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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, 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.
ONTARIO COURT OF JUSTICE
DATE: May 11, 2021
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MOHANRANJAN NAVARATNAM
RULING ON CONSTITUTIONAL CHALLENGE
Before: Justice M. Speyer
Heard on: April 27, 2021
Reasons for Judgment released on: May 11, 2021
Counsel: M. Pecknold, counsel for the Crown E. Dixon and S. Foda, counsel for the accused Mohanranjan Navaratnam
M. SPEYER J.:
I. Introduction
[1] Mohanranjan Navaratnam is charged with one count of sexual assault of V.H. The offence is alleged to have occurred on June 12, 2019. V.H. told police that the Applicant sexually assaulted her while she was sleeping. She reported that the Applicant was her roommate and friend. On the evening of June 11, 2019, she consumed alcohol with the Applicant and took pain medication before going to bed. V.H. reported that while she was sleeping, the Applicant had sex with her without her consent.
[2] The Applicant’s position is that he and V.H were in a romantic relationship and that on the evening in question, after consuming alcohol, they had consensual sex. He intends to challenge V.H’s credibility and reliability. Specifically, he wishes to adduce evidence of other sexual activity by the complainant. He also seeks to adduce, and cross examine V.H. on text messages in his possession. The text messages are prior conversations between the Applicant and the complainant. He advances a constitutional challenge to Bill C-51, which amended the Criminal Code provisions governing the admissibility of other sexual activity and records in possession of the accused.
[3] On January 11, 2021, the Applicant sought a ruling from this court declaring that the impugned provisions of the Code are unconstitutional on the basis of the decision in R. v. Reddick, 2020 ONSC 7156. I held that the substance of the application was a challenge to the constitutionality of the statutory scheme. The issue of whether the Reddick decision is binding requires argument in the context of the evidentiary issues particular to this case. I thus directed the Applicant to serve and file a proper Notice of Constitutional Issue. My ruling was upheld by the Superior Court of Justice in R. v. Navaratnam, 2021 ONSC 2376.
II. The Amendments
[4] The Applicant challenges the constitutionality of sections 276(2), 278.92, 278.93 and 279.94 as enacted by Bill C-51, which came into force on December 13, 2018. These sections make procedural changes governing the admissibility of private records relating to the complainant in possession of the accused. They also amend the procedure for determining the admissibility of evidence of other sexual activity of the complainant. In either case, the defence must clear a first stage screening threshold to ensure that there is at least some degree of merit in the application. If successful, the analysis moves to the second stage in which the judge makes a final determination whether the record or the other sexual activity evidence ought to be ruled admissible for use at the trial. At this stage, the complainant is advised of the application and given standing to participate.
[5] As summarized by Justice D.E. Harris in R. v. B.G., 2021 ONSC 2299 at para. 4, Bill C-51 made three main changes to the provisions in the Criminal Code:
- It consolidated under one provision the admissibility analysis of the two regimes of sexual history and the production and use of personal records pertaining to the complainant;
- Previously, personal records of the complainant already in the possession of the accused were not caught by the first stage of the statutory regime: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 (S.C.C.), at paras. 94-106; R. v. C. (T.), [2004] O.J. No. 4077, 189 C.C.C. (3d) 473 (Ont.C.A.) at para. 28. Section 278.92 of the Code now specifically applies to a personal record of the complainant in the hands of the accused. Such a record must, along with all other personal records, proceed through both the first stage and second stage of the judicial admissibility analysis under Section 278.93(1) and Section 278.94(4) of the Code; and
- In Section 278.94(2) and (3), Complainants on the second stage admissibility hearing have been granted the right to “appear and make submissions”, with the assistance of counsel if so desired. This last addition is the major change brought in by Bill C-51.
[6] The Applicant submits that the new provisions require the defendant to disclose documents in his possession to the complainant and provide her with standing to make submissions on the admissibility of relevant evidence. He argues that the effect of the legislation is to deprive him of his right to receive a fair trial, to make full answer and defence and to remain silent and is therefore a breach of sections 7 and 11(d) of the Charter which cannot be saved under section 1. He seeks a declaration that these sections are of no force or effect.
[7] Section 7 of the Charter guarantees an accused’s right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As observed by McLachlin, J (as she was then) in R v. Seaboyer, [1991] 2 S.C.R. 577 at p. 603, the concept of “fundamental justice” encompasses a variety of individual and societal interests. The ultimate question is whether the legislation, viewed in a purposive way, conforms to the fundamental principles which underlie our system of justice. One of these principles is the accused’s right to present a full and fair defence. Any measure that denies the accused this right would violate s. 7 of the Charter. The right to a fair trial and the presumption of innocence is also guaranteed by s. 11(d) of the Charter.
[8] The Applicant puts forward two ways in which the new provisions violate his right to a fair trial. First, by requiring disclosure of records in his possession, he is deprived of the right to remain silent. He asserts requiring disclosure of those records will undermine his right to effective cross examination of the complainant, a key element to a fair trial. The concern is that the complainant will tailor her evidence if she is aware of the evidence in advance. The trier of fact will also lose the benefit of observing the complainant’s reaction to the evidence at trial.
[9] Second, by granting the complainant standing and counsel at the admissibility hearing, the provisions unfairly and unnecessarily disturb the careful balance between a fair and impartial prosecutor and the accused in criminal trials. He submits that the amendments add a partisan litigant into the criminal process which is unfair and a violation of fundamental justice. The accused should only have to defend against the Crown’s attempt to prove the criminal offences beyond a reasonable doubt. To give standing to the complainant forces the defendant to defend himself against the case of the Crown and that of the complainant which is a violation of his s. 7 Charter right to a fair trial.
[10] These arguments are based in large part on the judgement of Akhtar J. in R. v. Reddick, leave granted to the Supreme Court of Canada, March 25, 2021. Other Ontario trial judges have upheld the constitutionality of the sections (see for example: R. v. C. (C.), 2019 ONSC 6449; R. v. C. (A.), 2019 ONSC 4270; R. v. A. (F.), 2019 ONCJ 391; R. v. M. (A.), 2020 ONSC 8061 (S.C.J.); R. v. Green, [2021] O.J. No. 1994 (S.C.J.); R. v. Barakat, 2021 ONCJ 44, [2021] O.J. No. 350 (O.C.J.); R. v. B.G., 2021 ONSC 2299 (S.C.J.)). There are also conflicting trial level decisions from other provinces where the legislation has been declared unconstitutional.
[11] The Reddick case is scheduled to be heard this fall by the Supreme Court of Canada, in tandem with the British Columbia decision of R. v. J.J., 2020 BCSC 292. As there are conflicting judgements from trial level judges, I am of the view that it is not necessary to embark on an analysis of whether Reddick is “clearly wrong”. Faced with conflicting decisions from courts exercising coordinate or concurrent jurisdiction over a matter, I am entitled under the rules of stare decisis to follow the ruling which I believe to be correct: R. v. A.T., 2020 ONCJ 576 (O.C.J.); R v. Bakarat, para. 27; R. v. B.G., para 7, R. v. Sullivan, 2020 ONCA 333. Furthermore, I agree with Justice Christie’s conclusion in R. v. (M). A. that the Reddick decision is clearly wrong.
[12] For the reasons stated, I agree with my colleagues who have concluded that sections 276(2), 278.92, 278.93 and 278.94 are constitutional in their entirety and I dismiss this application.
III. Analysis
[13] The purpose of Bill C-51 is to better protect the privacy, security and dignity of sexual assault complainants in the criminal justice system while balancing the fair trial rights of the accused. In R. v. (M.) A., [2020] O.J. No. 3263 Christie J. reviewed the history and purpose of the legislation. At para. 41, she summarized them as follows:
- The need to respect all interests in a criminal trial: the rights of the accused to a fair trial; the truth-seeking function of courts; and the privacy, security and equality interests of the complainant;
- The need to respect and provide dignity to victims of sexual assault;
- Helping to eliminate myths, stereotypes and sexual violence against women;
- Protecting the integrity of the trial by excluding irrelevant and misleading evidence;
- Encouraging the reporting of sexual offences by protecting the security and privacy of complainants; and
- To address concrete social prejudices that affect trial fairness, as well as the concrete harms caused to the victims of sexual assault, including a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour.
[14] As has been pointed out by many jurists, this legislation is part of a continuing effort by Parliament, started in 1983, to improve the response of the criminal justice system to sexual violence. There have been prior constitutional challenges to legislated limits on the admissibility of evidence other sexual activity of the complainant and private documents of the complainant in the hands of third parties. In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, the Supreme Court of Canada upheld the constitutionality of the provisions that required the accused to serve an application on the Crown and provide detailed particulars of the evidence that he or she sought to adduce and its relevance to an issue at trial. In R. v. Mills, [1999] 3 S.C.R. 668, the court upheld the constitutionality of the provisions in the Code that outline the complainant’s participation in hearings to determine if records in the possession of a third party should be produced to the accused.
[15] The Applicant argues the legislation has undermined his right to a fair trial by requiring defence disclosure and by unnecessarily inserting the complainant as a litigant. I will address both of these concerns.
1. Defence disclosure of records in his possession:
[16] Dealing first with records in the possession of the defendant, the new statutory scheme was enacted to address a gap in the Code, identified in Shearing. It is important to remember that not all records in the possession of the accused are subject to the new provisions. The legislation only captures documents that pertain to the complainant and in which she has a legitimate privacy interest. The sections provide a mechanism by which an accused must apply for authorization to adduce them at trial, based on the criteria set out in ss. 278.92(2) and (3). In a process similar to private documents in the hands of third parties, notice must be given to the complainant who has the right to participate and be represented by counsel.
[17] The legislation describes two types of records: those which contain communications made for a sexual purpose or whose content is sexual in nature, and those which relate to personal information for which there is a reasonable expectation of privacy. I agree with the Crown, that the first category of records was always presumptively inadmissible by operation of s. 276 and an application was always required to determine their admissibility. Bill C-51 now ensures that the complainant’s voice is heard at this hearing.
[18] With respect to the second category of documents, there are valid policy reasons for requiring the defendant to apply to the court for a determination on their admissibility. The Supreme Court of Canada had recognized and confirmed that a complainant’s privacy interests are constitutionally protected (see: R. v. Mills; R. v. Osolin, [1993] 4 S.C.R. 595). There is no logical reason why complainants who have been sexually victimized by persons who hold their personal records should not have the same legal protection of their privacy, security and equality rights as is afforded to other victims of sexual offences. When weighing the prejudicial effect against the probative value of these records, judges should consider factors similar to those that govern admissibility of third-party records under section 278.5(2) of the Code. This will enhance the fairness and truth-seeking function if the trial process (see R. v. Green, para. 41).
[19] I do not accept that disclosure of private records to the complainant will undermine the fair trial rights of the Applicant. First, there is no right to adduce misleading or irrelevant evidence which relies on unfounded stereotypes and myths. If the record relates to other sexual activity, it must meet the conditions of s. 276(2). In any other case, the evidence must be relevant to an issue at trial and have significant probative value which is not outweighed by its prejudicial effect. The “substantially outweighs” test and the factors that a judge must consider in determining admissibility are essentially the same as those previously laid out in the case law (see R. v. C.C., para. 67).
[20] I agree with Caponecchia J.’s observation in R. v. A. (F.) at para 43, that Courts have recognized that certain techniques of cross-examination traditionally employed in sexual assault cases have distorted rather than advanced the search for truth (Shearing, para 119). Bill C-51 guards against such techniques.
[21] Second, trial fairness is not a one-sided concept. A fair trial must be assessed from the perspective of all parties. As the court in R. v. Mills, held at para. 72:
[72] That said, the principles of fundamental justice do not entitle the accused to "the most favourable procedures that could possibly be imagined": R. v. Lyons, [1987] 2 S.C.R. 309, per La Forest J., at p. 362. This is because fundamental justice embraces more than the rights of the accused. For example, this Court has held that an assessment of the fairness of the trial process must be made “from the point of view of fairness in the eyes of the community and the complainant” and not just the accused: R. v. E. (A.W.), [1993] 3 S.C.R. 155, per Cory J., at p. 198. In a similar vein, McLachlin J., in Seaboyer, at p. 603, stated:
The principles of fundamental justice reflect a spectrum of interests, from the rights of the accused to broader societal concerns. Section 7 must be construed having regard to those interests and “against the applicable principles and policies that have animated legislative and judicial practice in the field” (Beare, [1988] 2 S.C.R. 387], at pp. 402-3 per La Forest J.). The ultimate question is whether the legislation, viewed in a purposive way, conforms to the fundamental precepts which underlie our system of justice.
She concluded, at p. 606, that, “the avoidance of unprobative and misleading evidence, the encouraging of reporting and the protection of the security and privacy of the witnesses” conform to these fundamental precepts.
[22] Third, the Supreme Court of Canada in R. v. Darrach, at para 55, has explicitly held there is no constitutional right to surprise a complainant during cross-examination. The right to full answer and defence does not include the right to trial by ambush. In upholding the provisions of s. 276, the court rejected the accused’s argument that the section required him to make premature and inappropriate disclosure to the Crown in order to establish relevancy. The court held that this consequence of the legislation did not violate the Charter. In so doing the court contemplated that the Crown would consult with a complainant on any s. 276 application. Indeed, it specifically directed that if the defence was going to raise a complainant's sexual activity it could not do so in such a way as to surprise the complainant. In other words, it is not a violation of the defendant's Charter right for the Crown and complainant to be made aware in advance of any prior sexual acts the defence intends to confront the complainant within cross-examination.
[23] I see no reason not to apply this rationale to private records in the possession of the Applicant. Defence disclosure of private records pertaining to the complainant should not be treated differently than her private sexual activity. Both deal with sensitive information over which a complainant has a privacy interest. Both potentially lend themselves to impermissible inferences based on myths and stereotypes (R. v. A. (F.) at para 67).
[24] Moreover, a complainant is already entitled to be notified and make submissions when the defence is seeking, and the court orders, third party records to be disclosed to the defence pursuant to s. 278.3(5) and s. 278.4(2). Knowing what records a court has ordered to be produced to the defence, there is nothing to prevent a complainant from accessing and reviewing them prior to testifying. There is no compelling reason why a complainant should also not also be entitled to know when the defence is in possession of his/her private records as required under the new legislation.
[25] The Applicant argues there is a risk that pre-trial disclosure of the records will lead to the complainant tailoring her evidence; or a Crown may try to blunt the effectiveness of cross-examination by adducing the evidence in chief. In some circumstances these may be legitimate concerns, but they do not rise to the level of creating an unfair trial.
[26] The timing of the admissibility hearing has been the subject of considerable debate in the case law. In R. v. R.S., 2019 ONCJ 645, R. v. J.J. and R. v. (M.) A., [2020] O.J. No. 3263, the courts held that the constitutionality of the legislation depended on the application being made after the complainant’s examination in chief, to ensure she is not alerted about what is likely to come in cross examination.
[27] I agree with D.E. Harris J. in R. v. B.G. at para. 60 that the comments by the Supreme Court of Canada in R. v. Darrach are conclusive authority that there is no right to keep the contents of the application hidden from the complainant until after she has testified in chief. Fairness to both the accused and the complainant require that the application be made well in advance of the trial. I also agree with Chapman J. in R. v. M.S., 2019 ONCJ 670 at para. 97 that delaying the application until mid-trial would create an unworkable process that is contrary to the clear language of s. 279.93.
[28] Effective cross-examination does not depend solely on the element of surprise. In most sexual assault trials, the complainant has given at least one comprehensive statement to the police and may have testified at a preliminary hearing. Any concerns about tailoring her evidence can be elicited through cross-examination on prior inconsistent statements. She may also be cross-examined on the fact of having seen the application materials in advance.
[29] Fourth, the new provisions do not breach the Applicant’s right against self-incrimination. They do not compel the Applicant to testify at his trial. In Darrach at para 60 - 67, the court held that the requirement to file affidavit evidence and be subjected to cross examination at a s. 276 voir dire does not infringe on the accused’s right against self-incrimination. The court observed that this is not state compelled evidence. The demand to disclose some defence evidence and be subject to cross examination is analogous to the procedure set out in Corbet applications. The decision to testify on a voir dire is a tactical one and any cross examination is limited to the issue of admissibility as delineated by the legislation. It is not an opportunity for the complainant or Crown to cross examine at large. Any testimony of the accused on a voir dire is protected by s. 13 of the Charter and cannot be used to incriminate, only to impeach his credibility.
2. Role of the complainant:
[30] A significant change brought in by Bill C-51 is the right of the complainant to have standing and make submissions at the second stage of the admissibility hearing for both private records in possession of the accused and evidence of her private sexual activity. The Applicant argues that the provisions unnecessarily disturb the careful balance that exists between a fair and impartial prosecutor and the accused in criminal trials. He submits that the role of protecting the dignity of complainants and ensuring trial fairness from the public’s perspective has always been the role of the Crown, who, along with an impartial trial judge, ensure that improper, prejudicial and irrelevant evidence is not admitted. As the complainant has a vested interest in the outcome, her participation in the hearing will undermine the fair trial rights of the accused.
[31] This argument was accepted by Akhtar J. in Reddick. With respect I do not agree. I cannot state it better than D.E. Harris J. did in R. v. B.G. at para. 35:
In my view, this concern is significantly overblown. Granting the complainant the right to make submissions concerning her own privacy and dignity in no way supplants or trespasses on the executive function of the Crown in a criminal proceeding. Parliament decided to give complainants’ a voice in the determination of what records and evidence of her past sexual history are admissible. The complainant is in the best position to articulate the impact and potential prejudice upon her. This was a perfectly rational and natural step in the evolution of our procedural protections for sexual offence complainants. Parliament, in coming to terms with the privacy, dignity and equality rights at stake, brought complainants directly into the process and gave them a right to be heard. In light of the antiquated attitudes long prevalent with respect to sexual offences, this was a reasonable step forward to correct a historical imbalance.
[32] It is important to keep in mind that the complainant’s participation is limited to the admissibility hearing only. The complainant does not have a veto over evidence. She does not cross examine witnesses at the trial proper or make closing submissions. Any conflict between the Crown and the complainant regarding the admissibility of the evidence will not impact on the fairness of the trial. The trial judge is still the final gate keeper and is more than capable of ensuring that relevant, probative evidence is properly admitted at trial. The impartiality of the trial judge is in no way compromised by permitting the complainant’s voice to be heard directly.
[33] Nor is the role of the Crown role in prosecuting criminal offences diminished or undermined by the complainant’s participation at the admissibility voir dire. For example, the Crown is still responsible for deciding whether to initiate or continue the prosecution, the mode of prosecution (by indictment or summary conviction), whether to accept a guilty plea, the type of sentence it will seek, or whether to launch or defend an appeal. The involvement of the complainant or her counsel at an admissibility voir dire does not in any way infringe on the decision-making responsibility of the Crown.
IV. Conclusion
[34] I find that the amendments do not infringe on the fair trial rights of the Applicant. His decision to adduce evidence that is presumptively inadmissible is a tactical one. He has the burden of demonstrating that the evidence is materially relevant to an issue at trial and that its admission would not distort the truth-seeking function of the court. The complainant’s participation at the admissibility hearing does not raise her to the level of a party to the proceedings and nor does it render the trial unfair.
[35] Having found that there is no breach, it is unnecessary to embark on an analysis under s. 1 of the Charter. Bill C-51 is constitutionally valid, and the application is dismissed.
Released: May 11, 2021 Signed: Justice M. Speyer