R v Hanslip, 2015 MBCA 114

Citation: R v Hanslip, 2015 MBCA 114 Date: 20151104 Docket: AR15-30-08314 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes Mr. Justice William J. Burnett BETWEEN : ) M. A. Jules and ) R. N. Malaviya ) for the Appellant ) HER MAJESTY THE QUEEN ) A. L. Sansregret ) for the Respondent Appellant ) ) A. Thiessen and - and - ) T. L. Grant ) for the Intervenor Métis Child, ) Family and Community Services DARRELL GEORGE HANSLIP ) ) A. E. M.

Fenske (Accused) Respondent ) for the Intervenor Complainant ) ) Appeal heard and ) Decision pronounced: ) November 4, 2015 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). MACINNES JA (for the Court): [ 1 ] The accused was charged with sexual assault of and sexual interference with the complainant on two occasions between 2004 (when she was three years old) and 2007 (when she was seven years old). [ 2 ] He applied under

section 278.3 of the Criminal Code (the Code ) for an order for production of any and all records in the possession of Métis Child, Family and Community Services (the Agency) and Child and Family All Nations Coordinated Response Network (ANCR) respectively, relating to investigations done by the Agency into allegations made against the accused by the complainant and any other investigations of allegations of abuse made by the complainant. [ 3 ] The application was heard pre-trial by the trial judge (the judge) who ordered production of certain records to him for review under

section 278.5(1) of the Code . [ 4 ] The Crown appealed the judge’s order. The complainant and the Agency were granted intervenor status in respect of the appeal. [ 5 ] Following argument, we allowed the appeal. The following are our reasons for so doing. The Facts [ 6 ] The accused allegedly sexually assaulted and sexually interfered with the complainant on two occasions between 2004 and 2007.

[7] The complainant first disclosed the allegations to her grandmother on January 1, 2010. On January 5, 2010, thecomplainant met with a representative of the Agency and was interviewed concerning the allegations. On January 26, 2010, she metwith a representative from ANCR. She was again interviewed about the allegations and was shown a body chart. Follow-up occurredwith the Agency. [8] On February 20, 2010, she was interviewed by a member of the Winnipeg Police Service. Another body chart wascompleted, but was subsequently misplaced.

However, a videotaped statement was given by the complainant and the creation of thebody chart was recorded. [9] The accused’s application for disclosure of the records was heard October 10, 2014. In the course of argument, theaccused significantly narrowed the scope of his records request and at the conclusion of the hearing, the judge ordered production of anydocuments, including notes of conversations or statements made to the Agency and ANCR, of the complainant related to the incidentsthat were the subject matter of the charges before him.

The judge ordered that those records be produced to him on November 4, 2014. [10] On two subsequent occasions, counsel appeared before the judge in respect of his order. On the first occasion, theCrown advised that, in keeping with its gatekeeper role where disclosure is concerned, it was refusing to comply with the order forproduction in the circumstances of the case. It invited the judge to order a judicial stay of the proceedings.

He declined to do so and thematter was adjourned for the parties to consider their positions. [11] On the second occasion, the Crown asked the judge to reconsider his order for production. He declined. The Crownultimately chose to cause the proceedings to be halted in a manner which it considered would allow for review of the judge’s order. Itrequested that the accused be arraigned prior to the scheduled trial date. [12] The judge confirmed that, in light of the Crown’s position, he was prepared to arraign the accused prior to thescheduled trial date, and on December 8, 2014, the accused was arraigned.

He entered not guilty pleas to all charges and the Crowncalled no evidence. The judge acquitted the accused on all charges. This appeal followed. Jurisdiction to Hear the Appeal [13] In R v GPJ, 2001 MBCA 18, 153 ManR (2d) 191, Philp JA wrote (at para 4): Bill C-46 (now S.C. 1997, c. 30), which came into force on May 12, 1997, is Parliament’s response to the decision of the Supreme Courtin R. v. O’Connor (H.P.), (SCC), [1995] 4 S.C.R. 411 . . .

The provisions of Bill C-46, which amended the CriminalCode to include ss. 278.1 to 278.91, prescribe and limit the right of a person accused of a sexual offence to have access to private recordsof complainants and witnesses. At the heart of the legislation is the defining and balancing of the competing rights given by theCanadian Charter of Rights and Freedoms (the Charter) to an accused person (to make full answer and defence - a core principle offundamental justice) and to a complainant or witness (to privacy). In R. v.

Mills (B.J.), (SCC), [1999] 3 S.C.R. 668. . . the constitutionality of Bill C-46 was upheld. [14]

Section 278.1 of the Code defines “record”.

Section 278.2(1) provides that, except in accordance with “sections 278.3to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings” in respect of certainenunciated offences (see

section 278.2(1)(a)), which includes the offences of sexual assault and sexual interference. [15] Sections 278.3 to 278.8 then stipulate the process to be followed by an accused in applying for production of a record,and by the judge hearing and determining any such application for production. [16] The judge here determined to make, and did make, his order for production under

section 278.5(1) of the Code. Section278.91 of the Code provides that “a determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1) isdeemed to be a question of law.” [17] The parties agree that the judge’s decision raises a question of law and that the standard of review is correctness. [18] The Code provides no right of appeal from an interim or interlocutory ruling in a criminal proceeding. The Crownargues, however, that this is not the appeal of an interim or interlocutory ruling. Rather, says the Crown, it is an appeal brought undersection 676(1)(

a) of the Code from a verdict of acquittal, the ground for appeal being a question of law alone, namely, whether the judgeerred in ordering production of the records in question pursuant to

section 278.5 of the Code. [19] The Crown also asserts that in the circumstances of this case, premature termination of the proceedings was absolutelynecessary as to allow the proceedings to continue in the face of the order made would result in production of the records to the judge forreview, thus violating the complainant’s privacy interests and rendering any appeal nugatory. [20] It was our view that the Crown was correct in its position in the circumstances of this case, and we concluded that wedid have jurisdiction to hear the appeal.

Decision [21] As is evident from the Code, and was stated in R v Mills, (SCC), [1999] 3 SCR 668 (at para 122): Bill C-46, as noted, contemplates a two-stage procedure for gaining access to documents. At the first stage, the issue is whether the

document should be produced to the judge. If that stage is passed, the judge looks at the document to determine whether it should beproduced to the accused.

Section 278.5 establishes the procedure for production to the judge at the first stage. [22] In R v O’Connor, (SCC), [1995] 4 SCR 411, the Supreme Court of Canada determined that recordsmust be produced to the judge for inspection if the accused could demonstrate that the information was “likely to be relevant” (at para19).

The Court there defined the standard of likely relevance as “a reasonable possibility that the information is logically probative to anissue at trial or the competence of a witness to testify” (at para 22). [23] We note that the credibility of the witness has been interpreted to come within the meaning of the phrase “competenceof a witness to testify” (ibid). [24] Although the majority of the O’Connor Court recognized that complainants have a constitutional right to privacy, itheld that no balancing of rights, i.e., an accused’s right to make full answer and defence and a complainant’s or witness’ right to privacyshould be undertaken at the first stage.

However, the minority of the O’Connor Court held otherwise. It stated that once the accusedmet the likely relevance standard, he must go further and satisfy the judge that after a balancing of rights, production should still bemade. [25] Bill C-46,

An Act to amend the Criminal Code (production of records in sexual offence proceedings), 2nd Sess, 35thParl, 1996-97, was enacted following O’Connor.

Section 278.5(1) requires that at the stage of seeking production to a judge, theaccused now must demonstrate not only that the information is “likely relevant”, but also that the production of the record “is necessaryin the interests of justice” (Mills at para 126). [26]

Section 278.5(1) of the Code provides: Judge may order production of record for review 278.5(1) The judge may order the person who has possession or control of the record to produce the record or part of the record to thecourt for review by the judge if, after the hearing referred to in subsection 278.4(1) [the hearing for production to the judge], the judge issatisfied that (

a) the application was made in accordance with subsections 278.3(2) to (6); (

b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and (

c) the production of the record is necessary in the interests of justice. [27] On appeal, the Crown argues that the judge erred in finding that the records ordered for production were “likelyrelevant” and erred further in failing to consider and/or determine whether production of the records was necessary in the interests ofjustice. [28] The intervenors join with the Crown in its assertions, but add as well that the judge erred in reversing the onus of prooffrom the accused, in having to prove that the records were likely relevant, to the complainant and/or the Agency, in having to prove thatthey were not relevant. [29] In our view, it was apparent that the judge failed to turn his mind to, and/or consider whether, the production of therecords was necessary in the interests of justice.

In the result, the production order cannot stand. Further, there was no need for us toconsider the issues pertaining to “likely relevant” or to the alleged reversal of the onus of proof. [30] In light of the error, we have allowed the appeal, set aside the verdicts of acquittal and ordered a new trial. [31] As we expect that a fresh application for production may be made by the accused in the event of a new trial, and if not,applications under

section 278 will occur in other cases, the following comments may be of some assistance. [32] As previously stated,

section 278.2(1) clearly provides that “no record relating to a complainant or a witness shall beproduced to an accused in any proceedings” in respect of the enunciated offences set forth in subsection (

a) except in accordance withsections 278.3 to 278.91. [33]

Section 278.3 provides for the making of the application for production. The provisions are strict.

Section 278.3(4)makes clear that certain assertions are not sufficient on their own to establish the “likely relevant” requirement under either section278.5(1) (production to the judge) or

section 278.7(1) (production to the accused). For example, the fact that a record exists is not, on itsown, sufficient to meet the “likely relevant” standard. [34] In addition, for the purpose of determining whether to order production to him or her,

section 278.5(2) gives guidance to

the judge when considering the salutary and deleterious effects of the determination on the accused’s right to make full answer and defence and on the right to privacy and equality of the complainant or witness and any other person to whom the record relates by setting forth factors in subsections (

a) to (

h) of

section 278.5(2), which the judge must take into account in his or her determination. The judge is not required to engage in conclusive evaluation of each of those factors, but is required to take them into account as relevant in deciding whether the production of the record is necessary in the interests of justice. [ 35 ] Lastly, it must be remembered that if the judge concludes that the records are likely relevant and, if after considering the various factors enunciated in

section 278.5(2), he/she is left uncertain about whether its production is necessary to make full answer and defence, the judge should rule in favour of inspecting the document ( see Mills at paras 132, 138 ). [ 36 ] Those factors enunciated in subsections 278.5(2)(

a) to (

h) must also be taken into account when considering and determining under

section 278.7(1) whether the production of the record to the accused is necessary in the interests of justice. JA JA JA