Decision Content
R v Simon, 2018 NWTSC 60 S-1-CR-2017-000091
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
JOHNNY SIMON
_________________________________________________________ Transcript of the Ruling of The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 5th day of September, 2018.
_________________________________________________________ APPEARANCES:
Ms. A. Piché: Counsel for the Crown
Ms. K. Oja: Counsel for the Accused
(Charges under s. 271 of the Criminal Code)
There is to be no publication or broadcast of any information that could identify the complainant
( s . 486 . 4 )
There is to be no publication or broadcast of this decision until such time as the jury retires to consider
its verdict ( s . 648 )
There is to be no publication or broadcast of the contents of the Application , the evidence adduced , and
the submissions made at the hearing ( s . 278 . 9 )
Subject to the s . 486 . 4 and s . 648 bans , there is no publication ban on the decision itself
1 THE COURT: This is my Ruling on
2 Mr. Simon's Application for production of records
3 pursuant to section 278.3 of the Criminal Code.
4 A number of publication bans apply to this
5 decision.
6 First, there is an order banning the
7 publication of any information that could
8 identify the complainant pursuant to section
9 486.4 of the Criminal Code. There is also a
10 publication ban in effect with respect to the
11 entire application and this decision until such
12 time as the jury has retired to consider its
13 verdict, pursuant to section 648 of the Criminal
14 Code. Finally, there is a publication ban on the
15 contents of the application, the evidence
16 presented, the information provided, the
17 submissions made at the hearing, including the
18 identity of anyone referred to in the records
19 that were referred to, pursuant to section
20 278.9(1)(a) and (b) of the Code. There is a
21 further potential ban that applies to this Ruling
22 that I have the power to lift. I will hear from
23 counsel at the end as to whether you are of the
24 view that this is a case where it should be
25 lifted.
26 I am going to be referring to the
27 complainant and other persons referred to on the
1 record that were the subject of this Application,
2 by using initials only.
3 Johnny Simon is charged with having sexually
4 assaulted H.K. on February 5th, 2017. His jury
5 trial is scheduled to proceed in Inuvik in
6 October 2018. Mr. Simon has filed an Application
7 pursuant to section 278.3 of the Criminal Code.
8 He seeks the production of RCMP's investigative
9 file in relation to a separate sexual assault
10 complaint made by H.K. against another
11 individual, W.M.
12 The circumstances leading to this
13 application are unusual. Ordinarily, when an
14 accused applies for the production of records in
15 the possession of third parties, neither the
16 Crown nor the accused has seen the records that
17 are the subject of the application. Things are
18 different in this case because Mr. Simon's
19 counsel happened to be counsel on a circuit where
20 W.M.'s matter was to be spoken to. And in that
21 capacity, she was given the disclosure package
22 for that file. Accordingly, she has seen the
23 material. The Crown, obviously, has also seen
24 the materials.
25 Mr. Simon's counsel recognized that because
26 disclosure materials are provided to counsel
27 under certain undertakings, she could not use the
1 materials in the W.M. file in the defence of
2 another client, unless the Crown consented.
3 Because the Crown did not agree that the
4 materials should be used in this case,
5 Mr. Simon's counsel filed this Application for
6 production of the documents to her in her
7 capacity as Mr. Simon's counsel. No one has
8 suggested otherwise, but I want to make it clear
9 that, in my view, Mr. Simon's counsel has handled
10 this somewhat unusual and awkward situation in an
11 exemplary manner.
12 It goes without saying that under the
13 circumstances, counsel have been able to provide
14 me with a lot more information about the contents
15 of the records than would normally be the case in
16 an Application like this one, but that has no
17 bearing on the legal framework that applies. It
18 is the same in this case as it would be in any
19 other Application of this sort.
20 As far as the allegations against Mr. Simon,
21 I have been referred to the pretrial conference
22 report, which includes a synopsis of the
23 allegations. I have also been provided
24 transcripts of things H.K. said about the matter
25 at different times. I have transcripts of the
26 calls received by the RCMP's communication
27 centre, when she called police and first
1 disclosed this matter on February 5th. It is an
2 admitted fact between the parties that she was
3 intoxicated at the time she made those calls. I
4 also have transcripts of the four statements she
5 gave to police about this matter.
6 The allegations, based on the pretrial
7 conference report and other information provided
8 at the hearing, can be summarized as follows: On
9 February 6th, H.K. had spent time at a residence
10 in Inuvik. Later that day, she met Mr. Simon.
11 They drank alcohol together. They went to
12 different locations, and eventually returned to
13 the residence where H.K. had been previously that
14 day, to get more alcohol.
15 She says Mr. Simon used a metal object to
16 break into the apartment. She says, at some
17 point, he dragged her to the emergency stairwell
18 on the top floor. He held her by her arm, took
19 her clothes off, and had forced sexual
20 intercourse with her. After the assault, she
21 went to the warming shelter and reported the
22 matter to RCMP. She was brought to the hospital
23 where a sexual assault examination was done. The
24 examining doctor noticed scratches on her back.
25 A break-in was reported at the residence in
26 question at 9:15 that night. Mr. Simon was
27 arrested a few hours later. He had a metal
1 object on him. DNA testing confirmed the
2 presence of H.K.'s DNA on a penile swab seized
3 from Mr. Simon, and the presence of Mr. Simon's
4 DNA on a vaginal swab taken from H.K. during the
5 sexual assault examination. The issue at trial
6 is expected to be consent.
7 The information I was provided about the
8 substance of the W.M. complaint is that it was
9 for a sexual assault of H.K. alleged to have
10 happened on January 29th, 2017. She reported
11 this to police a short time after the alleged
12 events. She gave a statement to police about
13 those events a week later, on the same day as the
14 day she says the events involving Mr. Simon
15 happened.
16 I was told that the statement H.K. gave
17 about the W.M. incident was very vague. I also
18 heard about inconsistencies between what she is
19 reported to have told the nurse when she
20 underwent a sexual assault examination following
21 that complaint and what she told police in her
22 statement.
23 First, there is a note in the nurse's report
24 to the effect that H.K. said, during the
25 examination, that the assault took place outside
26 the Mac's News Stand in Inuvik, that she was
27 dragged up the stairs. In her statement to
1 police, she said the assault happened in an area
2 between the RCMP detachment and the Mad Trapper.
3 Both of these locations are on Mackenzie Road in
4 Inuvik, but in different areas of the road.
5 Second, there is a note in the nurse's
6 report stating that H.K. said the assault
7 happened after she had gone to the warming
8 shelter, whereas in her statement to police, she
9 said it happened before she went to the warming
10 shelter.
11 I was also advised that on the W.M. matter,
12 the results of the DNA testing came back
13 negative. The Crown directed a stay of
14 proceedings on that charge.
15 Also, by way of additional context, defence
16 counsel drew my attention to portions of H.K.'s
17 cross-examination at the preliminary hearing on
18 Mr. Simon's matter. During this portion of her
19 evidence, H.K. acknowledged that during the time
20 frame in question, she was drinking every day to
21 the point of blacking out, and that this had been
22 going on for some months. I mention this now
23 because it ties into aspects of the Defence's
24 argument as to why the W.M. file should be
25 produced.
26 Defence argues that the W.M. file should be
27 produced for my review and also produced to
1 Defence because it is necessary for Mr. Simon to
2 have those records in order to make full answer
3 and defence. The Defence's intention, if this
4 Application is granted, is to file a further
5 Application pursuant to section 276 of the
6 Criminal Code and seek leave to cross-examine
7 H.K. about the details of her complaint against
8 W.M. Defence would argue, in the context of the
9 section 276 Application, that cross-examination
10 on that complaint is relevant to H.K.'s
11 credibility and the reliability of her account of
12 what happened with Mr. Simon.
13 The Crown opposes production, arguing that
14 the W.M. complaint is not relevant and that it
15 has, if any at all, minimal probative value.
16 It is undisputed that the W.M. file is a
17 record within the meaning of section 278.1 and is
18 not covered by the exemption set out in the
19 definition. This section does exempt from the
20 statutory scheme, "Records made by persons
21 responsible for the investigation or prosecution
22 of offences".
23 However, that exemption applies only to
24 records made for the investigation of the offence
25 charged, and not to records made in the context
26 of just any investigation. That was confirmed in
27 R. v. Quesnelle, 2014 SCC 46.
1 The regime contemplates a two-step process.
2 The first step is for the judge to decide whether
3 the records should be produced for inspection by
4 the judge. Section 278.5. If the judge decides
5 that it should be, the judge then examines the
6 record and considers, as a second step, whether
7 the record should be produced to the accused.
8 Sections 278.6 and 278.7. At both stages of the
9 analysis, the judge is required to consider the
10 salutary and deleterious effects of the decision
11 on the accused's right to make full answer and
12 defence, and on the rights of privacy, personal
13 security, and equality of the complainant, and of
14 any other person to whom the record relates.
15 Specific factors listed at section 278.5(2)
16 are to be considered, they include:
17
18 (a) the extent to which the record is necessary to make full answer and
19 defence; (b) the probative value of the record; (c) the nature and extent
20 of the reasonable expectation of privacy with respect to the record;
21 (d) whether production of the record is based on a discriminatory belief
22 or bias; (e) the potential prejudice to the personal dignity and right to
23 privacy of any person to whom the record relates; (f) society's
24 interest in encouraging the reporting of sexual offences; (g) society's
25 interest in encouraging and obtaining of treatment by complainants of
26 sexual offences; (h) the effect of the decision on the integrity of the
27 trial process.
1 At the first step of the process, section 278.5
2 states that the judge may order production if
3 three criteria are met. The first criterion is
4 that the Court must be satisfied that the
5 application was made in accordance with the
6 statutory requirements that govern these matters.
7 In this case, that criterion is met. The
8 application meets the requirements of the
9 Criminal Code. Although service on H.K. and W.M.
10 was a short service, I am satisfied that service
11 is valid. Based on the Crown's representations,
12 I am satisfied that H.K. has been made aware of
13 her right to be represented at this hearing and
14 to participate, and that she does not wish to.
15 I am also satisfied, based on Mr. Simon's
16 counsel's representations, that W.M. was aware of
17 this matter, that steps were taken to ensure that
18 he had the opportunity to obtain legal advice
19 about this matter and participate, but that he
20 declined to avail himself of that opportunity. I
21 infer from that that he did not wish to
22 participate or be represented at this hearing
23 either.
24 The next criterion is that the accused has
25 established that the record is likely relevant to
26 an issue at trial, or to the competence of the
27 witness to testify. Here, the question is solely
1 whether the record is likely relevant to an issue
2 at trial. And, finally, the last criterion is
3 that the production of the record is necessary in
4 the interests of justice.
5 As I mentioned already, the purpose of
6 Defence in seeking production of these records is
7 to use them as a basis to file a section 276
8 Application with a view of enabling Defence to
9 cross-examine H.K. about the details of her
10 complaint against W.M. As everyone acknowledged,
11 the admissibility of this evidence, pursuant to
12 the section 276 regime, is not what I have to
13 decide at this stage. But because the second
14 criterion to be met is linked to relevance, and
15 because the factors to be considered include
16 probative value, the section 276 regime is part
17 of the context in which this Application must be
18 examined. Indeed, most of the authorities filed
19 by counsel are decisions on 276 Applications.
20 A number of cases have addressed the
21 relevance of unrelated complaints of sexual
22 assault in the context of sexual assault trials.
23 One authority that is often relied on in this
24 context is R. v. Riley (1992) 11 O.R. (3d) 151, a
25 decision from the Ontario Court of Appeal.
26 The often quoted passage of this relatively
27 short decision is to the effect that the only
1 legal basis that can justify cross-examination on
2 an unrelated sexual assault complaint is to lay
3 the foundation for a pattern of fabrication. The
4 Court of Appeal said in Riley that this should
5 not be encouraged unless defence could show that
6 the complainant recanted the allegation or that
7 the complaint was demonstrably false.
8 The decision is now somewhat dated, but it
9 was referenced by the same court more recently in
10 R. v. M.T., 2012 ONCA 511, at paragraph 52.
11 Defence argues that the requirement of
12 demonstrated falsehood is too strict, and that
13 subsequent cases have illustrated that there are
14 other circumstances where cross-examination of a
15 complainant on unrelated complaints may be
16 relevant and very probative.
17 I agree that the relevance of an unrelated
18 complaint may come from something other than the
19 demonstration of its falsehood. If there are a
20 series of complaints that are strikingly similar,
21 for example, they may be probative of a pattern
22 of fabrication, even if there is no actual
23 demonstration or proof that any of them are
24 false.
25 The facts in R. v. Anstey, 2002 NFCA 7 are a
26 good example. In that case, the complainant had
27 made very similar allegations about, effectively,
1 a third of the male population of a small
2 community. And in each of those complaints, she
3 alleged that the perpetrator had said very
4 similar, quite distinctive things to her during
5 the course of the assault.
6 There was nothing extrinsic to demonstrate
7 that any of the allegations were false, but it
8 was at least arguable that the striking
9 similarities between them, in and of itself,
10 raised issues about the implausibility of all
11 these different men having, on separate
12 occasions, done the exact same thing and said the
13 exact same things to the complainant.
14 I pause here to mention that while I refer
15 to this case for its facts, and with the greatest
16 of respect, I disagree with the legal analysis
17 and approach that the Court of Appeal adopted in
18 dealing with the issue of admissibility of this
19 evidence. I disagree with that approach
20 essentially for the reasons outlined by Professor
21 Elaine Craig in her article "Section 276
22 Misconstrued: The Failure to Properly Interpret
23 and Apply Canada's Rape Shield Provisions",
24 (2016) 94-1, Canadian Bar Review 96.
25 I am not here dealing with a section 276
26 Application, so I do not think this is the proper
27 case to embark on a detailed discussion about
1 this. But I will say only that I agree with
2 Professor Craig that it appears from some of the
3 cases she refers to in that article that the
4 exclusionary rule set out at paragraph 276(1),
5 is, at times, conflated and confused with the
6 admissibility rule set out at paragraphs 276(2)
7 and (3). The difference between these two things
8 is aptly summarized by the Ontario Court of
9 Appeal in R. v. M.T., at paragraphs 39 to 43.
10 Returning to situations where a
11 demonstration of falsehood may not be necessary
12 to render extrinsic sexual assault allegations
13 relevant or probative, another example is when
14 the other allegations are probative of a motive
15 to fabricate.
16 R. v. G.S. [2007] O.J. No. 1645, referred to
17 by Defence, is an excellent example of that. The
18 complainant, a child, had made separate
19 complaints of sexual assault against the two men
20 who had been her mother's boyfriends, after her
21 mother and father had separated. There was also
22 evidence that she wished her parents to be back
23 together, and did not want her mother to have
24 boyfriends.
25 The second boyfriend, who was the one on
26 trial, applied to cross-examine her about her
27 allegations against the first boyfriend. In that
1 example, again, there was no demonstrated
2 falsehood of the allegation against the first
3 boyfriend, but the Court concluded, and
4 rightfully so in my view, that the similarity of
5 the conduct alleged, and more importantly, the
6 relevance of the other allegation to the motive
7 to fabricate in the overall context of the case,
8 rendered the other allegations relevant and
9 probative.
10 Yet another example is where the evidence
11 about the other allegations raise issues of
12 possible transference or confusion between two
13 separate events. That was the situation in the
14 third case relied on by Defence, R. v. G.W., 2011
15 ONSC 1361. In that case, the complainant, in the
16 middle of testimony at a trial, where she was
17 alleging that her step-father had sexually abused
18 her, disclosed during a break that her biological
19 father had also sexually abused her. This was
20 found to be relevant both because it was
21 inconsistent with her having spoken very
22 positively about her biological father on earlier
23 occasions, and because it raised the possibility
24 of transference.
25 In that situation, the potential probative
26 value of the other allegation did not come from
27 any demonstration of its falsehood. On the
1 contrary, in that case, the theory of the Defence
2 was that the other allegation was true, and that
3 the complainant had transferred the abuse she
4 sustained at the hands of one person, her
5 biological father, to another person, the
6 accused.
7 Of course, it does not mean that this theory
8 would necessarily be accepted by the trier of
9 fact, but it is another illustration that
10 evidence may be relevant or probative, even if it
11 does not fall within the strict parameters set
12 out in Riley.
13 These examples show that the Riley approach
14 does not capture all the situations where
15 evidence of other complaints of sexual assault
16 may be relevant and probative. There could be
17 other situations where the same is true.
18 In my respectful view, relevance must be
19 approached on a principled, case-by-case basis,
20 not on the basis of rigid categories and
21 pigeonholes. This is very much in line with the
22 evolution of the law of evidence in various
23 areas, the most obvious example being the
24 admissibility of hearsay.
25 I have referred to cases where extrinsic
26 sexual assault allegations were found to be
27 relevant. There are, of course, many cases where
1 such allegations were found not to be relevant.
2 A very useful case, in my view, is the
3 Ontario Court of Appeal decision in M.T., which I
4 have already referred to. The complainant in
5 that case was a child. The accused was her
6 uncle, and was alleged to have sexually abused
7 her over a period of time. In the same statement
8 where she disclosed that abuse, she also said she
9 had been sexually abused by her father and that
10 this had happened before the abuse at the hands
11 of her uncle. The issues at that trial were
12 whether the alleged conduct had happened at all,
13 and, if so, the identity of the perpetrator.
14 The accused made application, pursuant to
15 section 276, seeking to cross-examine the
16 complainant about the allegations involving her
17 father. That application was dismissed. The
18 accused was convicted, and the section 276 ruling
19 became one of the grounds of appeal.
20 The Court of Appeal found that the evidence
21 of the complaint against the biological father
22 was simply not relevant to the issue of identity.
23 The Court noted, at paragraph 49, that evidence
24 of non-consensual sexual activity with one person
25 is not probative of the falsity of an allegation
26 of non-consensual activity with another.
27 The Court also noted that although the two
1 complaints were made at the same time and there
2 was a connection in that respect, they were quite
3 distinct. The complainant said that the abuse at
4 the hands of the father had stopped by the time
5 the abuse at the hands of the accused had begun.
6 The allegations also involved different locations
7 and different behaviors.
8 At paragraph 52, the Court concluded that
9 reduced to its essence, the claim that the
10 evidence of the other complaint was relevant
11 amounted to an argument that because the
12 complainant was saying that two different persons
13 had abused her sexually at different times, she
14 was more likely to be lying about one of them
15 than if she was accusing only one person. It
16 found the evidence of the other complaint was not
17 relevant, and it also found that it would be
18 inadmissible, because of lack of relevance, even
19 leaving aside the statutory framework and the
20 special admissibility rules set out in section
21 276.
22 Returning to the present Application, the
23 Defence says that the W.M. complaint is relevant
24 to the credibility of H.K., as well as the
25 reliability of her account of what occurred with
26 Mr. Simon.
27 The first reason Defence argues is that the
1 W.M. complaint meets the "demonstrably false"
2 threshold, or is very close to meeting that
3 threshold. Defence bases this on the vagueness
4 of the H.K. allegations against W.M. and on the
5 inconsistencies between what she is reported to
6 have said to the nurse and what she told police
7 about the events. As I have already noted those
8 inconsistencies related to where the assault
9 occurred, as well as the timing of events in
10 relation to when she went to the warming shelter.
11 Defence also relies on the "striking
12 similarity" line of argument. More specifically,
13 that in both cases H.K. describes the perpetrator
14 as throwing her down, describes all her clothes
15 being removed, and describes an act of vaginal
16 intercourse. Defence suggests, in particular,
17 that the allegation that every item of H.K.'s
18 clothing was removed is a strikingly unusual
19 feature for a sexual assault committed in a
20 public, or semi-public area.
21 The second reason Defence says the W.M.
22 complaint is relevant is because of the
23 possibility of transference, confusion, or
24 co-mingling on H.K.'s part of what happened with
25 W.M. and what happened with Mr. Simon. That line
26 of relevance does not suppose that the allegation
27 against W.M. is fabricated or false. On the
1 contrary, it supposes that something did happen
2 with W.M., that there has been some sort of
3 transference or co-mingling between those two
4 events in H.K.'s mind.
5 In support of that argument, the Defence
6 relies again on the similarities between the
7 allegations and on the temporal link between
8 them. As I mentioned earlier, the events leading
9 to the complaint against W.M. were alleged to
10 have happened on January 29th. It is an admitted
11 fact that it was reported, at first, within a day
12 or so, but that H.K. gave her statement to police
13 about this only a week later, on the same day
14 that she says the assault at the hands of
15 Mr. Simon took place.
16 Defence also relies on H.K.'s
17 acknowledgement about her heavy drinking and
18 frequent blackouts during the relevant time
19 frame. Defence argues that this increases the
20 possibility that events may have become confused
21 in her mind.
22 As I already said, to order production of
23 these records for my review, I must be satisfied
24 of their likely relevance and that their
25 production is necessary in the interests of
26 justice. In examining these criteria, I must
27 also consider this salutary and deleterious
1 effects of the decision on the accused's right to
2 make full answer and defence, and on the rights
3 of privacy, personal security, and equality of
4 H.K. In making those assessments, I must take
5 into account the factors listed at section
6 278.5(2).
7 In examining the concept of likely
8 relevance, I find it helpful to go back to how
9 Justice Watt described the concept of relevance
10 simpliciter in R. v. M.T. at paragraph 36. He
11 said:
12
13 Relevance is a matter of day-to-day experience and common sense, not an
14 inherent characteristic of any item of evidence. Relevance exists as the
15 relationship between an item of evidence proposed for reception and
16 the proposition or fact the party tendering the evidence seeks to
17 establish by its introduction.
18
19 He also said:
20
21 An item of evidence is relevant if it makes the fact it seeks to establish
22 slightly more or less probable than the fact would be without that
23 evidence through the application of every day experience and common
24 sense.
25
26 Reframed this way, the issue becomes: Does
27 evidence about the W.M. complaint make the fact
1 that Defence seeks to establish (namely, a
2 pattern by H.K. of fabricating sexual assault
3 allegations, or that H.K.'s account of what
4 Mr. Simon did is unreliable because she may have
5 co-mingled or confused what happened between him
6 and what happened with Mr. M) slightly more
7 probable?
8 With respect to establishing a pattern of
9 fabrication, I am not persuaded that
10 cross-examination of H.K. on the W.M. complaint
11 would assist in attacking her credibility. This
12 is not, in my view, a situation where it can be
13 shown that the W.M. complaint is demonstrably
14 false. In my respectful view, it is nowhere near
15 that threshold and has no relevance on that
16 front. The stay of proceedings is not helpful in
17 this regard. Proceedings can be stayed for many
18 reasons. The Crown's decision to stay
19 proceedings simply cannot be equated with the
20 notion that the complaint was false, or that the
21 Crown thought it to be false. Even an acquittal
22 can mean anything between the trier of fact being
23 positively convinced that a complaint was false,
24 and a trier of fact believing that an accused is
25 probably guilty but still having a reasonable
26 doubt.
27 The vagueness of a complaint is not in and
1 of itself an indication of falsehood either. It
2 can be an indication of a lot of things,
3 including a high level of intoxication at the
4 time of the events. The same is true with the
5 types of inconsistencies that emerge from what is
6 before me as far as what H.K. told police, and
7 what she reportedly told the nurse during the
8 sexual assault examination. Nor do I find this
9 to be a case where there are such striking
10 similarities between the allegations to suggest
11 that it is implausible that these two events
12 could have occurred. The similarities are
13 different from those in Anstey and are of a much
14 more generic nature.
15 I must also consider, quite aside from the
16 question of demonstrable falsehood, whether this
17 is one of those cases where the extrinsic
18 complaint is relevant for other reasons. Here,
19 there is no suggestion that the W.M. complaint is
20 relevant because it suggests a motive to
21 fabricate, so that is not not really in issue.
22 As far as possible transference or confusion
23 between the two events, again, I do not find the
24 similarities that exist between the two events to
25 be capable of leading to that conclusion. A
26 sexual assault complainant being thrown to the
27 ground or having her clothes removed is fairly
1 generic. In my view, it is not a particularly
2 distinctive feature, even acknowledging that
3 there are many cases where not all of the
4 complainant's clothes are removed. But, perhaps,
5 more importantly, when considering this question
6 of similarities in this type of analysis, one
7 must also consider the dissimilarities. And
8 here, there are several dissimilarities.
9 While the account of the W.M. complaint, I
10 am told, is very vague, the account of the
11 complaint involving Mr. Simon is quite specific.
12 There is a narrative of events for that day, a
13 location where things happened, a description of
14 how they entered the apartment. There is
15 independent evidence that there was, in fact,
16 sexual contact between them, and the issue on
17 this trial is going to be consent. This paints a
18 very different picture from the one that has been
19 brushed about the W.M. allegations.
20 In the Supreme Court of Canada decision of
21 Darrach, the Court said, at paragraph 58:
22
23 It is common for the defence in sexual offence cases to deny that the
24 assault occurred, to challenge the identity of the assailant, to allege
25 consent, or to claim an honest but mistaken belief in consent. Evidence
26 of prior sexual activity will be rarely relevant to support a denial
27 that sexual activity took place or to establish consent.
1
2 That point was noted in M.T. at paragraph 41.
3 The Supreme Court of Canada reiterated this in
4 Quesnelle, at paragraph 17, when it gave the fact
5 that a complainant has reported sexual violence
6 in the recent past as one of the examples of
7 something that is not, without more, relevant.
8
9 Here, the defence says this is one of those rare
10 cases and that there is more. I respectfully
11 disagree. I have kept in mind that the threshold
12 for relevance is quite low to start with, and
13 also that section 278.5 requires only that likely
14 relevance be established, not actual relevance.
15 But, under the circumstances of this Application,
16 I still do not think that threshold is met.
17 If I am mistaken about that, and even
18 assuming that the criterion of likely relevance
19 is established on the record before me, I am not
20 satisfied that the third criterion is met. I am
21 of the view that the production of these records
22 is not necessary in the interests of justice. I
23 have concluded, on the contrary, that in all
24 circumstances, production would be contrary to
25 the interests of justice having regard to the
26 factors set out at section 278.3(2).
27 The first factor is whether the record is
1 necessary for Mr. Simon to make full answer and
2 defence. I am not satisfied it is. Whatever
3 H.K. would say about the separate allegation,
4 that evidence, in my view, is not necessary for
5 Mr. Simon to defend this charge. It has little
6 to do with what H.K. claims he did, and her claim
7 that the sexual activity between them was not
8 consensual. The second factor, the probative
9 value of this evidence, is somewhat related to
10 the first one. I find the probative value of
11 this evidence extremely tenuous. The reasons I
12 gave for concluding it does not meet the
13 threshold of likely relevance, are also the
14 reasons why I find it has little to no probative
15 value.
16 The potential prejudice to H.K.'s personal
17 dignity and right to privacy is another factor
18 that must be considered. It would be even more
19 engaged at the stage of deciding whether to order
20 production of the record to Mr. Simon, because
21 then Mr. Simon himself, in addition to his
22 counsel, myself, and the Crown would have access
23 to the details of the W.M. investigative file.
24 But even at the first stage, which is
25 concerned only with production to me as the trial
26 judge, H.K.'s privacy interests and personal
27 dignity cannot be overlooked. In my view, we
1 cannot and should not lose sight of the highly
2 sensitive and personal nature of the contents of
3 these types of records. We should not be too
4 quick to assume that having additional persons
5 gain access to the details of such complaints,
6 even just one person, even just the judge, does
7 not have an impact on a person's dignity and
8 right to privacy. Lawyers, judges, and others
9 who work in the criminal justice system read and
10 hear about such matters on a regular basis, but
11 that does not change the fact that for each
12 complainant who makes a statement about this type
13 of event, this is a highly personal and sensitive
14 subject matter
15 Finally, I am required to consider society's
16 interest in encouraging the reporting of sexual
17 offences. In my view, cross-disclosure of
18 unrelated sexual assault complaints would have a
19 very real impact on whether persons who are
20 sexually assaulted multiple times will choose to
21 report these events. To be sure, there are cases
22 where the probative value of the other evidence
23 and its importance to the accused making full
24 answer and defence will tip the scale in favour
25 of production, despite these concerns. But I
26 have concluded that this is not one of those
27 cases.
1 Having carefully weighed all the factors,
2 and the salutary and deleterious effects of
3 ordering production, and of declining to order
4 production, I have concluded that the W.M. file
5 should not be produced to me for review. The
6 Application is dismissed.
7
8 [Discussion about whether publication ban as to the
9 decision should be lifted pursuant to section
10 278.9(c)]
11
12 Section 278.9(c) states that determination
13 of the Court on these types of Applications are
14 subject to a publication ban unless the judge,
15 after taking into account the interests of
16 justice and the right to privacy of the person to
17 whom the record relates, orders that the decision
18 may be published.
19 I have considered this, as well as counsel's
20 positions. The Crown, properly, noted that the
21 Court must consider H.K.'s privacy interests. On
22 the other hand, there is not a lot of
23 jurisprudence in this jurisdiction with respect
24 to these types of applications. The issues raised
25 on this Application, in my view, engaged
26 important principles that may well arise again in
27 the context of applications like this one or on
1 applications brought pursuant to section 276 of
2 the Criminal Code. H.K.'s privacy interests can
3 be protected through the use of initials in this
4 transcript and through the general ban on the
5 publication of any information that could
6 identify her. On the whole, in my view, it is
7 appropriate for me to exercise my discretion to
8 lift the publication ban that would otherwise
9 apply to this decision. Given that this is going
10 to be jury trial, by operation of section 648 of
11 the Criminal Code, this decision cannot be
12 published until the jury has retired to consider
13 its verdict. But once that publication ban is no
14 longer in effect, this decision will not be
15 subject to a ban pursuant to section 278.9
16 _____________________________________________________
17 PROCEEDINGS CONCLUDED
18 _____________________________________________________
19
20
21
22
23
24
25
26
27
1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 transcribed foregoing pages are a complete and
5 accurate transcript of the digitally recorded
6 proceedings taken herein to the best of my skill and
7 ability.
8 Dated at the City of Edmonton, Province of
9 Alberta, this 23rd day of September, 2018.
10
11 Certified Pursuant to Rule 723
12 Of the Rules of Court
13
14
15
16 __________________________
17 Leanne Harcourt, CSR(A)
18 Court Transcriber
19
20
21
22
23
24
25
26
27