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James Steffens
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.
What is an O'Connor
application?
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
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.
REASONS REQUIRED
Section 278.8 requires that
a Judge must provide reasons for ordering or refusing to order
production of a record.
PUBLICATION OFFENCE
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).
APPEAL
All determinations, orders,
or refusal to make orders are appealable and are deemed to be
questions of law. (Taken from the website
of Canadian Provincial Court Judges)
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
