WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-06-28

Court File No.: Kitchener Info # 18Y311

Between:

Her Majesty the Queen

— and —

B.C.S. (a young person)

Before: Justice Scott Latimer

Heard on: June 18, 2019

Reasons for Decision released on: June 28, 2019

Counsel

T. Donnelly — counsel for the Crown

M. McRae — counsel for the young person[1]

Decision

LATIMER J.:

[1] Introduction

[1] This ruling concerns a statutory court's ability to make an order appointing counsel for a seventeen-year old complainant who seeks representation during a legal proceeding inquiring into her sexual history. A section 278.93 Code application is scheduled to be heard in July, with the trial set for December 2019. I have been assigned to preside over this trial and, as such, this preliminary application was placed before me for consideration.

[2] The Attorney General of Ontario seeks an order that counsel be appointed for the complainant. Ms. Donnelly advises that the Ministry of the Attorney General and Legal Aid Ontario have structured an agreement where Legal Aid will provide funding to complainants who wish to exercise standing in these evidentiary proceedings, but only subject to a court order. Hence, the Crown's application before me. In my view, the most significant issue is the jurisdiction of a statutory court to make such an order. At the close of submissions, I advised that I was satisfied that I possessed the jurisdiction to make such an order: specifically, that it was practically necessary in the circumstances of this case that the complainant be represented by counsel. I signed the draft order and advised that short reasons would follow. These are those reasons.

Context

[3] A young person is charged with sexual assault. The complainant is also young, aged seventeen years. The defence has brought an application under s. 278.93 for a hearing under s. 278.94 to admit evidence of other sexual activity involving the complainant, pursuant to s. 276(2) of the Code. If a hearing is granted, the complainant is entitled to standing and to be represented by counsel: see ss. 278.93(3)-(4). I am advised that the complainant wishes to avail herself of these legal rights, and wishes to be represented by counsel.

Jurisdiction

[4] The Ontario Court of Justice is a statutory court. When sitting as a youth justice court, a provincial court judge is designated as a youth court judge for the purpose of the Youth Criminal Justice Act (YCJA): see Courts of Justice Act, R.S.O. 1990, c. 43, s. 38(3). This designation is not presently relevant, as a youth court judge retains the same "jurisdiction and powers" that a provincial court judge would otherwise possess: see YCJA, s. 14(6).[2]

[5] A provincial court judge is a creature of statute, whose authority to make any order must be derived "expressly or impliedly from its enabling jurisdiction": R. v. Hynes, 2001 SCC 82, [2001] 3 SCR 623, 159 CCC (3d) 359, at para. 28. There is no specific statutory authority, in either the YCJA or the Criminal Code, permitting the appointment of counsel for a complainant in the present circumstances.[3] The only basis upon which a statutory court could make such an order would be if it formed part of the court's implied power to control its own process; what is sometimes termed the "doctrine of jurisdiction by necessary implication". In R. v. Cunningham, 2010 SCC 10, [2010] 1 SCR 331, 254 CCC (3d) 1, at para. 19, Justice Rothstein, writing for the court, stated:

Likewise in the case of statutory courts, the authority to control the court's process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law. This Court has affirmed that courts can apply a "doctrine of jurisdiction by necessary implication" when determining the powers of a statutory tribunal:

... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime...

(ATCO Gas & Pipeline Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 51)

[6] This jurisdiction was further discussed by the Supreme Court of Canada in Ontario v. Criminal Lawyers Association, 2013 SCC 43, 300 CCC (3d) 137. In that decision, all members of the court agreed that a statutory court had jurisdiction to appoint amicus curiae in certain circumstances. The majority opinion, written by Justice Karakatsanis, described this power as the "jurisdiction implied by the ability of statutory courts to function as courts of law", and held that an amicus appointment may be made when it is "necessary to permit a particular proceeding to be successfully and justly adjudicated": see paras. 16 and 44.

Analysis

[7] I read these rulings as recent reminders of a historical truth: all courts – superior and inferior – possess inherent procedural jurisdiction to make orders that are practically necessary to ensure that the proceedings they are statutorily mandated to conduct are administered justly and fairly.[4] The fact that the Superior Court of Justice additionally has inherent substantive authority does not leave a statutory court without the power to make procedural orders that are necessary to control its own process and ensure that justice is done.[5]

[8] These implied procedural powers are acknowledged in the current Criminal Rules of the Ontario Court of Justice, in particular Rule 4.1:

When conducting a hearing or trial, the Court has the power to make any order or direction in relation to the conduct of the proceeding that would assist in ensuring that it is conducted in accordance with the fundamental objective set out in rule 1.1.

To be clear, I do not interpret this rule as a free-standing source of authority. As Justice Watt wrote in R. v. S.S.S., 136 CCC (3d) 477, at 490, "[r]ules passed under s. 482 regulate the procedure and practice in the court that makes them. They do not confer jurisdiction, whether concurrent or exclusive." The existence of Rule 4.1, codified pursuant to s. 482(2) of the Code, is simply an express acknowledgment of a procedural power that the Ontario Court of Justice has always possessed.

[9] In this particular proceeding, I am satisfied I have the authority to make the order requested. I am further satisfied that a seventeen-year old complainant requires legal counsel to navigate the complicated evidentiary provisions engaged in this case. I would note that the current Code provisions form part of a continuing legal evolution aimed at rooting out discriminatory reasoning that has long operated unjustly towards sexual assault complainants, the vast majority of whom are women: see R. v. C.M.G., 2016 ABQB 368, per Martin J (as she then was); R. v. Barton, 2019 SCC 33, at para. 74. In the circumstances, it is entirely just to make the order and ensure legal representation for all parties at the upcoming hearing.

Justice Scott Latimer

Footnotes

[1] While given notice, Mr. McRae and the young person have declined to make submissions on this particular issue, and take no formal position on the application.

[2] Equally, when a youth criminal proceeding is transferred to the Superior Court of Justice, a judge of that court is deemed to be a youth court judge pursuant to the YCJA, but still retains the broad arsenal of powers granted to a superior court of criminal jurisdiction: see s. 14(7) of the YCJA.

[3] Unlike, for example, the orders specifically contemplated in s. 486.3 of the Code (appointment of counsel for cross-examination of a complainant in certain enumerated circumstances), s. 672.5(8) (appointment of counsel during a fitness hearing), s. 25(4) of the YCJA (appointment of counsel for a young person accused), or the Charter procedure developed pursuant to R. v. Rowbotham, 41 CCC (3d) 1 (Ont. C.A.).

[4] An informative and engaging review of the legal history in this area is contained in Justice David Stratas' extra-judicial writing in the University of New Brunswick Law Journal, "A Judiciary Cleaved: Superior Courts, Statutory Courts and the Illogic of Difference", (2017) 68 UNBLJ 54.

[5] For example, in R. v. Lepage, 214 CCC (3d) 105 (Ont. C.A.), the Court of Appeal was satisfied that a Review Board panel – another creature of statute - had the inherent jurisdiction to appoint amicus curiae when "the interests of justice so require": see para. 29.