Bill C-46: Records Applications Post-Mills,
A Caselaw Review

4. The Caselaw Review (cont'd)

4. The Caselaw Review (cont'd)

4.6 Conclusion

In conclusion, the way that judges have interpreted s. 278.5 in deciding whether to order production of relevant records has been inconsistent in the post-Mills caselaw. Different judges have placed varying emphasis (and sometimes none at all) on the factors listed in section 278.5(2) and in the guidelines offered by both the legislation and the Supreme Court's interpretation of the legislation in Mills.

As was noted earlier, the provisions in Bill C-46 permit a balancing of the rights of the accused and those of the complainant. Gotell has suggested that the "post-Mills terrain is highly unstable"[142] and certainly, the decisions reviewed herein indicate that there are few, if any, definitive trends to be discerned from the caselaw. Trial judges have been given the tools to assess each situation on its own facts and balance the competing rights. If anything, it is suggested that it is appropriate that there be variation in terms of decisions in such applications. If there were significant trends, such as consistent orders to produce and disclose to the defence, or no orders at all to do so, then one would have cause to wonder whether a careful assessment of the facts of each case and the balancing of rights according to the guidelines provided by Bill C-46 were actually taking place.

Privacy, and the accused's right to full answer and defence, have been key factors in decision-making, whereas mention of equality has been quite sparse. However, it is very difficult to determine specific trends with respect to reasoning as the detail in judgements thus far has been so varied.

4.7 The Preliminary Inquiry

The preliminary inquiry plays an important role in the criminal justice system. Its role, in terms of access to a complainant's personal records, has been a matter of discussion both by commentators and in the caselaw. The specific issue under debate is the scope of defence questioning complainants and other witnesses about personal records.

There is a statutory right of cross-examination at the preliminary inquiry.[143] There are several references to the preliminary inquiry as being one source for establishing the specific case for the likely relevance of records in R. v. O'Connor made by Lamer C.J.C and Sopinka J.[144] and in the dissenting judgment of L'Heureux-Dubé J.[145]

The majority decision in Mills notes that the examination of Crown witnesses at the preliminary inquiry is one manner by which an evidentiary foundation might be developed.[146]

Furthermore, contrary to the respondent's submissions, there is a sufficient evidentiary basis to support such an analysis at this early stage. This basis can be established through Crown disclosure, defence witnesses, the cross-examination of Crown witnesses at both the preliminary inquiry and the trial, and expert evidence, see: O'Connor, supra, at para. 146, per L'Heureux-Dubé J. As noted by Taylor J. for the British Columbia Supreme Court,

"the criminal process provides a reasonable process for the acquisition of the evidentiary basis", Hurrie, supra, at para. 39. To this end, as the Attorney of British Columbia submitted:

"Laying the groundwork prior to trial, comprehensive examination of witnesses at trial, will go a long way to establishing a meritorious application under this legislation." [147]

The Criminal Lawyers Association published an article in its newsletter shortly after the Mills decision was released.[148] The authors, Steven Skurka and Elsa Renzella, interpreted this aspect of the majority decision as providing a legal basis for a rigorous examination at the preliminary inquiry.

Professor Lise Gotell suggests that,

"… defence counsel, always adept at finding ways around legislative protections for complainants, have initiated a reinvented strategy. This strategy rests on grilling complainants on their records at the preliminary inquiry and it has become a crucial new battleground in the quest for disclosure."[149]

Gotell is accurate in her description of defence counsel adeptness in finding new strategies on behalf of their clients. Her comments inspired an in-depth examination of the role of the preliminary inquiry in this review.

The 48 cases included in this review were further examined on the basis of some information in the decisions about the preliminary inquiry. A list of the cases that provided some information, 20 in total, can be found in Appendix C. They came from Manitoba (2), Newfoundland (3), the Northwest Territories (2), Ontario (11), Saskatchewan (1) and the Yukon (1). Of the remaining cases, there was no preliminary inquiry (6, often in cases of young offenders) or no information on the preliminary inquiry.

Reliance upon these records applications decisions to provide an accurate portrayal of what occurred produced only limited results. Less than half of cases could be reviewed and of these, few had sufficient information to understand what had arisen at the preliminary inquiry in terms of the complainants' records. Given that it is the published decisions that are available to counsel in preparing for a case where a s.278.1 application may be appropriate, a review of these decisions is not without merit. Further, in terms of establishing precedent, cases that have reached higher level courts did provide adequate information as to facts and issues. As noted, infra, in order to fully understand what occurred at the preliminary inquiry, it is suggested that for a future study, transcripts of the inquiries should be reviewed in their entirety.

Two cases provided in-depth discussion on the issue of cross-examination of the complainant on her/his personal records and are reviewed below in detail, with other, but not all cases, along with one dated before Mills, in lesser detail. There were only two cases where the records application decision itself provided information on subsequent cross-examination by defence counsel.[150] This did not necessarily result in production/disclosure to the judge, or defence.

4.7.1 R. c. Kasook[151]

In the case of R. v. Kasook, the applicant applied for judicial review of the preliminary inquiry. He argued that the preliminary inquiry judge erred by precluding cross-examination of the complainant as desired by the applicant in order to establish an evidentiary basis for a s.278.1 application.

The issue for the court was the extent to which the complainant can be questioned on the topic of counselling. Vertes J. refers to a pre-Mills decision[152] wherein Jennis P.C.J. allowed questions in the following areas:

  • whether the complainant received counselling in regard to the particular allegations before the court following the alleged incident;
  • whether the counsellors appeared to take notes or maintain records;
  • what was the general nature of the counselling (i.e. one on one or group therapy, hypnosis, memory regression, imaging);
  • whether the alleged offence was part of the counselling topics or issues;
  • whether the counselling assisted the complainant in recalling that the alleged offence occurred or in recovering forgotten details of its occurrence;
  • if there was counselling prior to the complaint, whether that counselling affected the decision to contact the police;
  • if there was counselling following the alleged offence whether a narrative of the events comprising the alleged offence was given to the counsellor;
  • the names of counsellors involved, the names and locations of the agency they work for, and the duration of the counselling.[153]

Vertes J. concludes that the preliminary inquiry should be re-opened to permit further cross-examination, based on the parameters above. The decision does affirm that privacy should limit the line of questioning given that one cannot question about contents. Questioning about the existence of information and what type of information exists (e.g. summary, narrative, references only, etc.) is permissible.

4.7.2 R. c. B.(E.)[154]

In the Ontario Court of Appeal case of R. v. B.(E.), the issue was the nature and extent of permissible cross-examination of a complainant, at a preliminary inquiry involving sexual assault, where the stated purpose of the questioning is to lay the foundation for a s.278.1 application. An application for leave to appeal to the Supreme Court of Canada was dismissed on January 9, 2003.

The complainant described one of the assaults on a piece of loose paper and at the preliminary inquiry said he did so because he could not find his diary. Under cross-examination, he asked whether he wrote in his diary and he replied no. Counsel for the defendant wished to question the complainant on his diary at the preliminary inquiry to lay the foundation for a s.278.1 application and the judge declined to permit the questioning. A successful application for certioriari resulted and the preliminary inquiry continued.

The judge subsequently allowed questioning in four areas:

  1. the location of the diary;
  2. whether the diary contains descriptions of several encounters with the respondent on occasions other than the alleged offence dates;
  3. whether the diary contains references to the presence of another person on those occasions; and
  4. whether the diary includes a chronological record of the complainant's activities over a period of time when the complainant had some involvement with the respondent.

Counsel for the respondent argued that an "accused's statutory right to cross-examine witnesses called during a preliminary inquiry should not be limited absent a clear expression of Parliament's intention to do so".[155]

Crown counsel argued that the principles enshrined in these sections (ss.278.1-278.9) should inform the assessment of the questions being proposed. This approach was not adopted on the grounds that it would

"effect an improper inferential expansion of the reach of these sections."[156]

Defence and Crown counsel agreed that questions concerning the actual contents of the diary are impermissible. Neither ss.278.1 to 278.9, nor the caselaw prohibit defence counsel from using the preliminary inquiry as an opportunity to attempt to lay an evidentiary foundation for a subsequent application. Subsections 278.1-278.9 do not directly relate to issues on appeal, but s. 278.3(3) obliges an accused to establish an evidentiary foundation of "likely relevance" to support an application. Defence counsel in these two cases raise the question that if one is limited to general questions, how could one ever achieve the threshold of "likely relevance"?

As noted earlier, the majority decision in Mills certainly supports the need to cross-examine the complainant. Caselaw suggests a trend to distinguish between cross-examination concerning a private record which intrudes on the private or personal domain of the author of the record and that which does not.

The appeal by the Crown was dismissed and the court held that defence is entitled to ask questions that establish the legal relevance of a record. This may include whether a topic is covered in the record.

4.7.3 Other Cases

In R. v. D.M.,[157] the Complainant had counsel[158] and production was not ordered. The decision noted,

Although the defence was unable at the PI to examine on the exact contents of the diary, no attempt was made to discover the timing of relevant entries, the degree of the writing, ie. pages of narrative or summary reference only, or the nature of the entries ie. detailed history of the abuse or recordings of feelings and emotions.[159]

There exists a high expectation of privacy in a personal diary, and with disclosure, even to the court, prejudice is occasioned to the personal dignity and right to privacy of the complainant.[160]

At the preliminary inquiry, the defence asked no questions of the complainant on the identity of her counsellor and made no inquiries as to the time or place of intervention. Nothing is known about the entries in the records.

The judge denied production of a diary on the basis of a lack of evidence and remarked, "… no attempt was made (during preliminary cross-examination) to discover the timing of relevant entries, the degree of writing i.e. pages of narrative or summary reference only, or the nature of entries i.e. detailed history of abuse or recordings of feelings or emotions."[161]

In the case of R. v. P. J. S.,[162] the complainant testified at the preliminary inquiry that she had been sexually assaulted by others. The complainant was questioned as to her ability to identify the Defendant in this case and what the hospital records would show as to the timing of events. The records were not disclosed to the judge, nor to the defence in this case. The reasons indicated that there was no evidence to suggest that there were problems with the complainant's memory and the hospital records pertained to a suicide attempt and thus were not necessary for full answer and defence.

There were some cases where this issue was discussed at length that were decided before the Mills decision. In R. v. J.F.S.[163], when defence counsel sought to cross-examine a complainant on her possible involvement in therapy, Crown counsel objected. Jennis Prov. J. held that cross-examination relating to the source and existence of third-party records that "may likely be relevant to the allegations before the court" was proper.

He stated:

Where that line of questioning crosses over the boundary into the substance or contents of those records then those questions will have to be scrutinized to determine whether they potentially elicit information that would be considered part of the private or personal domain referred to by L'Heureux-Dubé in the Regina v. O'Connor case. If so, then those questions will not be permissible … [164]

Jennis Prov. J. also noted that:

Where the defence seeks to question the Complainant directly or indirectly on the very private parts of the Complainant's life as recorded … is precluded from doing so even though that type of evidence could assist in the discovery process and in laying the foundation for production of these records for trial. However, in my view, the defence is entitled to ask questions of the witness which will relate to the existence and source of such potential records provided that those questions do not call for answers which relate to those, "intensely private aspects" of the life of the witness or complainant as envisaged by L'Heureux-Dubé in the Regina v. O'Connor decision… .[165]

In the case of R. v. Hurrie, which is cited in the Mills decision:

… while a preliminary hearing judge does not have the power to order production, there is nothing in the legislation or in either of the judgements in R. v. O'Connor or the law generally that prohibits the exercise of the right of cross-examination at the preliminary inquiry to provide an evidentiary basis for such an application, which must be made to the trial judge. Whether that application is made prior to the trial or during it is a matter of timing and choice by counsel. Indeed, it would be hard to imagine any basis for objection to such a cross-examination, given that the issue of credibility, including aspects of recollection, is always a live issue even at a preliminary inquiry.[166]

4.7.4 Discussion

As noted earlier, Gotell argues that cross-examination of the complainant at the preliminary inquiry not only subverts the protections of s.278, but is also a "crucial new battleground in the quest for disclosure."[167] Gotell seems to base her assertion on cases such as Kasook and B.(E.) suggesting that, "These cases are crucial because, in establishing the right to preliminary cross-examination on records, they potentially increase the evidentiary basis for these applications."[168] There has always been, however, a statutory right to cross-examination at the preliminary inquiry and this right has also been supported more recently in caselaw.[169]

Heather Holmes argued in an article after the introduction of Bill C-46 that the legislation did not address the fundamental issue of the scope for the defence to "lay the groundwork" for an application for production.[170] She suggests that "… presumably, therefore, defence counsel will continue to cross-examine the complainant at the preliminary inquiry as to the history and details of her medical or counselling therapy."[171] Caselaw it seems has addressed the issue of laying the groundwork, in terms of nature and extent of questioning at the preliminary inquiry. This review of those cases suggests that they set parameters for questioning on records at the preliminary inquiry that clearly uphold the importance of the preliminary inquiry, while respecting the regime provided for by Bill C-46. Further, these parameters appear to respect the principles of Bill C-46 at the preliminary inquiry stage.[172] Such guidance can be very important for judges. Indeed, judges in Mohr's study commented that guidelines for reviewing records would be beneficial.[173]

It is acknowledged, however, that there are a number of disadvantages when cross-examination of complainants on their records is permitted latitude at the preliminary inquiry. As argued by the Crown in Kasook, the procedure established in s.278.1 is not available at a preliminary inquiry.[174] For example, a preliminary inquiry is a public hearing, whereas a s.278.1 hearing is held in private. As well, complainants are not compellable at a s.278.1 hearing, whereas they are compellable at a preliminary inquiry as the Crown's main witness. Further, both the complainant and the third party record keepers have standing at a s.278.1 hearing to make representations on whether they should be produced and receive notice. Neither has standing at a preliminary inquiry, nor do they receive notice of the intention to be questioned.

Finally, as one sexual assault counsellor during her interview for Mohr's study,

"once the evidence is stated in court, the damage is done."[175]

This comment summarizes the strongly held beliefs of equality-seeking women's groups that the criminal justice system does not offer sufficient protection for complainants in sexual assault cases. In submissions to the Standing Committee on Bill C-46, women's groups overall were supportive of the Bill. They sought an amendment that complainants' personal records should never be produced through the creation of a statutory privilege.[176] Third party record keepers noted in interviews that complainants are afraid that their personal records will be revealed and that there are no guarantees of privacy once the case is at trial. Given the competing rights at play and the importance of fairness as a fundamental principle of justice, such guarantees are unlikely.

In sum, the review of cases herein on the issues of cross-examination at the preliminary inquiry does not support Gotell's assertion that this is the "crucial new battleground". There are procedural concerns that need to be closely examined and certainly, this area should be monitored in the future.

It is important to bear in mind, however, that the criminal trial is a process which involves the telling of events of an intimate, sexual nature, and not just telling. One is questioned, rigorously on these events, in such a way that one cannot help feeling personally attacked, even if it the testimony that is being attacked. As the quotation which begins this report states, " … sexual assault is not like any other crime."[177] Law professor Jamie Cameron acknowledges the unique nature of sexual assault and raises a number of difficult questions in her report on privacy and victims of crime.[178]

The legislative protections that will always be subject to the delicate balancing of rights may not be able to address the ongoing concerns of complainants of sexual assault and their advocates. There may be other safeguards that could work towards reducing the anxiety and tensions that seem to be unfortunately, part of a sexual assault trial. The role of independent counsel is one and is examined in the section below.

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