Ontario Superior Court of Justice

Between

Her Majesty the Queen

Respondent

and

[REDACTED] [REDACTED] and [REDACTED]

Applicants

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

M. Friedberg for the Applicant, [REDACTED]

D. Steinberg for the Applicant, [REDACTED]

Released: November 20, 2008

RULING RE CROSS-EXAMINATION OF WITNESS

Thorburn J.

1. The Issue

[1] The Applicants are facing charges of robbery, two counts of robbery with a firearm, point

firearm, use of an imitation firearm to commit an indictable offence, extortion with a firearm,

forcible confinement, sexual assault, sexual assault with a firearm, failure to comply with

probation and two counts of failure to comply with a prohibition order.

[2] They seek to cross-examine the Complainant regarding her past involvement with police.

The Applicants say this is necessary for them to make full answer and defence to the charges

against them.

[3] The Applicants seek to cross-examination the Complainant about the following

involvement she had with police:

a) Four counts of assault and forcible entry in 2004, wherein charges were withdrawn;

b) Assault with a weapon (pen) in 2005, wherein the Complainant received an absolute discharge;

c) Two counts of failure to appear in court in 2005. In the first instance no charges were laid and in the second, charges were withdrawn;

d) Failure to comply with bail conditions in 2006, wherein charges were withdrawn;

e) Failure to comply with bail conditions and obstruction of police in 2006 wherein the Complainant pleaded guilty to obstruction of the police and received a conditional discharge;

f) A second count of failure to comply with bail conditions in 2006 that resulted in withdrawal of charges;

g) A police note written by Officer Thorne that the Complainant was a possible witness to a homicide in 2006; and

h) A note made by a police officer on the CPIC record that the Complainant was "violent and dangerous".

[4] In one instance no charges were ever laid and in several others, charges were withdrawn.

In two instances, the Complainant received an absolute or conditional discharge. There are no

criminal convictions. The records in 3(a) to (c) are Youth Court Records.

2. Conclusions

[5] The Crown agrees that the Applicants may cross-examine the Complainant regarding her

failure to comply with bail conditions and obstruction of police in 2006 (set out in paragraph 3(e)

above). As such, I need not address this issue in my ruling.

[6] The Applicants are not permitted to cross-examine the Complainant regarding a note

made by a police officer on a CPIC record. The only information available regarding the CPIC

record is that the comment is a notation by an officer using the words set out above. It is not

clear who the officer was or what basis, if any, there was to support this opinion. Moreover, the

Applicants could offer no legal authority to support the proposition that unsworn hearsay opinion

evidence from an unnamed source can or should form the basis of cross-examination of the

Complainant.

[7] I further find that unless the Defence intends to call Officer Thorne (whom the Applicants

say is the author of the police note, whom they have spoken to, but from whom they sought no

details regarding the police note) as a witness in this proceeding, they may not cross-examine the

Complainant regarding this hearsay evidence.

[8] However, for the reasons set out below, I believe some cross-examination regarding the

Complainant's police involvement set out in paragraph 3(a) to (d) and (f) should be permitted.

3. Analysis of the Remaining Issues

[9] The parties agree that in order to cross-examine the Complainant about these incidents,

the Applicants must establish that the documents are likely relevant to the matters in issue in this

proceeding and are admissible areas of cross examination of the Complainant at law.

A. Relevance of the Incidents in Question

[10] The parties agree that the incidents must be likely relevant to an issue at trial in order to

be produced to the Applicants and used by them in cross-examination. The factors to be

considered in determining whether an incident is likely relevant in a case involving an alleged

sexual assault are set out in section 278.2 to 9 of the Criminal Code. Some of the factors to be

considered include: the extent to which the record is necessary for the accused to make a full

answer and defence, the probative value of the record, society's interest in encouraging the

reporting of sexual offences, and the effect of the determination on the integrity of the trial

process.

[11] The Applicants suggest that these occurrences are relevant to the Complainant's

credibility and reliability as they will demonstrate that the Complainant:

a) engaged in discreditable conduct that has resulted in police attention;

b) has a "gang mentality";

c) was in violation of the terms of her own judicial interim release which, the Applicants allege, was a motive for fabricating the allegation of sexual assault; and

d) was in the company of people of disreputable character and had a mode of life that

would put into question her credibility and the reliability of her testimony.

[12] The Applicants submit that the Complainant's credibility is a key issue in this proceeding and this line of cross-examination is necessary to enable the accused to make full answer and defence.

[13] Finally, the Applicants contend that the incidents set out in paragraph 3 (d)-(g) involve the Complainant's involvement with police at or around the time these offences were committed, and may reflect on her behaviour, her character or her associations with others involved in criminal activity at that time.

[14] After considering the factors set out in section 278.2 to 9 of the Criminal Code, and the

submissions made by the Applicants at paragraph 11 above, regarding the Complainant's alleged

credibility, reliability and associations, I am of the view that the records referred to at paragraph

3(a) to (d) and (f) are likely relevant to the matters in issue in this proceeding

[15] I will now consider their admissibility at law.

B. Admissibility of the Documents

[16] The Crown takes the position that charges withdrawn should not be put to the

Complainant for the following three reasons:

a) there are specific statutory protections for those who claim they have been the

victims of sexual assault;

b) there has been no finding of guilt and thus there can be no presumption of guilt

which the Crown says is necessary to allow cross-examination of the Complainant

regarding prior involvement with police; and

c) section 82 of the Youth Criminal Justice Act, S.C. 2002, c. 1 provides that there can

be no cross-examination on Youth Court records.

I will deal with each of these arguments in turn.

Legislative Concern for Complainants of Sexual Assault

[17] The Crown contends that legislators of the Criminal Code have shown particular concern

for Complainants of sexual assault as evidenced by the statutory restrictions on crossexamination

of the Complainant's sexual history. In addition, Section 278.5(2) of the Criminal

Code provides that in order to obtain production of a Complainant's records, the Applicants must

establish to the satisfaction of the court:

(a) the extent to which the record is necessary for the accused to make a full answer and

defence;

(b) the probative value of the record;

(c) the nature and extent of the reasonable expectation of privacy with respect to the record;

(d) whether production of the record is based on a discriminatory belief or bias;

(e) the potential prejudice to the personal dignity and right to privacy of any person to

whom the record relates;

(f) society's interest in encouraging the reporting of sexual offences;

(g) society's interest in encouraging the obtaining of treatment by complainants of

sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

[18] I believe that based on the Applicants' reasons for cross-examination referred to above,

their assertion that her credibility is a key factor in this proceeding, the limited expectation of

privacy in police records, notwithstanding that this may have some adverse effect on the

reporting of sexual offences, the provisions of section 278.2 to 9 and the concerns expressed

therein do not preclude cross-examination regarding the Complainant's alleged prior disreputable

conduct even if the alleged prior disreputable conduct did not result in criminal convictions.

There has been no Finding of Guilt and this is a Necessary Pre-Condition for Cross-

Examination of the Complainant

[19] In the incidents cited at paragraph 3 (a) to (d) and (f) there has been no guilty verdict.

However, neither has there been a verdict of acquittal, rendering "entirely innocent the accused's

connection to the conduct underlying the charge." (See R. v. Akins (2002), 59 O.R. (3d) 546

(C.A.) at paragraph 16.)

[20] The Supreme Court of Canada in Titus v. R. (1983), 2 C.C.C.(3d) 321 held that a witness

could be cross-examined regarding an outstanding indictment that had not yet come to trial at the

time of cross-examination. In R. v. Cullen (1989), 52 C.C.C. (3d) 459 (C.A.), where a

complainant advised that she had not been convicted of a criminal offence but had a conditional

discharge for a criminal offence, the Court of Appeal held that the trial judge ought not to have

restricted defence counsel's cross-examination to ask only whether she had been convicted of a

criminal offence. Defence counsel was entitled to probe the necessary underlying facts.

[21] I see no reason to distinguish the conclusions reached in Titus and Cullen above, from the

reasoning to be applied to the incidents in this case. Where charges were withdrawn or, in fact,

never laid, no final determination of guilt or acquittal was made.

[22] Charges may be withdrawn for a number of reasons. A withdrawal of a charge does not

therefore mean that there has been a determination of guilt or acquittal on the charges laid

against the Complainant. Had charges never been laid, the parties agree that the Complainant

could be cross-examined on alleged prior discreditable conduct relevant to this proceeding.

Therefore, there would seem to be no reason in principle why cross-examination would be

refused solely on the basis that charges were withdrawn or resulted in a discharge since the

Applicants may adduce evidence of prior disreputable conduct without any charges being laid.

[23] Charges that have resulted in an absolute or conditional discharge, or charges that have

not resulted in convictions may nonetheless be evidence of discreditable conduct.

[24] To the extent that there is a heightened concern that a decision by police to become

involved in an incident means there is a greatly likelihood the act was committed or that it was a

more serious incident, I believe this can be addressed at the time the jury charge is provided to

members of the jury.

Section 82 of the Youth Criminal Justice Act

[25] The Crown contends that section 82 of the Youth Criminal Justice Act provides that there

can be no cross-examination on Youth Court records referred to at paragraph 3(a) to (c) above,

unless they resulted in a conviction. Section 82 of the Youth Criminal Justice Act provides that:

(1) Subject to section 12 (examinations as to previous convictions) of the Canada

Evidence Act, if a young person is found guilty of an offence, and a youth justice

court directs under paragraph 42(2)(b) that the young person be discharged

absolutely, ... the young person is deemed not to have been found guilty or

convicted of the offence...[with four limited exceptions].

[26] I do not agree with the Crown's characterization of the meaning of this section. My

reading of the section is that notwithstanding that a youth is discharged absolutely and therefore

deemed not to have been found guilty or convicted of an offence, that youth can nonetheless be

cross-examined in accordance with the narrow exception set out in section 12 of the Evidence

Act as, for that purpose only, there remains a conviction.

[27] Finally, I do not agree that cross-examination regarding charges withdrawn and an

absolute discharge granted pursuant to the Youth Criminal Justice Act (set out in paragraph 3(a)-

(c)), would run contrary to the purpose of the Youth Criminal Justice Act. The Act itself

envisages certain circumstances (including the right to make full answer and defence) wherein it

may be appropriate to disclose records (See Youth Criminal Justice Act, section 119.) The Act

does not restrict disclosure to a person's own records.

[28] I note that the order requesting disclosure of the Youth Court Records referred to in

paragraph 3 (a) to (c) above was granted by Paulseth J. of the Ontario Court of Justice in

accordance with section 123 of the Youth Criminal Justice Act. Section 123 provides that a

youth justice court judge may order that the person be given access to all or part of a [Youth

Court] record if the person has a valid and substantial interest in the record, and, in the view of

the Youth Court Judge, it is necessary for access to be given to the record in the interest of the

proper administration of justice. Where records are disclosed, the youth justice court judge shall

set out the purposes for which the record may be used.

[29] The parties were unable to provide me with a copy of Paulseth J.'s reasons. However,

the Applicants advise that they informed the Youth Court Judge that they sought disclosure of

the Complainant's Youth Court records in order to make full answer and defence in this

proceeding, including the use of some or all of those Youth Court Records on cross-examination.

[30] For the above reasons, I find the records are likely relevant and admissible at law and

therefore grant the Applicants request to cross-examine the Complainant regarding the records

referred to in paragraph 3(a) to (d) and (f) above. I find that the Applicants are not permitted to

cross-examine the Complainant regarding the CPIC statement referred to in paragraph 3(h) as it

is, in my view not admissible. The Applicants are not permitted to cross-examine on hearsay

statements of Officer Thorne unless they are prepared to call him as a witness to this proceeding.

The record referred to in paragraph 3(e) has been resolved by the parties.

[31] I will, if necessary, exercise my power to limit the scope of cross-examination to avoid

unfairness to the witness.