R. v. J.N., 2015 NUCJ 27

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. J.N., 2015 NUCJ 27 Date: 20150820 Docket: 08-14-244 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: J.N ________________________________________________________________________ Before: The Honourable Mr. Justice Johnson Counsel (Crown): A. Porteous Counsel (Accused): K. Kellough Location Heard: Iqaluit, Nunavut Date Heard: March 27, 2015 Matters: Criminal Code, s. 151 ; s. 278.2 ; s. 278.3 ; s. 278.4 ; s. 278.5 ; s. 278.6 ; s. 278.7 ; s. 278.8 ; s. 278.9 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 278.9 of the Criminal Code , 278.9

(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following: (

a) the contents of an application made under

section 278.3; (

b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2); or (

c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to

section 278.8, unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published. I. INTRODUCTION [ 1 ] The accused was charged with offences contrary to

section 151 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. [ 2 ] The accused applied for an order from this Court requiring that the Crown produce documents in the possession of the Royal Canadian Mounted Police [RCMP], pursuant to

section 278.2 of the Criminal Code . [ 3 ] As the trial was set for April 17, 2015, I ordered production of the requested documents to Defence Counsel at the conclusion of oral argument. I also advised counsel that I would provide reasons at a later date. [ 4 ] These are the reasons for my Order. II. FACTS [ 5 ] Crown Counsel advised Defence Counsel by email that she was in possession of an Occurrence

Summary (otherwise referred to as an “Occurrence Report”) from an unrelated matter, in addition to the attached disclosure reports of two RCMP officers. This Occurrence

Summary [OS] had potential relevance to the charges alleged against the accused. In it, the police made some comments about the veracity of the complainant. However, according to the Crown, the OS is protected under

section 278 of the Criminal Code . [ 6 ] On March 25, 2015, Defence Counsel responded by filing an application, supporting affidavit, and written submissions seeking production of the OS. Both Crown and Defence agreed that certain emails associated with the OS were relevant, in that they provided the context necessary to give meaning to the OS. They further agreed that the two supplementary reports were also connected to the OS. All these documents are collectively referred to as the “records”.

III. ARGUMENTS A. First stage [7] Both Defense and Crown Counsel agree that the Court must apply the procedure set out in R v McNeil, 2009 SCC 3, [2009] 1 SCR66 [McNeil]. In McNeil, the Supreme Court of Canada reiterated its finding in R v Mills, (SCC), [1999] 3 SCR 668,139 CCC (3d) 321 [Mills], that the two-stage process in R v O’Connor, (SCC), [1995] 4 SCR 411, 103 CCC (3d) 1[O’Connor], applies to applications made under

section 278. However, at paragraph 32, the McNeil court notes that the Mills regime issignificantly different from O’Connor. While both balance competing interests when determining whether production should be made toa court, most of the balancing under the Mills regime occurs at the first stage. This is as a result of the Parliamentary assumption thatprivacy interests exist in the types of records that are targeted by this statutory regime. [8] The Supreme Court further clarified, in R v Quesnelle, 2014 SCC 46, [2014] 2 SCR 390 [Quesnelle], that the statutory exemptionunder Criminal Code

section 278.2 relates to those records that are made in relation to the offense being prosecuted by those responsiblefor the investigation or prosecution of the offence. It held that police Occurrence Summaries that are prepared in relation to previousunrelated instances, but which deal with the same witnesses or complainants are records within the meaning of Criminal Code section278. As a result, it is necessary to examine whether there is a reasonable expectation of privacy in these records.

When these unrelatedreports raise legitimate questions about the credibility of a complainant or witness, they will be treated as relevant. [9] Defence Counsel believes that these two Occurrence Summaries bear directly on the credibility of the complainant, despite the factthat they pertain to an unrelated matter. In them, the officers communicated concern that the complainant had concocted a story that theywere finding difficult to believe. [10] The onus to prove relevance falls to the applicant at the first stage.

The applicant must satisfy the Court that the documents arelikely relevant to a triable issue or to a witness’s competency to testify. Furthermore, the applicant must prove that the production of therecord is necessary in the interest of justice. [11] It is important to note that, as held at paragraph 30 in McNeil, the “likely relevant” threshold in O’Connor applications is differentfrom the “likely relevant” threshold in Mills applications.

The Mills regime was specifically formulated to counter myths and stereotypesrelating to sexual assault victims and to the utility of private records in related court proceedings (Mills, para. 31). [12] At the first stage, the Court must also take into account the factors set out in

section 278.5(2) of the Criminal Code. These factorswere interpreted in R v Bell, [1998] OJ No 4042 (Ont Ct J (Gen Div)), 40 WCB (2d) 47, and found to require a reasonably closetemporal connection between the creation of the records and the date of the alleged offence. In cases of historical events, a closetemporal connection between the creation of the records and the decision to bring charges is necessary (R v Bell, para. 27).

Otherincidents of likely relevance will be found where the record contains inconsistent statements about incidents that have occurred (R vM(A) (No 2), [1998] BCJ No 1910 (BC SC), 1998 CarswellBC 1799; R v Carosella, (SCC), [1997] 1 SCR 80) orwhere the records may shed light on the complainant’s memory of events (R v Manios, [1999] OJ No 3361 at para 18 (Ont Sup Ct), 43WCB (2d) 425). [13] Mills, at paragraph 132, held that where the applicant has shown the documents are likely relevant, but the Court remains uncertainas to whether production is necessary to make full answer and defence, the Court should rule in favour of inspecting the documents if itdeems that inspection is necessary to determine whether they are crucial for full answer and defence.

It must then determine if therecords are “necessary in the interests of justice”. [14] The respondent, Crown Counsel on the issue before me, has conceded that the records satisfy the “likely relevance” test at the firststage. The only issue is whether the production of the records is in the “interests of justice”, as set out in

section 278.5(1)(

c) of theCriminal Code. Crown Counsel has provided the Court with a general description of the nature of the documents. She also revealed thatthe OS and emails pertained to another file that was investigated that was not a sexual assault. During the unrelated investigation, apolice officer recorded that he believed that the complainant was not telling the truth. No charges were filed after that investigation. [15] Crown Counsel has argued that the only relevance of the OS is the comment by the officer regarding the veracity of thecomplainant on an unrelated file. Further, according to the Crown, the officer’s comment has little probative value on the sex assault

charges. While the officer’s comments are relevant to credibility in a broad sense, it does not mean that the complainant’s account ofwhat went on with the accused is untrue. In any event, these comments would not be admissible at the sexual assault trial because theydeal with a collateral issue. [16] In analyzing the “interests of justice” issue, the court should consider the factors listed in Criminal Code

section 278.5(2),particularly subsection 278.5(2)(f), which concerns society’s interest in encouraging the reporting of sexual offences.

The Crown hassubmitted that, by allowing the introduction of evidence about earlier unrelated police investigations, the court would be inhibitingcomplainants from making complaints because of the possibility that their history may be disclosed, even where it is unrelated to anysexual assault complaints. [17] If, at the first stage, the applicant is successful in showing that there is “likely relevance” and that the interests of justice have beenmet, the documents will be produced to the Court for review.

The Court will then enter the second stage of inquiry in which it determineswhether the documents should be disclosed to the applicant. [18] The applicant, Defense Counsel in the case before me, argues that evidence of the complainant having lied to the police is highlyrelevant to her credibility, and that it is a triable issue that can be advanced at trial, where it would go to the weight of the evidence oncredibility.

The records should therefore be produced in order for the Court to see what it is dealing with in this case. [19] I am satisfied that, in balancing the interests of encouraging the reporting of sexual assaults against the fairness to the accused inmaking a full answer and defence, the scales tip in favour of the accused. The veracity of the complainant in past dealings with the policeis highly relevant. It is therefore in the interests of justice that the documents be produced to the Court for inspection. B.

Second stage [20] Crown Counsel produced the documents for my review and the hearing briefly adjourned so I could read the documents. [21] The documents consisted of two unredacted Occurrence Reports, as well as two redacted emails explaining a bit more about thereports. [22] Although a judge may determine the admissibility of the records in the absence of the parties, he or she may also hold an “incamera” hearing under Criminal Code

section 278.6(2) to hear from the parties. Defence Counsel submits that it is in the interests ofjustice, in most cases, to allow the parties to participate. Unless the court is satisfied upon reviewing the records that it is a clear case forproduction, Crown and Defence Counsel should have the right to make submissions.

Otherwise, it will be very difficult for the judge tomake a ruling as they will have neither access to the evidence at trial, nor counsels’ theories of the case. [23] In the situation before me, I am satisfied that an “in camera” hearing should be held so that I may hear arguments from bothcounsel. [24] Both counsel agree that, at the second stage, the court must take into account all of the enumerated factors in sections 278.5(2) and278.7(2) of the Criminal Code.

Defence Counsel submits that, if the court is similarly unsure in the second stage and is left in doubtabout whether the right to make full answer and defence would be compromised, then production ought to be ordered. This approach isin accordance with Justice L’Hereux-Dubé’s judgment in O’Connor, which requires that judges in borderline cases should err on the sideof production (O’Connor, para. 152). [25] The Defence relies on Quesnelle to argue that the occurrence summaries are records within the scope of Mills.

Essentially, whenthese records contain personal information, they trigger an expectation of privacy on the part of the complainant or witness. This class ofrecords is distinguishable from those documents made or created in relation to the offence or occurrence at hand. This latter class ofrecords will almost always be exempted from the third party regime and must be disclosed pursuant to the R v Stinchcombe principles (Rv Stinchcombe, (SCC), [1991] 3 SCR 326, 68 CCC (3d) 1 [Stinchcombe]).

[ 26 ] The Court in Stinchcombe held that unrelated police records will generally not be disclosed to the Defence for valid and principled reasons relating to the protection of the privacy interests of the complainant or witnesses. It cannot be said, however, that this holding was intended to usurp the accused’s right to make full answer and defence.

Ultimately, the presiding judge must engage in the exercise of balancing the rights of the accused against those of the complainant or witness. [ 27 ] Defense Counsel submits that, at the second stage, this Court must determine whether the records are, in fact, relevant. Unless the records are “clearly irrelevant”, they should be disclosed. The Defence is not focused on the specifics of the interaction with the police, but rather, on whatever behaviour the complainant exhibited that caused the officers to question her truthfulness.

The Defence does not seek to perpetuate any myths or stereotypes in relation to the complainant’s prior behavior; the sole inquiry concerns the complainant’s credibility. [ 28 ] The Crown has essentially reiterated the arguments made at the first stage of this inquiry, namely that the documents are of low probative value and do not justify invading either the privacy interests of the complainant, or the interest in encouraging the reporting of sexual assault complaints. IV. CONCLUSION [ 29 ] The documents do not reveal any private information provided by the complainant.

Essentially, they consist of the officer’s reasons for believing that the complainant was not being truthful about the unrelated matter he was investigating. In balancing the interests referred to above, I find that the documents should be provided to the Defence for possible use in cross-examination at trial. The weight of the evidence is a matter for the trial judge. Dated at the City of Iqaluit this 20th day of August, 2015 ___________________ Justice E. Johnson Nunavut Court of Justice