Her Majesty the Queen v. C. C., 2019 ONSC 6449

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C. C.

Defendant

Melanie Nancekievill, for the Crown

Sarah Donohue, for the Defendant

HEARD: October 11, 2019

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO ORDER MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Justice R. Raikes

Overview

1The defendant seeks a declaration pursuant to s. 52 of the Constitution Act, 1982 that s. 278.92 of the Criminal Code of Canada is of no force and effect. The defendant submits that:

• Section 278.92 and its requirements infringe on the defendant’s right to make full answer and defence as guaranteed in s. 7 of the Canadian Charter of Rights and Freedoms (hereafter “the Charter”).

• Section 278.92 denies him his right to a fair trial as guaranteed in s. 11(d) of the Charter.

• Section 278.92(1) is overbroad in scope and application which violates his s. 7 Charter right to fundamental justice.

• These violations are not reasonable limits prescribed by law that can be justified in a free and democratic society pursuant to s.1 of the Charter.

2Section 278.92 is part of Bill C-51 which received Royal Assent on December 13, 2018. It provides that where an accused is charged with a sexual offence, and he/she has a record as defined in s. 278.1 relating to the complainant in his/her possession or control, he/she must bring an application before the trial judge before the record can be adduced into evidence at trial. The application is generally made before trial to the trial judge on notice to the Crown and the complainant. The complainant has a right to participate through counsel on the hearing to determine the admissibility and use of the record: s. 278.94.

3The record need not be related to the sexual offence with which the accused is charged. The accused may be facing two or more charges, only one of which is an enumerated sexual offence. The document may be relevant only to one or more of the non-sexual offence charges. If so, the application is still required.

4An accused charged with the same offences, but not a sexual offence, is not required to bring an application under s. 278.92, nor to disclose to the Crown or complainant that he/she has the record until it is used at trial. Its admissibility may still be challenged by the Crown at that point, e.g. it is not relevant or is not reliable, but no forewarning of its existence and its possible use is provided by the accused in advance of trial.

Sections 278.92 – 278.94

5The procedure for a s. 278.92 application is found in ss. 278.93 and 278.94. Both provisions are essential to understanding how s. 278.92 operates in practical terms. In my view, the effects of s. 278.92 cannot be assessed independent of these provisions.

6At the outset of argument of this application I sought clarification from defence counsel as to whether the challenge was limited to s. 278.92. As her Notice of Application suggested, defence counsel indicated that she challenges both the necessity to bring the application and the procedure to be followed under ss. 278.93 and 278.94. She undertook to file an amended Notice of Application which she has done.

7Sections 278.92, 278.93 and 278.94 state:

Admissibility – accused in possession of records relating to complainant

278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused - and which the accused intends to adduce - shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:

(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or

(b) any offence under this Act, as it is read from time to time before the date on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.

Requirements for admissibility

(2) the evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,

(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or

(b) in any other case, the evidence is relevant to any issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make full answer and defence;

(b) society’s interest in encouraging the reporting of sexual assault offences;

(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;

(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;

(e) the need to remove from the fact-finding process any discriminatory belief or bias;

(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;

(g) the potential prejudice to the complainant’s personal dignity and right of privacy;

(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and

(i) any other factor that the judge, provincial court judge or justice considers relevant.

Application for hearing – sections 276 and 278.92

s. 278.93 (1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Form and content of application

(2) An application referred to in subsection (1) must be made 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, and a copy of the application must be given to the prosecutor and to the clerk of the court.

Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

Judge may decide to hold hearing

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2).

Hearing – jury and public excluded

s. 278.94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).

Complainant not compellable

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

Right to counsel

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

Judge’s determination and reasons

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and

(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;

(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and

(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.

Record of reasons

(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

8The “record” captured by s. 278.92 is defined in s. 278.1 as follows:

Definition of “Record”

s. 278.1 For the purposes of sections 278.2 to 278.92, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

9In R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, the Supreme Court held that the definition of “record” is not overly broad and applies only to documents that truly raise a legally recognized privacy interest.

10I note that the obligation to bring an application under s. 278.92 does not apply to every document the accused possesses nor every document of the complainant that he may possess or control. Rather, the requirement to bring an application applies only to records in which the complainant has a privacy interest. Her personal diary is one example of a record in which she would have a privacy interest. By contrast, a receipt from a store would not likely be captured by the definition of “record”.

The “Record”

11I do not have the “record(s)” that the defendant proposes to use at trial since that is premature at this stage. Defence counsel advises that the defendant is in possession of Facebook postings and messages authored by the complainant. Defence counsel further advises that these records do not relate to sexual activity in any way, and they do not pertain to and are not relevant to the sexual offence with which he is charged.

12Text messages have been found to have a reasonable expectation of privacy: R. v. Makarah, 2017 SCC 59 at paras. 31-37. Facebook messages are akin to text messages in that they are between specific parties much like an email. For purposes of this application and on the necessarily limited information provided, defence and Crown counsel agree that the defendant is in possession of documents authored by the complainant in which there is a reasonable expectation of privacy.

Charges Before the Court

13The defendant stands charged with 33 counts, one of which is an attempt to commit a sexual assault contrary to s. 271.

14The remaining charges are:

• Simple assault of the complainant x 11

• Assault of the complainant causing bodily harm x 3

• Assault of the complainant with a weapon x 3

• Utter threats to the complainant x 5

• Utter threats to other persons x 4

• Mischief x 3

• Resisting arrest x 1

• Breach of probation x 2

15Twenty-five of the charges against the defendant, inclusive of the attempted sexual assault, involve the complainant as the alleged victim.

Approach to Constitutional Challenges

16There are two stages to a constitutional challenge to legislation under the Charter:

1. determine whether a right has been infringed; and

2. if the answer to (1) is “yes”, determine whether the infringement is justified under s. 1 of the Charter.

17At the first stage, the onus of proof rests on the party seeking to establish the violation of rights. That party must show that the impugned provisions infringes the right or freedom at issue, either in purpose or effect. The burden of proof is the civil balance of probabilities: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 at para. 32.

18At the second stage, the onus shifts to the party seeking to uphold the legislation. That party must show that the infringement is justified under s. 1. The standard of proof is the civil balance of probabilities. The test to justify an infringement is set out in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103 at paras. 68-71:

1. there must be a valid legislative purpose or objective;

2. the means chosen to achieve that purpose or objective must be reasonable and demonstrably justified (proportionality test) for which there are three criteria:

a. rational connection between the means chosen and the legislative objective

b. minimal impairment (the right should be infringed as little as possible)

c. proportionate effects (the effects of the measures limiting the right must be proportionate to the objective).

19A law that goes too far and interferes with life, liberty or security of the person in a way that has no connection to its objective is fundamentally flawed: Bedford v. Canada (Attorney General), 2013 SCC 72 at para 101. In R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, the Supreme Court of Canada struck down s. 179(1)(b) of the Criminal Code which made it an offence for those convicted of listed sexual offences to be found loitering in or near a school ground, playground, public park or bathing area. Cory J., for the majority, wrote at paras. 50 and 51:

50Overbreadth…[is] the result of lack of sufficient precision by a legislature in the means used to accomplish an objective. … In the case of overbreadth the means are too sweeping in relation to the objective.

51Overbreadth analysis looks at the means chosen by the State in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual’s rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

20In R. v. Moriarity, 2015 SCC 55 at para. 24, the Supreme Court of Canada provided guidance on the correct approach to an overbreadth analysis:

24At the outset of an overbreadth analysis, it is critically important to identify the law’s purpose and effects because overbreadth is concerned with whether there is a disconnect between the two. The overbreadth analysis thus depends on being able to distinguish between the objective of the law and its effects (resulting from the means by which the law seeks to achieve the objective). With respect to both purpose and effects, the focus is on the challenged provision, of course understood within the context of the legislative scheme of which it forms a part.

Evidence

21Neither party has filed evidence. The information above as to the nature of the documents in the possession of the defendant comes from counsel, not in the form of an affidavit. Counsel asks that I accept the information that she has provided which, together with the indictment before the court, provide the foundation for the arguments that she seeks to advance to show an infringement.

22For its part, the Crown has referred to and quoted from the debates at second reading in the House of Commons, a statement by the then Minister of Justice to the Senate Standing Committee on Legal and Constitutional Affairs and a Charter Statement prepared by the Minister of Justice which is found on the Department of Justice website. These references are found only in its factum and are not separately filed as evidence on the application. The Crown offers no other evidence.

23The defendant has not yet brought an application under s. 278.93. Defence counsel indicates that she will do so if I find that the provisions are constitutional. The position advanced by the defendant is that the legislation is unconstitutional in its general effects; hence, it may be addressed through hypotheticals: R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 at para. 41.

24Although preferable to adjudicate issues raised in the context of the specific documents, obligating the defendant to provide same to the Crown in this context defeats the purpose of the application. Defence counsel has offered to provide same to me in a sealed envelope. In my view, this is a case where having the specific documents is not necessary to determine the issues raised. If the challenge is allowed and it turns out that counsel has mischaracterized the documents and their relevance, there are means available to redress same.

Full Answer and Defence

25The right to full answer and defence is protected under s. 7 of the Charter. It is a principle of fundamental justice. The right is linked to other principles of fundamental justice such as the presumption of innocence, the right to a fair trial and the principle against self-incrimination: R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262 at para. 98. The right to full answer and defence is inextricably intertwined with the right to a fair trial under s. 11(d) of the Charter: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577 at p. 603.

26The right to make full answer and defence does not mean that an accused is entitled to rules and procedures most likely to result in an acquittal. The right embraces the obligation for procedural fairness. In Rose at para. 99, Justices Cory, Iacobucci and Bastarache wrote: “Rather, the right entitles the accused to rules and procedures which are fair in the manner in which they enable the accused to defend against and answer the Crown’s case.”

27In R. v. Mills, the accused was charged with sexual offences and brought an application for disclosure of the complainant’s therapeutic records. He challenged the constitutionality of the third-party records regime in the Criminal Code on several grounds including that it violated his right to make full answer and defence. The records in question were records in which the complainant had a reasonable expectation of privacy.

28At para. 72, Justices McLachlin and Iacobucci wrote:

72… 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 65 (S.C.C.), [1993] 3 S.C.R. 155, per Cory J., at p. 198. In a similar vein, McLachlin J., in Seaboyer, supra, at p. 603, stated:

“The principles of fundamental justice reflect the 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 126 (SCC), [1988] [126 (SCC), [1988] 2 S.C.R. 387] 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.

29Thus, principles of fundamental justice encompass the interests of many stakeholders, not merely those of the accused. No one interest necessarily and automatically trumps other interests that are engaged. A contextual approach that balances the competing interests in the circumstances of the case is necessary: R. v. Mills, para. 61. See also R. v. Darrach, 2000 SCC 45 at para. 24.

Importance of Right to Cross-Examine

30The right to cross-examine is an essential component of the right to make full answer and defence. Its importance has been repeatedly recognized and confirmed by appellate courts:

R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595 at pp. 663-65; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193 at paras.41-44. The Supreme Court of Canada in R. v. Potvin, 1989 130 (SCC), [1989] 1 S.C.R. 525 at p. 544 indicated that the right should be interpreted in a broad and generous manner given its constitutionally protected status.

31The right to cross-examine is not unlimited. It never has been. A defendant is not entitled to adduce irrelevant evidence, to adduce evidence whose probative value is far outweighed by its prejudicial effect, to adduce evidence of sexual reputation or other sexual activity in a sexual assault case for the purpose of inferring that the complainant consented: R. v. Lyttle, para. 44; R. v. Osolin, p. 665.

[32] In R. v. Darrach, the accused was charged with sexual assault. At trial, he brought an application for leave to adduce evidence of the complainant’s prior sexual history. He challenged the constitutionality of s. 276 of the Criminal Code. He argued that it violated his ss. 7 and 11(d) Charter rights.

33The Supreme Court of Canada held that s. 276 did not violate the accused’s Charter rights because the section operated to exclude improper and misleading evidence – evidence that is irrelevant – from sexual assault trials. The right of the accused to adduce evidence of the complainant’s prior sexual history was conditional upon showing that the evidence was being adduced for a proper purpose. The process mandated was reasonable and fair to all stakeholders including the accused. Thus, his right to cross-examine and his ss. 7 and 11(d) rights were not infringed.

34The defendant in Darrach argued, inter alia, that the requirement to bring an application under s. 276 violated the principle against self-incrimination. The Court rejected that argument because the provision did not compel the defendant to testify at trial: para. 47. A defendant may feel compelled to testify for tactical reasons, but he is not required to do so from a legal standpoint: paras. 47-49.

35The Court also rejected the argument that the procedure required the defendant to disclose his or her case to the Crown in advance of trial. At para. 55, Gonthier J. for the court wrote:

55Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. …[T]he accused is not forced to embark upon the process under s. 276 at all. …[I]f 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….

36The Crown places great emphasis in its argument on the principle that the right to make full answer and defence does not include the right to ambush a complainant in cross-examination. Defence counsel notes that the reference to no right to ambush is in relation to the complainant’s prior sexual activity.

Process to be Followed

37The process contemplated by s. 278.93 and s. 278.94 applies equally to applications made under sections 276 and 278.92. In either case, the defendant is required to bring an application on notice to the Crown and must set out detailed particulars of the evidence that the accused seeks to adduce and its relevance to an issue in the trial. The judge is required, as soon as feasible, to inform the complainant of his or her right to participate in the hearing and to be represented by counsel. Meaningful participation by the complainant requires that he/she be privy to the detailed particulars provided by the defendant.

38Thus, the Crown and complainant learn prior to trial that:

1. the defendant is in possession of a “record”;

2. the nature of that record;

3. the date(s) of the record;

4. the substance of the record, if not its exact content; and

5. the relevance of the record by reference to the issue(s) to which it pertains.

39A defendant is precluded from adducing the record at trial if he or she fails to bring the required application. The detailed particulars need not be provided by an affidavit sworn by the defendant and the defendant is not compelled to testify at trial although he/she may perceive the necessity of doing so for tactical reasons. The evidence of the defendant may be wholly unnecessary at trial depending on the document. For example, the defendant may not be the recipient of the email in question and the recipient may be available to testify.

Position of Defendant

40The defendant argues that the requirement to bring an application forces the defence to disclose evidence in the defendant’s possession, something a defendant should not have to do until he/she has seen the case he/she has to meet. A defendant should not have to decide what evidence to adduce or to disclose same before the Crown has closed its case. Unlike Mills, this is a case where a defendant already has documents in his possession; he is not applying to the court to obtain documents in the possession of the Crown or third parties. Likewise, he is not applying to adduce evidence that is presumptively inadmissible – evidence of other sexual activity- as was the case in Darrach.

41Further, the defendant argues that the process contemplated by s. 278.93 and s. 278.94 permits the involvement of the complainant – the very witness whose credibility is likely to be the target of the cross-examination through the use of the record. It undermines the effectiveness of the cross-examination and thus the truth-seeking function of the trial if the witness is given advance notice of the document and the purpose for which it is going to be used. The right to cross-examination is impaired. The right to a fair trial is consequently violated.

42The defendant also argues that s. 278.92 is overbroad in its application and effect. It applies to records that may be entirely unrelated to the sexual offence with which the defendant is charged. The record in question may be, as here, relevant only to another charge that is not one of the enumerated sexual offences. But for the single sexual offence charged, neither the Crown nor complainant would be entitled to any pretrial notice of the document’s existence or the defendant’s intended use of same.

43The defendant does not dispute the need to ensure that victims of sexual offences are treated fairly and respectfully in the criminal justice system. Numerous decisions of the Supreme Court of Canada and other courts have recognized and articulated the need for measures that recognize the rights and interests of sexual offence victims so as to encourage those victims to come forward and to participate in the criminal justice system. However, the defendant submits that the provisions here go too far in that they compromise the defendant’s Charter rights by requiring an application and detailed particulars be provided to the complainant in respect of documents that have nothing to do with the alleged sexual offence or other sexual activity.

Crown Position

44The Crown submits that the purposes underlying the amendments in issue are:

1. to ensure that the Charter rights of complainants – to privacy, security, dignity and equality under ss. 7, 15 and 28 - are fully considered, appreciated, and respected in circumstances where a court is charged with making a ruling as to the admissibility of evidence bearing on their other sexual activities;

2. to improve victim and community confidence in the criminal justice system, thereby increasing the likelihood that victims of offences of sexual violence will report these crimes and participate in criminal prosecutions; and

3. to protect the integrity of the trial process by ensuring that evidence that is misleading or rooted in dangerous myths and stereotypes is not admitted into evidence such as to distort the truth-seeking function.

45The rights of complainants to privacy, security, dignity and equality in ss. 7, 8, 15 and 28 of the Charter have been recognized in numerous Supreme Court of Canada decisions: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411; R. v. Seaboyer; R. v. L. (D.O.), 1993 46 (SCC), [1993] S.C.J. No. 72; R. v. Levogiannis, 1993 47 (SCC), [1993] S.C.J. No. 70; R. v. Osolin; A. (L.L.) v. B. (A.), 1995 52 (SCC), [1995] S.C.J. No. 102; R. v. Mills; R. v. Darrach; R. v. J.Z.S., 2008 BCCA 401, appeal dismissed 2010 SCC 1. The rights of complainants are entrenched in the Canadian Victims Bill of Rights, S.C. 2015, c. 13, s. 2. Every Act of Parliament must be construed and applied in a manner compatible with the rights prescribed by the Canadian Victims Bill of Rights to the extent possible: ss. 21-22.

46The Crown maintains that the provisions in issue here form part of continuing efforts to improve the justice system in relation to sexual violence prosecutions, and the public’s confidence in the system. At para. 20 of its Factum, Crown counsel wrote:

… By guaranteeing complainants of voice to speak directly to the court on issues directly impacting their privacy, security, dignity and equality interests, Parliament has sought to remedy the fact that the justice system continues to fall short of adequately protecting complainant rights in relation to evidence of their other sexual activity.…

47The new provisions prevent an accused from holding back on evidence in order to take the complainant by surprise with evidence of her prior sexual history or with evidence gleaned from her own private records. According to the Crown, this does not breach any of the defendant’s Charter rights and is well-settled law since the Supreme Court of Canada’s decision in R. v. Darrach.

48Further, the sections in question deal only with the terms of a voir dire into the admissibility of specific evidence. The detailed particulars required relate to specific evidence of the complainant’s other sexual activity that the accused seeks to adduce (s.276) or to the records relating to the complainant containing personal information for which there is a reasonable expectation of privacy.

49The Crown submits that there is nothing unusual or unprecedented about a party being required to advise a court of the specifics of evidence it seeks to tender and the basis on which such evidence is claimed to be relevant in order to establish admissibility. Defendants have been bound by the admissibility requirement in s. 276 since 1992.

50The defendant does not have an inviolable constitutional right to keep every aspect of his defence secret in order to take full advantage of the element of surprise in cross-examining a complainant. The Supreme Court has rejected the idea that an accused is entitled to the most favourable procedures available. The fairness of the trial process must be assessed from a broader point of view.

51The Crown argues that like evidence pertaining to other sexual activity, private records as defined by section 278.1 have the potential to profoundly impact the privacy and equality rights of the complainant, and also have the potential to lend themselves to impermissible inferences based on myths and stereotypes.

52Further, the Crown submits that the right to cross-examine a complainant on private records is not unlimited even where they are in the accused’s possession. The trial judge must determine whether the prejudicial effect of that evidence substantially outweighs its probative value – a test effectively identical to that set out in section 278.92(3).

53Given that the complainant’s privacy interests are engaged by the proposed use of her private records at trial, allowing her to participate in the admissibility hearing is consistent with Charter principles. An accused enjoys no greater right to trial by ambush in the context of seeking to adduce the complainant’s private records than he does in seeking to adduce evidence of the complainant’s sexual history. An accused is not compelled to bring an application nor does he lose his right to silence.

54Finally, the Crown submits that there are other provisions of the Code that require an advance disclosure by the defendant of evidence he/she may wish to tender; see for example, expert evidence. An accused who wishes to put forward an alibi defence is required to give sufficient advance notice of the alibi to permit police to investigate it. There are also many circumstances in which a witness will be aware of a defence theory or strategy and may have detailed knowledge of the cross-examination he/she can expect to face; see, for example, where there is a retrial.

55Section 278.92 is not overbroad. The defendant is charged with a sexual offence. The purpose of the section is to protect victims of sexual violence.

Analysis

56Counsel have provided a number of cases where the constitutionality of these provisions has been challenged. The Ontario cases include the decision of Sutherland J. in R. v. A.C., [2019] O.J. No. 3721. The Ontario decisions have upheld the constitutionality of s. 278.92 and the procedure applicable.

57The defendant relies on the decision in R. v. A. M., [2019] S.J. No. 281, a decision of Henning J. of the Saskatchewan Provincial Court. In R. v. A. M., the judge found that the provisions offended the defendant’s s. 7 right to cross-examine. That decision is not binding on me, but defence counsel urges me to find the rationale persuasive.

58I have reviewed the decisions dealing with the constitutionality of s. 278.92 provided by counsel and considered them in writing this decision.

[59] The first issue to be determined is whether s. 278.92 violates the defendant’s s. 7 and s. 11(d) Charter rights. Absent a violation, there is no need to consider whether the violation is justified under s. 1.

60The defendant in this case is already in possession of “records” in which the complainant has a privacy interest. The defendant is charged with several counts, only one of which is a sexual offence. The records in his possession are not relevant to the sexual offence and do not relate to other sexual activity of the complainant. If he is required to bring an application, notice will be given to the complainant. She and the Crown will know in advance of trial what he has and what issues it is relevant to. But for the sexual offence charge, no application need be brought. Without such an application, the right to adduce otherwise potentially relevant evidence is barred.

61I note that:

1. A defendant’s ability to adduce any document(s), through cross-examination or otherwise, has always been subject to challenge; for example, relevance, probative value/prejudicial effect etc..

2. Not all documents in the possession of a defendant are subject to a s. 278.92 application. The documents must meet the definition of a “record” in s. 278.1. What constitutes a record in which a complainant has a privacy interest is an evolving and expanding area.

3. To be a “record”, the document must contain personal information in which the complainant has a legitimate privacy interest. The Supreme Court has recognized and confirmed that a complainant’s privacy interests are constitutionally protected: [vis-à-vis State intrusion] R. v. Mills; R. v. Osolin.

4. Where the defendant does not have the record, he/she must, of necessity, apply to the court to obtain same. He/she cannot simply summons the record keeper. The requirement to bring such an application and the process to be followed have been held to be constitutionally valid: R. v. Mills.

5. The defendant need not depose an affidavit on the voir dire or testify at trial. He is not “compelled” to adduce this evidence although it may be to his tactical advantage at trial to use the record.

6. The wording of s. 278.92(1) expressly contemplates a situation where an accused faces multiple charges some of which are non-sexual offences.

62The application requirement in s. 278.92 arguably fills a gap. Section 278.92 addresses the situation where the defendant already has the record and, as such, there is no need to make a third-party record application. Until s. 278.92, there was no advance notice to the Crown or complainant unless the intended use of the document was to adduce evidence of “other sexual activity” under s. 276.

63In R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, the defendant sought to cross-examine a complainant on entries in her personal diary which was in the possession of the defendant. The trial judge correctly found that ss. 278.1 to 278.9 of the Criminal Code did not apply because the diary was in the defendant’s possession. However, he applied principles drawn from the Supreme Court decision in R. v. O’Connor to determine admissibility and limits on permissible cross-examination. The voir dire dealing with the admissibility of the diary and its use for cross-examination occurred mid-trial after the complainant had testified in-chief.

64The majority in the Supreme Court of Canada held that the trial judge erred in extrapolating the O’Connor test and applying it to determine admissibility of the diary or its use in cross-examination where the evidence was already in the possession of the defendant. The O’Connor test concerned an application by a defendant to get documents not in his possession in which the complainant had a privacy interest. The test in that situation involved a balancing of interests. By contrast, the test for admissibility and use in cross-examination requires that the probative value of the evidence not be substantially outweighed by its prejudicial effect. The “substantially outweighs” test should not be equated to a “balancing of interests” approach: see paras. 103-106.

65At para. 107, Binnie J. wrote:

107In Seaboyer, McLachlin J. noted that “our courts have traditionally been reluctant to exclude even tenuous defence evidence” (p. 607) and affirmed that the defence has a right to use evidence in its possession unless its prejudicial effect “substantially outweighs” (p. 611) its probative value. The reason for the different orientation is apparent. In the O’Connor situation, the accused is not entitled to disclosure, and seeks the intervention of the state to put aside the privacy of a third-party complainant. In the Seaboyer situation, the state is asked by the complainant to intervene against the accused to deny him the use of information already in his possession. It is true that some of the same values must be weighed (e.g., full answer and defence, privacy, equality rights, etc.) but both the purpose and the context are quite different.

66Shearing represents the state of the law until the enactment of s. 278.92 which bars the right to adduce the “record” unless an application is brought. It effectively prohibits use of the record to impeach the complainant through cross-examination unless the application is successful.

67The test for admissibility in s. 278.92(2)(b) is the “substantially outweighs” test. The factors that the judge is required to consider in determining admissibility are substantially the same as those previously laid out in the case law. It remains to be seen whether the factors enumerated in s. 278.92(3)(c) and (d) encompass more than the concerns reflected in existing Supreme Court decisions.

68The obvious difference in approach rests in the timing of the application – before trial- and the participatory role to be played by the complainant. The defendant says those differences substantially prejudice his ability to cross-examine effectively and telegraph the cross-examination. It undermines his right to cross-examine and his right to a fair trial.

69The Crown says this process is necessary and appropriate to encourage victims of sexual assault to come forward and to have confidence in the justice system. The same process is already in place for third party records and applications to adduce evidence of other sexual conduct. Those procedures are constitutionally valid per Mills and Darrach.

70I am not satisfied that the required application, its timing and/or the role of the complainant on the application violate the defendant’s right to make full answer and defence or the fundamental fairness of the trial.

71As noted above, the defendant is not entitled to a process that maximizes his chances of acquittal. Trial fairness must be examined and assessed through multiple lenses including that of the community at large and the victim.

72It is not the case that cross-examination on the “record” has been outright banned or restricted in scope by the application requirement. If successful on the application, the record is available for use in cross-examination. The defendant has available the complainant’s statement(s) to police, testimony from the preliminary inquiry (if held), and other admissible evidence that may be used with or in addition to the “record” for which an application is brought. The ingenuity and skill of defence counsel should not be underestimated.

73The documents that comprise the “record” contain the personal information of the complainant in which he/she has an expectation of privacy. Possession by the defendant may be a matter of chance or a consequence of deliberate conduct in violation of a complainant’s privacy interests by a defendant or third party. From the perspective of a victim of a sexual offence, why should the use of a document in which a complainant has an otherwise constitutionally recognized privacy interest be treated differently where the defendant has that record? How is it fair to the victim to be taken by surprise and possibly embarrassed by the disclosure of personal information?

74The need to do more to encourage victims of sexual violence to report the offence and to ensure confidence that they will be treated fairly in the administration of justice has been the recognized in decisions of the Supreme Court of Canada. Victims of sexual offences are principally, but not exclusively, women and children. In R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33 at para. 1, Justice Moldaver wrote:

1We live in a time where myths, stereotypes and sexual violence against women … are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these feelings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can -and must-do better. [Emphasis in original.]

75The requirement that an application be brought by the defendant to determine admissibility and the process to be followed which gives the complainant a voice where her privacy interests are at stake undoubtedly represent a change to the way in which these issues have traditionally been addressed. In my view, the change strikes a balance between the principles of fundamental justice protected by s. 7 and the privacy interests of a complainant. To be sure, defendants would prefer no obligation to apply to determine admissibility and no participation/involvement by the complainant. However, a change to the status quo does not necessarily equate to a violation of the defendant’s ss. 7 and 11(d) rights.

76In this case, defence counsel indicates that the records in the defendant’s possession have nothing to do with the sexual offence with which he is charged and do not deal in any way with other sexual activity. She argues that there is no compelling reason to require an application with the complainant’s participation in these circumstances.

77To use a hypothetical that I put to counsel during argument, suppose the defendant is charged with two offences: sexual assault and theft of a ring. The two offences occurred months apart. He has in his possession text messages that she sent to a mutual friend that suggest that she intended to meet with the defendant to give him a ring (the stolen property) that he gave to her while they were romantically involved. Why should he have to apply under section 278.92 to adduce the text messages that have come into his possession in these circumstances? If charged only with the theft, he would not have to do so.

78It is not uncommon that the complainant in a sexual assault trial may also testify about other offences with which a defendant is charged. That testimony relates in part to traumatic events which may have had profound effects. Victims of sexual offences have historically found the trial process to be unfair, unkind and intimidating. It is all the more so when the individual is confronted in cross-examination with records that contain sensitive, embarrassing and/or private information in a public setting. Their privacy interests are sacrificed with no forewarning and no opportunity to object.

79Those concerns by victims of sexual offences are not diminished simply because the record in question does not deal with other sexual activity or deals only with the non-sexual offences. In the case before me, several of the charges involve alleged domestic violence. The charges are not always as disparate as my hypothetical.

80While the trier of fact, jury or judge sitting alone, may accept all, some or none of any witness’ evidence, the reality is that credibility and reliability are generally assessed holistically. Inconsistencies in one area may inform the assessment of the witness and his/her evidence in other areas. Victims of sexual offences surprised in cross-examination by the defendant’s possession of and use of sensitive, private, confidential information from documents in which they have a privacy right are unlikely to be encouraged to report sexual violence, much less feel confident in the fairness of the system. It is debatable whether ambushing a witness in this way aids or impairs the truth-seeking function of a trial.

81I am mindful that having to bring an application, provide detailed particulars and argue admissibility including relevance with the complainant involved poses a risk that the complainant may tailor her evidence. The Crown may try to blunt the effectiveness of cross-examination by adducing the evidence in-chief. A less scrupulous Crown counsel may defer withdrawing a sexual offence charge to force the application to get some limited disclosure from a defendant. I do not diminish these concerns in any way.

82Nevertheless, I am not satisfied that ss. 278.92, 278.93 and/or 278.94 interfere with the defendant’s right to cross-examine or result in a violation of his rights of fundamental justice guaranteed by s. 7 and s. 11(d) of the Charter. I agree with Sutherland J. in R. v. A. C. at para. 43:

43…Thus, the question remains; have the amendments changed the landscape to an extent that the accused’s right to a fair trial and right against self-incrimination have been violated? I am not persuaded by the defence that it has. I am not persuaded that providing the complainant with the opportunity to “appear and make submissions”, and if inclined “to participate”, at the hearing alters the findings of the Supreme Court of Canada in Mills and Darrach. …

83With respect to the overbreadth argument, I accept the Crown’s submission as to the purpose(s) for which the amendments were enacted:

• to ensure that the Charter rights of complainants – to privacy, security, dignity and equality under ss. 7, 15 and 28 - are fully considered, appreciated, and respected in circumstances where a court is charged with making a ruling as to the admissibility of evidence bearing on their other sexual activities;

• to improve victim and community confidence in the criminal justice system, thereby increasing the likelihood that victims of offences of sexual violence will report these crimes and participate in criminal prosecutions; and

• to protect the integrity of the trial process by ensuring that evidence that is misleading or rooted in dangerous myths and stereotypes is not admitted into evidence such as to distort the truth-seeking function.

84I note that the s. 278.92 expressly contemplates that an application is required and the same process followed where there are multiple charges of which one or more is a sexual offence. The words “at least one of which is…” captures that intent. It applies whether the document in question pertains only to a non-sexual offence. As I have indicated above, there is a rational purpose to that extension.

85I am not satisfied that the effect of the provision exceeds its intended purpose. It is not the case that the means employed in these provisions is disconnected from the objective of these amendments to the Criminal Code.

86As there is no violation of the right to full answer and defence and fair trial rights, it is unnecessary to engage in the s. 1 analysis.

87The defendant’s application is dismissed.