R. v. Smith, 2011 NSPC 59

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Smith, 2011 NSPC 59 Date: 20110803 Docket: 2207032, 2207033 2207034 Between: Her Majesty the Queen - and – Logan Paul Smith DECISION Judge: The Honourable Judge Jean M. Whalen, J.P.C. Heard: August 3, 2011 Charges(s):

Section 266(

b) x 2, 264.1(1)(a), Criminal Code Counsel: Kathy Pentz, Q.C., for the Crown Cheryl Morrison, for the Defence Introduction

[ 1 .] As a result of a police investigation Mr. Smith was charged with two counts of assault and one count of uttering threats against Erica Voutier. On his second appearance before the court on August 31, 2010 Mr. Smith pled not guilty and the matter was set for trial on January 13, 2011. [ 2 .] On December 8, 2010 the clerk of the court received a victim impact statement from the complainant, Erica Voutier, from Victims’ Services. That envelope was not opened and remains sealed . [ 3 .] On January 13, 2011 Mr. Smith appeared with his counsel Ms. Morrison for trial. Prior to commencement of the trial, Ms.

Morrison requested a copy of the victim impact statement because based on a conversation with the Crown she felt there may be some relevant information contained in the victim impact statement that affects Mr.

Smith’s Charter rights, and in particular, fair answer and defence. [ 4 .] The Crown told the court that the complainant had not put something in her statement to police, but thought that she put it in her victim impact statement. [ 5 .] I ruled that the victim impact statement was prepared prematurely and not according to the requirements of the Criminal Code , s. 722.2(1): As soon as practicable after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor or a victim of the offence, or any person representing a victim of the offence, whether the victim or victims have been advised of the opportunity to prepare a statement referred to in subsection 722(1). [ 6 .] And

Section 722.1 states: The clerk of the court shall provide a copy of a statement referred to in subsection 722(1), as soon as practicable after a finding of guilt, to the offender or counsel for the offender, and to the prosecutor. [ 7 .] Since there had been no finding of guilt, the court could not release the document; I concluded that the victim impact statement was a third party record and an application would have to be made to the custodian of the document. [ 8 .] A new trial date was set for November 8, 2011 and a pretrial for June 16, 2011. [ 9 .] Defence counsel filed an application for “Production of a record pursuant to s. 278.2 and s. 278.3 of the Criminal Code attached was an affidavit.

In particular paragraph 4 states: That during my conversation with the Crown Attorney, Katherine Pentz, in court on January 12, 2011 I was advised an do verily believe that Erica Voutier, the complainant had disclosed to Katherine Pentz that the statement that she provided to the police department shortly after the allegation of June 10, 2010 and upon which both were relying, differs in some material respects to the letter which was provided to Victims’ Services in the form of a victim impact statement. [ 10 .] Paragraph 6 and 7 of that affidavit state: THAT although I do not have specific knowledge of the exact discrepancies between the complainant’s statement to police and the statements provided in her Victim Impact Statement I have been advised by Katherine Pentz and do verily believe that this record relates to the incident that is the subject matter of the proceeding against Logan Paul Smith.

THAT although I do not have specific knowledge of the statements contents in the record stated to be the Victim Impact Statement it is the Defence position that the record may relate to the credibility of the complainant and to the reliability of any testimony that she may provide. [ 11 .] The complainant, Ms. Voutier, was given notice of the application and personally served on May 28, 2011 at 6:28 pm at Sydney Mines. [ 12 .] On June 16, 2011, Ms. Pentz, the Provincial Crown, Mr. Adam Neil, Department of Justice for Victims’ Services, and Ms. Morrison, for the defendant, appeared. Ms.

Voutier did not. [ 13 .] Ms. Pentz indicated the Crown was not making any submissions, but indicated that she spoke to the complainant who could not attend. The Crown advised that Ms. Voutier was opposed to the defendant’s application because it contained private information.

As well, the Crown advised the complainant told her she was not properly instructed as to how to fill out the victim impact statement. [ 14 .] Defence counsel argues that the privacy interests of the complainant are not outweighed by the defendant’s right to make full answer and defence. [ 15 .] Defence contends the victim impact statement is different than medical or psychiatric records, and she wants to cross-examine the complainant on the victim impact statement as she does not know the contents. This statement is not meant to be private. It is meant for Mr. Smith to see. [ 16 .] In response to Mr.

Neil’s argument, Ms. Morrison distinguishes R. v. Fessahaie 2009 Carswell N.W.T. 61 at p. 4 by stating: (i.) Crown met with the complainant; (ii.) Crown counsel took notes which revealed the statement indicate the complainant was “choked more than once”;

(iii.) Which is a “material” difference than what complainant told police. [17.] Mr. Neil represents the Victims’ Services Division of the Department of Justice. He argues: 1. This is more properly an application to unseal a document in contemplation of

Section 722.

Section 722 is not to include any information of the incident, just harm and impact. 3. Counsel cites R. v. Fessahaie 2009 NWTTC 10 , 2009 N.W.T.T.C. 10 – act now says not to be disclosed to defendant untilafter verdict is found. 4. This does not affect the defendant’s right to make full answer and defence. 5. The “test” any evidence relevant to issue at trial is not met by the affidavit filed by the defendant. [18.] The court decided to adjourn the matter to contemplate the defendant’s request. On June 20, 2011 the parties appeared beforethe court and I indicated that I would send a letter to Ms.

Voutier advising her to attend court on July 7, 2011 at 9:30 am to participate inthe application. If she did not attend, I would decide the matter. [19.] On July 7, 2011 all parties attended, including the complainant, Ms. Voutier, and at that time she indicated she did not want thestatement released. [20.] Initially it appeared the defendant had not met the threshold requirement [see paragraph 6 of counsel’s affidavit.] However,after hearing submissions from all parties it appears there is a connection between the statements in issue and the defendant’s ability tomake full answer and defence.

These statements go to the heart of the charge of assault, and may likely be relevant to an issue at trial. [21.] I have reviewed the victim impact statement and only those comments relating to the alleged assault will be disclosed to thedefendant. In particular: Page 1, para. 2: Following the assault I discovered I could not sleep through the night, because I was too afraid.... I used to wake up, gasping, because Ithought I was being strangled.” Page 1, para.6: I can no longer tolerate anything around my neck....

I panic and get very anxious because it reminds me of being strangled. [22.] The remaining comments conform to the Code and outline the psychological and or emotional impact on the complainant, andwill not be disclosed to the defendant. The Honourable Judge Jean M. Whalen, J.P.C.