



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486(1)          Any proceedings against an accused
    shall be held in open court, but the presiding judge or justice may, on
    application of the prosecutor or a witness or own his or her own motion, order
    the exclusion of all or any members of the public from the court room for all
    or part of the proceedings, or order that the witness testify behind a screen
    or other device that would allow the witness not to be seen by members of the
    public, if the judge or justice is of the opinion that such an order is in the
    interest of public morals, the maintenance of order or the proper
    administration of justice or is necessary to prevent injury to international
    relations or national defence or national security.

(1.1) The application may be made, during the
    proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order is in the
    interest of the proper administration of judge, the judge or justice shall
    consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of witnesses
    under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and
    candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their
    security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants
    who are involved in the proceedings;

(f) whether effective alternatives to the making
    of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the
    proposed order; and

(h) any other factor that the judge or justice
    considers relevant.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
    accused applies for an order under subsection (1), the judge or justice shall,
    if no such order is made, state, by reference to the circumstances of the case,
    the reason for not making an order.

(4) No
    adverse inference may be drawn from the fact that an order is, or is not, made
    under this section.

R.S., 1985, c. C-46, s. 486;
    R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c.
    23 (4
th
Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45,
    s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41,
    ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s.
    4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.B., 2019 ONCA 13

DATE: 20190111

DOCKET: C62057

MacPherson, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.B.

Appellant

Peter Thorning and Deepa Negandhi, for the appellant

Justin Reid, for the respondent

Heard: January 7, 2019

On appeal from the conviction entered by Justice Brian P.
    OMarra of the Superior Court of Justice, sitting with a jury, on November 14,
    2014, and from the sentence imposed on July 29, 2016, with reasons for sentence
    reported at 2016 ONSC 4350.

REASONS FOR DECISION

[1]

P.B. was convicted by a jury of sexual interference and sexual assault of
    his daughter, A.B., relating to one incident of sexual touching occurring
    between June 1, 1997 and August 31, 1998. A.B. was approximately 11 years old
    at the time. P.B. was also convicted of sexual assault and incest relating to numerous
    incidents involving A.B. between August 1, 2004 and September 12, 2012,
    including frequent sexual intercourse with A.B.

[2]

P.B. appeals all of his convictions, alleging that the Crown breached
    its disclosure obligations relating to therapeutic records arising from
    counselling received by A.B. in New York between January and March 2003. He
    also appeals his sentence, based solely on his double jeopardy in having been
    convicted of sexual interference and sexual assault relating to the same 1997/1998
    incident.

[3]

At the conclusion of oral argument we dismissed the conviction appeal,
    and allowed the sentencing appeal on consent, with reasons to follow. These are
    our reasons. We will address the conviction appeal first.

[4]

P.B. claims that the Crown breached its disclosure obligations relating
    to A.B.s therapeutic records that were in its possession. Those records were not
    produced to P.B. until the second day of trial after A.B. waived her privacy
    interest.

[5]

P.B. does not contend that the Crown should have produced those records
    sooner. During oral argument he agreed that because of the combined effect of
Criminal
    Code
, R.S.C. 1985, c. C-46, ss. 278.2(2) and 278.3(1), the Crown was not
    authorized to do so until A.B.s waiver, absent a third party records
    disclosure order.
He argues, instead, that a disclosure
    breach occurred because, prior to A.B.s waiver, the Crown had already decided
    it would use the records as part of its case, yet failed in its duty under
Criminal
    Code
, s. 278.2(3) to notify P.B. of the likely relevance of the records as
    required by
R. v. Quesnelle
, 2014 SCC 46, [2014] 2 S.C.R. 390, at
    para. 16.

[6]

In our view, P.B. has not shown that the Crown decided it would use the
    records as part of its case before those records were disclosed. Instead, the transcripts
    suggest that it was after A.B. waived her privacy interest in the records and
    those records were copied and viewed by the parties that the potential use of
    the records at trial by the Crown first arose. Simply put, P.B. has not established
    the lynch-pin factual premise of his disclosure breach claim.

[7]

Even if P.B. had established that the Crown failed to comply with s.
    278.2(3), we would not have allowed the conviction appeal. To succeed in a
    non-disclosure appeal an appellant must do more than show that the Crown
    breached its disclosure obligation. The appellant must also show that his right
    to make full answer and defence has been impaired as a result of the
    non-disclosure, by showing that there is a reasonable possibility that the
    non-disclosure affected the outcome at trial or the overall fairness of the
    trial process:
R. v. Dixon
, [1998]
    1 S.C.R. 244
, at paras. 32-34; and
R. v. Yumnu
, 2012 SCC 73, [2012]
    3 S.C.R. 777, at para. 74. P.B. has not done so.

[8]

First, the therapeutic records the Crown possessed were of limited use
    to P.B. because they support the allegations that P.B. sexually abused A.B. He
    argues, however, that had the Crown provided s. 278.2(3) notice relating to
    those records he would ultimately have discovered two pages from A.B.s
    therapeutic records dated January 15, 2003 that the Crown did not have, and
    which contain entries suggesting that A.B. was never sexually assaulted. We are
    not persuaded that disclosure by the Crown that it possessed therapeutic
    records relating to A.B. that supported the Crowns case would have led P.B. to
    secure the missing January 15, 2003 pages. In our view, P.B.s theory of
    prejudice is simply too attenuated and speculative to support a finding that
    his right to full answer and defence has been compromised.

[9]

Second, prior to the criminal trial, P.B.s civil counsel obtained the
    therapeutic records, including the missing pages, through the civil discovery
    process arising from a lawsuit between P.B. and A.B. The fact that P.B. and his
    criminal counsel appear not to have appreciated that his civil counsel had
    these records does not change the fact that P.B.s agent, and therefore P.B.,
    had possession of the records. Nothing in the implied undertaking rule
    prevented P.B. from using those records to impeach A.B.s testimony: see
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, r. 30.1.01(6). In effect, P.B.
    is seeking to obtain a remedy on appeal based on the failure of the Crown to
    disclose records P.B.s civil counsel already held on his behalf. This is not a
    solid foundation for claiming that non-disclosure by the Crown impaired the
    verdict and the fairness of the trial.

[10]

Finally,
    P.B. knew during the preliminary inquiry, if not before, that the investigating
    police force had the therapeutic records, and P.B. was permitted to ask
    extensive questions at the preliminary inquiry about the records in order to
    facilitate a third party records application. Yet that application never came. In
    these circumstances, a failure by the Crown to alert P.B. to the relevance of
    the records would have been harmless. Even at the trial, after A.B. had been
    examined-in-chief, P.B. chose to proceed without the missing pages, rather than
    adjourn the trial. Thus, P.B. had the means to obtain the records held by the
    Crown but made a tactical choice not to pursue them before trial, and then,
    after receiving production of the therapeutic records held by the Crown, chose
    to proceed without the missing pages he now contends were crucial to his full
    answer and defence.

[11]

In
    all of the circumstances, we are not satisfied that, even if it occurred, non-disclosure
    compromised P.B.s right to make full answer and defence.

[12]

With
    respect to the sentencing appeal, the Crown concedes that P.B. should not have
    been convicted and sentenced for both sexual interference and sexual assault
    relating to a single act of sexual touching in 1997/1998. The Crown and P.B.
    agree that we should substitute a stay on the sexual assault conviction, in
    accordance with the principles outlined in
Kienapple v. R.
,
[1975] 1 S.C.R. 729
.

[13]

In
    terms of the sentence itself, the parties agree that there is no basis for
    interfering with the trial judges overarching objective of imposing an eight
    year global sentence, minus six months credit for stringent bail conditions. Therefore,
    P.B. does not ask us to reduce his sentence by the 12 months that the trial
    judge had imposed consecutively on the 1997/1998 sexual assault count. The
    parties agree that a proper outcome is to leave the overall sentence unaffected
    by the
Kienapple

error by adding four months to each of the three
    remaining convictions.

[14]

We
    therefore dismiss the conviction appeal.

[15]

We
    allow the sentencing appeal and set aside the conviction on Count 3, the
    1997/1998 sexual assault charge. We substitute a stay.

[16]

The
    sentence on Count 2 is varied to 1 year and 4 months. The sentence on Count 4
    is varied to 2 years and 4 months consecutive. On Count 5, the sentence is
    varied to 4 years and 4 months consecutive, minus 6 months credit for
    stringent bail conditions.

J.C. MacPherson J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


