Teen’s counselling records to stay sealed

Judge denies request from man accused in sex assault to access alleged victim’s file

An Edmonton judge dismissed an application Friday by the lawyer of a man accused of sexual assault who was seeking access to the counselling records of a teenager who is the alleged victim.

Court of Queen’s Bench Justice Douglas Mah ruled the arguments made by Domingo Tuquib Calimlim’s lawyer to access the records held by the Sexual Assault Centre of Edmonton and the University of Alberta Sexual Assault Centre were “purely speculative” and didn’t meet the test of “relevance.”

Calimlim, 38, is charged with one count of sexual assault and one count of sexual touching in connection to a November 2014 attack on a 16-year-old girl. The alleged assault happened at a fastfood restaurant where they both worked. Calimlim held a supervisory position at the restaurant.

Calimlim went to trial on the charges in December 2016, but a mistrial was declared after the complainant’s mother — in response to questions by Crown prosecutor Mark Huyser-Wierenga and defence counsel Walter Raponi — gave evidence that her daughter attended counselling following the alleged assault. The trial judge declared the mistrial after reconsidering his denial of Raponi’s request for an adjournment to make the application to access the counselling records.

The application was opposed by the Crown, as well as Legal Aid counsel the court ordered to represent the complainant, and by both centres that hold the counselling records.

There is a section of the Criminal Code that allows for disclosure of a sexual assault complainant’s counselling records if certain requirements are met.

Raponi argued that the Crown made the records relevant by introducing the issue through witness questions. Huyser-Wierenga responded that he wasn’t advancing the records, but was simply putting on record that the complainant had sought counselling.

Kent Teskey, counsel for the university and Sexual Assault Centre of Edmonton, argued that even the fact that counselling occurred should not be admissible because it could invite triers of fact to draw inferences about complainants who don’t seek counselling.

He described the situation as a “subtle road into myths and stereotypes” about sexual assault that should be stopped.

Mah said he took Teskey’s position “very seriously” but that he didn’t want to pre-empt any decisions on admissibility that may arise during the upcoming trial.

Janelle Boisvert, a psychologist from the Sexual Assault Centre of Edmonton, told the court that allowing any access to counselling records could destroy the trust between mental health professionals and clients, and may deter survivors of sexual violence in other cases from seeking help.

It’s “common” for defence lawyers to approach the Sexual Assault Centre of Edmonton seeking client records, executive director Mary Jane James said in an interview Friday. Usually, the lawyers “back off” when the centre pushes back — and James said the centre always fights not to release records — but occasionally a court will order it to hand over the records.

“I think releasing them can do so much damage to a person who has already experienced trauma at a level that just is not comprehensible for most of us,” James said.