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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2021 05 31 Court File No.: 20-75002606 20-75002814 20-75004736 20-75005642

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.R.

Before: Justice L. Thomas

Heard on: April 27 and May 5, 2021

Ruling (whether the complainant can cross-examine the defendant on a s. 276 hearing)

Ruling released on: May 31, 2021

Counsel: Jennifer Armstrong........................................................................... counsel for the Crown Thaxsheni Sivarajah............................................................. counsel for the accused R.R. Kelley Bryan..................................................................... counsel for the complainant J.R.

Thomas J.:

[1] The Defendant Applicant has brought an application for determination of whether evidence of other sexual activity of the complainant is admissible under s. 276(2). In support of the Application, he filed an affidavit. In her materials, counsel for the complainant indicated that she reserved “her right to cross-examine the accused”, pursuant to s. 278.94 of the Criminal Code.

[2] At the conclusion of the cross-examination by the Crown, counsel for the complainant informed the Court she wished to cross-examine the Applicant. The Applicant opposed the request.

[3] On a reading of 274.94(2), the Code authorizes the complainant to “appear” at the in-camera hearing and “make submissions”. It is silent concerning whether the complainant has a right to cross-examine any witness.

[4] Section 274.94(3) requires the judge to inform the complainant of their right to be represented by counsel. The purpose of this section allows the complainant to have privileged and candid communications with counsel to express their position regarding the admissibility of evidence that involves their privacy interests. But for 278.94(3), the complainant would be solely reliant on the Crown to communicate their position and concerns. Moreover, any communications between the complainant and the Crown would be disclosable to the Defence.

[5] The complainant does not have standing with respect to the issues at trial, as she remains a witness. Section 274.92(2) simply provides the opportunity to convey the complainant’s perspective to assist the Court in deciding whether the proposed evidence should be admitted: R. v. A.C., 2019 ONSC 4270, para. 69.

[6] In A.C., Justice Sutherland permitted the complainant’s counsel to cross-examine and referenced the same Ontario Court of Justice cases as the complainant in this case: R. v. F.A., 2019 ONCJ 391 and R. v. Boyle, 2019 ONCJ 253. Justice Sutherland stated that the cross-examination would allow the complainant to make meaningful submissions to the Court.

[7] Like Justice D.E. Harris in R. v. B.G., 2021 ONSC 2299, I have concluded otherwise.

[8] Justice Harris described why a plain reading of the legislation does not support the complainant’s assertion to examine witnesses or call evidence. In an oft-quoted passage by Justice Laskin in University Health Network v. Ontario (Minister of Health and Long-Term Care): legislative exclusion can be implied when an express reference is expected but absent.

[9] To support this position, Justice Harris outlined other sections of the Criminal Code where the right to cross-examine is explicitly noted: Sections 117.13(2), 145(10), 320.13(3), 347(6), amongst others.

[10] In paragraph 46, Justice Harris asserted: “having a role in shaping evidence is qualitatively different than the right to make submissions” and later notes, “Evidentiary matters lie in the exclusive purview of the Crown”. I would reframe that last point to state that evidentiary matters lay in the exclusive purview of the parties, which in criminal cases are the Crown and the Defence.

[11] The complainant is a witness, not a party. Section 278.94 does not elevate her status to that of a party: see R. v. Boyle, 2019 ONSC 3641 at para 51 and R. v. N.K., 2017 ONSC 3988, at para 17.

[12] On June 20, 2018, during the Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, the then-Minister of Justice Wilson-Raybould explicitly stated the complainant would remain a non-party:

We are seeking to ensure we provide a right to counsel for individuals that have been the victims of sexual assault. This isn’t a right to standing. This is a right to provide them with necessary assistance. Again, we have been working diligently to have a balanced approach to respecting the rights of the accused and to ensuring we are protecting, as much as we can, the integrity and the dignity of victims of sexual assault. – Issue 47 at p. 48

[13] As I review the cases, the Code, and then consider the then-Minister of Justice’s comments, I conclude that section 278.94(2) is an extraordinary exception to allow witnesses to make submissions concerning their privacy interests in sexual assault and third-party record matters.

[14] While it has been commonplace for complainants to be represented by counsel, there is no requirement that they have counsel.

[15] If I were to accept complainant counsel’s submission that the complainant’s counsel has the right to cross-examine the Applicant, then it would follow that the unrepresented complainant would have the right to cross-examine the Applicant or any other affiant.

[16] Despite the procedural options of cross-examination by an unrepresented accused person in s. 486.3 in sexual assault and other cases, the Code is silent concerning how to address an unrepresented complainant’s ability to cross-examine the accused or any other affiant in similar cases. This further supports my conclusion that the omission of the right to cross-examine was intentional.

[17] In this case, counsel for the complainant received the Applicant’s material for this hearing and was present during the Applicant’s examination. As such, counsel for the complainant is capable of making meaningful submissions on behalf of her client.

[18] The Crown can and properly should consult the complainant’s counsel to prepare for cross-examination of the affiant. As stated by Justice Breen in R. v. R.S., 2019 ONCJ 877:

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. [Emphasis in original.]

[19] As with any potential witness, the Crown may rely on information received from witnesses or consult with others to prepare for an examination unless there is an order preventing the Crown from doing so. This approach respects the complainant’s privacy interests while respecting the complainant’s ability to appear and make meaningful submissions.

Released: May 31, 2021 Signed: Justice Lori Anne Thomas