R. v. S.P.P.

R. v. S.P.P. Court Supreme Court Date 2024-04-15 Citation 2024 NSSC 237 Docket Hfx No. CRH No. 511713, Hfx No. CRH No. 511713 Judge/Registrar/Adjudicator Norton, Scott C. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. S.P.P., 2024 NSSC 237 Date: 20240415 Docket: Hfx No. CRH No. 511713 Registry: Halifax Between: His Majesty the King v. S.P.P. DECISION – 278.92 Publication Ban: ss. 486.4 and 486.5 of Criminal Code Judge: The Honourable Justice Scott C. Norton Heard: April 12, 2024, in Halifax, Nova Scotia Decision: April 15, 2024 Counsel: Nicholas H. Comeau, for the Crown Thomas J. Singleton, KC and Leora J. Lawson for S.P.P. Order restricting publication — sexual offences 486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it. Victim under 18 — other offences (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it. Child pornography (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Inquiry by court (3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2). Duty to inform (3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (c) informed them of their right to apply to revoke or vary the order. Limitation (4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. Limitation — victim or witness (5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness. Order restricting publication — victims and witnesses 486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants (2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Offences (2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). Limitation (3) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. Limitation — victim, etc. (3.1) An order made under this section does not apply in respect of the disclosure of information by the victim, witness or justice system participant when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim, or witness or justice system participant. Application and notice (4) An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. Grounds (5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. Duties — judge or justice (5.1) If the prosecutor makes an application for an order under subsection (1) or (2), the judge or justice shall (a) if the victim, witness or justice system participant is present, inquire of them if they wish to be the subject of the order; (b) if the victim, witness or justice system participant is not present, inquire of the prosecutor if, before the application was made, they determined whether the victim, witness or justice system participant wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (8.2). Hearing may be held (6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. Factors to be considered (7) In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant. Conditions (8) An order may be subject to any conditions that the judge or justice thinks fit. Supplementary duty — judge or justice (8.1) If an order is made, the judge or justice shall, as soon as feasible, inform the victims, witnesses and justice system participants who are the subject of that order of its existence and of their right to apply to revoke or vary it. Duty to inform (8.2) If the prosecutor makes the application, they shall, as soon as feasible after the judge or justice makes the order, inform the judge or justice that they have (a) informed the victims, witnesses and justice system participants who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and (c) informed them of their right to apply to revoke or vary the order. Publication prohibited (9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. By the Court: Introduction [1] S.P.P. (“S”) applies to the court pursuant to s. 278.93(1) of the Criminal Code for an order permitting him to adduce records related to the complainant that are in his possession and control. Background [2] The Applicant is charged with two (2) counts of sexual touching, contrary to s. 151 of the Criminal Code, two (2) count of sexual assault contrary to s. 271 of the Criminal Code, and one (1) count of invitation to sexual touching contrary to s. 152 of the Criminal Code, against the complainant, G. [3] The offences are alleged to have occurred between September 30, 2007 and March 27, 2017 from the time when the complainant was four (4) years old until she was thirteen (13) years old. [4] The Crown proceeded by way of Direct Indictment. This matter is currently set for six (6) days of Trial in Nova Scotia Supreme Court. As a result of the Direct Indictment, no preliminary inquiry was held in this matter. [5] The document that the Applicant is seeking to adduce is a General Occurrence Hardcopy relating to an incident that was reported to police on May 14, 2014. The incident alleges an assault by the accused on the complainant. It includes a description of the events by the complainant. The police file was closed as it was determined, after speaking with the complainant and the accused separately, that each provided the same version of events. It was deemed appropriate parental discipline. [6] On August 4, 2020, the complainant provided a statement to the police in relation to the charges before the Court. The Applicant asserts that during that statement, the complainant describes an extremely different and exaggerated version of events related to the same incident reported on May 14, 2014. [7] The Crown opposes the admissibility of the document on the basis that it offends the collateral fact rule and on the basis that it does not rise to the required admissibility threshold upon consideration of the factors outlined in s. 278.92(3) of the Criminal Code. Counsel for the complainant supports the Crown’s position. [8] The Application was filed on October 30, 2023, supported by the affidavit of Leora Lawson, associate counsel representing the Applicant. The affidavit attached copies of the General Occurrence Hardcopy, notes of the police officer that responded to the incident on May 14, 2014, and excerpts from the complainant’s transcribed recorded statement on August 4, 2020. [9] The Stage I hearing was held on the first day of the scheduled trial that had been adjourned. The Crown at that time conceded the Stage I requirement that the judge determine that the evidence is relevant and capable of being admitted at trial under s-s. 278.92(2). Accordingly, the judge presiding accepted that the evidence satisfied Stage I. It was then determined that the judge presiding could not reschedule the trial to be heard prior to his retirement date. The matter was then rescheduled for trial before me. By recorded conference call, the parties agreed that I should adopt the ruling of the presiding judge on Stage I and schedule the Stage II hearing with notice to the complainant, who subsequently retained counsel. [10] The Crown filed a brief in advance of the Stage II hearing in which it advised that upon reflection, the evidence did not meet the Stage I threshold as it violated the collateral fact rule. S filed a response submission that the document does not offend the collateral fact rule and meets the threshold factors set forth in s. 278.92(3). [11] I am satisfied that it is appropriate for me to first consider whether the documents offend the collateral fact rule, despite this being an issue of admissibility that should have been raised at Stage I. I have a gatekeeping role to ensure that the trial is conducted upon admissible evidence. There has been no prejudice to S as he has had full opportunity to respond to the Crown’s submission on this issue. Collateral Fact Rule [12] The collateral fact rule operates to prevent a party from calling extrinsic contradictory evidence solely for the sole purpose of contradicting the testimony concerning a collateral fact. A collateral fact is one that is not connected with the issue in the case. It is one that the party would not be entitled to prove as part of its case, because it is not material nor relevant to a material fact: The rule seeks to avoid confusion and proliferation of issues, wasting time, and introduction of evidence of negligible assistance to the trier of fact in determining the real issues of the case. It endeavors to ensure that the sideshow does not take over the circus. David Watt, Watt’s Manual of Criminal Evidence, (Toronto: Carswell, 2019, at p. 335). [13] The rule does not operate to confine the scope of what is otherwise proper cross-examination. What the rule does do is prevent a party from calling extrinsic evidence to undermine the credibility of the opposing party’s witness on a collateral issue: R. v. A.C., 2018 ONCA 333. [14] However, the rule is not absolute. Several exceptions to the rule include and permit (Watt, supra, p. 336): i. proof of bias, interest or corruption denied by the witness; ii. proof of a prior inconsistent statement not admitted by the witness; iii. proof of a prior conviction not admitted by the witness; iv. disproof of a denial of a reputation for lying or untruthfulness; and v. disproof of a denial of a physical or mental defect relating to the capacity or likelihood of the witness telling the truth. [15] Evidence that undermines a witness’ credibility may escape the exclusionary reach of the rule, if credibility is central to the case against the applicant. The Ontario Court of Appeal noted in R. v. C.F., 2017 ONCA 480, at para. 60: The collateral fact rule is not absolute. As the Supreme Court recognized in R. v. R.(D.), [1996] 2. S.C.R. 291, evidence that undermines a witness’s credibility may escape the exclusionary reach of the collateral fact rule if credibility is central to the case against an accused. [16] In C.F., the collateral information related to a separate incident not before the court but involved the same complainant and the same accused over the same time period. The court noted that the information sought to be adduced could have a significant impact on the complainant’s credibility and reliability which was a central issue in that case. The court distinguished this type of situation from the many previous cases which had denied the use of collateral fact evidence in situations where the prior assaults related to third party perpetrators and not the accused. [17] Here, the Applicant is seeking to contradict the complainant on an uncharged assault alleged to have occurred on May 14, 2014. This alleged 2014 incident is not part of the Indictment before this court, though it is within the same time period (i.e. between September 30, 2007 and March 27, 2017). The Applicant does not dispute that the information in the General Occurrence Hardcopy is in fact collateral to the charges before the court, however submits that it is permissible pursuant to the reasoning in C.F. [18] The Crown’s position is that the Applicant’s counsel is, of course, free to cross-examine on the topic of the May 14, 2014 incident. However, if the complainant does not adopt the suggestions of a previous utterance as different than what she disclosed in her police statement, her answers should be final, and the Applicant would be “left” with those answers. [19] I find that the circumstances here are very similar to those considered by the Ontario Court of Appeal in C.F. The events addressed by the records related to the May 14, 2014 alleged assault are events alleged by the same complainant against the same accused during the same timeframe. The author of the document is the same officer that investigated the charges before the court. The introduction of the document will not introduce a sideshow of ancillary issues and will not unduly lengthen or complicate the proceedings. The complainant will not be unfairly surprised by the cross-examination as she was present for and participated in this hearing. [20] Accordingly, I find that the records sought to be introduced are an exception to the collateral fact rule and are admissible, subject to the Stage II analysis under s. 278.92(3). Stage II Analysis [21] Section 278.92(2) provides that a “record” relating to a complainant that is in the possession or control of the accused and which the accused intends to adduce cannot be admitted in evidence unless the judge determines that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The parties agree that the document is a “record” as defined by s. 278.1 of the Criminal Code. [22] To determine the issue of admissibility, the judge must take into account the factors listed in s. 278.92(3): Factors that judge shall consider (3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (a) the interests of justice, including the right of the accused to make a full answer and defence; (b) society’s interest in encouraging the reporting of sexual assault offences; (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; (d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (e) the need to remove from the fact-finding process any discriminatory belief or bias; (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (g) the potential prejudice to the complainant’s personal dignity and right of privacy; (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (i) any other factor that the judge, provincial court judge or justice considers relevant. [23] I have read and considered the reasons and directions of the Supreme Court of Canada in R. v. J.J., 2022 SCC 28, the leading case on this provision. [24] I will address each of the factors: (a) the interests of justice, including the right of the accused to make a full answer and defence (d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case The Crown concedes that as the Applicant submits that the records are relevant to the complainant’s credibility and reliability, they are thereby relevant to making full answer and defence. The Crown makes the point that the dated nature of the records and age of the complainant “pull against” admissibility on the basis of interests of justice, but the Crown concedes, and I find, that overall this factor weighs in favour of admissibility on the facts of this case. (b) society’s interest in encouraging the reporting of sexual assault offences. (c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences (g) the potential prejudice to the complainant’s personal dignity and right of privacy. It is unclear what, if any applicability these factors have in this case. The documents in issue do not trigger the same societal interests as would counselling records. As to (g), although the statement was allegedly made to the police when the complainant was 10 years old and as such should attract a relatively high level of privacy, all of the allegations relate to when the complainant was a young age making the admission of the document highly probative to the Applicant’s right to full answer and defence. (e) the need to remove from the fact-finding process any discriminatory belief or bias (f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury These factors are not in issue in this application. (h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law This factor weighs equally for both parties. Both are deserving of the full protection and benefit of the law. [25] The final question for the court is whether, considering all of the above, permitting the Applicant to use the “records” in question in the manner proposed “has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”. As the reliability and credibility of the complainant are significant issues in the case against the Applicant, I find that this balance favours the admission of the “records”. [26] In conclusion, I find that the document in issue is admissible under s. 278.92(2). Norton, J.