COURT FILE NO.: CR-19-40000056-0000

DATE: 20201123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHANE REDDICK

D. Mapa and T. Vogel, for the Crown

C. Rippell, for Mr. Reddick

HEARD: 29 October 2020

s.a.Q. akhtar j.

I. OVERVIEW

Introduction

[1] The applicant, Shane Reddick, stands charged with sexual assault. He brings an application asking this court to declare ss. 276(2), 278.92, 278.93 and 278.94 unconstitutional because they violate ss. 7 and 11(d) of the Charter of Rights and Freedoms and cannot be saved under s. 1 of the Charter. The applicant claims that the impugned sections force him to reveal his defence to the complainant and significantly undermines the role of the Crown and its prosecutorial independence. He argues that the result is a breach of his right to fundamental justice and a fair trial.

[2] The respondent Crown submits that the applicant’s arguments of constitutionality have already been answered by the Supreme Court of Canada’s decisions in R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443, and R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668. The respondent argues that the challenged amendments are a natural and necessary evolution of the prior protections enacted by Parliament. The respondent’s position is that there is no right to trial by ambush. Moreover, the respondent argues that it, the Crown, cannot be trusted to adequately protect the interests of the complainant who, accordingly, must be entitled to independent representation in the proceedings.

The Crown’s Allegations

[3] The applicant met the complainant, S, who lives in the United States of America, online.

[4] On 15 March 2018, S visited the applicant in Toronto and spent the night with him at an Airbnb before moving to an apartment in the city.

[5] On 17 March 2018, the applicant took S to a party on Lakeshore Boulevard where she was introduced to two of his friends, X and Y. S saw one of those friends give the applicant money which he then gave to her. When she went to the bathroom, X and Y followed her inside. X raped S and Y forced her to perform fellatio on him. S alleges that the applicant took back the money he had previously given to her. S passed out. When she awoke she was in bed with another of the applicant’s friends, and another woman. The applicant was no longer at the party.

[6] When S next met the applicant he physically assaulted her, accusing her of having had sex with other men. S contacted friends in the United States who, in turn, reported the incident to the Toronto Police. The applicant was arrested and charged.

[7] At trial, the applicant intends to cross-examine S on the contents of two video recordings captured at the party. Both are of a sexual nature: one shows S dancing topless with another woman, the other shows S engaging in sex with other men and women.

[8] In order to adduce these recordings, the applicant must comply with s. 276(2) of the Criminal Code and its related procedural provisions contained in ss. 278.92 through 278.94.

II. THE HISTORY OF THE LEGISLATION

The Decision in Seaboyer

[9] Prior to 1991, the legislative protection of sexual assault complainants was contained in the following way in ss. 276 and 277 of Criminal Code:

276. (1) In proceedings in respect of an offence under section 271, 272 or 273, no evidence shall be adduced by or on behalf of the accused concerning the sexual activity of the complainant with any person other than the accused unless

(a) it is evidence that rebuts evidence of the complainant's sexual activity or absence thereof that was previously adduced by the prosecution;

(b) it is evidence of specific instances of the complainant's sexual activity tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; or

(c) it is evidence of sexual activity that took place on the same occasion as the sexual activity that forms the subject-matter of the charge, where that evidence relates to the consent that the accused alleges he believed was given by the complainant.

(2) No evidence is admissible under paragraph (1)(c) unless

(a) reasonable notice in writing has been given to the prosecutor by or on behalf of the accused of his intention to adduce the evidence together with particulars of the evidence sought to be adduced; and

(b) a copy of the notice has been filed with the clerk of the court.

(3) No evidence is admissible under subsection (1) unless the judge, provincial court judge or justice, after holding a hearing in which the jury and the members of the public are excluded and in which the complainant is not a compellable witness, is satisfied that the requirements of this section are met.

277. In proceedings in respect of an offence under section 271, 272 or 273, evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.

[10] In R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, the Supreme Court of Canada struck down this version of s. 276 finding the provision inconsistent with ss. 7 and 11(d) of the Charter by potentially excluding evidence relevant to the defence and whose probative value was not substantially outweighed by its prejudicial effect of admission. The constitutional infringement arose from the “blanket” exclusion of evidence that might be essential to the presentation of an accused’s defence. The majority held that the removal of the possibility that a trier of fact may draw illegitimate inferences from the evidence sought to be tendered “exacts as a price the real risk that an innocent person may be convicted”: Seaboyer, at p. 625.

[11] In 1992, Parliament responded by enacting Bill C-49 which codified the principles set out in Seaboyer. The amendments focused on eliminating the twin myths in sexual assault cases: prior sexual activity demonstrated that a complainant either consented to the impugned sexual activity or was less credible because of it. In addition, the new rules would apply to any sexual activity with the accused.

[12] The amended s. 276 is reproduced below:

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, 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.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall 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 276.1 and 276.2, that the evidence

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(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.

[13] A new procedure was also enacted. This amendment forced the defence to identify detailed particulars of the evidence it sought to adduce and describe how that evidence was relevant:

276.1 (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 276.2 to determine whether evidence is admissible under subsection 276(2).

(2) An application referred to in subsection (1) must be made in writing and set out

(a) detailed particulars of the evidence that the accused seeks to adduce, and

(b) 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.

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

(4) Where the judge, provincial court judge or justice is satisfied

(a) that the application was made in accordance with subsection (2),

(b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and

(c) 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 276.2 to determine whether the evidence is admissible under subsection 276(2).

276.2 (1) At a hearing to determine whether evidence is admissible under subsection 276(2), the jury and the public shall be excluded.

(2) The complainant is not a compellable witness at the hearing.

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

(a) where not all 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) that affected the determination; and

(c) where all or any party 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.

(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.

[14] Notably, the legislation directed that the subject matter of the application had to be provided to the Crown in advance of the trial.

[15] In R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Supreme Court of Canada addressed the issue of access to a complainant’s private records held by third parties. The Court found that an accused had a right to the production of those records so long as they were likely relevant to an issue at trial or the competence of a witness to testify. Once that was established by the accused, the judge hearing the application had to decide whether non-production would unreasonably limit the accused’s ability to make full answer and defence.

[16] Parliament codified these principles by enacting ss. 278.1 through 278.91 of the Criminal Code which set out a statutory framework for production of records in the hands of third parties. These sections were found to be constitutional in Mills.

The Supreme Court of Canada Decision in R. v. Darrach

[17] In Darrach, the Supreme Court of Canada upheld the s. 276 provisions enacted through Bill C-49.

[18] The Court found that the exclusionary rule in s. 276 was not one that operated in a blanket style. Rather, the provision prohibited only irrelevant evidence: sexual activity offered to support the “twin myths”. If an accused could demonstrate that the evidence was relevant to non-twin myth purposes and to a live issue at trial, it was admissible so long as its significant probative value was not substantially outweighed by its prejudicial effect.

[19] The procedural framework in s. 276.1 was also held to be constitutionally compliant.

[20] The Supreme Court of Canada held that because of the presumptive inadmissibility of extrinsic sexual activity, there was an onus on an accused to demonstrate support for its potential relevance. Moreover, the obligation to provide an affidavit and be cross-examined upon it was not an infringement of an accused’s Charter rights. Since the accused chose to initiate the s. 276 voir-dire to have prior sexual activity admitted, it was incumbent upon them to provide supporting material, in the form of an affidavit, to demonstrate relevance.

[21] The Court also held that the basic rules of evidence afforded the Crown the opportunity to cross-examine the affidavit’s contents. There was no self-incrimination because an accused was not compelled to testify in a s. 276 voir dire: they chose to do so in order to adduce evidence of prior sexual activity.

III. THE AMENDMENTS TO THE LEGISLATION

The Current Provisions

[22] On 13 December 2018, Bill C-51 was enacted into law and a new set of amendments relating to s. 276 came into force. These replaced the procedural protocol set out it in ss. 276.1 and 276.2 with the following rules:

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

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

(b) any offence under this Act, as it 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

(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.

(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.

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),

(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.

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

(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).

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).

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

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

(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 a trial.

(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.

[23] Section 278.92 mandates, for the first time, that no record in the possession of the accused in which the complainant has a reasonable expectation of privacy can be adduced in sexual offences unless that record overcame the evidentiary thresholds set out in s. 278.92(3).

[24] The term record is defined in s. 278.1 the following manner:

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.

[25] Section 278.92(3) outlines factors to be considered with respect to the records. If those records were to be adduced as part of a s. 276(2) application, the factors outlined in that section would continue to apply with additional regard to the factors in s. 278.92(3). In any other hearing, the factors outlined in subsection (3) would apply in determining admissibility.

[26] Section 278.93(1) contains the protocol for the application directing that the accused set out in writing the detailed particulars of the evidence sought to be adduced and the relevance of that evidence to an issue at trial. There are two stages in the admissibility hearing: (1) deciding whether the evidence is capable of being admissible under s. 276(2) of the Criminal Code and, if so, (2) whether the evidence is admissible under s. 276(2) or 278.92(2).

[27] The amendments added the right of the complainant to be represented at the hearing and make submissions: ss. 278.94(2) and (3).

The Positions of the Parties

[28] The applicant challenges ss. 276, 278.92, 278.93, and 278.94 of the Criminal Code on the basis that they infringe his ss. 7 and 11(d) rights under the Charter.

[29] Section 7 provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 11(d) guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[30] The applicant alleges a Charter violation in three ways. First, he claims that the provisions requiring him to disclose the records that he seeks to adduce are overbroad and unfair. Secondly, he submits that disclosure to the complainant rather than the Crown creates a real risk that the truth seeking function of a trial will become distorted and lost. Finally, he argues that the provisions providing the complainant with standing to make submissions and participate in the s. 276 process compromise his fundamental rights of a fair trial.

[31] The applicant submits that these provisions permit the complainant pre-testimony access to materials, which could significantly impact credibility assessments, thereby allowing a complainant to tailor their evidence to the defence.

[32] The applicant further complains that this constitutional impairment is compounded by the right of the complainant to participate and make submissions in the s. 276 process. This participation would permit sexual assault complainants to hear and cross-examine any accused on their affidavit and the defence contained therein.

[33] Moreover, the complainant’s right to participate, says the applicant, significantly curtails the Crown’s prosecutorial independence by elevating the complainant to the status of a party with the sole purpose of furthering their own interest.

[34] The Crown responds by arguing that the applicant has overstated the magnitude of the amendments. It says that the provisions relating to private documents in the accused’s possession are Parliament’s way of filling a legislative gap when the original s. 278.1 and related sections were passed. The Crown further argues that the disclosure of material was envisaged prior to the amendments by the Supreme Court of Canada in Darrach when it created the protocol applying to s. 276 applications.

[35] The Crown submits there is no “right to ambush” the complainant on cross-examination and that Darrach and subsequent cases have made clear that the complainant cannot be “surprised” by evidence of prior sexual history. Moreover, Parliament has the right to craft legislation that addresses the issues faced by the complainant in sexual assault cases which are consistent with the Charter. The Crown submits that the amendments strike a balance between protecting the interests of the complainant and the fair trial rights of the accused.

Previous Decisions on the Challenged Provisions

[36] The courts have split on the question of whether the amended provisions pass constitutional muster. In cases such as R. v. Anderson, 2019 SKQB 304, 61 C.R. (7th) 376; R v. A.M., 2019 SKPC 46, 56 C.R. (7th) 389; R. v. D.L.B., 2020 YKTC 8; and R. v. J.S., [2019] A.J. No. 1639 (Q.B.), the court found the provisions to be unconstitutional.

[37] Other cases such as R. v. C. C., 2019 ONSC 6449, 448 C.R.R. (2d) 297; R. v. A.C., 2019 ONSC 4270, 439 C.R.R. (2d) 360; R. v. F.A., 2019 ONCJ 391, 56 C.R. (7th) 182; and R. v. Whitehouse, 2020 NSSC 87, 61 C.R. (7th) 400, found no Charter violation.

[38] An alternative interpretation of the sections was found in R. v. R.S., 2019 ONCJ 645, 58 C.R. (7th) 215; and R. v. J.J., 2020 BCSC 29[^1] where the provisions were held to be constitutional if read in a manner that allowed an accused to make the application once the complainant had testified in chief.

IV. ARE THE PROVISIONS CONSTITUTIONAL?

[39] There can be no doubt that history demonstrates that victims of sexual assaults have been treated unfairly within the trial process with the use of unfair stereotypes, irrelevant cross-examination, and unnecessary encroachment into their prior sexual behaviour.

[40] The justice system owes sexual assault complainants both fairness and dignity when they report and testify about allegations of sexual assault.

[41] Parliament has, over the last two decades, sought to respond to these concerns through legislative amendments aimed at eradicating twin myth reasoning, victim stereotyping and discriminatory bias, as well as ensuring the victim has a voice when the court sentences an offender convicted of sexual assault.

[42] The question in this case is whether the additional changes to the Criminal Code trample on Charter principles in implementing these aims. In my view, the focus of this challenge falls on ss. 278.92, 278.93 and 278.94(2) and (3) (“the provisions”).

The Disclosure of Records

Overbreadth of the Provisions

[43] As noted, s. 278.1 of the Criminal Code provides a broad definition of records to be used when applying the test for the admission under s. 278.92. The result is that any record in which the complainant has a reasonable expectation of privacy in the possession of the accused must be the subject of an application if the accused wishes to use that record in a sexual assault trial.

[44] The applicant argues that the overbreadth of the section leads to unfairness in the trial process.

[45] It should be remembered that the Court in Mills found that the definition in s. 278.1 was not overly broad when dealing with production of records by a third party to an accused.

[46] However, unlike the situation in Mills, s. 278.92 deals with the situation where the accused has possession of the records and is seeking to use them to advance their defence. Under s. 278.92, the accused must disclose the material to the Crown and the complainant prior to trial even though they contain no references to sexual activity.

[47] For example, if the complainant had been fraudulent in providing financial details to obtain a mortgage, loan or employment, the accused might wish to cross-examine on that document to undermine the complainant’s honesty. However, in order to do so, the accused would have to disclose the document and provide detailed reasons as to its relevance to the defence.

[48] Similarly, a complainant might report that she had been sexually assaulted by a complete stranger. If the accused was in possession of a letter written by the complainant to a third party detailing her familiarity with the accused, that letter would fall within the purview of s. 278.92.

[49] These types of records have no connection with the purposes of the legislation which is designed to curtail irrelevant cross-examination and evidence promoting myths and stereotypes associated with sexual assault complaints. There is no reason why an accused in possession of these documents should not be able to surprise a witness with them in sexual assault cases when they are able to do so in any other type of offence. However, the legislation prohibits them from doing so.

Disclosure to the Complainant

[50] The second cause for concern arises out of the fact that the amended sections mandate the disclosure of this information to the complainant.

[51] At this point, I must make clear that this case is not about defence reciprocal duty of disclosure to the Crown.

[52] In R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, the Court left open the question of reciprocal disclosure. Unlike the court in R.S., I do not find that subsequent decisions, such as R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, prohibit any form of defence disclosure.

[53] Reciprocal disclosure already exists in the criminal justice system: the defence must notify the Crown of its intention to call an expert prior to trial and provide their report by the end of the Crown’s case (s. 657.3(3) of the Criminal Code; R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290). Alibi evidence must be given to the Crown in sufficient time to properly investigate (R. v. Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 S.C.R. 175; R. v. Hill, (1995), 1995 CanLII 271 (ON CA), 25 O.R. (3d) 97(C.A.).

[54] And, of course, the Court in Darrach endorsed the disclosure procedure relating to s. 276 applications. Indeed, as noted, the Court not only directed that the accused give notice of the evidence to be adduced but also required them to file an affidavit upon which they could be cross-examined. Finally, the Court made clear, at para. 67, that any inconsistencies that emerged between the accused’s voir-dire and trial testimony could be used by the Crown for impeachment purposes.

[55] In other words, in the s. 276 context, the defence was already under an obligation to disclose evidence they sought to adduce and reveal details of their defence. Here, the applicant concedes that the text messages and video recordings he seeks to adduce would fall within the prior regime and would have to be disclosed to the Crown and the court notwithstanding s. 278.92.

[56] However, the difference is that ss. 278.92(1) and 278.94(2) and (3) mandate that disclosure be made to the complainant. The risks to the fairness of the trial are obvious.

[57] First, as the applicant argues, the complainant is provided with an opportunity to tailor their evidence to the revealed defence. The result would be to significantly weaken the effectiveness of cross-examination conducted by the accused.

[58] The critical value of a meaningful cross-examination cannot be overstated: R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 663. It is also trite law that the right to cross-examine is a s. 7 Charter protected right: R. v. Lyttle, 2004 SCC 5, [2004] 1 SCR 193, at para. 43.

[59] The use of the sexual assault shield provisions involves a delicate balancing act between the protection of complainants and the accused’s right to full answer and defence. In Osolin, at p. 669, the Court remarked:

A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system. Yet a fair balance must be achieved so that the limitations on the cross-examination of complainants in sexual assault cases do not interfere with the right of the accused to a fair trial.

[60] The respondent points out that under the Darrach procedure the Court envisaged the complainant having knowledge of the accused’s defence prior to testifying. At para. 55, the Court reasoned that the accused’s affidavit had to be provided to the Crown “in part to allow the Crown to consult with the complainant”.

[61] I agree that upon receipt of the accused’s affidavit, the Crown would be obligated to consult with the complainant on its contents, and negligent if it did not do so. However, there is a clear difference between, on the one hand, consultation of proposed sexual activity evidence and, on the other, disclosure of the accused’s defence. When consulting, the Crown could not provide the entire affidavit and defence to the complainant. To do so would potentially taint the complainant as a witness and diminish their credibility when they testified.

[62] I also believe that the Court's definition of “consult” was meant to be necessarily narrow. It did not entail the complainant’s receipt of the accused’s affidavit and defence, the right to retain counsel and receive legal advice on the evidence sought to be adduced. Nor, in my view, does the term “consult” envisage the complainant’s presence when the accused testifies on the voir-dire or the right to cross-examine. In other words, the provisions extend far beyond what was envisaged by the Supreme Court of Canada.

[63] Accordingly, I reject the respondent’s position that Darrach assists the respondent in the disclosure analysis.

[64] A second unfairness arises from the provision of the affidavit to the complainant.

[65] Under the previous regime, the Crown, under Stinchcombe, was obliged to disclose any comments, explanation or reaction that arose from its consultation with the complainant. Under the challenged provisions, any such explanation witnessed by the complainant’s legal representative would be privileged as a result of their solicitor-client relationship.

[66] In my view, an accused has a constitutional right to this information under s. 7 and Stinchcombe.

Delaying the Voir-Dire

[67] In order to overcome some of these difficulties, the courts in R.S. and J.J. purported to “read down” the provisions by postponing the s. 276 voir-dire to the end of the complainant’s evidence in chief.

[68] With respect, and for the following reasons, I do not agree with this approach.

[69] First, even though the judges sought to “read down” the sections in modifying the process in those cases, their preferred option of delaying the voir-dire is, in my view, a “re-write” of the section which explicitly states that the accused’s affidavit must be provided 7 days prior to trial.

[70] The route taken by the courts in R.S. and J.J. defeat both the spirit and purpose of the section which finds its roots in Darrach. As Chapman J. observes in R. v. M.S., 2019 ONCJ 670, at para. 81, “such an interpretation would defeat the spirit and intent of the legislation and lead to significant trial management mischief”. This re-writing of the legislation is an encroachment on Parliamentary territory.

[71] Second, delaying the application to be heard after the complainant’s examination-in-chief would create substantial practical difficulties.

[72] The trial would necessarily be halted to allow the disclosure of the records. Counsel for the complainant would have to be retained, meet with the complainant, prepare a response, file materials, and argue the matter in front of the trial judge. This could conceivably delay the trial for weeks if not months. Such methods would be unworkable in a jury trial.

[73] In this regard, I agree with the comments of Chapman J. in M.S., at para. 97:

If the 7 days [sic] notice requirement stipulated in the Criminal Code means that the defence can bring their application at the close of the complainant’s evidence then what is the point in the stipulation of 7 days? Realistically this would mean that many sexual assault trials will take place on a bifurcated basis. First the complainant would testify in-chief. Then the application would be brought. And then the application would be heard and decided at stage one. At that point, the trial would be adjourned to facilitate the complainant’s right to obtain counsel. The trial would then resume at some later point with a stage 2 hearing. Then, once that is argued and decided, the trial will continue. This is unmanageable and not at all what Parliament intended.

[74] Finally, this course of action would not in any way attenuate the other concerns that I have identified in previous paragraphs.

Conclusion

[75] I would add that, notwithstanding the provisions, irrelevant or specious cross-examination is not permitted in sexual assault trial. The legislation already boasts a robust set of protections for sexual assault victims in s. 276 and 278.1 cases. Recent pronouncements from the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, and R. v. Goldfinch, 2019 SCC 38, have reinforced these principles even more stringently.

[76] Moreover, a trial judge is obliged to make sure that no witness is bullied, harried or confronted with evidence that has no bearing on credibility and seeks to unfairly deprecate a witness.

[77] Whilst a sexual assault complainant’s privacy rights are extremely important, they cannot override the accused’s right to a fair trial. In my view, the overbreadth of s. 278.92, and the provision of disclosure of the accused’s application and affidavit to the complainant constitute a breach of the applicant’s ss. 7 and 11(d) Charter rights.

The Complainant’s Participation in the s. 276 Process

The Positions of the Parties

[78] The applicant’s second claim of unconstitutionality rests upon s. 278.94’s direction that the complainant be entitled to participate in the s. 276 process. According to the applicant, the effect of the provisions is to make the complainant a party to a criminal trial. It also significantly undermines the position of the Crown whose loyalty is to the proper administration of justice, and whose role as minister of justice affords the accused constitutional protection.

[79] The respondent disagrees, citing the procedure set out in Mills and s. 278.1, as already giving the complainant a right to make submission with respect to documents imbued with a reasonable expectation of privacy. The respondent also submits that because of its role as minister of justice, the Crown is unable to adequately protect a sexual assault complainant’s rights necessitating representation by independent counsel free of the Crown’s duty to act in the public interest.

The Objectives of the Legislation

[80] The complainant’s right to participate in the trial appears to have been Parliament’s attempt to assure sexual assault complainants that they would be listened to and encourage reporting of sexual assault offences.

[81] For the following reasons, I find that it is highly regrettable that this laudable and much desired objective has been implemented in a manner that compromises the accused’s Charter rights.

The Constitutional Role of the Crown

[82] A criminal trial has only two parties: the Crown and the accused. As observed by McLachlin J., as she then was, in R. v. Antler (1982), 1982 CanLII 386 (BC SC), 69 C.C.C. (2d) 480, 29 C.R. (3d) 283 (B.C. S.C.), at pp. 283-84:

The conduct of criminal trials in Canada is governed by the Criminal Code, R.S.C. 1970, c. C-34. The Criminal Code contemplates prosecution of the accused by the Crown. It does not accord to persons affected by an offence status as parties to the proceeding against the accused, apart from the provisions relating to restitution of property found in ss. 645 to 657.

[83] Similarly, in R. v. Gabriel (1999), 1999 CanLII 15050 (ON SC), 137 C.C.C. (3d), 1, 26 C.R. (5th) 364 (Ont. S.C.), at para. 22, Hill J. wrote:

Without, in any fashion, diminishing the significant contribution of victim impact statements to providing victims a voice in the criminal process, it must be remembered that a criminal trial, including the sentencing phase, is not a tripartite proceeding. A convicted offender has committed a crime — an act against society as a whole. It is the public interest, not a private interest, which is to be served in sentencing.

[84] Hill J.’s comments in Gabriel were cited with approval in R. v. Bremner, 2000 BCCA 345, at para. 26.

[85] The Crown’s special position in the criminal justice system is one of its fundamental underpinnings. The prosecutor’s role is one that has long been recognised as a quasi-minister of justice: R. v. Boucher (1954), 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at p. 21; R. v. Swietlinski, 1994 CanLII 71 (SCC), [1994] 3 S.C.R. 481, at pp. 494-95; and in R. v. Henderson (1999), 1999 CanLII 19924 (ON CA), 44 O.R. (3d) 646 (C.A.), at para. 23. The Crown’s role is “as part of the court rather than as an advocate”: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at para. 39.

[86] The independence of the Crown in the exercise of its prosecutorial discretion is also “found in the fundamental principle of the rule of law under our Constitution”: Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372, at para. 32; Hoem v. Law Society (British Columbia) (1985), 1985 CanLII 447 (BC CA), 20 C.C.C. (3d) 239 (B.C. C.A.), at p. 254.

[87] The Crown owes no duty to a single party: its obligation lies to the administration of justice. That obligation is owed to all participants in the criminal justice system: the victims of criminal offences, witnesses who testify, and those accused of committing criminal offences. As is often recited in criminal jurisprudence: the Crown does not win or lose. It is this all-encompassing obligation that protects the societal interest by ensuring that the Crown both vigorously and fearlessly pursue a legitimate result to the best of its ability: R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at para. 21.

[88] Within this quasi-judicial capacity, the Crown owes a duty to an accused person to ensure that they are treated fairly and to exercise its discretion within the proper prosecutorial limits. This means that charges which do not have a reasonable prospect of conviction must be withdrawn. Relevant evidence, irrespective of any damage that it might do to the Crown’s case, must be disclosed to the defence. Admissions of fact that might weaken the Crown’s case must be made if there is a basis to do so.

[89] The office of the Crown is an integral, fundamental part of our criminal justice system which, as the applicant strenuously argues, is looked to by accused persons and the court to provide essential safeguards in the justice system. The Crown’s function has been acknowledged as constitutionally entrenched: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 46.

The Breach of Sections 7 and 11(d) of the Charter

[90] In my view, the challenged provisions significantly fracture this constitutional status and relationship to the criminal justice system. In doing so, the provisions violate ss. 7 and 11(d) of the Charter.

[91] I agree with the applicant that the effect of the amendments is to elevate the complainant from the role of an integral witness in the Crown’s case to that of a party who is entitled to advance disclosure of records pertaining to an accused’s line of questioning as well as their defence. As noted, the complainant is entitled to participate in the admissibility voir-dire, question the accused, and make submissions to exclude evidence which the accused claims will undermine their credibility.

[92] In any criminal trial, it is the Crown who decides whether to oppose defence motions seeking to adduce evidence. They do so in their quasi-judicial role seeking to ensure justice is done. As conceded by the Crown, a complainant has a self-interest in the trial and owes no duty or obligation to the accused or the court.

[93] The issue of whether prior sexual activity may be adduced is already stringently controlled by s. 276 of the Criminal Code. It is a legal determination to be decided by the court.

[94] Within that process, the Crown plays a critical role: it takes a position on whether the accused’s proposed line of questioning or evidence fits within the confines of s. 276. If the Crown is of the view that the evidence is inadmissible, it opposes the application. On the other hand, the Crown, as minister of justice in charge of the prosecution, may also view the proposed evidence as being properly admitted before the trier of fact. In these situations, it would properly concede the application before the trial judge. That concession, although not determinative, would be extremely persuasive.

[95] The correct constitutional position was summarised in the following way in R. v. Hawke, (1975), 1975 CanLII 672 (ON CA), 7 O.R. (2d) 145, 22 C.C.C. (2d) 19, at p. 27, (C.A.):

With respect to the learned trial Judge, a witness is not a party to the proceedings and does not become a party by the appointment of counsel on his or her behalf. The issue as to the relevancy and admissibility of evidence in a criminal case is one solely to be considered on the basis of the submissions of Crown counsel and defence counsel.

[96] It is through this process that the rights of both the complainant and the accused are protected.

[97] Under the provisions, that decision making process is dramatically altered. It is now possible for the Crown to take one view and the complainant to take another and oppose the Crown.

[98] By significantly diminishing the Crown's role in this decision making process, the constitutional safeguards provided to the accused are also impaired causing a violation of ss. 7 and 11(d).

[99] Moreover, as I have already indicated, when the Crown would consult with the complainant on the evidence sought to be adduced, it was obliged to disclose any comments or explanations provided by the complainant to the defence. That constitutional safeguard is removed by the provisions.

[100] Further, the privilege extant between the complainant and their representative would mean that the Crown itself would be unaware of any explanation or reaction to the accused’s application. It beggars belief that the institution responsible for prosecuting the case is bereft of information that might be critical to the prosecution.

[101] In A.C., Sutherland J. described the provisions as an “incremental change”.

[102] With respect, I take a very different view. The amendments are a fundamental alteration to the way in which sexual assault trials are prosecuted. Nor do I agree with my colleague’s conclusion that prosecutorial independence is not threatened by this change because the Crown retains the responsibility of launching and discontinuing the prosecution of the accused or proving the case against them. The Crown’s role as minister of justice encompasses far more than the start and end of a prosecution: it continues throughout the trial, at every stage, including that of dealing with defence applications and evidentiary issues.

[103] Troublingly, the current framework allows the complainant and their representative to potentially ignore the Crown’s conclusion in a given case that the proposed defence evidence and/or cross-examination is admissible. It permits the complainant to oppose the defence application thereby potentially setting up a dispute that pits them against the Crown—the very institution responsible for prosecuting the charges. Leaving aside the Charter consequences, this development does nothing to enhance the administration of justice.

[104] Moreover, as previously described, under ss. 278.94(2) and (3), the complainant has access to the accused’s affidavit and defence, as well as to legal representation providing confidential advice on that information.

[105] Finally, the complainant would be present if an accused testified, be able to hear their entire voir-dire testimony, and have the right to cross-examine them with the aim of excluding evidence that might be used to undermine the complainant's account. The fact that the complainant might choose not to exercise this right, as suggested in A.C., does not make the provisions any less unconstitutional.

[106] I repeat: this is not an incremental change but one that ruptures the foundation of the criminal trial process and removes an accused’s constitutional protections by providing their defence to a witness prior to trial and significantly diminishing the Crown’s decision making process in the very trial it is under a duty to prosecute.

The Distinction between Admissibility and Production

[107] In responding to these concerns, the Crown seeks to draw the analogy between the procedure set out in s. 278.1 of the Criminal Code and the procedure for when an accused seeks the production of third party records.

[108] I reject that comparison. In a third party records application, the accused is seeking production of records that they do not possess. Pursuant to s. 278.92, the accused is seeking to use evidence they already possess.

[109] The distinction was identified in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, where sexual assault allegations were made against the accused, a cult leader, by complainants who had resided with the accused when teenagers. One of the complainants kept a daily diary which covered the period of the allegations. After she left the house, the diary was discovered and given to the accused who sought to use its contents to contradict the complainant’s testimony.

[110] At trial, the judge applied the O’Connor principles (after ruling that ss. 278.1 to 278.9 of the Criminal Code did not apply because the diary was already in the possession of the defence) to determine whether the accused could use the diary and appointed counsel to represent the complainant on the argument. The accused was convicted and appealed, one of the grounds being that the trial judge’s procedure contravened his s. 7 Charter rights to a fair trial.

[111] The Supreme Court of Canada allowed the appeal, holding that the trial judge had erred in applying the O’Connor principles to a case where the issue was not the production of a private document but its use. The Court explained, at paras. 96, 103-104:

The simple fact is that the defence had possession of the diary. It was not engaged in a “fishing expedition”. The issue for the trial judge was the admissibility of the contents. Sections 278.1 to 278.9 nowhere refer to “admissibility” or “evidence”, and understandably so, for as L’Heureux-Dubé J. pointed out in O’Connor, supra, at paras. 164-66, the considerations governing production and admissibility are quite different. To treat production as a proxy for admissibility would complicate proper hearings under ss. 278.1 to 278.9, where trial judges proceed on the basis that the issue at the early stage is only production. Admissibility is properly left to be determined later when the matter is ripe for decision.

In my view, the trial judge erred in extrapolating the O’Connor test from the issue of production of information not previously disclosed to the defence and applying it to the admissibility (or use in cross-examination) before the jury of evidence already in the possession of the defence.

A simple “balancing of interests” test (O’Connor, supra, at paras. 129 and 150) cannot be equated to “substantially outweighs” (Seaboyer, Osolin). Under O’Connor, the default position is that the third party information is not produced to the defence. Under Seaboyer and Osolin, the default position is that the defence is allowed to proceed with its cross-examination. [Emphasis in original]

[112] I also disagree with the respondent's position that the Supreme Court of Canada endorsed the use of private counsel to make submissions on the issue of admissibility of the diary. The trial judge appointed counsel by erroneously assuming the O’Connor principles were applicable. The issue of private counsel for the complainant was never argued at the Supreme Court of Canada and the majority decision would appear to reject the procedure.

[113] Moreover, the paramountcy of the fairness of a trial was the subject of commentary by the majority in Shearing, at para. 132, where Binnie J. wrote: Moreover, even in terms of production of third party documents, I do not, with respect, agree that "Mills has shifted the balance away from the primary emphasis on the rights of the accused" (para. 93 (emphasis added)) because Mills itself affirms the primacy -- in the last resort -- of the requirement of a fair trial to avoid the wrongful conviction of the innocent. [Emphasis in original]

The Crown Can and Does Protect the Interests of the Complainant

[114] I also take particular exception to the respondent’s assertion that the Crown’s role as minister of justice means that it is unable to properly “advance the arguments and interests of the complainants” and that the complainant’s interest “can be advanced by their own counsel” “unhindered by other considerations which may weigh upon the prosecution”.

[115] This argument reveals a rudimentary misunderstanding of the Crown’s role in our justice system.

[116] The Crown’s protective function derives from its position as a minister of justice. That protection is accorded to the complainant, as it is to the accused, through the Crown’s obligation to ensure justice is done. In other words, a criminal trial does not advance any particular interest other than the pursuit of justice.

[117] Taking the respondent’s submissions to their logical extension, the independent legal representations of all vulnerable witnesses, not just victims of sexual assaults, would be necessary. However, no one would suggest that, for example, a complainant in a domestic abuse case should be entitled to make submissions relating to evidence; how they should be cross-examined; or be absolved from testifying if recanting.

[118] This is because the Crown is not in the business of “advancing the complainant’s arguments or interests”: the Crown does not advance any interest except justice. That is the endgame of a criminal trial. It also guarantees safeguards for both the complainant and the accused.

[119] Accordingly, the Crown protects the complainant’s interests in a sexual assault trial by ensuring that irrelevant, prejudicial evidence cannot be adduced at trial. By the same token, it protects the rights of the accused in ensuring that evidence that is admissible is available for use. These duties are not mutually exclusive: the Crown’s role to ensure justice to the accused does not impact or adversely affect “the interests of the complainant”. Put another way: when justice is done, the complainant's interests are protected.

[120] The Crown sits above any partisan interests in a trial and its decision making power cannot be abrogated to the complainant who has an interest in the proceedings.

[121] If the Crown is of the belief that it cannot “adequately protect the interests of the complainant” as it argues, then it should step up and do so by adequate witness preparation, objecting to irrelevant evidence, and seeking to ensure, to the very best of its abilities, that stereotypical views and submissions are eliminated from the trial process.

[122] I conclude that by permitting the complainant to participate in the evidentiary process the provisions significantly diminish the protection afforded to the accused by undermining the role of the Crown. The fact that the court is clearly the ultimate arbiter of whether the evidence is admissible does not detract from the paring down of the Crown’s constitutional role and duty to the accused.

[123] Accordingly, there is a violation of ss. 7 and 11(d) of the Charter.

V. CONCLUSION

[124] There is no doubt the crime of sexual violence is an evil that must be deterred, denounced, and eradicated from our society. The criminal justice system seeks to pursue these aims by encouraging sexual assault complainants to report allegations and testify without fear or embarrassment and bringing those charged with the offences to trial where they are vigorously but fairly prosecuted.

[125] In the last three decades, our law has sought to embed legal mechanisms to ensure sexual stereotypes and myths play no part in the trial process. When sexual assault complainants testify, they must not be put on trial.

[126] A robust set of common law and statutory methods exist to guarantee the complainant is free from undue, unfair harassment and protected from questioning that propagates myths surrounding sexual assault victims.

[127] The system is not perfect. As noted by Moldaver J., in Barton, at para. 1, we can, and must, do better.

[128] However, any efforts to improve these protections must do so in a manner that is compliant with Charter principles. The criminal trial process results from an allegation made by the State against individuals. Having made those allegations, the State bears the burden of proving them beyond a reasonable doubt. The trial process that results is a search for the truth with the aim of providing justice for all involved. It is not a process that advances any particular interest other than justice.

[129] The aim of the current provisions enacted after the passage of Bill C-51 is laudable. However, for the reasons set out above, its implementation significantly impairs the fair trial rights of the accused.

[130] Accordingly, I conclude that ss. 278.92, 278.94(2) and 278.94(3) violate ss. 7 and 11(d) of the Charter.

[131] The respondent concedes that if this court finds a violation of ss. 7 and 11(d) of the Charter, the sections cannot be saved by s. 1.

[132] I accept that concession and find ss. 278.92, 278.94(2) and 278.94(3) unconstitutional and of no force and effect pursuant to s. 52 of the Constitution Act, 1982.

[133] The remaining provisions continue to apply with the Darrach framework governing s. 276 applications. The text messages and videos that are the subject of the application must be disclosed to the Crown along with the materials and in accordance with the timeline set out in s. 278.93 of the Code if the applicant wishes to continue with his application.

[134] I thank all counsel for their able submissions in this matter.

S.A.Q. Akhtar J.

Released: 23 November 2020

COURT FILE NO.: CR-19-40000056-0000

DATE: 20201123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHANE REDDICK

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

[^1]: J.J. has been granted leave to appeal by the Supreme Court of Canada: 2020 S.C.C.A. No. 111.