COURT FILE NO.: CR-18-04996-0000
DATE: 20200727
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
A.M.
Applicant
Shambavi Kumaresan, for the Respondent
Tamar Bitton and Franklin Lyons, for the Applicant
HEARD: July 3, 10 and 16, 2020 (by Zoom)
IN CAMERA
RULING IN RELATION TO TIMING OF 276 / 278 APPLICATION
CHRISTIE J.
Overview
[1] The applicant, A.M., has brought this application seeking a ruling from the court as to the appropriate timing of a 276/278 application.
[2] The materials at issue in this application are WhatsApp text messages between the complainant and the accused. The WhatsApp messages cover a period between May 18, 2017 to January 15, 2018, however, the specific messages at issue in this application occurred in the summer of 2017.
[3] At the time these messages were sent and received, the complainant and the applicant were in a domestic relationship, in fact, were a married couple, who, at times, lived in different countries. Their relationship now has dramatically changed. As of January 2018, the complainant made a statement to the police alleging that the applicant assaulted, sexually assaulted and threatened her beginning in September 2017. The applicant was charged with a number of criminal offences and is moving toward a trial in this matter. The relationship is now an adversarial one.
[4] The WhatsApp messages were obtained from the applicant’s personal devices, as he had saved these messages since the communication occurred. They were not taken from the complainant’s devices.
[5] Most of the communications, in total, appeared to be just simple conversation between two people about their day to day life. There was nothing about the content of most of these messages that would engage s. 276 concerns. Having said that, there were a few messages that did contain some information that could constitute “sexual activity”.
[6] On March 13, 2020, this court heard an application in relation to the messages that did not engage s. 276.
[7] The two issues to be determined at that point were:
Is the Crown entitled to receive the proposed material in order to make submissions as to whether the material amounts to a “record” as defined in s. 278.1?
Is the material in the hands of the accused, that is sought to be introduced, a “record” as defined in s. 278.1; in other words, does it contain “personal information for which there is a reasonable expectation of privacy”.
[8] It should be noted that prior to oral argument on the first question, this court did not review the material, which had been sealed in an envelope and filed with the court. After determining that the answer to question #1 was “no”, in that the Crown was not entitled to see the material, but before hearing argument on question #2, the court did review the material.
[9] On March 25, 2020, this court determined that many of the messages did not meet the definition of “record” as defined in s. 278.1 of the Criminal Code, and therefore, were not captured by the legislation. This court ruled that, with the exception of the WhatsApp messages that engaged s. 276 of the Criminal Code, the complainant did not have a reasonable expectation of privacy in the WhatsApp messages. Therefore, the Applicant was not required to disclose them in advance to the Crown or complainant. See: R. v. A.M., 2020 ONSC 1846
[10] Having ruled as it did, however, the court was clear that there was no ruling on the actual admissibility or the use of the communications at trial. It was, and still is, open to the Crown to object, and the court to intervene, in the event that the proposed use of these communications at trial engages s. 276, where the probative value of the evidence is substantially outweighed by its prejudicial effect, or where other rules of evidence apply, such as determinations of relevance, or even authenticity. This will be determined as the trial unfolds.
[11] Right from the outset, with respect to certain specific WhatsApp messages in the hands of the applicant, it was agreed that those messages contained sexual content, and therefore, would be subject to the legislation, the admissibility of which would be determined at another time. From the beginning of the first pre-trial application, the applicant was very upfront about the fact that if he wanted to adduce those specific messages that engaged s. 276 of the Criminal Code at his trial, an application would need to be brought to determine admissibility in accordance with the legislation. With respect to any messages that are captured by s. 276, it was the view of this court that there were a few which could possibly fall into this category, specifically
20/06/17 – page 23 – 5th message down on the page
25/06/17 – page 31 – last two messages on the page
11/07/17 – pages 61-64 – already conceded by the applicant to involve s. 276
20/08/17 – 21/08/17 – pages 110-111 – already conceded by the applicant to involve s. 276
30/08/17 – pages 122-3
05/09/17 – pages 132-3
This court held that if it was intended that these messages are to be relied upon at trial, there would need to be a judicial determination as to admissibility pursuant to the legislation.
[12] As to when this determination of admissibility should be made, the applicant now brings this application to have the court provide guidance. The specific question before this court on this application is:
- Is the applicant permitted to bring an application under ss. 278.93 and 278.94 to determine admissibility of WhatsApp messages that engage s. 276 of the Criminal Code mid-trial?
[13] The applicant submitted that the 276 application should be permitted to be brought in the midst of the trial, after the complainant has testified in examination in-chief. The applicant argued that this was the only way to properly balance the complainant’s privacy rights and his right to a fair trial. The respondent argued that the 276 application must be brought pre-trial. The respondent submitted that there will be no impact on the applicant either way, however, the complainant’s rights and trial efficiencies will be significantly impacted if the application is permitted mid-trial.
[14] There is no question in this application that the particular WhatsApp messages at issue meet the definition of “record” and are subject to the legislation.
Background and Allegations
[15] The applicant, A.M., is charged with a number of criminal offences, including:
• Sexual assault – September 15, 2017
• Uttering a threat of death – September 15, 2017
• Assault – September 21, 2017
• Uttering threat of death – September 21, 2017
• Assault – September 22, 2017
• Uttering threat of death – September 22, 2017
• Sexual assault – September 11, 2017 – October 2, 2017
• Uttering a threat of death – January 17, 2018
[16] These charges are all in relation to P.U., who A.M. was in a domestic relationship with, in fact married to, at the relevant time.
[17] The complainant was born and raised in Canada, while the applicant was born and raised in India. Their marriage was arranged through this families. They began speaking with each other through various social media applications, such as Skype and WhatsApp, in December 2015. The first time the complainant and the applicant met in person was when the complainant flew to India with her parents to marry the applicant. They did get married in India on August 6, 2016.
[18] After the marriage, the complainant stayed in India for a few weeks, then returned to Canada due to work obligations. The complainant and the applicant continued to converse through WhatsApp and Skype. The complainant returned to India in the beginning of February 2017 and again spent time with the applicant. The complainant returned to Canada at the end of February 2017.
[19] Between February 2017 and September 11, 2017, the parties continued to converse through Skype and WhatsApp.
[20] The applicant moved to Canada on September 11, 2017. The complainant sponsored the applicant and they lived in her parent’s home.
[21] The complainant testified during the preliminary hearing that she was happy with their relationship in India. However, their relationship changed when the applicant moved to Canada on September 11, 2017, at which time she alleged that he became abusive toward her. Specifically, the complainant alleged that:
On September 11, 2017, the applicant sexually assaulted her in the car after she and her parents picked the applicant up from the airport;
On September 15-16, 2017, the applicant sexually assaulted her and threatened her at her parent’s home;
On September 21, 2017, the applicant threatened and assaulted her;
On September 22, 2017, the applicant threatened her;
On October 1, 2017, the applicant sexually assaulted her;
On October 2, 2017, the applicant threatened to kill her;
On January 15, 2018, the couple were supposed to move into their own apartment but according to the complainant, the applicant refused. On January 17, 2018, the complainant unsuccessfully attempted to obtain her rent deposit back. The applicant was upset and threatened to kill her and her parents.
[22] The complainant reported allegations to her parents on January 17 or 18, 2018. She went to her aunt’s house and telephoned the police in Peel Region, however was upset and unable to speak to the police at that time. On January 24, 2018, the complainant attended the police station in Vaughan and gave a statement.
[23] On January 31, 2018, the applicant was arrested.
Analysis
[24] When engaging in this analysis, it is important to keep in mind the history prior to the current version of the legislation, and the underlying purpose for this legislation. It is also important and necessary to keep in mind the constitutional issues that are involved.
[25] Even though this application does not involve an actual determination of admissibility, but rather the timing of when admissibility will be determined, the court must still balance the rights of various stakeholders in order to determine what is just in the circumstances.
The Legislation – History and Purpose
[26] There is no question that sexual offences involve violations of sexual integrity, privacy and autonomy, and often there is an enduring and substantial impact upon victims. Stereotypes about the nature of sexual offences and victims of sexual violence have no place in the justice system.
[27] Historically, there were no limits on the introduction of sexual activity evidence. This changed, as did the rules relating to third party records. The rules of evidence pertaining to sexual assault cases have evolved over time, and have included the following notable events:
In 1982, Parliament tabled the first “rape shield” provisions, the purpose being to discredit the “twin myths”.
In 1991, in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, the Supreme Court of Canada found the version of s. 276 that existed at the time to be unconstitutional, and provided guidance on the admissibility of sexual activity evidence.
In 1992, Parliament enacted Bill C-49, which brought in a new s. 276, that codified the Supreme Court’s decision in Seaboyer.
In 1995, the Supreme Court of Canada ruled on issues arising from the application to produce third-party records in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.
Following this decision, Parliament amended the Criminal Code, through Bill C-46, which brought in a codified regime under s. 278.1 – 278.91 that created a process for the ability of the accused to obtain a record for which the complainant had a reasonable expectation of privacy. This came into force in 1997.
In 1999, the Bill C-46 amendments were upheld as constitutional in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668.
In 2000, s. 276 of the Criminal Code, as it then read was held to be constitutional in R. v. Darrach, 2000 SCC 43, [2000] 2 S.C.R. 275.
In 2015, Parliament enacted the Canadian Victims Bill of Rights, and amended the Criminal Code through Bill C-32. Some of the changes included requiring that complainants be informed by the court of the right to counsel in third-party record applications, personal security of the complainant was included as one of the balancing factors in determining record applications, as well as the inclusion of security of the person as a balancing factor in the courts determination of whether to place conditions on production.
Over these years, there has also been a recognition by the Supreme Court of Canada that Charter protection applies to complainants as well as accused persons and that a balance must be achieved. See R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668; R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 at para. 166; R v. Shearing, 2002 SCC 58 at paras. 121-122; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 110
[28] On December 13, 2018, several amendments to the Criminal Code, enacted by Bill C-51, came into force. The newly enacted statute amended the procedure that governed previous sections 276 and 278, connecting the prior sexual activity provisions with the records regime. The relevant legislation reads as follows:
Evidence of complainant’s sexual activity
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1 or 155, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
Conditions for admissibility
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge must 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 a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
Interpretation
(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.
Definition of record
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.
Production of record to accused
278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused 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, 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 read from time to time before the day 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.
Application of provisions
(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections.
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, 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 read from time to time before the day 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, that the evidence is relevant to an 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 a 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.
[29] The amendments brought some significant changes, including, but not limited to:
Creating an obligation on the defence where materials are already in their possession - The newly enacted s. 278.92 made such records presumptively inadmissible, subject to judicial screening. By virtue of s. 278.92(1) of the Criminal Code, the accused who is in possession of a “record” as defined in s. 278.1, and who wishes to adduce that record, must bring an application to determine whether the record is admissible. In order to be admissible, the evidence must meet the requirements in s. 278.92(2) with a consideration of the factors in s. 278.92(3). Where the record in question does not constitute sexual activity evidence, new section 278.92(2)(b) applies existing rules of evidence to prevent the admission unless the evidence is relevant to an issue at trial and it has significant probative value that is not outweighed by its prejudicial effect. New section 278.92(2)(a) provides that if a record constitutes evidence of sexual activity under section 276, the record is only admissible if the court determines that it meets the conditions set out in section 276(2), while taking account of the factors listed in sections 276(3) and 278.92(3);
Extending the definition of “sexual activity” in section 276 to which the “rape shield” provisions apply to include “any communication made for a sexual purpose or whose content is of a sexual nature” (s. 276(4));
In determining admissibility of records in the hands of the accused that meet the definition of sexual activity, the judge must take into account an additional factor, being “society’s interest in encouraging the obtaining of treatment by complainants of sexual offences” (s. 278.92(3)(c));
In relation to a stage two hearing to determine admissibility of sexual activity evidence, the complainant may appear and make submissions, may be represented by counsel, and the court is to advise the complainant of that right. (s. 278.94(2), (3) and (4)).
[30] Further, s. 278.93 and s. 278.94 provide a framework for how these applications will proceed. Those sections read as follows:
Application for hearing – sections 276 and 278.92
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
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.
[31] Stage one of the admissibility process would appear to be quite straightforward, in that it is mostly about the form and content of the application. The application must be triggered by the accused requesting a hearing under s278.94 to determine whether the evidence is admissible. The application must be in writing, with copies given to the Crown and to the court, setting out “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”. As for notice, a copy of the application must be given to the “prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the court may allow in the interests of justice”. It is of note that the legislation does not mention notice to the complainant. The judge then decides whether to hold a hearing based on the guidance from s. 278.93(4), the main consideration being whether the evidence sought to be introduced is capable of being admissible under subsection 276(2). Up to this point, there is no involvement by the complainant.
[32] Justice Doody in R. v. Barakat, [2019] O.J. No. 705 (C.J.), para. 18, and Justice Jackson in R. v. Francis, 2019 SKPC 67, paras. 12-14, discussed what it meant to be “capable of being admissible under subsection 276(2)”. Both Barakat and Francis discuss the fact that the threshold of “capable of being admissible” is low and that the complainant has no standing. In Barakat, the court stated:
[18] Sub-section 278.93(4) entails only a facial consideration of the matter and a tentative decision concerning the capability of the evidence being admissible. Courts should be cautious in limiting the defendant’s rights to cross-examine and adduce evidence. Unless the evidence clearly appears to be incapable of admissibility, having regard to the criteria of s. 276(2) and the indicia of s. 276(3), the court should proceed to the second stage and hold a hearing under s. 278.94, Any doubts under s. 278.93(4) are better left for decision on the evidentiary hearing under s. 278.94. (R. v. Ecker (1995), 1995 CanLII 3910 (SK CA), 96 C.C.C. (3d) 161 (Sask. C.A.); R. v. B. (B.), [2009] O.J. No. 862 (Ont. S.C.J.)
This court agrees with and adopts the words of Justice Doody noted above. The threshold to meet on stage one must be a low one and, when in doubt, the court should err on the side of caution and proceed to a hearing.
[33] At stage two, the hearing held pursuant to s. 278.94, admissibility largely depends on whether s. 276 is engaged, and the court must go through that appropriate analysis, ensuring that the evidence is not being sought to be introduced for inappropriate reasons, as in to support the twin-myths. If s. 276 is not engaged, pursuant to s. 278.92(2)(b), the evidence must be relevant and there must be significant probative value that is not substantially outweighed by the prejudice. The factors that must be considered are those set out in section 278.92(3). The complainant is not a compellable witness, but rather has the choice of participating and a right to do so, either on her own or through counsel. There is no reference to notice or the timing of notice to the complainant in advance of stage two. However, the complainant must be made aware of what is being sought to be introduced in order to participate.
[34] While the new provisions make significant changes, including what is captured as sexual activity, and obligations on the accused regarding “records” in their possession, the new provisions do not alter the substantive legal test applicable to 276 applications, except that in determining admissibility, the judge must now take into account an additional factor, being “society’s interest in encouraging the obtaining of treatment by complainants of sexual offences”. (s. 278.92(3)(c)). Consistent with fair trial rights, an accused remains able to adduce relevant evidence of “other sexual activity” at trial where it meets the admissibility criteria.
[35] The amended and newly enacted provisions must be analyzed and interpreted with a consideration of the legislative purpose and legal context within which the legislation came to be. This legislation is part of the continuing effort to improve the response of the justice system to sexual violence, and to increase public confidence in that response. Comments made by Parliamentarians demonstrate its purpose and intended effect. Marco Mendicino, former Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib., House – Concurrence at Report Stage, December 11, 2017 stated:
First, it respects the fair trial rights of the accused in that it does not prevent relevant evidence from being used in court. The Supreme Court has already recognized that an accused’s right to full answer and defence does not include a right to defence by ambush.
Second, it acknowledges the privacy interests of a complainant. While privacy interests do not trump all else, the regime seeks to acknowledge that victims of sexual assault and other related crime, even when participating in a trial, have a right to have their privacy considered and respected to the greatest extent possible.
[36] Further, the words of the Honourable Jody Wilson-Raybould, former Minister of Justice and Attorney General of Canada, before the Standing Committee on Legal and Constitutional Affairs, stated on June 20, 2018:
Together, Bill C-51’s proposed sexual assault amendments reflect the critical need to respect all interests in a criminal trial: the rights of the accused; the truth-seeking function of courts; and the privacy, security and equality interests of the victim.
In drafting this bill we sought to ensure that we always consider in the back of our minds the balance required, as I said in my comments, in terms of the rights of the accused to full answer and defence, and of ensuring that we respect and provide dignity to victims of sexual assault.
[37] A few months after this new legislation came into force, on May 24, 2019, the Supreme Court of Canada reinforced the need to improve the response of the justice system to sexual violence. As stated by Justice Moldaver in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33 in the opening paragraph:
[1] We live in a time where myths, stereotypes and sexual violence against women – particularly indigenous women and sex workers – are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating the 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 failings 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.
[38] In Barton, the Court also restated the purpose behind the legislation. The Court commented:
[74] Turning to purpose, the s. 276 regime’s objects — which include protecting the integrity of the trial by excluding irrelevant and misleading evidence, protecting the accused’s right to a fair trial, and encouraging the reporting of sexual offences by protecting the security and privacy of complainants (see Seaboyer, at pp. 605-6; Darrach, at paras. 19 and 25) — are fundamental. Giving the s. 276 regime a broad, generous interpretation that does not unduly restrict the regime’s scope of application would best achieve these objects.
[39] About a month later, on June 28, 2019, the Supreme Court of Canada decided R. v. Goldfinch, 2019 SCC 38. In Goldfinch, the accused was charged with sexually assaulting a woman he had previously dated and lived with. The accused sought to adduce evidence that he and the complainant were still in a sexual relationship at the time of the alleged assault, arguing that the sexual nature of the relationship provided important context without which the trier of fact would be left with the impression that this was a platonic relationship. Karakatsanis J. for the majority stated as follows:
[1] Our system of justice strives to protect the ability of triers of fact to get at the truth. In cases of sexual assault, evidence of a complainant’s prior sexual history — if relied upon to suggest that the complainant was more likely to have consented to the sexual activity in question or is generally less worthy of belief — undermines this truth-seeking function and threatens the equality, privacy and security rights of complainants.
[37] The mischief Parliament sought to address in enacting s. 276 remains with us today. Sexual assault is still among the most highly gendered and underreported crimes (J. Desrosiers and G. Beausoleil-Allard, L’agression sexuelle en droit canadien (2nd ed. 2017), at pp. 41-42). Even hard-fought battles to stop sexual assault in the workplace remain ongoing (compare, e.g. K. Lippel, “Conceptualising Violence at Work Through A Gender Lens: Regulation and Strategies for Prevention and Redress” (2018), 1 U of OHRH J 142, and C. Backhouse, “Sexual Harassment: A Feminist Phrase that Transformed the Workplace” (2012), 24 C.J.W.L. 275). As time passes, our understanding of the profound impact sexual violence can have on a victim’s physical and mental health only deepens. Parliament enacted s. 276 to address concrete social prejudices that affect trial fairness as well as the concrete harms caused to the victims of sexual assault. Throughout their lives, survivors may experience a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. A recent Department of Justice study estimated the costs of sexual assault at approximately $4.8 billion in 2009, an astonishing $4.6 billion of which related to survivors’ medical costs, lost productivity (due in large part to mental health disability), and costs from pain and suffering. The harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone Victorian era.
[38] It is against this backdrop that s. 276 must be interpreted and applied.
[40] The Crown argued that a pre-trial application is necessary to meet the legislative purpose of Bill C-51. At its core, the amendments form part of Parliament’s ongoing effort to improve sexual violence prosecutions, and thus the public’s confidence in the justice system. Deference to Parliament should be a critical factor in any analysis of the legislation. Any interpretation of the amendments that detracts from this purpose would be counter to the idea that courts should defer to Parliament’s choices so long as they withstand constitutional scrutiny.
[41] The purposes and objectives of this legislation as outlined above are summarized as follows:
The need to respect all interests in a criminal trial: the rights of the accused to a fair trial; the truth-seeking function of courts; and the privacy, security and equality interests of the complainant;
The need to respect and provide dignity to victims of sexual assault;
Helping to eliminate myths, stereotypes and sexual violence against women;
Protecting the integrity of the trial by excluding irrelevant and misleading evidence;
Encouraging the reporting of sexual offences by protecting the security and privacy of complainants; and
To address concrete social prejudices that affect trial fairness, as well as the concrete harms caused to the victims of sexual assault, including a constellation of physical and psychological symptoms including: high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour.
[42] It is the view of this court that it is not the timing of these applications, but rather the requirement for the application itself that achieves these purposes and objectives. This type of evidence, whether it involves a record already in the hands of the accused or not, is presumptively inadmissible. This type of evidence will not be permitted unless and until a judge makes a determination that it is permissible pursuant to the factors set out in the legislation. This type of evidence will not be permitted without notifying the complainant of the details of the application, providing the complainant with sufficient time before being required to respond, and allowing the complainant the opportunity to speak directly to the court, either personally or through counsel, on issues impacting privacy, security, dignity and equality interests.
[43] The threshold issue of when this application must be brought and the ultimate issue of whether the records are admissible are two discreet inquiries. Merging the consideration or the interests involved for each stage would be problematic and must be avoided. There is no argument in the case at bar that the application will not be required. The only argument is when that application will need to be determined.
[44] There is nothing about the purposes or objectives of this legislation that leads this court to the conclusion that the application to introduce sexual activity evidence should be brought pre-trial. Having considered the history of the legislation, its purposes and objectives, it is the view of this court that those purposes and objectives can still be met by a mid-trial application in this case. The evidence will not be permitted until it is screened by the court in accordance with the legislation, which means that the complainant will be well aware of the proposed evidence and have input into its admissibility.
Rights of the Accused
[45] In considering the appropriate timing of a 276 / 278 application in this case, the rights of the accused must be considered. As previously stated, the court must balance the various rights in issue, including those of the complainant and accused, to come to a just determination.
[46] Sections 7 and 11(d) of the Charter provide fundamental rights to an accused person, including the right to be presumed innocent, the right to a fair trial, the right to make full answer and defence, including the right to cross-examine and to adduce evidence, and the right against self-incrimination. In R. v Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, the Supreme Court of Canada made the following comments:
[40] The first premise of this argument does not permit of dissent. Every person tried in Canada is entitled to a fair trial. The right to a fair trial is the foundation upon which our criminal justice system rests. It can neither be denied nor compromised. The common law has for centuries proclaimed it, and the Canadian Charter confirms it. Section 11(d) provides that "Any person charged with an offence has the right . . . to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". The right to a fair trial is also a "principle of fundamental justice" which s. 7 of the Charter requires to be observed where the liberty of the subject is at stake: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at p. 603; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486.
[45] At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.
[47] Crucial aspects of the right to make full answer and defence, connected to the presumption of innocence, are the accused’s right to challenge the evidence called by the Crown through cross-examination, and the ability to call necessary evidence. In R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, Cory J. explained the central role of cross-examination in the adversarial process:
[158] In R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, it was once again emphasized that the right to cross-examine constitutes a principle of fundamental justice that is critical to the fairness of the accused's trial. In that case, the right to cross-examine was placed in the context of the right to make full answer and defence (at p. 608, per McLachlin J.):
The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution.
In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations make possible the conviction of persons who the criminal law says are innocent.
[159] Cross-examination is all the more crucial to the accused's ability to make full answer and defence when credibility is the central issue in the trial. Such was the finding made by the Ontario Court of Appeal in R. v. Anandmalik (1984), 6 O.A.C. 143, at p. 144:
In a case where the guilt or innocence of the [accused] largely turned on credibility, it was a serious error to limit the [accused] of his substantial right to fully cross-examine the principal Crown witness. It would not be appropriate in the circumstances to invoke or apply the curative provisions of s. 613(1)(b)(iii).
The same point was made by the Alberta Court of Appeal in R. v. Giffin (1986), 1986 ABCA 107, 69 A.R. 158, at p. 159:
We agree ...that the events about which counsel sought to cross-examine were relevant on the question of the credibility of the witness ... The accused in this case cannot be said to have had an opportunity for a fair answer and defence when he was not permitted to ask them.
To the same effect is R. v. Wallick (1990), 1990 CanLII 11128 (MB CA), 69 Man. R. (2d) 310 (C.A.), where at p. 311 it was said:
Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses. An accused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse that right. Any improper interference with the right is an error which will result in the conviction being quashed.
[160] Thus it can be seen that the right to cross-examine has always been held to be of fundamental importance in a criminal trial. That right is now protected by ss. 7 and 11(d) of the Charter. As a result it should be interpreted in the "broad and generous manner befitting its constitutional status" (see R. v. Potvin, 1989 CanLII 130 (SCC), [1989] 1 S.C.R. 525, at p. 544).
[48] The importance of cross-examination in a trial is undeniable. The Supreme Court of Canada, in R. v. Lyttle, 2004 SCC 5, stated:
[1] Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.
[2] That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence.
[49] Despite these strong statements about the importance of cross-examination to being able to make full answer and defence, it has its limits. As Justice Cory stated in Osolin:
[161] Despite its importance the right to cross-examine has never been unlimited. It must conform to the basic principle that all evidence must be relevant in order to be admissible. In addition the probative value of evidence must be weighed against its prejudicial effect. See Wigmore on Evidence, vol. 1A (Tillers rev. 1983), at pp. 969 and 975. Lamer J. (as he then was) commented on the need for cross-examination to comply with these two principles in Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, at p. 201:
Thayer's statement of the law which is still the law in Canada, was as follows:
(1) that nothing is to be received which is not logically probative of some matter requiring to be proved; and (2) that everything which is thus probative should come in, unless a clear ground of policy or law excludes it.
To this general statement should be added the discretionary power judges exercise to exclude logically relevant evidence
... as being of too slight a significance, or as having too conjectural and remote a connection; others, as being dangerous, in their effect on the jury, and likely to be misused or overestimated by that body; others, as being impolitic, or unsafe on public grounds; others, on the bare ground of precedent. It is this sort of thing ... -- the rejection on one or another practical ground, of what is really probative, -- which is the characteristic thing in the law of evidence; stamping it as the child of the jury system. [Emphasis added.]
[162] Relevance and probative value must be determined in the context of the purpose for which evidence is tendered. Evidence relevant and probative to one issue may not be relevant and probative to another…
[50] There is obviously some benefit to confronting a witness with information in cross-examination that is not expected. In R. v. White, 1999 CanLII 3695 (ON CA), [1999] O.J. No. 258 (C.A.) at para. 20, the court recognized that a witness can tailor their evidence to fit the disclosure. The tainting of witnesses undermines the truth-seeking function of the trial. The court attempts to avoid this by such things as witness exclusion orders. This issue was also raised by Justice Horkins in R. v. Ekhtiari, 2019 ONCJ 774, para. 30, which will be discussed further below.
[51] Having said that, it has been stated that the accused does not have a right to trial by ambush. See: R. v. Darrach, 2000 SCC 46, para. 55
[52] Further, the entitlement to procedural fairness does not entitle the accused to the most favourable process available. See R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262 at para. 99
[53] As for the right against self-incrimination, it is a fundamental tenant of our criminal justice system. It is a personal right that serves to protect an individual’s liberty interests. In R. v. M.P.B., 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, Lamer J. for the majority stated:
[36] Perhaps the single most important organizing principle in criminal law is the right of an accused not to be forced into assisting in his or her own prosecution: M. Hor, "The Privilege against Self-Incrimination and Fairness to the Accused", [1993] Singapore J. Legal Stud. 35, at p. 35; P. K. McWilliams, Canadian Criminal Evidence (3rd ed. 1988), at para. 1:10100. This means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out a prima facie case against him or her. In other words, until the Crown establishes that there is a "case to meet", an accused is not compellable in a general sense (as opposed to the narrow, testimonial sense) and need not answer the allegations against him or her.
[37] The broad protection afforded to accused persons is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under s. 7 of the Canadian Charter of Rights and Freedoms. As a majority of this Court suggested in Dubois v. The Queen, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, the presumption of innocence and the power imbalance between the state and the individual are at the root of this principle and the procedural and evidentiary protections to which it gives rise.
[38] Before trial, the criminal law seeks to protect an accused from being conscripted against him- or herself by the confession rule, the right to remain silent in the face of state interrogation into suspected criminal conduct, and the absence of a duty of disclosure on the defence: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151. With respect to disclosure, the defence in Canada is under no legal obligation to cooperate with or assist the Crown by announcing any special defence, such as an alibi, or by producing documentary or physical evidence. In obiter, this Court suggested in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 333, that
The suggestion that the duty [of disclosure] should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. . .
I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role. [Emphasis added.]
However, it should be borne in mind that this protection against disclosure is not an absolute one. For example, failure to disclose an alibi defence in a timely manner may affect the weight given to the defence: E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nd ed. 1987), at para. 16:8070; McWilliams, Canadian Criminal Evidence, supra, at paras. 28:10711-10712.
[39] At trial, accused persons continue to be protected by a right to silence. Specifically, they cannot be compelled to testify, and they have a right not to have their testimony used against them in future proceedings. These protections against testimonial compulsion of the accused have been constitutionalized in s. 11(c) (right of the accused not to be compelled to testify) and s. 13 (right of witness not to have his or her testimony from one proceeding used to incriminate him or her in a subsequent proceeding) of the Charter. As this Court observed in Dubois, supra, at p. 357, when combined with s. 11(d) (presumption of innocence), ss. 11(c) and 13 of the Charter protect the basic tenet of justice that the Crown must establish a "case to meet" before there can be any expectation that the accused should respond.
[40] All of these protections, which emanate from the broad principle against self-incrimination, recognize that it is up to the state, with its greater resources, to investigate and prove its own case, and that the individual should not be conscripted into helping the state fulfil this task. Once, however, the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for a directed verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling other evidence, and failure to do so may serve as the basis for drawing adverse inferences: Dubois, supra, at pp. 357-58; D. M. Paciocco, Charter Principles and Proof in Criminal Cases (1987), at p. 495. In other words, once there is a "case to meet" which, if believed, would result in conviction, the accused can no longer remain a passive participant in the prosecutorial process and becomes -- in a broad sense -- compellable. That is, the accused must answer the case against him or her, or face the possibility of conviction.
[54] The defence is generally entitled to keep documents confidential until choosing to use them at trial. This notion is rooted in the different roles played by the Crown and defence as noted above. See R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at paras. 11-12.
[55] Again, even though recognizing the importance of the right against self-incrimination, it comes with limits in certain circumstances.
[56] In R. v. Darrach, 2000 SCC 46, the Supreme Court of Canada discussed the constitutionality of the 276 provisions as they existed at that time, post Seaboyer. It should be noted that prior to Seaboyer, s. 276 as it then read provided a blanket exclusion of evidence of sexual activity, subject to three categorical exceptions, which did not allow for judicial discretion to determine other relevance the evidence might have. The law was struck down in Seaboyer and new provisions were modelled on the decision in Seaboyer. In Darrach, the accused challenged the constitutionality of the new sections, arguing that it infringed upon his right to silence and right not be compelled to be a witness in proceedings against himself in respect to the offence, contrary to s. 7 and 11(c), and further that it infringed his right to make full answer and defence, his right to a fair trial, and the presumption of innocence pursuant to s. 7 and 11(d). The constitutional challenge in the case focused on four aspects of s. 276; two of them substantive and two procedural:
The exclusionary rule itself in s. 276(1) – being a blanket exclusion that arguably prevented the accused from adducing evidence necessary to make full answer and defence;
The requirement that the evidence have “significant probative value”;
The requirement for an affidavit and a voir dire; and
The non-compellability of the complainant.
[57] The court stated:
[54] The accused specifically objects to having to submit the affidavit on the grounds that it compels him to reveal his defence and to disclose evidence he hopes to call at trial. He claims that this violates his right to silence. The right to silence in s. 7 properly speaking comprises the right to silence before trial and the privilege against self-incrimination at trial; it is inaccurate to speak of an absolute right to silence at the trial stage of the criminal process (R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at p. 164). In White, supra, at paras. 40-41, Iacobucci J. summarised the Court's position on this subject:
It is now well-established that there exists, in Canadian law, a principle against self-incrimination that is a principle of fundamental justice under s. 7 of the Charter...
The principle against self-incrimination was described by Lamer C.J. in Jones, supra, at p. 249, as "a general organizing principle of criminal law". The principle is that an accused is not required to respond to an allegation of wrongdoing made by the state until the state has succeeded in making out a prima facie case against him or her. It is a basic tenet of our system of justice that the Crown must establish a "case to meet" before there can be any expectation that the accused should respond: P. (M.B.), supra, at pp. 577-79, per Lamer C.J., S. (R.J.), supra, at paras. 81 to 83, per Iacobucci J.
The right not to be compelled to testify against oneself is specifically protected by s. 11(c); the general principle against self-incrimination resides in s. 7.
[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.
[58] There are certainly instances in which the accused’s right not to disclose any information will have to give way or, where if not disclosed, adverse inferences will be drawn – such as an alibi, expert evidence, or in the context of third-party records. In fact, in the context of prior sexual activity evidence, even prior to these amendments, there was a need for the accused to provide affidavit evidence to support its application. However, there is no question that these instances have been determined to be necessary in those particular circumstances, and those instances are limited.
[59] As a response to cases where records have been used to impeach sexual assault complainants, Parliament enacted the procedural measures in Bill C-51 that places limits on the accused’s right to cross-examine and adduce evidence. Given that the applicant in this case concedes that the records engage s. 276 concerns, an application will be required to determine admissibility. If the application fails at stage one, cross-examination on these records and the content of the records will not be permitted. If the application meets the threshold at stage one, the complainant is entitled to know about the application, which must include “detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”. Therefore, there is no question that if the applicant is permitted to use this sexual activity evidence, the applicant will be required to make such disclosure. The Supreme Court of Canada in Darrach, as well as other cases, have found this to be constitutional. The applicant takes no issue with this requirement. Disclosure will be made. The only question for this court is when will that disclosure be made.
[60] It is the view of this court that requiring pre-trial disclosure of the defence’s cross examination material, versus allowing for mid-trial disclosure of the material, unnecessarily infringes the applicant’s rights set out above because of the danger that it will render the cross-examination ineffective. A witness with full advance notice of impeachment material is in a position to tailor their evidence to fit the disclosure. In the case at bar, the witness is a sexual assault complainant whose testimony is central to the prosecution’s case. Therefore, any unnecessary risk of tainting the complainant’s testimony that occurs by requiring the defence to proceed with a s. 276 application before trial can be fatal to a fair trial.
[61] The Crown argued that the effect of the cross-examination is the same whether the application is brought pre-trial or mid-trial, as in the context of records that fall under s. 276, both the record itself and the sexual content of the record are prohibited from being used in evidence, subject to an application. There is, therefore, according to the Crown, no way to raise the contents of the records in order to set the stage for impeachment prior to an application. The court questioned about the possibility that the complainant could raise something to be impeached on by herself. The Crown cautioned the court against deciding this case on a “remote hypothetical possibility”. The Crown agreed, however, that it was an overstatement to say that there was no way to set the stage for impeachment. The Crown then submitted that there was a “low probability” that the complainant will discuss sexual activity, thereby setting the stage for impeachment with these particular records and the court should not grant the application on the basis of this remote chance.
[62] It is the view of this court that the WhatsApp messages amount to prior statements made by the complainant. For example, if she testifies that she did not message certain things to the accused, she may set up an inconsistency. The complainant has already discussed certain WhatsApp messages at the preliminary hearing. Given that when the accused and complainant were living in different countries, their regular mode of communication was through text message, this court does not see it as a remote hypothetical possibility that the complainant will discuss text messages in her testimony. This trial is all about the relationship between these two individuals and text messaging was a big part of that relationship for quite some time.
[63] Cross-examination on prior inconsistent statements is an important means of testing credibility and reliability. In R. v. Williams, 2018 ONCA 138, MacPherson J.A. for the Court stated:
[33] In my view, a good summary of the relevant principles relating to the assessment of a witness’ credibility is contained in R. v.A.M., 2014 ONCA 769 at paras. 12-14:
… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath: R.v. G.(M.) (1994), 93 C.C.C. (3d) (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G.(M.), at p. 354.
… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31. [Emphasis added.]
[64] The Crown argued that advance knowledge of the cross-examination by the complainant will better serve the truth-seeking function of the trial, as the complainant will be able to respond to questions in a more calm and coherent fashion. Cross-examination of a witness regarding a prior inconsistent statement has never required disclosure prior to the examination in-chief and is not considered by this court to be of assistance in seeking the truth of the matter. The effect of disclosing to the complainant is that it may allow her to prepare for trial, ready to explain and possibly modify her evidence. Such modification of testimony is possible, and that concern is reflected in long standing practice to exclude witnesses from trial until after their evidence is given.
[65] The Charter rights of the accused are not decided in a vacuum. These rights must be balanced against the complainant’s rights, including rights to privacy, security, dignity and equality. The legislation certainly seeks to dispose of evidence used solely to support groundless myths and stereotypes, however, principles of fundamental justice allow for the admission of evidence that is not used for this purpose, and which is relevant. Prior to these records or the contents of these records being put to the complainant, if this application is successful, she will be aware of the detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial. It is the view of this court that requiring the applicant to disclose these details prematurely would amount to an unwarranted violation of s. 7 and 11(d) of the Charter.
Constitutionality of the New Provisions
[66] Although there are no appellate rulings on the constitutionality of these new provisions, there are four Ontario cases that have upheld the constitutionality of the new regime. This provides some guidance on the constitutional aspects of the legislation.
[67] On June 6, 2019, Caponecchia J., in the case of R. v. F.A., 2019 ONCJ 391, decided a constitutional challenge in respect of this legislation. The applicant’s position was that sections 278.92 through 278.97 violated his right to make full answer and defence protected by s. 7, his right not to be compelled to be a witness in any proceeding pursuant to s. 11(c), and the presumption of innocence and right to a fair trial protected by s. 11(d). Lastly, the applicant alleged his right to equality of treatment under the law pursuant to s. 15 of the Charter was also impacted by the legislation. The trial commenced and continued until the Crown objected during cross-examination of the complainant. A discussion was held as to the applicability of the s. 276/278 regime. Defence counsel advised of an intention to challenge the complainant with additional items in his possession. Sometime later, the court heard arguments regarding whether the materials were “records” as defined in the legislation. The court determined that all but one item fell within the definition of “records”. A hearing was then scheduled to determine the admissibility of the records. In the meantime, counsel brought a constitutional challenge to the legislation. It is of note that the court stated at para. 34, “A copy of the Application must still be served on the Crown and the court a minimum of 7 days in advance of the trial” (emphasis added). However, that is not what occurred in the case and that is not what the legislation states.
[68] Justice Caponecchia held that the applicant’s argument, that s. 276 created a blanket exclusion, was answered by the Supreme court of Canada in Darrach and must fail for the same reason. In short, she held that the legislation did not create a blanket exclusion but rather prohibits the admission of misleading and / or irrelevant evidence. Further, the court was asked to determine whether Bill C-51 violated the Charter because it required a defendant to disclose his or her defence in an application and be exposed to cross-examination at a stage-two hearing. The court stated:
[62] In other words, the requirement to hold a voir dire and establish the relevance of potentially prejudicial evidence is not a departure from the usual rules of evidence. I find that neither this requirement, nor the prospect of an accused being required to submit to cross-examination, offends the Charter for the same reasons which were expressed in Darrach. I would make two additional observations. Firstly, in some circumstances the evidentiary basis to admit a complainant’s private records could be established through Crown disclosure or cross-examination of witnesses at a preliminary hearing. It will not always be necessary for the defendant to testify on an application. Second, applications heard in advance will ensure a complainant’s cross-examination, and the trial as a whole, proceeds without interruption. In Shearing the complainant’s evidence was halted in order to embark on a voir dire to determine the admissibility of her diary entries.
Quite frankly, these comments by Justice Caponecchia appeared to be simply observations in obiter. As stated, in the case before her, this issue appeared to arise in the course of cross-examination, as opposed to a pre-trial application. Justice Caponecchia was willing to entertain the application and a date was set for it to be heard.
[69] Further she stated:
[66] In Darrach, the defence argued that s. 276 required a defendant to make premature and inappropriate disclosure of his defence to the Crown in order to establish the relevance of the evidence to an issue at trial. The Supreme Court of Canada held that this consequence of the legislation did not violate the Charter. In so doing the court contemplated that the Crown would consult with a complainant on any s. 276 application. What is more, the Supreme Court of Canada went so far as to say that if the defence was going to raise a complainant's sexual activity it could not do so in such a way as to surprise the complainant. A fair trial protected by s. 11(d) is one that does justice to all the parties. The right to full answer and defence does not include the right to “defence by ambush.” In other words, it is not a violation of the defendant's Charter right for the Crown and complainant to be made aware in advance of any prior sexual acts the defence intends to confront the complainant with in cross-examination. For the same reasons, I do not find that disclosure aspect of Bill-C-51 violates the Charter.
[70] The Crown in the case at bar argued that this is the exact same issue in this case and that the issues have already been decided by Darrach and then by F.A. With all due respect, it is not the same argument at all. The applicant in the case at bar is not challenging the legislation. The applicant in the case at bar is not suggesting that he should not need to follow the procedure as set out in the legislation, including disclosing details to support his application. The applicant in the case at bar is questioning only the timing of when that disclosure should take place. Neither Darrach nor F.A. looked specifically at the difference between a pre-trial and a mid-trial application, and the impact on the rights of the accused and the complainant. Darrach dealt with the requirements of an accused to bring the application setting out detailed particulars and its relevance to an issue at trial, and how that requirement did not violate s. 7 or 13 of the Charter. Darrach talked about the fact that the complainant must not be surprised or ambushed by this type of evidence. However, Darrach did not deal with the differences in the application being brought pre-trial versus mid-trial. In fact, the decision in Darrach does not deal with the timing of the application at all. Further, the s.276 legislation being scrutinized in Darrach did not include the participation of the complainant in the hearing, which is fundamentally changed in the new legislation.
[71] On July 15, 2019, in R. v. A.C., 2019 ONSC 4270, Justice Sutherland ruled on a constitutional challenge to the new legislation. There was no reference in Justice Sutherland’s decision to the timing of such applications. He found the sections to be constitutional. He stated in part as follows:
[42] The Supreme Court of Canada, in Darrach, did acknowledge on a s. 276 application that the Crown would have “to consult with the complainant” and “that 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”. Thus, the Crown would have to disclose, to the complainant, the application material the Crown received from the accused. Notwithstanding this disclosure of the application material to the complainant, the Court did not conclude that there was a violation of the accused’s s. 11(d) Charter right.
[43] Granted, the extent of the disclosure to the complainant, and the necessity of providing the complainant with a copy of the written material, is not outlined in the offending subsections. Such detail of the procedure was not set forth in Mills or Darrach. 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. I come to the conclusion that Mills and Darrach are determinative of this issue.
[68] I agree with Doody J. that the meaning of “attend and make submissions” and to “participate” must have meaning. The involvement of the complainant at the voir dire hearing must be a useful one. I agree this includes the ability to cross-examine and lead evidence at the hearing. This lends itself to the complainant having the ability to make meaningful submissions to the court.
[69] However, the ability to “attend and make submissions” is a limited one. It is for the sole and limited purpose of determining the admissibility of proposed evidence at the trial proper based on the statutory framework and goals. It is not to attend and make submissions at the trial proper. It is not to have standing at the trial. It is strictly limited to the issue of the admissibility of the proposed evidence at the trial and the opportunity to convey the perspective of the complainant to assist the court in its decision-making as to whether the proposed evidence should be admitted, such that it does not perpetuate the twin myths and offend the factors described in s. 276 of the Criminal Code.
Justice Sutherland’s analysis is focused on the complainant’s ability to attend, make submissions and participate in the hearing of these applications. There is no discussion as to when this will or should occur. In the case at bar, the applicant takes no issue with the complainant’s right to be involved in the hearing.
[72] On September 17, 2019, Justice Breen, in R. v. R.S., 2019 ONCJ 645, decided an application challenging the constitutionality of ss. 278.93 and 278.94 of the Criminal Code. The applicant in that case argued that the statutory procedure relating to records in the possession of the defence compels the disclosure of defence evidence and strategy, in advance of trial, resulting in a breach of ss. 7 and 11(d) of the Charter. In this case, the applicant’s argument was premised on the assumption that the admissibility voir dire must be conducted in advance of trial and that the complainant would have access to the complete application record. In R.S., Breen J. drew a distinction between cases where an accused makes a choice to call a defence versus challenging the prosecution’s case. The court stated:
[66] …As noted above, an accused’s tactical choice to respond to a prima facie case by calling a defence is distinct from the right to challenge the prosecution case through cross-examination. A statutory provision that compels disclosure of impeachment material in advance of cross-examination offends the principle against self-incrimination.
[68] The defence further contends that disclosure to a complainant, in advance of trial, compromises the fairness of the trial. A complainant, equipped with advance knowledge of the defence brief and strategy, is positioned to adjust their testimony to avoid contradiction, thereby rendering cross-examination ineffective.
[69] The logic of this proposition is beyond dispute. As Doherty J.A. observed in R. v. White:
As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure.
[70] The integrity of a witness and the credibility of their testimony are brought into question when they gain access to relevant information prior to testifying. This concern is entrenched in our criminal law and informs investigative practices, trial procedure and evidentiary rules. The tainting of witnesses, by any means, undermines the truth seeking function of the trial.
[71] In response, the prosecution argues that the extent to which the testimony of a complainant has been influenced by access to the application record can be revealed in cross-examination. Cross-examination may well prove adequate where the impeachment potential of the record is based on inconsistencies between the contents of the record and the complainant’s prior statements to police. A complainant who deviates from a prior statement to avoid contradiction can be cross-examined on the prior statement and face the suggestion that their change in position is attributable to knowledge gained from access to the defence application record. The situation is far different, however, where the foundation for contradiction must be established in cross-examination. A witness who has knowledge of the content of the defence brief “is in a position to tailor his or her evidence” and “escape the grasp of contradiction”.
[72] In addition, the ability of the defence to explore the extent of the complainant’s knowledge or understanding of the defence evidence or strategy is complicated by solicitor/client privilege. Where a complainant is represented by counsel on an admissibility voir dire, knowledge of the details of the defence application will likely be gained through privileged communications. Courts have cautioned that cross-examination of a witness as to knowledge gained through counsel encroaches upon privilege and is best avoided.
[73] Breen J. also disagreed with the Crown that the judgment in Darrach had already decided this issue against the applicant. The Court stated:
[75] The statutory scheme under consideration in Darrach made no provision for notice to the complainant and the Court made no reference to the notice provisions governing applications for production of third party records. In my view, the Court’s recognition of a prosecutorial discretion to “consult” with a complainant cannot reasonably be interpreted as an approval of a statutory requirement that a complainant be granted access to the complete application record in advance of trial.
[76] Indeed, beyond referencing the statutory notice period, the Court made no comment on the proper timing of the application, implicitly approving counsel’s decision to bring the application during cross-examination of the complainant.
[77] In my view, given the above, the statement recognizes that the accused bears the onus of establishing the admissibility of a complainant’s extrinsic sexual history before it is introduced, and that the prosecution may seek input from the complainant in advance of the voir dire.
[78] For the above reasons, I conclude that a statutory provision that compels disclosure of impeachment material to a complainant, in advance of cross-examination, compromises the fairness of the trial contrary to s.7 of the Charter.
[74] Justice Breen then went on to state the support for his determination that the assumption that an admissibility voir dire under s. 278.94 was to be conducted as a pre-trial application was in error. He held that this pre-trial timing was not supported by the statute, judicial rules of practice, the test for admissibility or precedent. (paras. 84-92). Further Breen J. stated:
[94] Context is important. An application to introduce evidence of private records, including those that relate to extrinsic sexual history, is distinct from an application requesting court ordered production of records from third parties. In the context of an admissibility voir dire, the privacy and equality interests of a complainant relate to the impact of disclosure of highly personal information during a public trial. This impact is particularly acute where the defence seeks to introduce the evidence in cross-examination of the complainant. Nevertheless, the complainant’s constitutionally protected interests are only engaged at the point the defence seeks to elicit such evidence. A judicial determination of admissibility, at this point and in accordance with ss. 276(2) or 278.92(2), fully protects a complainant’s right to privacy and equality.
In this context, Breen J. found that s. 278.93 and s. 278.94 did not contravene ss. 7 and 11(d). He stated: “This conclusion is dependent upon an interpretation of s.278.93 that permits such applications to be brought during the cross-examination of the complainant.” (para. 98)
[75] The final Ontario decision dealing with the constitutionality of this legislation was decided on November 6, 2019 by Justice Raikes in R. v. C.C., 2019 ONSC 6449. In this case, the defence advised the court that he was in possession of Facebook postings and messages authored by the complainant and that those records did not relate to sexual activity in any way, and did not pertain to and were not relevant to the sexual offences which formed the charge. Counsel agreed that the materials met the definition of “record”. It was also assumed that the application would be made pre-trial and the challenge was argued on that basis. The court held:
[70] I 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.
[71] As 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.
[72] It 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.
[73] The 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?
[75] The 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.
[78] It 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.
[79] Those 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...
[80] While 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.
[81] I 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.
[82] Nevertheless, 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…
In C.C., there appeared to be no discussion, or even consideration of the possibility of a mid-trial application. The comments of Justice Raikes, and the determination of constitutionality, are focused on the requirement that an application be brought, a process that gives the complainant a voice, and the necessity to avoid confronting a witness in cross-examination with records that contain sensitive, embarrassing and/or private information in a public setting with no forewarning and no opportunity to object. All of these objectives could be met in a mid-trial application.
[76] Despite the fact that courts have already considered the constitutionality of this legislation, those courts, apart from R.S., do not directly discuss and analyze the timing of the application, and its impact upon the rights of the complainant and accused. The arguments were simply framed differently. These decisions must, therefore, be considered and applied cautiously to the question this court is asked to decide. Further, of course, the applicant in the case at bar has not brought a constitutional challenge.
Cases Considering Timing
[77] Since the enactment of these new legislative provisions, only four reported Ontario decisions have considered, specifically, the timing of the application. Three of those decisions held that the applications could be brought mid-trial, while one decided that the application should be brought pre-trial.
[78] One of those cases, R.S. was discussed in detailed above and will not be repeated here. Justice Breen made his decision on September 17, 2019.
[79] On September 25, 2019, in R. v. M.S., 2019 ONCJ 670, Chapman J. took a different view of the timing of 276 applications. M.S. involved a young person charged with sexual assault. At the judicial pre-trial, defence counsel advised that he was in possession of text messages from the complainant to the accused which he possibly wished to use in cross-examination. The defence contended that the materials were not records as defined in the legislation and therefore were not subject to the regime. Further, if an application was required, counsel argued that he was only required to provide notice after he had made the decision to ultimately adduce the documents in question, likely after the complainant had testified in-chief and possibly during cross-examination. Justice Chapman stated:
[78] While it is to some extent true, that by having to bring an application prior to trial the defence are to some extent tipping their hand, the reality is that this is already the case under the former s. 276 of the Code and, again, the section was challenged and ultimately upheld as constitutionally sound in Darrach. In fact in Darrach the court was concerned not merely with the defence particularizing the sexual history evidence they hoped to adduce but the tactical necessity of the accused swearing an affidavit and being cross-examined on it as part of the application, which strikes me as the most demanding form of a s. 276 application.
[79] In R. v. R.S.(A.), Breen, J., ruling September 17, 2019 (OCJ), entertained a constitutional challenge to ss.278.92 to 278.94 of the Code. In advancing and responding to the application, both the Crown and the Defence acted on the assumption that an admissibility voir dire under s.278.94 is to be conducted as a pre-trial application. Afterall, that is how it has always been done since the first efforts of Parliament to regulate the admission of sexual history evidence. However, my colleague concludes that if this assumption is correct the provisions would offend the principle against self-incrimination and the right to a fair trial.
[81] Indeed, he contemplates s. 278.94 applications being routinely brought mid-trial/during cross-examination of the complainant. Given the reality that most sexual assault takes place in intimate relationship, and the expanded definition of record, this will mean in most cases sexual assault trials will be bifurcated. In my view, such an interpretation would defeat the spirit and intent of the legislation and lead to significant trial management mischief.
[82] First it must be remembered that these Code sections govern all applications to adduce any and all “other sexual activity” evidence at a sexual trial as well as private records. The rape shield is not new. Under the former s. 276 an accused needed to make an application and such applications are routinely brought in sexual assault cases. In my experience, they are almost always brought prior to the trial. This has worked well. Further, the Crowns have routinely consulted with the complainants about the subject matter of the application – again, in advance of trial.
Justice Chapman then referred to a number of cases that she found supported her analysis, including R. v. Powell, 2004 CanLII 16473 (ONCA), R v. P.S., 2007 ONCA 299, R. v. Wright, 2012 ABCA 306, and R. v. F.A., [2019] O.J. No. 3041 (C.J.). The court went on to state:
[90] The notice requirements under the new regime are the same as under the former s. 276. In order to have any real meaning or provide any protection for the integrity of the fact finding process they must continue to be interpreted as they always have been, namely requiring an application be brought to admit sexual history evidence prior to trial. Presumably the Supreme Court in Darrach, in approving of the Crown’s ability to consult with the complainant concerning the contents of the affidavit, was not suggesting it was appropriate to do so while she is under cross-examination by defence counsel.
[92] I would also add that one incidental benefit of the notice requirements is that complainants can make an informed decision as to whether or not they wish to take part in a trial. They are now routinely consulted about this process given the trauma associated with testifying. It may very well make a difference to a complainant if she is not only being made to testify to the events that are the subject of the charge but also, for example, the sexual abuse she experienced at the hands of her father. Yes, she is a mere witness and yes, the Crown can subpoena her and force the case on to trial. But the reality of the historic disadvantage women and children have faced in seeking justice in cases of sexual abuse cannot be ignored and indeed further perpetrated through an evisceration of what is the obvious intent of Parliament – namely that, as much as possible, evidence of other sexual activity be vetted prior to trial.
[98] As well, the fact that the application is to be heard in camera, or in the absence of the jury, does not support an interpretation of the notice provisions as permitting routine mid-trial applications to cross-examine complainants on records and sexual history. Juries are often empaneled and then absented for pre-trial motions that need to be brought before the trial judge. Surely, the bifurcation of jury trials is something to avoid.
[99] The principles of statutory interpretation would appear to point in the direction that Parliament intended that the application to adduce sexual history or private records be brought in advance of trial. I would note that the 60 day notice requirement, found in s. 278.3(5), does not expressly specify that it is 60 days notice prior to trial but rather states “before the hearing”. Should this section also be interpreted to mean that the notice requirements for seeking third party records are triggered when the defence decide to cross-examine the complainant on them at trial, thus necessitating a two month mid-trial delay in the proceedings?
[100] The fact that the notice requirements are shorter under the admissibility section then they are under the third party records regime is simply a product of the reality that the latter applications take more time to complete – with service of subpoenas to third party record holders, etc. However, it does not mean that there was an intention that there be no notice requirements at all or that it be at the point in time that the defence decides to air the issue that it is permitted to do so. Again, those notice sections do not expressly stipulate that the application be brought prior to trial but it has been consistently interpreted that way by courts at all levels.
[101] As for the suggestion that counsel can’t be sure that they will contradict a witness on sexual history or a private record until they have heard the witness testify, this does not mean that an application need not be brought in advance to preserve that right. It has always been the case with s. 276 that counsel may change their mind and, given the way the evidence has unfolded, choose not to pursue questions related to records or sexual activity. That does not mean that such questions don’t need to be vetted in advance. Similarly, the fact that an alibi notice should be filed prior to trial does not mean that the defence must pursue the alibi evidence. It does mean that if they don’t put the Crown on notice an adverse inference can be drawn.
[106] On the other hand, the interpretation of the section that essentially encourages mid-trial applications will likely have a very real adverse impact on a complainant’s decision as to whether or not she wants to dispute the admission of her sexual history evidence thus necessitating the agony of ongoing proceedings. It puts complainants in the position of having to choose been (sic) availing themselves of their equality rights while facing the bifurcation of their testimony and an adjournment of the trial or to give up on those rights altogether. Or, perhaps, not bother to speak up in the first place. Again, one thing that is clear is that Parliament expressly enacted these provisions in an effort to encourage women to come forward in sexual assault cases and the reading down/out the notice requirements helps defeat that intention.
[80] The Crown has contended, in line with the court’s decision in M.S., that the jurisprudence is clear that s. 276 applications must be brought as a pre-trial motion. It is necessary to take a closer look at some of the cases relied upon by Justice Chapman, specifically the cases from the Court of Appeal for Ontario, as those cases are not decided simply on the basis of the timing of the application.
[81] In R. v. Powell, [2004] OJ No. 1904 (C.A.), the accused had applied to cross-examine the complainant on a topic that the judge found raised an inference of sexual activity and required an application under s. 276. The application was dismissed for a number of reasons. The court stated as follows:
[4] The trial judge refused to permit the proposed questioning. In so concluding, he considered the timing of the request, the appellant’s failure to comply with the notice requirements of s. 276 and his further failure to provide detailed particulars of the evidence he was seeking to adduce. He also took into account the limited probative value of the impugned evidence, bearing in mind the appellant’s contention that it was solely designed to show that he and the complainant had slept together in the same bed without engaging in any sexual activity. In that regard, as the trial judge noted, the jury was already aware from the complainant’s evidence that although she had broken off her relationship with the appellant two weeks prior to June 5th, she was nonetheless allowing him to stay at her residence until he got back on his feet. The jury also knew that the appellant had slept over at the complainant’s residence on the night of June 3rd and that he and the complainant had parted on friendly terms the next morning. Accordingly, the trial judge was on solid ground in holding that the evidence had little probative value.
[5] As for the prejudicial effect of the proposed evidence, there was a real concern that it would leave the jury, by design or implication, with the erroneous impression that the appellant and the complainant had engaged in sexual activity on the night of June 3rd. In that sense, its prejudicial effect clearly outweighed its probative value.
[82] In R. v. P.S., 2007 ONCA 299, also relied upon by Justice Chapman to support her view, no particular attention was paid to the timing of the application. There were a number of problems with the application. The court stated:
[14] In this case, defence counsel made no written application and only alerted the Crown to his intention at the opening of trial. When the trial judge gave him overnight to prepare the necessary materials for the application, counsel indicated that he was making oral application only, and would not be providing any written materials. He confirmed this the next day. The trial judge then pressed him for exactly what evidence he proposed to elicit and was advised that it would simply be that between the time that the complainant left the appellant in January and the alleged sexual assault in April, they had sexual relations. As counsel put it, “It will just be a general question as to whether they made love after their separation.”
[15] The trial judge dismissed the appellant’s application, finding that there were no written materials and no evidence in support of the appellant’s request, and that there was no discretion to waive either requirement. The appellant challenges these conclusions.
[16] I do not find it necessary to determine whether the failure to make a written application must always be fatal, even if the substantive requirements of notice and particulars are otherwise met.
[17] Apart from the absence of written materials, here there were no particulars whatsoever offered, and no notice was provided of any basis upon which it could be argued that the application should succeed. Thus, in my view, the trial judge was quite correct to dismiss the appellant’s application. He was shown no reason to allow it. The appellant offered nothing – either in writing or orally – to demonstrate that the evidence sought to be adduced was capable of being admissible under s. 276(2) of the Code. The description of the proposed evidence that was given was not of specific instances of sexual activity. This made it clearly inadmissible. There was simply no basis upon which the trial judge could have granted the application and gone on to the hearing contemplated by s. 276.2.
[83] According to the court in M.S., the legislation must be interpreted to require the defence to bring a s. 276 application pre-trial rather than mid-trial to ensure that:
The complainant is not taken by surprise;
Unnecessary adjournments are avoided; and
The Crown has the opportunity to consult with the complainant over the contents of the affidavit produced as part of the s. 276 application.
The fact is that there is no possibility of the complainant being taken by surprise, given the judicial screening that needs to take place. Unnecessary adjournments can be avoided by canvassing the possibility of this application at an early stage. Judicial pre-trials are required in most cases. The Crown and defence are expected to attend judicial pre-trials fully prepared to discuss the case and any applications to be brought. The anticipation of a s. 276 application is something that should be raised at a judicial pre-trial. The complainant can then be notified early and obtain counsel should he or she wish to do so. Further, as is occurring in the case at bar, the accused could seek direction from the court on an application as to the appropriate timing of a s. 276 hearing in the particular circumstances of any given case. While not providing the details, this would certainly put the complainant on notice of this issue. The legislation now allows for the complainant to have her own lawyer which she can consult with and provide instructions to. Further, the Crown will still have the ability to consult with the complainant if this application is brought prior to the commencement of cross-examination.
[84] According to Justice Chapman, the accused has always had to “tip their hand” when bringing these applications, by swearing an affidavit and being cross-examined, and this was upheld as constitutional in Darrach. This is not support for the timing of the application being pre-trial. This is only support for the application occurring before the evidence is used. In this case, if the applicant seeks to pursue this application, they will need to “tip their hand” and provide detailed particulars in the midst of the Crown’s case. The applicant does not challenge that fact. This argument confuses the necessity of the application with the timing of the application.
[85] The court in M.S. finds support in the fact that having a pre-trial application is simply the way it “has always been done since the first efforts of Parliament to regulate the admission of sexual history evidence.” This is not an argument to support that something should continue to be done. Prior to sexual activity evidence being held to be presumptively inadmissible, it was used, regularly for improper purposes. However, it was certainly time for that practice to stop for principled reasons. Arguing that something has always been done and should continue, misses completely the ever-evolving nature of law.
[86] Justice Chapman comments that given the reality that most sexual assault takes place in intimate relationships, and the expanded definition of record, this will mean in most cases sexual assault trials will be bifurcated, and that such an interpretation would defeat the spirit and intent of the legislation and lead to significant trial management mischief. There is no support for the belief that allowing the possibility of mid-trial applications will bifurcate most trials. Allowing an informed decision to be made by defence counsel and the accused as to whether they wish to pursue this application, after hearing the evidence in chief of the complainant, may in fact lead to less of these applications overall, as there may no longer be any basis to bring the application.
[87] As for the complainant being able to make an informed decision as to whether or not they wish to take part in a trial, the timing of when this application is ultimately determined should have no bearing on this. As previously stated, the anticipation of a s. 276 application can be made known at a very early stage. The complainant can discuss this with counsel. In the case at bar, the complainant is likely well aware of the nature of the messages at issue and that they are not involving others, but rather communications she was involved in with the accused. This complainant has a great deal of information available to her in order to make a decision about whether she wishes to take part in this trial.
[88] In holding that pre-trial applications should be the practice, Justice Chapman found that it is best for questions to be vetted in advance, even though counsel may change their mind and, given the way the evidence has unfolded, choose not to pursue questions related to records or sexual activity. It is the view of this court that this would seem to make for unnecessary trauma to the complainant who will have been involved in an unnecessary pre-trial application that never needed to happen.
[89] Justice Chapman held that mid-trial applications put complainants in the position of having to choose between availing themselves of their equality rights while facing the bifurcation of their testimony and an adjournment of the trial or to give up on those rights altogether. Quite frankly, this could equally be said of the pre-trial process, that complainants may not want to be involved and, therefore, give up on those rights altogether. Despite this fact, the accused is still allowed to seek the permission of the court to adduce this evidence. It is not strictly prohibited. It is prohibited only where it is adduced for the wrong purposes.
[90] In the present case, many of the concerns raised by the court in M.S. are mitigated. The complainant authored and received the WhatsApp messages at issue. The Crown, and by extension the complainant, is aware of the dates which engage s. 276 from this court’s decision on the records issue. The trial is currently scheduled for two weeks – December 7-18, 2020. There has been a re-election to have a judge alone trial. It would appear that there may be enough time to have this application during the days as already scheduled, and if not, further dates can be canvassed now to avoid further delays.
[91] On October 25, 2019, Horkins J. decided the case of R. v. Ekhtiari, 2019 ONCJ 774. The issue was framed somewhat differently. Horkins J. was considering an application for directions brought by the accused as a precaution, in anticipation of objection being taken to the use of certain materials at trial which could trigger the s. 276/278 provisions. Specifically, the accused had in his possession a volume of digital communications exchanged between the parties during their relationship up to and including the events forming the subject matter of the charge. The communications were described as demonstrating a mutual understanding of their shared sexual preferences. Horkins J. relied on the analysis of Breen J. in R.S. Horkins J. stated:
[29] … In order to balance the objectives of the legislation with the constitutional rights of the accused the Court has a duty to minimize the offending impact on the fair trial rights of the accused.
[30] Justice Breen’s approach in R. v. A.R.S. persuades me that in order to preserve the fair rights of the accused it is best to defer any obligation on the accused to produce the materials for review until such time as the evidence at trial triggers the necessity to do so. The contextual assistance of the evidence at trial may be necessary to provide an adequate foundation to determine the relevance and probative value of the materials. I am also concerned that the premature production of potential impeachment materials may very well neutralize their effectiveness in cross-examination and significantly impair the fair trial rights of the accused.
[31] Forcing premature disclosure of impeachment materials to both the Crown and the complainant creates obvious, significant and potentially unnecessary negative impact on the ability of the accused to properly defend the case. When weighed against the logistical challenges that mid-trial applications may cause, the fair trial rights of the accused should clearly be given priority.
[32] For this reason, I am not directing that an application for leave to adduce the materials be brought in advance of trial. I will defer to counsel for the accused as to when and if she wishes to adduce the material and seek the required leave of the Court to do so.
[92] Finally, on January 22, 2020, Justice Dawe gave a ruling in R. v. X.C., 2020 ONSC 410. In that case, the accused was in possession of a series of WeChat text messages that he exchanged with the complainant throughout the course of the relationship, which was also the time period of the sexual assault allegation. The accused sought direction from the court as to whether he was required to bring an application under s. 278.93 before he could adduce those text messages or evidence of their contents at his trial. He also sought direction regarding the timing of such an application. The applicant argued that he should not have to bring an application, given that the messages were closely related to the sexual acts on which the sexual assault charge was based and, therefore, were part of the sexual activity that formed the subject matter of the charge. It was also argued that none of the messages were “records” within the meaning of the statute. Finally, it was argued that any application required should only have to be brought as a mid-trial application after the complainant testified in chief.
[93] As for the timing of the s. 278.93 application, Dawe J. looked at both Justice Breen’s decision in R.S. and Justice Chapman’s decision in M.S. on the issue of timing. He stated:
[74] It is unnecessary for me to attempt to resolve this debate over how s. 278.93 applications should generally be conducted, since I am satisfied that in the particular and somewhat unusual circumstances here Mr. C should be permitted to postpone bringing any s. 278.93 application until after Ms. Z has testified in chief.
Justice Dawe reached this conclusion for two reasons:
It was not yet clear whether s. 276 properly applied to a number of the text messages at issue, as depending on the evidence the complainant was to give at trial regarding which activity she did not consent to and when this occurred, many messages may fall outside the scope of 276; and
If the application was brought pre-trial, the court did not see how he could make a ruling until after Ms. Z testified, at least in chief, as he would not be in a position to properly balance the factors in s. 276(2) and (3). Any pre-trial ruling would be preliminary and further submissions would be necessary. A bifurcated trial was, therefore, unavoidable and it would serve no purpose to have the accused bring the application before trial.
In relation to this second factor, Justice Dawe stated:
[77] …. Requiring him to do this would not make the trial process any more efficient, and would potentially impair his ability to make full answer and defence and compromise his s. 7 Charter rights by forcing him to disclose his defence to both the Crown and the complainant before he knows the case against him.
[94] The only Ontario Superior Court decision brought to this court’s attention on the issue of timing was X.C., in which, the Crown argues, Justice Dawe allowed the application to be brought mid-trial because of the unusual circumstances of that case. However, Justice Dawe does not say that unusual circumstances are required, he simply refused to make a ruling. Further, Justice Dawe recognized the possible Charter rights impacted by a pre-trial application.
Evidentiary Burden on the Applicant
[95] The Crown argued that, in order to minimize the early disclosure by the accused, the application need not include the actual records. The legislation does not require that the record be included. The statutory wording leaves open the possibility that the application can address the sexual nature of the communication while restricting how much defence theory is disclosed. The application can be drafted to minimize how much is disclosed, which could even be an interactive process between counsel. Further, the Crown argued that it is also in their interest to limit the information provided to the complainant so as not to compromise the integrity of the complainant’s evidence.
[96] The problem with restricting the information contained in the application record is that the application may be denied because there is not enough detail disclosed to meet the test. Section 276(2) requires that the defence establish that the proposed evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. This evidentiary burden was discussed in Goldfinch:
[5] A s. 276 application requires the accused to positively identify a use of the proposed evidence that does not invoke twin-myth reasoning. In other words, relevance is the key which unlocks the evidentiary bar, allowing a judge to consider the s. 276(3) factors and to decide whether to admit the evidence. Bare assertions that such evidence will be relevant to context, narrative or credibility cannot satisfy s. 276...
[97] In the case at bar, the applicant seeks to impeach the complainant with the WhatsApp messages in his possession. Relevance can only be fully determined after the complainant has testified. Only then will the probative value of the records crystalize. A pre-trial application would require the applicant to discharge its burden based on speculation as to how the complainant will testify, and how some of the WhatsApp messages which engage s. 276 may or may not be relevant.
[98] The Crown argued that the foundation can be laid through police statements and the preliminary hearing evidence. While it is true that it may be possible to do this, no one knows if the complainant’s evidence in chief will be consistent with prior evidence she has given, and certainly there are often questions raised at trial that are not raised during a police statement or at a preliminary hearing. For that matter, the application may no long be relevant given how the complainant testifies at trial.
[99] Further, courts are put in a very difficult, if not impossible, position when asked to make rulings based on speculation as to what could happen as opposed to what has happened. In R. v. Harris, 1997 CanLII 6317 (ON CA), [1997] OJ No. 3560 (C.A.), Justice Moldaver discussed the preference for final rulings to wait in the context of 276 applications. In Harris, one of the grounds of appeal related to a failed 276 application that was brought at the outset of the trial, before the complainant testified in chief. The court stated:
[38] Given the vagaries that all too often exist when trial judges are asked to make "advance" evidentiary rulings, it seems to me that as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time as they are required to do so. Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendency to either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidence unfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce of prevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time as they are required to do so.
See also Ekhtiari, para. 30; R.S., paras. 89-90; X.C., para. 76
[100] Allowing this application to be brought mid-trial will permit the applicant to establish the necessary foundation, and allow this court to make an informed decision.
The Rules of Court
[101] The Criminal Proceedings Rules for the Superior Court of Justice (Ontario) are silent on the timing of a s. 276 application. The Criminal Rules of the Ontario Court of Justice, however, specifically allow for a s. 276 application to be brought mid-trial. There is a clear distinction made between pre-trial applications, being those to be heard at least 60 days before trial, unless otherwise ordered, versus trial applications, being those to be heard at the start of the trial or during the trial, unless otherwise ordered. An application related to evidence of a complainant’s prior sexual activity is explicitly included as a trial application. Surely it would not be fair for an accused facing a sexual assault trial in the Superior Court of Justice to be required to bring a pre-trial application, if an accused facing a sexual assault trial in the Ontario Court of Justice would be permitted to bring the application mid-trial. There would be no principled basis for the procedure being different in the two courts.
Conclusion
[102] The applicant is asking the court to make a case specific analysis to determine whether the application can be brought mid trial in this case. Not all cases will proceed in the same fashion as the one before this court. This court is not suggesting that every application of this nature must be brought mid-trial. However, it certainly should not be taken for granted that the default position is for these applications to be heard pre-trial. There appear to be many principled reasons to support a mid-trial application. Perhaps an application for direction on timing should be conducted on a regular basis.
[103] The new 276/278 regime must be applied in a way that respects and balances the rights of both the complainant and the accused. This court has a positive duty to protect those rights. Fairness does not only include the rights of the accused. The rights of the complainant to privacy, security, dignity and equality have all been recognized by Parliament and the courts. Trial fairness must be examined and assessed through multiple lenses, including that of the accused, the community at large and the complainant.
[104] The purpose of this application is not about whether the defence should have to bring an application when in the possession of text messages that contain sexual content. The applicant is not seeking to ask questions about the records prior to the application process. The applicant agrees that the legislation requires such an application and is prepared to bring that application. The applicant supports the application process, in that it is necessary to protect the complainant’s rights. The objectives of the legislation are important to protect complainants and are not being challenged here. There is no constitutional argument before this court as to the statute requiring this application. All cases referred to this court have found the legislation constitutional. This will likely attract the attention of the appellate courts in due course. However, that issue is not before this court on this application. The issue on this application is not whether the legislation is constitutional or should be followed in the manner as set out, including the need for affidavit evidence and the need for a voir dire. The sole issue on this application is when does this need to occur – pre-trial or at some point during the trial.
[105] Parliament has the ability to add to existing protections. The amendments are an extension of already existing protections that have been in effect for some time. However, the suggestion that the applicant must bring this application pre-trial would read something into the statute that simply does not exist. The legislation states that notice must be provided “seven days previously”, not “seven days in advance of trial”. There is no binding authority on this court to support the contention that this application must be brought pre-trial. To read the statute as requiring a voir dire prior to trial, would limit the accused’s rights to full answer and defence and violate the right against self incrimination unnecessarily, by forcing the defence to disclose information to the Crown and complainant prematurely. These are important Charter rights that are long established.
[106] The court must balance the rights of the accused against that of the complainant, without putting one above the other. The applicant’s position is not that the complainant’s rights are to be ignored, but rather, simply that the complainant’s rights not be given heightened priority over that of the accused. The court has a duty to minimize an infringement of the accused’s Charter rights, a person who faces the weight of the state against him. The accused’s liberty is directly at stake. Allowing the application to be brought mid-trial minimizes the impact on the accused, while at the same time respects all of the purposes and objectives behind this legislation.
[107] The timing of the application does not affect the complainant’s rights in any negative way. Whether this application is brought pre-trial or mid-trial, the complainant may be involved in two separate processes. There is no support for the proposition that a mid-trial application significantly worsens this already trying process. There is no support for the proposition that, as the Crown suggested, it is better to have two stressful events separated and dealt with one at a time. While delays in testimony are likely stressful for any witness, issues often arise in trials that cause delay. This is the reality of a trial. Gaps in testimony are to be avoided where possible. A mid-trial motion does not make the complainant face stress any more than a pre-trial motion. The uncertainty the complainant feels about the process, and the questions to be asked of her, will still exist. Even if she is aware of the details provided in the application record, she will not know the questions to be asked of her.
[108] The reality is that these applications can be re-opened at trial. This was recognized most recently in R. v. Barton:
[65] Finally, a ruling on the admissibility of prior sexual activity evidence under s. 276 is not necessarily set in stone. There may be circumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence. By way of illustration, where a complainant makes a statement to the police that prior sexual activity occurred but later contradicts that evidence in her testimony at trial, that contradictory testimony would open the door to the defence bringing a renewed s. 276 application seeking to have the prior sexual activity evidence admitted for credibility purposes (see R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912; R. v. Harris (1997), 1997 CanLII 6317 (ON CA), 118 C.C.C. (3d) 498 (Ont. C.A.)), despite an initial ruling of inadmissibility. This is but one example. There may be other circumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activity evidence.
This means that even if the application is brought pre-trial and the court rules that the evidence is inadmissible, the possibility always exists that the issue could be re-addressed at a later point. Therefore, there would still be uncertainty.
[109] If the defence chooses to pursue such an application, they will be required to provide detailed particulars to the Crown. If the Applicant satisfies stage one, an admissibility hearing would be conducted. The Crown will be able to discuss the matter with the complainant. The complainant can retain and be represented by counsel. If admissible, the complainant would be aware of the detailed particulars before she is cross-examined. There will be no ambush. The court will determine questions of admissibility in line with the legislation that protects the complainant’s privacy and dignity. The timing of the application is not what serves to protect the complainant from being ambushed or surprised. It is the application itself and all of the protections it brings. It is of note that the legislation does not even refer to notice to the complainant or the timing of any notice. The complainant is entitled to have her voice heard and to have a judicial determination made before being confronted with this type of evidence. This will protect the dignity and privacy of the complainant and ensure that improper questioning that perpetuates the twin myths is not allowed. The complainant is entitled to a fair process that ensures her privacy and dignity. This will occur in this case.
[110] The only difference that results from the timing of this application being mid-trial is that the complainant would not know the detailed particulars of the communications prior to giving her evidence in chief. There would be no opportunity to tailor the evidence in chief to line up with the text messages. This is in everyone’s best interests. This is fundamental to the search for truth and the fair trial rights of the accused. Use of prior inconsistent statements to impeach a witness is a well-established means of testing the credibility and reliability of witnesses. The evidence of the complainant in this case, as in many cases, is crucial. While there are circumstances where the complainant may be aware of defence strategy prior to trial, this does not mean that it should be encouraged or that it should be the norm.
[111] The fact is that the application may not be pursued depending on how the complainant testifies at trial. Responsible defence counsel will consider whether this evidence is really necessary to advance their case. If the applicant is forced to bring these applications pre-trial, defence counsel will likely err on the side of caution and bring the application even if later on they decide not to use the evidence once the complainant testifies. This would put the complainant through an unnecessary pre-trial application. However, if these applications were to be brought at the time that the issues crystalize, there may actually be less applications brought, as they may become unnecessary or improper given how the evidence unfolds.
[112] The real negative impact of a mid-trial application is upon the administration of justice. The reality is that it may cause delay; it may cause adjournments. This is particularly concerning in the case of jury trials where there is a need to be mindful of disruptions in the lives of many. However, even in the case of judge alone trials, delays and adjournments are to be avoided. Everyone, including the accused, complainants, witnesses, and society, has an interest in having matters proceed fairly and efficiently. The reality is that delays do occur and are sometimes unavoidable. Delays can be minimized by open discussions at judicial pre-trials about anticipated issues that will arise in a trial. It is expected that counsel will be prepared to discuss all aspects of the case in order to properly estimate time for trial and resources needed to minimize delays.
[113] Regardless of trial management issues, however, a person charged with an offence is entitled to the ability to make full answer and defence. Trial management must yield to the need to avoid convicting the innocent. Fairness comes first.
[114] Under the previous regime, it appeared to be the case that these applications were routinely brought pre-trial. However, there does not seem to be authority for that requirement and no answer for why this occurred. As previously stated, just because something has always been done does not mean it should continue. Further, the nature of these applications has now been changed by these amendments, such that communications are now explicitly captured by this legislation and there is now an obligation on the defence to seek judicial approval prior to using records in their possession. Surely, these new obligations must be considered and balanced against the timing of the application. A core issue that the legislation addressed was that the defence would not be permitted to use records in their possession without a screening mechanism to ensure that privacy interests were protected. That issue is resolved by the application process itself. However, allowing a mid-trial application ensures that the objectives are met, and the complainant’s rights are protected, in a way that respects the Charter rights of the accused.
[115] The Crown argued that there is not enough time built into this trial, scheduled for two weeks, to allow time for this mid-trial application, especially given the seven-days notice requirement. In fact, even if the notice period is shortened, the Crown argued that there is not enough time. Further, the Crown argued that reducing the notice period has a negative impact upon the complainant’s right to participate effectively in the proceedings. Again, it is worth noting that the legislation does not speak to the timing of notice to the complainant, but rather only to the Crown and to the court. Having said that, however, while the court has the discretion to reduce the notice period, this should not be done where there will be a negative impact upon the complainant or on the Crown for that matter. This will need to be determined on a case-by-case basis, in consultation with all interested parties. In this particular case, there may not be enough time, and this should be considered by the parties at this stage, as trial dates are fast approaching.
[116] For all of the foregoing reasons, including, but not limited to the constitutional considerations and the circumstances of this case, the applicant is permitted to bring an application under s. 278.93 and 278.94, to determine the admissibility of the WhatsApp messages that engage s. 276 of the Criminal Code, mid-trial.
[117] Having concluded that this application can be brought during the trial, does not mean that the materials pass the 276 criteria or that the materials are necessarily relevant to an issue at trial, or for that matter satisfy rules of authenticity. This court is not ruling on the actual admissibility or the use of the communications at trial.
[118] The next dates scheduled for this matter, which remain in place, are the trial dates, commencing on December 7, 2020.
Justice V. Christie
Released: July 27, 2020