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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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: December 6, 2019

Court File No.: Toronto North 16-45003115

Between:

Her Majesty the Queen

— and —

R.S.(A.)

Before: Justice T.E. Breen

Heard on: July 4, 11, 15-16, 2019

Ruling released on: December 6, 2019

Counsel

B. Bovell — counsel for the Crown

D. Way — counsel for J.D.R.

S. Caramanna — counsel for the Defendant

Decision

Breen J.:

Introduction

[1] Pursuant to an Information, sworn August 9, 2016, Mr. R.S. 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] By way of notice dated January 17, 2019, Mr. R.S. made application pursuant to s.278.94(4) of the Criminal Code, seeking the admission of evidence of extrinsic sexual abuse of the complainant, J.D.R. The notice of application was supported by a complete record, as required by s.278.93 and included an affidavit of the applicant, the statements of J.D.R., her parents and sister, and submissions as to the relevance of the proposed evidence.

[3] On January 28, 2019, Crown counsel conceded, in accordance with s.278.93(4) that the evidence was "capable of being admissible". Defence counsel had provided informal notice of an intention to challenge the constitutional validity of s.278.93 and s.278.94 of the Criminal Code, which had been proclaimed in force on December 18, 2018. The constitutional challenge related, in part, to the complainant's party status at the admissibility voir dire as provided by s.278.94(2). As a result, the parties agreed that the constitutional challenge must first be decided before addressing the admissibility of the evidence of extrinsic sexual abuse.

[4] On June 12, 2019, on application by Crown counsel, I ordered that Dawne Way be appointed as counsel for J.D.R. Given the pending constitutional challenge to the complainant's standing on the admissibility voir dire, Ms. Way was not provided with a copy of the defence application record.

[5] Argument of the constitutional challenge was completed on July 11, 2019. On July 12, 2019, I provided counsel with a "bottom line" ruling dismissing the application and directing that defence counsel forward a copy of the complete s.276 application to Ms. Way.

[6] On July 15, 2019, the prosecution began the presentation of their case, with the in-chief examination of J.D.R. At the request of defence counsel, cross examination was adjourned until after the admissibility of evidence of the extrinsic sexual abuse of the complainant was determined. I expressed concern as to the extent to which the contents of the application record were to be shared with J.D.R., who was then awaiting cross-examination.

[7] On July 16, 2019, the trial continued. Ms. Way was able to attend, despite short notice, and made submissions on the question of the extent of J.D.R.'s access to the defence application record. Later that afternoon I ordered that J.D.R.'s access to the details of the defence application be limited to specific information to be provided by Ms. Way. In short, that J.D.R. be informed of the details of the evidence sought to be elicited by the defence but not the purported relevance of the evidence to the issues at trial.

[8] My reasons for limiting J.D.R.'s access to the application record follow.

The Statutory Framework

[9] Pursuant to ss.278.94(2)(3) of the Criminal Code, a sexual offence complainant is granted standing and the right to be represented by counsel at the voir dire to determine the admissibility of evidence of private records and/or extrinsic sexual history. Section 278.93 and s.278.94 are set out below:

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).

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.

[10] Pursuant to the above provisions, a complainant is not afforded standing at the s.278.93 hearing, an application for an admissibility voir dire. Accordingly, s.278.93(2) makes no provision for service of a copy of the application record on the complainant. Even where leave for an admissibility voir dire is granted, there is no express requirement that the complainant be served with a copy of the application record. This omission stands in stark contrast to s.278.3(5) which requires that a complainant be served with a copy of any application for production of records in possession of a third party.

[11] The question is what to make of this omission? Is it an inconsequential oversight, with service being a necessary implication of standing, or a deliberate lacuna, bridged by judicial discretion controlling a complainant's access to the application record?

Analysis

[12] Several rules or maxims of statutory interpretation speak to the present situation. First, legislation is presumed to reflect Parliament's deliberate intention and to be complete. Accordingly, apparent "gaps" in legislation cannot be filled by judicial interpretation unless "necessarily implied" by the statute. This will be the case where the implication (the contemplated interpretation) is essential to give effect to the legislation.

[13] In the present circumstances one may reasonably contend that the granting of standing on the admissibility voir dire [s.278.94] necessarily implies that a complainant be given unrestricted access to the detailed application required by s.278.93. This was the conclusion reached in R. v. Boyle where Doody J. stated:

[31] In my view, when Parliament granted the right to complainants to appear and make submissions at the hearing, it did so because it recognized that the complainant's rights and interests could be affected by the decision to be made by the judge. Allowing the complainant the right to appear and make submissions would both give a measure of procedural fairness to the complainant and assist the court by granting it access to submissions from the perspective of one of the persons directly affected by the order to be heard.

[32] The language of the section must be interpreted in a manner consistent with that purpose. To put it another way, the rights of appearance and making submissions must be meaningful. In order to be able to make meaningful submissions, the complainant must be able to learn what evidence is proposed to be admitted, the purported relevance of that evidence, and the evidence relied upon to support its admissibility. Without that information, the complainant would be unable to make meaningful submissions. To hold otherwise would be incompatible with the object of the enactment. It would, to a significant extent, defeat its purpose.

[14] On the other hand, the absence of an express provision requiring service on a complainant may reasonably be interpreted as a deliberate exclusion. This reasoning, captured by the maxim expressio unius est exclusio alterius, is described by Ruth Sullivan as "implied exclusion" and applies:

whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. As Laskin J.A. succinctly put it, "legislative exclusion can be implied when an express reference is expected but absent". [University Health Network v. Ontario (Minister of Finance), [2001] O.J. No. 4485 at para. 31 (Ont. C.A.)] The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.

[15] In R. v. Boyle, defence counsel relied upon the express provision for service [s.278.3(5)] and standing [s.278.4(2)] in relation to an application for production of third party records as the basis for an inference of deliberate exclusion of a requirement for service under s. 278.94. In rejecting this argument, Doody J. relied upon the existence of a two stage process for the determination of the admissibility of evidence of extrinsic sexual history and/or private records as an "alternative explanation" for Parliament's failure to expressly provide for service of the defence application upon the complainant.

[16] With respect, I do not find this reasoning persuasive. The fact that a complainant does not have standing at an application for an admissibility voir dire [s.278.93] does not explain the absence of an express provision for service of materials filed on the admissibility voir dire, [s.278.94] where the complainant is expressly granted standing and the right to be represented by counsel [s.278.94(2)(3)]. The essence of the "implied exclusion" argument is that, having expressly provided for service and standing at a production application, the failure to provide for service while expressly providing for standing at an admissibility voir dire supports a conclusion that the omission was deliberate.

[17] The expectation of an express reference to service is heightened by consideration of the purpose of the legislation. As set out in the Charter Statement accompanying Bill-C51, the amendments to the Criminal Code were made in order to "reinforce protections for sexual assault complainants throughout the trial process." Such protections include a new procedure governing the admissibility of evidence of private records, with standing on the voir dire and the right to be represented by counsel extended to complainants. The significance of this expansion of participatory rights in trial cannot be understated. Viewed in this context, the absence of an express reference to service of the defence application on a complainant is particularly conspicuous.

[18] In concluding that service on the complainant was necessarily implied, Doody J. viewed the interpretive question as presenting a binary choice. In my view, an interpretation of s.278.94 as not providing for service of the defence record does not preclude access by the complainant, or counsel, to the defence application. A statutory court has "authority to control its own process in order to administer justice fully and effectively." The exercise of judicial discretion controlling a complainant's access to the defence application falls within this authority. Indeed, it is pursuant to this authority that counsel was appointed for J.D.R. Accordingly, I conclude that service of a defence application on a complainant is not essential to the effective operation of s.278.94 and is therefore not implied by the express provision for standing and a right to counsel.

Judicial Discretion

[19] The exercise of this judicial discretion is informed by the general proposition, or presumption, that a complainant is entitled to access to the complete application record. Any restriction on access is only warranted where necessary to preserve the integrity of the trial process. This will be the case where materials included in the application record have the potential to taint the evidence of the complainant.

[20] The present case illustrates the problem. Defence counsel contends that the evidence of extrinsic sexual abuse is relevant to the defence position that the allegations against Mr. R.S. are recently fabricated. Defence counsel relies upon statements and prior testimony of J.D.R.'s mother, sister and father to demonstrate the existence of a motive to fabricate. These individuals are anticipated to be prosecution witnesses. Providing J.D.R. access to these statements, in advance of her cross-examination, poses a significant risk to the integrity of her evidence and the trial generally.

[21] Restricting J.D.R.'s access to the application record will not compromise her ability to participate in the admissibility voir dire. As set out above, Crown counsel obtained an order appointing counsel for J.D.R. As with orders made pursuant to s.486(3), these appointments are administered by Legal Aid Ontario, without demonstration of financial eligibility. This system will facilitate a complainant's access to counsel and the efficient and effective determination of s.278.94 hearings.

[22] To my mind, the principal role of appointed counsel is to receive instructions from the complainant as to the impact of questioning on extrinsic sexual conduct and afford the complainant a direct voice concerning the prejudicial effect of the proposed evidence. While not the situation in the present case, where the specifics of the prior sexual activity are disputed, the complainant will also be a source of information that may inform the cross-examination of the affiant on the admissibility voir dire. In either situation the complainant must be informed of the specifics of the sexual activity in question and the nature of the anticipated cross-examination.

[23] While appointed counsel will have a position as to the relevance and probative value of the proposed evidence, these are matters of professional judgment and do not depend on information obtained from the complainant. It is not necessary, in order to facilitate full participation in the voir dire, that a complainant be informed of the defence position as to relevance.

[24] Such an approach accords with pre-existing practice. Ms. Way, who has considerable experience in representing complainants, advised that she is keenly aware of the potential tainting effect of information and is conscious of her professional responsibility to preserve the integrity of a complainant's evidence.

[25] These concerns inform the Rules of Professional Conduct, promulgated by the Ontario Law Society, limiting communication between counsel and witnesses. Rule 5.4-2 provides as follows:

5.4-2 Subject to the direction of the tribunal, the lawyer shall observe the following rules respecting communication with witnesses giving evidence:

(a.1) during examination-in-chief by another legal practitioner of a witness who is unsympathetic to the lawyer's cause, the lawyer not conducting the examination-in-chief may discuss the evidence with the witness;

(a.2) between completion of examination-in-chief and commencement of cross-examination of the lawyer's own witness, the lawyer ought not to discuss the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief;

(b) during cross-examination by an opposing legal practitioner, the witness's own lawyer ought not to have any conversation with the witness about the witness's evidence or any issue in the proceeding;

[26] While the power to regulate professions cannot encroach upon federal jurisdiction over criminal procedure, the above rule underscores the need for judicial discretion controlling the information made available to a complainant and supports the foregoing interpretation of s.278.94.

[27] For the above reasons it is ordered that counsel for J.D.R. be provided with a complete copy of the defence application record and the respondent's factum (and authorities if required). It is further ordered that counsel may only inform the witness of the specifics of the extrinsic sexual activity sought to be admitted and the extent to which the defence seeks to elicit the details of such activity, as opposed to the fact of the activity, or the circumstances in which it was reported. This information will permit the witness to instruct counsel of the impact of such questioning.

Released: December 6, 2019

Justice T. E. Breen