R. v. D.G.H., (2015) 323 Man.R.(2d) 209 (CA)

JudgeMonnin, MacInnes and Burnett, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateNovember 04, 2015
JurisdictionManitoba
Citations(2015), 323 Man.R.(2d) 209 (CA);2015 MBCA 114

R. v. D.G.H. (2015), 323 Man.R.(2d) 209 (CA);

      657 W.A.C. 209

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. DE.024

Her Majesty The Queen (appellant) v. D.G.H. (accused/respondent)

(AR 15-30-08314; 2015 MBCA 114)

Indexed As: R. v. D.G.H.

Manitoba Court of Appeal

Monnin, MacInnes and Burnett, JJ.A.

November 4, 2015.

Summary:

The accused was charged with sexual assault of, and sexual interference with, the complainant on two occasions between 2004 (when she was three years old) and 2007 (when she was seven years old). He applied under s. 278.3 of the Criminal Code for the production of records in the possession of the Métis Child, Family and Community Services (the Agency) and the Child and Family All Nations Coordinated Response Network relating to investigations done by the Agency into allegations made against him by the complainant and any other allegations of abuse made by the complainant.

The trial judge ordered the production of any documents of the complainant related to the incidents that were the subject matter of the charges, for review under s. 278.5(1) of the Code. The Crown refused to comply with the order and requested a stay. The judge denied the request. The judge also denied the Crown's request for a reconsideration of the order. The Crown decided to cause the proceedings to be halted in a manner which it considered would allow for review of the order. The Crown requested that the accused be arraigned prior to the scheduled trial date. The trial judge granted the request and the accused pleaded not guilty to all charges. The Crown called no evidence.

The trial judge found the accused not guilty on all charges. The Crown appealed, asserting that the judge erred in ordering production of the records in question pursuant to s. 278.5. Although the Code provided no right of appeal from an interim or interlocutory ruling, the Crown asserted that this was not such an appeal. Rather, the Crown asserted, it was an appeal under s. 676(1)(a) from a verdict of acquittal.

The Manitoba Court of Appeal concluded that it had jurisdiction to hear the appeal, allowed the appeal, set aside the verdicts of acquittal and ordered a new trial.

Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by a restriction on publication (Criminal Code, s. 486.4) and Maritime Law Book's editorial policy.

Criminal Law - Topic 691

Sexual offences - Evidence - Production of complainant's records (incl. medical and counselling) - An accused charged with sexual offences obtained an order under s. 278.3 of the Criminal Code requiring the Métis Child, Family and Community Services and the Child and Family All Nations Coordinated Response Network to produce any documents of the complainant related to the incidents that were the subject matter of the charges, for review under s. 278.5(1) of the Code - The Crown refused to comply with the order and unsuccessfully sought a stay - The judge also denied the Crown's request for a reconsideration of the order - The Crown decided to cause the proceedings to be halted in a manner which would allow for review of the order - The Crown requested that the accused be arraigned prior to the scheduled trial date - The judge granted the request and the accused pleaded not guilty - The Crown called no evidence - The judge found the accused not guilty - The Crown appealed, asserting that the judge erred in ordering production under s. 278.5 - Although the Code provided no right of appeal from an interim or interlocutory ruling, the Crown asserted that this was not such an appeal - Rather, the Crown asserted, it was an appeal under s. 676(1)(a) from a verdict of acquittal - The Crown asserted that premature termination of the proceedings was necessary to prevent a violation of the complainant's privacy interests and rendering any appeal nugatory - The Manitoba Court of Appeal agreed with the Crown's position and concluded that it had jurisdiction to hear the appeal - See paragraphs 13 to 20.

Criminal Law - Topic 691

Sexual offences - Evidence - Production of complainant's records (incl. medical and counselling) - An accused charged with sexual offences obtained an order under s. 278.3 of the Criminal Code requiring the Métis Child, Family and Community Services and the Child and Family All Nations Coordinated Response Network to produce any documents of the complainant related to the incidents that were the subject matter of the charges, for review under s. 278.5(1) of the Code - The Crown refused to comply with the order and unsuccessfully sought a stay - The judge also denied the Crown's request for a reconsideration of the order - The Crown requested that the accused be arraigned prior to the scheduled trial date - The judge granted the request and the accused pleaded not guilty - The Crown called no evidence - The judge found the accused not guilty - The Crown appealed, asserting that the judge erred in ordering production under s. 278.5 - The Manitoba Court of Appeal allowed the appeal where the trial judge failed to turn his mind to, and/or consider whether the production of the records was necessary in the interest of justice - See paragraphs 13 to 36.

Criminal Law - Topic 691

Sexual offences - Evidence - Production of complainant's records (incl. medical and counselling) - The Manitoba Court of Appeal stated that "...  Section 278.2(1) [of the Criminal Code] clearly provides that 'no record relating to a complainant or a witness shall be produced to an accused in any proceedings' in respect of the enunciated offences set forth in subsection (a) except in accordance with sections 278.3 to 278.91. ...  Section 278.3 provides for the making of the application for production. The provisions are strict. Section 278.3(4) makes clear that certain assertions are not sufficient on their own to establish the 'likely relevant' requirement under either section 278.5(1) (production to the judge) or section 278.7(1) (production to the accused). For example, the fact that a record exists is not, on its own, sufficient to meet the 'likely relevant' standard. ... In addition, for the purpose of determining whether to order production to him or her, section 278.5(2) gives guidance to the judge when considering the salutary and deleterious effects of the determination on the accused's right to make full answer and defence and on the right to privacy and equality of the complainant or witness and any other person to whom the record relates by setting forth factors in subsections (a) to (h) of section 278.5(2), which the judge must take into account in his or her determination. The judge is not required to engage in conclusive evaluation of each of those factors, but is required to take them into account as relevant in deciding whether the production of the record is necessary in the interests of justice. ...  Lastly, it must be remembered that if the judge concludes that the records are likely relevant and, if after considering the various factors enunciated in section 278.5(2), he/she is left uncertain about whether its production is necessary to make full answer and defence, the judge should rule in favour of inspecting the document ... Those factors enunciated in subsections 278.5(2)(a) to (h) must also be taken into account when considering and determining under section 278.7(1) whether the production of the record to the accused is necessary in the interests of justice." - See paragraphs 32 to 36.

Criminal Law - Topic 4825

Appeals - Indictable offences - Right of appeal - From an interlocutory decision - [See first Criminal Law - Topic 691 ].

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - [See first Criminal Law - Topic 691 ].

Cases Noticed:

R. v. G.P.J. (2001), 153 Man.R.(2d) 191; 238 W.A.C. 191; 2001 MBCA 18, refd to. [para. 13].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 21].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 22].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 278.5(1) [para. 26].

Counsel:

M.A. Jules and R.N. Malaviya, for the appellant;

A.L. Sansregret, for the respondent;

A. Thiessen and T.L. Grant, for the intervenor, Métis Child, Family and Community Services;

A.E.M. Fenske, for the intervenor complainant.

This appeal was heard on November 4, 2015, by Monnin, MacInnes and Burnett, JJ.A., of the Manitoba Court of Appeal. MacInnes, J.A., delivered the following decision for the court on the same date.

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2 practice notes
  • R v TPR,
    • Canada
    • Court of Appeal (Manitoba)
    • January 31, 2022
    ...SCC 3 at para 31).  Accordingly, the provisions are “strict” for a successful production application (R v Hanslip, 2015 MBCA 114 at [4]                    Here, there was no evi......
  • R v Burns,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 13, 2022
    ...The  “competence of a witness to testify” includes the witness’s credibility (R v Hanslip, 2015 MBCA 114 at para 23; O'Connor at para 22). [15]        As the Manitoba Court of Appeal noted in Hanslip (at para 34): I......
2 cases
  • R v TPR,
    • Canada
    • Court of Appeal (Manitoba)
    • January 31, 2022
    ...SCC 3 at para 31).  Accordingly, the provisions are “strict” for a successful production application (R v Hanslip, 2015 MBCA 114 at [4]                    Here, there was no evi......
  • R v Burns,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • April 13, 2022
    ...The  “competence of a witness to testify” includes the witness’s credibility (R v Hanslip, 2015 MBCA 114 at para 23; O'Connor at para 22). [15]        As the Manitoba Court of Appeal noted in Hanslip (at para 34): I......

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