R v Hall, 2016 ABQB 462

Court of Queen’s Bench of Alberta Citation: R v Hall, 2016 ABQB 462 Date: 20160819 Docket: 131490963Q1 Registry: Calgary Between: Peter William Hall Applicant/Accused - and - Her Majesty the Queen Respondent Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. ___________________________________________________ Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The Applicant accused (the “Accused”) faces trial on a charge of sexual assault contrary to

section 271 of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ]. The allegation is that the Accused sexually assaulted K.H. [ 2 ] On July 6, 2016, the Accused applied for an order pursuant to

section 278.3 of the Criminal Code . He asked for an order requiring Alberta Assured Income for the Severely Handicapped (“AISH”) to produce to the court all reports and documents related to K.H.’s application(

s) for AISH. I allowed the application, ordering that the documents be provided to the court for review. [ 3 ] Pursuant to

section 278.6, I reviewed the records in the absence of the parties. My review was based upon the legal and factual issues argued by the Accused during his successful

section 278.3 application. The main issue concerns the reliability and credibility of K.H.’s evidence, given the Accused’s assertions that:

(1) K.H. had told him that she had been diagnosed with Munchausen by Proxy Syndrome; and

(2) K.H. was heavily medicated on opioids at the time of the alleged assault. What effect, if any, would such diagnoses and medications have on K.H.’s willingness and ability to observe, recollect, and testify to the events in question? [ 4 ]

Section 278.6(1) of the Criminal Code provides:

Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3). [ 5 ]

Section 278.6(2) of the Criminal Code allows a judge to hold a hearing in camera “if the judge considers that it will assist in making the determination”: Criminal Code , s 278.6(2). I require assistance in determining the “likely relevance” of the record produced. Therefore, I find that such a hearing is required in this case. [ 6 ] R v Mason (2002), 53 WCB (2d) 248 (ONSC) [ Mason ] is a useful guide on how to proceed in this case.

In Mason , Trafford, J. found, at paragraph 4, that, “the court, pursuant to its inherent jurisdiction to control its own process, has a discretion to determine the essential nature and scope of the in camera hearing”. At paragraph 8 , Trafford, J. discussed the ways in which the court’s discretion could be properly exercised and held that: Absent exceptional circumstances, the in camera hearing ought not to include production of the documents in question to counsel.

In most cases, the essential fairness of the determination under s. 278.7 of the Code can be preserved through a decision by the trial judge in absence of the parties or through the production of a

summary of the material aspects of the documents for use by counsel in making submissions to the court. [ 7 ] I am in agreement with that proposition and, accordingly, I have prepared a

summary of the medical records (the “Summary”). The following conditions apply to the

Summary: (

a) The

Summary will be sealed on the court file and will not be published; (

b) Copies of the

Summary will be provided to counsel; (

c) Counsel may discuss the

Summary with their clients, and Crown counsel may discuss the

Summary with K.H. to obtain instructions; (

d) Copies of the

Summary may be shown to, but must not be given to, the Accused; (

e) Copies of the

Summary must not be published by anyone possessing them; and (

f) Copies of the

Summary must be returned to the Court following the hearing. [ 8 ] We will proceed to an in camera hearing on September 6, 2016 at 9:00 am. Heard on the 6 th day of July, 2016 . Dated at the City of Calgary, Alberta this 19 th day of August, 2016. R.J. Hall J.C.Q.B.A. Appearances: Mr. Patrick Flynn for the Accused/Applicant

Mr. Matthew Dalidowicz for the Respondent Ms. Michelle Lee for AISH