WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code , in that an order has been made that any information that could identify the complainant or a witness shall not be published in any document or broadcast in any way, in proceeding respect of: (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155,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). 486.6 (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 File and Parties

NEWMARKET COURT FILE NO.: CR-17-07871-00 DATE: 20190715

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent – and – A.C. Applicant/defendant

Counsel: Deborah Calderwood and Phyllis Castiglione, for the Respondent/Provincial Crown Ian B. Kasper, for the Applicant/defendant David Butt and Jeremy Butt, for the complainant

HEARD: May 28 and 29, 2019

REASONS FOR DECISION ON CHARTER CHALLENGE TO SECTIONS 278.94(2) AND 278.94(3) OF THE CRIMINAL CODE

SUTHERLAND J.:

Introduction

[1] Sexual violence offences are unlike other criminal offence in the Criminal Code of Canada . These offences are predominantly perpetrated against women. These types of offences are particularly plagued by myths and stereotypes. This unfortunate reality was succinctly expressed by M.J. Moldaver J. in the Supreme Court of Canada’s decision of R. v. Barton, 2019 SCC 33:

1. We live in a time where myths, stereotypes and sexual violence against women-particularly Indigenous women and sex workers—are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating the consequences can be. Without a doubt, eliminating myths, stereotypes and sexual violence against women is one more pressing challenges we face as a society. While serious efforts being made by a range of actors to address and remedy these failings both within criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can—and must—do better. [1]

[2] In December 2018, Parliament made numerous amendments to the Criminal Code [2]. Several of those amendments deal with offences of sexual assault and in particular, the procedure concerning the admissibility of evidence of sexual activity of the complainant.

[3] The defendant has been charged with two counts of sexual assault. He has brought an application challenging the constitutionality of ss. 278.94(2) and 278.94(3) of the Criminal Code , as amended (the “offending subsections”). The application contends that the offending subsections offend the defendant’s sections 7 and 11 (d) rights, as enshrined in the Charter of Rights and Freedoms (“ Charter ”).

[4] The defendant requests that the court find the offending subsections unconstitutional and of no force and effect, in whole or in part.

[5] Both the Crown and the complainant (collectively referred to as the respondents) oppose the application and request that the application be dismissed.

The Amendments

[6] Prior to December 2018, sections 276.1 and 276.2 of the Criminal Code read as follows:

276.1 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 276.2 to determine whether evidence is admissible under section 276(2).

(2) An application referred to in subsection (1) must be made in writing and set out

(a) detailed particulars of the evidence that the accused seeks to adduce, and

(b) the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

(4) Where the judge, provincial court judge or justice is satisfied

(a) that the application was made in accordance with subsection (2),

(b) that a copy of the application was given to the prosecutor and to the clerk shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and

(c) that `the evidence sought to be adduce is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 276.2 to determine whether evidence is admissible under subsection 276(2).

276.2 (1) At a hearing to determine whether evidence is admissible under subsection 276(2), the jury and public shall be excluded.

(2) The complainant is not a compellable witness at the hearing.

(3) At the conclusions of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and

(a) Where not all the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

(b) The reasons must state the factors referred to in subsection 276(3) that affected the determination; and

(c) Where all or any party of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.

[7] The amendments on December 13, 2018 repealed ss. 276.1 , 276.2 , 276.3, 276.4 and 276.5 in their entirety. Sections 278.93 and 278.94 were enacted and read:

278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2),

(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court.

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and the evidence may allow in the interests of justice and that evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 26 (2) or 278.92(2).

278.94(1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

(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 their right to be represented by counsel.

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92 (2) and shall provide reasons for that determination, and

(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and

(c) If all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue a trial.

(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing. (emphasis added)

[8] The then Minister of Justice and Attorney General of Canada (the Minister), in explaining the amendments to the Standing Senate Committee on Legal and Constitutional Affairs, stated:

I am proud to say that this is the first time in over 20 years that any government has made significant updates to the Criminal Code provisions regarding sexual assault. Many of the proposed reforms seeks to codify what is already the state of the law following Supreme Court of Canada decisions. [3]

[9] In answering questions from Senator McIntyre, concerning the complainant’s ability to prepare for cross-examination at trial in advance, the Minister responded:

Again, in drafting the legislation we sought to ensure that we create balance in our legislation with respect to the rights of the accused while assuring that we look at the victims of sexual assault and provide them with the necessary respect in terms of evidence or correspondence that would be held in the hands of the accused. [4]

[10] Further, in responding to questions from Senator Batters on the specific concerns raised by the Canadian Bar Association Criminal Justice Section, on the extent of the involvement in the prosecutorial process of the victim, and giving the victim standing, the Minister explained that the amendments do not give victims standing:

I would respond in the same way in terms of ensuring balance. One of the intentions behind introducing to the sexual assault provisions is to recognize and understand that there are extraordinary number of victims of sexual assault out there, many of whom do not report the crimes that have been committed against them. We are wanting to change that. We are wanting to ensure that the criminal justice system will also address the concerns of victims of sexual assault.

Bill C-51 provides them with a right to representation. I stand behind that right to representation and this provision within Bill C-51 because we need to ensure that we do everything we can to address the concerns victims have been expressing for many years and decades in terms of the criminal justice system and how that criminal justice system lends itself to victims not coming forward. [5]

The Pertinent Charter Provisions

[11] The Charter provisions pertinent to the defendant’s application are:

Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 11: Any person charged with an offence has the right

(d) To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 52(1): The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency of no force or effect.

Position of the Participants

The Defendant

[12] The defendant, in his Amended Notice of Application, succinctly sets out his concerns with the amendments in question. He contends that the amendments in question are contrary to the principles of fundamental justice because they:

i “..require an accused to disclose evidence to the complainant that he wishes to use to challenge that person’s evidence, and to further require him to disclosure to the complainant the relevance of that evidence to the trial (the defence strategy.”

ii “..allow a witness to a criminal proceeding to object to proposed evidence and to make submissions on the admissibility of that proposed evidence.”

iii “..to grant standing to a witness on questions of evidence in a criminal proceeding conducted by the Crown as it infringes of the Crown’s exclusive and sole authority to prosecute such cases.”

[13] Thus, the defendant submits that the offending subsections breach his s. 7 and/or s. 11(d) rights enshrined in the Charter and that those violations are not reasonable limits “demonstrably justified in a free and democratic society”, as per s. 1 of the Charter. Accordingly, under s. 52 of the Charter , the offending subsections are of no force and effect and should be struck down.

[14] The defendant also argues that if the court should decide that the offending subsections should not be struck, then the defendant submits that the court should set out the parameters of the complainant’s involvement at the hearing. The defendant argues that the complainant’s involvement should be limited to that akin to an intervenor.

The Complainant

[15] The complainant submits that the Supreme Court of Canada has already determined the constitutionality of the s. 276 of the Criminal Code and the offending provision do not add anything different than what has been already determined by Canada’s highest court. The submissions of the defendant have no foundation given these decisions. The offending subsections do not breach s. 7 and/or s. 11(d) of the Charter . Section 1 does not come into play given that there is no breach of the Charter . The complainant provided no submissions on the parameters of her participation at the hearing and left that argument to the Crown.

The Crown

[16] The Crown agreed and supported the submissions of the complainant. There is no breach of s. 7 or /and s. 11(d) of the Charter and no requirement to review the application of s. 1 . If the court should find that there is a violation of the Charter , the offending subsections are “demonstrably justified in a free and democratic society”. Parliament has determined that incremental changes in the sexual assault regime is required to address the concerns of victims in the criminal justice system, which include the privacy and equality of the victim, and to facilitate the reporting of these type crimes. Parliament has determined that an incremental recognition of the concerns of the victims in sexual assault offences is necessary and justified in our free and democratic society.

[17] On the parameters of the involvement of the victim in the hearing, the Crown directs the court to the decision of R. v. Boyle, 2019 ONCJ 253 [6] and adopts the conclusions described in that decision.

The Analytical Approach to be used

[18] There was a disagreement between the applicant and respondents on the analytical approach the court should use to decide the issues on the application. The applicant contends that the analytical approach to be used is that found in the decisions of Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 [7] and R. v. Mentuck, [2001] 3 S.C.R. 442 [8] ( Dagenais/ Mentuck approach ). The responding parties contend that the proper approach is the approach found in the decisions of R. v. Mills, [1999] 3 S.C.R. 668 [9] and R. v. Darrach, [2000] 2 S.C.R. 443 [10] ( Mills/ Darrach approach).

[19] The applicant and responding parties agree that notwithstanding the approach the court uses, the result would be the same. For the applicant, the offending subsections would be unconstitutional. For the respondents, the subsections would be constitutional.

[20] It appears to me that the proper approach to be used for this application is the Mills / Darrach approach. Briefly, the Dagenais/ Mentuck approach is one that is used to evaluate case to case situations where there are competing constitutional rights and the court must exercise its discretion to resolve those competing rights. The Mills/ Darrach approach deals with the constitutionality of legislation.

[21] There is no issue that, in both approaches, there may be a balancing of competing rights. [11] However, the difference in the approaches, it appears to me, is the substance of the claim. That is, does the claim deal solely with the balancing of competing rights on a case by case basis or does the claim involve the constitutionality of legislation?

[22] The subject matter of both Mills and Darrach bears this point. Both decisions dealt with issues that are the subject matter of this application, the constitutionality of legislation; namely, s. 276 of the Criminal Code ( Mills ) and ss. 278.1 - 278.9 of the Criminal Code ( Darrach ). This is precisely the same type of claim that the court is faced with on this application.

[23] In contrast, Dagenais and Mentuck concerned media challenges to common law publication bans ordered during a criminal trial. The claim dealt with competing constitutional rights of privacy and freedom of expression. Neither dealt with the constitutionality of legislation.

[24] Thus, I agree with the responding parties that the analytical approach to be used is the Mills / Darrach approach. This approach requires the court to determine first, if the legislation breaches the Charter . If not, the analysis ends there. If so, then the court must determine if the breach or breaches are demonstrably justified in a free and demographic society pursuant to s. 1 of the Charter . If the breach or breaches can be justified, the analysis ends there. If not, the court must determine the appropriate remedy. [12]

[25] Taking Mills/ Darrach approach, the initial burden is on the applicant to satisfy the court, on the balance of probabilities, that there has been a breach of the Charter . The burden then shifts to the Crown to satisfy the court that the breach is demonstrably justified pursuant to s. 1 of the Charter .

Issues

[26] The issues for the court to decide on this application are:

i Do ss. 278.94(2) and 278.94(3) of the Criminal Code breach ss. 7 or/and 11(d) of the Charter ?

ii If so, is the breach justified under s. 1 of the Charter ?

iii If the breach is not justified under s. 1, what is the appropriate remedy?

iv If subsections 278.95(2) and 278.94(3) do not breach the Charter or are justified under s. 1 of the Charter , what is the extent of the involvement of the complainant at the voir dire hearing?

Do subsections 278.94(2) and 278.94(3) of the Criminal Code breach section 7 or/and section 11(d) of the Charter ?

Sections 7 and 11(d) of the Charter

[27] Section 7 reflects a variety of societal and individual interests. As the Supreme Court of Canada stated in R. v. Seaboyer, [1991] 2 S.C.R. 577 [13] , “[t]he ultimate question is whether the legislation, viewed in a purposive way, conforms to the fundamental precepts which underlie our system of justice.” [14] One of these precepts is the accused’s rights “to present a full and fair defence”. Any measure that denies the accused this right would violate s. 7 of the Charter .

[28] Section 11(d) of the Charter guarantees an accused the right to a fair trial and the presumption of innocence.

[29] The right to a fair trial and the presumption of innocence are themselves a principle of fundamental justice under s. 7. [15] Section 7 thus encompasses the rights guaranteed by s. 11(d).

[30] Relying on s. 7 and s. 11(d), the applicant contends that the offending subsections violate the principle of fundamental justice, specifically his right to make full answer, offend the principle of prosecutorial independence, and the right against self-incrimination.

[31] I will deal with each alleged breach separately.

Trial Fairness/Self-Incrimination

[32] The defendant contends that the offending subsections give the complainant the right to “appear and make submissions” and “participate” at a hearing under s. 276 of the Criminal Code . For the participation to be meaningful, the complainant must be given the same level of disclosure of the defendant’s trial plan as the Crown. This disclosure to the complainant “renders the trial unfair and violates the principle against self-incrimination”. [16]

[33] The Supreme Court of Canada, in Darrach , dealt with the argument of trial fairness in examining the constitutionality of s. 276 . The Court found no infringement of trial fairness and actually found the s. 276 enhanced trial fairness by filtering out misleading and prejudicial evidence while admitting relevant, probative evidence. [17]

[34] Section 276(3) mandates that the court must take into account not only the interests of justice, including the right of the accused to make full answer and defence, but also society’s interest in reporting sexual assault offences, the potential prejudice to the complainant’s personal dignity, the right to privacy and her personal security, and to full protection and benefit of the law.

[35] In addition, in Mills , the Supreme Court of Canada examined the conflict of the three Charter principles of full answer and defence, privacy, and equality, and held that ss. 278.1 to 278.91 did not infringe ss. 7 or 11(d) of the Charter . The Court determined that the procedure mandated by Parliament dealing with the production of third party records of the complainant, which allows the complainant to participate, does not render the trial unfair.

[36] Darrach and Mills are analogous because both procedures “can potentially exclude relevant evidence from trial” [18] and s. 276 , and ss. 278.1 to 278.91, were held to be constitutional.

[37] The question then becomes, do the offending subsections change the landscape to such a degree that the defendant’s right to a fair trial under s. 7 of the Charter has been infringed?

[38] The difficulty the court has in deciding this question, is that no evidence was presented to the court to explain the landscape relating to the complainant’s involvement under s. 276 or 278.1 to 278.91 before the amendments. Was the complainant provided the application evidence of the accused? Was the complainant given a copy or just advised? And if advised, to what extent was the complainant advised?

[39] The complainant, in her factum at paragraph 44, provides the court with basic submissions on the procedure before the amendment, where she states:

Courts have worked with ss. 278.1 - 278.9 for decades. The result is a comfortable and smooth procedural process that facilitate efficient litigation of issues that involve complainant participation. Counsel serves an application on the Crown, and the Crown or VWAP reaches out to a list of pre-approved counsel for complainant representation. Complainant’s counsel is appointed by a standard form order, and thereafter the application unfolds in an entirely routine manner with scheduling of hearing dates, the exchange of material, discussion among counsel to narrow issues, and submission in court. The litigation of third-party records applications is procedurally settled and routine, and there is no basis to conclude or for that the litigation of s. 276 application involving complainant counsel will be any different. Indeed, early experience with the applications suggest otherwise, in that there is no judicial authority decrying the descent into procedural chaos based on the vagueness of the enabling legislation.

[40] In submissions, Mr. David Butt elaborated that any lawyer acting as counsel for the complainant would be obligated to review the application material of the accused in order to obtain instructions from the complainant on the submissions, if any, she may wish to make on a third party records application. I must admit that this makes logical sense.

[41] I must presume that the Supreme Court of Canada, in Mills , realized that in finding the sections constitutional, the complainant would participate in the process relating to production at a third party records hearing, and would, at the least, know the contents of the accused’s application material.

[42] The Supreme Court of Canada, in Darrach , did acknowledge on a s. 276 application that the Crown would have “to consult with the complainant” and “that if the defence is going to raise the complainant’s prior sexual activity, it cannot be done is such a way as to surprise the complainant”. [19] Thus, the Crown would have to disclose, to the complainant, the application material the Crown received from the accused. Notwithstanding this disclosure of the application material to the complainant, the Court did not conclude that there was a violation of the accused’s s. 11(d) Charter right. [20]

[43] Granted, the extent of the disclosure to the complainant, and the necessity of providing the complainant with a copy of the written material, is not outlined in the offending subsections. Such detail of the procedure was not set forth in Mills or Darrach . Thus, the question remains; have the amendments changed the landscape to an extent that the accused’s right to a fair trial and right against self-incrimination have been violated? I am not persuaded by the defence that it has. I am not persuaded that providing the complainant with the opportunity to “appear and make submissions”, and if inclined, “to participate”, at the hearing alters the findings of the Supreme Court of Canada in Mills and Darrach . I come to the conclusion that Mills and Darrach are determinative of this issue.

[44] Hence, I do not accept the submission of the defendant that his s. 7 Charter right to a fair trial or his s. 11(d) Charter right against self-incrimination have been violated.

Prosecutorial Independence and Vagueness

[45] The defendant argues that the offending subsections infringe the principle of prosecutorial independence in two ways: “It injects a purely partisan advocate into the merits of the trial and it calls upon the accused to meet the case of a second prosecutor.” [21] Unlike the Crown, the complainant, like the accused, is a partisan advocate. Granting the complainant an opportunity “to appear and make submission”, and if so inclined, “participate”, at the hearing, adds a partisan litigant into the criminal process of the accused which is unfair and a violation of fundamental justice. The accused should only have to defend against the Crown’s attempt to prove the criminal offences beyond a reasonable doubt. To give standing to the complainant forces the defendant to defend himself against the case of the Crown and that of the complainant which is a violation of his s. 7 Charter right to a fair trial.

[46] In addition, the offensive subsections do not define or set forth what is meant by “appear and make submissions” or “participate” in the hearing. The meaning of the offending subsections, the defendant argues, are vague. The defendant contends that the extent of the involvement of the complainant in the process is vague. In oral submissions, the defendant provided an array of possibilities to illustrate how the vagueness of the offending subsections would interfere with a prosecutor’s independence and violate the defendant’s s. 7 Charter right, such as:

i The Crown concedes the accused’s application, but the complainant does not; who makes the decision to oppose?

ii The Crown does not call any evidence and does not wish to cross-examine the defendant, but the complainant does; who is the prosecutor? Is the complainant the prosecutor?

iii The defendant made a statement or a made a confession; does the complainant have a right to view the statement or confessions and use that statement or confessions to cross-examine the defendant?

iv The complainant gets legal aid to fund her counsel. The defendant is denied legal aid and is not successful on a Rowbotham application. The defendant struggles on the stand and in the hearing. He is self-represented. Is this fair? Does the Crown assist the defendant in its minister of justice role?

[47] The defendant contends that there are too many unknowns with the participation of the complainant in the hearing and the resulting role of the Crown that are not answered by the offending subsections. The failure of the legislation to answer these unknowns attests to the vagueness of the subsections and allows for the interference with prosecutorial independence that subsequently infringes the defendant’s right to fundamental justice and a fair hearing.

[48] Vagueness can be raised under s. 7 of the Charter given that it is a principle of fundamental justice that laws may not be too vague. [22]

[49] It is undisputed that one of the roles of the court is to interpret legislation. The interpretation can be to ascertain the meaning and purpose of the legislation or determine if the legislation infringes the Constitution, which includes the Charter .

[50] I will start with the principle that the offending subsection, like any other legislation from Parliament, is presumed to be constitutionally compliant. [23] Hence, the burden is on the defendant to show that the offending subsections are inconsistent with the Constitution.

[51] In addition, if the legislation is susceptible to more than one interpretation, the courts must always choose the constitutionally viable one. [24]

[52] As Justice Lamer stated in Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Canada), [1990] 1 S.C.R. 1123 [25] :

The fact that a particular legislative term is open to varying interpretations by the courts is not fatal. As Beetz J. observed in R. v. Morgentaler, [1988] 1 S.C.R. 30 , at p. 107, "[f]lexibility and vagueness are not synonymous". Therefore the question at hand is whether the impugned sections of the Criminal Code can be or have been given sensible meanings by the courts. In other words is the statute so pervasively vague that it permits a "standardless sweep" allowing law enforcement officials to pursue their personal predilections? (See Smith v. Goguen, 415 U.S. 566 (1974), at p. 575, and Kolender v. Lawson, 461 U.S. 352 (1983), at pp. 357‑58.)

[53] In addition, Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 described the doctrine of vagueness as follows:

The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. This statement of the doctrine best conforms to the dictates of the rule of law in the modern state, and it reflects the prevailing argumentative, adversarial framework for the administration of justice. [26]

[54] Notwithstanding the able argument of the defendant, I am not persuaded that the offending subsections are so vague that it lacks precision to give sufficient guidance. The meaning of “attend and make submission” and “participate”, I find, are precise, and the phrasing flexible enough to allow the court to interpret the meaning of the offending subsections to comply with the Charter . The defendant has not persuaded the court that the offending subsections cannot be interpreted in any way that will not afford Constitutional compliance.

[55] I come to the interpretation Parliament intended to permit the complainant to be present at the hearing. In doing so, Parliament has determined that the complainant may provide her perspective to the court which allows for a variety of perspectives to assist the court in determining whether or not the proposed evidence should be admitted at the trial proper. And further, whether such evidence perpetuates the twin myths, that is, the proposed evidence fails to meet the framework in s. 276 of the Criminal Code .

[56] In so doing, I am of the opinion that the offending subsections are an incremental change that reflects the desire of Parliament and the justice system. As stated many times by Canada’s highest court, it is important to give a voice to the complainant, to allow for the court to hear her point of view at the hearing, determining the admissibility of proposed evidence which concerns matters in her private life.

[57] The involvement of the complainant is for this sole and focused purpose at the hearing on admissibility. I do not find that such an incremental change by Parliament infringes the defendant’s s. 7 Charter right of a fair hearing and fundamental justice.

[58] I will now turn to the defendant’s integrated argument that the participation of the complainant at the hearing infringes prosecutorial independence.

[59] It was not disputed that there cannot be more than one prosecutor of an offence against the accused. [27] It is the Crown that has the legal obligation to prove that an accused is guilty of an offence beyond a reasonable doubt.

[60] I do not interpret the meaning of the impugned subsections to offend the principle that there shall be only one prosecutor, nor do they interfere with the independence of the Crown. I say this for several reasons.

[61] The obligation of the Crown has not been changed or affected in any way. The Crown, not the complainant, has to prove the offence(s) against the defendant beyond a reasonable doubt. The Crown also retains the sole discretion to decide whether there exists a reasonable prospect of conviction and/or whether the prosecution is in the public interest.

[62] The complainant’s involvement at the voir dire hearing is not mandatory. The complainant can choose not to participate at the hearing.

[63] If the complainant decides to be involved at the hearing, her involvement is limited. Her involvement is solely and strictly for the purpose of providing the court with her submission/perspective on the determination of whether the evidence in question is admissible at the trial. It is not the guilt or innocence of the defendant. That burden remains solely with the Crown.

[64] This participation provides the complainant with the ability to provide the court with an extremely relevant perspective of the effects of the proposed evidence on her privacy. The complainant’s involvement at the hearing, for the specific issue of admissibility, provides the opportunity for the voice of the complainant to be heard to combat the myths and stereotypes that plague these offences of sexual violence, predominantly against women, and in “particular Indigenous women and sex workers.” [28]

[65] Thus, I do not agree with the defendant that the offending subsections effect prosecutorial independence.

[66] I will now turn to the nature of the involvement of the complainant at the hearing.

The Extent of the Involvement of the Complainant

[67] The defendant and the respondents directed the court to the decision of Doody J. in R. v. Boyle, 2019 ONCJ 253 [29] . The decision of Doody J. was relied upon by Caponecchia J. in R. v. F.A., 2019 ONSC 3041 [30] .

[68] I agree with Doody J. that the meaning of “attend and make submissions” and to “participate” must have meaning. The involvement of the complainant at the voir dire hearing must be a useful one. I agree this includes the ability to cross-examine [31] and lead evidence at the hearing. This lends itself to the complainant having the ability to make meaningful submissions to the court.

[69] However, the ability to “attend and make submissions” is a limited one. It is for the sole and limited purpose of determining the admissibility of proposed evidence at the trial proper based on the statutory framework and goals. It is not to attend and make submissions at the trial proper. It is not to have standing at the trial. It is strictly limited to the issue of the admissibility of the proposed evidence at the trial and the opportunity to convey the perspective of the complainant to assist the court in its decision-making as to whether the proposed evidence should be admitted, such that it does not perpetuate the twin myths and offend the factors described in s. 276 of the Criminal Code .

[70] As the Supreme Court of Canada stated in Darrach :

…At the same time, the trial judge in the case at bar was correct that the cross-examination must be “confined to what is necessary to determine…whether the proposed evidence is admissible” (p.21) The voir dire is not a forum for unfair questioning of the accused; the trial judge controls the hearing to meet the statutory goals, which include protecting the rights of the accused in s. 276(3). [32]

[71] As the gatekeeper, it is the obligation of the court to make sure that the involvement of the complainant is focused and limited. The cross-examination, affidavit, or testimonial evidence provided at the hearing by the complainant must be focused and limited to the issue(s) on the voir dire . The Crown and the complainant must stay on track and not diverge from the limited scope of involvement of the complainant at the hearing. It is not a forum for the Crown or the complainant to conduct “unfair questioning of the accused”.

Disposition

[72] In conclusion, I find that ss. 278.95(2) and 278.94(3) of the Criminal Code do not breach ss. 7 and 11(d) of the Charter and that they are not inconsistent with the Constitution.

[73] Having found no breach, I need not conduct the analysis under s. 1 of the Charter .

[74] I also have come to the conclusion that the involvement of the complainant at the voir dire hearing is limited and must be focused. It is not a forum to determine the guilt or innocence of the accused. It is not the trial proper. The voir dire is for the limited focus of determining whether the proposed evidence is admissible at the trial proper based on the statutory framework and goals.

[75] I, therefore, dismiss the application of the defendant.

Justice P.W. Sutherland

Released: July 15, 2019