Ontario Superior Court of Justice

Between

Her Majesty the Queen

Respondent

and

[REDACTED] [REDACTED] and [REDACTED]

C. Sweeney, for the Respondent, Her Majesty the Queen

D. Steinberg, for the Applicant, [REDACTED]

M. Friedberg for the Applicant, [REDACTED]

Released: November 14, 2008

Thorburn J.

RULING RE REQUEST TO VARY SECTION 278.3 APPLICATION RE

DISCLOSURE OF TELEPHONE RECORDS

The Issue

[1] This is an application to vary my order of November 7, 2008 wherein I ordered, inter

alia, that telephone records belonging to the Complainant be produced but only for 48 hours after

the alleged incidents in question.

Position Taken by the Applicants on the Previous Application

[2] No written Application was filed. In oral submissions, the Applicants sought disclosure

of telephone records for three months (on the part of Mr. [REDACTED]) and to November 18, 2006 (on

the part of Mr. [REDACTED]). On November 3 and 4, 2008, lengthy submissions were made by the

Applicants in support of the first Application to produce telephone records.

[3] At the in camera hearing, the Applicants took the position that the telephone records are

likely relevant and disclosure is necessary in the interest of justice for the following reasons:

a) they will demonstrate that the Complainant colluded with Mr. Powers in deciding

not to divulge his name as one of the perpetrators when she first spoke to police.The Applicants say she did so as she has a "gang mentality" and would therefore do what she was told by the gang. The Applicants say the facts set out in Mr. Powers' guilty plea are very similar to the facts recounted by the Complainant to the police;

b) the records will show that there was contact amongst the Complainant, Mr. Powers,

Mr. [REDACTED] and Ms. [REDACTED] and when the Complainant went to do the photo lineup on November 14, 2006, it was clear she had seen one of the two accused before and told one of the officers that his girlfriend was in her class;

c) Mr. [REDACTED] and the Complainant, in statements made at the preliminary inquiry, did not agree as to how often they spoke after the alleged offences took place on October 25, 2006. The Complainant stated that she had no idea but when pressed, she thought it was between three and six times. Mr. [REDACTED] said it was only once;

d) the Complainant suggested to police that she might have been "set up" for these offences by Ms. [REDACTED] as Ms. [REDACTED] knew before the alleged offences took place at the Complainant's apartment, that the Complainant's then boyfriend, Mr. [REDACTED] had a great deal of money in cash; and

e) if the telephone records confirm that she remained in contact with one or more of the other three individuals whose calls would be disclosed, this would show that the Complainant perjured herself as she indicated that she had little or no contact with Mr. Powers or Ms. [REDACTED] after the events in question.

[4] The Applicants proposed that all numbers but the calls among these four individuals be

blacked out on the records and that the telephone numbers of the four individuals be replaced

with a different single digit number for each of the four individuals.

[5] The Crown advised, inter alia, that the Complainant was sexually assaulted, was then

taken into her bedroom where she was told to telephone Mr. [REDACTED], she did so, and two men

later had sex with her on her bed. Mr. [REDACTED] arrived after all of these alleged incidents had

taken place and knocked on her door. Two individuals were standing inside the Complainant's

home, one behind the door with a gun and the other at the bottom of the stairs with a gun. Mr.

[REDACTED] fled from the other side of the door.

[6] Counsel for the Complainant stated that Mr. [REDACTED] gave a statement to police the day

after the alleged incident and that his statement did not materially change after that. No evidence

was lead by the Applicants to suggest that Mr. [REDACTED]'s statement to police give the day after the

alleged incidents, regarding the events that took place on the night in question, was materially

different from statements he made thereafter.

Previous Ruling

[7] In my ruling dated November 7, 2007, and with the consent of the Crown, I ordered that

telephone records of the Complainant and Mr. [REDACTED] be produced for forty eight hours after the

alleged incidents took place. Those records were to be redacted to show only the calls among the

Complainant, Mr. Powers, Ms. [REDACTED] and Mr. [REDACTED] for 48 hours after the alleged incidents

took place. One of the reasons these records were ordered to be produced was so that evidence

of all communications among these four persons would be produced until such time as Mr.

Powers was implicated as a party to the alleged offences.

[8] I found that telephone contact with Mr. Powers more than 48 hours after the alleged

incidents is not likely relevant as the Complainant advised police that Mr Powers was one of the

perpetrators, the day after the alleged incidents took place and there is no evidence of collusion

after this time.

[9] I found, inter alia, that the alleged inconsistencies between Mr. [REDACTED] and the

Complainant's account of their post-offence contact are not material. Even if they were, Defence

counsel has not shown how their post offence contact is likely relevant to the accused' right to

make full and answer and defence to the charges before me. One of the reasons for this is that

Mr. [REDACTED] arrived at the Complainant's door after the alleged assaults on the Complainant had

taken place.

Request to Re-Open the Application

[10] The Applicants, [REDACTED] and [REDACTED] have now reviewed the telephone

records of the Complainant for 48 hours after the alleged incidents took place. The Applicants

base their request for additional disclosure of the Complainant's telephone records solely on the

contents of the Complainant's telephone records for 48 hours after the alleged incidents took

place. They rely on the telephone communications between the Complainant and Mr. Powers

and the telephone communications between the Complainant and Mr. [REDACTED].

[11] I have now had an opportunity to review the Complainant's telephone records for the 48

hour period after the alleged incidents. Based on my review of the records and the explanations

of the significance of the call details set out in the Telus records, I see no reason to vary the order

I issued on November 7, 2008.

[12] To the extent there are alleged inconsistencies between Mr. [REDACTED] and the

Complainant's account of their post-offence contact, these issues may be relevant to cross-examination of these witnesses. However, Mr. [REDACTED] was not present when any of the alleged assaults on the Complainant or the robbery took place.

[13] Given the reasons for the request for telephone records as articulated above, nothing in

the Complainant's telephone records for the 48 hours after the alleged incidents in my view,

establishes that post offence contact between Mr. [REDACTED] and the Complainant after the first 48

hours after the alleged incidents took place is likely relevant to the accuseds' right to make full

and answer and defence to these charges.

[14] As such, this Application is dismissed.