R v BB, 2016 ABQB 647

Court of Queen’s Bench of Alberta Citation: R v BB, 2016 ABQB 647 Date: 20161117 Docket: 141267153Q1 Registry: Red Deer Between: Her Majesty the Queen Crown - and - BB Accused 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 By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way.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. _______________________________________________________ Oral Reasons for Decision on an Application for a Mistrial of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________ I Introduction

[ 1 ] Defence counsel applies for a mistrial premised on the Crown’s failure to provide adequate disclosure in relation to its two expert witnesses. II Background [ 2 ] BB stands charged on one count of sexual assault and one count of sexual interference contrary to ss 271 and 151 of the Criminal Code , RSC 1985, c C-46. The Complainant, now 11 years of age, is the daughter of BB’s former common-law spouse.

The alleged offences are said to have occurred at the residence the Complainant shared with her mother and BB between January 10, 2009 when the Complainant was four years of age and sometime in 2014, when she was nine. [ 3 ] At trial, the Crown called the Complainant, and two experts: Cst Haataja and Dr Fiorillo. [ 4 ] Defence counsel cross-examined all three witnesses. [ 5 ] On the third morning of trial, before the Crown closed its case, the defence applied for a mistrial.

III Cst Haataja [ 6 ] On July 16, 2015, about 11 months after the Complainant’s mother reported the alleged assaults to the RCMP, Cst Haataja was assigned to examine an older LG cell phone which had been seized. He was tasked with reviewing the data for images supporting charges of sexual assault against the Complainant. [ 7 ] At trial, Cst Haataja was qualified as an expert in forensic analysis with a specialty in digital forensics. [ 8 ] A series of eight pictures which Cst Haataja had downloaded from the cellphone were entered into evidence.

Three of the pictures, two of which appear to be the same, show a young girl’s genitals. One of the pictures shows an adult hand with an index finger on or partially in the vagina. The Complainant identified these pictures as being of her body, which she described as her “middle” and said BB made her be photographed by him. [ 9 ] Cst Haataja testified these pictures had been deleted from the phone. He could not tell when they were taken. [ 10 ] The Complainant testified the pictures were taken on her mother’s old purple cell phone that her mother had given her a few months previously.

When her mother discovered the pictures, she took the phone away. The Complainant said she told her mother that a friend had taken the pictures. Apparently, the mother did not ask further questions. [ 11 ] Two of the remaining pictures show the face of a young girl, and a young girl sitting with only half of her face visible, both of which pictures appear to resemble the Complainant. A further picture shows an adult male standing in front of a mirror in his underwear taking a selfie.

It is common ground the male in the picture is not the accused. [ 12 ] The relevance of the picture of the adult male was disclosed through Cst Haataja’s testimony. He testified that this photo was taken by a different phone and sent to the LG phone by MMS. He downloaded it because it is the type of picture often seen in child luring investigations. [ 13 ] Because three of the pictures constituted child pornography, the Crown did not provide copies to defence, but rather invited defence counsel to view them.

While defence counsel acknowledges viewing the picture of the adult male, she says none of the other images were made available to be viewed by her and copies of these pictures, including the one of the adult male, were not provided as part of Crown disclosure. [ 14 ] In argument, Crown concedes that the remaining pictures do not depict child pornography and should have been provided to the defence, but maintains that the remaining pictures were made available to the defence for viewing. [ 15 ] In addition, while Cst Haataja was on the stand, defence discovered that the notes he prepared and his Extrapolation Report were not disclosed to the defence. [ 16 ] After a brief adjournment to review the notes and Extrapolation Report, defence counsel advised she was content to continue with Cst Haataja’s evidence.

IV Dr Fiorillo [ 17 ] Dr Fiorillo conducted a physical examination of the Complainant on August 18, 2014, the day the alleged incidents were reported to the RCMP. Dr Fiorillo examined the Complainant at the request of the Complainant’s mother, who indicated that the Complainant had reported that day that she had been sexually abused by the accused.

The Complainant’s mother requested that the Complainant be tested for STIs. [ 18 ] August 18, 2014 was the first and only time Dr Fiorillo examined the Complainant. [ 19 ] At the specific request of the Complainant’s mother, Dr Fiorillo did not prepare an expert report as is her normal practice. [ 20 ] As a result, the Crown produced to defence counsel one page of handwritten notes, written mainly by a resident physician who was present during the examination, and a transcript of an interview of Dr Fiorillo by an RCMP officer conducted on March 25,

2015. The Crown produced no further

summary or report of her anticipated evidence. [ 21 ] Defence did not raise any objection to the adequacy of the material provided by the Crown in relation Dr Fiorillo, nor suggest there was non-compliance with s. 657.3(3)(b)(ii). [ 22 ] The Crown tendered Dr Fiorillo as an expert witness in the area of pediatrics and dermatology. [ 23 ] The transcript of the RCMP interview was not marked as an exhibit in the voir dire .

With the consent of counsel, it was marked for identification in order for the Court to fully review it. [ 24 ] Dr Fiorillo stated in her police interview that there was no obvious damage recently done to the Complainant’s hymen and that there was some possible evidence of older damage as demonstrated by very small hymeneal tissue with irregularity of the contour.

Later, at page 3 line 11 to page 4 line 22 of the transcript, Dr Fiorillo provided these answers to the following questions: A: With the opening central and the thickness of the hymen was we wrote about two millimeters and actually I remember as well it was very small like not to many it would be this much so. Q: Tiny. A: So very, very tiny all around with a larger opening and the edges would have been irregular which is um, compatible or consistent with a previous a previous penetration. Q: Okay. A: But it is not a hundred percent um, pathognomonic. Q: Okay. A: Of previous penetration.

Q: So there’s a possibility but it’s not for sure? A: It’s not for sure. Q: Okay. A: But it’s definitely a possibility looking at the hymen yes. Q: Okay what else can cause that problem, um down there is that something else, what else can be a cause for that if it wasn’t penetration? A: Right. Q: Or a sex assault? A: Well um, hymen shapes um, are different um, similar to you know face or nose shapes in different individuals so um, people might just have a smaller hymen um, but this was very, very small all around in terms of tissue. Q: Okay.

A: So it was suggestive of, of sexual abuse the problem with hymen is in the past we had certain measurements we thought it was so many um, even the opening so many millimeters per year and all that and then it turned out not to be the case. Q: Okay. A: It’s not for sure. Q: Okay. A: Um, and that there is variation so that we cannot really say if the opening is too large. Q: Okay. A: We are no longer sure that is uh a sign of abuse it’s just that there is very little tissue left around and I would have expected more. Q: Okay.

A: On the hymen, but on the other side I saw no, no acute scars and no bleeding in the previous, when she came was August 18 th and the last event was apparently July 21 st . Q: Yes. A: Which was three weeks before. [emphasis added]

[ 25 ] After explaining why she would not expect to see scaring on the Complainant’s genitals, Dr Fiorillo went on to say at page 6 line 30-Page 7 line 12: Q: And mucus membranes do heal quickly right . . .? A: They heal quickly . . . Q: I understand. A: without scarring. Q: Okay. A: So that is the problem here. Q: So the only thing left would be the hymen which isn’t . . . A: Yes. Q: indicative? A: exactly. Q: Okay. A: It’s really, really thin all around, but not a hundred percent because one could argue maybe she was born with it. Q: Okay.

A: Right maybe that’s the way her hymen was from the beginning, that could be the counterpart . . . Q: Right. A: that one can say. [ 26 ] At trial, Dr Fiorillo testified that the Complainant was pre-pubescent. She testified that the hymen of a pre-pubescent girl is typically thin and almost translucent and the tip is very pointy and thin.

The Complainant’s hymen was observed to be very small and extending from the wall of her vagina 1 to 2 mm and ending with somewhat irregular, rolled and thickened edges. [ 27 ] Dr Fiorillo opined this was consistent with preceding vaginal penetration on several occasions, occurring anywhere from one month previously to four or five years previously, because penetration would disrupt the thin edges of the hymeneal skin and after healing, the skin would be thicker. [ 28 ] In her evidence, Dr Fiorillo testified she could not be 100% sure that the Complainant’s hymen indicated sexual abuse.

She was questioned on other possible explanations, including the hymeneal characteristics being congenital, or resulting from injury or self- inflicted penetration with an object. Dr Fiorillo testified these other explanations were not likely and specifically stated it was a “remote possibility” that the Complainant was born this way. [ 29 ] Dr Fiorillo went on to testify that in her 29 years of pediatric practice, she recalled two cases in the Complainant’s age group where no history of sexual abuse was provided yet the hymen was observed to have very little tissue around the wall.

This led her to make inquiries in both cases. [ 30 ] Dr Fiorillo was cross-examined on the apparent inconsistencies between her evidence at trial and her police interview.

V Parties’ Positions [ 31 ] Following oral submissions, counsel were invited to provide written submissions which were received by November 14, 2016. [ 32 ] Defence counsel submits that the Crown breached its disclosure obligations by failing to disclose the photos in issue. [ 33 ] Crown maintains that the photos were made available to defence, and notes that defence took did not raise the issue of non- access to the photos at trial before questioning Cst Hataaja.

Had the issue of non-disclosure of photos been raised during Cst Hataaja’s testimony, the Crown could have demonstrated through the witness the basis for Crown’s assertion that all of the photos had been disclosed. Crown argues that defence counsel stated on the record that she had seen the two pictures referred to as child pornography and the picture of the unknown man in his underwear.

Therefore, the main picture identified by defence as affecting the accused’s defence had been seen by defence. [ 34 ] The defence also submits that the Crown failed to comply with the notice requirements under s 657.3 of the Criminal Code . Dr Fiorillo expanded on her evidence and was significantly more definitive in her testimony than what was expressed in the material provided by the Crown.

Her “fairly neutral and equivocal expert opinion” in the RCMP interview was strengthened considerably at trial, without notice to the defence. [ 35 ] The defence argues this impaired BB’s ability to make full answer and defence as the preparation and direction of Dr Fiorillo’s cross-examination was hindered. Had the defence had proper notice of Dr Fiorillo’s anticipated trial testimony, the accused

would have consulted other experts to rebut Dr Fiorillo’s opinion, and would have conducted further research to challenge the veracity ofher opinion and the scientific foundation on which it is based. [36] The defence also argues that her cross-examination of the Complainant and the exploration of the defence theory wassignificantly impaired. BB denies that the alleged sexual assaults occurred. With expert evidence supporting the Crown’s theory ofprevious vaginal penetration, the defence theory would have shifted from denying that the assaults occurred to exploring other possibleperpetrators.

Defence counsel further emphasizes that if Crown had produced the photos in question and it had been given notice of DrFiorillo’s opinion that there had been prior penetration, defence would have explored the identity of the unknown male and thepossibility that he was the perpetrator of the prior assaults. [37] Crown cites R v Mousseau, 2003 ABQB 624 for the proposition that a

summary of anticipated expert evidence under s 657.3should set out the chief points, or the sum and substance, of the anticipated evidence. Crown submits that the interview transcript in thiscase did just that. Crown also refers to R v Hong, 2015 ONSC 4840 which contains detailed discussion of the s 657.3 requirements for asummary. [38] Crown further submits that the issue to be addressed by Dr Fiorillo was evident from the nature of the alleged offences.Crown frames the issue in question as being whether Dr Fiorillo’s observations of the Complainant were consistent with a child who hadbeen sexually assaulted.

While the questioning of Dr Fiorillo led to her nuancing some of her findings, her opinion remained the same.Crown points out that it is not uncommon for an expert’s evidence to vary from the

summary, and in fact that is often the goal of defencein cross-examining Crown experts. As well, Crown notes that it is open to the Court to attribute less weight to an unfounded expertopinion. [39] Although not raised during oral submissions, I invited counsel to comment on the Alberta Court of Appeal’s decision in R vThreefingers, 2016 ABCA 225 and whether, given that decision, Dr Fiorillo’s evidence remained within the proper bounds of herqualification as an expert.

Not surprisingly, defence submitted that it was outside the proper bounds, while Crown argued it was within. [40] The defence argues that the appropriate remedy in this case is a declaration of a mistrial. Counsel relies on R v LAT, (ON CA), 1993 CarswellOnt 1497 (CA). The accused was convicted of sexual assault of his daughter and step daughter.The trial proceeded before a jury. After the close of the defendant’s case, in which the accused testified on his own behalf, the Crownapplied to call the sister of one of the complainants at trial.

The sister had provided a statement where the complainant allegedlydisclosed particulars of the assault suggesting it was perpetrated by someone other than the accused. The defence argued he had beenirrevocably prejudiced and applied for a stay of proceedings or alternatively, a mistrial. The trial judge dismissed the application for astay or mistrial and offered to have the complainant and an expert recalled for cross-examination. The Ontario Court of Appeal held theremedy proposed was inadequate in the circumstances and directed a new trial.

VI Analysis 1 Photos [41] In R v Stinchcombe, (SCC), [1991] 3 SCR 326, Sopinka J identified two fundamental purposes of disclosure:1) to eliminate the element of surprise from trial and allow parties to address issues based on completed information of the case to bemet; and 2) to allow the accused to make full answer and defence, a right guaranteed by s 7 of the Charter. [42] Where the accused demonstrates a reasonable possibility that the undisclosed information could have been used in meetingthe case for the Crown, advancing a defence or making a decision which could have affected the conduct of the defence, the accused hasestablished the impairment of his Charter right to disclosure: R v Dixon, (SCC), [1998] 1 SCR 244 at 258. [43] Although defence had the pornographic photos and the photo of the unidentified male, the Crown failed to disclose the non-pornographic pictures to defence, Cst Haataja’s notes and his Extrapolation Report.

I have no difficulty concluding the defence hasdemonstrated a reasonable possibility that all of this information could have been utilized. [44] While the short adjournment afforded the defence appears to have adequately addressed the issue of late disclosure of thenotes and report, the pictures are more problematic. [45] The additional pictures were never put to the Complainant. Further, the significance of the picture of the adult male was onlydivulged through Cst Haataja’s testimony.

Therefore, the defence was not afforded an opportunity to put these additional pictures to theComplainant, and to explore the theory that the abuse may have been perpetrated by another individual. [46] While I conclude that the accused’s Charter right to disclosure was breached, this does not end the analysis. BB bears theburden of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of thefailure to disclose.

The test established in Dixon is whether there is a reasonable possibility the non-disclosure affected the trial outcomeor the overall fairness. [47] I conclude that BB has met this burden. [48] It is evident that the defence was precluded from asking the Complainant whether she knew the adult male shown in thispicture, and exploring the possibility that the adult male or someone else was the perpetrator of any alleged sexual assaults. This affectsBB’s ability to make full answer and defence. [49] Accordingly, BB is entitled to a remedy under s 24 (1) of the Charter.

Any remedy imposed must be responsive to the breachand appropriate and just in the circumstances.

[ 50 ] The defence concedes that a stay of proceedings would be extraordinary and is granted in only the clearest of cases. Indeed, a stay would not be appropriate in this case, as BB has not established irreparable prejudice. This is a judge alone trial. The Crown has not closed its case. BB has not yet elected whether or not to call evidence on his behalf. In my view, BB’s fair trial rights have not been irrevocably impacted in these circumstances, and the appropriate remedy is to allow for further cross examination of the Complainant. [ 51 ] As defence counsel concedes in her Brief, trials are fluid events.

While her objections were not made immediately or in the course of the respective experts’ evidence, she did raise her objections in a reasonably prompt manner. This should not be held against the defence. But so too, is there an expectation that both Crown and defence remain nimble and be able to reasonably respond to the inevitable twists and turns a trial takes.

In this regard, I find the words of Rosenberg JA in R v Horan , 2008 ONCA 589 at para 26 to be compelling: 26 ...Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to responds to the prosecution case and that in the result the verdict is a reliable one.

However, Stinchcombe has not completely overhauled the paradigm of the adversary process in which trials are dynamic and as events unfold, prosecution and defence may find that they have to respond quickly to changes in strategy and changes from expected testimony in witnesses. [ 52 ] At this point, it would be speculative to conclude that further cross examination of the Complainant is inadequate in the circumstances to ensure the accused receives a fair trial. 2 Dr Fiorillo’s Evidence [ 53 ]

Section 657.3 of the Criminal Code , enacted in 2002, imposes specific requirements in relation to expert witnesses: Notice for expert testimony 657.3(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, (

a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by (

i) the name of the proposed witness, (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and (iii) a statement of the qualifications of the proposed witness as an expert; (

b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties (

i) a copy of the report, if any, prepared by the proposed witness for the case, and (ii) if no report is prepared, a

summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and (

c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b). If notices not given

(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party, (

a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness; (

b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and (

c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so. Additional court orders

(5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following: (

a) adjourn the proceedings; (

b) order that further particulars be given of the evidence of the proposed witness; and (

c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony. [ 54 ] Pursuant to s 657.3(3), the Crown was required to provide a notice at least 30 days prior to trial, or within another period fixed

by a judge, including the name of the proposed witness, a description of the area of expertise and a statement of the qualifications of the proposed witness, within a reasonable period of time prior to trial. The Crown was also required to provide, within a reasonable period prior to trial, the report or

summary of the Crown expert. If no report was prepared, the Crown was required to provide a

summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based. [ 55 ]

Section 657.3 of the Criminal Code is rooted in fairness and efficiency. In Mousseau , Moen J held that the sufficiency of a Crown’s expert report or

summary must be assessed contextually, given the circumstances of the particular case. The s. 657.3 requirements are intended to avoid surprises and resulting delays. [ 56 ] Defence counsel did not object to the s 657.3 notice of Dr Fiorillo’s anticipated testimony. [ 57 ] However, defence counsel argues that Dr Fiorillo’s

summary of anticipated evidence did not coincide with her testimony at trial in the sense that she suggested at trial that preceding penetration was a more likely cause of the state of the Complainant’s hymen than another possible cause. [ 58 ] There is no suggestion that the Crown was aware that Dr Fiorillo’s testimony at trial would differ from her statement to the RCMP, or that the Crown should have anticipated this turn of events. [ 59 ] Further, while Dr Fiorillo’s testimony may have evolved in a manner less favourable to the accused than he had hoped, she did canvass in the RCMP interview what she viewed as the possible causes of the status of the Complainant’s hymen. [ 60 ] In my view, the appropriate result on this issue is informed by the Alberta Court of Appeal’s recent decision in R v Threefingers , 2016 ABCA 225 .

In that case, the Court overturned a conviction of sexual assault causing bodily harm, in part because the trial judge relied on evidence beyond the expert’s expertise. Dr Achison had been qualified as an expert to give opinion evidence on the “diagnosis, prognosis and treatment of injuries to human beings”. She was not qualified as a sex expert. Notwithstanding this, the trial judge accepted Dr Achison’s evidence that the complainant’s injuries were not consistent with consensual or rough sex.

Defence counsel in Threefingers at no time attempted to argue that Dr Achison’s testimony went beyond the level of her actual expertise or beyond the matters in which she had been qualified to give opinion evidence. Of note, Dr Achison had been a member of the sexual assault team at the Red Deer Hospital and had conducted 65 sexual assault examinations. The majority decision emphasized that it is incumbent on the trial judge to ensure that an expert’s testimony remains within the proper bounds of expert evidence, citing R v Sekhon , 2014 SCC 15 at paras 46-47 .

The trial judge remains the ultimate gatekeeper on the admission of expert evidence. [ 61 ] Dr Fiorillo has practiced as a pediatrician for almost 30 years, and testified that she has been qualified to give expert evidence in sexual abuse cases on many prior occasions. However, she was not qualified in this case as an expert on sexual abuse.

It is open to the Court to conclude that some of Dr Fiorillo’s evidence exceeded her qualification as an expert. [ 62 ] It may well be quite appropriate for an experienced pediatrician to give evidence about the physical characteristics of a girl’s hymen at various stages of development, the physical characteristics of a complainant’s hymen that were observed through a physical examination, and whether the atypical state of the hymen is consistent with certain potential causes.

However, in my view, she exceeded her expertise in opining on the likely cause, among other possible causes, of the state of the Complainant’s hymen in this case. [ 63 ] In any event, in opining on whether prior penetration was more likely to have caused the state of the hymen than a congenital condition, injury or self-inflicted penetration with an object, Dr Fiorillo referred, for example, to the reporting of sexual abuse as being a factor in concluding that preceding penetration was the cause. [ 64 ] To the extent that she did so, she gave an opinion on the ultimate issue before the Court, being the credibility of the Complainant, and the extent to which that assessment bears on a determination of the cause of the condition of her hymen.

Even if her evidence on likely cause was not inadmissible as beyond her expertise, the Court would have attributed no weight to it.

VII Conclusion [ 65 ] For the foregoing reasons, I conclude: - BB’s s 7 Charter right to make full answer and defence has been breached through late disclosure by the Crown of the photos; - the appropriate remedy for the Charter breach is to order the recalling of the Complainant for further cross-examination in relation to the testimony of Cst Haataja; - Dr Fiorillo’s evidence as to probable cause is inadmissible as it is beyond her expertise. [ 66 ] The application for a mistrial is dismissed.

Heard on the 9 th , 10 th and 11 th days of November, 2016 with written submissions provided on November 8 th and 14 th , 2016 Dated at the City of Edmonton, Alberta this 17 th day of November, 2016. Dawn Pentelechuk J.C.Q.B.A. Appearances: Dominique Mathurin for the Crown Robin A. Snider for the Accused