R. v. Pringle #7, 2024 ONSC 4084

COURT FILE NO.: CR-23-40000488-0000 DATE: 20240806 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DANIEL PRINGLE Defendant

Counsel: B. Bovell and S. Young, for the Crown/Responding Party S. DiGiuseppe and J. Proskos, for the Defendant/Applicant *M. Stephens, for the Complainant S.B. *K. Bryan, for the Complainant T.D. *only present on July 19, 2024

Heard: in camera, July 16 and 19, 2024, by Zoom

MOLLOY J.

Reasons for Decision

(Motion for Directions re Crown Disclosure of Records)

A. INTRODUCTION

1Daniel Pringle is a physiotherapist. He is charged with having sexually abused four patients, who at the time ranged in age from 11 to 14, by touching them inappropriately in the course of treating them for various athletic injuries. S.B. was the first complainant to report Mr. Pringle to the police. That complaint was made in December 2022 and related to abuse which was alleged to have occurred in 2021 and 2022, when she was 12-13 years old. On January 11, 2023, the police issued a press release about the sexual assault charges laid against Mr. Pringle and encouraged anyone with information to contact police. Following that publicity, three more complainants came forward: T.D. (who alleged assaults that occurred in 2016, when she was 13 years old); S.F. (who alleged assaults between 2013-2015, starting when he was 11 years old) and C.H. (who alleged assaults in 2014 when he was 13 or 14). These four complainants were not known to each other.

2Mr. Pringle was arrested and charged with these offences at various dates between December 21, 2022 and February 6, 2023. The Crown proceeded by way of preferred indictment, which was signed on July 5, 2023. The presumptive date for purposes of the time for completion of the trial pursuant to R. v. Jordan, 2016 SCC 27 is June 21, 2025. Currently, this matter is scheduled to proceed for a three-week trial with a jury, commencing on September 23, 2024.

3I was appointed to hear pre-trial applications in the case. The defence sought production of records pursuant to s. 278 of the Criminal Code, R.S.C. 1985, c. C-46 for documents relating to three of the complainants: S.B.; T.D.; and S.F. Some of the documents were in the possession of the Crown (including text messages) and others were held by third parties (including psychiatrists, hospitals, therapists, and schools). Those applications were initially scheduled for two consecutive days, of which one was to be for Stage 1 (the issue being whether the records should be produced to me), and the second day for Stage 2 (whether the records should be produced to the defence).

4Commencing on May 23, 2024 and on various days thereafter, I heard a number of defence applications with respect to production of documents under s. 278 of the Criminal Code. I have released the following decisions:

• R. v. Pringle #1, 2024 ONSC 3105 (May 31, 2024): Stage 1 decision re records relating to the complainant T.D.
• R. v. Pringle #2, 2024 ONSC 3151 (June 3, 2024): Stage 1 decision re records relating to the complainant S.F.
• R. v. Pringle #3, 2024 ONSC 3335 (June 10, 2024): Stage 1 decision re records relating to the complainant S.B.
• R. v. Pringle #4, 2024 ONSC 3466 (June 17, 2024): Stage 2 decision re records relating to the complainant S.B.
• R. v. Pringle #5, 2024 ONSC 3469 (June 20, 2024): Stage 2 decision re records relating to the complainant S.F.

5As a result of these rulings, the defence obtained production of various records relating to these three complainants. It was understood that this did not mean the records were admissible at trial. However, since it proved impossible to complete all of these motions (both Stage 1 and 2 for all three complainants) in two days, those applications with respect to admissibility under s. 278.92 were to be brought before the trial judge at the outset of trial.

6On July 16, 2024, Crown counsel and counsel for the accused attended before me by zoom on a motion for directions. At issue were a number of documents provided to defence counsel by way of Crown disclosure. At the time these documents were disclosed, the Crown said nothing about there being any limitations on their use. However, the Crown recently took the position that this disclosure did not constitute a waiver with respect to the requirement for an admissibility hearing under s. 278.92 of the Criminal Code and that at least some of those documents were “records” within the meaning of s. 278.1 and were not admissible without a ruling to that effect under s. 278.92. The defence took the position that there is a presumption that Crown disclosure is based on a full and informed waiver of this regime by the complainant and no further hearing is required before the documents are admissible (subject to the usual rules of evidence). The issue for me to resolve was whether an admissibility hearing was necessary for documents disclosed by the Crown.

7Close to the conclusion of the argument on July 16, Crown counsel advised that, with the exception of a partial waiver by S.F. relating to one text exchange, no waivers had been obtained from any of the complainants with respect to the documents disclosed.

8I adjourned the matter to July 19 for further argument and directed that notice be given to counsel for the complainants (two of whom were able to attend, and one of whom advised that her client would be consenting to admissibility). After hearing submissions, I advised all counsel that a s. 278.92 hearing would be required with respect to at least some of the documents and that I would not be available to preside over that hearing prior to the trial date. I adjourned the matter for counsel to appear before Justice Goldstein on July 26, 2024 to speak to the matter with a view to setting a hearing date. Meanwhile, I undertook to provide a summary of my decision prior to that appearance and more detailed reasons at a later date. The summary of my reasons was released to counsel on July 22, 2024: R. v. Pringle, 2024 ONSC 4083. The relevant portion is reproduced as Schedule A at the end of these Reasons for Decision.

9The bottom line is that, based on case law from this court which I consider to be binding, the defence was entitled to assume that the Crown would have obtained waivers before disclosing any documents to which a privacy interest could attach. However, that case law merely states that this assumption applies in the absence of evidence to the contrary. What happened at the hearing on July 16 constitutes evidence to the contrary. There were no waivers. Therefore, unless the complainants consent to the admissibility of the evidence, the defence will need to bring admissibility hearings with respect to the disclosed records. However, this decision is not based on the argument advanced by the Crown before me, which was that I should not follow decisions of this court that took a different interpretation. Rather, the Crown’s failure to obtain the necessary waivers before making disclosure, has caused this result.

B. THE POSITIONS TAKEN BY THE PARTIES

(i) The Defence

10Defence counsel argued that the disclosure of records by the Crown carried with it a waiver by the affected complainant of any protection for that document as a private “record” within the meaning of s. 278.1 of the Criminal Code. The defence relied upon three decisions by superior court judges as being unanimous and binding on this issue: R. v. McFarlane, 2020 ONSC 5194; R. v. J.K., 2021 ONSC 7604; and R. v. Martiuk, 2022 ONSC 5577. Based on these decisions, the defence took the position that there was no requirement to seek a ruling as to the admissibility of any documents provided in disclosure pursuant to s. 278.92 of the Criminal Code.

11Based on these decisions, the principle of stare decisis, and the language of the relevant Criminal Code provisions, the defence sought a declaration that all documents provided by the Crown via disclosure were not “records” within the meaning of s. 278.1 and therefore it was not necessary to follow the s. 278.92 regime to determine admissibility.

(ii) The Crown Position Prior to Argument of the Motion

12Crown counsel argued that disclosure of documents by the Crown only constituted a waiver for purposes of the production sections of the Criminal Code and did not carry with it a waiver of the admissibility hearing under s. 278.92. The Crown relied on the decision of Gordon J. in R. v. S.L., 2020 ONSC 497, which preceded J.K. and Martiuk as authority for this proposition. The Crown further argued that S.L. is consistent with the decision of the Supreme Court of Canada in R. v. J.J., 2022 SCC 28, and has been followed by a line of cases in the Ontario Court of Justice, notwithstanding the Superior Court of Justice decisions to the contrary. In the alternative the Crown submitted that I was not bound to follow the decision of Goldstein J. in Martiuk, that Martiuk was wrongly decided and inconsistent with J.J., and that I could decline to follow it on the same basis asserted in the OCJ cases and the principles of horizontal stare decisis set out in R. v. Sullivan, 2022 SCC 19.

13The night before argument of the motion for directions, the Crown filed a waiver signed by the complainant S.F. on June 2, 2023, relating to a series of text messages between him and a family friend (D.K.) in which he referred to his allegations against Mr. Pringle. The Crown had provided those text messages to the defence by way of disclosure. The text of the waiver is as follows:

DISCLOSURE OF PRIVATE RECORDS IN POSSESSION OF THE CROWN Waiver of the Application of Sections 278.1 to 278.91 I, [S.F.], confirm that I have reviewed my communications with [D.K.] and the following has been explained to me:

1. There are rules that apply to documents and records in which I have a reasonable expectation of privacy (such as medical records, phone records, certain text or email communications, diary entries). My privacy rights in these records are protected by the procedures set out in ss. 278.1 to 278.91 of the Criminal Code. Before these records can be disclosed, I have the option to waive my privacy rights (s.278.2(2)) over them for disclosure purposes.
2. My privacy rights in these records remain protected by s. 278.92 of the Criminal Code which requires the accused to apply to the court before using these records during the preliminary hearing or trial.
3. I understand that the Crown seeks to disclose these records. I understand that independent legal advice (up to four hours free of charge) is available to me to assist me in determining whether I wish to waive my privacy rights in relation to disclosure of these records to the accused.
4. If I choose not to waive my privacy rights in relation to disclosure of the records, an Application must be brought in court for production of the records to the accused. An Application must also be brought if the defence seeks to adduce evidence regarding my records. I have the right to independent legal advice and representation with regards to any such Application(s) brought by the accused.
5. I understand that the Crown Attorney is not my lawyer and cannot provide me with legal advice.

I [S.F.] authorize and consent to the disclosure to the Accused or to Counsel for the Accused Daniel Pringle, by the Crown Attorney’s Office, of records in its possession (describe records): communications between myself and [D.K.] over text message.

I understand that these records are being provided to the Accused or his/her Counsel in relation to the criminal proceedings against Daniel Pringle.

(iii) The Crown’s Position at the End of the Motion for Directions

14The Crown argued during the motion that the waiver signed by S.F. was limited in its scope, in accordance with S.L. and J.J., and that an application would be required if the defence sought to adduce the text messages with D.K. at trial. Although defence counsel did not agree that this was a valid waiver under the law as it stood in Ontario at the time it was signed and since, she agreed that it was at the very least an uninformed waiver and that a s. 278.92 hearing would be required with respect to those text messages.

15By the end of the hearing, the Crown advised that this was the only waiver from S.F., even though other documents (including his medical records) had been provided by way of disclosure. Further, the Crown acknowledged that this was a form of waiver that had been approved by lawyers at the Crown’s office specialized in this field and that it was being used in other cases of this nature. Finally, the Crown acknowledged that no waivers whatsoever were obtained from any of the other complainants, notwithstanding that documents relating to them (including medical records) had been included in the Crown disclosure materials.

C. THE STATUTORY REGIME

16There is a specific statutory regime governing the disclosure, production, and admissibility of private records in a category of offences that can be broadly described as “sexual offences” and which includes the charges in this case.

17The starting point is s. 278.1 of the Criminal Code which defines the nature of the material protected under this regime and which applies to the whole regime (ss. 278.2 to 278.92). It states:

278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

18The material protected under s. 278.1 includes enumerated records (medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries and records containing personal information the production or disclosure of which is protected by statute) and unenumerated records (any other material for which there is a reasonable expectation of privacy).

19If material is in the possession and control of third parties, the defence must apply under the production provisions to obtain them. These provisions start with the general prohibition in s. 278.2(1) that no “record” (as defined in s. 278.1) shall be produced to an accused except in accordance with sections 278.3 to 278.91. Those sections provide for an application to a judge and the rules that apply to such hearings. At the first stage, the judge may dismiss the application, or order that the material be produced to the judge for his or her review. If appropriate, the hearing then proceeds to stage two, where the judge determines if the material should be provided to the defence.

20There is one exception carved out of the general prohibition. That exception applies to documents in the possession of the Crown to which a privacy interest attaches. The statute imposes a duty on the Crown not to provide such records to the defence unless an express waiver is obtained with respect to the application of s. 278.1, s.278.2 and s. 278.3 to 278.91. Those provisions relating to the Crown duty state:

278.2(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.

278.2(3) In the case of a record in respect of which this section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents.

21Section 278.92 provides that any “record” in the possession or control of the defence is inadmissible unless an application is brought and a judge determines it to be admissible, following the procedure and guidelines set out from 278.92 to 278.96. It is clear in the jurisprudence that this regime applies regardless of whether the defence obtained the material privately, or from the complainant, or through an application for production from a third party.

22At issue in this case is whether a document provided to an accused through Crown disclosure also falls within s. 278.92, or whether it is treated differently because of the waiver required from a complainant before a Crown prosecutor can disclose it to the defence.

D. RELEVANT SUPERIOR COURT OF JUSTICE DECISIONS

(i) R. v. S.L., 2020 ONSC 497 (Gordon J.)

23The accused was charged with various sexual offences alleged to have occurred when the complainant was a Crown ward in foster care. The defence brought an application for production of records in possession of the Children’s Aid Society. That application was resolved on the consent of all parties (the Crown, the complainant, the accused, and the CAS) with the result that an order was made authorizing CAS to vet their records and then provide them to all parties.

24The defence took the position that as the records had been obtained pursuant to a production order, there was no need for a further application under s. 278.92 to determine the admissibility of the records. Gordon J. rejected that submission. He held (at para. 21):

This test for admissibility is fundamentally different from the test for production, and for good reasons. To begin with, when production is considered it is unlikely there can be a full appreciation of the relevance of the record or its probative value. This would be why the test for production is “likely relevance” and the test for admissibility is “relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.” Secondly, there is a potentially significant difference in the assessment of the impact on the complainant’s right to privacy and personal dignity. No longer is he or she facing production of records restricted to the accused and the crown with provision that they not be disseminated. He or she is now facing the prospect of being confronted with those records in open court and being cross-examined on their contents. He or she is faced with those records being disclosed to those in attendance, including friends and family, the accused and all who are present in support of him or her, and to complete strangers. Media presence may extend disclosure of the contents of the records to the public at large, albeit without information that would serve to identify the complainant specifically. As put by Green J. in R. v. J.P., 2019 ONCJ 871, “A decision as to admissibility can well have greater visceral impact on a complainant”.

25The issue before Gordon J. was whether a record that had come into the hands of the defence through a production order under the statutory regime should be treated differently from other documents in the possession of the defence. He held (at para. 23):

In my view, s. 278.92 codifies the test for admissibility of records of the complainant in the possession or control of an accused, no matter how the records have come into his possession or control.

(ii) R. v. McFarlane, 2020 ONSC 5194 (Stribopoulos J.)

26The accused was charged with sexual assault, making sexually explicit material available to a child, and child luring. He was the complainant’s gymnastics coach. The defence applied for a ruling with respect to whether a number of materials were “records” within the meaning of s. 278.1 of the Criminal Code. Most of the materials in issue were resolved on consent. The one matter in contention before Stribopoulos J. was a letter written by the complainant to a friend in which she described her feelings about the accused. She never sent the letter, but rather discarded it in the trash inside her home. It was found by her mother, who provided it to the police. Later, the Crown provided it to the defence as part of disclosure.

27Stribopoulos J. noted that the regime under the Criminal Code deals with two different situations: the production of records to an accused; and the admissibility of those records in evidence at the behest of the accused. He held that the admissibility regime under s. 278.92 did not apply to records that the accused had obtained through a production of third-party records application (which was not an issue before him) and also did not apply to documents provided to the accused through Crown disclosure. He reasoned that documents obtained in either of these two situations could not be said to be “in the possession and control of the accused” as those words are used in s. 278.92. In coming to that conclusion, the applications judge referred to the Crown’s obligation under s. 278.2(3) to maintain the confidentiality of any document that was a “record” and to merely disclose its existence to the defence, so that the defence could then bring the appropriate application. He concluded that since the document had been disclosed by the Crown, its admissibility at trial did not depend on s. 278.92, but rather only on the common law rules of evidence.

(iii) R. v. J.K., 2021 ONSC 7604 (Schreck J.)

28The accused had been in a relationship with the complainant and was subsequently charged with sexually assaulting her. The complainant turned over to the police a series of Facebook messages between her and the accused. The Crown provided these messages to the defence in disclosure. The defence brought a motion for a ruling as to whether these messages met the definition of “record,” such that a motion under s. 278.92 would be required to determine their admissibility. Schreck J. held that the messages were not records. In coming to that conclusion, he relied on s. 278.2(2) of the Criminal Code which imposes a duty on the Crown to keep a “record” confidential unless the complainant has waived the protection of the regime. He held that “the Court and the defence are entitled to presume that absent some indication to the contrary, the Crown fulfilled its duty and the fact that the material was disclosed is evidence of the complainant’s waiver.” J.K., at para. 15.

29Schreck J. specifically rejected the proposition that there could be degrees of waiver. He held that the waiver referred to in s. 278.2(2) specifies that it is a waiver of “those sections,” which specifically includes the protection of s. 278.1. Therefore, it would not be possible for a complainant to waive her reasonable expectation of privacy afforded under s. 278.1 to an extent to permit disclosure of the material, without conceding admissibility for the purposes of s. 278.92. He held:

For these reasons, I agree with Stribopoulos J. in McFarlane that material that has been provided in disclosure does not ordinarily require an application pursuant to s. 278.82 [s. 278.92]. The situation may be different where there is evidence that the Crown disclosed the material in error or the complainant has asserted that the disclosure was made contrary to her wishes, neither of which has occurred in this case. Ibid, at para. 19.

30It is worth noting at this stage that the decision in J.K. was released on November 17, 2021. The limited waiver signed by S.F. in this case is dated June 2, 2023.

(iv) R. v. Martiuk, 2022 ONSC 5577 (per Goldstein J.)

31The complainant alleged that during the course of consensual sex, the accused became rough and she withdrew her consent. He continued without her consent. Later, she took photographs of bruises that developed on her breasts as a result of the accused’s actions. She gave those photographs to the police when she reported the sexual assault. Ultimately, those photographs were included in materials provided by the Crown to the defence by way of disclosure. Also included in the disclosure were some text messages between the complainant and the accused and medical records related to the assault. Goldstein J. ruled that all material provided in disclosure were no longer “records” within the meaning of s. 278.1 and that no admissibility hearing under s. 278.92 was required.

32The Crown had argued before Goldstein J. that the decisions in McFarlane and J.K. were wrongly decided and that he should not follow them. In particular, the Crown argued that a distinction should be made between the protection of privacy for purposes of production, as opposed to admissibility. Goldstein J. did not accept that submission. He held that he was bound by these two prior decisions, citing Sullivan. He further held that he did not consider these two cases to be plainly wrong, but rather to be “plainly right” Martiuk, at para. 13 (although disagreeing with the finding in McFarlane with respect to the issue of documents obtained through a production application, which merely obiter in that case in any event).

33Goldstein J. relied on s. 278.2(2) of the Criminal Code and held that the “whole point” of that provision “is to reconcile the complainant’s privacy interests with the Crown’s disclosure obligations.” He cited the decision of Schreck J. in J.K. with approval and expressly adopted his conclusion that “the Court and the defence are entitled to presume that absent some indication to the contrary, the Crown fulfilled its duty and the fact that the material was disclosed is evidence of the complainant’s waiver.” Ibid, at para. 20.

34In addition, Goldstein J. held that the interests of fairness supported his finding that an admissibility hearing would not be required for documents included in Crown disclosure. On that point, he adopted the reasoning of Sulyma J. of the Alberta Queen’s Bench in R. v. McKnight, 2019 ABQB 755 at para. 43 as follows:

Fairness must require that if a Complainant is willing to release information in order to further a criminal prosecution, then the Accused should be entitled to use the information in the preparation of his defence: Mills at para 106. Therefore, I find that a Complainant no longer has any reasonable expectation of privacy in the electronic communications which she turned over at the preliminary inquiry.

35Martiuk was argued before Goldstein J. on June 3 and June 19, 2022, following which he reserved his decision. On June 30, 2022, while Martiuk was still under reserve, the Supreme Court of Canada’s decision in J.J. was released. Goldstein J. invited counsel back before him and heard their submissions on the impact, if any, of that decision on the issue he had to decide. Having heard those submissions, he concluded that the decision in J.J. dealt primarily with the constitutionality of the regime and did not specifically address the impact of Crown disclosure. He therefore found that J.J. did not alter his finding. Ibid, at para. 34.

36Ultimately, he ruled that Mr. Martiuk was entitled to assume, in the absence of evidence, to the contrary that the complainant had expressly waived her rights with respect to the material provided by way of Crown disclosure and that no admissibility hearing was required for those documents.

E. HORIZONTAL STARE DECISIS

37Our system of law is one based on judicial precedent. Generally speaking, lower courts are required to follow decisions of higher courts. This is commonly referred to as vertical stare decisis. Consistency in the law is important. Even judges at the same level of court are not permitted to act arbitrarily or according to their own views. They are required to take into account the decisions of other judges of their court. If those other decisions are not distinguishable in some way, the general rule is that they should be followed. This is referred to as horizontal stare decisis.

38The circumstances in which a judge may depart from another decision of the same court are limited. In its 2022 decision in R. v. Sullivan, 2022 SCC 19, the Supreme Court of Canada reviewed and revamped the rules about when a judge is entitled to disregard decisions of other judges of the same court. Unless these conditions are established, the principles of judicial comity require judges to follow precedents from their own court.

39As a starting point, Kasirer J. (writing the unanimous judgment of the court) reviewed and confirmed the framework for horizontal stare decisis as defined by Wilson J. in 1954 in Re Hansard Spruce Mills Ltd.. He held that the Spruce Mills criteria are the only basis upon which a trial judge can depart from other decisions of the same court, stipulating three narrow circumstances in which horizontal stare decisis would not apply:

(1) The rationale of an earlier decision has been undermined by subsequent appellate decisions; (2) The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or (3) The earlier decision was not fully considered, e.g. taken in exigent circumstances. Sullivan, at para. 75.

40The Court noted in Sullivan that varying interpretations of the Spruce Mills criteria have introduced qualitative terms such as finding that a decision is “clearly wrong” or that there is “good reason” to depart from it, or that there are “extraordinary circumstances, and held that these terms “should no longer be used.” Ibid, at para. 74.

41With respect to the first of the Spruce Mills criteria, a judge is not required to follow a decision that has been undermined by subsequent decisions. One example is a situation where the prior decision has been “overruled by, or is necessarily inconsistent with, a decision of a higher court.” Ibid, at para. 76. The Crown argues that this criterion applies to the Martiuk decision.

42The second criterion relates to a situation in which the judge who decided the prior case has failed to consider a relevant statute or binding authority. It must also be demonstrated that the judge’s failure to take that statute or authority into account affected the judgment. Ibid, at para. 77. The Crown argues that this criterion also applies to Martiuk.

43Finally, the third criterion applies where the trial judge was required to make a decision quickly without an opportunity to reflect or fully consider it. It is acknowledged that this criterion does not apply to this case.

F. ANALYSIS

Horizontal Stare Decisis

44The issue before Goldstein J. in Martiuk was whether the defence needs to bring an application under s. 278.92 to determine the admissibility of any material disclosed to the defence by the Crown. That same issue was before Stribopoulos J. in McFarlane and Schreck J. in J.K. There is no reasoned basis to distinguish any of those cases on their facts. All three of my colleagues held that an admissibility hearing is not required because there is a presumption that the Crown complied with its duty under the Criminal Code and obtained a waiver before disclosing the material. Schreck J. and Goldstein J. specifically held that any waiver contemplated under that section constituted a waiver of the regime under s. 278.1.

45The Crown acknowledges that these were considered decisions and that the third of the Spruce Mills criteria does not apply. However, the Crown argues that I should not follow the decisions in Martiuk and J.K. based on the other two Spruce Mills criteria. I disagree.

46The second Spruce Mills category relates to matters that were decided per incuriam. Kasirer J. explained this criterion in the following terms:

Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In other words, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be “rare” (see, e.g., The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017 BCSC 1988, 4 B.C.L.R. (6th) 370, at para. 132). The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19).

[Emphasis added.]

47It cannot be said that Goldstein J. failed to consider a relevant statute. He provided a thorough explanation of the statutory scheme and considered every applicable section. The Crown does not agree with the interpretation he placed on some of these provisions, but that is a matter for an appeal. It is not a basis upon which to suggest that other judges of this court should simply disregard his decision.

48The only “binding authority” suggested by the Crown as having been overlooked by my colleagues is the decision of Gordon J. in S.L. It would appear that S.L. was not put before Schreck J. in J.K. or Stribopoulos J. in McFarlane and was therefore not considered by them. However, that is not the case for Goldstein J. in Martiuk. To the contrary, Goldstein J. specifically referred to and addressed the decision in S.L. and distinguished it on the basis that this was not a case of Crown disclosure, but rather of documents obtained by the defence through production order in the course of a third-party records application. The issue was whether the defence had to still go through an admissibility hearing under s. 278.92 after the defence obtained the documents in this manner. There was no issue of Crown disclosure, nor was there any issue as to the nature of the waiver the Crown was required to obtain if privacy interests were involved. The Crown in this case fastened on the statement by Gordon J. that s. 278.92 applied regardless of how the records had come into the possession of the defence. S.L., at para. 23. That statement cannot simply be lifted out of the decision without considering its context. There was no issue before Gordon J. as to the Crown disclosure obligations or the implications of the waiver obtained by the Crown prior to providing disclosure. His statement about the source of the defence documents being irrelevant must be seen in that light. In Martiuk, Goldstein J. considered this very statement by Gordon J. and concluded that it did not apply to Crown disclosure. Martiuk, at paras. 29-30. Again, the Crown may disagree with that conclusion, but that does not make it per incuriam.

49I also reject the argument of the Crown that Goldstein J. failed to address the difference between the production regime and the admissibility regime and the implications of each. It is clear from his decision that he was alive to that distinction and agreed that there were different implications. This is particularly apparent in that portion of his decision in which he disagreed with the obiter finding in McFarlane that an admissibility hearing was not required when documents had been obtained by the defence through a production order. However, this was not a production case. This was a Crown disclosure case. And Goldstein J. was careful to make that distinction. Ibid, at para. 18.

50I conclude that this does not meet the requirements of the second of the Spruce Mills criteria.

51I turn then to the first Spruce Mills criterion, the existence of a subsequent appellate decision that undermines the rationale of the decision in question. The only subsequent appellate decision relied upon is J.J. That decision could not have been taken into account in J.K. because it post-dates it. However, J.J. was released prior to Goldstein J. delivering his decision and he asked counsel to appear before him to address how the decision in J.J. might affect the decision he had to make. He noted that J.J. is primarily directed towards the constitutionality of the regime (which is correct) and that there is no mention of the Crown’s disclosure obligation under s. 278.2(2) (which is also correct). He therefore held that it had no impact on his decision. Ibid, at para. 34.

52The Crown argues that Goldstein J.’s decision is inconsistent with the underlying recognition in J.J. as to the difference between the implications of production as opposed to admissibility. As I have already stated, Goldstein J. was aware of that distinction, as can be seen from his disagreement with that aspect of McFarlane. However, he held that the waiver required for the Crown to make disclosure would necessarily extend to both the disclosure and admissibility stages. Ibid, at paras. 18-20; J.K., at para. 15. That is not on its face inconsistent with J.J. because it deals with a separate and discrete issue.

53I find that the Crown has failed to satisfy the test required for me to disregard the decisions of Martiuk and J.K. Principles of judicial comity require that I follow those decisions until such time as a higher court determines that they are incorrect. Accordingly, in the absence of evidence to the contrary, I would have held that the Crown disclosure of these records carried with it the inference that there had been a full waiver and that an admissibility hearing is therefore not required.

The Ontario Court of Justice Decisions

54The Crown relies on a line of decisions from judges of the Ontario Court of Justice who have opted to follow the decision in S.L. and decided not to follow the decisions in J.K. and Martiuk. Obviously, these are lower court decisions and not binding on me.

55I do not propose to deal with whether the interpretation of the legislation by these judges is right or wrong. However, there are a number of points that, in my view, need to be made.

56Firstly, those decisions that refer to S.L. as being in direct conflict with J.K. and Martiuk are incorrect. The issue of Crown disclosure did not arise in S.L. but is dealt with directly in both J.K. and Martiuk. There is no conflict. Even if there was a conflict, those judges are required to follow the more recent authority, as directed by the Supreme Court in Sullivan. This is even more so where the more recent authority is a decision of a higher court and has expressly considered S.L. (as is the case with Martiuk).

57The second point that needs to be made is that when judges of the Ontario Court of Justice are of the view that they should depart from the decisions of a higher court, the test they need to apply is not the Spruce Mills criteria as refined in Sullivan. This is not a question of judicial comity or horizontal stare decisis. Decisions of a higher court are binding. This is a question of vertical stare decisis. That is not to say that lower courts are forever bound to apply precedents from a higher court. However, the test is different and more onerous, as articulated in Canada (Attorney General) v. Bedford, 2013 SCC 72 as follows:

In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

… a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.

[Emphasis added.]

58I note that the Bedford test was specifically and definitively referred to in Sullivan as the appropriate standard for vertical stare decisis. Kasirer J. wrote:

To be plain: these criteria do not detract from the narrow circumstances outlined in Bedford, at paras. 42‑45, describing when a lower court may depart from binding vertical precedent.

None of the OCJ decisions to which I was referred applied that test. In my view, that test cannot be met in these circumstances.

59Finally, there are some statements made by Witkin J. in R. v. P.R., 2024 ONCJ 120 that I must address. I note that she applied the Spruce Mills test in determining whether she would follow the decisions of this court, which I have stated above is the wrong test. In applying that test, she held that Martiuk “does not conform with the Supreme Court’s decision in J.J. or a close and considered reading of s. 278.92.” Ibid at para. 49. It is unclear which of the Spruce Mills criteria Witkin J. was considering. However, it would appear that she was applying the first two of the Spruce Mills criteria. As I have noted, this is the wrong test for a lower court to apply. However, even if Spruce Mills was the applicable test, Witkin J. failed to apply it correctly.

60With respect to the first criterion, which would require a finding that Goldstein J. failed to follow binding authority, Witkin J. acknowledged that the Supreme Court of Canada’s decision in J.J. does not consider the issue of Crown disclosure. In essence, her conclusion is that if the Supreme Court of Canada had considered that issue, they would have applied the same rationale as for documents that had been obtained through third-party production. However, that ruling was not actually made by the Court. It is merely Witkin J.’s view that her interpretation of the Crown disclosure provisions conforms better to the underlying rationale in J.J. than does the interpretation of Goldstein J. in Martiuk. However, Goldstein J. considered whether the decision in J.J. had an impact on the decision before him, and found it did not. That does not put his decision in conflict with binding authority. Further, his decision is binding on a lower court, and (as I have already stated) entitled to deference even by judges of coordinate jurisdiction. It is not the role of a judge, even of coordinate jurisdiction, to refuse to follow another decision because she disagrees with the prior judge’s interpretation of the statute.

61With respect to the second criterion, Witkin J. held that Goldstein J.’s decision in Martiuk failed to conform to a “close and careful” reading of s. 278.92. She was critical of the reasoning in J.K. and Martiuk, stating:

However, a close reading of s. 278.2(2) reflects that the provision does not apply to the new records screening regime in s. 278.92-94. Section 278.2(2) applies to s. 278.3 to 278.91, the Mills (production) regime. The records screening regime in J.J. falls outside of s. 278.2(2), which is why the court in J.J. did not need to address the issue of Crown disclosure and waiver under s. 278.2(2).

[Emphasis in the original]

62However, a “closer” and “more careful” reading of the section would have considered that it is not only ss. 278.3 to 289.91 that are referred to in s. 278.82(2), but also s. 278.1, which is the definition section and relates to the applicability of the whole regime. If the “records” definition is waived, then the applicability of s. 278.92 would also be waived because the documents disclosed would not fall within the definition of “record” and would therefore be outside the regime. Both Goldstein J. and Schreck J. took that into account and determined that it meant the waiver referred to the protection of the entire regime being waived by the complainant. Witkin J. did not consider this issue.

63I have great respect for Justice Witkin’s breadth of knowledge in this area. She was a fairly new judge at the time of this decision (having been appointed about seven months earlier) but had vast experience in this field at the Crown Law Office, including within the Sexual Violence Advisory Group. However, that does not mean she is entitled to impose her own opinion in place of the considered and reasoned decisions of superior court judges. That role falls to an appellate court above the Superior Court, which in this case would be the Court of Appeal for Ontario or the Supreme Court of Canada. It is at least arguable that the Crown’s duty to obtain a waiver prior to disclosing any private records extends to the whole of the regime and the entire protection of s. 278.1, as determined by my colleagues.

64That said, I agree with Justice Witkin’s policy-based reasoning that earlier disclosure is always preferable and that her interpretation leave the privacy issue to be determined by the court (rather than by agreement or waiver by the complainant). However, I also see the merit in Justice Goldstein’s point that fairness points to permitting the defence to use material provided by the complainant to the police for the purpose of supporting the charges against the accused. The interaction of the Crown’s disclosure obligations and a complainant’s waiver with the overall privacy interests and “records” regime under s. 278.1 is not an easy one. Either interpretation could prove to be correct. Hopefully, these difficult issues will be resolved by a higher court soon. However, it is not appropriate for judges of this court to substitute their own views as to the correctness of the decisions in J.K. and Martiuk, and even less appropriate for judges of a lower court to do so.

G. APPLICATION OF THESE PRINCIPLES TO THIS CASE

65The decisions in J.K. and Martiuk are not draconian. They merely recognize a presumption that the Crown will have complied with its duty under s. 278.2(2) and obtained a waiver of any privacy interest in material before it is disclosed to the defence. Therefore, an admissibility hearing would not be required. If there is evidence to the contrary, at a minimum, a hearing under s. 278.92 will need to be conducted. I also agree with the defence submission that these records should be treated as having been improperly or inadvertently disclosed by the Crown such that a production hearing would also be required. However, practically speaking, I would expect either that consents can be obtained with respect to the production portion, or alternatively the production hearing and admissibility hearing can be conducted at the same time.

66The waiver signed by S.F. constitutes evidence to the contrary. The clear rulings of this court are that the waiver referred to in s. 278.2(2) relates to the privacy rights set out in s. 278.1. I do not understand why the Crown would continue to advise complainants, after J.K. and Martiuk, that they are waiving their privacy rights under s. 278.2(2) (not 278.1) and that this does not mean the material disclosed will be admissible at trial without an admissibility hearing. However, that is the information provided by the Crown in writing to S.F. and the purported waiver was therefore not fully informed. It would have been preferable, to say the least, if the limited waiver had been disclosed at the same time as the documents to which it relates, but that also was not done. Given that S.F. was prepared to have these text exchanges provided to the defence, consideration should be given to obtaining consents to the production of the material to the defence. A privacy interest would typically attach to this type of record. Therefore, unless S.F. now provides a full waiver, an admissibility hearing under s. 278.92 will be required.

67I have an even lesser understanding as to why the Crown obtained no waiver at all from any of the complainants with respect to any other documents to which a privacy right would normally attach before disclosing them to the defence, again without any explanation.

68However, I accept the information provided to me by the Crown that no waivers were obtained. Therefore, in the absence of a full waiver executed by the complainant, these documents must be treated as having been disclosed in error by the Crown. I reiterate what I wrote in my endorsement at para. 11 (i):

Upon learning that the Crown did not have a waiver for the disclosure of these documents, Ms. DiGiuseppe, in accordance with the highest standards of the bar, considered it her ethical responsibility to put those documents aside and to not refer to them again until this issue has been resolved. She sought my guidance on this point on July 19, 2024, and I agreed with her assessment that in the absence of a proper waiver, she should treat these documents as having been disclosed by the Crown in error. However, if advised by counsel for the complainant that the complainant consents to the defence having those documents, defence counsel is then free to continue trial preparation using those records. As I said, some of the documents are obviously produceable, at the very least. Fortunately, all complainants are represented by knowledgeable and reasonable counsel so I am optimistic that most of the issues can be worked out by counsel. However, there may need to be rulings by a judge on some issues.

69Some of the documents disclosed and for which a privacy interest might arguably arise, will clearly be admissible (e.g. the medical records of physiotherapy treatment). Hopefully, consents can be obtained from the complainants with respect to these types of records. One of the complainants (C.H.) has already consented to the production and admissibility of all disclosed documents relating to him. I leave it to the next judge dealing with this matter to sort out these details.

MOLLOY J.

Released: August 6, 2024

SCHEDULE A

11The following are my findings on the issues raised:

(a) The decision of Goldstein J. in R. v. Martiuk, 2022 ONSC 5577 (Martiuk) establishes that, in the absence of evidence to the contrary, Crown disclosure of a document means that there has been a waiver of any privacy interest of the complainant under s. 278.1 (such that it is therefore not a “record” within the meaning of s. 278.1) and that the defence is not required to bring an application for any such disclosed material under s. 278.92. The earlier decision of Schreck J. in R. v. J.K., 2021 ONSC 7604 (J.K.) is also applicable and was cited and applied in Martiuk.

(b) The decision in Martiuk is directly on point. The principles of comity, as defined in R. v. Sullivan, 2022 SCC 19 require me to follow and apply it.

(c) Justice Goldstein’s decision in Martiuk has not been overruled by a higher court. Justice Goldstein’s decision was a carefully considered one. This is not a situation in which there are “conflicting” decisions of a nature that would permit me not to follow the established case authority in this court. Goldstein J. reviewed and distinguished the decision of Gordon J. in R. v. S.L., 2020 ONSC 497, and determined that it did not deal with the issue of the impact of Crown disclosure, the obligation of the Crown to obtain a waiver pursuant to s. 278.2(2), and the impact of such a waiver. He also summoned counsel back before him to provide submissions on the impact, if any, of the Supreme Court of Canada’s decision in R. v. J.J., 2022 SCC 28 and determined that it also did not have an impact on his decision. This was not a per incuriam decision which would permit me to render a different determination on this same legal issue. Neither can it be distinguished on its facts. I am bound by it.

(d) I have considered the decisions from the Ontario Court of Justice that have declined to follow Martiuk. I believe them to be in error in determining that they are not bound by the decisions of this court that take a contrary view. In any event, they are decisions of a lower court and not binding on me. I am not following them.

(e) Based on the principles established in J.K. and Martiuk, there is no obligation on the defence to seek a ruling as to the admissibility of the disclosed documents under s. 278.92, in the absence of evidence that there was no waiver as contemplated by s. 278.2(2).

(f) The “waiver” signed by S.F., as drafted by the Crown, sets out a statement of law inconsistent with binding authority. It appears that S.F. believed he could waive his rights partially to permit disclosure to the defence, but still contest the admissibility of the “records” disclosed under s. 278.92. This is contrary to the specific ruling by Schrek J. in J.K. that there cannot be “degrees of waiver in the context of s. 278.2” and by implication, also inconsistent with Martiuk. I therefore consider this waiver to be invalid, and to constitute “evidence to the contrary” as to the Crown having a waiver sufficient to support the disclosure of this material.

(g) At the end of the hearing the Crown advised, for the first time, that no waiver whatsoever had been obtained by the Crown from the other three complainants as to any of the documents disclosed to the defence. Some of these documents are clearly “records” within the meaning of s. 278.1. Without a waiver, the Crown would have been required under s. 278.2(3) to retain any such record in their possession and advise the defence of the existence of the record, but not its content. The Crown did not do that in this case.

(h) Technically, in the absence of a waiver, the defence would be required to bring an application for the production of those “records.” However, for at least some of those documents the outcome is obvious. As an example, the medical records from the physiotherapy clinic where Mr. Pringle was treating the complainant would normally be considered an enumerated “record” within the meaning of s. 278.1, but would, in my view, clearly be produceable and likely ultimately admissible (subject to possible redactions of irrelevant and personal information). In those situations, it would be open to both the Crown and the complainant’s counsel to consent to the production of the records to the defence. However, that is different from the waiver contemplated in s. 278.2(2). The decisions in J.K. and Martiuk make clear that the waiver contemplated is a waiver of the protection of the privacy interest under s. 278.1 and relates to both disclosure and admissibility. There cannot be a partial waiver. It would, however, be open to the parties on a production application to consent to production while still requiring a hearing under s. 278.92 with respect to admissibility.

(i) Upon learning that the Crown did not have a waiver for the disclosure of these documents, Ms. DiGiuseppe, in accordance with the highest standards of the bar, considered it her ethical responsibility to put those documents aside and to not refer to them again until this issue has been resolved. She sought my guidance on this point on July 19, 2024, and I agreed with her assessment that in the absence of a proper waiver, she should treat these documents as having been disclosed by the Crown in error. However, if advised by counsel for the complainant that the complainant consents to the defence having those documents, defence counsel is then free to continue trial preparation using those records. As I said, some of the documents are obviously produceable, at the very least. Fortunately, all complainants are represented by knowledgeable and reasonable counsel so I am optimistic that most of the issues can be worked out by counsel. However, there may need to be rulings by a judge on some issues.