Warning
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT FILE NO.: CR-18-01329
DATE: 20221202
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. R.S.
BEFORE: Verner J.
COUNSEL: Mr. Levy, for the Crown
Mr. Edgar, for the Defendant
Mr. Butt, for the Complainant
HEARD: October 21 and November 28, 2022
STAGE TWO OF A RECORDS APPLICATION UNDER S. 278.92
[1] R.S. stands charged with eleven domestic related offences. In addition to a number of specific assaults, R.S.’s former wife alleges that he sexually assaulted her, assaulted her and threatened to kill her, all on an ongoing basis between September 2014 and October 2016.
[2] R.S.’s counsel intends on cross-examining the complainant on, or otherwise adducing, thirteen documents at trial. The Crown and the defence agreed that five of those documents met the definition of a record under s. 278.1 of the Criminal Code of Canada, R.S.C. 1985, C-46. On October 18, 2022, I heard a motion for directions as to whether the remaining eight documents amounted to “records”, blended with a stage one hearing as to whether any of the documents that amount to records are capable of meeting the admissibility threshold under s. 278.92(2)(b). I found that the eight documents in question were not records, and further found that the five documents that are records were capable of being admissible. Therefore, a stage two hearing was necessary in relation to those five records.
[3] I heard stage two on October 21 and November 28, 2022. The defence submits the five records are all admissible. In his written material, the complainant’s counsel opposed the admission of any of the records, but in oral submissions, he suggested that it was for the court to determine if the records were admissible. Crown counsel adopted the submissions of the complainant’s counsel.
[4] I agree with the defence. The five records meet the admissibility threshold under s.278.92(2)(b).
The Relevant Facts
[5] The five records at issue at stage two include:
(1) A Father’s day card;
(2) A Birthday card;
(3) A Letter titled, “Reasons Why I Love You”;
(4) A Letter with email passcodes and a bank PIN number; and,
(5) A Facebook message dated December 7, 2016.
[6] At the stage two hearing, defence counsel orally explained the relevance of each of the five documents. Overall, his position is that the documents provide prior inconsistent statements, which support either a finding that the complainant’s memory is faulty or worse that she is exaggerating or lying about the abuse she suffered at the hands of R.S..
The Father’s Day Card
[7] The complainant sent R.S. the Father’s Day card in June of 2016, which was in the midst of the period of alleged abuse. In the card, she implied that R.S. was doing a lot for the family, including a lot of grass cutting. She wrote, “thank you for all you have done for our family” and gave him “bi-weekly grass cutting in Brampton to make your life a bit easier” as a Father’s Day gift.
[8] In contrast, at the preliminary hearing she implied that throughout their relationship from 2014 to 2016 she did everything for the family, including all the lawn mowing and that he did little if anything around the house. In particular, she testified as follows:
Q. Along with the physical abuse, he forced you to have his suit ironed and ready every day, even at 5:00 a.m.?
A. Yes.
Q. This was right from the start when you first moved in, correct?
A. Yes.
Q. And you were required to heat up the car, clean it off in the winter, have the car ready to go every day?
A. Yes.
Q. I understand that he used to force you to do it in your pajamas, because you weren’t allowed in the bathroom to change out of them?
A. Yes.
Q. And that was even while you were pregnant?
A. Yes.
Q. You had to drive him to the GO station every morning?
A. Yes.
Q. And that happened quite often, correct?
A. Yes.
Q. That you were forced to drive him in his car in the morning and pick him up later in the day?
A. Yes.
Q. You had to have laundry done, folded, hung to specific requirements you told us?
A. Yes.
Q. Otherwise he’d rip the shirts off all the hangers and make you do it again?
A. Yes.
Q. Dinner had to be ready and presented properly?
A. Yes.
Q. Really you also had to take care of the outdoor chores?
A. Yes.
Q. Take care of the grass?
A. Yes.
Q. Mowing the lawn all the time?
A. Yes.
Q. He forced you to do all those things?
A. Yes.
The Birthday Card
[9] The birthday card was sent around October 17, 2016. According to the complainant on October 10 or 11, 2016, R.S. threw their newborn child four feet across a room and threatened to kill her. At the beginning of her preliminary hearing testimony, she said that she no longer loved him as of that assault. Later in her evidence, she retracted somewhat from that position and said that, as of that point, her feelings were “somewhere between codependence and love”. In the card dated one week after she claimed she stopped loving him she wrote,
This year will bring only great things for you! You deserve only the best. We all love you and are always here for you!
The Letter Titled “Reasons Why I Love You”
[10] The complainant sent R.S. the letter titled “Reasons Why I Love You” just before she moved in with him in 2014. She testified at the preliminary hearing that at that point, before she even moved in with him, he was controlling and abusive:
Q. The physical abuse starts very soon into the relationship, correct?
A. Yes.
Q. And physical, mental abuse is constant, right from the beginning, right?
A. Yes.
Q. But yet you stayed?
A. Yes.
Q. And when you moved in with Ron, had you been living with your parents?
A. No.
Q. You testified that by the time you moved in with him, the relationship was already strained right?
A. Yes.
Q. He was already controlling?
A. Yes.
Q. Instances when he’d scream at you, berate you were already occurring before you moved in, correct?
A. Yes.
Q. It happened so often you couldn’t even count?
A. Yes.
Q. But you moved in with him?
A. Yes.
[11] She painted a different picture of the status of their relationship in the letter. Her list of the reasons why she loved him at that point, included amongst other things:
• Your Heart – looking out for and caring for others.
• You are a beautiful person.
• The way you hold me when all else is going wrong.
• How you make me laugh in any situation.
• The nervous/excited feeling I get every time I see you.
• How you make me want to be a stronger/better person. Everyday.
• How by just the sound of your voice you can change my mood.
The Letter with the Passwords and PIN Code
[12] The complainant also sent the letter with her passwords and PIN code to R.S. just before she moved in with him in 2014. In the letter, she stated that she was providing him with her passwords and PIN code in her efforts “to try and gain [his] love, trust and support”. She went on to say:
I hope you understand that I am giving you all of my passwords so that if you EVER doubt me, you don’t need to. I will ALWAYS have your back. I can not WAIT for the day you love me to the level I love you. I want the best for you. I hope I can be all the love and support you need.
[13] At the preliminary hearing she testified that R.S. forced her to provide him with her passwords and PIN code, because he was so controlling. For example, she testified:
Q. You never gave [R.S.] the passwords [to your email]?
A. Gave him the passwords?
Q. Yes.
A. He demanded that all passwords be written down on sticky notes and left on his desk so he could have access to anything at any point.
Q. That’s how he acquired the passwords?
A. Yes.
Q. He demanded to you that you write it down on sticky notes?
A. Yes, on his desk.
Q. And that was sort of a demand that would have come with, I don’t know, violence of something if you didn’t comply with it?
A. You did what you were told.
Q. Okay. And that was how he obtained the passwords?
A. Yes.
The Facebook Message
[14] The complainant sent the Facebook message on December 7, 2016 telling R.S. she loved him. As mentioned above, she testified at one point in her preliminary hearing evidence that as of the beginning of October of 2016, she no longer loved R.S.
The Relevant Legal Principles
[15] In R. v. J.J., 2022 SCC 28, Wagner C.J.C. and Moldaver J. provided the following guidance with respect to stage two:
30 At the Stage Two hearing, the presiding judge decides whether the proposed evidence meets the tests for admissibility set out in s. 278.92(2).
32 For private record applications, the test for admissibility is set out in s. 278.92(2)(b), namely: the evidence is admissible if it "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". This determination is made in accordance with the factors listed in s. 278.92(3).
33 Complainants are permitted to appear at the Stage Two hearing and make submissions, with the assistance of counsel, if they so choose (s. 278.94(2) and (3)).
[16] Section 278.92 reads:
278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or
(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
(b) in any other case, 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.
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
[17] It is clear from s.278.92 (2)(b) that the evidence must have “significant probative value”. Wagner C.J.C. and Moldaver J. found in J.J. that this is a low threshold. In the context of their assessment of the constitutionality of s. 278.92, they noted:
[131] In Darrach, at para. 39, this Court found that the phrase "significant probative value" in the s. 276 context 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". The Court used language that specified that its analysis on the threshold was specific to s. 276, noting: "In light of the purposes of s. 276, the use of the word 'significant' is consistent with both the majority and the minority reasons in Seaboyer " (para. 41 (emphasis added)). However, at para. 26, Darrach recognized the analogous legislative purposes behind the s. 276 regime and the third party production regime.
[18] Wagner C.J.C. and Moldaver J. concluded at paragraph 133 that s.278.92 allows the defence to introduce all “relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect.”
Application of the Principles to the Facts in this Case
[19] Defence counsel relied on transcripts of the preliminary hearing to show relevance. At the preliminary hearing the complainant was cross-examined on the five “records” without objection, without a s.278.92 hearing and without the complainant being aware of her right to participate.
Is the Defence permitted to rely on the preliminary hearing transcripts at this hearing?
[20] The complainant’s counsel before me raised an initial objection to the defence’s reliance on portions of the preliminary hearing transcripts at this stage two hearing. He pointed out that since R.S. was charged with sexual offences, there needed to be a s.278.92 hearing at the preliminary hearing[^1] (see: R. v. Kuzmich, 2020 ONCA 359) and the complainant needed to be informed of her right to participate, before the complainant could be cross-examined on any records. Since neither of those prerequisites were met, the defence was not permitted to ask questions on the records and thus, according to the complainant’s counsel, the answers the complainant gave at the preliminary inquiry to the impugned questions are now inadmissible at this stage two hearing.
[21] In support of his position, complainant’s counsel relies on R. v. Kuzmich, in which the complainant was cross-examined at the preliminary hearing on prior sexual activity without a s.276 hearing. The complainant in that case passed away prior to trial and the complainant’s preliminary hearing testimony was admitted at trial through s.715. Defence counsel brought a s.276 application at trial to determine (amongst other things) whether the questions asked at the preliminary hearing in violation of s.276 needed to be redacted from the preliminary hearing transcript. The trial judge dismissed the s.276 motion and redacted the transcript accordingly. The Court of Appeal for Ontario agreed with the trial judge’s conclusions and added that the defence should not have been permitted at the s.276 hearing to rely on the answers given to questions at the preliminary hearing in violation of s. 276, since that made the complainant a compellable witness at the s.276 motion.
[22] Defence counsel before me agreed with the complainant’s counsel that R. v. Kuzmich supports the position that answers given to questions at the preliminary hearing in violation of s.278.92 should not be relied on at this hearing. I agree. It follows from the Kuzmich decision that the questions about “records” put to the complainant by defence counsel at the preliminary hearing in this case would not be admissible at the s.278.92 hearing, since that would render the complainant a compellable witness at the hearing.
[23] Thus, for the purposes of this hearing, the defence is relying on edited preliminary hearing transcripts, such that the answers to questions that “used information” that the defence “specifically learned” from the “records” are redacted (see para. 76 of R. v. J.J., 2022 SCC 28). Defence counsel proposed specific edits to the transcripts. The proposed edits involve redacting any questions relating to the records themselves, but not redacting questions that are directed at clarifying the extent of the abuse even where that abuse overlaps with the content in the records. For example, answers to questions about when the complainant wrote the Father’s Day card and why she offered him grass cutting should be redacted, but general questions about whether R.S. forced her to do all the housework including grass cutting would not be redacted.
[24] The complainant’s counsel indicated that he agreed in principle with the proposed edits and did not suggest any alternate edits. He added that it was for the court, in its gate-keeper function, to determine if the proposed edits were appropriate.
[25] I found that the defence’s proposed edits were by and large appropriate. I made minor changes. As a result, the defence will not rely on the following portions of the preliminary hearing transcripts at this motion:
(i) Page 160, line 18 to page 161, line 27 of the May 1, 2022 Transcript;
(ii) Page 162, line 7 to page 165, line 18 of the May 1, 2022 Transcript;
(iii) Page 7, line 21 to page 13, line 20 of the May 2, 2022 Transcript; and
(iv) Page 16, line 8 to page 19, line 28 of the May 2, 2022 Transcript.
[26] Defence counsel did not rely on the impugned portions of the transcript in his submissions on the relevance of the five records in question at this s.278.92 hearing.
[27] To ensure there are no surprises at this jury trial, I raised the issue of whether defence counsel could rely on the redacted questions and answers in cross-examining the complainant at trial, if the records are deemed admissible. Defence counsel informed me that I need not consider the issue, as he had considered his position and was not challenging the complainant’s position that he could not rely on those questions and answers. I indicated that after a quick review of R. v. Kuzmich[^2], it was my view that that case did not support the complainant’s position on this issue. In fact, I suggested that R. v. Kuzmich may support the opposite conclusion. Despite my comments, defence counsel maintained that he would not be relying on the redacted questions and answers at trial. I therefore did not consider the issue further.
The Admissibility of the Five Records
[28] In assessing the relevance of the five records, I keep in mind that the fact the complainant told R.S. she loved him immediately following alleged assaults is not relevant in itself. It is sadly not uncommon for victims of domestic abuse to profess their love for their abuser immediately following an assault. The fact that she told him she loved him does not render it less likely that she was abused as she alleges.
[29] According to the defence, the relevance lies in the inconsistencies between the records and her allegations. More specifically, the records could support a finding that in the complainant’s report to authorities, she is exaggerating, if not lying, about the abuse. The Father’s Day card reveals that contrary to her sworn testimony that she was forced to do all of the family chores, including all the grass cutting, that R.S. did a lot of the family chores and in particular did a lot of grass cutting. The birthday card could support an inference that she was exaggerating when she testified that the abuse in September and October 2016 was so terrible that she stopped loving him at that point. The letter titled “Reasons Why I Love You” puts into question her description of their relationship as of the period before they moved in together. The letter with the passwords and PIN code may rebut the complainant’s claim that R.S. forced her to provide the codes, as part of his controlling nature. And finally, the Facebook message supports an inference that, contrary to her evidence that she did not love him as of early October 2016, she continued to love him for months after.
[30] I agree with the defence that there are inconsistencies revealed in the records. I recognize that the complainant may very well be able to explain all of the apparent inconsistencies, but that is not the test. The records could support an inference that the complainant is exaggerating the abuse and that renders them relevant. Some of the records provide stronger evidence of exaggeration than others, such as the Father’s Day card, the letter titled “Reasons Why I Love You” and the letter with the passwords and PIN code. Arguably, those three records could support a finding that she lied under oath about the severity of the abusive relationship.
[31] The birthday card and the Facebook message have weaker probative value. They simply reveal that the complainant told R.S. that she still loved him at a time when, according to her testimony, she no longer loved him, but had feelings somewhere between codependence and love towards him. On their own, the probative value of these two items is arguably trifling. There is also the concern that the trier may consider the complainant’s profession of love to R.S. as evidence in itself that he did not abuse her. However, if these two records are properly considered as evidence that contradicts the complainant’s sworn evidence that she did not love him at that point, together with all of the other evidence, they could assist the defence in showing that she is exaggerating the unpleasantness of their relationship. In other words, they could assist in raising a reasonable doubt.
[32] More importantly, the prejudice or privacy interest involved in these two records fall on the less serious end of the spectrum. The content of these two records is nothing like that of a diary or a therapy record. There is relatively minor “potential prejudice to the complainant’s personal dignity and right of privacy” (s.278.92(3)) associated with the introduction of the birthday card and the Facebook message.
[33] When I weigh the relevant factors for each of the five records as listed in s.278.92(3), I find they are all “relevant and material evidence, the probative value of which is not outweighed by its prejudicial effect” (J.J. at para. 133). I find the five records may be adduced at trial.
The Honourable Madam Justice Catriona Verner
Date: December 2, 2022
[^1]: I note that the preliminary hearing in this matter was held in early 2019 before the introduction of the current s.535, which renders a preliminary hearing unavailable for charges of sexual assault. And accordingly, the sexual assault charges were at issue at R.S.’s preliminary hearing.
[^2]: Despite efforts by counsel, I was not directed to consider R. v. Kuzmich until November 28, 2022 at the hearing itself.