R. v. Levin, 2012 ABQB 736

Court of Queen ’ s Bench of Alberta Citation: R. v. Levin, 2012 ABQB 736 Date: 20121129 Docket: 1008424000Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Aubrey Levin Accused

Restriction on Publication: Trial information in Absence of Jury – See the Criminal Code, section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict. Identification Ban – See the Criminal Code,

section 486.4. By Court Order, information that may identify any complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. Editorial Notice: The Restriction on Publication (Trial Information in Absence of the Jury) expired on January 25, 2013. The Identification Ban remains in place. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ 1. Background [ 1 ] Dr.

Levin is facing sexual assault charges that involve 10 complainants. These charges are the subject of a jury trial, originally scheduled to commence on October 1, which commenced on October 10, 2012. [ 2 ] Dr. Levin was represented by Mr. Hepner and Ms. McConaghy until October 23, 2012, at which point Dr. Levin dismissed them. Dr. Levin represented himself at trial between October 24, 2012 and October 26, 2012. Mr. Archer became his counsel on or about October 29, 2012 and since then has represented Dr. Levin with the assistance of co-counsel, Ms. Molle. [ 3 ] R.B., S.M., and J.M. are complainants in this matter.

2. The Present Application [ 4 ] After raising the issue in Court and being directed to file an application and supporting materials, on November 21, 2012, Dr. Levin filed an application that alleges the Crown has not met the requirement that it disclose to the Defence all relevant information in its possession. Dr. Levin identifies the following items, which I list in full, as their specific nature is relevant to my decision: a.

Full documentation of all communications, including emails, texts and correspondence, live conversations of all communications (directly or indirectly) between the Calgary Police Service (or any other police force) and R.B. b. Full documentation of all communications, including emails, texts and correspondence, live conversations of all communications (directly or indirectly) between the Calgary Police Service (or any other police force) and any of the complainants since these charges were laid against Dr. Levin. c.

Full disclosure of the file related to an 11 count Indictment against R.B. which was stayed by the Crown on October 4, 2012. Dr. Levin requests witness statements, police notes and all police reports. d. Full disclosure of all the circumstances surrounding the stay of the above charges on October 4, 2012 and disclosure of all efforts made to locate the witnesses in that matter, then and now. e.

Court appointment of a Private Investigator at the Crown’s expense to investigate the whereabouts of the complainant in the above matter and to determine the circumstances of his non-attendance and report back to the Defence and the Court. f. Pertaining to another incident involving R.B. (which has been referred to as the “Salon Incident”), complete disclosure including the police notes and witness statements, including the statements from the ambulance attendants that subdued R.B. by drugging him.

In addition, he requests production of the exhibits produced, including the crack pipe found on R.B. and the spent Taser cartridges used to subdue him. g. All of the recordings left on the police “Tip Line” in relation to this matter. h. The police files that pertain to all of R.B.’s convictions. i. The police reports pertaining to all other complainants, including reports that pertain to their outstanding criminal charges and any convictions. j. R.B.’s Correctional Service of Canada records pertaining to his incarceration at Bowden federal penitentiary. k. S.M.’s medical records from 1999 to 2005. l.

Forensic examination of S.M.’s computer, including his email, social media accounts and internet surfing history. m. All information as to when the complainant J.M. advised the police or the Crown that he had written on the appointment card (Exhibit 36 in these proceedings), and exact details of what J.M. said and to whom.

n. Any other information in possession of the Crown that may be relevant to Dr. Levin’s ability to make full answer and defence,including whether any of the complainants have become unwilling to testify for the Crown. [5] Dr. Levin argues that his capacity to make full answer and defence has been compromised due to inadequate disclosure.

Heobserves that the breach of the duty to disclose is a “very serious breach of legal ethics”, and alleges that in this proceeding the Crown“... has demonstrated more than a mere casual disregard for its disclosure obligation.” [6] The Defence Brief explains that the purpose of this disclosure request is to allow proper cross-examination of thecomplainants (paras. 40-41): [40] One of the central issues in this trial is the credibility, reliability and character of the various complainants. Some complainantshave criminal records and many have filed lawsuits against Dr. Levin seeking large damage awards.

Many of these complainants mayhave been involved in other activities that are relevant to their credibility, character, bias or motive to be untruthful. [Emphasis added.] [7] In addition, the Defence has, through its cross-examination of witnesses so far, suggested the possibility that thecomplainants were in contact with one another either before or after they initially contacted police.

I presume that the request for some ofthe requested disclosure is related to that allegation. [8] Responding to the Crown’s Responding Brief filed in relation to this application, the Defence argues that the Crown ought tohave indicated its position earlier with respect to this being an R v O’Connor, (SCC), [1995] 4 SCR 411, 130 DLR (4th)235 (“O’Connor”) situation rather than a R v Stinchcombe, (SCC), [1991] 3 SCR 326, 68 CCC (3d) 1 (“Stinchcombe”)situation.

The Defence contends that, on the authority of R v McNeil, 2009 SCC 3, [2009] 1 SCR 66 (“McNeil”), there ought to be abridging of the gap between first party and third part disclosure and that the present situation is much like that in McNeil. It submits thatthe criminal history of the complainants is relevant to their contention that they were fearful of Dr. Levin and therefore the Crown oughtto have provided all of the requested information to former counsel. [9] As relief Dr.

Levin seeks: 1. that the court declare a mistrial, 2. immediate disclosure of the information identified, 3. an adjournment to review the material in question once provided, and 4. an award of costs against the Crown. [10] The Crown submits that, given the nature of the materials sought, the Defence has brought the wrong type of application. Itpoints out that the Defence is the applicant and the Crown has no duty to advise the Defence on the law or the proper procedure.

In anyevent, it suggests that, even if the correct application procedure were followed, the Defence ought to have made its request for these thirdparty records long ago. It argues that the existence of these types of records, including the use of the TIP line, is not news to the Defenceand that the Defence had a duty to act diligently in making these requests during the almost two-year period it had prior to thecommencement of the trial. [11] The Crown argues that this is third party disclosure and that McNeil, relied upon by the Defence, sets out the distinction inparagraph 57 of that decision.

It submits that items required to be disclosed by the Crown as first party disclosure have already been

provided to the extent that they apply or are relevant in this case. [ 12 ] The Crown argues that R v Black , 2011 ABCA 349 , does not apply only to impaired driving matters and submits that the error made by the trial judge in that case was to treat third party disclosure as first party disclosure. The records sought by the Defence in this case are the very records that were held to be third party records in Black .

The Crown submits that it is necessary to make an O ’Connor application for other files and materials in the hands of the police that are not caught within the category of first party Crown disclosure. [ 13 ] In relation to specific items, the Crown submits that, to the extent that the material does not relate to the Levin investigation, the items in “a” and “b”, together with items “j” and “l”, are third party records and would properly be the subject of an O ’Connor application.

The Crown submits that information related to item “d” was provided to the Defence shortly after the stay was entered, at which time no further information was requested. It submits that item “m” has already been disclosed. In relation to item “g”, because of the lengthy delay in making this request, the Crown is currently unable to confirm the existence of the material, its relevance or what privacy interests might be engaged. In addition, certain records are caught by the provisions of s. 278.1 of the Criminal Code and would have to be the subject of an application under that section.

This would include item “k”. 3. What Law Applies to this Application? A. The Obligation to Disclose [ 14 ] I conclude that item “n” is a general request for disclosure. In connection with its initial request for further disclosure, the Defence had requested copies of materials which fell within the Crown’s “work product privilege”. Defence was satisfied that that was the case and withdrew its request. The Crown has confirmed its position that it has disclosed all relevant information in its possession. Dr.

Levin offers no evidence other than the bare allegation of “casual disregard” for alleging the Crown has breached its obligation to disclose relevant information. [ 15 ] In relation to item “d” additional information concerning the reason for the stay of the charges against R.B. was provided immediately upon request by current counsel. The Crown’s file indicated that neither the complainant nor the two other witnesses could be located for the purposes of serving them with subpoenas.

Documents were provided confirming the attempt to serve and the determination that all three individuals had moved, left no forwarding address and had terminated their phone numbers. In addition, the Crown offered to call as a witness, or provide affidavit evidence from, the prosecutor who entered the stay. However, the Defence argues that more is required, suggesting both that the Crown did not make sufficient efforts to locate witnesses or that R.B. may have been somehow involved in the failure to locate these persons.

No evidence has been provided in support of either of these suggestions. [ 16 ] In relation to item “m”, this information was provided through J.M. during his testimony and also through correspondence from the Crown. [ 17 ] The modern approach for Crown disclosure, set by the Supreme Court of Canada in Stinchcombe , is very well established and has been the subject of extensive appellate judicial commentary, including McNeil , R v Basi , 2009 SCC 52 , [2009] 3 SCR 389, and R v Bjelland , 2009 SCC 38 , [2009] 2 SCR 651 . [ 18 ] The disclosure obligation is general and broad.

Justice Sopinka, in Stinchcombe at para 340 , described the threshold for information disclosure in this manner: ... the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence ... [Emphasis added.] An alternative formula to describe the limits of the Crown’s obligation is that it need not disclose information that is “clearly irrelevant” (pp 336, 339).

[19] More recently in McNeil, at para 17, the test has been restated as: ... any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to makefull answer and defence. [Emphasis added.] Arguably the McNeil expression of the Crown’s obligation is at least somewhat expanded over that stated in Stinchcombe. [20] There are narrow exceptions to the Stinchcombe disclosure obligation: 1. to protect persons from harassment or injury (Stinchcombe at p 336); 2. to enforce privilege relating to informers (Stinchcombe at p 336); 3. to keep information confidential to allow completion of an investigation R v Egger, (SCC), [1993] 2 SCR 451,103 DLR (4th) 678); and 4. as a consequence of legislative schemes such as the Canada Evidence Act, RSC 1985, c C-5 (for example s 38.06) and theCriminal Code, RSC 1985, c C-46 (for example ss 278.1 to 278.91) (McNeil, at para 17). [21] My conclusion will flow from one of the legislative schemes identified in that last point: the prohibition against disclosure ofcertain records of a complainant or witness where the accused is alleged to have engaged in a sexual offence: Criminal Code, ss 278.1-278.91.

I will refer to this as the “278.1 Procedure”. B. The Criminal Code 278.1 Procedure for Admission of Personal Information [22] The 287.1 Procedure creates an exception to the usual Stinchcombe requirement that the Crown automatically disclosepotentially relevant information to the Defence. The 287.1 Procedure has been reviewed and found constitutional by the Supreme Courtof Canada in R v Mills, (SCC), [1999] 3 SCR 668, 180 DLR (4th) 1.

More recently the general operation of thisprovision was explained in McNeil at para 21 as a statutory exception to the Stinchcombe and O’Connor” disclosure schemes: Although the common law regime of disclosure under Stinchcombe generally strikes the appropriate balance between the accused’s rightto make full answer and defence and the residual privacy interests of other persons in the fruits of the investigation, it is not the onlyregime that meets constitutional standards.

As this Court concluded in Mills, it was open to Parliament to enact, as it did, a statutoryregime for the disclosure of records containing personal information of complainants and witnesses in proceedings for sexual offencesunder ss. 278.1 to 278.91 of the Criminal Code, R.S.C. 1985, c. C-46 (commonly referred to as the “Mills regime”).

Absent an expresswaiver from the complainant or witness to whom the record relates, production of all records falling within the Mills regime, whether inthe possession or control of a third person or of the prosecutor in the proceedings, can only be made on application to the court and inaccordance with the balancing test set out in the Code provisions. This statutory regime therefore constitutes an exception to the commonlaw regime of Crown disclosure under Stinchcombe. As we shall see, the Mills regime is also different from the common law regime forproduction of third party records under O’Connor.

It is nonetheless constitutional (Mills, at para. 59). [Emphasis added.] [23] The 278.1 Procedure does not operate in all criminal proceedings, but only comes into play when an accused is alleged to haveengaged in one of a set of offences set out in s. 278.2(1): 278.2

(1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of

(

a) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272 or 273, ... or in any proceedings in respect of two or more offences that include an offence referred to in any of paragraphs (

a) to (c), except inaccordance with sections 278.3 to 278.91. [Emphasis added.] [24] Dr. Levin is alleged to have committed sexual assault on the complainants, and therefore disclosure to him is potentiallyaffected by this provision. The information sought in the present application relates to complainants in this matter. It also relates to aperson who is the complainant in a sexual assault charge involving R.B.

These also falls into the general s. 278.2(1) prohibition. [25] The definition of “record” is provided in Criminal Code, s. 278.1: 278.1 For the purposes of sections 278.2 to 278.9, “record” means any form of record that contains personal information for which thereis a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic,counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and recordscontaining personal information the production or disclosure of which is protected by any other Act of Parliament or a provinciallegislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. [26] “[T]he offence” in the limiting phrase “... records made by persons responsible for the investigation or prosecution of theoffence.” has been interpreted to mean the offence for which the accused is charged: R v McAdam (2008), (ON SC),172 CRR (2d) 27 at para 18, 78 WCB (2d) 730 (Ont Sup Ct J); R v Quesnelle, [2009] OJ No 5502 (QL) at para 20, 2009 CarswellOnt8067 (Ont Sup Ct J) (“Quesnelle”); R v Leykin, 2010 ABQB 631 at para 8, 497 AR 120; R v Nepinak, 2010 BCSC 1659 at paras 43-44,224 CRR (2d) 19.

Any “record” relating to another offence or alleged offence is therefore potentially captured under the 278.1Procedure. [27] Item “k.”, the medical records of S.M., clearly fall within the s. 278.1 definition. The expectation of privacy associated withmaterials of that kind is well established: for example R v Serendip Physiotherapy Clinic (2004), (ON CA), 73 OR(3d) 241 at paras. 33-34, 245 DLR (4th) 88 (Ont CA), leave denied [2004] SCCA No 585. [28] Most of the remaining information sought by Dr. Levin is information held by the police (items “a.”, “b.”, “c.”,“d.”,“f.”, “g.”,“h.”, “i.”, “l.”, and “m.”).

Courts have concluded that any information held by police in relation to a complainant or witness, and thatoriginates from some other criminal matter is private and qualifies as a record under s. 278.1: R v Nepinak, at para.45. That includesrecords of: 1. police investigations of other alleged sexual offences that involve a complainant or witness: R v Leykin, at para 14; 2. arrest warrants for a complainant or witness: R v McAdam, at paras 17-18; 3. “occurrence reports” that involve a complainant or witness: Quesnelle, at para 23; R v Barnes, [2004] OJ No 5572 (Ont Sup CtJ) (“Barnes”); 4.

Canadian Police Information Centre entries, occurrence reports, or street checks for a complainant or witness: Barnes; and 5. arrests under the Mental Health Act: R v RL, [2007] OJ No 4095 (QL) at para 56 (Ont Sup Ct J).

[29] Though I am not aware of any caselaw that specifically comes to this conclusion, I believe that item “j”, R.B.’s incarcerationrecord, is also a private record and falls within s. 278.1. I note that the post-Stinchcombe but pre-278.1 Procedure Alberta Court ofAppeal case of R v Gingras (1992) (AB CA), 120 AR 300, 71 CCC (3d) 53 (Alta CA), leave denied [1992] SCCANo 348 (“Gingras”), concluded that the Crown has no obligation to disclose records of this kind when confronted with a “pure fishingexpedition”, which is also an appropriate characterization of Dr. Levin’s application in this case.

Gingras case is cited with approval byJustice Charron in the recent Supreme Court of Canada decision in McNeil at para 22. [30] My conclusion is that the information sought by Dr. Levin in this application is therefore subject to the 278.1 Procedure, andpresumptively is not disclosed to the defence, except by application from the accused: ss. 278.2(1), s. 278.3(1). [31] My conclusion is consistent with the conclusion in Quesnelle, where the court addressed an information disclosure requestanalogous to that advanced by Dr.

Levin: 10 The Applicant states that the police occurrence reports pertaining to the Complainant, Ms. T.R., whether her involvement was as awitness, person of interest, complainant or accused, are relevant to the assessment of her credibility and must be disclosed in order forthe Applicant to exercise his right to make full answer and defence protected by s. 7 of the Canadian Charter of Rights and Freedoms,Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 11 The Applicant states that since the Complainant’s credibility will be a key issue at trial, all police occurrence reports pertaining toher should be disclosed as they are relevant to the assessment of her credibility and must be disclosed in order for the Applicant to makefull answer and defence. [Emphasis added.] This approach was explicitly rejected: 23 In my view, the wording of

Section 278 is clear. The Application must be brought pursuant to

section 278.2 of the Criminal Code,as in this case, there is a reasonable expectation of privacy and the only exception is for records pertaining to the offence in question. TheApplicant must therefore proceed pursuant to

section 278 of the Criminal Code and establish that the records are likely relevant to anissue at trial or to the competence of a witness to testify and that production is necessary in the interests of justice (s. 278.5(1)). ...[Emphasis added.] [32] My conclusion also addresses any allegation by Dr. Levin that the Crown has engaged in a “very serious breach of legalethics”. The late emergence of this issue can only be laid at the feet of the Defence who now suggests these records are “criticalinformation” [Defence Charter Notice, at p 3].

In relation to the outstanding charges against R.B., the application points out that:“[p]resent counsel for the Applicant were not advised by the Crown that R.B. had outstanding criminal charges until the day the Crownrecalled him to testify.” However, counsel for the Crown stated that Dr. Levin’s prior counsel were aware of these criminal charges andhad discussed them with the Crown. In addition, the potentially ‘bad character’ of the complainants has been a live issue since far beforethe commencement of this trial.

Furthermore, the Crown has conceded the bad character of R.B., who has himself admitted it. [33] I also reject the allegation that the Crown has breached its s. 7 Charter duty to disclose potentially relevant information to theDefence as required by Stinchcombe. As a consequence, there is no basis here for a mistrial, nor any award of costs against the Crown.Further, I find that no adjournment is necessary as the Defence is not entitled to any further disclosure.

For the same reason, I reject theCrown funded private investigator demanded under item “e.”. [34] I note in passing that if the 278.1 Procedure had not applied in the present case then Dr. Levin’s application would still bebased on the incorrect legal procedure. It is well established law that information held by third parties may be sought by the Defence bya procedure set in O’Connor. Here, the police, whoever holds S.M.’s medical records, and the Correctional Service of Canada are thirdparties: McNeil at para. 22.

If the material sought had not been subject to the 278.1 Procedure then this application ought to have beenconducted using the O’Connor disclosure mechanism which, again, is not what was argued by Dr. Levin.

C. Are the Private Records Potentially Subject to Disclosure via the 278.1 Procedure? [ 35 ] At this point it might be suggested that Dr. Levin now make a further application, under the appropriate 278.1 Procedure, to evaluate whether the requested information may potentially be sought via the scheme provided by Parliament.

However, that is unnecessary in this instance, as that legislative scheme explicitly rejects any requirement that disclosure occur for the use identified by the Defence in its argument. [ 36 ] Criminal Code , s. 278.3(4) identifies a number of bases for alleged relevance which cannot, alone or in combination, result in disclosure of a s. 278.1 private record: 278(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify: (

a) that the record exists; (

b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving ; (

c) that the record relates to the incident that is the subject-matter of the proceedings ; (

d) that the record may disclose a prior inconsistent statement of the complainant or witness ; (

e) that the record may relate to the credibility of the complainant or witness ; (

f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling ; (

g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused; (

h) that the record relates to the sexual activity of the complainant with any person, including the accused ; (

i) that the record relates to the presence or absence of a recent complaint ; (

j) that the record relates to the complainant ’s sexual reputation ; or (

k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused. [Emphasis added.]

[37] The Defence seeks these records to cross-examine the complainants on their character and credibility. That is no basis for a278.1 Procedure application: s. 278.3(4). [38] This conclusion is not the only basis on which I would reject a Defence application under the 278.1 Procedure. CriminalCode, s 278.3(3) places an onus on the Defence to show that the information sought is “likely relevant”, which is a very differentthreshold than that required under the Stinchcombe obligation: 278(3) An application must be made in writing and set out (

a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or controlof the record; and (

b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of awitness to testify. [39] A helpful review of the “likely relevant” threshold in the 278.1 Procedure context is provided in R v Fones, 2009 MBQB 65,238 Man.R. (2d) 114: 9 The sections that relate to the determination of likely relevance in subsection 278.5(1)(

b) have been interpreted and applied by thecourts as follows: - It is the accused who has the burden of establishing “likely relevance.” - The burden is not proof of relevance beyond a reasonable doubt or even on a balance of probabilities, but is a significant one (see R. v.Pinder (27 January 1998), (Man. Q.B.) [unreported], transcript at pp. 2-3 (Steel J.)). - The standard of likely relevance has been described as “a reasonable possibility that the information is logically probative to an issue attrial or the competence of a witness to testify” (see R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411 at para. 22 and R. v.Mills, (SCC), [1999] 3 S.C.R. 668 at para. 124). - The likely relevance threshold, while significant, should not be overly onerous (see R. v. Batte, (ON CA), [2000]O.J. No. 2184 at para. 65 (C.A.)). - The accused can rely on the assertions set out in subsection 278.3(4) where there is an evidentiary or informational foundation tosuggest that they may be related to likely relevance. The

section requires only that the accused be able to point to case specific evidenceor information to show that the record in issue is likely relevant to an issue at trial or to the competence of a witness to testify (see Millsat para. 120). - Where an accused does provide evidence or information to support an assertion, this does not mean that likely relevance is made out.The trial judge is the ultimate arbiter in deciding whether the likely relevance threshold is met (see Mills at para. 120). 10 Hill J. was dealing with an application for the disclosure of the complainant’s diary in R v D.M., (ON SC),[2000] O.J. No. 3114 (S.C.J.). In dismissing the application, he stated as follows:

[41] The mere pleading that D.G. ’ s diary may contain a prior inconsistent statement is entirely speculative. Simply asserting that a record may disclose a prior inconsistent statement of the complainant is not itself sufficient to establish the record is likely relevant to an issue at trial or to the competence of the witness to testify. This proposition could be asserted respecting any pre-trial writing of any complainant.

There is no evidence to realistically suggest with respect to this complainant confusion or changing versions of the allegations against D.M. 11 In Batte , one of the grounds of appeal was that the trial judge should have ordered the production of counseling records to the defence. In discussing the likely relevance test, Doherty J.A., speaking for the court, stated as follows: [70] The appellant ’ s position with respect to the likely relevance of the records must come down to this. The records contained statements made by D.S.D. that referred to the alleged abuse and to matters affecting her credibility.

Anything said by D.S.D. about the abuse or about a matter which could affect her credibility passes the likely relevance threshold, even absent any suggestion that the statements differ from or add anything to the complainant ’ s statement and testimony at the preliminary hearing. [71] If the likely relevance bar is that low, it serves no purpose where the records relate to counseling or treatment connected to allegations of sexual abuse.

It is impossible to imagine that such records would not contain references to the alleged abuse or matters that could affect the credibility of the complainants ’ allegation of abuse.

In my view, the mere fact that a complainant has spoken to a counselor or doctor about the abuse or matters touching on the abuse does not make a record of those conversations likely relevant to a fact in issue or to a complainant ’ s credibility. [72] I would hold that where confidential records are shown to contain statements made by a complainant to a therapist on matters potentially relevant to the complainant ’ s credibility, those records will pass the likely relevance threshold only if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value.

To suggest that all statements made by a complainant are likely relevant is to forget the distinction drawn by the majority in O ’ Connor, between relevance for the purposes of determining the Crown ’ s disclosure obligation and relevance for the purposes of determining when confidential records in the possession of third parties should be produced to a judge. 12 Doherty J.A. went on to discuss the type of evidence that could suffice to establish likely relevance: [75] ... The mere assertion that a record is relevant to credibility is not enough.

An accused must point to some “ case specific evidence or information ” to justify that assertion. In my view, an accused must be able to point to something in the record adduced on the motion that suggests that the records contain information which is not already available to the defence or has potential impeachment value. [76] The requirement that an accused be able to show that the statements contained in the record have some potential to provide added information to the accused or some potential to impeach the credibility of the complainant is not an onerous one.

For example, in this case, the appellant had the initial statement given to the police by D.S.D. before she commenced therapy. He also had a transcript of her lengthy examination-in-chief and cross-examination at the preliminary inquiry taken after she commenced therapy.

Had counsel shown material differences between the initial statement and the preliminary inquiry testimony, these differences coupled with the fact that the complainant spoke to a therapist about these matters between the giving of the statement and giving any evidence at the preliminary inquiry may have established that statements she made to the therapist touching on matters relevant to her credibility had potential impeachment value and were, therefore, likely relevant.

Similarly, had the appellant been able to produce evidence suggesting a connection between the evidence given by the complainant at the preliminary inquiry and the sessions with her therapist, this would also have established potential impeachment value. [77] It will not, however, suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant ’ s credibility.

The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value.

In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant ’ s statement will have some probative value in the assessment of her credibility. 13 Krindle J. was also considering a motion for production of counseling records in R. v. M.A.S., [2000] M.J. No. 516 (Q.B.) and discussed the type of evidence that could lead to a finding of likely relevance to support an order that the records be reviewed by a judge.

In that decision, she stated as follows: [12] There is simply no evidential basis before me to permit me to find that whatever transpired between the worker and the complainant leading up to the making of the complaint by the complainant in any way tainted the complaint that was made. There is no evidentiary basis before me to permit me to find that anything transpired between the worker and the complainant leading up to the making of the complaint. The complainant was on the stand at the preliminary. She was questioned.

She was not asked about how it was that she came to speak to the worker about the alleged sexual assaults by her brother or what the worker may have said to her first, if anything. 14 Easton J. dealt with the question of the production of counseling records in R. v. Peddle, [2000] N.J. No. 156 (S.C. Tr. Div.) : [21] The Applicant also raises the point that the complainant saw a medical doctor, a psychiatrist and a counselor for a period of time prior to the laying of the complaints against the accused.

He is asking me to draw the inference that the presence or participation of these individuals may have been instrumental in the laying of criminal charges. However, even if that is the case, there is nothing untoward in that. ... What is frowned upon, of course, is any manipulation, psychological or otherwise, of a person to persuade him or her to lay charges against another person. Here, there is no evidence to support a finding that illegal, improper, unethical or questionable practices or methods were employed.

The fact that charges were laid at the time they were laid, after professional help was sought, is not at all unusual. Specifically, of course, this is addressed directly by s. 278.3[4](

k) of the Criminal Code . 15 In Batte , Doherty J. made similar comments as follows: [69] There was also no evidence that the counseling process precipitated or contributed to D.S.D. ’ s decision to go to the police. The evidence was to the contrary. D.S.D. went to the police and gave them a statement some five months before she began counseling. Furthermore, there is no evidence that the counseling process played any role in reviving, refreshing or shaping the memory of D.S.D.

Finally, there is no evidence that D.S.D. suffered from any emotional or mental problem which could have any impact on her reliability or veracity, and the nature of the allegations themselves did not suggest any such problems. 16 As Doherty J. noted at para. 76 of Batte, information that the complainant ’ s statement to the police differed from her testimony at the preliminary inquiry, coupled with the fact that the complainant spoke to a therapist about these matters between the statement and the preliminary inquiry, may establish that the statements she made to the therapist touching on matters relevant to her credibility had potential impeachment value and were, therefore, likely relevant.

Similarly, evidence of a connection between the evidence given at the preliminary inquiry and the sessions with her therapist would also have established potential impeachment value. [ 40 ] Here, even on its very best face, the Defence is engaged in a fishing expedition. It seeks to cast a very wide net, hoping that something will come to light that can be used to challenge the complainants. It offers no particular basis for why this information is relevant, other than a general allegation that the complainants are potentially bad, greedy, violent or deceptive persons.

To interpret the “likely relevant” requirement in that broad a manner would defeat the purpose of the s. 278.2(1) prohibition, as effectively any s. 278.1 private record would be available on demand. [ 41 ] In light of these conclusions, I see no point to inviting a 278.1 Procedure application on the grounds identified in the Defence November 21, 2012 Charter Motion. I further observe that, since the records sought are subject to the 278.1 Procedure and the onus is on Dr.

Levin to seek disclosure of those materials, if required, that any investigative burden that may result from future disclosure of s. 278.1 private materials is one that the Defence must bear. We are weeks into a jury trial where new Defence counsel have already received significant adjournments to prepare to assume conduct of the trial. As I have previously commented, the issue of complainant credibility is and has been obvious from the start. For the Defence to only at this point seek disclosure of evidence to which it has no presumptive right is, to my mind, no fault of the Crown. 4.

Conclusion [ 42 ] The Defence application for disclosure is denied.

Dated at the City of Calgary, Alberta this 29 th day of November, 2012. D.L. Shelley J.C.Q.B.A. Appearances: W. Wister D. Sopko for the Crown E. C. Archer K. B. Molle for Dr. Levin