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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: October 4, 2023 Court File No.: Toronto 4817 998 22 70004414

BETWEEN:

HIS MAJESTY THE KING

— AND —

J.R.

Before: Justice David S. Rose Heard on: September 25, 2023 Oral Reasons provided on: September 25, 2023

RULING ON CROWN MOTION TO COMPEL DEFENCE TO FILE A S. 278.93 APPLICATION

Counsel: P. Garcia............................................................................................... counsel for the Crown L. Board, D. Brown................................................................. counsel for the accused J.R.

Rose J.:

Overview

[1] This is one of a series of pre-trial motions brought in advance of J.R.’s upcoming trial on a single count of sexual assault. These have been brought by both Crown and defence on a variety of topics. I have ruled on many. Some have been rendered moot by prosecutorial decisions and others withdrawn.

[2] In this motion the Crown seeks an order that “…the Court should direct J.R. to bring an application…” for production of third party records of the complainant in advance of the trial, which is to begin on its merits October 16.

[3] At the conclusion of Crown argument I dismissed the Motion without calling on the defence. I gave brief reasons at the time reserving the right to release further reasons. These are the further reasons.

The May 19 appearance

[4] On May 19 the parties appeared before me. By then I had given two pre-trial rulings on a discreet topic which has nothing to do with this Motion. At that time I asked counsel what was expected to transpire at trial and whether there were other pre-trial motions. There were. Mr. Brown also said this:

I’ve already indicated to the Court and to Your Honour on an earlier occasion was that there’s the potential for a mid trial application here. And that could be because both the complainant and [similar fact witness] sought counseling. I know [the complainant] sought some sort of counselling before she reported to the police, I just don’t have a sufficient evidentiary basis to articulate that motion now, I’m just sort of flagging it for you. And its something I flagged at the judicial pre-trial as well.

[5] While many pre-trial applications and motions have been filed by the defence thus far, none have sought disclosure of therapeutic records from third party records holders.

Other Grounds

[6] There is an additional element to the Crown argument. It takes the position that it inadvertently disclosed various documents about the complainant’s medical records and a therapeutic note. The Crown in submissions says that this was inadvertent. Nonetheless, the Crown takes the position that the inadvertent disclosure, along with the rest of the disclosure has furnished the defence with information about therapeutic records holders for purposes of bringing an application under s. 278.3 for production.

Discussion

[7] The Crown says that the defence is now in a position to bring its motion under s. 278.3, and such a proceeding should be conducted before the trial commences. The Crown argues that waiting until mid trial to bring such a motion is not contemplated by Part VIII of the Code, is unfair to witnesses and is wasteful of Court resources. It is on sound footing in this regard, see R. v. J.J. 2022 SCC 28 at par. 86.

[8] In its factum the Crown brought to my attention authorities for the proposition that the complainant’s evidence in a sexual assault trial must not be bifurcated to permit mid-trial applications for third party records, see R. v. T.F. 2009 ONCJ 656, R v. Karimzadeh-Bangi (2018) unreported decision of Rondinelli J. On the other side is R. v. Lakis (2023) unreported decision of Thomas J.

[9] I pause to observe that J.R. is represented by at least two able counsel thus far in the proceedings. At the first two applications he was represented by as many as three counsel. The prosecution has had three different Crowns thus far. There is a level of sophistication which is apparent in the advocacy in the trial thus far – on both sides.

[10] The motive of the Crown in this motion is laudable. An orderly completion of a fair trial on its merits without delay is not just encouraged, it is required, see R. v. Jordan 2016 SCC 27. All parties must be proactive in avoiding unnecessary delay completion of the trial, see Jordan (supra) at par. 137. This is now axiomatic. As the Supreme Court of Canada recently said, the Jordan time limits “…should encourage those bringing underlying applications or seeking summary dismissal to carefully consider whether such steps are necessary and to assess their impact on the trial timelines”, see R. v. Haevisher 2023 SCC 11 at par. 50 emphasis added.

[11] Indeed, judges have broad trial management powers to ensure that a proceeding completes in a timely fashion. General guidance on this is offered by the Supreme Court of Canada in its recent decision R. v. Samaniego 2022 SCC 9. It is worth quoting Moldaver J, who spoke for the majority of the Court:

[20] The trial management power allows trial judges to control the process of their court and ensure that trials proceed in an effective and orderly fashion. While this Court has not provided explicit guidance on the nature and scope of the power, it has implicitly endorsed the concept (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 26).

[21] The power has three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently (R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47; R. v. Polanco, 2018 ONCA 444, at para. 22).

[22] Judges may intervene to manage the conduct of trials in many ways, including restricting cross-examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant (R. v. Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179, at paras. 167-68; R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), at para. 25). The trial management power is an essential and versatile tool; it must, however, be exercised carefully (R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.), at para. 38). Parties should generally be allowed to present their cases as they see fit (Polanco, at para. 29).

[12] If a trial judge has broad powers to ensure completion of trials, there are limits. One such limit is that the judge must not enter the fray. This is of particular concern in bench trials – which is the only method of proceeding in the Ontario Court of Justice. Judges of this Court are the triers of both the facts and law. Impartiality is crucial. As the Court said in Roberts v. R 2003 SCC 45,

Simply put, public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so.

[13] While judges are presumed to be impartial, see Committee for Justice & Liberty v. Canada (National Energy Board), [1976] S.C.J. No. 118, once that impartiality is lost the trial judge loses jurisdiction over the case, see Roberts (supra) at paras 58 – 60.

[14] I have great difficulty with the Crown’s request. What if a court order requiring the defence to bring a particular application were to conflict with counsel’s instructions, or tactical assessment about how best to conduct the defence? Would such an order stipulate the particular form of the application? What if Counsel were to simply refuse? What possible remedies could be imposed for failure to comply? What can be readily seen is that requiring the defence to bring a particular application as part of trial management is fraught with difficulties. It is completely different than determining admissibility of evidence or restraining questioning of a witness.

[15] I do not reject the very idea that a judge may order a party to take a step in a criminal trial, but if that power exists this is not the case for it.

[16] There are consequences to both Crown and/or defence not filing applications and motions promptly, but that is quite aside from my finding in this motion. In R. v. Kutynec (1992), 7 O.R. (3d) 277, the Court of Appeal ruled on the consequences of bringing a Charter application late. It cautioned that the trial judge has jurisdiction to decline to hear it. I can see no reason why that logic would not apply to other applications which the Crown or defence is required to bring in order to obtain a specific, discreet remedy – particularly where that party is in a position to bring the application but simply doesn’t.

[17] For these reasons I deny the Crown motion.

David S. Rose Ontario Court of Justice