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:

Section 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 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.

Section 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.

The order which has been made does not relate to Caitlin Coleman, who is a complainant. It relates to another complainant.

Court Information

Ontario Court of Justice

Date: 2019-04-15

Court File No.: Ottawa 18-RD19579

Between:

Her Majesty the Queen

— AND —

Joshua Ainslie Boyle

Before: Justice Peter K. Doody

Reasons on Objection: Whether the complainant can cross-examine the defendant on a s. 276 hearing

Heard: April 15, 2019

Reasons for Order Released: April 15, 2019

Counsel

Jason Neubauer & Meaghan Cunningham — counsel for the Crown

Lawrence Greenspon, Eric Granger & Ninetta Caparelli — counsel for the Accused

Ian Carter — counsel for the Complainant

Decision

DOODY, J. (orally):

[1] Good afternoon. The defendant has brought an application for determination of whether evidence of other sexual activity of the complainant is admissible under s. 276(2). He has sworn an affidavit in support of that application. The complainant has a right under s. 278.94(2) and s. 278.94(3) to appear and make submissions, and be represented by counsel at the hearing of that application. Her counsel wishes to cross-examine the defendant on his affidavit. The defendant submits that cross-examination by the complainant's counsel is not permitted. This is my ruling.

[2] We are now in the 12th day of trial. The cross-examination of the complainant cannot continue until this application is determined. I am delivering this decision after a brief recess because this trial needs to proceed. I apologize for the brief nature of my analysis.

[3] The issue is one of statutory interpretation: What is meant by s. 278.94(2), which gives the complainant the right to "appear and make submissions"? As I have noted in two prior rulings in this case, the governing principles have been set out in R. v. Stipo, 2019 ONCA 3 at paragraphs 175 to 179. Those principles require that I interpret the statutory language by commencing with the "fundamental question of what Parliament intended" considering the language of the provision, its context and purpose. In my reasons for Trial Management Order No. 2 of January 13, 2019, dealing with the right of the complainant to be served with the application record in s. 276 applications, I wrote at paragraphs 29 to 33:

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 the prejudice to the proper administration of justice".

The judge is directed by s. 276(3) to consider seven 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.

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.

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.

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.

[4] In my decision of April 11, 2019, dealing with the issue of whether an order under s. 278.94(2) was required to admit into evidence information in a psychological record of the complainant's, I concluded at paragraph 26 that the scheme of the new provisions, the object of the new provisions, and the intention of Parliament in enacting them was to safeguard the privacy interests of victims while upholding an accused's right to a fair trial. The words of the enactment must be "read in their entire context and in their grammatical and ordinary sense harmoniously" with that scheme, object, and intention. I adopt my analysis in those two decisions for the purpose of this ruling.

[5] The issue is whether the words "appear and make submissions" include the right to cross-examine the defendant on the affidavit he swore in the s. 276(2) application. When read in that context, I conclude that they do. I realize that I said in paragraph 40 of my January 13th decision that at first blush the language did not seem to give complainants the right to lead evidence or cross-examine. I have now read the cases provided by Mr. Carter and considered the issue fully.

[6] I start with the proposition that the right to appear and make submissions must be meaningful. Parliament has decided that the complainant's perspective is important to the issue in this application and the court should take that perspective into account. Her perspective may require evidence to flush out her submissions. Submissions made without evidence are often of limited use. And Parliament wanted to ensure her rights to privacy were protected, and that may require that certain things be brought out by cross-examination.

[7] Similar language in other statutes has been held to give rise to rights to call evidence and cross-examine. In American Airlines, Inc. v. Canada (Competition Tribunal), the Federal Court of Appeal was considering s. 9(3) which provided that:

Section 9(3) of the Competition Tribunal Act authorizes any person, with leave of the tribunal, to 'intervene ... [and] make representations ...'.

[8] Strayer, J. sitting as a member of the tribunal, held that this did not include the right to call evidence or cross-examine. The Court of Appeal reversed, holding that the word "representations" included relying on facts as well as argument. More importantly, as Justice Iacobucci, as he then was, held, the context and nature of the proceedings under the Competition Act supported a broad interpretation that allowed interveners to inform the Tribunal of the ways in which matters complained of impacted on them. The court held that that permitted interveners to play a wider role than simply presenting an argument, and that that interpretation was a fairer way of treating interveners. Justice Iacobucci held, on behalf of the Court of Appeal, that the Tribunal had discretion using the language I have quoted to allow interveners to call evidence and cross-examine.

[9] In the case of Ammazzini v. Anglo American PLC, 2016 SKCA 164, the Saskatchewan Court of Appeal held that on a class certification motion a representative plaintiff in a competing class action could file evidence. The statute gave him the right to "make submissions" at the certification hearing. At paragraphs 46 to 48, the Court of Appeal held that applying the principles in the Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 case, keeping in mind the purpose of the legislation, and I am quoting from paragraph 48 of the decision:

Again, the answer seems quite straightforward. A purposeful and liberal view of the word 'submissions' bearing in mind the Legislature's evident purpose in amending the Act, leads inevitably to the conclusion that s. 5.1 comprehends an entitlement to file evidence.

[10] The only limitation imposed by the Court of Appeal was that the evidence to be filed must relate to the purpose for which he was allowed to appear, that is whether it would be preferable to allow claims to be determined by the other class action rather than the one initiated in Saskatchewan.

[11] More importantly, the same conclusion has been reached by cases considering the same language in s. 278.4(2) dealing with s. 278 applications. In R. v. Monkman, 2007 MBQB 6, Schulman, J. of the Manitoba Court of Queen's Bench held that the right of the complainant to appear and make submissions included the right to cross-examine. In fact, he held that the Crown had only a limited right to do so. I would not agree with that.

[12] In R. v. N.W.P., 2000 NWTSC 22, Vertes, J. of the Northwest Territories Supreme Court held that the right of the complainant and the record-holder under s. 278 to appear and make submissions implied that if they wanted to rely on facts they had to adduce them in evidence. A right to adduce evidence goes hand in hand with the right to cross-examine.

[13] The defendant submits that the complainant waived her privacy rights when she asked that the publication ban under s. 486.4 be lifted in respect of her. I do not accept that submission; that request did not include a request that her privacy rights be ignored when admissibility is determined.

[14] The defendant submits that it is fundamentally unfair that he be subject to double cross-examination. I do not accept this. Accused persons who choose to testify are often cross-examined by more than one person. Examples are multiple accused cases and prosecution by both the Federal and the Provincial Crown counsel on a single information or indictment. Parliament decided that the complainant's interests are different than the Crown's and she should be heard and her interests considered. That does not mean that the cross-examination of the Crown and the complainant can be duplicative. I will not allow that. Nor will I allow them to stray beyond what is at issue on this application as the Supreme Court of Canada warned about in R. v. Darrach, [2000] 2 SCR 443 at paragraph 64.

[15] Defence counsel submitted that it was fundamentally unfair to allow complainant's counsel to cross-examine on the basis of information he has and the Crown does not because such information need not be disclosed. That submission did give me pause, but I have concluded that this is consistent with Parliament's intention of allowing complainants to be heard. That intention must rest on a determination that complainants have different information and different perspectives from the Crown on the issues at play in a s. 276 hearing. And when the defendant makes the decision to testify, he exposes himself to cross-examination.

[16] The defendant's fair trial rights are of fundamental importance, but they are not the only interest to consider. As the Supreme Court noted in R. v. Darrach at paragraph 70:

The fair trial protected by s. 11(d) is one that does justice to all the parties.

[17] Parliament has decided that complainants have the right to appear and make submissions. In my view, making that right meaningful means that the complainants have a right to cross-examine on issues relevant to the application.

Released: April 15, 2019

Signed: Justice Peter K. Doody