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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2020-12-09

Court File No.: Toronto

Between:

Her Majesty the Queen

— and —

A.T.

Before: Justice Riun Shandler

Heard on: December 4, 2020

Ruling on Motion to Deny Standing to Complainant, released on: December 9, 2020

Counsel

Bovell, B. — counsel for the Crown

Weisberg, A. and Ganga, S. — counsel for the defendant A.T.

Danch, J. — counsel for the complainant

Decision

SHANDLER J.:

A. Overview

[1] In December, 2018, Parliament made numerous amendments to the Criminal Code, including amendments to the procedures governing the admissibility of evidence relating to the complainant's sexual activity other than the activity forming the subject-matter of the charge.

[2] Those amendments have been the subject of various constitutional challenges in Ontario and elsewhere. In Ontario, the constitutionality of the amended procedures was held not to violate ss. 7 and 11(d) under the Charter in multiple cases: R. v. A.C. and R. v. C.C. in the Superior Court and R. v. A.R.S. and R. v. F.A. in the Ontario Court of Justice. The most recent decision is the Reddick decision, in which the court concluded that ss. 278.92, 278.94(2) and 278.94(3) do violate ss. 7 and 11(d) of the Charter and declared the sections unconstitutional and of no force and effect pursuant to s. 52 of the Constitution Act.

[3] Mr. Weisberg and Ms. Ganga, on behalf of A.T., have brought a motion on the day of the scheduled s. 278.94 hearing, arguing that the s. 52 declaration made in Reddick is binding on this court and, accordingly, that counsel for the complainant should not be granted standing at the hearing.

[4] Ms. Bovell, on behalf of the Crown, argues that the declaration of invalidity is not binding. She is joined in that position by Ms. Danch, counsel for the complainant. Both Ms. Bovell and Ms. Danch take the position that the defence must bring a proper Notice of Constitutional Question in order to have the ruling in Reddick apply.

[5] I advised the parties that it was my view that the declaration of unconstitutionality in Reddick does not bind the court and that the defence must file a proper notice challenging the constitutionality of the s. 278.94 procedure if they wish to have the ruling in Reddick applied in A.T.'s case.

[6] These are my reasons for that decision.

B. The Effect of the s. 52 Declaration

[7] In the Chan and Sullivan decisions, the Ontario Court of Appeal rejected the argument that a superior court declaration of unconstitutionality made pursuant to s. 52 of the Constitution Act effectively render the law "of no force and effect" and binds all other trial courts of the province. As stated by the Court:

[I]t cannot be said that a superior court declaration determines the validity or enforcement of the statute "for all future cases", effectively removes the impugned provision from the statute books, or throws the ball back into Parliament's court. These things happen only if the Supreme Court of Canada affirms or makes a s. 52(1) declaration.

[8] The Court held that the ordinary principles of stare decisis apply to s. 52 declarations. In the circumstances of Mr. Chan's case, that meant that the trial judge held correctly that he was not bound by a prior declaration of invalidity and:

He was also correct in considering the issue anew, as the issue of the constitutionality of s. 33.1 was put before him, and the authority he encountered was inconsistent. He had no choice, in the circumstances, but to consider whether to deviate from Dunn.

C. Stare Decisis

[9] Defence counsel argues that the s. 52 declaration in Reddick is nonetheless binding on the Ontario Court of Justice because the doctrine of stare decisis compels the Ontario Court of Justice to follow Superior Court declarations of unconstitutionality. The defence argues further that the Superior Court was not acting as a court of coordinate jurisdiction when making a s. 52 declaration as the Ontario Court of Justice has no such power.

[10] As noted, there have been two Superior Court decisions finding the impugned provisions constitutional and one Superior Court decision declaring the provisions unconstitutional. The defence argument assumes only declarations of invalidity are binding on the Ontario Court of Justice while declarations of validity are merely persuasive. This is precisely the argument that the Ontario Court of Appeal rejected in Chan, stating:

Bedford does not hold that the principles of stare decisis are ousted whenever constitutional issues are at stake.

There is good reason why not. Whereas Bedford compromises stare decisis to promote accurate constitutional outcomes, the compromise on stare decisis proposed by Mr. Chan has the potential to discourage accuracy. For example, three superior court judges in succession could find a provision to be constitutional, but the fourth judge's ruling to the contrary would be the only one to have full force or effect in the province. Unless that fourth decision is appealed, it becomes the law in the province. The Crown can no longer rely on the provision; therefore, decreasing the prospect that the issue of constitutional validity would make it before the provincial appellate court. The development of the law would be driven by coincidence in the sequence of trial level decisions and the fortuity of discretionary decisions about whether to appeal, when it should be determined by the quality of the judicial ruling.

[11] As the Court of Appeal affirmed, "the ordinary principles of stare decisis apply." The ordinary principles of stare decisis do not give binding effect to a s. 52 declaration. I acknowledge there is jurisprudence to the contrary, but those decisions predate the Court of Appeal's decision in Chan. I do not accept the argument that a superior court declaration, by virtue of being a declaration, is binding on the Ontario Court of Justice.

[12] In all three cases – A.C., C.C. and Reddick – the determination of the constitutionality of the provisions at issue were not made while exercising plenary jurisdiction over an application for a declaration of invalidity brought for that sole purpose but rather as a declaration made in the course of the prosecution brought before them. Those judges were not acting in an appellate, supervisory or reviewing capacity over a lower court decision that would have the effect of binding the judges of the Provincial Court. Accordingly, courts exercising coordinate or concurrent jurisdiction over a matter are not bound by stare decisis to follow the judgment in Reddick. Rather, courts faced with conflicting decisions are entitled "under the rules of stare decisis to follow the ruling they think is the correct one."

[13] In Chan, our Court of Appeal provided the following guidance on the effect of a superior court declaration:

The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: [cites omitted]. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong.

[14] It is unclear whether this procedure applies where there are conflicting decisions on the constitutional issue but, in my view, the Crown fulfilled its notice obligation with its response to the defence motion setting out their reliance on prior authorities that held the sections constitutional and insisting on proper notice in compliance with the Courts of Justice Act.

[15] As our Court of Appeal has also held, notice of a constitutionality question is not simply a formality but serves an essential public interest:

Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory: Paluska v. Cava, 59 O.R. (3d) 469 (Ont. C.A.); R. v. Briggs, 55 O.R. (3d) 417 (Ont. C.A.). Section 109(2) of the Courts of Justice Act provides that where notice has not been given, a remedy under s. 24(1) of the Charter shall not be granted. The notice requirement is important for the reasons expressed in Briggs at para. 44 - to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.

[16] The motions judge in Bickford reached this same conclusion and I am in full agreement with his Reasons where he states:

Defence Counsel expressed her view…to invoke the application of Akhtar J.'s determination of unconstitutionality in Reddick, they need simply seek directions of the Court that the applications judge will consider him or herself to be bound by the Reddick decision.

After hearing from each of Crown Counsel, Defence Counsel, and counsel for each of the complainants, I disagree. I have directed that in order to seek to apply the ruling in Reddick on the unconstitutionality of the s. 278.92 and associated provisions to Mr. Bickford's case, Defence Counsel would first need to bring a NCQ with the required 15 days notice to the Federal Crown, and other interested parties.

I am motived in reaching this conclusion by the obvious fact that the stipulations of the s. 278 regime are intended to be protective in nature, permitting access to documentation in particular circumstances, but potentially subject to the privacy interests of the complainants whose text messages are sought to be introduced into evidence. The provisions also permit the complainants to be represented. It is not clear to me how a simple direction of unconstitutionality in Reddick would suffice to bind a subsequent motions judge to follow it, regardless of facts and circumstances, which may differ significantly from those in Reddick.

[17] Finally, I would note that the circumstances in this case do differ significantly from those in Reddick. This is a retrial and at the initial trial, the complainant was represented by counsel who participated in the stage 2 hearing. The same areas of other sexual activity that were litigated at the initial stage 2 hearing are raised in this hearing. In these circumstances, I see no prejudice to the defence in the complainant participating in this stage 2 hearing and no benefit in having the complainant excluded.

[18] In these circumstances, it is open to the parties to simply agree to proceed with the s. 278.94 hearing and avoid potentially losing the trial dates set in early January by proceeding with a constitutional argument.

Released: December 9, 2020

Signed: Justice Shandler