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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
R. v. Barakat, 2021 ONCJ 44
ONTARIO COURT OF JUSTICE
DATE: 2021 01 26 COURT FILE No.: Ottawa 17-SA5058
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MOHAMAD BARAKAT
Before: Justice P. K. Doody
Heard on: January 18, 2021 Reasons for Decision on constitutional challenge released on: January 26, 2021
Counsel: John Ramsay, for the Crown Ronald Guertin, for the defendant
DOODY J.:
Procedural Background
[1] The defendant is charged with sexual assault. He was self-represented until recently.
[2] I heard one application during the trial to admit evidence of other sexual activity of the complainant, and allowed the application. During closing submissions, Mr. Barakat asked that I consider evidence about other sexual activity of the complainant which was not covered by my first ruling. I permitted him to apply to reopen his case and bring an application under s. 278.93 for an order to proceed to a hearing under s. 278.94 to determine whether that evidence was admissible. I granted the s. 278.93 order on consent of the Crown. The defendant did not appear for the s. 278.94 hearing. It did not proceed.
[3] The defendant was later arrested. He retained Mr. Guertin as counsel. New dates were set for the s. 278.94 hearing and completion of the trial.
[4] On November 23, 2020, Akhtar J. of the Superior Court issued his decision in R. v. Reddick, 2020 ONSC 7156. He ruled that sections 278.92, 278.94(2) and 278.94(3) of the Criminal Code violate sections 7 and 11(d) of the Charter of Rights and Freedoms and were not saved by s. 1. On November 30, 2020, Mr. Guertin advised me that he would be bringing an application for a ruling that those sections were invalid, relying on that decision. The dates previously scheduled for the s. 278.94 hearing and the completion of the trial were vacated. New dates were set. Mr. Barakat waived his rights under s. 11(b).
The Application Before Me
[5] Mr. Barakat has brought this application for:
(a) a determination that sections 278.93 and 278.94 are unconstitutional and of no force or effect because they are inconsistent with ss. 7 and 11(d); and
(b) a mistrial, on the basis that he has been deprived of his right to a fair trial because his trial was conducted on the basis of legislation which is of no force or effect.
The Legislation in Issue
[6] Sections 278.93 and 278.94 are procedural provisions of the Criminal Code which deal with the determination of the admissibility of both:
(a) sexual activity of the complainant other than the sexual activity that forms the subject-matter of the charge and
(b) records relating to the complainant in which she has a reasonable expectation of privacy.
[7] Evidence of other sexual activity is only admissible if it meets the requirements of s. 276 – that it is not being led to support one of the twin myths, is relevant to an issue at trial, is of specific instances of sexual activity, and has “significant probative value” that is not “substantially outweighed” by the danger of prejudice to the proper administration of justice. In determining whether such evidence is admissible, the judge is required to take into account a number of factors set out in s. 276(3). Without suggesting that any of those factors is more important than any other, they include the right of the defendant to make full answer and defence, society’s interest in encouraging the reporting of sexual assault offences, and the potential prejudice to the complainant’s personal dignity and right of privacy.
[8] The requirement that the evidence have “significant probative value” means that the evidence must have more than “trifling relevance” and is capable, in the context of all of the evidence, of leaving the fact finder with a reasonable doubt. The requirement that the significant probative value is not “substantially” outweighed by the danger of prejudice to the proper administration of justice serves to protect the accused by raising the standard for the judge to exclude evidence once the accused has shown it to have significant probative value. (R. v. L.S., 2017 ONCA 685 at para. 89; R. v. Darrach, 2000 SCC 46 at paras. 39-41)
[9] In other words, if the proposed evidence is of “more than trifling relevance” the court cannot be prevented from hearing it by this provision unless its probative value is outweighed to a significant or substantial degree by the danger of prejudice to the administration of justice if it is admitted.
[10] The Supreme Court made clear in Darrach, at paragraphs 38 to 43, that these interpretations of the meaning of “significant probative value” and “substantially outweighed” in what is now s. 276(2)(d) ensure that the balancing exercise mandated by s. 276(2) does not prevent a defendant from making full answer and defence. This interpretation allowed the Court to conclude that s. 276(2) does not infringe a defendant’s rights under s. 7 and s. 11(d) of the Charter.
[11] Records in which the complainant has a reasonable expectation of privacy can only be admitted into evidence if the judge determines that they are relevant to an issue at trial and have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. In making that determination, the judge is required to take into account the factors set out in s. 278.92(3). Those factors are almost, but not exactly, the same as the factors which must be considered under s. 276(3) when determining whether evidence of other sexual activity is admissible.
[12] Sections 278.93 and 278.94 set out the procedure for the determination of the admissibility on trials of sexual offences of both evidence of other sexual activity and records in which the complainant has a reasonable expectation of privacy. There is no issue before me of the admissibility of records in which the complainant has a reasonable expectation of privacy. I will determine only the constitutionality of these sections as they relate to the admissibility of evidence of other sexual activity. (R. v. Lloyd, 2016 SCC 13 at paras. 15 to 16)
[13] Section 278.93, under which the court determines whether the evidence in issue is capable of being admissible, does not provide any rights to the complainant. She is not entitled to service of the application record at that stage. All members of the public, including the complainant, are prohibited by s. 278.93(3) from attending the hearing. She is not entitled to appear and make submissions at that hearing.
[14] Sub-section 278.93(2) requires that the application be 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”.
[15] Sub-section 278.94, under which the court determines whether the evidence is admissible, does give the complainant rights. Sub-section 278.94(3) specifically provides that the complainant “may appear and make submissions”. Sub-section 278.94(3) requires that the judge, as soon as feasible, inform the complainant who participates in the hearing of their right to counsel. These provisions have been interpreted to require that the complainant be provided with a copy of the application record. (R. v. Boyle, 2019 ONCJ 11, R. v. Marello, [2020] O.J. No. 3617; R. v. A.M., 2020 ONSC 1846 at par. 29; R. v. J.E., 2019 NLSC 124 at para. 76; R. v. Roland, 2020 BCPC 130 at para. 35) They have also been interpreted to permit the complainant to lead evidence and cross-examine any affiant whose evidence is filed on the s. 278.94 hearing. (R. v Boyle, 2019 ONCJ 253; R. v. A.C., 2019 ONSC 4270; R. v. F.A., 2019 ONCJ 391)
[16] These provisions were added in December 2018 by Bill C-51. Prior to that, the legislation dealing with the admission of other sexual activity was the same as it is now, without the rights of the complainant to appear and make submissions at the second stage hearing (what is now the s. 278.94 hearing). The test for admissibility was the same. The defendant was required to provide the Crown with a written application setting out detailed particulars of the evidence that he or she sought to adduce and its relevance to an issue at trial. The application had to be supported with evidence to establish its relevance. The affiant, even if it was the accused, was subject to cross-examination by Crown counsel at both the first and second stage hearings. The Supreme Court of Canada upheld the constitutionality of that legislation in Darrach.
[17] The defendant attacks the new provisions which give the complainant new rights. He submits that the requirement of providing the complainant with the application record, which contains detailed particulars of the evidence sought to be adduced and its relevance to an issue at trial, together with the right of the complainant to appear with counsel at the s. 278.94 hearing, cross-examine the defendant’s affiant, and lead evidence, breach his right to a fair trial.
[18] Mr. Guertin does not, on behalf of the defendant, seek to have the provisions of s. 278.94 interpreted so as to not include the right of the complainant to be served with the record or cross-examine, even though those things are not specifically provided for in the provisions at issue. He submitted that the provisions had been properly interpreted to include those rights.
The Decision in R. v. Reddick
[19] Mr. Guertin bases his submission almost entirely on Akhtar J.’s decision in Reddick. I therefore start by summarizing that decision.
[20] Akhtar J. wrote:
The purpose of the legislation was “to curtail irrelevant cross-examination and evidence promoting myths and stereotypes associated with sexual assault complaints.” [para. 49]
The new provisions require that the application be disclosed to the complainant, with obvious risks to the fairness of the trial because the complainant is provided with an opportunity to tailor their evidence to the revealed defence, significantly weakening the effectiveness of cross-examination by the defendant. [paras. 55-6]
Under the prior provisions, while the Crown was allowed to consult with the complainant about the application, Crown counsel was obliged to disclose any “comments, explanations, or reaction that arose from its consultation”. Under the new provisions, the complainant is required to be told of her right to counsel and any such explanation witnessed by her lawyer would be privileged and protected from disclosure. Akhtar J. wrote, “In my view, an accused has a constitutional right to this information under s. 7 and Stinchcombe.” [paras. 64-66]
The section “explicitly states that the accused’s affidavit must be provided 7 days prior to trial”, and to “read the legislation down” to allow the application to be brought after the complainant had testified in chief, as was suggested in R. v. R.S., 2019 ONCJ 645 and R. v. J.J., 2020 BCSC 29, encroaches on Parliamentary territory by re-writing the legislation and would create substantial practical trial management difficulties. [para. 67-73]
The overbreadth of s. 278.92 [by requiring advance notice of all records in which the complainant has a reasonable expectation of privacy, whether or not they are related to evidence promoting myths and stereotypes relating to sexual assault victims – a provision not in issue before me] and the requirement to disclose the accused’s application and affidavit to the complainant constitute a breach of the applicant’s s. 7 and s. 11(d) Charter rights. [para. 77]
[21] Akhtar J. also wrote:
[T]he effect of the amendments is to elevate the complainant from the role of an integral witness in the Crown’s case to that of a party who is entitled to advance disclosure of records pertaining to an accused’s line of questioning as well as their defence.
In any criminal trial, it is the Crown who decides whether to oppose defence motions seeking to adduce evidence. They do so in their quasi-judicial role seeking to ensure that justice is done.
Within that process [of determining whether evidence of prior sexual activity may be adduced] the Crown plays a critical role: it takes a position on whether the accused’s line of questioning or evidence fits within the confines of s. 276. If the Crown is of the view that the evidence is inadmissible, it opposes the application. On the other hand, the Crown as minister of justice in charge of the prosecution, may also view the proposed evidence as being properly admitted before the trial judge. That concession, although not determinative, would be extremely persuasive.
Under the provisions, that decision making process is dramatically altered. It is now possible for the Crown to take one view and the complainant to take another and oppose the Crown.
By significantly diminishing the Crown’s role in this decision making process, the constitutional safeguards provided to the accused are also impaired causing a violation of ss. 7 and 11(d).
Further, the privilege extant between the complainant and their representative would mean that the Crown itself would be unaware of any explanation or reaction to the accused’s application. It beggars belief that the institution responsible for prosecuting the case is bereft of information that might be critical to the prosecution.
Troublingly, the current framework allows the complainant and their representative to potentially ignore the Crown’s conclusion in a given case that the proposed defence evidence and/or cross examination is admissible. It permits the complainant to oppose the defence application thereby potentially setting up a dispute that pits them against the Crown – the very institution responsible for prosecuting the charges. Leaving aside the Charter consequences, this development does nothing to enhance the administration of justice.
I conclude that by permitting the complainant to participate in the evidentiary process the provisions significantly diminish the protection afforded to the accused by undermining the role of the Crown. The fact that the court is clearly the ultimate arbiter of whether the evidence is admissible does not detract from the paring down of the Crown’s constitutional role and duty to the accused.
Accordingly, there is a violation of ss. 7 and 11(d) of the Charter. [paras. 91-103 and 122-123]
I Must Follow Reddick Unless It Is “Clearly Wrong”
[22] Akhtar J. issued a declaration under s. 52 of the Constitution Act, 1982 declaring that the sections in issue are of no force or effect.
[23] Other trial level judges have held that the amendments in issue are constitutional both before the decision in Reddick (R. v. C.C., 2019 ONSC 6449; R. v. A.C., 2019 ONSC 4270; R. v. F.A., 2019 ONCJ 391; R. v. Whitehouse, 2020 NSSC 87) and after it (R. v. A.M., 2020 ONSC 8061). Other trial decisions have held that the legislation is unconstitutional (R. v. Anderson, 2019 SKQB 304; R. v. A.M., 2019 SKPC 46; R. v. D.L.B., 2020 YKTC 8; R. v. J.S, [2019] A.J. No. 1639 (Q.B.)). A third group has held that the legislation is constitutional only if read in a manner that allowed a defendant to make the application once the defendant had testified in chief (R. v. R.S., 2019 ONCJ 645; R. v. J.J., 2020 BCSC 29).
[24] Counsel for Mr. Barakat submitted that I was not required to follow Justice Akhtar’s decision in Reddick – that I was free to rule to the contrary if I disagreed with it. In my view, that is not quite right.
[25] The issue of whether a declaration of unconstitutionality binds trial courts was explained by the Court of Appeal recently in R. v. Chan and Sullivan, 2020 ONCA 333. The ordinary principles of stare decisis apply. Paciocco J.A. wrote at paras. 37-39:
Whereas Bedford, 2013 SCC 72 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.
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: R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. 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. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made.
The application of the ordinary principles of stare decisis to s. 52(1) declarations in no way collapses the structural distinction between s. 52(1) and s. 24(1) of the Charter, or amounts to a constitutional exemption, as Mr. Chan argues. The fact that cases at the superior court trial level may produce different outcomes for respective accused persons does not mean that the remedies are personal. The disparity in outcome simply reflects the developing state of the authority on the constitutional validity of a provision, as advanced by judges of competent jurisdiction.
[26] The same principles apply when this court is considering the effect of a decision of the Superior Court which is exercising its jurisdiction as a trial court and not as an appellate, supervisory or reviewing court over this court. Courts exercising coordinate or concurrent jurisdiction over a matter are not bound by stare decisis to follow the judgment in Reddick. (R. v. A.T., 2020 ONCJ 576).
[27] My colleague Shandler J. noted in R. v. A.T., 2020 ONCJ 576 that it is unclear whether the “clearly wrong” standard applies when there are conflicting decisions at the trial level on a constitutional issue. I share his uncertainty. I note, however, that Paciocco J.A. did make specific reference to the possibility that there may be 3 superior court decisions upholding the legislation and 1 striking it down before enunciating that standard.
[28] I have given much thought to the question of whether Akhtar J.’s decision in Reddick is clearly wrong. With the greatest of respect for Justice Akhtar, I have come to the conclusion that it is. I reach that conclusion for the following reasons.
Analysis
Purpose of Amendments is to Safeguard Privacy Rights of Victims While Upholding Defendant’s Right to a Fair Trial
[29] I start with the purpose of the amendments which put in place s. 278.93 and 278.94 in December 2018. I do not accept that the purpose of those amendments was, as Akhtar J. held, to “to curtail irrelevant cross-examination and evidence promoting myths and stereotypes associated with sexual assault complaints.”
[30] That was the primary purpose of s. 276 itself, which was enacted in response to the Supreme Court decision in R. v. Seaboyer, [1991] 2 S.C.R. 577. McLachlin J. wrote at para. 23 of that decision that the main purpose of the prior version of s. 276 was to “abolish the old common law rules which permitted evidence of the complainant’s sexual conduct which was of little probative value and calculated to mislead the jury.” Subsidiary purposes of the original s. 276 were, as McLachlin J. wrote at paras. 24 to 27, the avoidance of unprobative and misleading evidence, the encouraging of reporting and the protection of the security and privacy of the witnesses. Those were also the purposes of the version of s. 276 which was enacted after Seaboyer, and which is essentially unchanged but for the addition of the sections in issue before me. [1]
[31] As the Supreme Court held in R. v. R.V., 2019 SCC 41 at paras. 40-41, the limitation on cross-examination imposed by ss. 276(2) and (3) is necessary to protect the complainant’s dignity, privacy and equality interests, and to achieve important societal objectives, including encouraging the reporting of sexual assault offences.
[32] The purpose of the amendments in issue before me was, in my view, to strengthen the last of the three subsidiary purposes set out in Seaboyer, that of safeguarding the privacy interests of complainants, while upholding a defendant’s right to a fair trial. That was made clear by the Honourable Senator Murray Sinclair when he moved third reading in the Senate of Bill C-51. He said:
Bill C-51's changes safeguard the privacy interests of victims while upholding an accused's right to a fair trial, and they reinforce the long-standing rule that it is never permissible to introduce evidence of prior sexual activity in a criminal trial for the sole purpose of showing that a victim is more likely to have consented to the sexual activity at issue or is less worthy of belief.
[33] In an earlier decision, R. v. Boyle, 2019 ONCJ 253, I wrote at para. 3:
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.
Bell J. agreed with that conclusion in R. v. E.A., 2020 ONSC 6657 at para. 26.
[34] I therefore do not accept the defendant’s submission that the only purpose of the legislation in issue is to avoid cross-examination of the complainant with irrelevant evidence, or evidence that is tendered to support one of the twin myths. Its purpose is to give the complainant an opportunity to directly provide the court with evidence and submissions on an issue which the court is obliged by ss. 276(2) and (3) to consider before admitting evidence of other sexual activity – whether the proposed evidence has significant probative value which is not outweighed by danger to the proper administration of justice in general. It gives the complainant an opportunity to provide, and the court an opportunity to hear, evidence and submissions on those things in s. 276(3) which directly concern the complainant, such as the potential prejudice to the complainant’s personal dignity and right of privacy.
The Supreme Court Has Determined That Providing the Evidence to Be Relied Upon in a S. 276 Application Does Not Infringe a Defendant’s Fair Trial Rights
[35] The defendant submits, as Akhtar J. held in Reddick, that it is unfair to provide the complainant with a s. 276 application, which is required by s. 278.93(2) to set out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial.” The defendant submits that, as Akhtar J. held, this provides the complainant with an opportunity to tailor their evidence to the defence revealed by the application materials.
[36] In my view, this issue has been resolved by the Supreme Court in Darrach. In that case, the defendant submitted that the requirement to submit an affidavit supporting the application breached s. 7 and s. 11(d) because it compelled him to reveal his defence and disclose evidence he hoped to call at trial. The Court rejected that submission. Gonthier J. wrote on behalf of the entire court at para. 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. The Crown can oppose the admission of evidence of sexual activity if it does not meet the criteria in s. 276. Neither the accused's s. 11(c) right not to be compelled to testify against himself nor his s. 11(d) right to be presumed innocent are violated by the affidavit requirement. This is borne out by the way in which the admissibility procedure operates. [emphasis added]
[37] In this paragraph, the Court specifically ruled that it was permissible, under s. 276 as it was prior to the amendments in issue before me, for the Crown to advise the complainant, prior to the determination of the application and prior to her evidence, of the specifics of the alleged prior sexual activity proposed to be adduced by the defendant. The Court ruled that the Crown was allowed to consult with the complainant so that she would not be surprised by the evidence in issue.
[38] I recognize that the defendant is entitled, absent specific law to the contrary, to refuse to disclose the nature of his defence to the Crown or the police. However, as the Court ruled in Darrach, that principle is not breached by s. 276. The defendant chooses to disclose it if he wants to rely on it to support a s. 278.94 application.
[39] In Reddick, Akhtar J. held at para. 61 that when the Court held in Darrach that the Crown could consult with the complainant on the contents of the defendant’s application and affidavit, it could not disclose the defendant’s defence because to so could taint the complainant’s evidence and diminish their credibility. I disagree. Gonthier J. held that the complainant could not be surprised by the prior sexual activity raised by the defendant. The only way that the complainant can be not “surprised” is if she remains unaware of the proposed evidence until it is put to her in cross-examination. The Court ruled that she did not have to remain unaware of the proposed evidence, and that the Crown could “consult” with the complainant about the application.
[40] I understand that Crown counsel may, prior to these amendments, have chosen to not describe the proposed evidence in detail to the complainant so that her credibility could not be undermined by a suggestion that she had tailored her evidence to deal with what she knew would be put to her in cross-examination. This may well have had the effect of enhancing the credibility of the complainants who effectively answered cross-examination questions for which they were not prepared. Those complainants would have survived the ambush. But the Supreme Court has held that the right to a fair trial does not include the right to defend by ambush.
The Complainant Has Always Had the Right to Seek Counsel About Her Rights in a Sex Assault Prosecution and to Privilege in Respect of Those Communications
[41] The defendant submits, as Akhtar J. held in Reddick, that the new procedure breaches his fair trial rights because the complainant is explicitly provided with the right to counsel. When that right is combined with the right to be given the s. 278.94 application record, the result is that what the complainant tells her lawyer about the proposed new evidence is not disclosed to the defence. Before the amendments, when Crown counsel consulted with the complainant about the proposed evidence of other sexual activity, her reaction would be noted and provided to the defendant as part of disclosure mandated by s. 7, as set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[42] Akhtar J. wrote at paras. 65-66:
Under the previous regime, the Crown, under Stinchcombe, was obliged to disclose any comments, explanation or reaction that arose from its consultation with the complainant. Under the challenged provisions, any such explanation witnessed by the complainant's legal representative would be privileged as a result of their solicitor-client relationship.
In my view, an accused has a constitutional right to this information under s. 7 and Stinchcombe.
[43] I do not accept this submission. A complainant has always had the right to consult counsel about the issues arising from her role as a witness in a criminal prosecution. Sub-section 278.94(3) does not give her the right to counsel. It merely requires the judge to advise her of her right to counsel – a right she has always had.
[44] All communications between the complainant and her counsel are protected by solicitor client privilege. The amendments in issue do not change that.
[45] The Supreme Court has dealt with the specific issue of the right of a defendant in a sexual assault trial to obtain production of the communications between a complainant and her lawyer. In R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, an accused who a defendant was charged with sexually assaulting retained a lawyer and brought a civil action seeking damages. The accused sought production of the complainant’s lawyer’s file. The Supreme Court held that solicitor-client privilege is a principle of fundamental importance to the administration of justice as a whole. The communications between the complainant and his lawyer were privileged. That privilege can be set aside, however, where necessary to allow an accused person to make full answer and defence. The test established by the Court in that case is the “innocence at stake” test. The privilege may be infringed only where core issues going to the guilt of the defendant are involved and there is a genuine risk of a wrongful conviction.
[46] Prior to the amendments in issue, the complainant could, as she can now, have sought legal advice about the evidence sought to be adduced after she was consulted by Crown counsel about that proposed evidence. The communications between her and her lawyer were not automatically discloseable, either before or after the amendments in issue. The defendant did not have a constitutional right under Stinchcombe and s. 7 to learn what she told her lawyer about the proposed evidence. Nor did Crown counsel. The amendments did not change the law about this.
The Amendments in Issue Do Not Require That the Application Be Heard Prior to Trial
[47] Akhtar J. held that the application could not be delayed until after the complainant had completed her examination in chief. He wrote at para. 69 that the section “explicitly states that the accused’s affidavit must be provided 7 days prior to trial.” He relied on this as a ground to conclude that the amendments infringed s. 7 and s. 11(d).
[48] There is no such explicit provision in the legislation. It requires that the application be provided 7 days prior to the hearing of the application (not the trial) and it specifically provides for a shorter time period where appropriate. Sub-section 278.93(4), in its relevant parts, states:
(4) … If the judge … is satisfied that … a copy of the application was given to the prosecutor and the clerk of the court at least seven days previously, or any shorter interval that the judge … may allow in the interests of justice and that the evidence sought is capable of being admissible … the judge … shall grant the application …. [emphasis added]
[49] In R. v. Goldfinch, 2019 SCC 38 at para. 145, Moldaver J. wrote that it was advisable to vet all proposed sexual activity evidence before trial. It may be necessary, however, to vary or revoke an order, or even issue a new order, if there is a material change in circumstances. This may require an order to be made or varied in the midst of trial. (R. v. R.V., 2019 SCC 41 at paras. 75-80)
[50] That is what has happened at this trial.
[51] I granted a s. 278.93 application which was brought before trial and ordered that it proceed to a s. 278.94 hearing. During the s. 278.94 hearing, I decided that I should hear the evidence of the DNA expert before deciding whether the proposed evidence could be admitted. I heard the DNA expert’s evidence and, before the complainant had testified, ordered that the evidence of other sexual activity could be adduced.
[52] During the defence case, a witness gave evidence which strayed into evidence of other sexual activity of the complainant. I stopped his evidence and the trial concluded. During closing submissions, the defendant, who was self-represented at the time, sought to rely on the evidence of other sexual activity which was outside the original s. 276 order. I stopped submissions and allowed him to bring a second 278.93 application to admit that evidence and further evidence from that witness and to reopen his case. It is that application which I am on the brink of hearing.
[53] The amendments in issue do not prohibit any of this.
The Role of Crown Counsel Is Not Diminished by the Amendments in Issue So as to Deprive the Defendant of a Fair Trial
[54] Akhtar J. held that the amendments in issue are unconstitutional because they diminish the role of the Crown, which is required to determine whether, in its view, the proposed evidence is properly admissible and advise the Court of that. The Crown owes a duty to the accused when it makes that determination, as it does when it makes all decisions required of it in the exercise of its discretion. He held, and the defendant submitted before me, that the elevation of the complainant’s role in s. 278.94 hearings reduces that role and infringes the defendant’s right to a fair trial.
[55] I do not agree. The Crown has a significant role in criminal trials, and in all aspects of those trials, including s. 278.94 applications. The court relies on Crown counsel to act in the public interest and balance many competing interests in exercising its discretion. The system depends on that. I have no doubt that Crown counsel will continue to fulfil that role in accordance with their duty. The Court will continue to rely on that as it always has.
[56] The issue before me, however, is whether the specific rights of prior notice and appearance granted to complainants at s. 278.94 hearings deprive the defendant of the right to a fair trial. In my view, they do not.
[57] As I have said, the Crown plays an important role in s. 278.94 applications. But it is the trial judge who is charged with ensuring that evidence of other sexual activity of the complainant meets the requirements of s. 276 before it is heard. As the Supreme Court has recently reiterated, it is the trial judges who are the gatekeepers. (R. v. Barton, 2019 SCC 33 at paras. 68 and 197; Goldfinch, para. 75, R.V., para. 71)
[58] The trial judge is required to consider the issues set out in s. 276(3) before deciding whether the significant probative value of the evidence in issue is substantially outweighed by the danger of prejudice to the proper administration of justice.
[59] Under the law prior to the amendments in issue, the trial judge obtained information – evidence and submissions – about those issues from Crown counsel and defence counsel. The judge also relied on his or her own life experience in deciding whether to admit the evidence.
[60] At least one of those issues – the potential prejudice to the complainant’s personal dignity and right of privacy – is something about which the complainant has unique information. She is best suited to provide the court with that information.
[61] Before the amendments in issue came into force, the court was obliged to rely on the Crown to serve as the conduit for that information. Yet the Crown was required to balance that information with the other issues it had to consider. As Akhtar J. wrote at para. 94 of Reddick, Crown counsel could view the proposed evidence as being properly admissible and concede the application. That concession would be extremely persuasive. In those circumstances, the trial judge would be deprived of the information the complainant could have provided which may have assisted them to make the decision they were required to make.
[62] Furthermore, relying on Crown counsel to act as a filter through which the complainant’s concerns must travel before reaching the trial judge produces a process which may well be opaque to the complainant. She does not take part in the decision-making process in the Crown’s office. None of she, the defendant, or the public is given reasons for the decision by the Crown about which, if any, of her concerns to raise with the judge or what position to take on the admissibility of the proposed evidence. The Crown’s decision is not subject to review or appeal. And, prior to the amendments in issue, it had the potential to prevent the complainant’s position making its way to the trial judge, the person who has the obligation to decide the issue of admissibility.
[63] The amendments in issue ameliorate that opaque, closed and unreviewable filter. They give the complainant an opportunity to be heard by the court, and the court the opportunity to hear from the complainant, about the things which the court is required, by both the common law (as explained in Seaboyer) and s. 276, to consider when deciding whether to admit evidence of other sexual activity of the complainant. Unlike the Crown, the trial judge is required to give reasons which explain his or her decision. That decision is subject to appeal.
[64] The amendments in issue do not diminish the role of the Crown. If the Crown is of the view that the proposed evidence is admissible, it is free to make that submission to the court, and to explain to the court why it takes that position. Such a submission will receive due consideration from the trial judge. It is not necessary, for the defendant to receive a fair trial, that the Crown have the ability to foreclose the complainant’s submissions on these issues which have a direct impact on her.
Conclusion
[65] The amendments in issue do not infringe s. 7 or 11(d) of the Charter of Rights and Freedoms.
Released: January 26, 2021 Signed: Justice P.K. Doody
[1] The only substantive change was the addition of s. 276(4), which includes “any communication made for a sexual purpose or whose content is of a sexual nature” in the meaning of “sexual activity” in that section.