WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

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

Court Information

Ontario Court of Justice

Date: June 6, 2019

Court File No.: Brampton 18-3363

Between:

Her Majesty the Queen

— and —

F.A.

Before: Justice Sandra Caponecchia

Heard on: May 16, 2019

Reasons for Judgment released on: June 6, 2019

Counsel:

R. Levan — counsel for the Crown

M. El-Rashidy — counsel for the accused F.A.

CAPONECCHIA J.:

Introduction

[1] The rules of evidence pertaining to sexual assault cases have evolved over time. Bill C-51 represents the next phase in that evolution. The earliest changes included the enactment of s. 278 of Criminal Code, following which a spouse could be charged with sexual assault on his or her partner. Confirmatory evidence was legally required to sustain a sexual assault conviction until the enactment of s. 274 of the Criminal Code. It was legally permissible for a trial judge to draw an adverse inference based on complainant's failure to complain immediately until the enactment of s. 275. In 1988 Parliament introduced reforms to the Criminal Code to accommodate the needs of child witnesses by introducing publication bans and allowing them to give their testimony behind a screen or outside a courtroom and the ability to rely on video-taped evidence.

[2] Historically, the Criminal Code did not place any specific limits on the admissibility of evidence about a complainant's prior sexual activities or the uses to which that evidence could be put. There was nothing stopping counsel from adducing such evidence through cross-examination of the complainant and arguing, based on myths and stereotypes that were allowed by the common law, that evidence of prior sexual activity undermined a woman's credibility or increased the likelihood that she consented to the sexual activity in question. Evidence of prior sexual activity was therefore once used to "blacken the character of the complainant, distort the trial process, and undermine the ability of the criminal justice system to effectively and fairly try sexual allegations."

[3] In 1982 Parliament tabled the first "rape shield" provisions. These provisions restricted the right of defence counsel in proceedings in respect of certain sexual offences to adduce evidence of a complainant's sexual conduct on other occasions. One of the core objectives of these provisions was to debunk the "twin myths" that "unchaste women" are (1) more likely to have consented to the sexual activity in question and (2) less worthy of belief.

[4] Almost a decade later, in R. v. Seaboyer, [1991] 2 S.C.R. 577, the Supreme Court of Canada struck down the first version of s. 276 of the Criminal Code, which set out a blanket exclusion of sexual activity evidence subject to only three exceptions. The Court determined that although the provision had the laudable goals of abolishing the outmoded, sexist use of sexual activity evidence, it "overshot the mark" and rendered inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial. In its stead, the Court articulated common law principles governing the admissibility of sexual activity evidence.

[5] In the wake of Seaboyer, Parliament enacted a new s. 276 regime in 1992 through Bill C-49. Bill C-49 ushered in a suite of major reforms to the law on sexual offences in Canada. The purposes behind the new regime, aligned with those of its predecessor, were to protect the integrity of the trial by excluding irrelevant and misleading evidence, protect the accused's right to a fair trial, and encourage the reporting of sexual offences by protecting the security and privacy of complainants. It essentially codified the principles set out in Seaboyer and established substantive rules that prevent evidence of a complainant's sexual activities from being used for improper purposes, backed by procedural requirements designed to enforce these rules.

[6] In 1995 the question of when a defendant should have access to the private records of complainants and witnesses in sexual assault trials was addressed in R. v. O'Connor, [1995] 4 S.C.R. 411. Following this decision, after a lengthy consultation process, Parliament drafted Bill C-46 which came into force on May 12, 1997 and amended the Criminal Code. While Bill C-46 enacted a two stage regime for the productions of third party records, there were differences between the legislation contained in s. 278.1 through s. 278.9 and the process set out by the Supreme Court of Canada in O'Connor.

[7] Both Bill C-46 (Parliament's response to O'Connor) and Bill C-49 (Parliament's response to Seaboyer) have withstood constitutional scrutiny. In 1999 the Supreme Court of Canada upheld the third-party records legislation in R. v. Mills, [1999] 3 S.C.R. 668. A year later the two-step process to determine the admissibility of prior sexual conduct contained in s. 276 through s. 276.5 passed constitutional muster in R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443.

[8] The evolution of the rules of evidence in the area of sexual assault cases continues with the enactment of Bill C-51 on December 13, 2018. Bill C-51 addresses evidentiary issues the Supreme Court of Canada identified in the case of R. v. Shearing, 2002 SCC 58, [2002] S.C.J. No. 59. In Shearing the defence was in possession of a complainant's childhood diary and sought to cross-examine her on its contents. The court decided that private records in the possession of the defence did not fall within the third party records regime contained in s. 278.1 to s. 278.9. Nor did the legislation address the admissibly of private records once they are in the possession of the defence.

[9] Bill C-51 addresses the fact scenario in Shearing. Pursuant to s. 278.92 to 278.95 a defendant is now required to embark on a formal two-stage pre-trial application process before they can adduce evidence contained in records in their possession and over which the complainant has a reasonable expectation of privacy. If the application proceeds to a second stage hearing, the compliant is entitled to be notified of his/her right to counsel and to make representations.

[10] Bill C-51 also repealed sections 276.1 to 276.5. These sections were replaced with section 278.92 to 278.95. The new provisions are essentially the same, with one notable exception. S. 278.94(2) and s. 278.94(3) formally entitles a complainant to be notified of her right to counsel and to make representations at the second stage of any s. 276 application to admit evidence of his or her prior sexual conduct.

[11] The defendant's position is the new legislation has gone too far and is inconsistent with his Charter rights. The defence submits sections 278.92 through 278.97 violate his right to make full answer and defence protected by s. 7, his right not to be compelled to be a witness in any proceeding pursuant to s. 11(c), the presumption of innocence and right to a fair trial protected by s. 11(d). Lastly, the applicant alleges his right to equality of treatment under the law pursuant to s. 15 of the Charter is also impacted by the legislation.

Overview of the Proceedings to Date

[12] Mr. F.A.'s trial commenced on February 5, 2019 and continued until cross-examination of the complainant was interrupted on February 8, 2019 to deal with the applicability of Bill C-51.

[13] The complainant has testified that she met the defendant in 2011 in Egypt. They were engaged briefly. After the complainant called their engagement off, they remained on good terms. Mr. F.A. moved to Canada in 2011. In 2014 the complainant and her teenage son joined her family in Alberta. The complainant testified that her son had difficulty adjusting to life in Alberta and she decided to relocate to Ontario with her son and mother in June 2017. She testified that Mr. F.A. helped them settle in the greater Toronto area where he was residing with his wife. He assisted them in finding an apartment in Mississauga and with getting acquainted to the area. The allegations are that during a visit to the complainant's new apartment the defendant forced intercourse on her once and she became pregnant with his child. She returned to Alberta later the same year and gave birth to their child.

[14] The complainant's cross-examination was halted when the defence began to confront her with evidence to challenge her credibility. The Crown objected and in the absence of the complainant a dialogue ensued with counsel as to the application of Bill C-51. Defence counsel advised the court of his intention to challenge the complainant with additional items in his possession. On April 15, 2019 I heard submissions regarding whether the items in the possession of the defence were records within the meaning of s. 278.1. I ruled that all but one of the items fell within the definition of record as defined by s. 278.1. A hearing is scheduled to determine the admissibility of the records on June 12, 2019. The trial is set to continue in November.

[15] A Charter application challenging the constitutionality of Bill C-51 was filed on April 16, 2019. A hearing took place on May 16, 2019. The Charter claims are set out in a 48 page Notice of Application and Factum.

Issues

[16] I have grouped the issues raised by the defence as follows:

(1) Does the new legislation violate the Charter because it operates retrospectively?

(2) Does Bill C-51 violate the Charter because it creates a blanket presumption of inadmissibility in relation to evidence of a complainant's prior sexual activity and records in the possession of the defence? Does the mandatory two-step pre-trial application process to adduce both types of defence evidence violate the Charter?

(3) Does Bill C-51 violate the Charter because it requires a defendant to disclose his/her defence in a pre-trial application and be exposed to cross-examination at a stage-two hearing?

(4) Is the legislation inconsistent with the Charter because it affords a complainant with rights at a second-stage hearing to determine the admissibility of his/her private records and prior sexual conduct?

(5) Does the legislation violate s. 15 of the Charter because it establishes different rules for the admissibility of evidence for individuals charged with sexual assault?

(6) In oral submissions, Mr. Al-Rashidy advanced an additional argument not contained in his written materials. His position is the legislation is unduly burdensome, time consuming and will deprive defendants of access to justice due to a lack of resources to pursue costly applications.

Jurisdiction & Onus

[17] The Notice of Application and Constitutional Issue requests an order declaring sections 278.92 to 278.97 invalid and of no force and effect due to their inconsistency with the defendant's Charter rights.

[18] As a provincial court judge, I am not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only Superior Court Judges of inherent jurisdiction and courts with statutory authority possess that power. Provincial Court Judges do however, have the power to determine the constitutionality of a law where it is properly before them.

[19] The effect of any finding by a Provincial Court Judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982. It is open to Provincial Court Judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the law remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction.

[20] The onus is upon the defendant to establish his Charter rights have been infringed by the legislation on a balance of probabilities. If so, the Crown bears the burden of establishing the law is justified under s. 1 of the Charter.

[21] For the reasons that follow, I am not satisfied that sections 278.92 to s. 278.97 violate the Charter.

The Legislation

[22] The provisions which are being challenged in this case are as follows:

Evidence of Complainant's Sexual Activity

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence

(a) is not being adduced for the purpose of supporting an inference described in subsection (1);

(b) is relevant to an issue at trial;

(c) is of specific instances of sexual activity; and

(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that a judge must consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society's interest in encouraging the reporting of sexual assault offences;

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(d) the need to remove from the fact-finding process any discriminatory belief or bias;

(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(f) the potential prejudice to the complainant's personal dignity and right of privacy;

(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(h) any other factor that the judge, provincial court judge or justice considers relevant.

Interpretation

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.

Admissibility — accused in possession of records relating to complainant

278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

(b) in any other case, that the evidence 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.

Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;

(b) society's interest in encouraging the reporting of sexual assault offences;

(c) society's interest in encouraging the obtaining of treatment by complainants of sexual offences;

(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(e) the need to remove from the fact-finding process any discriminatory belief or bias;

(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(g) the potential prejudice to the complainant's personal dignity and right of privacy;

(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(i) any other factor that the judge, provincial court judge or justice considers relevant.

Application for hearing - sections 276 and 278.92

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).

Form and content of application

(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.

Jury and public excluded

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

Judge may decide to hold hearing

(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 that the 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 276(2) or 278.92(2).

Hearing -- jury and public excluded

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).

Complainant not compellable

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

Right to counsel

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

Judge's determination and reasons

(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 at trial.

Record of reasons

(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.

Publication prohibited

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant's right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Issue 1: Does the new legislation violate the Charter because it operates retrospectively?

[23] Bill C-51 came into effect after Mr. F.A. was charged and after his trial date was set. To be more specific, the legislation came into effect two months before his trial started. No pre-trial motions were contemplated when the trial was set.

[24] Both parties agree that the amendments operate retrospectively.

[25] The defence position is that the retrospective application of the legislation violates his right to make full answer and defence and his right to a fair trial.

[26] The Crown's position is the changes are procedural in nature, not substantive and as such they do not operate to violate Mr. F.A.'s Charter rights. I agree.

[27] In R. v. Bickford (1990), 51 C.C.C. (3d) 181 (C.A.), the defendant unsuccessfully argued that his s. 7 Charter rights had been violated by changes to the rules of evidence that applied in his sexual assault case. As the law stood in 1987 when Mr. Bickford was charged and entered his plea, he could not have been convicted solely upon the unsworn evidence of the child he was alleged to have sexually assaulted. At that time the law required that her evidence be corroborated by some other material evidence. However, by the time the trial commenced in April 1988, the corroboration requirement had been abolished and the child's evidence alone was capable of convicting the respondent.

[28] In Bickford the Court of Appeal explained:

As a matter of fundamental principle, a statute is not to be construed as having a retrospective operation unless such a construction is made evident by its terms or arises by necessary implication. However, the presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters. Speaking generally, no person can be said to have a vested right in procedure or a right in the manner of proof that may be used against him. Corroboration is a procedural or evidentiary matter going only to proof of the offence. An accused has no right to have the charge against him proved by corroborated evidence or to require corroboration as a precondition to his conviction. His right is to be tried according to law, that is, in accordance with the evidentiary rules and procedural requirements in effect at the time of his trial.

[29] Mr. Bickford's s. 7 Charter argument was dismissed:

The contention that…the change in the corroboration rules constitutes an infringement of his rights under s. 7 of the Charter may be dealt with briefly. In my opinion, the change does not operate so as to deprive the respondent of a fair trial nor does it deprive him of any of the rights guaranteed by s. 7 or indeed by any other provision of the Charter. For the reasons already stated, he had no vested right in the evidentiary or procedural rule that required a child witness's testimony to be corroborated nor can he be said to have acquired such a right because the prosecution against him began before the rule was abolished. By the same token, he has no vested right to rely on a lack of corroboration defence that may have been open to him before the law was changed. The elements of the offence with which he is charged remain the same; his right to make full answer and defence is unimpaired by the change; and the Crown continues to bear the strict burden of proving its case beyond a reasonable doubt.

[30] More recently in Dineley, 2012 SCC 58, the Supreme Court of Canada affirmed the principle that statutory enactments that relate to evidentiary or procedural matters operate retrospectively and are therefore an exception to the presumptions against retrospective application of laws. Procedural provisions may, in their application, affect substantive rights. If they do, they are not purely procedural and do not apply immediately. In Dineley the Supreme Court of Canada held that the amendments to the impaired driving legislation had the effect of eliminating a potential defence and therefore as a matter of statutory construction the legislation could not be applied retrospectively.

[31] Unlike in the case of Dineley, Bill C-51 does not have the effect of depriving the defendant of a potential defence. Mr. F.A.'s situation is analogous to the one in Bickford. The amendments in question clearly do not alter the essential elements of the offence with which the defendant is charged; the substance of the law he is alleged to have violated remains unchanged. The trier of fact is still required to determine whether on the totality of the evidence the Crown has discharged the onus of proving the commission of the offence beyond a reasonable doubt. While Mr. F.A. has the right to a fair trial, he has no vested right in rules governing the admissibility of evidence. A change in the law regarding the procedure for the admissibly of evidence, whether effected by statute, Rules of the Court or by a judicial decision, is applicable to trials taking place after the date of the change notwithstanding that the events giving rise to the charge occurred before the change.

[32] As in the case of Bickford, I find the procedural changes encompassed in Bill C-51 do not violate Mr. F.A.'s s. 7 rights, or any other section of the Charter.

Issue 2: Does Bill C-51 violate the Charter because it creates a blanket presumption of inadmissibility in relation to evidence of a complainant's prior sexual activity and records in the possession of the defence? Does the mandatory two-step pre-trial application process to adduce both types of defence evidence violate the Charter?

a) Prior Sexual Conduct of the Complainant

[33] The new legislation retains a two-stage procedure to admit evidence of a complaint's prior sexual conduct.

[34] The former first step in s. 276.1 has been replaced by s. 278.93. There are no substantive differences to step one of the process. The first step continues to require an application in writing which outlines detailed particulars of the evidence the defence seeks to adduce and the relevance of the evidence to an issue at trial. A copy of the Application must still be served on the Crown and the court a minimum of 7 days in advance of the trial. The application is to be conducted in camera, a publication ban is mandatory in respect of evidence that is not admitted, the complainant is still not a compellable witness and a judge is required to give reasons for his or her decision. A court continues to be required to make a preliminary assessment as to whether evidence of specific instances of sexual activity is capable of being admissible. If so, a stage two hearing will be held.

[35] The requirements for admissibility of the evidence at stage two also remain the same under Bill C-51. As was the case under the former s. 276(2), pursuant to s. 276(2)(d) and s. 278.92(b) the evidence may only be admitted if it has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The factors a court must take into consideration at the first stage and second stage of any application remain unchanged and are still found in s. 276(3).

[36] The defence arguments advanced in this case regarding the requirements for the two-step procedure were unsuccessfully advanced in Darrach and fail for the same reasons in Mr. F.A.'s case.

[37] In Darrach, the accused objected to the exclusionary rule created by s. 276(1) on the grounds that it created a "blanket exclusion" that prevents an accused from adducing evidence necessary to make full answer and defence, as guaranteed by ss. 7 and 11(d) of the Charter. The Supreme Court of Canada disagreed. The court held in Darrach, that s. 276 did not function as a blanket exclusion as alleged by the defence. Rather, s. 276 controls the admissibility of evidence of sexual activity by providing judges with criteria and procedures to help them exercise their discretion to admit it. An accused has never had a right to adduce irrelevant evidence. Nor is there a right to adduce misleading evidence to support illegitimate inferences or to distort the truth-seeking function of the trial process. Because s. 276(1) is an evidentiary rule that only excludes material that is not relevant, the Supreme Court of Canada held that it cannot infringe the accused's right to make full answer and defence.

[38] In Mr. F.A.'s case the defence has mischaracterized Bill C-51. Far from being a "blanket exclusion" s. 276 continues to operate only to prohibit the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences known as the "twin myths." Namely that a complainant is more likely to have consented or that she is less worthy of belief "by reason of the sexual nature of [the] activity" she once engaged in. Evidence tendered to support a different and legitimate inference can be admitted following a two-stage vetting procedure.

[39] The prohibition of evidence to support the twin-myths, the two-stage process, the factors to be consider and the standard for admissibly have withstood Charter scrutiny in Darrach. They continue to do so.

b) The admissibility of s. 278.1 records in the possession of the defence

[40] Section 278.92, s. 278.93 and s. 278.94 provide for a new two-stage procedure for determining the admissibility of records as defined in 278.1 and in the possession of the defence. It is the same two-step procedure for determining the admissibility of other sexual activity of the complainant.

[41] The defence submits the legislation amounts to a blanket prohibition and the application process an unconstitutional change to the rules of evidence. I disagree.

[42] Firstly, unlike in the case of evidence of prior sexual conduct of the complainant, there are no categories of relevance for which the records are precluded from being tendered. In addition, an application process in not engaged for all records in the possession of the defence, only those over which the complainant enjoys a reasonable expectation of privacy.

[43] Secondly, there is no blanket prohibition against admissibility. The legislation only creates a screening process for relevance. The right to make full answer and defence is a core principle of fundamental justice. However, it does not include the right to adduce evidence that would distort the search for the truth inherent in the trial process. There has never been a right to adduce irrelevant evidence, therefore requiring an application does not offend a defendant's rights. Courts have recognized, belatedly, that certain techniques of cross-examination traditionally employed in sexual assault cases have distorted rather than advanced the search for truth. Bill C-51 guards against such techniques.

[44] Third, the requirement to hold a voir dire to determine if the contents of a complainant's private records may be adduced into evidence by the defence is not new. In R. v. Osolin, [1993] S.C.J. No. 135, the Supreme Court of Canada endorsed the practice of holding a voir dire to determine whether the complainant could be cross-examined on the contents of her medical records in the possession of the defence:

In each case the trial judge must carefully balance the fundamentally important right of the accused to a fair trial against the need for reasonable protection of a complainant, particularly where the purpose of the cross-examination may be directed to "rape myths". In order to assure the fairness of the trial, where contentious issues arise as to the cross-examination of the complainant a voir dire should be held.

[45] More recently in Shearing the evidence of the complainant was interrupted in order to conduct a voir dire to determine the relevance of cross-examination on the contents of the complainant's childhood diary.

[46] Full answer and defence does not entitle the accused to admit all types of evidence that tends to prove his or her innocence irrespective of the ordinary rules governing the admissibility of evidence. A complainant's private records will continue to be admissible pursuant to s. 278.92(2)(b) if, as in the case of evidence prior sexual conduct by the complainant, the records are determined to be relevant to an issue at trial and have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice.

[47] Fourth, the standard for the admissibility of the contents of a complainant's private records is not new. It was established in R. v. Osolin, [1993] 4 S.C.R. 595, when the defence sought to cross-examine the complainant on the contents of her medical records. It was also the standard reiterated in 2002 by the Supreme Court in Shearing when it held that the trial judge did not apply the correct test when assessing whether the complainant could be cross-examined on parts of her diary which the defence possessed:

The test for admissibility of defence evidence is whether the prejudicial effect of that evidence substantially outweighs its probative value: R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595. In weighing prejudicial and probative value, the trial judge must consider not only the accused's right to full answer and defence, but also the importance of the complainant's and other witnesses' privacy and equality rights, as outlined in R. v. O'Connor, [1995] 4 S.C.R. 411, and R. v. Mills, [1999] 3 S.C.R. 668. The majority decision in Osolin, supra, clearly held that, similar to O'Connor, supra, and Mills, supra, the privacy and equality rights of the complainant as protected by the Charter should inform the trial judge's decision on whether to restrict the defence's cross-examination.

[48] In Shearing the trial judge conflated the test for production of records to a court to determine if they should be disclosed, with the test for admissibility at trial. The test for admissibility of defence evidence at trial continues to be governed by Seaboyer. The issue for the trial judge in Shearing should have been whether cross-examination on the diary would create prejudice to the complainant that "substantially outweighed" its potential probative value to the appellant, and whether cross-examination on the absence of entries recording abuse relied upon "rape myths" or the equivalent.

[49] The same standard was subsequently applied in R. v. T.C., [2004] O.J. No. 4077 (C.A.). The trial judge prevented defence counsel from cross-examining a complainant on a report from a counsellor that was in the possession of the defence. The Court of Appeal held that the judge correctly excluded the evidence regarding KC's counselling reports as its prejudicial effect substantially outweighed its probative value.

[50] Lastly, the standard for the admissibility of defence evidence in a sexual assault case has been found to be constitutional. In Darrach, it was described by the Supreme Court of Canada as "not a departure from the conventional rules of evidence." In Darrach it was also described as serving to "protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to have significant probative value."

[51] I find that the requirement by a judge to consider the factors set in s. 278.92(3)(a-i) before making a determination as to the admissibility of a complainant's private records does not offend the Charter. The factors a court must consider are also not new:

i. In Osolin, trial judges were directed to consider the complainant's privacy and equality rights in assessing the potential prejudice posed by a line of questioning on cross-examination on her medical records.

ii. The factors in s. 278.92(3) are in keeping with factors in s. 276(3) that a court must consider when deciding whether to admit a complainant's prior sexual history. It stands to reason that the factors would be the same given the highly personal nature of both types of evidence and the potential for a trier of fact to rely on them for an irrelevant or stereotypical purpose. A requirement to consider the statutory factors enhances, rather than detracts, from the truth-seeking function of a trial. I find that the inclusion of such factors in the analysis of the admissibility of a complainant's private records does not offend the Charter because they have already withstood constitutional scrutiny in Darrach.

iii. The factors in s. 278.92(3) overlap with the factors in s. 278.5(2) that a judge must considered when deciding whether to order production of third-party records to the court to review. The factors in s. 278.5(2) withstood Charter challenge in Mills.

[52] A final argument raised by the defence relates to the definition of "record" in s. 278.1. The defence submits that the definition is overbroad. The same argument was made and rejected by the Supreme Court of Canada in Mills. Bill C-51 did not change the definition of a record contained in s. 278.1. I find therefore that the definition continues to not offend the Charter.

[53] For the reasons indicated, I am not persuaded that the two-step application process, the factors a court must consider, nor the standard for the admissibility of a complainant's private records in the possession of the defence represent a significant departure from the common law or infringes the defendant's Charter rights.

Issue 3: Does Bill C-51 violate the Charter because it requires a defendant to disclose his or her defence in a pre-trial application and be exposed to cross-examination at a stage-two hearing?

a) Prior Sexual Conduct of the Complainant

[54] Pursuant to s. 278.93(4), at the first stage of any application to tender the prior sexual conduct of a complainant the defence must demonstrate the evidence is capable of being admissible before a s. 278.94 hearing will be granted.

[55] In this case, as in Darrach, the defence submitted that the requirement to submit an affidavit to establish the evidence is relevant to an issue at trial and capable of being admissible, as well as the requirement to submit to cross-examination if a stage-two hearing is granted, infringes the right not to be compelled to testify at his own trial, the right to be presumed innocent and the right not to incriminate oneself. The Supreme Court of Canada disagreed.

[56] As was observed in Darrach, the demand to submit to cross-examination on the second stage of s. 276 application was analogous to the procedure in a Corbett application:

In R. v. Underwood, [1998] 1 S.C.R. 77, at paras. 6-11, Lamer C.J. explained how a voir dire in which the defence discloses evidence it intends to call is consistent with a "scrupulously fair" trial that observes the case-to-meet principle. The accused can use the protection of a voir dire to apply to have some or all of his criminal record excluded at trial. He reveals the evidence he intends to call for his case, which allows the trial judge properly to apply the factors relevant to his request. As Lamer C.J. explained at para. 10:

[T]he purpose of this voir dire is not "defence disclosure". It creates no independent rights in the Crown, and, therefore should not be treated as an excuse for the Crown to deeply probe the case for the defence… The point is to provide the trial judge with the information he or she needs to make an informed decision, but the Crown has no right to require more than that.

[57] I dismiss the arguments in Mr. F.A.'s case for the same reasons that were given in Darrach. Namely, a decision to testify on a voir dire is a tactical one, it is not compelled testimony by the state. Any testimony provided on a voir dire is protected by s. 13 of the Charter. It cannot be tendered by the state to incriminate, it can only be used to impugn a defendant's credibility, not to establish his culpability. Lastly, the Charter guarantees the accused a fundamentally fair trial, not a perfect trial.

b) Records in the possession of the defence

[58] As is the case of an application to admit evidence of prior sexual conduct by the complainant, s. 278.93(2) requires the first step of any application to admit a complainant's private records to set out detailed particulars of the evidence and their relevance to an issue at trial. The requirement to establish relevance and engage in a voir dire prior to being able to adduce evidence of the contents of a complainant's private records is not new.

[59] In Osolin, the defence wanted to cross-examine the complainant on the contents of her medical records. The court reasoned that where the cross-examination may invoke rape myths the following should take place:

In the voir dire it will be necessary to show either by way of submissions of counsel, affidavit or viva voce evidence that the proposed cross-examination is appropriate. If at the conclusion of the voir dire the cross-examination is permitted then the jury must be advised as to the proper use that can be made of the evidence derived from the cross-examination. As a general rule the trial of an accused on a charge of sexual assault need not and should not become an occasion for putting the complainant's lifestyle and reputation on trial. The exception to this rule will arise in those relatively rare cases where the complainant may be fraudulent, cruelly mischievous or maliciously mendacious.

[60] McLachlin J. in Osolin, following her approach in Seaboyer, unequivocally stated, at p. 640-641:

"The rule is clear… Before cross-examination [of a complainant] can be allowed ... the defence must demonstrate that the cross-examination possesses 'a degree of relevance which outweighs the damages and disadvantages presented by the admission of such evidence."

[61] In Shearing, the trial judge held a voir dire before deciding whether to permit the defence to cross-examine the complainant on the contents of her diary.

[62] In other words, the requirement to hold a voir dire and establish the relevance of potentially prejudicial evidence is not a departure from the usual rules of evidence. I find that neither this requirement, nor the prospect of an accused being required to submit to cross-examination, offends the Charter for the same reasons which were expressed in Darrach. I would make two additional observations. Firstly, in some circumstances the evidentiary basis to admit a complainant's private records could be established through Crown disclosure or cross-examination of witnesses at a preliminary hearing. It will not always be necessary for the defendant to testify on an application. Second, applications heard in advance will ensure a complainant's cross-examination, and the trial as a whole, proceeds without out interruption. In Shearing the complainant's evidence was halted in order to embark on a voir dire to determine the admissibility of her diary entries.

Issue 4: Is the legislation inconsistent with the Charter because it affords a complainant with rights at a second-stage hearing to determine the admissibility of his/her private records and prior sexual conduct?

[63] A complainant is now entitled to appear, make submissions and be represented by counsel at a stage two hearing to determine the admissibility of their prior sexual conduct and records: s. 278.94(2) and s. 278.94(3).

[64] I agree with the decision in R. v. Boyle, [2019] O.J. No. 155, that in order to exercise his or her rights a complainant is entitled to a copy of the application at a stage-two hearing. I also agree that the statutory entitlement to appear and make submissions in s. 278.94(3) may include the right to cross-examine the defendant on the affidavit sworn in support of the application.

[65] The defence position is that this aspect of the legislation deprives him of a fair trial because the defendant is required to reveal his defence not only to the Crown, but to the complainant and because he might potentially be cross-examined not just by the Crown, but also by counsel for the complainant.

a) Disclosure to the Crown and the complainant

[66] In Darrach, the defence argued that s. 276 required a defendant to make premature and inappropriate disclosure of his defence to the Crown in order to establish the relevance of the evidence to an issue at trial. The Supreme Court of Canada held that this consequence of the legislation did not violate the Charter. In so doing the court contemplated that the Crown would consult with a complainant on any s. 276 application. What is more, the Supreme Court of Canada went so far as to say that if the defence was going to raise a complainant's sexual activity it could not do so in such a way as to surprise the complainant. A fair trial protected by s. 11(d) is one that does justice to all the parties. The right to full answer and defence does not include the right to "defence by ambush." In other words, it is not a violation of the defendant's Charter right for the Crown and complainant to be made aware in advance of any prior sexual acts the defence intends to confront the complainant with in cross-examination. For the same reasons, I do not find that disclosure aspect of Bill-C-51 violates the Charter.

[67] No compelling reason was submitted to me as to why defence disclosure of private records being adduced in evidence should be treated any differently than disclosure of someone's private sexual activity. Both pertain to sensitive information over which a complainant has a privacy interest. Both potentially lend themselves to impermissible inferences based on myths and stereotypes.

[68] A complainant is already entitled to be notified and make submissions when the defence is seeking, and the court orders, third party records to be disclosed to the defence pursuant to s. 278.3(5) and s. 278.4(2). The notice of any application to obtain access to records in possession of a third party must set out grounds to establish the record is likely relevant. The complainant is typically represented at a third party records application by independent counsel funded by the Attorney General at legal aid tariff rates. Therefore, when such an application is successful, a complainant is made aware of what documents the defence has been given access to and the reason the defence submits they are relevant to an issue at trial. Knowing what records a court has ordered to be produced to the defence, there is nothing to prevent a complainant from accessing and reviewing them prior to testifying. The third-party records regime is constitutional and no compelling reason has been submitted to me as to why a complainant should also not also be entitled to know when the defence is in possession of his/her private records by means other than the third-party records procedure in s. 278.1 to s. 278.9 of the Criminal Code.

b) The complainant's right to counsel and make representations at a stage-two hearing

[69] I am not persuaded that providing the complainant with the opportunity to be heard or cross-examine the defendant at a hearing to determine the admissibility of highly sensitive and private information takes away from the accused's Charter rights.

[70] In Shearing, I note that when the complainant was confronted with her diary by the defence in cross-examination, she obtained a short adjournment in order to be represented by counsel who made arguments on her behalf. I also note that pursuant to s. 278.4(2), at any application to obtain a complainant's records held by a third party the complainant is entitled to participate and make submissions to the trial judge as to whether his/her records should be produced to the court for inspection and disclosed to the defence. While never specifically argued, in neither case did the Supreme Court of Canada indicate that giving the complainant the opportunity to be heard detracted from an accused's Charter rights.

[71] As for cross-examination by two potential counsel at a hearing, in Darrach the Supreme Court of Canada signalled guidelines for cross-examination of the defendant on a voir dire that were borrowed from the Corbett application procedure. Namely, cross-examination cannot be treated as an excuse for the Crown to deeply probe the case for the defence. The point is to provide the trial judge with the information he or she needs to make an informed decision, but the Crown has no right to require more than that. The same would hold true with respect to cross-examination by counsel for the complainant. Moreover, a trial judge can preclude questioning that is repetitive. The use of a defendant's voir dire evidence is limited by s. 13 of the Charter.

[72] Before leaving this issue I would make two further observations. First, I find the analogy of a sexual assault re-trial persuasive, albeit not perfect. At a sexual assault re-trial, the Crown and a complainant have disclosure of the defence strategy from the first trial and the accused may be subject to cross-examination again if he chooses to testify. This "advantage" alone, would not preclude an individual from being re-tried on the basis that their Charter rights have been infringed. Second, defendants who are tried with co-accused(s) and decide to testify can receive a fair trial, notwithstanding they are subjected to cross-examination by more than one lawyer with opposing interests.

Issue 5: Does the legislation violate s. 15 of the Charter because it establishes different rules for the admissibility of evidence for individuals charged with sexual assault?

[73] Section 15 of the Charter provides the following protection:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[74] The defence position is that the disparate treatment between the admissibility of evidence in sexual assault cases and other offences is manifestly unfair and deprives Mr. F.A. of his s. 15 right to equal protection of the law.

[75] To succeed with a s. 15 claim, the burden is on Mr. F.A. to show:

(1) Bill C-51 created a distinction based on an enumerated or analogous grounds: race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, and,

(2) The distinction created a disadvantage by perpetuating prejudice or stereotyping.

[76] I am not satisfied that either pre-requisite to a successful s. 15 Charter claim has been established by the defence on a balance of probabilities. What is more, an argument could be made that Bill C-51 is in keeping with s. 15(2) of the Charter. That is, the objective of the legislation is the amelioration of conditions of disadvantaged individuals or groups: women and children.

[77] In Mills the Supreme Court of Canada held that the right to full answer and defence and a complainant's right to privacy must be defined in light of each other, and both must be defined in light of the equality provision of s. 15. In my view, Parliament's intention in passing of Bill C-51, like Bill C-46 (introduction of the third-party records legislation) is clear:

Parliament also sought to recognize the prevalence of sexual violence against women and children and its disadvantageous impact on their rights, to encourage the reporting of incidents of sexual violence, to recognize the impact of the production of personal information on the efficacy of treatment, and to reconcile fairness to complainants with the rights of the accused. Many of these concerns involve policy decisions regarding criminal procedure and its relationship to the community at large. Parliament may also be understood to be recognizing "horizontal" equality concerns, where women's inequality results from the acts of other individuals and groups rather than the state, but which nonetheless may have many consequences for the criminal justice system. It is perfectly reasonable that these many concerns may lead to a procedure that is different from the common law position but that nonetheless meets the required constitutional standards.

[78] Courts cannot presume that new legislation is unconstitutional simply because it may represent a departure from the common law, rules that have been applied in the past, or ushers in a new way of balancing competing rights.

Issue 6: Access to Justice Argument

[79] In submissions the defence submitted for the first time that Bill C-51 violates the Charter because it will have the effect of depriving many defendants of access to justice due to the additional time and cost involved in complying with the complexity of the new legislative scheme.

[80] I am not unsympathetic to this argument. However, the principles of fundamental justice embrace more than the rights of an accused. It could also be argued that historically victims of sexual assault have been deprived of access to justice because of the application of rules of evidence and the myths and stereotypes that have pervaded the criminal justice system, discouraged reporting and resulted in unsatisfactory results.

[81] In Mills, it was argued that the third-party records regime would impose an excessive burden on judicial resources. The Supreme Court of Canada held that the first step of the two-stage process will ensure that records are not needlessly or carelessly produced to the court to review. The same could be argued in the case of the two step procedures enacted by Bill C-51.

[82] The new legislation will undoubtedly prolong some trials and come at a cost, as all complex criminal trials do. There may be more Rowbotham applications. Orders made to appoint counsel to cross-examine a complainant pursuant to s. 486.3 may be extended to cover pre-trial applications to cross-examine a complainant on her private records or prior sexual activity. There will be costs associated with obtaining counsel for the complainant. Expediency and cost are no more a reason to shortchange a defendant of their constitutional rights and access to justice than a complainant in a sexual assault case. In other words, I decline to decide this application for reasons based on expediency and cost.

[83] Parliament decided the new legislation was necessary. Courts do not hold a monopoly on the protection and promotion of rights and freedoms:

Parliament also plays a role in this regard and is often able to act as a significant ally for vulnerable groups. This is especially important to recognize in the context of sexual violence. The history of the treatment of sexual assault complainants by our society and our legal system is an unfortunate one. Important change has occurred through legislation aimed at both recognizing the rights and interests of complainants in criminal proceedings, and debunking the stereotypes that have been so damaging to women and children, but the treatment of sexual assault complainants remains an ongoing problem. If constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament's attempt to respond to such voices.

[84] Challenges and resistance to the new law based on cost or resources are best addressed to and by Parliament. My jurisdiction is solely with the issue of constitutionality. For the reasons already indicated, I conclude that Bill C-51 does not violate the defendant's Charter rights.

Released: June 6, 2019

Justice Sandra Caponecchia