COURT FILE NO.: CR-21-74
DATE: 20221122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
A.B.
Ms. M. Ward, for the Crown
Mr. J. Marshman, for A.B.
Ms. K. Bellehumeur, for the Complainant
HEARD: November 14, 2022
REASONS FOR DECISION
DEFENCE APPLICATION UNDER SECTION 278.93(1) OF THE CRIMINAL CODE
Conlan J.
I. Introduction
[1] As this Court directs the publication of the within decision, which direction is authorized by subsection 278.95(1)(d)(ii) of the Criminal Code, random initials have been assigned to both the accused and the complainant, and no details that would identify either are included herein. The accused will be called A.B. The complainant will be called C.D.
[2] A.B. is charged with sexually assaulting and sexually interfering with A.B.’s child, C.D. The child was about six to eleven years old during the alleged offence period. The alleged offence period ended several years ago. A.B. is set to be tried by a judge of this court, sitting alone, in 2023.
[3] A.B. has in their possession records that relate to C.D. The records are from a child welfare agency (“CAS”) and from a clinical investigator with the Office of the Children’s Lawyer (“OCL”). Specifically, the records are (i) typed notes of the CAS interviewer stemming from two occasions that the interviewer spoke with the child in the same month in 2015 (during the alleged offence period), and (ii) handwritten notes of the OCL’s clinical investigator arising from two occasions that the investigator spoke with the child in late 2015 and early 2016 (during the alleged offence period).
[4] C.D. was between nine and ten years old on the dates of the said discussions with the CAS and the OCL.
[5] A.B. asks for a ruling that the said records are admissible at trial. The Crown and C.D. both oppose the application. The application was heard at Court, on Zoom, over less than two hours. Counsel for the accused, counsel for the Crown, and independent counsel for the complainant each gave submissions.
[6] For the following reasons, A.B.’s application is dismissed. The said records are not admissible at trial.
[7] It should be noted, however, that the trial judge could revisit this ruling if the Crown is permitted to admit at trial evidence about what the complainant allegedly said to the CAS on a date or dates in 2013. That anticipated request by the Crown is not before this Court, but it was mentioned during oral submissions by counsel. I expressed, during the hearing, serious reservations about whether that type of out-of-court prior consistent statement made by the complainant would be admissible at trial, but that will be up to the trial judge. I say simply this for the benefit of all counsel – if one goes in (2013 or 2015), the other would likely go in as well.
II. The Legislative Scheme and the Decision of the SCC in R. v. J.J.
[8] For certain offences, including sexual interference and sexual assault, a record relating to the complainant but in the possession or control of the accused is presumptively inadmissible at the instance of the accused – subsection 278.92(1).
[9] In a case where the record does not engage an application under section 276 (evidence of the complainant’s sexual activity), as here, the record is inadmissible unless the court determines that (i) the evidence is relevant, and (ii) it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice – subsection 278.92(2)(b).
[10] There is a non-exhaustive list of factors that the court shall consider in deciding whether the record is admissible – subsection 278.92(3). Those factors are meant to balance the right of the accused to make full answer and defence against other objectives, including but not limited to the need to remove from the fact-finding process discriminatory beliefs or biases and the desire to minimize potential prejudice to the complainant’s personal dignity and right of privacy.
[11] “Record” is defined in section 278.1. The definition is very broad and would include any record that contains personal information for which there is a reasonable expectation of privacy. Police and prosecutorial records related to the offence(s) in question are expressly excluded from the definition.
[12] There is no controversy that the CAS and OCL notes in our case are “records”.
[13] After the accused serves and files a proper application in writing [subsections 278.93(1) and (2)], the court considers it in camera [subsection 278.93(3)]. At that stage, which we could refer to as stage one of the application, the court has the authority to dismiss the application. It could be dismissed for more technical or procedural reasons (like a failure to comply with the service and filing requirements) or for a more substantive reason [like a failure to demonstrate that the evidence sought to be admitted is even capable of being admissible, that is, capable of meeting the test for admissibility under subsection 276(2) – subsection 278.93(4)].
[14] Subsection 276(2) is not applicable in our case, and the Crown in our case conceded the application at stage one.
[15] The hearing that was held before this Court, where the three counsel delivered submissions, was the hearing at what we could refer to as stage two of the application – the in-camera hearing described in subsection 278.94(1).
[16] The submissions made by independent counsel for the complainant in our case were authorized by subsections 278.94(2) and (3).
[17] The court is required to give reasons for its determination of the application, either way, and those reasons must contain certain things, including but not limited to the factors under subsection 278.92(3) that affected the decision.
[18] In R. v. J.J., 2022 SCC 28, the Supreme Court of Canada held that sections 278.92 to 278.94 of the Criminal Code are constitutional – they do not violate either section 7 or section 11(d) of the Charter. Paragraphs 1 and 2 of the majority opinion are very important as they help explain the purpose of the provisions by describing the problem that spawned their enactment. Those paragraphs are set out below.
[1] The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system. Historically, trials provided few if any protections for complainants. More often than not, they could expect to have the minutiae of their lives and character unjustifiably scrutinized in an attempt to intimidate and embarrass them, and call their credibility into question — all of which jeopardized the truth-seeking function of the trial. It also undermined the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.
[2] Over the past decades, Parliament has made a number of changes to trial procedure, attempting to balance the accused’s right to a fair trial; the complainant’s dignity, equality, and privacy; and the public’s interest in the search for truth. This effort is ongoing, but statistics and well-documented complainant accounts continue to paint a bleak picture. Most victims of sexual offences do not report such crimes; and for those that do, only a fraction of reported offences result in a completed prosecution. More needs to be done.
[19] “Significant probative value”, as that term is used in subsection 278.92(2)(b), “simply requires that the evidence not ‘be so trifling as to be incapable, in the context of all the evidence, of raising a reasonable doubt’”, which is what the same term has been held to mean in the context of a section 276 application. J.J., supra, at paragraph 131.
[20] While private records, unlike section 276 evidence, do not necessarily engage the “twin myths” about sexual offence complainants, the records described in section 278.1 may very well engage many other problematic myths and stereotypes, for example, that the failure to immediately report a sexual assault means that it did not occur. J.J., supra, at paragraph 132.
III. The Law as Applied to our Records
[21] This Court is satisfied that the records in question are relevant. They are so because the child, given an opportunity to disclose, did not disclose to either interviewer any sexual touching at the hands of the accused. That is not the end of the admissibility analysis, however.
[22] Despite Mr. Marshman’s able submissions, this Court is of the view that the evidence in question, though relevant, does not have significant probative value and, further, that what limited probative value it does have is substantially outweighed by the danger of prejudice to the proper administration of justice. As such, the evidence is inadmissible at trial.
[23] Put another way, the proffered evidence is incapable of raising a reasonable doubt, even in the context of the other evidence that this Court is aware of. And the evidence in question engages problematic myths and stereotypes, so much so that the risk of prejudice substantially outweighs whatever limited probative value there is. Consequently, the evidence is inadmissible at trial.
[24] Before turning to the enumerated factors outlined in subsection 278.92(3), two observations are noteworthy. First, the complainant was a very young child, no more than ten years old, at the time that these records were created. Second, the records are not recorded statements from the child but rather non-verbatim notes of interviewers, persons who this Court knows nothing about except where they worked at the time.
[25] This Court considers those two things, combined, to be a relevant factor under subsection 278.92(3)(i) – the threshold reliability of the evidence in question. I would characterize that as being rather weak.
[26] In terms of the right of the accused to make full answer and defence, the within decision of this Court will in no way prevent counsel for the accused from cross-examining the complainant on the evidence given at the preliminary inquiry, including thorough cross-examination about what the defence describes as recovered memories, memories that the accused insists are frail. That “key issue” for trial (per Mr. Marshman in oral submissions on the application) will in no way be curtailed by the within ruling of the Court.
[27] In terms of what impact the admission of these records would likely have on society’s interests in encouraging the reporting of sexual assault offences and the obtaining of treatment by complainants of sexual offences, this Court is of the opinion that such impact would be contrary to those interests, and significantly so. These are highly private records, made years ago, and made in an entirely different context than a criminal prosecution. For complainants to think that such records are “open season” would only serve to dissuade them from reporting and from seeking help.
[28] This Court cannot see how there is a reasonable prospect that the evidence in question will assist in arriving at a just determination in the case, that is unless the Crown is permitted to rely upon the alleged prior consistent statement in the form of the earlier CAS record.
[29] In my opinion, the records are an invitation for the trier of fact to engage in discriminatory biases and beliefs, including most importantly that a child, if actually sexually assaulted, would be expected to disclose that to an adult interviewer.
[30] This is not a jury trial, and thus subsection 278.92(3)(f) is not applicable.
[31] The potential prejudice to the child’s personal dignity and right of privacy is high, especially considering that these records were created largely in the context of a family law proceeding that involved the separation of the child’s parents, and the records contain extensive discussions about how that painful separation was affecting the very young child.
[32] Subsection 278.92(3)(h) is not a deciding factor here, either way. While it is true that the child is entitled to personal security and to the full protection and benefit of the law concerning the admissibility of private records in the possession of the accused, it is also true that there is no reason to think that her security, in so far as that is different than her personal dignity and right of privacy, would be threatened if the evidence in question was ruled admissible at trial.
[33] As can be seen, the balancing exercise tilts heavily against the admission of the proffered evidence. The presumption, or starting point, of inadmissibility has not been rebutted.
IV. Conclusion
[34] For these reasons, the application by the accused is dismissed. The CAS and OCL records in question are not admissible at trial.
Conlan J.
Released: November 22, 2022
COURT FILE NO.: CR-21-74
DATE: 20221122
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
A.B.
REASONS FOR decision defence application under section 278.93(1) of the criminal code
Conlan J.
Released: November 22, 2022