Her Majesty the Queen v. A.M., 2020 ONSC 7674

COURT FILE NO.: CR-18-04996-0000

DATE: 2020-12-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

A.M. Applicant

COUNSEL:

Shambavi Kumaresan, for the Respondent

Tamar Bitton and Franklin Lyons, for the Applicant

HEARD: December 7, 2020

RULING IN RELATION TO NECESSITY TO SERVE NOTICE OF CONSTITUTIONAL QUESTION

CHRISTIE J.

Overview

1. The Applicant, A.M., brought an application entitled “motion for directions on procedure of blended s. 276/278 application”. The claim for relief, however, sought the following:

1. An Order declaring that the complainant does not have standing to make submissions nor participate in the ss. 278.93/4 hearing; and

2. An Order prohibiting disclosure of the Applicant’s application materials to the complainant.

2. In an earlier ruling, reasons released on July 27, 2020, this court decided that the Applicant could bring an application under ss. 278.93/4 mid trial as opposed to prior to trial. This trial was due to commence on December 7, 2020.

3. On October 29, 2020, an application was heard in the Superior Court of Justice in Toronto regarding the constitutionality of ss. 276(2), s. 278.92, s. 278.93 and s. 278.94 of the Criminal Code. On November 23, 2020, Justice Akhtar released his decision on this application, cited as R. v. Reddick, 2020 ONSC 7156. The Court found that ss. 278.92, 278.94(2) and 278.94(3) of the Criminal Code violated ss. 7 and 11(d) of the Charter and could not be saved under s. 1 of the Charter. Specifically, Justice Akhtar held that it violated ss. 7 and 11(d) to allow the s. 276 application materials to be disclosed to the complainant and for the complainant to be able to participate in the evidentiary hearing.

4. The Applicant, in this case, brought the above-mentioned application in the wake of Justice Akhtar’s decision. Interestingly, the Applicant did not frame the application as a challenge to the constitutionality of the 276/278 regime, but rather based the application on the principles of stare decisis, and the ruling in Reddick. The Applicant submitted that, considering recent appellate jurisprudence on the principles of stare decisis, specifically in R. v. Sullivan, 2020 ONCA 333, this Court ought to follow the decision in R. v. Reddick absent cogent reason to conclude that it is plainly the result of a wrong decision. The Applicant submitted that, since ss. 278.92, 278.94(2) and 278.94(3) have been found to be unconstitutional and of no force and effect pursuant to s. 52 of the Charter, the complainant in this case ought not to be provided with disclosure of the application materials and ought not to be afforded the right to retain counsel or participate in the evidentiary hearing. The Applicant submitted that they were not asking the court to engage with the constitutional validity of the legislation, but rather simply to engage in an analysis of whether the court will follow the jurisprudence of Reddick and principles of stare decisis.

5. As a preliminary matter, the Crown argued that a notice of constitutional question was required to be served before this application could proceed. The Crown submitted that this application amounts to questioning the constitutional validity and constitutional applicability of the legislation, and, therefore, notice must be served in accordance with s. 109 of the Courts of Justice Act (“CJA”). Further, the Crown argued that notice must be served on the complainant, as the complainant’s interests are engaged in this litigation.

6. The Applicant, while agreeing that s. 109 of the CJA is the governing statute as to whether notice is required, submitted that they were not seeking to do any of the things set out in s. 109 and, therefore, no notice was required. The Applicant submitted that this court is certainly not bound by the decision in Reddick, but that the decision should be followed unless this court finds that the decision is plainly wrong in accordance with the guidance from the Court of Appeal in Sullivan. The Applicant submitted that this does not amount to questioning the constitutional validity or applicability of the legislation, and certainly does not engage s. 24(1) of the Charter. For those reasons, the Applicant submitted, there is no requirement for a notice of constitutional question to be served as per s. 109 of the CJA.

7. On December 7, 2020, the first day scheduled for the trial, this issue was litigated via Zoom. At the end of argument, after a short break, this court ruled, with reasons, to follow, that in this case, in relation to the application brought by A.M., notice of constitutional question is required in accordance with s. 109 of the CJA. The Court ruled that notice is not required to be served on the complainant.

8. These are the reasons for that decision.

Background, Allegations, and Materials at Issue

9. The Applicant, A.M., is charged with a number of criminal offences, including sexual assault (x2), uttering a threat of death (x4) and assault (x2). These alleged offences are said to have occurred from September 11, 2017 to, and including, January 17, 2018. These charges are all in relation to P.U., who A.M. was married to at the relevant time.

10. During their marriage, A.M. and P.U. exchanged text messages on WhatsApp. The messages brought to this court’s attention cover a period from May 18, 2017 to January 15, 2018. The WhatsApp messages, all in the hands of the defence, 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.

11. 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

12. 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.

13. 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. This court has been very clear in the past as to which messages fall into this category. If it is 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.

14. On July 27, 2020, after hearing a further application brought by the defence as to the timing of such an application, this court ordered that 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. This court held, however, that having concluded that this application can be brought during the trial did 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. See: R. v. A.M., 2020 ONSC 4541

15. This trial was scheduled to commence on December 7, 2020.

16. On November 30, 2020, the Applicant filed the above-mentioned application in the wake of the decision in Reddick, released on November 23, 2020.

Analysis

17. Section 109 of the Courts of Justice Act dictates when a notice of constitutional question is required to be served. The section states:

Notice of constitutional question

109 (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

Failure to give notice

(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.

Form of notice

(2.1) The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.

Time of notice

(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. 1994, c. 12, s. 42 (1).

Notice of appeal

(3) Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitutional question.

Right of Attorneys General to be heard

(4) Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.

18. In other words, according to s. 109 of the CJA, there are three situations where a notice of constitutional question is required to be served:

1. Where the constitutional validity of a relevant Act, regulation, by-law, or rule of common law is in question;

2. Where the constitutional applicability of a relevant Act, regulation, by-law, or rule of common law is in question; or

3. Where a remedy is claimed under subsection 24 (1) of the Charter in relation to an act or omission of the Government of Canada or the Government of Ontario.

19. In this application, the parties agree that these are the three circumstances under which notice is required. However, the parties disagree as to whether this particular application falls into any of these categories. The Applicant argued that this is an application for direction in relation to the Reddick decision and the principles of stare decisis, and not an application challenging the validity of the legislation. However, the Respondent argued that, despite the framing of this application as a matter of applying stare decisis, the end result is that this is a challenge to the validity of the legislation.

20. According to the Applicant, the jurisprudence demonstrates that a notice of constitutional question is not required, as this application does not fall into any of the three categories in s. 109 of the CJA.

21. The Applicant provided a number of cases which illustrated circumstances in which a notice of constitutional question was served, and distinguished the applications brought in those cases from the nature of the application in the case at bar. The cases relied on were as follows:

1. R. v. Tully, 2020 ONSC 2762 - This was an application for bail, however, reference was made to a notice of constitutional question being served due to a challenge to the warrantless search powers of the Federal Cannabis Act being brought at an upcoming trial;

2. R. v. Gong, 2019 ONSC 5899 - The Crown brought an application for a determination of privilege, however, reference was made to the Respondent filing a notice of constitutional challenge questioning the validity of s. 241(3) of the Income Tax Act. The constitutional issue became moot prior to being litigated;

3. R. v. Tim, 2019 ONSC 935 - The defence filed a notice of constitutional question challenging the constitutionality of amendments regarding statements compelled under newly enacted driving laws and its admissibility. The court never dealt with the constitutional arguments;

4. R. v. Vu, 2018 ONCA 436 – This was an appeal where the main issue was whether certain mandatory minimum sentencing provisions for the unauthorized production of marijuana were unconstitutional. Decisions at the trial level were not consistent on the constitutional issues (One of the trial level decisions was also provided by the Applicant - R. v. Pham, 2016 ONSC 1757);

5. R. v. Monteith, 2018 ONSC 2903 – The defence was seeking to declare s. 184.1 of the Criminal Code unconstitutional. A notice of constitutional question was served;

6. R. v. Charley, 2017 ONSC 5752 – Mr. Charley brought a number of different applications challenging the legality and constitutionality of his incarceration and its potential impact on sentencing. Notice of constitutional question was given;

7. R. v. Mason, 2017 ONSC 15 – The defence was seeking a declaration that s. 742.1(f)(viii), which made conditional sentences unavailable following a conviction of theft over $5000, was unconstitutional and of no force and effect. A notice of constitutional question was served;

8. R. v. Moore, 2014 ONSC 6621 – The defence was seeking an order that s. 487.012 does not authorize issuance of an order requiring production of private communications, or in the alternative, a declaration that the section was inconsistent with s. 8 of the Charter and of no force and effect. A notice of constitutional question was served. There was some discussion in this case about constitutional applicability.

The Applicant also provided a number of cases in which a notice of constitutional question was served due to the fact that the defence was seeking a remedy under s. 24(1) of the Charter. See: R. v. Kenny, 2019 ONCJ 728 and R. v. Bracken, 2017 ONCJ 319. Further, the Applicant pointed to some cases from the Ontario Court of Justice in which a notice of constitutional question was served. See: R. v. Schacter, 2019 ONCJ 154 and R. v. Dillman, 2018 ONCJ 997.

22. As for cases in which there was a specific reliance on an earlier judicial determination of constitutional invalidity at the same level of court, a number of decisions were referenced.

23. In R. v. Scarlett, 2013 ONSC 562, the accused, at his sentencing hearing, sought a ruling that s.s 95(2)(a)(i) of the Criminal Code, which provided a mandatory minimum penalty of three years imprisonment for a first offence, was unconstitutional and of no force or effect. Mr. Scarlett brought the application on the basis that Molloy J. in R. v. Smickle, 2012 ONSC 602, had already declared the legislation invalid and of no force and effect. The Court stated:

[43] The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Hansard Spruce Mills Ltd., Re, 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C. S.C.); R. v. Northern Electric Co., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (Ont. H.C.)at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills Ltd., Re, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong. I am not satisfied that the decision in Smickle is plainly wrong.

[44] In a constitutional case, where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason for judicial restraint on the part of a subsequent judge, for the reasons identified by Chief Justice McLachlin in Ferguson. To create a judicial exemption, based on the facts of the particular case before me, would create uncertainty and unfairness. This is particularly so because an appeal of both Nur and Smickle is to be heard by a single panel of the Court of Appeal next month.

There was no discussion in the case about a notice of constitutional question being served.

24. Further, the Applicant pointed to the case of R. v. S, 2017 ONSC 1869. In that case, the defence initially indicated that it would be challenging the constitutionality of the mandatory minimum sentence imposed for conviction on a charge under s. 151 of the Criminal Code. However, in doing so, the defence ultimately framed its argument as relying upon the earlier case of R. v. L., 2016 ONSC 7082, which held that the mandatory minimum sentence under s. 151 was unconstitutional and of no force and effect. The Crown sought an order requiring the defence to serve and file a notice of constitutional question, arguing that the constitutionality of the section was still “in question” until decided by the Ontario Court of Appeal, and ultimately the Supreme Court of Canada. The defence argued that the constitutionality of the minimum sentence under s. 151 had already been decided and that the crown was bound by that decision. The application was dismissed. The court held:

[11] In this case, a Superior Court judge with inherent jurisdiction has declared that the minimum sentence under s. 151 of the Criminal Code is unconstitutional and of no force and effect. Following the reasoning of Ferguson, the minimum sentence provision under s. 151 of the Criminal Code is now null and void and is effectively removed from the statute books until such time as the L. decision is overturned by the Court of Appeal or the Supreme Court of Canada.

[12] I agree with the Crown’s enunciation of the principles of stare decisis, namely that a judge is not bound by a decision of another judge of the same court on the same issue. A decision by a judge of a court of concurrent jurisdiction is of persuasive value only. However, the need for judicial restraint is further heightened where a court of concurrent jurisdiction has declared legislation struck as per s. 52. Justice Strathy endorsed this view in R. v. Scarlett, 2013 ONSC 562 (Ont. S.C.J.) and at para. 43 summarized an applicable test from Hansard Spruce Mills Ltd., Re, 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C. S.C.) as follows:

[a] judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.

[14] I also agree with the Crown’s submission that it would be an error of jurisdiction for a court to hear an application challenging the constitutional validity of an Act of the Parliament of Canada or the Legislature without giving notice of a constitutional question to the Attorney General of Canada and the Attorney General of Ontario as required by s. 109 of the CJA. However, there is no suggestion that a notice of constitutional question was not given to the Attorney Generals of Canada and of Ontario in the L. case.

[16] The Crown is bound by a declaration made by a Superior Court judge, with inherent jurisdiction, that a section of the Criminal Code is unconstitutional, is of no force and effect, and is effectively removed from the statute books, where notice of a constitutional question was properly served on the Attorney Generals of Canada and of Ontario. This includes de Sousa J.’s declaration that the minimum sentencing provision of s. 151 is effectively struck from the statute books and is of no force and effect.

[17] At para. 59 of the Ferguson decision, the Supreme Court stated that “Section 52 does not create a personal remedy.” A declaration under s. 52 that a section of the law is unconstitutional is not limited to the proceeding before the court. If this were not the case, the effect would be identical to a ruling under s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the “Charter”] which is only applicable to the case being heard by the judge. As such, a decision made under s. 52 to strike a section of law as unconstitutional is a decision in rem, meaning that the remedy applies to all.

[20] I agree with the submission by the defence that, once a declaration is made by a judge with inherent jurisdiction, that the law contravenes the Constitution, the offending section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal. As a result, there is no constitutional issue that remains “in question” once such a declaration has been made under s. 52 (1) of the Constitution Act by a judge with inherent jurisdiction.

[21] If it was possible for another Superior Court judge to uphold the constitutionality of a law after it has been struck down by a declaration of invalidity under s. 52(1) by another Superior Court judge then there would be the potential for inconsistent findings on the same law. If the Crown was unsuccessful on a constitutional challenge then it could simply decide not to appeal the ruling, and seek to reargue the constitutional validity of the law on another case before a different judge. This would lead to the potential of a multiplicity of legal proceedings arguing the same issue before different judges, which would not make efficient use of our judicial resources and would incur unnecessary legal costs.

[22] The Crown seeks an order of Mandamus ordering the Defence to serve notice of constitutional challenge in accordance with s. 109 of the CJA to allow it to reargue that the minimum sentencing provisions of s. 151 of the Criminal Code do not violate the Constitution. The Crown cannot bring the same application to declare that s. 151 of the Code is constitutional before another Superior Court judge because it is bound by the first Superior Court judge’s declaration. The Crown’s only remedy is to appeal the first Superior Court judge’s declaration that the section of the Criminal Code was unconstitutional.

In other words, the application to require the defence to serve a notice of constitutional question was dismissed because the court found the earlier ruling binding and notice had been given in the earlier case of L.

25. In R. v. Bruce, 2019 ONSC 5865, two of the defendants initially advised that they would be seeking a declaration that the mandatory minimum sentence prescribed in s. 99(2) of the Code violated the Charter. At a later appearance, the defendants advised that they would not be bringing applications for declarations under s. 52(1), as several judges had already determined that the mandatory minimum sentences were unconstitutional. The Crown submitted that applications were required and that the court was required to assess the decisions of the judges of coordinate jurisdiction as set out in Scarlett. The court followed previous findings of unconstitutionality, and decided that a full hearing as to the constitutional validity of the section was not required, as five previous decisions of the Superior Court in Ontario had found the mandatory minimum sentence provisions to be unconstitutional and of no force and effect. There was no mention of a notice of constitutional question being filed.

26. Finally, in R. v. Ball, 2019 ONSC 7162, defence counsel challenged the constitutionality of the mandatory minimum sentence provisions in s. 99(2) and 99(3) of the Criminal Code. A notice of constitutional question was served, “as is required” (para 2). The court stated:

[12] The prior decisions relied upon by the applicant include those where the mandatory minimum sentence was held to be unconstitutional based on the facts and circumstances of that case, and others where the finding of unconstitutionality was based on other reasonably foreseeable hypothetical situations. Still others were decided on the basis of principles relating to stare decisis or judicial comity. Every decision in Ontario that has considered the issue has found s.99(2)(a) to be unconstitutional and that the section is not saved by s.1 of the Charter. Furthermore, none of those cases have been appealed.

[13] The Crown’s position on this preliminary issue with respect to the mandatory sentence provision contained in s.99(2)(a), is that I am not bound by the prior decisions, and that I ought to reconsider the issue and find that the prior decisions are “plainly wrong”, within the test as set out in R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644 (Ont. S.C.J.). at para. 43.

[14] After submissions had been completed on the preliminary issue, I advised counsel that I would not be proceeding to hear the constitutional issues on the merits, with reasons to follow. These are those reasons.

Justice Glithero determined that it would be wrong for him to embark on a full reconsideration of the existing jurisprudence and relied heavily on the decision and analysis in Bruce. The Court continued:

25 At para. 14, Labrosse J. sets forth seven reasons for holding that a declaration of constitutional invalidity should be followed by all judges of coordinate jurisdiction in that same province until such time as the decision is overturned on appeal. The first such reason refers back to his earlier observations that if in Ferguson the Supreme Court of Canada had intended to maintain a “convention of horizontal precedent”, it would have said so.

26 I agree with Labrosse J. as to that first reason he stated, and I agree with him in the other six reasons he cites.

27 He then went on, beginning at para. 17, with a consideration of the earlier decisions and whether or not they were “plainly wrong” and did so on the basis that if his aforementioned conclusion was shown to be wrong by an appellate court, then it was appropriate to give his views on the basis of the “convention of horizontal precedent” approach. As it would appear from para. 4 in Bruce that the court determined the issue on a preliminary basis, without a full hearing on the constitutional validity of the impugned provision, I’m not sure how you can then, as an alternate approach, turn to consider the matter on the “convention of horizontal” precedent basis, if the Crown has not been afforded the opportunity to make submissions as to why the earlier cases are “plainly wrong”.

28 The provincial Crown in the case before me clearly wanted the opportunity to make submissions as to why all the earlier cases that have ruled s.99(2)(a) to be unconstitutional and no force and effect are “plainly wrong”. I did not give her that opportunity. Having not given her that opportunity, I don’t think it is open to me to consider whether those decisions were not “plainly wrong”.

Justice Glithero determined that the mandatory minimum sentence provision was of no force and effect in the sentencing in that case.

27. There is no question that the Superior Court of Justice has been inconsistent as to how to handle an earlier declaration of constitutional invalidity in a court of concurrent jurisdiction. Some of the decisions appear to be based on an erroneous interpretation of R. v. Ferguson, 2008 SCC 6 from the Supreme Court of Canada. However, since the decisions cited above were made, the Court of Appeal has recently provided guidance on this issue in the case of R. v. Sullivan, 2020 ONCA 333, reasons released on June 3, 2020. In that case, two defendants, Chan and Sullivan, challenged their convictions, claiming that s. 33.1 of the Criminal Code unconstitutionally deprived them of access to the non-mental disorder automatism defence. The appellants pointed to the fact that in an earlier decision, R. v. Dunn (1999), 1999 CanLII 36525 (ON SC), 28 C.R. (5th) 295 (Ont. Gen. Div.), s. 33.1 was found to be unconstitutional and of no force or effect. It was argued that this declaration was binding on other superior court judges, absent an appeal of that decision. In considering this issue, the Court of Appeal stated as follows:

[34] … I am persuaded that the ordinary principles of stare decisis apply, and that the trial judge was not bound by the Dunn decision. The authorities relied upon by Mr. Chan do not purport to oust these principles. In Nova Scotia (Workers’ Compensation Board), at para. 28, Gonthier J. was simply explaining that a provision that is inconsistent with the Constitution “is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects.” He was not attempting to alter the principles of stare decisis where s. 52(1) declarations have been made.

[35] Similarly, in none of the other passages relied upon by Mr. Chan was the Supreme Court of Canada purporting to oust the principles of stare decisis where s. 52(1) declarations have been made. The passages he refers to proclaim that after a s. 52(1) declaration is made, the law: is invalid “for all future cases”; “cannot be enforced”; and is “null and void, and is effectively removed from the statute books”, such that “[t]he ball is thrown back into Parliament’s court”: see respectively Hislop v. Canada (Attorney General), 2007 SCC 10, [2007] 1 S.C.R. 429 (S.C.C.), at para. 82; and R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.), at para. 65. These passages describe the effects of a s. 52(1) declaration that has been affirmed or made by the Supreme Court of Canada, the apex court. Those passages cannot be taken as describing the effect of declarations made by lower courts. After all, declarations made by trial courts are subject to appeal, and if overturned on appeal, will have no effect. Even on Mr. Chan’s theory, superior court declarations are not binding outside of the province in which they are made. In these circumstances, it cannot be said that a superior court declaration determines the validity or enforcement of the statute “for all future cases”, effectively removes the impugned provision from the statute books, or throws the ball back into Parliament’s court. These things happen only if the Supreme Court of Canada affirms or makes a s. 52(1) declaration.

[36] Nor can Mr. Chan find assistance in McLachlin C.J.’s observation in Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101 (S.C.C.), at paras. 43-44, that “the common law principle of stare decisis is subordinate to the Constitution”. Bedford recognized that the principles of stare decisis cannot be relied upon to perpetuate a statute, where that statute is unconstitutional when viewed again through a new lens. Specifically, a trial judge can depart from binding precedent when “a new legal issue is raised, or if there is a significant change in the circumstances or evidence”: Bedford, at para. 44. However, Bedford does not hold that the principles of stare decisis are ousted whenever constitutional issues are at stake.

[37] There is good reason why not. Whereas Bedford compromises stare decisis to promote accurate constitutional outcomes, the compromise on stare decisis proposed by Mr. Chan has the potential to discourage accuracy. For example, three superior court judges in succession could find a provision to be constitutional, but the fourth judge’s ruling to the contrary would be the only one to have full force or effect in the province. Unless that fourth decision is appealed, it becomes the law in the province. The Crown can no longer rely on the provision; therefore, decreasing the prospect that the issue of constitutional validity would make it before the provincial appellate court. The development of the law would be driven by coincidence in the sequence of trial level decisions and the fortuity of discretionary decisions about whether to appeal, when it should be determined by the quality of the judicial ruling.

[38] The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: R. v. Scarlett, 2013 ONSC 562 (Ont. S.C.J.), at para. 43; Hansard Spruce Mills Ltd., Re, 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C. S.C.), at p. 592. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made.

[39] The application of the ordinary principles of stare decisis to s. 52(1) declarations in no way collapses the structural distinction between s. 52(1) and s. 24(1) of the Charter, or amounts to a constitutional exemption, as Mr. Chan argues. The fact that cases at the superior court trial level may produce different outcomes for respective accused persons does not mean that the remedies are personal. The disparity in outcome simply reflects the developing state of the authority on the constitutional validity of a provision, as advanced by judges of competent jurisdiction.

[40] The trial judge was correct in finding that he was not bound by Dunn. He was also correct in considering the issue anew, as the issue of the constitutionality of s. 33.1 was put before him, and the authority he encountered was inconsistent. He had no choice, in the circumstances, but to consider whether to deviate from Dunn.

In Sullivan, the Court of Appeal made it clear that courts had misinterpreted Ferguson. The Court of Appeal held that a declaration of constitutional invalidity by the Superior Court of Justice is not binding on other Superior Courts, however, superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision

28. As for whether notice is required when seeking to rely on an earlier judgment of constitutional invalidity, the Respondent relied on the case of R. v. Bickford, 2020 ONSC 7510, decided after Sullivan, on December 3, 2020. In Bickford, Justice Quigley was faced with an application brought by the Applicant in the wake of the Reddick decision, similar to the circumstances of the case at bar. The parties sought guidance from the court as to the operation of stare decisis and the impact of Reddick on Mr. Bickford’s case. Specifically, the question raised was whether the decision of unconstitutionality in Reddick would bind the application judge, or whether it was persuasive only, and if so, whether the defence must serve and file notice of a constitutional question and challenge constitutionality to rely on Reddick. Justice Quigley stated in part as follows:

[13] After hearing from each of Crown Counsel, Defence Counsel, and counsel for each of the complainants, I disagree. I have directed that in order to seek to apply the ruling in Reddick on the unconstitutionality of the s. 278.92 and associated provisions to Mr. Bickford’s case, Defence Counsel would first need to bring a NCQ with the required 15 days notice to the Federal Crown, and other interested parties.

[14] I am motivated in reaching this conclusion by the obvious fact that the stipulations of the s. 278 regime are intended to be protective in nature, permitting access to documentation in particular circumstances, but potentially subject to the privacy interests of the complainants whose text messages are sought to be introduced into evidence. The provisions also permit the complainants to be represented. It is not clear to me how a simple direction of unconstitutionality in Reddick would suffice to bind a subsequent motions judge to follow it, regardless of facts and circumstances, which may differ significantly from those in Reddick.

[15] Moreover, I agree with Crown Counsel that the Federal Crown, whose criminal legislation is impugned, has a right to notice to permit her to take a position in the face of the conflicting superior court jurisprudence. In the result, the question is simply too important to be rushed forward, to be heard on December 18. The existence of the leave to appeal to the Supreme Court in J.J. relative to ss. 278.92 and 278.93, and Mr. Butt’s efforts to expedite another appeal to be joined with it, demonstrates the importance of these issues in this case as well. Frankly, it demonstrates that it is not just the individual pieces of the impugned sections that are challenged, but the scheme itself, more generally. The determination of the constitutionality of that scheme, in my view, does require a NCQ to be served and filed by Defence Counsel, because of the scope of the challenge, not only to the Crown and the defence, but equally to the complainants in this case, who claim some texts have been disclosed to the defence inadvertently, and who do not wish to see that circumstance compounded.

[17] Finally, the admonition of the Court of Appeal in McCann also weighs into my decision that the appropriate way to proceed is by NCQ:

[6] Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory: Paluska v. Cava (2002), 2002 CanLII 41746 (ON CA), 59 O.R. (3d) 469 (Ont. C.A.); R. v. Briggs (2001), 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417 (Ont. C.A.). Section 109(2) of the Courts of Justice Act provides that where notice has not been given, a remedy under s. 24(1) of the Charter shall not be granted. The notice requirement is important for the reasons expressed in Briggs at para. 44 - to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.

[7] We agree with the respondent that the appellants' submissions raise the constitutional applicability of s. 430(3) of the Code. This court has no jurisdiction to grant relief in the absence of notice or in the absence of the circumstances discussed in para. 23 of Paluska, none of which exist here. Moreover, the appellants concede that the record before us does not permit us to assess the Charter arguments or to grant a Charter remedy.

29. The Applicant in the case at bar argued that Justice Quigley’s decision is fatally flawed, as he does not engage with s.109 of the CJA, and that is where he should have started his analysis. Further, the Applicant argued that Justice Quigley’s comments in paragraph 14 in relation to an earlier finding of unconstitutionality binding a subsequent motion judge is a significant error.

30. This court does approach the analysis somewhat differently then Justice Quigley. This court agrees that s. 109 of the CJA is the starting point as to whether a notice of constitutional question is required. Further, this court is mindful that the Applicant is not suggesting that this court is bound by the decision in Reddick, but rather that decision should be followed absent cogent reasons not to do so. It is completely open to this court to decide that the decision in Reddick was plainly wrong.

31. Another case decided after Sullivan, and relied upon by the Applicant, is the decision of R. v. Gardner, 2020 ONSC 5954, decided October 2, 2020. In an earlier decision, R. v. Reginald Louis Jean, 2020 ONSC 624, the court had determined that a mandatory minimum sentence provision violated s. 12 of the Charter and determined the provision to be of no force and effect pursuant to s. 52. In Gardner, Justice London-Weinstein stated:

[61] The mandatory minimum sentence provision of s. 279.01(1) was found to violate s. 12 of the Charter, which is the right not to be subjected to any cruel and unusual treatment or punishment, and was declared to be of no force and effect pursuant to s. 52 of the Constitution Act, 1982 in R. v. Reginald Louis Jean, 2020 ONSC 624 (Ont. S.C.J.). I agree with the reasoning of R. Smith J. in that case and respect his earlier declaration of unconstitutionality, there being no cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: see R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353 (Ont. C.A.) at para. 38. The Crown has indicated that it will appeal the decision in Sullivan, to the Supreme Court of Canada. However, whether I am bound by a s. 52 declaration of unconstitutionality, or following the principles of stare decisis, or observing judicial comity, the end result would have been the same. I agree with Smith J.’s conclusion that s. 279.01(1) violates s. 12 of the Charter.

[62] The decision in Sullivan was released after counsel had made final submissions with regard to sentence, and release of my reasons for sentence was delayed for some time due to COVID-19. Mr. Gardner was out of custody. His pre-sentence report indicated that he had previously engaged in a single act of attempted self-harm as a younger person. I was of the view that delivering this sentence should not take place during a time when there was so much uncertainty and stress due to COVID-19, and when Mr. Gardner could not safely step into custody due to the virus.

[63] However, the Crown did not seriously oppose the defence position regarding the mandatory minimum given that the facts in this particular case attract a sentence which meets or exceeds the mandatory minimum.

There was no indication in Gardner that a notice of constitutional question was served and no discussion about whether it was required. However, the validity of the mandatory minimum sentence does not appear to have been heavily litigated given the sentences that were being suggested by both counsel and ultimately imposed by the court.

32. This court has carefully considered the circumstances of this case, the submissions of counsel, and relevant case law produced.

33. At the end of the day, in this application, counsel do not disagree that s. 109 of the CJA is what determines whether a notice of constitutional question is required. The fundamental disagreement in this case is what is the true essence of this application. The Applicant strongly submitted that this application is not a challenge to the constitutional validity of the legislation. The Applicant submitted that this application is not about how the legislation applies to A.M., therefore, this is not about constitutional applicability. According to the Applicant, they are simply seeking direction as to how Justice Akhtar’s decision in Reddick affects this case, with a clear acknowledgement that the Reddick decision is not binding on this court. They submit that Justice Akhtar’s decision should be followed, as it is not plainly wrong and, therefore, are requesting that the complainant not be provided with disclosure of the application materials and not be entitled to participate in the evidentiary hearing.

34. This court does not agree with the Applicant’s characterization of this application.

35. It is the view of this court that this application puts the constitutional validity of these sections in question. This is sufficient to trigger the necessity for a notice of constitutional question to be served as per s. 109 of the CJA.

36. There is competing jurisprudence on the constitutionality of these provisions. As clarified recently by Sullivan, Justice Akhtar’s more recent pronouncement of unconstitutionality does not determine the validity or enforcement of the statute for all future cases; it does not remove the impugned provision from the statute books. As stated in Sullivan at para. 38, “other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision”. In order to make this determination, the court requires “the benefit of argument, facilitated by fair notice to the parties” (Sullivan, paragraph 38). This statement by the Court of Appeal would seem to suggest that a notice of constitutional question is required.

37. The Applicant submitted that this court should follow Justice Akhtar’s decision in Reddick, absent cogent reasons to conclude that the decision is plainly wrong. This will require a review and consideration of Justice Akhtar’s constitutional findings in relation to this legislation. In performing this review, if this court is unable to say that the decision is plainly wrong, then the Applicant says that this court should follow that decision in accordance with the guidance of the Court of Appeal in Sullivan. Therefore, if this court reviews the judgment of Justice Akhtar and determines that it is not plainly wrong, then this court would find that Justice Akhtar was correct in finding that the legislation is unconstitutional. This court would be making a ruling on the constitutional validity of the legislation based on a finding that Justice Akhtar’s decision was not plainly wrong. Certainly, this exercise would put the constitutional validity of these sections in question.

38. Further, the Applicant asks this court to order that the complainant does not have standing to make submissions or participate in the ss. 278.93/4 hearing, and an order prohibiting disclosure of the Applicant’s application materials to the complainant. The only way this court can do that is to decide that the legislation in these respects is unconstitutional. The Applicant submits that the way to do this is to apply the principles of stare decisis, rely on Justice Akhtar’s decision, and to give them the remedy that they seek. There is no question that this puts the constitutional validity of these sections in question. The remedy that the Applicant seeks is one that could only be given if this legislation is unconstitutional and of no force and effect.

39. It is the view of this court that the analysis of the correctness of the Reddick ruling is the same as determining or analyzing the constitutionality of those same provisions. Simply because the Applicant has framed their application to focus on the correctness of Reddick rather than delving into other avenues to support its position, does not change the true nature of this application. This is an application which seeks to challenge the constitutional validity of this legislation solely on the basis of the analysis in Reddick. However, it is still putting constitutional validity of the legislation in question. The triggering of s. 109 of the CJA does not require an independent challenge to the legislation; in other words, one that does not rely on earlier decisions and the principles of stare decisis. Section 109 is triggered where the constitutional validity of the legislation is put in question. The wording of s. 109 is quite general and fairly broad in this regard. It does not matter which route the Applicant takes to question the constitutional validity and to request a remedy; the end goal is still the same.

40. While this court appreciates that this application is limited to a review of Justice Akhtar’s decision as opposed to a broader argument, surely that does not change the fact that the Applicant is still asking for this court to find that the legislation is invalid. The only difference is that the Applicant is seeking to have the court make that finding on the basis of analysis which Justice Akhtar has already undertaken as opposed to starting fresh. The distinction between this type of application and a more broad application has no bearing on whether s. 109 is invoked. Section 109 is invoked any time the constitutional validity of relevant legislation is put in question.

41. Clearly, this court is not bound by the decision of Justice Akhtar. The Court of Appeal in Sullivan made that clear and counsel agree on that fact. The Applicant submitted that, in accordance with Sullivan, this court should respect Justice Akhtar’s decision unless it is plainly wrong. Therefore, this court must make a finding of constitutional validity or invalidity based solely on whether Justice Akhtar was or was not plainly wrong. This is still a determination of constitutional validity.

42. The Applicant argued that if the defence were required to bring a notice of constitutional question every time they rely on an earlier judicial determination, effectively forcing applicants to start from scratch every time, it would make the principles of stare decisis meaningless. This Court strongly disagrees with this statement. Requiring a notice of constitutional question to be served does not require the Applicant to start from scratch on every application. The Applicant can choose to frame their application narrowly, simply relying on earlier jurisprudence to make their argument for constitutional invalidity if they wish. However, because the Applicant chooses to frame their application narrowly, relying on previous jurisprudence and the principles of stare decisis, this should not mean that the Attorney Generals of Canada and Ontario are not put on notice. It is not an onerous requirement to insist that a notice of constitutional question be served. The reality is that in many cases the Attorney General of Canada may very well choose not to be involved and to leave any argument to the assigned Assistant Crown Attorney on the case. However, they should be given the opportunity to participate, and to provide the court with the most complete record possible.

43. The Court of Appeal in R. v. McCann, 2015 ONCA 451 discussed the reason behind the requirement for a notice of constitutional question to be served. In that case the Appellants were convicted of attempt to commit mischief and received a conditional discharge. Their summary conviction appeal was dismissed, and they sought leave to appeal to the Court of Appeal. The basis of their appeal was that the courts below erred in finding that their peaceful protest was not protected expression under s. 2(b) of the Charter. The court stated:

[4] The impediment to this argument is that the appellants did not serve a notice of constitutional question as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. A Charter argument was not made at first instance and in fact the appellants, who were self-represented, disclaimed a Charter argument.

[5] Although the appellants were represented on the summary conviction appeal, the summary conviction appeal judge give little consideration to the s. 2(b) argument, concluding that the trial judge’s findings of fact were sufficient to conclude that the appellants’ conduct was not protected by the Charter.

[6] Notice of a constitutional question is not simply a technicality. The jurisprudence of this court confirms that it is mandatory…The notice requirement is important for the reasons expressed in Briggs at para 44 – to put the government on notice that the legislation is being challenged and to give it a full opportunity to support its validity. It also ensures that the court has the benefit of a full factual record.

44. Notice allows a full opportunity for parties to assist the court in its determination. It ensures that the court has a full factual record. These factors have been recognized as important. It is in everyone’s interests to have these issues dealt with meaningfully and thoughtfully.

45. For all of the foregoing reasons, in this case, in relation to the application brought by A.M., notice of constitutional question is required in accordance with s. 109 of the Courts of Justice Act.

46. As for notice to the complainant of this application, this court is not convinced that this is required. The service of a notice of constitutional question is specifically provided for in the Courts of Justice Act. The Act is clear about the necessary recipients of said notice.

There is no legislation or persuasive or binding authority that leads this court to conclude that the complainant would be entitled to such notice. Notice is not required to be served on the complainant.

Justice V. Christie

Released: December 10, 2020