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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: September 17, 2019

Court File No.: 16-45003115

Between:

Her Majesty the Queen Respondent

— and —

R.S.(A.) Applicant

Before: Justice T.E. Breen

Heard on: July 4 and 11, 2019

Reasons released: September 17, 2019

Counsel:

• S. Caramanna and A. Bugo — counsel for the Applicant
• R. Nathanson and B. Bovell — counsel for the Respondent

Decision

Breen J.:

Introduction

[1] By way of an Information, sworn August 9, 2016, the applicant is charged with sexual assault and sexual interference in relation to alleged inappropriate touching of his niece, J.D.R., between 2005 and 2008.

[2] In a notice of application, dated January 17, 2019, the applicant seeks an order pursuant to s.278.94(4) of the Criminal Code, permitting the admission of evidence of extrinsic sexual abuse of J.D.R. The notice of application was accompanied by a complete record, including an affidavit of the applicant, statements of J.D.R., her sister and mother, and submissions as to the relevance of the proposed evidence.

[3] On January 28, 2019, Crown counsel conceded that the evidence was "capable of being admissible". Defence counsel had provided informal notice of an intention to challenge the constitutional validity of s.278.92 and s.278.94 of the Criminal Code, which had been proclaimed in force on December 18, 2018. Given the basis for the constitutional challenge, the parties agreed that it had to be determined before addressing the admissibility of the evidence of extrinsic sexual abuse.

[4] The constitutional challenge was formalized by notice of application, dated May 30, 2019, by which the applicant challenges the validity of ss.278.93 and 278.94 of the Criminal Code.

[5] In short, the applicant contends that the statutory procedure for the determination of the admissibility of extrinsic sexual history and records in the possession of the defence compels the disclosure of defence evidence and strategy, in advance of trial, resulting in a breach of ss.7 and 11(d) of the Charter of Rights.

[6] In addition, the applicant contends that granting the complainant standing on the admissibility voir dire is inconsistent with the foundational principle that criminal prosecutions are brought on behalf of the state and prosecuted by agents of the Attorney General, who act in the public interest. It is submitted that the participation of the complainant in the admissibility voir dire gives rise to an appearance of unfairness.

[7] Argument concluded on July 11, 2019 with the trial scheduled to continue July 15, 2019. On July 12, 2019, I advised counsel that the application was dismissed, with reasons to follow. As set out below, I find that the statutory procedure for the determination of the admissibility of evidence of extrinsic sexual history and private records can be applied in a manner consistent with the principle against self-incrimination, the right to a fair trial and the complainant's rights to privacy and equality.

Statutory History

[8] Parliament's efforts to regulate the admissibility of evidence of a complainant's sexual history date back to 1976. In the Charter era, Parliament and the judiciary have engaged in an ongoing "dialogue", seeking an appropriate balance between a complainant's rights to privacy and equality and an accused's right to a fair trial. A summary of this dialogue aids in the interpretation of the new statutory provisions.

[9] In R. v. Seaboyer the Court considered the constitutional validity of s.276 of the Criminal Code, which formed part of a broad revision of sexual offences and restricted the admissibility of evidence of a complainant's extrinsic sexual history.

[10] In holding that s.276 contravened ss.7 and 11(d) of the Charter, McLachlin J. (as she then was), for the majority, reasoned that the exceptions to the general prohibition on the admission of evidence of a complainant's extrinsic sexual history were too narrowly drawn and resulted in the exclusion of relevant evidence.

[11] Having found s.276 to be unconstitutional, McLachlin J. proposed guidelines for the determination of the admissibility of evidence of a complainant's extrinsic sexual history. Parliament responded to the decision by essentially codifying the proposed guidelines.

[12] Following the decision in Seaboyer, the Court was called upon to address the question of defence access to a complainant's therapeutic counselling records. Commentators observed that, having been foreclosed by rape shield legislation, defence counsel turned to counselling records for information to discredit complainants. This strategy is derisively labelled "the nuts and sluts defence"; a term coined by Susan Estrich, a noted feminist legal scholar and former editor of The Harvard Law Review, to describe the efforts made to discredit Anita Hill's claims of sexual harassment by Supreme Court nominee Clarence Thomas.

[13] In R. v. O'Connor, the Court recognized the tension between a complainant's right to privacy and an accused's right to make full answer and defence, setting out a procedure governing the production of therapeutic counselling records to the defence. As with the "guidelines" in Seaboyer, the O'Connor procedure was later codified by amendment of the Criminal Code.

[14] The question of the admissibility of private records was not before the Court in O'Connor. Apart from distinguishing production from admissibility, L'Heureux-Dubè J. did not address the issue, although it had been considered previously in R. v. Osolin, where the Court applied the test from Seaboyer in determining the admissibility of evidence of a complainant's medical records adduced in cross-examination by the defence.

[15] This issue was next before the Court in R. v. Shearing, a case involving the prosecution of historical sexual assaults. In cross-examination of a complainant, defence counsel produced a diary maintained by the complainant during the relevant period, with the intention of establishing that she had made no entries regarding the alleged abuse.

[16] The witness was granted an adjournment and retained counsel. When the trial resumed the Court entered upon a voir dire to determine the permissible scope of cross-examination on the contents of the diary.

[17] It was the position of the complainant that she had not waived any privacy interest in the diary. Accordingly, the diary should be returned to her; the accused being obliged to seek its production in accordance with s.278.3 of the Criminal Code. It was the position of the defence that no limitations should be placed on the cross-examination.

[18] The trial judge declined to order the return of the diary. In considering admissibility, the trial judge applied the balance controlling the production of private records, concluding that defence counsel could cross-examine on specific entries that were inconsistent with the witness's testimony, but could not cross-examine on the absence of entries describing the alleged abuse.

[19] On appeal, the accused contended that the trial judge had erred in restricting the scope of cross-examination. The intervenor, LEAF (Women's Legal Education and Action Fund), renewed the position advanced by the complainant at trial; that the accused ought to have returned the diary and made an application for production.

[20] Binnie J., for a majority, held that the Criminal Code provisions governing production of private records in the possession of third parties had no application in circumstances where an accused is in possession of such a record. Production involves the use of the coercive power of the state to seize records in respect of which a complainant has an expectation of privacy. This coercive power is not engaged where an accused is already in possession of the record. The complainant's right to privacy is only engaged by cross-examination on the record.

[21] On that issue, the majority held that the trial judge had applied the wrong test. Admissibility, as distinct from production, was to be determined in accordance with the test in Seaboyer, as had been done in Osolin. Pursuant to this test, relevant evidence is admissible unless probative value is substantially outweighed by prejudicial effect. Prejudicial effect, in this context, includes the impact of cross-examination on the complainant's privacy and equality rights, as protected by ss.15 and 28 of the Charter.

[22] While concluding that the trial judge erred in determining the scope of cross-examination, the Court effectively endorsed the procedure employed, that being a voir dire conducted at the point in the cross-examination when defence counsel sought to question the complainant on the content of a private record.

[23] Parliament's response to Shearing was slow. Likely spurred by the public response to the prosecution of Jian Ghomeshi, Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, was proclaimed in force on December 18, 2018. Relevant to the present case, Parliament consolidated the procedure governing the admissibility of extrinsic sexual history and private records. For ease of reference the current scheme is set out below:

Section 276 — Evidence of 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; and

(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.

(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.

(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.

Section 278.1 — Definition of Record

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.

Section 278.92 — Admissibility of Records

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.

(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.

(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.

Section 278.93 — Application for Voir Dire

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

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

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

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

Section 278.94 — Conduct of Voir Dire

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

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

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

(4) At the conclusion of the voir dire, 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.

(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.

[24] Before addressing the constitutional issues raised, it is useful to summarize the substantive and procedural features of the statutory scheme and highlight the provisions that are central to the applicant's challenge.

[25] In short, Bill C-51 addresses the admissibility of private records by making such evidence subject to the same procedure and test for admissibility as that governing evidence of extrinsic sexual history.

[26] Sections 276(2) and 276(3), which govern the admissibility of evidence of sexual history, remain intact. Sections 278.92(2) and 278.92(3) effectively adopt the same test in relation to the admissibility of private records.

[27] The former ss. 276.1 and 276.2, which provided a two stage process for determining the admissibility of evidence of extrinsic sexual history, have been repealed. These sections are replaced by ss. 278.93 and 278.94, which provide essentially the same procedure, but now apply to both sexual history and private records.

[28] Central to the applicant's constitutional challenge are ss. 278.94(2) and 278.94(3), which confer standing upon the complainant to make submissions and be represented by counsel at the admissibility voir dire.

Position of the Parties

[29] Mr. Caramanna and Mr. Bugo focus their argument on s.278.92, which limits the admissibility of evidence of records as defined by s.278.1. Counsel begin with the admission (which is accepted by the respondent for purposes of the constitutional argument) that they are in possession of records containing personal information in relation to which the complainant has a reasonable expectation of privacy. The records do not involve the complainant's extrinsic sexual history.

[30] Counsel anticipate that they may seek to introduce the records in cross-examination of the complainant for impeachment purposes. The relevance of the records will depend upon the ability to establish a foundation, through cross-examination of the complainant, inconsistent with the content of the record.

[31] Being a "record" as defined by s.278.1, counsel may not introduce the evidence without first complying with the procedure set out in ss.278.93 and 278.94 and obtaining a favourable ruling.

[32] Counsel contend that ss.278.93(2) and 278.94(2) compel disclosure of the record, and an explanation of its relevance, to the prosecution and complainant in advance of trial. They argue that such compelled disclosure offends the principle against self-incrimination and s.7 of the Charter.

[33] In addition, counsel contend that disclosure of the defence strategy, and evidence in possession of the defence, will likely undermine the effectiveness of the anticipated cross-examination. Armed with knowledge of the content of the defence brief, a complainant is unlikely to supply the foundation for contradiction. Counsel submit that the negative impact of the compelled disclosure on the effectiveness of cross-examination compromises the fairness of the trial in breach of s.11(d) of the Charter.

[34] Finally, distinct from the fact of disclosure, counsel contend that affording standing to the complainant on the admissibility voir dire gives rise to an appearance of unfairness.

[35] In response, Mr. Nathanson and Ms. Bovell submit that the defence disclosure compelled by ss. 278.93(2) and 278.94(2) does not offend the principle against self-incrimination or compromise the fairness of the trial. They contend that the same arguments were rejected in R. v. Darrach, where the Court held that s.276.1(2) [repealed and replaced by 278.93(2)] did not offend the principle against self-incrimination and expressly recognized the legitimacy of Crown counsel seeking input from a complainant in advance of a voir dire to determine the admissibility of evidence of extrinsic sexual history.

[36] As concerns the standing afforded a complainant on the admissibility voir dire, counsel note that a complainant enjoys similar procedural rights in relation to the production of third party records. Further, in Shearing, the Court held that a trial judge must conduct a voir dire in advance of cross-examination of a complainant on private records, and implicitly approved of granting the complainant standing on such voir dire.

Analysis

Framework

[37] The present application exposes the tension between legislative efforts to protect the privacy and equality rights of sexual assault complainants and the fair trial interests of accused persons. It is common ground that these competing rights all have a constitutional foundation. As discussed in R. v. Mills, the resolution of this tension involves a balancing of rights, defining the limits of each within the specific context presented.

[38] There is no issue that the applicant's liberty interest is engaged by a criminal prosecution, which must therefore conform to the principles of fundamental justice. The applicant grounds his challenge to the legislation on the principle against self-incrimination and right to a fair trial. While expressly protected by s.11(d) of the Charter, the right to a fair trial is a specific application of the principles of fundamental justice, making it unnecessary for the analysis to stray beyond s.7.

[39] Adapting the framework recommended in R. v. S.(R.J.) to the present case, I will isolate the two distinct principles relied upon by the applicant and measure the legislation against them. I will then propose an interpretation of the legislation that accords with s.7 and finally measure that interpretation against the privacy and equality rights of the complainant.

The Principle against Self-Incrimination

[40] In R. v. P.(M.B.) Lamer C.J., for the majority, described the principle against self-incrimination as "perhaps the single most important organizing principle in criminal law" which is "firmly rooted in the common law" and a principle of fundamental justice within s.7 of the Charter.

[41] The principle against self-incrimination rests upon the concept of individual sovereignty. As explained by J.H. Wigmore:

...the individual is sovereign and ... proper rules of battle between government and individual require that the individual ... not be conscripted by his opponent to defeat himself....

[42] In P.(M.B.), Lamer C.J. explained that the principle against self-incrimination requires that the state establish a prima facie case before an accused can be expected to respond. This "case to meet" principle defines a negative right (freedom from) in the positive terms of the reciprocal duty imposed upon the state and was utilized by Professor Ratushny to explain the basis of the non-compellability of an accused:

In many ways, it is the principle of a 'case to meet' which is the real underlying protection which the 'non-compellability' rule seeks to promote. The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself, or by calling other evidence. However, even where a 'case to meet' has been presented, the burden of proof remains upon the Crown to the end.

[43] It is important to emphasize that any such response is distinct from the right of the accused to cross-examine prosecution witnesses.

The Crown must present its evidence at an open trial. The accused is entitled to test and to attack it. If it does not reach a certain standard, the accused is entitled to an acquittal. If it does reach that standard, then and only then is the accused required to respond or to stand convicted.

[44] While the above discussion concerns the non-compellability of an accused at trial, it is important to distinguish the principle from the privilege against self-incrimination. The principle overarches the criminal law and informs a variety of specific rules, the privilege being one such manifestation of the principle.

[45] Another manifestation of the principle, engaged by the present case, is the absence of a duty upon the defence to make disclosure to the prosecution in advance of trial. In R. v. Stinchcombe the Court held that an accused's right to make full answer and defence, which had been recognized as a principle of fundamental justice within s. 7 of the Charter, imposed a duty upon the prosecution to make disclosure, in advance of trial, of all relevant information within its possession. While not deciding the issue, the Court declined to impose any reciprocal obligation upon the defence, observing that such a duty would be inconsistent with the principle against self-incrimination. Sopinka J., for the Court, stated:

[11] It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. ...

[12] I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

[46] In P.(M.B.), Lamer C.J. cited the above passage in support of the proposition that the absence of a reciprocal disclosure obligation is an expression of the principle against self-incrimination.

[47] It therefore follows that a statutory provision that compels disclosure by the defence, in advance of trial, offends s.7 of the Charter.

Sections 278.93(2) and 278.94(2)(3)

[48] The applicant contends that the defence disclosure required by s.278.93(2) and s.278.94(2)(3) offends the principle against self-incrimination. The applicant's argument is premised on the assumption that the admissibility voir dire must be conducted in advance of trial and that the complainant has access to the complete application record. The respondent accepts this interpretation of the statutory scheme and defends it on this basis.

[49] The respondent does not dispute the constitutional status of the principle against self-incrimination but contends that the disclosure requirements of ss.278.93(2) and 278.94(2)(3) are constitutionally compliant.

[50] The respondent submits that the procedure for the determination of the admissibility of evidence of a complainant's private records and/or extrinsic sexual history strikes an appropriate balance between the competing rights of a complainant and an accused.

[51] This was the conclusion reached by the court in R. v. Darrach, in relation to the former s.276.1. Given that Bill-C51 simply extends this procedure to include private records, Darrach provides a complete answer to the challenge made by the applicant.

[52] Before addressing the judgment, it is helpful to set out the context in which the issues arose and were addressed at the trial in R. v. Darrach.

[53] In Darrach, the accused was charged with a single count of sexual assault. By way of an application filed August 13, 1993, the defence challenged the constitutional validity of several Criminal Code provisions relating to sexual assault prosecutions, including s.276.1(2)(a).

[54] The trial commenced on August 23, 1993, with counsel making submissions on the constitutional argument. On December 10, 1993, the trial judge ruled that the constitutional challenge was premature, as there was an insufficient factual foundation to determine the issues raised, the defence not having filed a formal application under s.276.1. The trial judge directed that the prosecution commence the presentation of their case and, that the defence, if so inclined, could file a s.276.1 application.

[55] On December 20, 1993, the complainant was called as a witness and her examination in-chief was completed. The trial judge then ruled that s.276.1(2)(a) [which required detailed particulars of the evidence sought to be adduced and an explanation of its relevance] was constitutional.

[56] On May 10, 1994, the defence filed an application under s.276.1. The particulars of the extrinsic sexual history sought to be introduced into evidence were set out in "an information and belief" affidavit. The trial judge ruled that the evidence was potentially admissible and directed that an admissibility voir dire, in accordance with s.276.2, be conducted.

[57] On May 30, 1994, the trial judge ruled that an affidavit from the accused was required for the admissibility voir dire, and further, that the prosecution was entitled to cross-examine the accused on the voir dire. As a result, the defence declined to proceed with the application.

[58] On June 30, 1994, the trial continued with the cross-examination of the complainant. Near the conclusion of the cross-examination defence counsel indicated an intention to question the complainant on her sexual history. The complainant was excused from the court and the defence entered into a s.276.2 voir dire. It was the position of the defence that the evidence of prior sexual history was relevant to the issues of consent or, in the alternative, the defence of mistaken belief in consent.

[59] In support of the application the defence filed an affidavit of the accused, sworn June 2, 1994. The accused, however, refused to submit to cross-examination. In the result, the trial judge dismissed the application ruling that, absent cross-examination, the affidavit was deserving of little or no weight. In any event, the affidavit failed to provide a link between the prior sexual activity and the defence of apprehended consent.

[60] On appeal before the S.C.C., the defence challenged the constitutionality of the procedures governing the admissibility of evidence a complainant's extrinsic sexual history, contending that the requirement that the accused file an affidavit in support of the application, and be subject to cross-examination, offended his right not to be compelled to be a witness in proceedings against him, as guaranteed by ss.7 and 11(c) of the Charter.

[61] In upholding the legislation, the Court made two distinct points. First, evidence of extrinsic sexual history is presumptively inadmissible at common law. As a result, it is appropriate that the party seeking to introduce the evidence bear the onus of establishing that it is properly admissible.

[62] It is implicit in this reasoning that the placement of such an onus upon the defence does not offend the principle against self-incrimination.

[63] Secondly, in response to the principal defence complaint, the Court affirmed the decision of the trial judge that the statutory requirement of an application in writing could only be satisfied by a non-hearsay affidavit. The Court rejected the submission that, where the accused was the source of the information, the provision "compelled" the accused to testify contrary to the principle against self-incrimination.

[64] The Court observed that evidence of extrinsic sexual history will typically be offered in support of a defence of apprehended consent. In such circumstances the participation of the accused required by s.276.2 does not offend the principle against self-incrimination:

[49] The accused is not forced to testify by s. 276. Nor is he coerced by the state in any way that engages Charter protection. Coercion to testify violates the principle against self-incrimination, but as Lamer C.J. defined it, "[c]oercion ... means the denial of free and informed consent" (R. v. Jones, [1994] 2 S.C.R. 229, at p. 249, cited in White, supra, at para. 42). In White, supra, at para. 76, Iacobucci J. found that "[i]f a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements." In applications under s. 276, there is free and informed consent when the accused participates in order to exculpate himself. He knows that he is not required to do so.

[50] There is an important difference between a burden of proof with regard to an offence or an evidentiary burden, and the tactical need to respond when the Crown establishes a prima facie case, in order to raise a reasonable doubt about it. "[T]he criminal law does not allocate an evidential burden to the accused to refute the Crown's case and he or she may decline to adduce any evidence. Nevertheless, if the accused decides not to call any evidence, he or she runs the risk of being convicted" (Sopinka, Lederman and Bryant, supra, at para. 3.17). Where there is neither a legal obligation nor an evidentiary burden on the accused, the mere tactical pressure on the accused to participate in the trial does not offend the principle against self-incrimination (s. 11(c)) or the right to a fair trial (s. 11(d)).

[65] This reasoning reflects the application of the "case to meet" principle which defines the scope of the principle against self-incrimination. In holding that s.276.2 is consistent with the "case to meet" principle, the decision in Darrach does not limit the protection afforded by the principle against self-incrimination. Implicit in the Court's reasoning is a view of apprehended consent as an affirmative defence, independent of the prosecution's obligation to establish the essential elements of the offence. While perhaps erroneous in theory, given the threshold requirement of an "air of reality" and the virtual necessity that the accused testify in support of the defence, such a characterization accords with the operation of the defence in practice.

[66] The same reasoning, however, has no application to circumstances where the defence seeks to impeach a complainant. As noted above, an accused's tactical choice to respond to a prima facie case by calling a defence is distinct from the right to challenge the prosecution case through cross-examination. A statutory provision that compels disclosure of impeachment material in advance of cross-examination offends the principle against self-incrimination.

[67] The above proposition is not undermined by the statutory requirement that an accused make disclosure of expert reports [Criminal Code s.657.3(3)(c)] or the common law rule permitting comment on the weight of a late disclosed alibi. Since s.657.3(3)(c) compels disclosure after the close of the prosecution case, the provision accords with the "case to meet" principle. As concerns alibi, the common law rule is so long established as to have attained the status of a "principle of fundamental justice" itself. Moreover, the rule does not affect the admissibility of the alibi evidence, it simply permits comment where late disclosure has precluded investigation of its merits. Finally, like apprehended consent, alibi can be described as an affirmative defence. While the common law rule contemplates disclosure in advance of trial, the fact that the required disclosure does not directly advance the prosecution case is seen as a circumstance supporting this exceptional limitation of the "case to meet" principle.

Right to a Fair Trial

[68] The defence further contends that disclosure to a complainant, in advance of trial, compromises the fairness of the trial. A complainant, equipped with advance knowledge of the defence brief and strategy, is positioned to adjust their testimony to avoid contradiction, thereby rendering cross-examination ineffective.

[69] The logic of this proposition is beyond dispute. As Doherty J.A. observed in R. v. White:

As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure.

[70] The integrity of a witness and the credibility of their testimony are brought into question when they gain access to relevant information prior to testifying. This concern is entrenched in our criminal law and informs investigative practices, trial procedure and evidentiary rules. The tainting of witnesses, by any means, undermines the truth seeking function of the trial.

[71] In response, the prosecution argues that the extent to which the testimony of a complainant has been influenced by access to the application record can be revealed in cross-examination. Cross-examination may well prove adequate where the impeachment potential of the record is based on inconsistencies between the contents of the record and the complainant's prior statements to police. A complainant who deviates from a prior statement to avoid contradiction can be cross-examined on the prior statement and face the suggestion that their change in position is attributable to knowledge gained from access to the defence application record. The situation is far different, however, where the foundation for contradiction must be established in cross-examination. A witness who has knowledge of the content of the defence brief "is in a position to tailor his or her evidence" and "escape the grasp of contradiction".

[72] In addition, the ability of the defence to explore the extent of the complainant's knowledge or understanding of the defence evidence or strategy is complicated by solicitor/client privilege. Where a complainant is represented by counsel on an admissibility voir dire, knowledge of the details of the defence application will likely be gained through privileged communications. Courts have cautioned that cross-examination of a witness as to knowledge gained through counsel encroaches upon privilege and is best avoided.

[73] The respondent also contends that the judgment in Darrach decides this point against the applicant, as the Court expressly recognized that a complainant was entitled to advance notice of the defence application to introduce evidence of their sexual history. The respondent relies upon the following statement by Gonthier J.:

[55] Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. For the reasons given above, the accused is not forced to embark upon the process under s. 276 at all. As the trial judge found in the case at bar, if the defence is going to raise the complainant's prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush. The Crown as well as the Court must get the detailed affidavit one week before the voir dire, according to s. 276.1(4)(b), in part to allow the Crown to consult with the complainant. [emphasis added]

[74] I do not accept that this statement can bear the weight that the respondent places upon it. While the use of the noun "ambush" may be evocative of a reciprocal disclosure obligation, such an interpretation cannot be reconciled with the Court's conclusion that the statutory scheme does not offend the "case to meet" principle and the express statement that s.276 does not compel "premature or inappropriate disclosure to the Crown".

[75] The statutory scheme under consideration in Darrach made no provision for notice to the complainant and the Court made no reference to the notice provisions governing applications for production of third party records. In my view, the Court's recognition of a prosecutorial discretion to "consult" with a complainant cannot reasonably be interpreted as an approval of a statutory requirement that a complainant be granted access to the complete application record in advance of trial.

[76] Indeed, beyond referencing the statutory notice period, the Court made no comment on the proper timing of the application, implicitly approving counsel's decision to bring the application during cross-examination of the complainant.

[77] In my view, given the above, the statement recognizes that the accused bears the onus of establishing the admissibility of a complainant's extrinsic sexual history before it is introduced, and that the prosecution may seek input from the complainant in advance of the voir dire.

[78] For the above reasons, I conclude that a statutory provision that compels disclosure of impeachment material to a complainant, in advance of cross-examination, compromises the fairness of the trial contrary to s.7 of the Charter.

The Complainant's Standing/Appearance of Unfairness

[79] The applicant contends that affording the complainant standing and counsel on the admissibility voir dire gives rise to an appearance of unfairness.

[80] Crimes, as distinct from civil torts, are traditionally viewed as offences against the state, to be prosecuted by agents of the Attorney General who act in the public interest. In contrast, a witness may well have an interest in the outcome of the prosecution and is not bound to act in the public interest. Affording an interested party standing to object to the admissibility of evidence tendered by the defence undermines the essential appearance of fairness.

[81] I would not give effect to this argument. A sexual assault complainant's privacy is acutely impacted by testifying at a criminal trial. Historically the law has discriminated against such witnesses, who are most frequently women or children. This mistreatment has resulted in a loss of confidence in the legal system and a widespread reluctance on the part of victims to seek the protection of the law. Affording complainants standing and a right to counsel will improve the quality of justice by ensuring that courts fully appreciate the impact of evidentiary rulings on the privacy interests of witnesses. Extending natural justice to complainants enhances the confidence of complainants and the public in the administration of justice.

[82] Third parties are routinely afforded standing in criminal proceedings when their rights are engaged. Indeed, complainants enjoy such rights in relation to applications for production of private records. Moreover, in Shearing the Court implicitly approved of a complainant's participation in the admissibility voir dire.

A Constitutional Interpretation of Sections 278.93(2) and 278.94(2)(3)

[83] This application was advanced and defended on the assumption that an admissibility voir dire under s.278.94 is to be conducted as a pre-trial application. As emphasized in my reasons above, this assumption as to the timing of the voir dire is essential to my conclusion that ss.278.93(2) and 278.94(2)(3) offend the principle against self-incrimination and the right to a fair trial.

[84] This assumption as to timing is not supported by the statutory language, judicial rules of practice, the test for admissibility or precedent. I will consider each in turn.

[85] The notice required for an application to adduce evidence of private records [s.278.92] is addressed in s.278.93(4) which provides for service on the prosecution and filing with 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". This provision is sufficiently flexible to permit an admissibility voir dire to be heard during the cross-examination of the complainant. The fact that in trial applications may lead to an abridgement of the seven day notice period does not preclude the application being routinely brought at this point in the trial. Resort to a statutory exception need not be exceptional.

[86] The stark contrast between the seven days notice required for an admissibility voir dire and the sixty days required for a production application [s.278.3(5)] further suggests that Parliament contemplated admissibility being determined in trial.

[87] Finally, s.278.93(3), which requires that an application under s.278.93(1) be heard in the absence of the jury, necessarily envisions the application being brought at trial.

[88] This is the approach taken in this Court, as s.2.5(2)(ii)(b) of the Criminal Rules of the Ontario Court of Justice contemplates applications pursuant to s.278.93(1) being brought during trial.

[89] More importantly, pursuant to s. 278.92(2)(b), private records are only admissible at trial where the defence establishes that the proposed evidence has significant probative value. Where the defence anticipates utilizing a record to impeach the complainant through contradiction, relevance is dependent upon the existence of an inconsistency between the record and the complainant's testimony. In these circumstances the application can only be brought during cross-examination after the foundation for contradiction is established.

[90] The soundness of the above reasoning is demonstrated in R. v. Harris, where Moldaver J.A. (as he then was) cautioned trial judges against ruling on s.276 applications in advance of trial. This caution, by necessary implication, can be read as an admonition to defence counsel to refrain from filing s.276 applications until the relevance of the proposed evidence is established.

[38] Given the vagaries that all too often exist when trial judges are asked to make "advance" evidentiary rulings, it seems to me that as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time as they are required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so.

[39] The case at hand serves to illustrate the point. Had the trial judge waited to make his final ruling on the Tuesday night incident until after the complainant had completed her evidence in-chief, he would have been in a much better position to assess its admissibility.

[40] As I have already explained, no harm came from the trial judge's advance ruling insofar as it related to the issue of honest but mistaken belief in consent since that defence was not a viable one. However, in my opinion, once the complainant testified, the door to admissibility was opened for an altogether different reason.

[41] It will be recalled that in her evidence in-chief, the complainant testified that prior to the March 4th weekend, her relationship with the appellant was a platonic one. Apart from his attempts to kiss her on the way to Pettawawa and at Sassy's Pub, she testified that there had been nothing of a sexual nature between them and that she had made it known to the appellant that she was not interested in a sexual relationship. That is why, according to the complainant, she was shocked when the appellant broached the subject of sex upon their return to the motel room.

[42] By testifying as she did, the complainant placed the nature of her relationship with the appellant in issue. Accordingly, in order to be able to make full answer and defence, the appellant was entitled to lead evidence designed to rebut the complainant's testimony.

[49] By failing to permit the appellant to lead evidence of the Tuesday night incident, the jury was deprived of the tools needed to fully and fairly assess the conduct of the parties and the believability of their respective positions. Left unchallenged, the complainant's testimony concerning her relationship with the appellant was potentially devastating to his position. If accepted, it would be a short step for the jury to conclude that the complainant did not consent to the sexual activity at the motel. To interpret s. 276 of the Code in a manner that would foreclose the appellant from attempting to rebut this crucial evidence would be to deprive him of his right to make full answer and defence.

[50] Accordingly, I am satisfied that once the complainant testified in-chief, the proposed evidence became relevant and highly probative of the issue of credibility.

[91] The tension between the timing of an admissibility voir dire and the principle against self-incrimination was addressed in R. v. Jacobsen, where the defence resisted the prosecution request that an anticipated defence application to adduce evidence of third party suspects be addressed during the prosecution case. In ruling on the issue, Ferguson J. held that the principle against self-incrimination entitled the defence to delay the voir dire until the point that they wished to introduce the evidence:

[10] I accept the law is as stated by Watt J. in his text, Watt's Manual of Criminal Evidence, Thomson-Carswell, 2003, s. 25.01:

General Principles of Defence Disclosure

Commentary

As a general rule, D is under no obligation, common law, statutory or constitutional, to disclose the nature of his/her defence, the evidence upon which s/he relies, or the witnesses, if any s/he proposes to call. To some extent, however, pre-voir dire conferences reveal certain aspects of the defence position, but not in any formal or binding way.

[11] The only exception to the general rule which the Crown suggested was applicable here is the common law requirement set down in the line of cases following McMillan. These cases set certain pre-requisites to the admissibility of evidence which tends to suggest that a third party suspect (someone other than the accused) committed the offence

[16] ...if counsel know there are pre-requisites to admissibility of proposed evidence or know that the opposite party opposes or will likely oppose its introduction then the counsel wishing to introduce it is obliged to first seek a ruling on a voir dire. That is what has happened so far in this trial.

[17] This traditional rule requires the defence to seek a ruling in advance of asking questions about third party suspects. As discussed below, the McMillan line of cases imposes pre-requisites to admissibility and consequently, where that line of a cases applies, the defence must seek a ruling before adducing such evidence as otherwise the trial judge cannot make a determination as to whether the pre-requisites are met.

[18] The voir dire could be sought any time before the question is asked. Obviously, it would be much less disruptive to the trial if the matter were raised during pre-trial motions or at least on notice so that the trial judge could make arrangements to minimize the inconvenience to the jury. However, in my view the defence is entitled to wait, if it insists, until it proposes to put the question.

[92] An interpretation of the statutory scheme that permits the defence to make application under s.278.93, during cross-examination of the complainant, respects the principle against self-incrimination. In addition, it permits the defence the opportunity to establish a foundation for contradiction before entering upon the voir dire. Proceeding in this fashion best preserves the integrity of the complainant's evidence and the fairness of the trial.

The Privacy and Equality Rights of the Complainant

[93] The remaining question is whether conducting the admissibility voir dire during cross-examination respects the complainant's right to privacy and equality.

[94] Context is important. An application to introduce evidence of private records, including those that relate to extrinsic sexual history, is distinct from an application requesting court ordered production of records from third parties. In the context of an admissibility voir dire, the privacy and equality interests of a complainant relate to the impact of disclosure of highly personal information during a public trial. This impact is particularly acute where the defence seeks to introduce the evidence in cross-examination of the complainant. Nevertheless, the complainant's constitutionally protected interests are only engaged at the point the defence seeks to elicit such evidence. A judicial determination of admissibility, at this point and in accordance with ss. 276(2) or 278.92(2), fully protects a complainant's right to privacy and equality.

[95] Support for this conclusion is found in Shearing, where the Court considered the fairness of a situation where defence counsel sought to impeach a complainant with a diary first produced in cross-examination. In addressing the complainant's privacy interests, Binnie J., for the majority, stated:

[110] Compelling KWG to answer questions about entries made in her teenage diary would force her to testify about aspects of her private life and negate her desire to determine for herself when, how and to what extent personal and private information is disclosed to others. It is not necessary for present purposes to address the question whether, and to what extent, these privacy interests are anchored in s. 7 of the Charter. In Osolin itself, the invasion of the complainant's privacy was held protected under s. 15 and s. 28 of the Charter (p. 669). Its protection in this case required no more than the fundamental requirement at common law that "the probative value of evidence must be weighed against its prejudicial effect" (Osolin, p. 665). [emphasis added]

[96] In other words, it is the judicial determination of admissibility itself that protects the privacy interests of the witness and the broader policy concern of encouraging complainants to come forward and/or seek counselling services.

[97] Given the past dialogue between Parliament and the S.C.C. it is reasonable to view Bill C-51 as a codification of the procedure approved in Shearing, including affording the complainant the right to counsel and standing on the admissibility voir dire.

Conclusion

[98] For the foregoing reasons I conclude that s.278.93 and s.278.94 do not contravene ss.7 and 11(d) of the Charter. This conclusion is dependent upon an interpretation of s.278.93 that permits such applications to be brought during the cross-examination of the complainant.

[99] The application is dismissed.

Released: September 17, 2019

Justice T. E. Breen