My husband, James Steffens was convicted in 2001 to five years in Bowden Institution, Alberta. We are currently trying to appeal his case and were turned down by legal aid. He is going through the courts to get a court appointed lawyer. Important information that could have proved his innocence was not brought up in trial.
James was accused of sexually assaulting his daughter over a five year period. There was no medical evidence to support her allegation. In the judge's charge to the jury he stated that all the evidence given during the trial was circumstantial. Counsellors who have dealt with her and with us as a family were not brought to court to testify. The lawyer we had didn't ask for the O'Connor application during the trial. Now we are trying to get a lawyer to file a new evidence motion a week before March 14th. The appeals' division of the crown prosecutor's office entitled a lawyer $4000.00 to file a new evidence motion. I am currently trying to find a lawyer to do this for us.--Juanita Steffens
The picture of James and Juanita above was taken at Bowden.
The codification came about as a result of the Supreme Court of Canada decision in R v. O'Connor (1995) 44 C.R. (4th) 1. The codification does not strictly follow the process set out in O'Connor.
"Record" is broadly defined in s. 278(1).
Section 278.2 prohibits production of such records except in accordance with the provisions. The procedures may be waived by the complainant or a witness to whom the record relates. (s. 278.2(2). The prosecutor must disclose to the accused the fact that the prosecutor is in possession of the record, but it is prohibited from disclosing its contents.
The Application must be made to the Trial Judge (not available at a Preliminary Hearing) - s. 278.3(1(2).
The Application must be in writing and must set out particulars which identify the record, who possesses it, and the grounds upon which the accused relies to establish that the record is likely relevant or relates to the competence of a witness to testify.
The accused is required to give seven days notice of the Application to the prosecutor, the person who has the record, the complainant or witness, or any other person to whom the record relates. This time period may be shortened by the Judge. A subpoena must be issued by a Judge to a person who is in possession of the record. A new subpoena form setting out what should be done with records is created. Section 278.3(5). The Court may order the Application to be served upon anyone to whom it relates.
Section 278.3(4) sets out what are specified as insufficient grounds to establish likely relevance under s. 278.3(3).
(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify:
(a) that the record exists:
(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving;
(c) that the record relates to the incident that is the subject-matter of the proceedings;
(d) that the record may disclose a prior inconsistent statement or the complainant or witness;
(e) that the record may relate to the credibility of the complainant or witness;
(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling;
(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused;
(h) that the record relates to the sexual activity of the complainant with any person, including the accused;
(i) that the record relates to the presence or absence of a recent complaint;
(j) that the record relates to the complainant's sexual reputation; or
(k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused.
THE STAGE ONE HEARING
Section 278.4(1) requires the Judge to hold an in camera hearing to determine whether or not the record should be produced for review by the Judge.
Those who possess the records, the complainant or witness have the right to make submissions at the hearing but may not be compelled to testify. s. 278.4(2).
ORDER FOR PRODUCTION OF THE RECORDS
The Judge may order the record produced following a hearing if satisfied that proper procedure relating to the Application was followed, the accused has established likely relevance to an issue at trial, and production is necessary in the interests of justice.
In making its determination, the Court must consider the factors set out in s. 278.5(2),
(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the Judge shall consider the salutary and deleterious effects of the determination on the accused's right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the Judge shall take the following factors into account:
(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.
REVIEW OF THE RECORD
Once the Judge has ordered the record produced, the Judge must review the record to determine whether the Record or part of the Record should be produced to the accused. (s. 278.6(1) The Judge may hold an in camera hearing if the Judge feels that would assist in arriving at a determination. (s. 278.6(2).
PRODUCTION OF THE RECORD - s. 278.7
The Judge may order production of the record or an edited part of the record to the accused if the Judge finds the record to be likely relevant to a trial issue or to competence to testify and its production is necessary in the public interest - s. 278.7(1).
In deciding whether or not to order production of the record for the accused, the Judge must consider "the salutory 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 and, in particular, shall take into account the factors set out in s. 278.5(2)(a) to (h)".
Various types of restrictions may be placed on the record by the Judge under (3) to (5). If the Judge refuses to order production or release of the record, the Judge just order the record to be sealed and kept until the end of the appeal process.
Section 278.8 requires that a Judge must provide reasons for ordering or refusing to order production of a record.
Section 278.9(2) makes it a summary conviction offence to publish the contents of an Application, any evidence, etc. at a hearing or a Judges determination of a Judge, unless the Judge directs that the determination may be published. (1).
All determinations, orders, or refusal to make orders are appealable and are deemed to be questions of law.