R v Stewart, 2021 ABQB 256

Court of Queen’s Bench of Alberta Citation: R v Stewart, 2021 ABQB 256 Date: 20210407 Docket: 171098510Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Bradley Jack Stewart Accused RESTRICTION ON PUBLICATION Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the complainant, victim or witness must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ 1. Introduction [ 1 ] Bradley Jack Stewart is a medical doctor accused of sexually assaulting one of his patients.

The patient (the Complainant) will not be identified by name to protect her privacy. Further, I remind all who review this decision, or my remarks in court about this matter, that there is a ban on the publication of any information that could tend to reveal the identity of the Complainant.

[ 2 ] This ruling relates to the Crown proposal to enter electronic communication between Dr. Stewart and the Complainant into trial. A voir dire was held to review the admissibility of this evidence. This ruling specifically relates to the admissibility of this evidence by the Crown, but does not foreclose admissibility as some of the same issues raised may be triggered by cross-examination, or as the trial progresses could lead to an application by the Crown to review the ruling based on changing facts and circumstances. 2.

The Facts as at the Date of the Voir Dire [ 3 ] The Crown based their case on the evidence of the Complainant. The parties met through a professional referral for medical treatment. The Complainant attended at Dr. Stewart’s clinic. [ 4 ] The evidence of the sexual assault as described by the Complainant may be succinctly summarized thus: On two separate occasions between January 2012 and December 31 2013, [but probably toward the end of 2012], Dr. Stewart acted inappropriately toward the Complainant. On the first occasion at the end of a medical appointment, the doctor and patient were in close contact.

The doctor leaned into the Complainant kissed her fully on the lips and inserted his tongue into her mouth. At a later appointment, Dr. Stewart left the examining room, then after returning, kissed the Complainant and grabbed her hand and placed it on his penis that he had removed from his pants. The Complainant’s evidence is that on both occasions this conduct was without her consent. 3. The Voir Dire [ 5 ] The Crown seeks to admit, as part of their case, communications which I will now describe with sufficient clarity that they may be identified in the event of appellate review.

They have been marked as voir dire exhibits [VD] 1 to 4 inclusive. [ 6 ] During the patient/doctor relationship, there was the exchange of two types of electronic communication. First, there were identifiable emails which the Complainant indicates flowed between her email and the email that she had learned belonged to Dr. Stewart. VD1, and VD2 fall into this category. Later, the Complainant was provided with Dr. Stewart’s cell phone number, and from that point, acknowledges that the communication moved to text messages and included pictures.

VD3 and VD4 were of this type. [ 7 ] VD 1 : are a series of emails between the email address of the Complainant and the professional email address of Dr. Stewart. They range in date between May 27, 2011 and May 29, 2011. As a general descriptor, the emails start formally and medically focused but later expanded into general information exchange. [ 8 ] VD 2: was an email sent from Dr. Stewart to the Complainant dated August 13, 2011, which attached a photograph he had received from a third party.

The subject of the email was: ‘ Some women take forever! ’ It denotes sexual conduct between a female and a skeleton. [ 9 ] VD 3: The Complainant indicates that two groups of personal photos were texted to the Complainant by Dr. Stewart. The first group of three pictures can be described as: first, Dr. Stewart and a friend standing in cycling gear; second, Dr. Stewart’s friend and another male enjoying a beer; and third, a blacked out unresolvable photo which the Complainant asserts is a photo of a penis. Her assertion is that these photos were received by her from Dr.

Stewart as part of long threads of texting to her Blackberry device. The Complainant saved these photos into a computer document by sending them to her email address. The second group of four photos (also part of VD3) are asserted by the Complainant as also having been sent to her Blackberry, then retained by her in her computer.

These four photos consist of three photos of male genitalia, and a picture of a naked torso of a man (with no head shown) wearing a pair of white slacks in which the fly area is open exposing a pair of white underwear. [ 10 ] VD 4: is a compilation of 88 text messages [92 reduced to 88 during the voir dire ] received by the Complainant from Dr. Stewart, potentially between a date range as early as January 2011 and ending likely no later than February 2012. The Complainant selected some to save and put these together in a composite

summary. They may not be chronological; they are admitted to be only a selection and they are void of either the complainant’s precursor text or the Complainant’s response to each of them. As presented, some of them can best be described as ‘steamy’, or textually pornographic. Some would call this ‘sex-texting’. 4. The Position of the Parties

a) The Position of the Crown [ 11 ] The Crown asserts that they can admit this evidence as it is relevant in showing the change of relationship beginning first professionally on the part of Dr. Stewart and then evolving to a personal and intense sexual desire. It adds context to the Complainant’s narrative. The Crown expresses this thusly in their written submission (at para 9): The clear probative value of this evidence is that it assists in framing the Complainant’s account and in supporting her claim that the Accused had a sexual interest in her.

Many of the individual communications authored by the Accused clearly establish the Accused’s sexual fantasies vis-a-vis the Complainant. Additionally, should the Accused choose to testify and deny having a sexual interest in the Complainant, he can be cross-examined on the fact that the Complainant has stated he sent her the messages , and on the specific statements that he is alleged to have made. (emphasis in original) [ 12 ] The change of relationship lends critical credibility and is therefore corroborative of the Complainant’s own description of how the relationship changed.

Any concerns about the evidence being overly prejudicial in a legal sense are negated by the fact that this

is a judge alone trial. [13] The Crown submits that the Complainant’s side of the exchange of texts are, with minor exceptions irrelevant (at para 7).Further, the fact that the incomplete threads (VD4) do not have the response of the Complainant is a direct response to the legalrequirement that evidence about the Complainant’s prior sexual history not be identified without an equivalent s 276 application [aSeaboyer application, R v Seaboyer, (SCC), [1991] 2 SCR 577)]. The Crown asserts that they are therefore entitled todelete the Complainant’s responses (where they have them).

Further, any limitations in the completeness or context of the text threadgoes to weight not admissibility. [14] The Crown dismisses the Defence’s reliance on R v Farris, [1994 ABCA 20] saying it can be readily distinguished. Themeaning of the messages is obvious. [15] Importantly, the Crown did not allege that the impugned evidence shows a pattern of grooming on the part of the Accused toprepare the Complainant for sexual relations. The Crown’s argument focussed solely on the evidence showing a growing sexualinterest/desire by the Accused in the Complainant.

b) The Position of the Defence [16] The Defence asserts that after the decisions of R v Barton, 2019 SCC 33, R v Goldfinch, 2019 SCC 38, and R v RV, 2019SCC 41, the trial judge has a heightened gatekeeper role and therefore, exhibits VD3 and VD4 are not admissible without the Crownseeking leave to introduce the reciprocating exchanges from the Complainant for a reason other than the prohibited grounds identified inCriminal Code s 276(1).

The Defence also asserts strongly that the Crown cannot avoid the requirement to put before the court the entirestatement in exchange between the parties on the basis that half of it is prohibited by s 276 of the Criminal Code, or by common law. [17] The Defence asserts that the electronic evidence collectively is irrelevant and not admissible on that threshold admissibilitybasis. Alternately, it is legally prejudicial and the prejudice cannot be overcome by any judicial warning.

The Defence asserts that thecourt would be hard-pressed to formulate a logical legal reason to leave a jury with the evidence in a jury trial and the self scrutinyshould just be as rigorous in a judge alone trial. 5. The Voir Dire Ruling [18] This is a difficult matter. Clearly, the proposed evidence shows that the relationship between the Complainant and Dr. Stewartstrayed from an ordinary doctor-patient one. But, the purported purpose for admission of the evidence seems strained – to display Dr.Stewart’s sexual interest in the Complainant.

Some of the proposed evidence fails the most basic test of admissibility. Some of theproposed evidence is more relevant. But, I am left wondering how probative it is regarding whether or not Dr. Stewart sexually assaultedthe Complainant as charged.

More concerning is the Crown’s tactic – in an apparent attempt to avoid triggering a Seaboyer application,the Crown has presented only one side of the conversations, removing from this Court the overall context in which to understand andevaluate the evidence. [19] The information contained in the exhibits is not admissible in this trial based on the current state of the evidence and theCrown’s stated reason for introducing the evidence.

While the reasons generally focus on relevancy, trial fairness, prejudice, and s 276,each of those potential exclusionary levers have different weight in the context of each proposed exhibit so they will be reviewed in turn. [20] This ruling does however answer in the negative whether the Crown can avoid a Seaboyer application by making aconversational thread of sexually explicit texting ‘accused’- sided only; that is omitting the conversation of the Complainant which mightotherwise trigger the trial scrutiny required by Seaboyer, Criminal Code s 276, or Goldfinch.

To allow this would offend both the spiritand intent of the Criminal Code s 276, as well the most recent jurisprudence.

a) VD 1 [21] VD1 is an exchange over two days in May 2011, which predates the sexual assault allegation by over a year. One is hard-pressed to determine any relevance to this exchange. The admission of this exhibit fails the most basic of admissibility standards that itmust be relevant to one or more facts in issue.

b) VD 2 [22] VD2 is a sexually explicit (purportedly humorous) picture. It too predates the sexual assault allegation by at least a year, andwere this a jury trial, the likelihood of risk that somebody on the jury would be offended and deposed to convict Dr. Stewart not on thebasis of any guilt, but solely on the basis of bad taste is high. I am not confident that I could encourage any juror to erase that picturefrom their mind. In my view, the Crown has not articulated a cogent or practical reason for the admissibility of that photo which, has atits root, bad character evidence of Dr. Stewart.

Further, we have no indication that the exchange between Dr. Stewart and theComplainant at this point was not part of a larger thread, which leads to the risk that this photo would be highly prejudicial and possiblyunfairly taken out of context. For this reason, VD2 is inadmissible.

c) VD3 [23] VD3 has two parts to it. One, a picture of Dr. Stewart in cycling gear and another, a picture of his friend with anothergentleman. The final blacked-out picture of what is asserted to be a penis is so unclear that it is incapable of

interpretation absent theexplanation from the Complainant. Again, these materials are irrelevant. They were received by the Complainant over a year before the

alleged assault and are presented in a way that is out of context. Presumably, these pictures were texted to the Complainant from Dr. Stewart as part of a larger narrative. The entire narrative in conversation was not retained and the Crown is not able to assert or lead evidence to show that the surrounding conversation relating to the pictures could not lead to misunderstanding or miscommunication. [ 24 ] The second group of pictures (still part of VD3) are more troubling.

They represent three photos of male genitalia and a photo of a torso (head not shown) wearing white pants partially undone revealing white underwear. Again, there is no context to these pictures, they were part of the text exchanges between the parties and as importantly are highly prejudicial and of limited, if any, relevance. Dr. Stewart is not facing any type of Internet or electronic pornography transmission charge. He is facing the charge of sexual assault committed near the end of two medical appointments.

It would be difficult to ensure that a jury seeing these pictures would not perhaps conclude wrongdoing on Dr. Stewart’s part, irrespective of any caution mid-trial, or in the final jury charge, that might be given. It is hard to disabuse the impression that a man who sends pictures of male genitalia is the type of man who would press himself on a woman, forcing non-consensual French kissing or grabbing her hand and placing it on his exposed penis. These pictures should not be admitted at trial.

d) VD 4 [ 25 ] The discussion of this exhibit involves two separate and distinct legal principles. There is also overlap between VD 3 and VD4 so this might also be considered an expansion of the reasons to reject VD3. [ 26 ] The first is that it’s not possible to review these commentaries attributed to Dr. Stewart without suspecting that they were part of an ongoing two-way steamy discussion about erotic sexual practices. On a pick and choose basis, the texts discuss the subject of explicit sexual fantasy, with a tinge of aggressiveness, and various types of intercourse.

The Crown has not alleged that these numerous sexual messages were an unwanted, unsolicited and unreciprocated barrage directed by Dr. Stewart at the Complainant. Instead, reference to a potential Seaboyer application implies the opposite.

In short, it is my view that this is specifically the type of evidence that the Supreme Court of Canada and the Alberta Court of Appeal directed judges to be cautious about and to maintain a gatekeeper function. [ 27 ] The Supreme Court of Canada has stressed that sexual-related evidence may be admitted for relevant purposes, but such proposed evidence must satisfy rigorous criteria to ensure it does not undermine the integrity of the trial or the Complainant’s dignity and privacy: RV at paras 2 , 60; Goldfinch at paras 1, 69 and 90 , 113, 124, 128.

Even ‘relatively benign’ sexual relationship evidence must be scrutinized and handled with care: Goldfinch at paras 46 and 73 . The Crown is not immune from complying with the legal requirements: RV at para 78; Goldfinch at paras 75 and 142 ; Barton at para 80 . [ 28 ] The Crown and Defence agree that R v Langan , 2019 BCCA 467 , rev’d 2020 SCC 33 , is a leading case. In Langan , the BC Court of Appeal had to deal with the trial admissibility of text messages between complainant and accused. At trial, the messages were introduced by the Crown without objection and without real definition of purpose.

The BC Court of Appeal split two to one in directing a new trial, while the Supreme Court of Canada restored the trial decision for the reasons outlined by Chief Justice Bauman in dissent. Chief Justice Bauman held that a Seaboyer voir dire was not required since the messages did not qualify as evidence of the Complainant’s sexual history. He noted that the messages were generally of a scheduling nature with only one narrow oblique reference to behavioural evidence between the parties (at paras 116-8, 124-6): However, no such voir dire was required here.

I do not view the tendering of Exhibit 1 (the pre-visit text messages) by the Crown here as "evidence of consensual sexual conduct on the part of a victim" ( Seaboyer at 636). The bulk of the text messages consists of arranging logistics of a visit between the two parties. There are discussions of departure and arrival times. One could infer that the parties have a shared interest in a child, as they discuss which of them is in possession of certain shirts and a photo of these shirts shows they are small enough that they likely belong to a child.

There is one reference to sexual activity, but it is prospective, with both the Complainant and accused communicating their expectations for the weekend. ... The evidence my colleague has identified does not rise to the level of an “implicit sexual relationship”. The detailed sexual history evidence at issue in Goldfinch was starkly different from a single reference to parties “being together” in the past.

In my respectful view, Goldfinch does not stand for the proposition that a one-sentence reference to a past relationship that may or may not have involved sexual activity requires a voir dire , and the failure to hold one necessarily constitutes an error of law. But as I have said, I do not believe that the Crown can be viewed as having tendered the text messages as “evidence of consensual sexual conduct” on the part of the Complainant, as contemplated in Seaboyer (at 636). The pre-visit text messages were tendered for an entirely different purpose.

It is clear in light of the questioning of the Complainant and the cross-examination of the accused that the Crown’s use of Exhibit 1 was directed at demonstrating that the accused could have had no expectation that prospective sex with the Complainant was in the offing on the weekend.

Given he testified to the contrary, this was a significant point at trial and formed part of the judge’s credibility assessment. [ 29 ] The majority expressed concerns about the admissibility of the texts as presumptively inadmissible expressing disparate thoughts about: first the lack of completeness and context, and second in the post- Goldfinch era, whether the text messages revealed personal relationship information that should’ve been scrutinized in a voir dire under s 276 of the Criminal Code .

Although Chief Justice Bauman’s dissenting opinion was upheld by the Supreme Court of Canada, the BC Court of Appeal was unanimous on the state of the law, only differing on the

interpretation of the nature and quality of the texts. [ 30 ] That texts can be admitted without a Seaboyer analysis is not disputed. The issue here is whether texts of the nature and

character of those in VD4 (sexually explicit texting), which are clearly behavioural in their sexual overtone, can be admitted without anequivalent Seaboyer hearing to see if there is a purpose for the evidence beyond the prohibitions set out in s 276(1). [31] In my respectful view, Chief Justice Bauman’s opinion is distinguishable from the situation here. The proposed evidence isnot of a logistical or scheduling nature, as in Langan. Instead, many of these texts and the overall tone of the exchanges are inherentlysexual.

The Supreme Court in Goldfinch cautioned that “even relatively benign” evidence had to be carefully scrutinized under s 276 (atpara 46), and we are not dealing with benign sexual evidence. [32] Importantly, in Langan, the BC Court of Appeal did not have to deal with edited texts as the Crown presented both sides ofthe conversation. The Court of Appeal stated that it “would caution generally against overreliance on a text message conversation, wheremessages are often abbreviated and fail to convey complete thoughts.” [para 61].

Further the Court of Appeal specifically noted that “theComplainant’s texts were interacting with the Accused’s texts and could thus be assessed for credibility in that context.” (at para 97). [33] In our case, all of the text messages predated the alleged sexual assault by considerable months and the Crown purports tocircumvent a requirement of a Seaboyer hearing by deleting the Complainant’s participation in this conversation. [34] The Crown, in my respectful view, proceeds on a dangerous and slippery slope in their approach to the introduction of thisevidence.

They say that by excising out the responses of the Complainant, they can satisfy - or in effect, avoid - s 276(1) and still putbefore the court the highly prejudicial, and they claim, highly relevant evidence of Dr. Stewart. I conclude that they cannot have it bothways. If there is a legitimate reason for the admission of this evidence, then the Crown should apply under Seaboyer to introduce thecomplete package (both sides of the conversation) so that we can properly discuss its admissibility.

On its face however, it really has thefeel of an attempt to first edit, and then admit bad character or propensity evidence. [35] R v Ferris, 1994 ABCA 20, upheld (SCC), [1994] 3 SCR 756, proposes that the burden on someone whowishes to introduce a statement or conversation from the accused to a third party must place the whole statement before the court. InFerris, a trial judge left before the jury a comment attributed to the accused: “I killed David” - the problem was that the police officerwho overheard that statement made during a phone conversation between Mr.

Ferris and his father did not hear the entire exchange anddidn’t know whether the overheard words were part of a longer sentence. The Court of Appeal of Alberta was critical of the admission ofthe overheard statement. Its possible relevance was as an admission by the accused.

However, the Court of Appeal cited numerousexamples of possible context that would make the statement innocuous – i.e., the full statement may have been “They think I killedDavid” or it may have been said in response to a question such as “What are the police saying you did?” The Court of Appeal found thatthe meaning of the statement was speculative and its probative value was tenuous. The heart of the Court of Appeal’s finding is found inthe following (at para 29) McClung, J.A. suggests that because there was no deliberate editing or bad faith, it should be admissible if it is voluntary. I disagree.

It isnot the good faith of the police that is in issue but the meaning of the words. He further suggests that the accused could have clarified themeaning of the words by testifying or by calling his father to testify. This is not the accused's onus. It is the onus of the Crown to adducewords capable of meaning before the defence has anything to meet. An inference cannot be used to make words an admission when theevidence clearly indicates the words were an incomplete statement and therefore meaning could not be ascertained. The Crown mustmake a prima facie case for admission.

An inference cannot be used to fill in holes in the evidence. Moreover, the Crown was at libertyto call the recipient of the call to establish meaning. It chose not to do so.

It chose to rest its case on evidence that could not support afinding as to the meaning to be attributed to the words.... (emphasis added) [36] The Supreme Court agreed that the statement should have been excluded since its prejudicial effect was much greater than its(slight) probative value. [37] The Crown urges that I restrict Ferris to its limited facts because they assert that Ferris is simply a case about context whereas here, you have standalone text messages that talk about sexual conduct; there is no interpretive context missing. Thus, the Crownasserts Ferris can be distinguished.

The Crown tries to argue by analogy to testimony about remembered conversations – such testimonyis admissible even though a verbatim record of the conversation is absent. However, that is a flawed analogy since witnesses recountboth sides of the conversation. The Crown wishes to introduce this evidence to establish aggressive sexual desire on the part of Dr.Stewart towards his patient. Certainly, the other side of that conversation could give context to the Crown’s thesis. Nor can I overlookthat some of the texts are benign in the context of this case while others are sexually explicit.

The Crown intentionally here excludes thecomments of the Complainant in the chain of texts. Further, the Complainant herself gave evidence that these were but a few ofnumerous exchanges between doctor and patient and that she both selected them and put them into a document in which even the order of‘thread’ might have been potentially altered. [38] In this context, the concerns raised by Ferris are in my respectful view, very real, and I therefore conclude that the legalproposition is sound and applies to this case.

In my view, where messages selected out of numerous email exchanges are truncated andpossibly taken out of context, their overall meaning is hard to ascertain and the true character of the exchanges is missing. Accordingly,the probative value of the selected messages is tenuous. [39] It is even more egregious in this case because the Complainant admits that she selected these threads and quotes out of manyand out of context, to create a composite document out of the ones she selected. Had the entire thread been preserved and offered to thecourt, the legal reasoning may have been different.

The Crown cannot pick and choose that which is wanted to attribute as a statementfrom the Accused without the entire context and circumstance, at least as far as is known to the Crown. Only then, and assuming thatthere were no further barriers to admissibility, might the statements be potentially admissible, but subject to a weight analysis. [40] A final issue that I have to deal with is whether the propensity of Dr. Stewart to stream sexually suggestive texts to theComplainant should be excluded on the basis that it represents evidence of bad character, or propensity evidence.

Given the largenumber and the specific nature of the explicit texts, it is hard to disabuse the impression that Dr. Stewart is sex-focused; and perhaps thetype of person who might turn his sexual fantasies into reality, regardless of the Complainant’s lack of consent. Generally, this type ofevidence is excluded by the Supreme Court’s decision in R v Handy, 2002 SCC 56. The Defence’s argument that the messages would

engage improper propensity reasoning is strong. [ 41 ] This text stream by Dr. Stewart some months before the alleged sexual assault is highly prejudicial propensity evidence based on the Handy legal principles. To paraphrase the Supreme Court in Handy , at para 31 , nobody is charged with having a ‘general’ disposition or propensity, to crime. It is potentially propensity evidence, or evidence of bad character, hoping that a jury would infer that a man who texts erotic suggestions to a woman, is the type of individual capable of sexually assaulting her. Once emotion recedes about the inappropriateness of Dr.

Stewart’s behavior, one sees that there is a complete disconnect between those two propositions. [ 42 ] The Crown continues to urge me that the reason for the admissibility of these texts is not to taint the character of Dr. Stewart, but rather to show that he had a sexual interest in the Complainant. In my view, these texts are not probative of Dr. Stewart’s culpability on the offence charged. I fail to see how Dr. Stewart’s interest in the Complainant can be equated to sexually assaulting the Complainant. The heart of the Crown’s argument seems to suggest that Dr.

Stewart’s interest in the Complainant was so strong that he felt impelled to translate the suggestive sex texts into reality. Thus, I remain of the view that notwithstanding the Crown’s strong assertion to the contrary, the admissibility of these text messages and pictures really is an attempt to diminish the character of Dr. Stewart. Assume hypothetically this was a jury trial, the admissibility of the photos contained in VD3 and the text stream in VD4 could only inflame some members of the jury against Dr.

Stewart, irrespective of whether or not they conclude on the properly admissible evidence that he sexually assaulted his patient, the Complainant. The fact that this is a judge alone trial does not mean, despite the Crown’s assertion, that the possibility of prejudice is “extremely low”. Prejudice is prejudice. [ 43 ] Thus, currently and based on the approach taken to this point in time by the Crown there are in my view three important reasons why VD4 (and VD3) should not be admitted as trial evidence.

In short, a Seaboyer application would be required as a precursor; second, there is the Ferris issue of a lack of completeness; and third, there is the Handy issue where the evidence has no probative value but diminishes the character of the individual on trial. [ 44 ] Therefore, VD 4 is also not admissible in this trial. 6. Conclusion [ 45 ] Based on the evidence as it has developed so far, none of the electronic exchanges are admissible. If trial circumstances change the Crown is given leave to reapply. Heard on the 17 th day of February, 2021.

Dated at the City of Edmonton, Alberta this 7 th day of April , 2021. A.W. Germain J.C.Q.B.A. Appearances: M. Huyser-Wierenga for the Crown K. Teskey QC for the Accused