WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-01-13

Court File No.: Ottawa File 18-RD19579

Between:

Her Majesty the Queen

— and —

Joshua Ainslie Boyle

Reasons for Trial Management Order Number 2

(Provision of s. 276 application record to complainant)

Before: Justice P. K. Doody

Heard on: January 11, 2019

Reasons for Order released on: January 13, 2019

Counsel:

• Jason Neubauer and Meaghan Cunningham — counsel for the Crown
• Lawrence Greenspon and Eric Granger — counsel for the accused
• Ian Carter — counsel for the complainant

Doody J.:

Overview

[1] Joshua Boyle is charged with 19 offences – 2 counts of sexual assault with a weapon, 9 counts of assault, one count of uttering a death threat, one count of criminal harassment, 3 counts of unlawful confinement, 1 count of causing the complainant to take a noxious thing, 1 count of assault with a weapon, and 1 count of public mischief.

[2] The defendant has brought an application under what was, at the time the application was filed, s. 276.1 for a hearing under s. 276.2 to determine whether evidence of the complainant's sexual activity other than the sexual activity that forms the subject matter of one of the two sexual assault counts (which I will call "other sexual activity"), is admissible under s. 276(2).

[3] The application record was given to Crown counsel and the court on November 15, 2018. It was scheduled to be heard, along with other pre-trial applications, sometime during 7 court days beginning January 10, 2019.

[4] On December 13, 2018, a number of amendments to the Criminal Code enacted by Bill C-51, now S.C. 2018 c. 29, came into force. That statute amended, among other things, the procedure to determine the admissibility of evidence of other sexual activity of the complainant.

[5] Sections 276.1 to 276.5 were repealed. They were replaced by what is now sections 278.93 to 278.97. The new provisions were essentially the same as the sections they replaced, with two exceptions – the procedure now must be followed before admitting into evidence any record that is in the possession or control of the accused relating to a complainant containing personal information for which there is a reasonable expectation of privacy (which I will call "personal records"), and the complainant is given rights with respect to the hearing to determine the admissibility into evidence of her personal records or other sexual activity.

[6] The latter provisions are found in s. 278.94 (2) and (3). They read:

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

[7] When the s. 276.1 application record was prepared and served, it was provided to Crown counsel and the court. That was in accordance with the provisions of s. 276.1(2) which were then in force. That subsection set out the required contents of the application, and stated "a copy of the application must be given to the prosecutor and to the clerk of the court." That provision has now been replaced with s. 278.93(2) which contains identical language.

[8] The issue is whether the defendant's application record, containing the evidence upon which he relies on in the application together with, as s. 278.93(2) requires, "detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial", must be provided to the complainant.

[9] The procedure to determine the admissibility of evidence under s. 276(2) proceeds in two stages. At the first stage, the trial judge must decide under s. 278.93(4) whether the application contains the required information and has been served on the prosecutor at least 7 days previously, and whether the evidence sought is capable of being admissible under s. 276(2). If all of those things have been satisfied, a hearing under s. 276.2 (now s. 278.94) is held.

[10] Both parties and the complainant agreed that there was no requirement to serve the application record on the complainant before the trial judge decides to hold a s. 278.94 hearing. The complainant is given no rights at the hearing held under s. 278.93 to determine whether to order a s. 278.94 hearing. Section 278.94(2) gives her rights to appear and make submissions at "the hearing" which, by s. 278.94(1), is the "hearing to determine whether evidence is admissible under subsection 276(2)".

[11] Crown counsel advised the court that she was satisfied that the requirements of s. 278.93(4) had been met. She consented to an order that the application proceed to a hearing under s. 278.94. I so order.

[12] The issue before me is whether the application record is required to be provided to the complainant before that hearing occurs.

[13] The defendant takes the position that he is not required to provide the complainant with the application record, but submits that Crown counsel has the discretion to determine whether and what to disclose and in what manner. I summarize his submissions:

(a) The principle of statutory interpretation expressio unius est exclusio alterius ("to express one thing is to exclude another") mandates a conclusion that service of the record on the complainant is not required. Subsection 278.3(5), which deals with applications by the accused for production of third party records relating to the complainant, requires that the application record be served on the prosecutor, the record holder, and the complainant. The complainant is given rights to "appear and make submissions" at the s. 278.4 hearing to determine whether such records should be produced, just as she is given those same rights at the s. 276.2 hearing (now a s. 278.94 hearing). Since Parliament expressly required the application record to be served on the complainant in an application for s. 278.2 hearings, its failure to do so for applications under s. 276.1 (now s. 278.93) for a hearing under s. 276.2 (now s. 278.94) suggests that it did not intend to require such service.

(b) The trial judge has the authority, using his or her trial management power, to require that the complainant be provided with the application record.

(c) If the complainant was to be provided with the complete application record, she would become aware of the "detailed particulars of the evidence that the accused seeks to adduce" together with the defendant's position as to "the relevance of that evidence to an issue at trial". Mandating such defence disclosure to a witness who is subject to an order excluding witnesses is highly unusual and would prejudice an accused person's right to make full answer and defence. A trial judge should not require such disclosure because "the laudable goal of expediency does not trump an accused's person's right to make full answer and defence".

(d) Crown counsel have, as they always have had for s. 276 applications, a discretion to seek input from a complainant in order to formulate a position on the section 276 application. Crown counsel may choose to make the complainant aware of some of the particulars of the application. Such disclosure may affect the manner in which the trial judge or jury views the credibility of the complainant's evidence because the complainant will have advance knowledge of the evidence of the defendant and what position he will take as to its meaning. Crown counsel is in the best position to decide what to disclose to the complainant, knowing that the complainant's version of events may become tainted by first having read the accused person's version of events.

(e) The principles of statutory interpretation, including the necessity to interpret a statute consistent with Charter values, and statements made by the Minister of Justice before the Senate Committee on Legal and Constitutional Affairs, lead to a conclusion that the complainant's right to "appear and make submissions" does not include the right to full disclosure of the entirety of the written and documentary evidence in support of the application, the detailed particulars of the evidence sought to be adduced, and the written position of the defendant as to the relevance of that evidence.

[14] I have concluded that the complainant must be provided with the defendant's application record. I reach that conclusion for the following reasons.

The principle of statutory interpretation known as "expressio unius est exclusio alterius" does not support the defendant's position

[15] This principle of interpretation is more easily understood, for those who do not understand Latin, by the English term of "implied exclusion", as expressed by Professor Ruth Sullivan in her text "Sullivan on the Construction of Statutes" (6th edn., 2014, LexisNexis). As Professor Sullivan writes at page 248, an implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have included that thing expressly. This expectation results in the conclusion that the failure to mention the thing becomes grounds for inferring that it was deliberately excluded.

[16] Professor Sullivan writes at page 248:

The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.

[17] The particular form of the implied exclusion argument relied on by the defendant is called by Professor Sullivan "failure to follow an established pattern". The defendant submits that because service of the application record for a s. 278.4 hearing for the production of third party records is expressly provided for in s. 278.3(5), and there is no such provision for an application to determine the admissibility of evidence of other sexual activity under s. 276(2), Parliament must have intended that the latter application records not be served on the complainant.

[18] One way in which the implied exclusion argument may be rebutted is by offering an alternative explanation of why Parliament expressly mentioned something in one section and excluded it in another. (Sullivan, p. 255) In my view, there is such an alternative explanation in this case.

[19] Both the procedure to determine whether to order production of third party records and the procedure to determine whether to admit evidence of other sexual activity under s. 276(2) proceed in two stages. But there are significant differences between the first stage in each of the proceedings. Those differences justify giving the complainant the record before the former but not the latter.

[20] The first stage of the third party record production procedure is a hearing to determine whether to order the production to the judge of the records in question, so that he or she can review them and decide whether to order that they be produced to the defendant. The complainant is given an express right to "appear and make submissions" at that hearing. Without the application record, which sets out the particulars of the records in issue and the grounds on which the defendant relies to establish their likely relevance, the complainant's ability to make useful submissions would be extremely limited.

[21] The first stage of the other sexual activity application procedure, however, is one in which the complainant has no role. She is only given a right to "appear and make submissions" at the second stage, after the judge has determined that the evidence sought is capable of being admissible under s. 276(2). No point would be served by requiring her to be served before that determination is made. In fact, doing so would mean that the defendant's evidence in support of the application, which is intended to be the same as the evidence led by him at trial, would be made known to the complainant for no reason if the trial judge decides against holding a s. 278.94 hearing. As the defendant has submitted, that may have consequences. There is no need to run the risk of such consequences at the first stage. In my view, the absence of a requirement to serve the complainant in s. 278.93(2), which requires that the application be given to the prosecutor and filed with the court, does not give rise to an inference that the complainant is not to be given the record if the judge orders that the application proceed to the second stage.

[22] To put it another way, Parliament's omission of an obligation to serve the complainant with the s. 276 record when it is served on the prosecutor – before the first stage hearing – was deliberate. Parliament did not intend that it be served on the complainant at that time. The "implied exclusion" of service of the record at that time was intentional. The maxim applies.

[23] The issue, however, is whether Parliament intended that the record not be served on the complainant after the trial judge decides to hold a s. 278.94 hearing, if he or she decides to do so. On this issue, the "force and legitimacy of the expectation of express reference" is significantly weaker. There is no clearly parallel provision with respect to the second stage of the third party records process, because in that process the complainant already has been served the application record before the trial judge proceeds to the second stage of examining the records, which may or may not include a hearing under s. 278.6. There is no clearly "established pattern" to which reference may be made in determining Parliament's intention.

[24] The principle of implied exclusion must be used with care. As Newcombe J. wrote for the Supreme Court of Canada in Turgeon v. Dominion Bank, [1930] S.C.R. 67:

The maxim, expressio unius est exclusio alterius, enunciates a principle which has its application in the construction of statutes and written instruments, and no doubt it has its uses when it aids to discover the intention; but, as has been said, while it is often a valuable servant, it is a dangerous master to follow. Much depends upon the context. One has to realize that a general rule of interpretation is not always in the mind of a draughtsman; that accidents occur; that there may be inadvertence; that sometimes unnecessary expressions are introduced, ex abundanti cautela, by way of least resistance, to satisfy an insistent interest, without any thought of limiting the general provision; and so the axiom is held not to be of universal application.

[25] Professor P.-A. Coté wrote, in his text The Interpretation of Legislation in Canada, 3d edition (Cowansville: Les Éditions Yvon Blais Inc., 1991) at page 337:

A contrario, especially in the form expressio unius est exclusio alterius, is widely used. But of all the interpretive arguments it is among those which must be used with the utmost caution. The courts have often declared it an unreliable tool, and … it is frequently rejected.

[26] I conclude that the principle of implied exclusion does not support an inference that Parliament intended that the complainant not be provided the application record after the trial judge decides to proceed to a s. 278.94 hearing, if he or she decides to do so. The issue must be determined using other principles of statutory interpretation.

Principles of statutory interpretation lead to the conclusion that the complainant must be given the application record

[27] The Ontario Court of Appeal recently summarized some essential principles of statutory interpretation. In R. v. Stipo, 2019 ONCA 3, Watt J. wrote at paragraphs 175 to 179:

175 It is well settled that statutory interpretation cannot be founded on the wording of the legislation alone. Instead, the approach is that advocated by Elmer Driedger in his Construction of Statutes (2nd ed, 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18.

176 This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu, at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.

177 It is also a well-established principle of statutory interpretation that the legislature, in this case Parliament, does not intend to produce absurd consequences. Absurdity occurs if the interpretation

i. leads to ridiculous or frivolous consequences;

ii. is extremely unreasonable or inequitable;

iii. is illogical or incoherent;

iv. is incompatible with other provisions or with the object of the enactment; or

v. defeats the purpose of the statute or renders some aspect of it pointless or futile.

See, Rizzo, at para. 27.

178 Other principles of statutory interpretation, such as the Charter values presumption, are only applied when the meaning of the provision is ambiguous. An ambiguity must be real in that the words of the provision, considered in their context, must be reasonably capable of more than one meaning. These meanings must be plausible, each equally in accord with the intentions of the statute: Bell ExpressVu, at paras. 28 and 29.

179 Courts are also required to interpret legislation harmoniously with the constitutional norms enshrined in the Charter. For Charter values are always relevant to the interpretation of a disputed provision of the Criminal Code: R. v. Mabior, at para. 44; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 18-19.

[28] These principles require that I interpret the statutory language in s. 278.94(2) which gives to complainants the right to "appear and make submissions" at the s. 278.94 hearing, commencing with the "fundamental question of what Parliament intended", considering the language of the provision, its context, and its purpose.

[29] The section states that complainants have the right to appear and make submissions at the hearing. It must have been intended that those submissions be useful. The issue at the hearing is, as s. 276(2) states, whether the evidence the accused seeks to adduce is relevant, is not being adduced for the purpose of supporting one of the "twin myths" set out in s. 276(1), and has "significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice."

[30] The judge is directed by s. 276(3) to consider 7 specific issues. Those issues include the potential prejudice to the complainant's personal dignity and right of privacy, and the right of the complainant and of every individual to personal security and to full protection and benefit of the law.

[31] In my view, when Parliament granted the right to complainants to appear and make submissions at the hearing, it did so because it recognized that the complainant's rights and interests could be affected by the decision to be made by the judge. Allowing the complainant the right to appear and make submissions would both give a measure of procedural fairness to the complainant and assist the court by granting it access to submissions from the perspective of one of the persons directly affected by the order to be heard.

[32] The language of the section must be interpreted in a manner consistent with that purpose. To put it another way, the rights of appearance and making submissions must be meaningful. In order to be able to make meaningful submissions, the complainant must be able to learn what evidence is proposed to be admitted, the purported relevance of that evidence, and the evidence relied upon to support its admissibility. Without that information, the complainant would be unable to make meaningful submissions. To hold otherwise would be incompatible with the object of the enactment. It would, to a significant extent, defeat its purpose.

[33] The section gives the complainant the explicit right to appear at the hearing. During the hearing, the defendant will present his evidence (and perhaps be cross-examined) and make submissions about its relevance and admissibility. The complainant has the right to be privy to all of that. If she was allowed only to attend the hearing but not read the written record in advance, the right of appearance would mean she could see and hear the basis of the application, but not read it. In my view, that would be extremely unreasonable.

[34] Allowing the complainant to see the application record before the hearing does not offend the accused's Charter rights. Nor would interpreting the right to appear and make submissions so as to require knowledge of the written record be contrary to Charter values. The Supreme Court of Canada dealt with the issue of allowing the complainant to learn of the contents of the accused's affidavit filed in support of a s. 276 application in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443. At para. 55, Gonthier J. wrote:

Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. For the reasons given above, the accused is not forced to embark upon the process under s. 276 at all. As the trial judge found in the case at bar, if the defence is going to raise the complainant's prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush. The Crown as well as the Court must get the detailed affidavit one week before the voir dire, according to s. 276.1(4)(b), in part to allow the Crown to consult with the complainant. The Crown can oppose the admission of evidence of sexual activity if it does not meet the criteria in s. 276. Neither the accused's s. 11(c) right not to be compelled to testify against himself nor his s. 11(d) right to be presumed innocent are violated by the affidavit requirement.

[35] Nor is disclosure of the defence position in pre-trial applications highly unusual. It is routine for the defence to set out its position, and provide supporting evidence if appropriate, in pre-trial Charter applications. Applications for production of third party records under s. 278.2 require an evidentiary foundation and an explanation of the grounds upon which the defendant relies for his submission of likely relevance. Those records are served on the complainant as well as the Crown.

[36] Defence counsel submits that the remarks of the Honourable Jody Wilson-Raybould, the Minister of Justice, to the Senate Standing Committee on Legal and Constitutional Affairs on June 20, 2018, when the committee was considering Bill C-51, support an interpretation of the section which would preclude the complainant being entitled to see the application record in its entirety. The following exchange took place between Senator Batters and the minister:

Senator Batters: Our previous Conservative government struck a careful balance when we drafted the Victims' Bill of Rights, yet changes you are making to the obligations of Crown counsel under the Victims' Bill of Rights could well upset that delicate balance. The Canadian Bar Association alerts us that some of the changes you are making in this bill could end up prejudicing cases from the victim's perspective. Specifically what I am speaking about here is giving standing to complainants to make decisions about how the prosecution should proceed and the right to make contrary submissions in a hearing before the court. How do you respond to those significant concerns voiced by Crown prosecutors that the changes you are making could end up hurting the people you are trying to help?

Minister Wilson-Raybould: I certainly haven't seen the comments you are referring to, but we are seeking to ensure we provide a right to counsel for individuals that have been the victims of sexual assault. This isn't a right to standing. This is a right to provide them with necessary assistance. Again, we have been working diligently to have a balanced approach to respecting the rights of the accused and to ensuring we are protecting, as much as we can, the integrity and the dignity of victims of sexual assault.

Senator Batters: The specific submission made was that giving standing to complainants to make decisions about how the prosecution should proceed runs contrary to the constitutionally entrenched independence of the Attorney General. It is saying that is one thing to make a victim impact statement on sentencing, but that allowing complainants to decide how parts of the prosecution will proceed is quite different.

[37] Defence counsel submits that this exchange shows that the government did not intend to give complainants the right to standing at s. 278.94 hearings.

[38] The legislative history of legislation can be considered by courts when interpreting legislation in order to determine the background and purpose of legislation, although it is of limited weight. (Re Canada 3000 Inc., 2006 SCC 24, [2006] 1 S.C.R. 865 at para. 57)

[39] Even when considered with that caveat in mind, the minister's comments are, in my view, of little assistance in determining the issue before me. The senator's question was unclear. The minister herself said that she was unaware of the concerns which gave rise to the senator's question. It does not appear that either the senator or the minister were referring to the rights of complainants to appear and make submissions at s. 278.94 hearings. That section does not give complainants the right to "make decisions about how the prosecution should proceed". The minister appeared to be talking about the entire process when she stated that complainants did not have standing. And there is no doubt that complainants do not have standing in the entire process of a criminal prosecution of this nature.

[40] Nor is it apparent that complainants have full standing in the s. 278.94 hearings. The section gives them the right to appear, make submissions and, under s. 278.94(3), to be represented by counsel. While this was not argued before me and I have not decided this issue, it does not seem, at first blush, to give complainants the right to lead evidence or to cross-examine on evidence filed by the defendant or the Crown. But that is not the issue before me. What is at issue before me is whether the right to appear and make submissions includes the right to read the evidence and submissions of the defendant.

[41] Defence counsel suggests that it would be appropriate to allow Crown counsel to decide which portions of the application record complainants could see and which portions they could not, cognizant of the risk being run to the assessment of the complainant's credibility should it all be disclosed. In my view, this proposal misconstrues the nature of the rights being given by s. 278.94(2).

[42] The section in issue gives complainants a right to appear and make submissions. That right, to be meaningful, requires that they be able to see, hear, and read the basis of the application. The right is the complainant's. It is not a right which can be diminished or attenuated by any state actor, including the Crown. Prior to the enactment of the new section, the contents of the application could be shared with the complainant should Crown counsel choose to exercise their discretion to do so. The new section is different. What was previously a possibility is now a right.

Conclusion

[43] In my view, the complainant is entitled to see the application record of the defendant sufficiently in advance of the hearing to allow her to prepare and make meaningful submissions. I need not rule now on the manner in which that is to be accomplished. In this case, the complainant already has counsel. He can obtain the record from either Crown counsel or defence counsel.

[44] There is one unusual feature of this case. The application record was prepared before Bill C-51 became law. Defence counsel did not prepare it with the understanding that it would be shown to the complainant. Crown counsel suggested that, to be fair to the accused, he be given an opportunity to consider whether to withdraw the application record and submit a new record with different evidence. I agree. The parties will be before me on Tuesday, January 15, two days from now. I would like to hear from them as to the time required to give defence counsel a reasonable opportunity to prepare a new record, should they choose to do so, and for Crown counsel and complainant's counsel to be prepared to proceed with the hearing.

Released: January 13, 2019.

Signed: Justice P.K. Doody