Ontario Superior Court of Justice
Between
Her Majesty the Queen
Respondent
and
[REDACTED] [REDACTED] and [REDACTED]
Applicants
[REDACTED], for the Respondent, Her Majesty the Queen
[REDACTED] for the Applicant, [REDACTED]
[REDACTED] for the Applicant, [REDACTED]
Released: [REDACTED]
RULING RE CROSS-EXAMINATION OF WITNESS
Judge: [REDACTED]
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a) Four counts of assault and forcible entry in 2004, wherein charges were withdrawn;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 In the first instance no charges were laid and in the second, charges were withdrawn;
d) Failure to comply with bail conditions in 2006, wherein charges were withdrawn;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[4] In one instance no charges were ever laid and in several others, charges were withdrawn.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.
