurred. The defence could argue that evidence that the sexual component of the relationship carried on as before, supported the defence position that the parties carried on as if nothing had happened because nothing had in fact happened.

27I am well aware that this type of evidence and the specific evidence in this case sidles along the reasoning underpinning the myth precluded by Section 276(1)(a) that if a complainant consented once, she is more likely to have consented again. Yet there may well be legitimate relevance to the evidence as well. If a person is allegedly abused by another, in evaluating the credibility and reliability of this assertion, it is relevant that the person continued to associate with their alleged attacker.

28Misconceptions and sexual stereotypes with respect to this very inference of after-the-fact association with the accused have been the subject of criticism by the Supreme Court: R. v. A.R.J.D., 2018 SCC 6, 2018 CSC 6, [2018] 1 S.C.R. 218, affirming 2017 ABCA 237, [2017] A.J. No. 746 (Alta. C.A.) at paras. 39-61. It may well be that this type of association evidence may demonstrate that the complainant succumbed to psychological pressures and societal expectations to keep up a relationship with the accused, inferences that would not damage her credibility. But, on the other hand, as Justice Doherty held in L.S., the association evidence may indicate that the assaults never happened. While it is clearly wrong to conclude that a complainant will always distance herself from the abuser, it is also wrong to reason that this means that evidence that she continued to associate with the abuser is irrelevant: see R. v. J.M., 2018 ONSC 344 (Ont.S.C.) at paras. 66-68.

29In most situations, the sexual details themselves are unimportant; the ongoing amicable relationship is what has probative weight. This is probably one of those situations but it is too early to say for sure. The point is that the evidence should not be rendered inadmissible at this first stage simply because a jury might misuse it and leap to the conclusion that it means the complainant is incredible. This consideration is premature and should be left to the second stage.

30In the result, both the medical records and the sexual activity issue must proceed to the second stage.