Her Majesty the Queen v. A.M.

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

DATE: 20201223

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 14 & 15, 2020

RULING IN RELATION TO APPLICABILITY OF R. v. REDDICK AND ITS DETERMINATION OF CONSTITUTIONAL INVALIDITY

CHRISTIE J.

Overview

1. The Applicant, A.M., has filed a notice of application and notice of constitutional question requesting as follows:

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

3. An Order prohibiting disclosure of the Applicant’s s. 276/278 application materials to the complainant.

4. In an earlier ruling, reasons released on July 27, 2020, this court decided that the Applicant was permitted to 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.

5. 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, Akhtar J. 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, Akhtar J. 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.

6. 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 solely on the principles of stare decisis, and the ruling in Reddick. The Applicant conceded that this was a novel manner in which to approach the issue. 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 by Justice Akhtar to be unconstitutional and of no force and effect pursuant to s. 52 of the Charter, that decision should be followed by this court, meaning that 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 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.

7. This application was argued, in person, on December 14 and 15, 2020. On December 16, 2020, this court advised the parties that, for reasons to follow, the Applicant’s application was dismissed.

8. These are the reasons for that decision.

Background, Allegations, and Materials at Issue

7. 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.

8. 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.

9. On March 25, 2020, this court determined that many of the messages did not meet the definition of “record” as defined in s. 278.1 of the Criminal Code, and therefore, were not captured by the legislation. This court ruled that, with the exception of the WhatsApp messages that engaged s. 276 of the Criminal Code, the complainant did not have a reasonable expectation of privacy in the WhatsApp messages. Therefore, the Applicant was not required to disclose them in advance to the Crown or complainant. See: R. v. A.M., 2020 ONSC 1846.

10. Right from the outset of these proceedings, 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 was intended that these messages were to be relied upon at trial, there would need to be a judicial determination as to admissibility pursuant to the legislation.

11. 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 was 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. See: R. v. A.M., 2020 ONSC 4541

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

13. On November 30, 2020, the Applicant filed this application in the wake of the decision in Reddick, released on November 23, 2020. The Applicant did not, initially, serve a notice of constitutional question, as it was the Applicant’s position that no such notice was required due to the nature of the application.

14. 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 amounted 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.

15. 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 was no requirement for a notice of constitutional question to be served as per s. 109 of the CJA.

16. Following argument on December 7, 2020, with reasons released on December 10, 2020, this court ruled that a notice of constitutional question was required in accordance with s. 109 of the CJA, however, notice was not required to be served on the complainant. See: R. v. A.M., 2020 ONSC 7674

17. The notice of constitutional question was subsequently served. The Attorney General of Canada and Ontario did not become directly involved in this application. The argument on behalf of the Crown was made by the Assistant Crown Attorney assigned to this case.

Position of the Parties

18. The Applicant argued that this court should follow the decision in Reddick, finding the sections constitutionality invalid, as the decision is not plainly wrong. According to the Applicant, while the decision is Reddick is not binding, following the decision of the Court of Appeal in Sullivan, it ought to be followed “absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision”. The Applicant acknowledged that this is a novel argument, focused solely on the applicability of Reddick, as opposed to a more general constitutional challenge. It was the submission of the Applicant that the disclosure of the application material to the complainant has always been a concern in this case, and was the reason for bringing the timing application. The Applicant submitted that this court must now decide if the constitutional concerns are ameliorated or, at least, sufficiently mitigated by a mid-trial application, as was allowed for in this case, in light of the ruling made in Reddick after the timing application was decided.

19. It was submitted by the Applicant that while Justice Akhtar’s decision in Reddick is not perfect, it is not plainly wrong. They submit that Justice Akhtar engaged with all of the necessary issues, including, but not limited to:

20. a consideration of Mills, O’Connor and Shearing, and other cases that have considered the constitutionality of these provisions;

21. the historical treatment of victims of sexual assault;

22. the importance of the complainant’s rights;

23. the objectives of the legislation;

24. a consideration of full answer and defence, including the importance of cross-examination;

25. a consideration of reasonable hypotheticals, which demonstrate the overbreadth of the legislation;

26. a determination that disclosure to the complainant, as opposed to consultation with the complainant, risks trial fairness, in the sense that it provides the complainant with an opportunity to tailor their evidence to the revealed defence, diminishing the effect of cross-examination;

27. a discussion surrounding the right to counsel and the effect this will have on disclosure, given that any conversations between the complainant and her counsel will be privileged and not disclosed, which is in contrast to discussions between the Crown and complainant which would have been disclosed;

28. the role of the Crown and its duty to the administration of justice as opposed to a duty to any one party; and

29. a discussion of the distinction between production and admissibility.

30. The Applicant submitted that the question for this court is not whether it agrees or disagrees with Justice Akhtar in Reddick, but whether he was plainly wrong, which the Applicant submits is a high bar. The Applicant argued that this court does not need to revisit its previous ruling in relation to timing of this application in its entirety, but rather needs to modify it because there was no constitutional issue raised at that time.

31. The position of the Crown is that this notice of constitutional question is based on a very narrow issue, specifically the principles of stare decisis. The orders sought by the Applicant can only be granted if this court relies on the decision in Reddick and finds these specific provisions to be unconstitutional. The Crown points out that there has been no notice of constitutional question generally, as was the option of the Applicant. Rather, the Applicant has chosen to limit this application to a reliance on Reddick and the principles of stare decisis. Given the limited nature of the Applicant’s notice, this court is restricted to deciding constitutionality only on the basis of whether Reddick is plainly wrong, and this court must apply guidance from the Court of Appeal for Ontario to make that determination. The Crown submitted that anything that requires an analysis of broader constitutional issues goes beyond the scope of this notice of constitutional question and should not be considered.

32. The Crown submitted that this court must question whether principles of stare decisis are even engaged in this case, given the fundamental difference between Reddick and the case at bar. Reddick was decided in the context of the application occurring pre-trial. Given the fundamental differences between pre-trial and mid-trial applications, as already determined by this court in its ruling on timing of such applications, this takes this case outside of the principles of stare decisis. Further, the Crown argued that even if stare decisis applies, the Reddick decision was made without full consideration of many issues, therefore, it is plainly wrong, and this court should not adopt the declaration of invalidity.

Analysis

Amendments and Previous Decisions

23. On December 13, 2018, several amendments to the Criminal Code of Canada, enacted by Bill C-51, came into effect. The newly enacted sections amended the procedure that governed previous sections 276 and 278 of the Code, connecting the prior sexual activity provisions with the records regime. The amendments changed the landscape of the existing procedure and created an obligation on the defence where materials are already in their possession. The amendments altered the procedure of such applications, mandating that the complainant, while not a compellable witness, is permitted to appear at the hearing, if a hearing is granted, and to make submissions. The Court is required to inform the complainant of the right to be represented by counsel.

24. In Ontario, there are no appellate rulings on the constitutionality of these new provisions, however, there are some trial level decisions which, prior to Reddick, upheld the constitutionality of the new regime.

25. On July 15, 2019, in R. v. A.C., 2019 ONSC 4270, Justice Sutherland ruled on a constitutional challenge to the new legislation. There was no reference in Justice Sutherland’s decision to the timing of such applications. He found the sections to be constitutional and stated in part as follows:

[42] The Supreme Court of Canada, in Darrach, did acknowledge on a s. 276 application that the Crown would have “to consult with the complainant” and “that if the defence is going to raise the complainant’s prior sexual activity, it cannot be done in such a way as to surprise the complainant”. Thus, the Crown would have to disclose, to the complainant, the application material the Crown received from the accused. Notwithstanding this disclosure of the application material to the complainant, the Court did not conclude that there was a violation of the accused’s s. 11(d) Charter right.

[43] Granted, the extent of the disclosure to the complainant, and the necessity of providing the complainant with a copy of the written material, is not outlined in the offending subsections. Such detail of the procedure was not set forth in Mills or Darrach. Thus, the question remains; have the amendments changed the landscape to an extent that the accused’s right to a fair trial and right against self-incrimination have been violated? I am not persuaded by the defence that it has. I am not persuaded that providing the complainant with the opportunity to “appear and make submissions”, and if inclined, “to participate”, at the hearing alters the findings of the Supreme Court of Canada in Mills and Darrach. I come to the conclusion that Mills and Darrach are determinative of this issue.

[68] I agree with Doody J. that the meaning of “attend and make submissions” and to “participate” must have meaning. The involvement of the complainant at the voir dire hearing must be a useful one. I agree this includes the ability to cross-examine and lead evidence at the hearing. This lends itself to the complainant having the ability to make meaningful submissions to the court.

[69] However, the ability to “attend and make submissions” is a limited one. It is for the sole and limited purpose of determining the admissibility of proposed evidence at the trial proper based on the statutory framework and goals. It is not to attend and make submissions at the trial proper. It is not to have standing at the trial. It is strictly limited to the issue of the admissibility of the proposed evidence at the trial and the opportunity to convey the perspective of the complainant to assist the court in its decision-making as to whether the proposed evidence should be admitted, such that it does not perpetuate the twin myths and offend the factors described in s. 276 of the Criminal Code.

Justice Sutherland’s analysis is focused on the complainant’s ability to attend, make submissions and participate in the hearing of these applications. There was no discussion as to when this will or should occur.

26. On November 6, 2019, Justice Raikes released a decision on the constitutionality of these provisions in R. v. C.C., 2019 ONSC 6449. In this case, the defence advised the court that he was in possession of Facebook postings and messages authored by the complainant and that those records did not relate to sexual activity in any way, and did not pertain to and were not relevant to the sexual offences which formed the charge. Counsel agreed that the materials met the definition of “record”. It was also assumed that the application would be made pre-trial and the challenge was argued on that basis. The court held:

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

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

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

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

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

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

[82] Nevertheless, I am not satisfied that ss. 278.92, 278.93 and/or 278.94 interfere with the defendant’s right to cross-examine or result in a violation of his rights of fundamental justice guaranteed by s. 7 and s. 11(d) of the Charter…

In C.C., there appeared to be no discussion, or even consideration of the possibility of a mid-trial application. The comments of Justice Raikes, and the determination of constitutionality, are focused on the requirement that an application be brought, a process that gives the complainant a voice, and the necessity to avoid confronting a witness in cross-examination with records that contain sensitive, embarrassing and/or private information in a public setting with no forewarning and no opportunity to object.

27. There have also been constitutional challenges argued at the Ontario Court of Justice.

28. On June 6, 2019, Caponecchia J., in the case of R. v. F.A., 2019 ONCJ 391, decided a constitutional challenge in respect of this legislation. The applicant’s position was that sections 278.92 through 278.97 violated his right to make full answer and defence protected by s. 7, his right not to be compelled to be a witness in any proceeding pursuant to s. 11(c), and the presumption of innocence and right to a fair trial protected by s. 11(d). Lastly, the applicant alleged his right to equality of treatment under the law pursuant to s. 15 of the Charter was also impacted by the legislation. The trial commenced and continued until the Crown objected during cross-examination of the complainant. A discussion was held as to the applicability of the s. 276/278 regime. Defence counsel advised of an intention to challenge the complainant with additional items in his possession. Sometime later, the court heard arguments regarding whether the materials were “records” as defined in the legislation. The court determined that all but one item fell within the definition of “records”. A hearing was then scheduled to determine the admissibility of the records. In the meantime, counsel brought a constitutional challenge to the legislation.

29. Justice Caponecchia held that the applicant’s argument, that s. 276 created a blanket exclusion, was answered by the Supreme Court of Canada in Darrach, and must fail for the same reason. In short, she held that the legislation did not create a blanket exclusion but rather prohibits the admission of misleading and / or irrelevant evidence. Further, the court was asked to determine whether Bill C-51 violated the Charter because it required a defendant to disclose his or her defence in an application and be exposed to cross-examination at a stage-two hearing. The court held that this did not amount to a Charter violation, noting that it would not always be necessary for an applicant to testify at the voir dire. (para. 62). As for disclosure of a defence, the court relied on Darrach in holding that the Crown has always had the opportunity to consult with the complainant on a s. 276 application, and the defence was not entitled to surprise the complainant with this type of evidence. (para. 66)

30. On September 17, 2019, Justice Breen, in R. v. R.S., 2019 ONCJ 645, decided an application challenging the constitutionality of ss. 278.93 and 278.94 of the Criminal Code. The applicant in that case argued that the statutory procedure relating to records in the possession of the defence compels the disclosure of defence evidence and strategy, in advance of trial, resulting in a breach of ss. 7 and 11(d) of the Charter. In this case, the applicant’s argument was premised on the assumption that the admissibility voir dire must be conducted in advance of trial and that the complainant would have access to the complete application record. In R.S., Breen J. drew a distinction between cases where an accused makes a choice to call a defence versus challenging the prosecution’s case. The court stated:

[66] … As noted above, an accused’s tactical choice to respond to a prima facie case by calling a defence is distinct from the right to challenge the prosecution case through cross-examination. A statutory provision that compels disclosure of impeachment material in advance of cross-examination offends the principle against self-incrimination.

[70] The integrity of a witness and the credibility of their testimony are brought into question when they gain access to relevant information prior to testifying. This concern is entrenched in our criminal law and informs investigative practices, trial procedure and evidentiary rules. The tainting of witnesses, by any means, undermines the truth seeking function of the trial.

[71] In response, the prosecution argues that the extent to which the testimony of a complainant has been influenced by access to the application record can be revealed in cross-examination. Cross-examination may well prove adequate where the impeachment potential of the record is based on inconsistencies between the contents of the record and the complainant’s prior statements to police. A complainant who deviates from a prior statement to avoid contradiction can be cross-examined on the prior statement and face the suggestion that their change in position is attributable to knowledge gained from access to the defence application record. The situation is far different, however, where the foundation for contradiction must be established in cross-examination. A witness who has knowledge of the content of the defence brief “is in a position to tailor his or her evidence” and “escape the grasp of contradiction”.

[72] In addition, the ability of the defence to explore the extent of the complainant’s knowledge or understanding of the defence evidence or strategy is complicated by solicitor/client privilege. Where a complainant is represented by counsel on an admissibility voir dire, knowledge of the details of the defence application will likely be gained through privileged communications. Courts have cautioned that cross-examination of a witness as to knowledge gained through counsel encroaches upon privilege and is best avoided.

31. Breen J. also disagreed with the Crown that the judgment in Darrach had already decided this issue against the Applicant. The Court stated:

[75] The statutory scheme under consideration in Darrach made no provision for notice to the complainant and the Court made no reference to the notice provisions governing applications for production of third party records. In my view, the Court’s recognition of a prosecutorial discretion to “consult” with a complainant cannot reasonably be interpreted as an approval of a statutory requirement that a complainant be granted access to the complete application record in advance of trial.

[76] Indeed, beyond referencing the statutory notice period, the Court made no comment on the proper timing of the application, implicitly approving counsel’s decision to bring the application during cross-examination of the complainant.

[78] For the above reasons, I conclude that a statutory provision that compels disclosure of impeachment material to a complainant, in advance of cross-examination, compromises the fairness of the trial contrary to s.7 of the Charter.

32. Justice Breen held that the timing of this application being pre trial, as opposed to mid trial, was not supported by the statute, judicial rules of practice, the test for admissibility or precedent. (paras. 84-94). In this context, Justice Breen found that s. 278.93 and s. 278.94 did not contravene ss. 7 and 11(d). He stated: “This conclusion is dependent upon an interpretation of s.278.93 that permits such applications to be brought during the cross-examination of the complainant.” (para. 98)

33. More recently, in the case of R. v. Reddick, Justice Akhtar held that s. 278.92, s. 278.94(2) and s. 278.94(3), which order that the accused’s application materials be disclosed to the complainant, and for the complainant to be able to participate in the process by appearing at the hearing and making submissions, violates ss. 7 and 11(d) of the Charter. The Court struck down these provisions pursuant to s. 52 of the Charter, therefore, concluding the provisions to be of no force and effect.

34. In discussing the disclosure of records in these applications, Justice Akhtar determined that the definition of “record” is unnecessarily broad. The Court stated in part as follows:

[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.

[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.

35. As for disclosure to the complainant, Justice Akhtar had a number of concerns. He stated in part as follows:

[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.

[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.

[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.

36. Finally, on the issue of disclosure of the records, Justice Akhtar expressed very strong views that these applications must occur pre trial as opposed to mid trial. He stated:

[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.

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

37. In conclusion, Justice Akhtar found that “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”.

38. As for the complainant’s participation in the 276/278 hearing process, Justice Akhtar made the following comments:

[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.

39. Justice Akhtar strongly disagreed with Justice Sutherland in A.C. that the provisions are an “incremental change”, rather viewing the new provisions as “a fundamental alteration to the way in which sexual assault trials are prosecuted”. He stated:

[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.

40. Finally, Justice Akhtar distinguished between admissibility and production relying on R. v. Shearing, 2002 SCC 58. He also held that the Crown can and does protect the interests of the complainant through its position as a minister of justice. (paras. 119-20)

41. In conclusion, as for the constitutionality of the complainant’s participation in the 276/278 process, Justice Akhtar held that this was also a violation of ss. 7 and 11(d) of the Charter.

Stare Decisis

42. Stare decisis is Latin for “to stand by things decided.” The complete Latin maxim is “Stare decisis et non quieta movere”, which translates as “to stand by decisions and not disturb the undisturbed”, or in other words to stand by what is settled. This common law principle creates clarity within the law, so that the public will know what is expected of them. In David Polowin Real Estate Ltd. v The Dominion of Canada General Insurance Co., (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (C.A.), Justice Laskin stated as follows:

[119] The values underlying the principle of stare decisis are well known: consistency, certainty, predictability and sound judicial administration. Adherence to precedent promotes these values. The more willing a court is to abandon its own previous judgments, the greater the prospect for confusion and uncertainty. "Consistency", wrote Lord Scarman, "is necessary to certainty -- one of the great objectives of law": see Farrell v. Alexander, [1976] 1 All E.R. 129, [1977] A.C. 59 (H.L.), at p. 147 All E.R. People should be able to know the law so that they can conduct themselves in accordance with it.

[120] Adherence to precedent also enhances the legitimacy and acceptability of judge-made law, and by so doing enhances the appearance of justice. Moreover, courts could not function if established principles of law could be reconsidered in every subsequent case. Justice Cardozo put it this way in his brilliant lectures on The Nature of the Judicial Process (New Haven: Yale University Press, 1960) at p. 149:

[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.

43. 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. However, more recently, the Court of Appeal has 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 in this case 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.), section 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

44. Earlier guidance in R. v. Scarlett, 2013 ONSC 562 at para. 43-44, as referred to by the Court of Appeal in Sullivan, established three circumstances in which a court of concurrent jurisdiction can ignore the earlier ruling. In Scarlett, the accused, at his sentencing hearing, sought a ruling that subsection 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.

Pursuant to Scarlett, the circumstances in which a court of concurrent jurisdiction can overlook an earlier decision are clear.

45. In this application, counsel agree that the decision of Reddick is not binding on this court.

Does stare decisis apply in this case?

46. The first question for this court to decide is whether principles of stare decisis are even engaged in this application. Was Justice Akhtar deciding a similar issue to that in the case at bar?

47. It is the view of this court that the issues as framed by the circumstances in Reddick and the issues as framed by the circumstances in the case at bar are fundamentally different. Justice Akhtar comes to his conclusion based on a determination that this application must occur in a pre-trial context. In considering the cases of R.S. and J.J. which both held that mid-trial applications were possible, Justice Akhtar held that they were absolutely wrong, and that allowing mid-trial applications would amount to an impermissible “re-write” of the legislation. (Reddick, paras. 69-72)

48. This court strongly disagrees with Justice Akhtar on this fundamental point.

49. In Reddick, Justice Akhtar stated:

[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.

This is simply inaccurate. That is not at all what the legislation states. Section 278.93(2) states:

(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.

Section 278.93(4) states that the judge must be 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…..” There is absolutely no explicit statement that the accused’s affidavit must be provided 7 days prior to trial as Justice Akhtar suggested. This is simply Justice Akhtar’s interpretation of the legislation; an interpretation that this court strongly disagrees with as set out in an earlier decision this court made on the timing of this 276/278 application.

50. In R. v. A.M., 2020 ONSC 4541, this court stated in part as follows:

[44] There is nothing about the purposes or objectives of this legislation that leads this court to the conclusion that the application to introduce sexual activity evidence should be brought pre-trial. Having considered the history of the legislation, its purposes and objectives, it is the view of this court that those purposes and objectives can still be met by a mid-trial application in this case. The evidence will not be permitted until it is screened by the court in accordance with the legislation, which means that the complainant will be well aware of the proposed evidence and have input into its admissibility.

[60] It is the view of this court that requiring pre-trial disclosure of the defence’s cross examination material, versus allowing for mid-trial disclosure of the material, unnecessarily infringes the applicant’s rights set out above because of the danger that it will render the cross-examination ineffective. A witness with full advance notice of impeachment material is in a position to tailor their evidence to fit the disclosure. In the case at bar, the witness is a sexual assault complainant whose testimony is central to the prosecution’s case. Therefore, any unnecessary risk of tainting the complainant’s testimony that occurs by requiring the defence to proceed with a s. 276 application before trial can be fatal to a fair trial.

[65] The Charter rights of the accused are not decided in a vacuum. These rights must be balanced against the complainant’s rights, including rights to privacy, security, dignity and equality. The legislation certainly seeks to dispose of evidence used solely to support groundless myths and stereotypes, however, principles of fundamental justice allow for the admission of evidence that is not used for this purpose, and which is relevant. Prior to these records or the contents of these records being put to the complainant, if this application is successful, she will be aware of the detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial. It is the view of this court that requiring the applicant to disclose these details prematurely would amount to an unwarranted violation of s. 7 and 11(d) of the Charter.

[105] Parliament has the ability to add to existing protections. The amendments are an extension of already existing protections that have been in effect for some time. However, the suggestion that the applicant must bring this application pre-trial would read something into the statute that simply does not exist. The legislation states that notice must be provided “seven days previously”, not “seven days in advance of trial”. There is no binding authority on this court to support the contention that this application must be brought pre-trial. To read the statute as requiring a voir dire prior to trial, would limit the accused’s rights to full answer and defence and violate the right against self incrimination unnecessarily, by forcing the defence to disclose information to the Crown and complainant prematurely. These are important Charter rights that are long established.

[106] The court must balance the rights of the accused against that of the complainant, without putting one above the other. The applicant’s position is not that the complainant’s rights are to be ignored, but rather, simply that the complainant’s rights not be given heightened priority over that of the accused. The court has a duty to minimize an infringement of the accused’s Charter rights, a person who faces the weight of the state against him. The accused’s liberty is directly at stake. Allowing the application to be brought mid-trial minimizes the impact on the accused, while at the same time respects all of the purposes and objectives behind this legislation.

[110] The only difference that results from the timing of this application being mid-trial is that the complainant would not know the detailed particulars of the communications prior to giving her evidence in chief. There would be no opportunity to tailor the evidence in chief to line up with the text messages. This is in everyone’s best interests. This is fundamental to the search for truth and the fair trial rights of the accused. Use of prior inconsistent statements to impeach a witness is a well-established means of testing the credibility and reliability of witnesses. The evidence of the complainant in this case, as in many cases, is crucial. While there are circumstances where the complainant may be aware of defence strategy prior to trial, this does not mean that it should be encouraged or that it should be the norm.

[114]… However, allowing a mid-trial application ensures that the objectives are met, and the complainant’s rights are protected, in a way that respects the Charter rights of the accused.

51. The Applicant submitted that this court did a case-specific analysis, not a constitutional challenge. While it is true that this court was not deciding a constitutional challenge in the timing application, in reviewing these reasons, it is clear that this court has already determined that the constitutional concerns are ameliorated or, at least sufficiently mitigated, by the availability of a mid-trial application. While, the application in relation to timing was not a constitutional challenge, it certainly involved constitutional considerations. Specifically, this court carefully considered s. 7 and 11(d) concerns in making its determination to allow a mid-trial application.

52. It is the view of this court that given the inherent differences between a pre-trial application and a mid-trial application, and the fact that Reddick was decided in the context of a pre-trial application, whereas in the case at bar this will be a mid-trial application, stare decisis does not apply.

53. Further, there is certainly competing law at the Superior Court of Justice in this province on the issue of constitutionality of these provisions.

54. In R. v. Craig, 2019 ONSC 6732, Justice Dawe was considering an application in which the Applicants were seeking rulings that Bill C-75’s jury selection amendments did not apply retrospectively to them. Neither of the Applicants intended to challenge prospective jurors for cause, therefore, the argument was focused on the amendments that abolished peremptory challenges in criminal trials. (This case was argued prior to the Supreme Court of Canada considering the issue in R. v. Chouhan, 2021 SCC 26, [2020] S.C.J. No. 101.) Faced with competing decisions on the issue, Justice Dawe stated as follows:

[23] Second, the principle of judicial comity only applies when there is no conflicting prior jurisprudence on the point in issue from courts of coordinate jurisdiction. It is well-settled that courts faced with conflicting decisions from a higher court are entitled “under the rules of stare decisis to follow the ruling they think is the correct one”. The same must also be true when a judge is faced with non-binding conflicting decisions by his or her judicial colleagues. As discussed above, there are now conflicting Ontario Superior Court decisions on the question of whether the elimination of peremptory challenges should be understood as prospective or retrospective. My colleague Bird J. recently held that the amendment operates only prospectively, and this same conclusion is necessarily implied by my colleague Goodman J.’s conclusion that this amendment is unconstitutional. Although a majority of the Ontario decisions to date have reached the opposite conclusion, judicial comity does not compel me to agree with the majority view when other judges of coordinate jurisdiction have already disagreed with it.

[24] Third, it is well settled the principles of stare decisis permit lower courts to depart from otherwise binding higher court decisions “when a new legal issue is raised” that was not considered by the higher court: see Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101 (S.C.C.)at paras. 42-44. If the binding force of stare decisis is relaxed in this situation, the same must necessarily be true of the far looser constraints of judicial comity. In the case at bar, the Applicants have made a s. 11(f) Charter argument that does not seem to have been raised or squarely addressed in most of the previous Ontario cases. The prior judgments that found the elimination of peremptory challenges to operate retrospectively all focused instead on whether this change affects the s. 11(d) right to a fair trial by an independent and impartial tribunal. As I will discuss, the question of whether the change affects the s. 11(f) right to the benefit of a trial by jury raises different issues.

55. There is a fundamental difference between the Reddick decision and the case at bar. This court has clearly ruled that a mid-trial application must happen in this case to protect the Applicant’s Charter rights. Quite the opposite, Justice Akhtar has ruled that allowing a mid-trial application would be an improper and unacceptable “re-write” of this legislation. Given this fundamental difference in the cases, it is the view of this court that the principles of stare decisis do not apply, and that the Reddick decision has no application in the case at bar. This court has already determined that the 276/278 application can be brought mid-trial. This previous ruling puts this case in a very different context from that of the case before Justice Akhtar.

56. Judicial comity applies to cases where the same issues are being addressed. This allows for certainty within the law and proper use of judicial resources. The differences between a pre-trial application and mid-trial application are so significant that stare decisis does not apply in this case. In order to attack the constitutionality of these provisions, the Applicant would need to bring a constitutional challenge that does not solely rely on Reddick.

57. In this case, this court has clearly determined that a mid-trial application is permissible and that a mid-trial application protects the rights of the accused to a fair trial. This ruling stands. While this court was not dealing with a constitutional challenge in the timing application, constitutional considerations were at the heart of that decision and those considerations formed a key part of the analysis. This court devoted a significant portion of the ruling to constitutional issues.

58. The decision in Reddick and the decision of this court on the timing application are diametrically opposed. In these circumstances, principles of stare decisis cannot apply. Therefore, this court does not apply Reddick and its determination of constitutional invalidity.

Plainly Wrong

59. Even if this court found that the issues in Reddick were similar enough in nature to the issues in this case, in other words that the pre-trial vs. mid-trial timing did not make a significant difference, this court would still conclude that Justice Akhtar was plainly wrong, as the decision was made without full consideration of all the necessary issues.

60. The Applicant argued that the burden is on the Crown to establish that the earlier decision is plainly wrong and relies on Sullivan at para. 38. The Crown took issue with this position, suggesting that there really is no burden in this circumstance. The Crown, however, acknowledged that in these situations, where the Applicant asks to apply an earlier decision, certainly it would be the Crown attempting to demonstrate that the earlier decision was plainly wrong. Further, the Crown added that the court would have to make this determination regardless of whether it was raised by the Crown or not.

61. The language of Sullivan does suggest that this is the Crown’s issue to raise. While not explicitly stating that the Crown bears a burden, the words of the Court of Appeal could leave one with that impression. If the Crown does bear such a burden to demonstrate that the decision is plainly wrong, that burden has been met in this case.

62. This court finds that Justice Akhtar did an inadequate assessment of the issues and reached incorrect conclusions, resulting in his analysis being incomplete. His decision is plainly wrong in three respects:

63. Justice Akhtar determined that s. 278.1 was overbroad based on an erroneous interpretation of the legislation;

64. Justice Akhtar failed to do any real analysis of constitutionality in both the pre-trial and mid-trial context before concluding that this legislation was unconstitutional; and

65. Justice Akhtar made an incorrect conclusion concerning the scope and effect of the complainant’s participatory rights.

Overbreadth

63. There was no need for Justice Akhtar to even consider the question of overbreadth in relation to the s. 278.92 framework, since on the facts of Reddick, the items sought to be adduced were unquestionably captured by the legislation. The Applicant sought to cross-examine the complainant on the contents of two video recordings, both of which were clearly of a sexual nature.

64. Despite that factual context, Justice Akhtar unnecessarily considered the scope of what is captured by s. 278.1. At para. 43, he wrote:

[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.

65. In stating this, Justice Akhtar framed things incorrectly. In fact, the wording in s. 278.1 is “….any form of record that contains personal information for which there is a reasonable expectation of privacy…”. The section then lists a number of categories of records that are presumed to contain such information. By misstating the definition of “record” in s. 278.1, Justice Akhtar eliminated the requirement that the record in question contain personal information for which there is a reasonable expectation of privacy before s. 278.92 is engaged.

66. To further demonstrate Justice Akhtar’s incorrect understanding of what is a “record”, he provided two hypothetical examples at paragraphs 47 and 48 of his decision. With respect to the first example involving financial documents, Justice Akhtar failed to recognize that such a document may not meet the definition of “record”.

67. The determination of whether a particular document or piece of information will fall within the definition of “record” in s. 278.1 is fact-specific and contextual. Courts have taken different approaches to determining whether a record contains personal information for which a reasonable expectation of privacy exists. This court recognized some different approaches to this question and ruled that, with the exception of the WhatsApp messages that engaged s. 276 of the Criminal Code, the messages at issue did not meet the definition of “record”. Therefore, the Applicant was not required to disclose them in advance to the Crown or complainant. See: R. v. A.M., 2020 ONSC 1846.

68. Justice Akhtar neither recognized the different interpretations and approaches to assessing reasonable expectation of privacy in the case law, nor engaged in any analysis of what types of records or information would be captured by the section.

69. A proper interpretation of s. 278.1 captures only those records that truly engage a recognized privacy interest. Justice Akhtar’s failure to engage in any meaningful analysis on how to determine whether a record contains personal information for which a reasonable expectation of privacy exists before concluding the definition in s. 278.1 was overly broad renders his conclusion plainly wrong.

70. The Applicant argued that there is no need for this court to consider this portion of Justice Akhtar’s ruling as, in this case, there is no issue surrounding s. 278.92 and, therefore, no reason to consider the proper scope of the definition of “record”. The Applicant stated that this application is a discreet analysis that focuses on the issues that affect A.M., and those issues are disclosure of the application material and the right to participate in the hearing and make submissions. The Applicant further submitted that this court has already ruled that many messages did not meet the definition of “record”. This is no longer a live issue before this court.

71. However, it is the view of this court that in order to consider whether Justice Akhtar was plainly wrong in his analysis, surely this court must look at his reasons as a whole. This was the starting point for Justice Akhtar’s reasons in relation to disclosure and informed his decision going forward to a conclusion of constitutional invalidity.

72. This aspect of Justice Akhtar’s decision was plainly wrong.

Pre-trial vs. mid-trial

73. As for any consideration by Justice Akhtar of the constitutionality of these sections in the context of a mid-trial application, this court agrees with the Applicant that para. 74 of Reddick is a statement by Justice Akhtar that even if such applications were to occur mid-trial, his concerns would not be mitigated. The Applicant also points to the fact that Justice Akhtar in referring to the cases of R.S. and J.J. clearly considered the option of a mid-trial application, and that an absence of analysis of these decisions does not equate to ignoring these decisions.

74. It is the view of this court, however, that Justice Akhtar does not fully consider constitutionality in the context of a mid-trial application, as he finds that it is simply impossible on a plain reading of the legislation.

75. To date there have been no appellate rulings on the appropriate timing of the s. 276/278 application. There is no binding authority requiring a Superior Court trial judge to determine the question of timing one way or the other. Ontario courts have been inconsistent as to when the application can or should occur. Justice Akhtar failed to consider the constitutional issues in the context of a mid-trial application, despite cases that go both ways on the timing issue.

76. In his ruling on constitutionality, Justice Akhtar strongly disagreed with a mid-trial approach to the application. Although he provided some reasons as to why he disagreed with a mid-trial approach, it is the view of this court that those reasons do not properly reflect the language of the legislation and do not recognize other court decisions on this issue. His only reference to the effect of a mid-trial application on constitutionality, at para. 74 of his decision, is vague. This is not a full consideration of the relevant issues.

77. Justice Akhtar’s conclusion that this application must be brought pre-trial is made in the context of his analysis of the problems related to the disclosure of the application material to the complainant, and how trial fairness is impacted negatively by this disclosure. At para. 57, Justice Akhtar talked about the complainant tailoring her evidence to the “revealed defence”, and that the result would be to “significantly weaken the effectiveness of cross-examination…” Justice Akhtar failed to consider other decisions, including an earlier decision this court made, that the effect of disclosure varies depending on when the application is brought: See R. v. A.M. 2020 ONC 4541; R. v. R.S., 2019 ONCJ 645

78. At paragraph 70 of R. v. A.M., 2020 ONSC 4541, this court discussed the difference between pre-trial and mid-trial applications in this context. This court stated:

70 The Crown in the case at bar argued that this is the exact same issue in this case and that the issues have already been decided by Darrach and then by F.A. With all due respect, it is not the same argument at all. The applicant in the case at bar is not challenging the legislation. The applicant in the case at bar is not suggesting that he should not need to follow the procedure as set out in the legislation, including disclosing details to support his application. The applicant in the case at bar is questioning only the timing of when that disclosure should take place. Neither Darrach nor F.A. looked specifically at the difference between a pre-trial and a mid-trial application, and the impact on the rights of the accused and the complainant. Darrach dealt with the requirements of an accused to bring the application setting out detailed particulars and its relevance to an issue at trial, and how that requirement did not violate s. 7 or 13 of the Charter. Darrach talked about the fact that the complainant must not be surprised or ambushed by this type of evidence. However, Darrach did not deal with the differences in the application being brought pre-trial versus mid-trial. In fact, the decision in Darrach does not deal with the timing of the application at all. Further, the s.276 legislation being scrutinized in Darrach did not include the participation of the complainant in the hearing, which is fundamentally changed in the new legislation.

A comparison of para. 57 of Reddick and para.70 of A.M. demonstrates that the decisions are diametrically opposed.

79. Given the inherent differences between pre-trial and mid-trial applications and the different effect each one has on the Applicant’s fair trial rights, Justice Akhtar’s failure to engage meaningfully in his analysis with both possibilities renders his conclusion plainly wrong.

80. The Applicant suggested that Justice Akhtar was not plainly wrong in his conclusions that the legislation does not allow for a mid-trial application, given its plain reading. The Applicant provided the case of Ontario (Attorney General) v. G., 2020 SCC 38, in which the Supreme Court of Canada, in the context of considering Christopher’s Law and its applicability to persons found NCRMD, discussed the concepts of “reading down” and “reading in”. Specifically, in discussing the form and breadth of s 52(1) declarations, the court stated:

[113] Reading down is when a court limits the reach of legislation by declaring it to be of no force and effect to a precisely defined extent. Reading down is an appropriate remedy when “the offending portion of a statute can be defined in a limited manner” (Schachter, at p. 697). Inversely, reading in is when a court broadens the grasp of legislation by declaring an implied limitation on its scope to be without force or effect. Reading in is an appropriate remedy when the inconsistency with the Constitution can be defined as “what the statute wrongly excludes rather than what it wrongly includes” (Schachter, at p. 698, emphasis in original). Severance is when a court declares certain words to be of no force or effect, thereby achieving the same effects as reading down or reading in, depending on whether the severed portion serves to limit or broaden the legislation’s reach. Severance is appropriate where the offending portion is set out explicitly in the words of the legislation. These forms of remedy illustrate a court’s flexibility in responding to a constitutional violation.

[114] However, if granted in the wrong circumstances, tailored remedies can intrude on the legislative sphere. Schachter cautioned that tailored remedies should only be granted where it can be fairly assumed that “the legislature would have passed the constitutionally sound part of the scheme without the unsound part” and where it is possible to precisely define the unconstitutional aspect of the law (p. 697, citing Attorney‑General for Alberta v. Attorney‑General for Canada, 1947 CanLII 347 (UK JCPC), [1947] A.C. 503 (P.C.), at p. 518). If it appears unlikely that the legislature would have enacted the tailored version of the statute, tailoring the remedy would not conform to its policy choice and would therefore undermine parliamentary sovereignty (Schachter, at pp. 705‑6; Hunter, at p. 169). The significance of the remaining portion of the statute must be considered, and tailored remedies should not be granted when they would interfere with the legislative objective of the law as a whole (Schachter, at pp. 705‑15). For example, in Vriend, Iacobucci J. read “sexual orientation” into the Individual’s Rights Protection Act, R.S.A. 1980, c. I-2, because the term was sufficiently precise and because the legislature would rather have included that protection than sacrificed the entire scheme (paras. 155‑60 and 167‑69). In R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, McLachlin C.J. severed part of the tertiary ground for denying bail because the rest of the provision “is capable of standing alone without doing damage to Parliament’s intention” (para. 44). This Court has granted a remedy short of full invalidity of a statutory provision at least 24 times. Nonetheless, a tailored remedy will frequently not be appropriate. This Court has opted to fully invalidate a provision at least 55 times. These include the cases dealing with mandatory minimum penalties referenced above — the goal of a mandatory minimum sentence is to remove judicial discretion, so tailoring the declaration to reintroduce that discretion would distort the provision so that it no longer conformed to its legislative purpose (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 50 and 53).

[115] Lamer C.J. was also conscious of the limitation of the judicial role, explaining in Schachter that tailored remedies should not be granted when they do not “flo[w] with sufficient precision from the requirements of the Constitution”, because although courts are capable of determining what the Constitution requires, they are not well‑suited to making “ad hoc choices from a variety of options” (p. 707).

[116] In sum, consistent with the principle of constitutional supremacy embodied in s. 52(1) and the importance of safeguarding rights, courts must identify and remedy the full extent of the unconstitutionality by looking at the precise nature and scope of the Charter violation. To ensure the public retains the benefit of legislation enacted in accordance with our democratic system, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved (Schachter, at p. 700; Vriend, at paras. 149‑50). To respect the differing roles of courts and legislatures foundational to our constitutional architecture, determining whether to strike down legislation in its entirety or to instead grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature’s intention was such that a court can fairly conclude it would have enacted the law as modified by the court. This requires the court to determine whether the law’s overall purpose can be achieved without violating rights. If a tailored remedy can be granted without the court intruding on the role of the legislature, such a remedy will preserve a law’s constitutionally compliant effects along with the benefit that law provides to the public. The rule of law is thus served both by ensuring that legislation complies with the Constitution and by securing the public benefits of laws where possible.

81. The Applicant suggested that this court consider this guidance from the Supreme Court of Canada in determining whether Justice Akhtar was plainly wrong. Justice Akhtar believed that reading in a mid-trial application possibility would not be in accordance with Parliament’s intent. This court finds this argument very difficult to accept given that a mid-trial application was precisely what the Applicant argued for only a few months ago, but now asks this court to find that Justice Akhtar was not plainly wrong in his finding that to read the legislation in such a way would be contrary to Parliament’s intent and contrary to this recent jurisprudence from the Supreme Court of Canada.

82. In any event, this court, for reasons stated above, does not agree with Justice Akhtar’s quoting of the legislation. The plain wording of the legislation does not preclude a mid-trial application as he stated.

83. Justice Akhtar’s failure to analyze the constitutional issues in the context of both a mid-trial and pre-trial application, makes his decision plainly wrong. The question is not whether, if he considered it, he would have found the mid-trial application did not change his opinion. The problem is that he did not truly consider the constitutional issues in that context at all, which renders his decision plainly wrong.

Participatory rights

84. While there are a number of trial-level decisions that have interpreted s. 278.94(2) to mean that the complainant (or her counsel) have the right to receive the materials filed, cross-examine the affiant, and call evidence, these cases are not binding or dispositive on the question of how the complainant’s right to “appear and make submissions”, as the legislation states, ought to be interpreted. Justice Akhtar failed to engage in any analysis about whether s. 278.94(2) could be interpreted in such a manner as to be consistent with ss. 7 and 11(d) of the Charter by limiting this participation. The provisions do not say that the complainant or her counsel have a right to cross-examine. Certainly, if there is to be cross-examination, the questions would have to be narrow and engage the factors to be considered on the application. A court could restrict cross-examination or determine that it is not necessary at all.

85. Further, Justice Akhtar takes the position that the Crown’s role is lessened by the participation of the complainant and or her counsel. This assumption ignores the duties and responsibilities of the Crown. Even if the complainant is represented by counsel on the application, the Crown will continue to have discussions with the complainant throughout the case and will, in turn, disclose any new or relevant information that emerges from those meetings. The Crown will continue to make decisions based on this consultation process. There is no change to the Crown’s obligations. The Crown can still end the prosecution at any time.

86. The complainant (or her counsel) and the Crown have different roles to play in the 276/278 process. Justice Akhtar takes the position that the Crown can do the job of complainant’s counsel, but this ignores the fact that the complainant may share things with her counsel, someone appointed to represent her interests, that would not be shared with the Crown Attorney. This point of view may assist the court in its determination, particularly concerning the factors in s. 278.92(3). Another relevant point of view, even one that may contradict the Crown, should not be seen as a negative consideration. Justice Akhtar concludes that permitting the complainant to participate in the evidentiary process diminishes the protection afforded to the accused by undermining the role of the Crown. There is no reasoning or analysis supporting these conclusions and there is no obvious connection between the addition of the complainant to the process and the ability for the Crown to carry out its duties. In coming to these conclusions without support or analysis, Justice Akhtar was plainly wrong.

87. Also, Justice Akhtar assumed that if the complainant is represented by counsel, the Crown and the accused will be deprived of knowledge about the complainant’s reaction or explanation relating to the accused’s application, as any discussion with counsel will be privileged. This would appear to assume that the Crown had an obligation to consult with the complainant on the 276/278 application. While this typically may be the case, there was never any obligation in this regard.

88. Justice Akhtar was deeply concerned about the solicitor client privilege that will exist between the complainant and her counsel, information which will not be disclosed to the defence. However, there has never been a prohibition on the complainant obtaining counsel. The legislation providing counsel as a right to the complainant surely does not make it any different than the choice the complainant would have had without that right. Justice Akhtar ignores the reality that the complainant has always had the option to retain counsel – the only difference is that now it is a codified right. The complainant was always at liberty to speak to her own counsel and those conversations would certainly have been privileged.

89. Justice Akhtar’s conclusions on constitutionality are based on a number of assumptions about the scope and effect of the complainant’s participatory rights, without any analysis of whether it is possible to interpret s. 278.94(2) and (3) in a manner that is constitutional. This resulted in a decision made without full consideration.

Other Concerns About Reddick

90. The analysis required here is not whether this court agrees or disagrees with Justice Akhtar’s conclusions. The analysis is whether his failure to consider relevant issues renders the decision plainly wrong.

91. There were other parts of the decision that the Crown took issue with and argued were plainly wrong. However, this court does not agree that those portions rise to that level.

92. For example, the Crown argued that Justice Akhtar failed to consider that it would be open to any court to determine what materials are disclosed to the complainant’s counsel and, in turn, the complainant, as there is nothing stated in the legislation about providing anything. The Crown relied on Justice Breen’s decision in R. v. A.R.S., [2019] O.J. No. 6275 (C.J.), where he held that the court can control a complainant’s access to the defence application. Justice Breen ultimately ordered that counsel for the complainant be provided with a complete copy of the defence application record and the factum, however, could only inform the witness of the specifics of the extrinsic sexual activity sought to be admitted and the extent to which the defence sought to elicit the details of such activity, as opposed to the fact of the activity or the circumstances in which it was reported. It was held that that information would permit the witness to instruct counsel of the impact of such questioning without tainting her evidence.

93. It is unclear how this would protect the information if in fact the complainant chose to attend the hearing which she is entitled to do under the legislation. At that point, she would hear everything. Also, it is unclear what would occur in the case of a self-represented complainant. However, that is not the situation here and is a question for another day.

94. Further, the Applicant pointed to several cases in which the court discussed the concern of witnesses being tainted by being provided with evidence or information about the case. See: R. v. Paris, 2006 CanLII 11655 (ON CA), [2006] O.J. No. 1445 (C.A.), paras. 23-8; R. v. White, 1999 CanLII 3695 (ON CA), [1999] O.J. No. 258 (C.A.), para. 20; R. v. Hillis, 2016 ONSC 450, para. 133; R. v. Gordon, 1998 CanLII 14952 (ON SC), [1998] O.J. No. 4043 (Gen. Div.) at para. 127. The Applicant argued that, based on this jurisprudence, Justice Akhtar is clearly not plainly wrong with respect to his concerns surrounding disclosure. This concern recognized and analyzed by Justice Akhtar is one that has been recognized time and time again by the courts.

95. This court agrees with the Applicant that there is nothing plainly wrong with Justice Akhtar’s decision in this regard.

Conclusion

96. 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”.

97. 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 required 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.

98. For all of the reasons given, this court has concluded that Reddick, and its determination of constitutional invalidity does not apply to the case at bar.

99. In summary, this court finds that the principles of stare decisis do not apply in this case as the context of these two cases are fundamentally different. Justice Akhtar determined that a mid-trial application is impossible on a plain wording of the legislation. On the contrary, this court found in an earlier decision that a mid-trial application is not only possible, but can and should occur in this case. Justice Akhtar’s ruling of unconstitutionality in the context of a required pre-trial application makes the Reddick decision a very different case from the case at bar. It is the view of this court that the issues are not similar or settled as to make principles of stare decisis applicable.

100. Further, even if stare decisis were to apply, it is the view of this court that Justice Akhtar’s decision is plainly wrong in critical areas, as it was made without full consideration.

101. For all of the foregoing reasons, this application is dismissed.

Justice V. Christie

Released: December 23, 2020