COURT FILE NO.: CR-20-87-00
DATE: 2021 03 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Carla Agatiello for the Crown Respondent
- and –
B.G.
Glen Henderson for the Applicant
HEARD: March 5, 2021 by Zoom video conference
PUBLICATION OF ANY INFORMATION THAT WOULD IDENTITY THE COMPLAINANT IS BANNED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. THIS JUDGMENT CONFORMS WITH THIS BAN.
RULING ON CONSTITUTIONAL VALIDITY OF ss. 276(2), 278.92, 278.93 and 278.94 OF THE CRIMINAL CODE OF CANADA
D.E HARRIS J.
INTRODUCTION
[1] The inability of the justice system to better protect individuals victimized by sexual offences has over the last years moved to the top of the social agenda. The modern approach can be said to have begun with the 1982 amendments to the Criminal Code: 1980-81-82-83, c. 125, s. 19. Amongst other measures, the offence of rape was repealed in favour of the offence of sexual assault, a provision shielding complainants from the dredging up of their sexual history was enacted and antiquated evidentiary rules and provisions including the necessity for corroboration were repealed.
[2] The last three years has seen an acceleration in legal reforms since this beginning almost forty years ago. This has been coincident with the rise to public prominence of the “Me Too” movement. In the law, the triumvirate of decisions of the Supreme Court in 2019 stand out as steps along the road forward: R. v. Goldfinch, 2019 SCC 38, [2019] S.C.J. No. 38; R. v. R.V., 2019 SCC 41, [2019] S.C.J. No. 41; R. v. Barton, 2019 SCC 33.
[3] Parliament contributed another chapter in this reform by introducing amendments by way of Bill C-51 in late 2018[^1]. Bill C-51 achieved several objectives in the context of sexual offences. The amendments made changes in the areas of production of the complainant’s personal records and the admission into a trial of sexual history evidence. The general structure of these two areas of production and sexual history in the Criminal Code is similar and relatively simple. The defence, in applying for either production of records or admissibility of sexual history, must clear a first stage screening threshold to ensure that there is at least some degree of merit in the application. If successful, the analysis moves to the second stage in which the judge makes a final determination whether the record or the sexual history evidence ought to be ruled admissible for use at the trial.
[4] Bill C-51 made three main changes to the provisions in the Criminal Code: 1. It consolidated under one provision the admissibility analysis of the two regimes of sexual history and the production and use of personal records pertaining to the complainant; 2. Previously, personal records of the complainant already in the possession of the accused were not caught by the first stage of the statutory regime: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 (S.C.C.), at paras. 94-106; R. v. C. (T.), 2004 CanLII 33007 (ON CA), [2004] O.J. No. 4077, 189 C.C.C. (3d) 473 (Ont.C.A.) at para. 28. Section 278.92 of the Code now specifically applies to a personal record of the complainant in the hands of the accused. Such a record must, along with all other personal records, proceed through both the first stage and second stage of the judicial admissibility analysis under Section 278.93(1) and Section 278.94(4) of the Code; and 3. In Section 278.94(2) and (3), Complainants on the second stage admissibility hearing have been granted the right to “appear and make submissions”, with the assistance of counsel if so desired. This last addition is the major change brought in by Bill C-51.
[5] The Applicant, charged with four sexual offences against the same complainant, argues that these new provisions brought in by Bill C-51 violate Sections 7 and 11(d) of the Charter of Rights and Freedoms by impinging on his right to make full answer and defence and to receive a fair trial. The argument rests for the most part on the judgment of Akhtar J. in R. v. Reddick 2020 ONSC 7156, [2020] O.J. No. 5412 (Ont.S.C.), leave granted March 25, 2021 in which Sections 278.92, 278.94(2) and 278.94(3) were struck down as unconstitutional. Other judges have held to the contrary: for e.g. R. v. R.S., 2019 ONCJ 645, 58 C.R. (7th) 215 (Ont.C.J.), R. v. A.M., 2020 ONSC 4541; 2020 ONSC 8061 (Ont.S.C.); R. v. C.C., 2019 ONSC 6449, 448 C.R.R. (2d) 297 (Ont.S.C.); R. v. A.C., 2019 ONSC 4270, 439 C.R.R. (2d) 360 (Ont.S.C.); R. v. F.A.,2019 ONCJ 391, 56 C.R. (7th) 182 (Ont.C.J.); R. v. M.S., 2019 ONCJ 670 (Ont.C.J.).
[6] The Supreme Court of Canada is scheduled to hear Reddick and a British Columbia trial decision with the style of cause R. v. J.J., 2020 BCSC 291 (B.C.S.C.) in the fall of this year which will likely resolve the constitutional validity of these provisions. In these circumstances, from a pragmatic point of view, there is no purpose in undertaking a comprehensive analysis of the issues. These reasons are to resolve the principal constitutional issues raised by the Applicant in preparation for the second stage hearing in this prosecution scheduled to commence next month.
[7] As there are judgments pro and con from the Ontario Superior Court with respect to the constitutionality of the new legislative framework, there is no need to determine whether Reddick is “clearly wrong.” I can choose the preferred result without applying this standard: R. v. Sullivan, 2020 ONCA 333 (Ont.C.A.) at para. 38.
[8] In the end, I side with the judges who have taken the view that the legislative scheme is constitutional in its entirety. In my opinion, this result is largely dictated by the Supreme Court of Canada’s previous judgments in R. v. Mills 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68 (S.C.C.) considering the constitutional validity of the production of private records provisions in the Criminal Code and R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443 upholding the sexual assault evidentiary shield in Section 276.
BACKGROUND
[9] There has previously been a stage one hearing in which it was determined that some material did not fall into the definition of a “record” in Section 278.1 and therefore admissibility was to be analyzed under the common law. Other material in third party hands did constitute a record and its admissibility will have to be determined under the second stage in Section 278.94. Lastly, there was sexual history evidence which cleared the first stage hurdle but admissibility remains to be evaluated under Section 278.94 in the second hearing stage: R v. B.G, 2021 ONSC 83 (Ont.S.C.).
SUMMARY OF THE CONSTITUTIONAL ARGUMENTS
[10] Breaking down the constitutional complaints, there are a total of three major constitutional flaws identified in Reddick and relied upon by the Applicant. They are the overbreadth of the definition of “record” in Section 278.1 within the production sections of the Criminal Code; the complainant’s standing and participation in the second stage admissibility voir dire; and the required disclosure of the accused’s application to produce records or sexual history evidence to the complainant, allegedly permitting the tailoring of evidence to avoid testimonial impeachment.
THE PURPOSE OF BILL C-51
[11] Before examining the alleged constitutional flaws, it is helpful to examine the general purpose of the new legislation and, in particular, the purpose of giving the complainant the right to make submissions on admissibility. There are three intertwined purposes, all of which are extension of principles and values to be found in the Supreme Court of Canada’s previous jurisprudence pertaining to evidence of a complainant’s personal records and sexual history.
[12] First, on the most general level, one purpose of opening the admissibility decision to the complainant’s direct participation is to ameliorate the past maltreatment of complainants in sexual offence cases. This problem has been recognized for many years. Twenty-years ago, the Supreme Court of Canada in Mills said at paras. 58,
The history of the treatment of sexual assault complainants by our society and our legal system is an unfortunate one. Important change has occurred through legislation aimed at both recognizing the rights and interests of complainants in criminal proceedings, and debunking the stereotypes that have been so damaging to women and children, but the treatment of sexual assault complainants remains an ongoing problem. If constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament's attempt to respond to such voices.
[13] Second, the purpose of allowing complainant participation in the admissibility voir dire is to recognize and give positive value to her privacy interests as they come into conflict with the accused’s right to a fair trial. In R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 (S.C.C.), Justice Cory wrote at para. 34:
The provisions of s. 15 and s. 28 of the Charter guaranteeing equality to men and women, although not determinative should be taken into account in determining the reasonable limitations that should be placed upon the cross-examination of a complainant. It is only right that reasonable limitations be placed upon such cross-examination. A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.
[14] Justice Binnie later said in Shearing,
110 Compelling KWG to answer questions about entries made in her teenage diary would force her to testify about aspects of her private life and negate her desire to determine for herself when, how and to what extent personal and private information is disclosed to others.
[15] In Mills, the Court said in addressing the purpose of the production scheme as a whole,
81 The significance of … privacy concerns should not be understated. Many commentators have noted that privacy is also necessarily related to many fundamental human relations. As C. Fried states in "Privacy" (1967-68), 77 Yale L.J. 475, at pp. 477-78:
To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust and affection is at the heart of our notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions, as oxygen is for combustion.
…This Court recognized these fundamental aspects of privacy in R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, where Sopinka J., for the majority, stated, at p. 293:
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
96 In enacting Bill C-46, Parliament was concerned with preserving an accused's access to private records that may be relevant to an issue on trial, while protecting the right to privacy of complainants and witnesses to the greatest extent possible.
[16] The observations by the Court at paragraphs 77-89 are exclusively focused on exploring the importance and extent of complainant’s privacy rights in sexual offence cases. Also see paragraphs 61-62, 71, 91-94, 108. The complainant’s privacy interest has been recognized since at least the time of R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62 (S.C.C.) at paras. 29-31.
[17] The specific purpose of Bill C-51 to enhance protections for the privacy and dignity of complainants is clear. It was said during the process leading to the passing of the Bill,
…it acknowledges the privacy interests of a complainant. While privacy interests do not trump all else, the regime seeks to acknowledge that victims of sexual assault and other related crime, even when participating in a trial, have a right to have their privacy considered and respected to the greatest extent possible.[^2]
[18] Lastly, making a trial more open and sensitive to the input of a complainant may hopefully defuse the alienating and forbidding milieu of a sexual offence trial. The justice system has struggled with this reality for many years and it has only become more acute. How can the significant problem of sexual offences be eradicated when the prosecution in court presents a terrifying ordeal for those who have been victimized? Encouraging complainants to come forward and report is a vital objective in light of the historic repression of sexual offence complainants.
[19] Chief Justice Lamer said in R. v. L.(D.O.), 1993 CanLII 46 (SCC), [1993] S.C.J. No. 72 (S.C.C.) at para. 30, in upholding the videotaping of children’s evidence provisions in Section 715.1 of the Code,
The innate power imbalance between the numerous young women and girls who are victims of sexual abuse at the hands of almost exclusively male perpetrators cannot be underestimated when “truth” is being sought before a male-defined criminal justice system. […] We cannot disregard the propensity of victims of sexual abuse to fail to report the abuse in order to conceal their plight from institutions within the criminal justice system which hold stereotypical and biased views about the victimization of women. […] We live in a society which continues to blame even the most innocent of victims.
[20] Also see Seaboyer at para. 30. The Supreme Court has recently emphasized the importance of encouraging sexual offence reporting: Barton, para. 58; Goldfinch, paras. 37, 48; also see Mills, para. 59. Being more sensitive and receptive to the emotional well-being and the proper treatment of complainants is critical to regain the confidence of the public and of women in particular.
IS THE RECORDS PROVISION OVERBROAD?
[21] Turning to the first constitutional complaint, Section 278.1 defines a “record” and then Section 278.93 sets out the first stage test that a judge must apply under the production regime. If successful, Section 278.94 mandates the second and final admissibility stage. The criteria to be applied at both stages are found in Section 278.92.
[22] The Applicant argues that the definition of record is of such breadth that it would catch innocuous documents such as phone bills and bank records. The definition of record is found in Section 278.1 of the Criminal Code:
For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
(Emphasis Added)
[23] As a preface to examining the constitutional argument, it should be said that the spectre of “innocuous” records being encompassed by Section 278.1 is not likely correct. To take one illustration, Justice Schreck (as he then was) in R. v. W. (S.), 2015 ONCJ 562, [2015] O.J. No. 5300 (Ont.C.J.) held that a phone call between the parties evidenced on a phone bill does not intrude on the complainant’s privacy interest and trigger Section 278.1. It must be “personal information for which there is a reasonable expectation of privacy”: see R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 (S.C.C.) at paras. 27-29. Privacy interests vis a vis the state are quite different that a complainant’s privacy interest vis a vis the accused.
[24] With respect to the purported constitutional problem, the Applicant relies on Justice Akhtar’s conclusion in Reddick at para. 49,
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.
[25] There are several flaws in the Reddick reasoning on this issue. First, the declaration that the provision is unconstitutional for overbreadth is not available as a matter of stare decisis. The Supreme Court in Mills upheld the entire production of records scheme applicable in sexual offence proceedings, including the definition of records in Section 278.1. The Court rejected the same overbreadth argument raised now, saying at paragraph 99,
… the legislation applies only to records "for which there is a reasonable expectation of privacy" … Only documents that truly raise a legally recognized privacy interest are caught and protected: see R. v. Regan (1998), 174 N.S.R. (2d) 230 (S.C.). The Bill is therefore carefully tailored to reflect the problem Parliament was addressing -- how to preserve an accused's access to private records that may be relevant to an issue on trial while protecting, to the greatest extent possible, the privacy rights of the subjects of such records, including both complainants and witnesses. By limiting its coverage to records in which there is a reasonable expectation of privacy, the Bill is consistent with the definition of s. 8 privacy rights discussed above. Moreover, as will be discussed below, the mere fact that records are within the ambit of Bill C-46 will not, in itself, prevent the accused from obtaining access to them. Applied in this way, ss. 278.1 and 278.2(1) will not catch more records than they should, and are not overly broad.
[26] Justice Akhtar recognized that Mills held that the provision was not overly broad. His departure from Mills as expressed in paragraph 46 of his reasons rested on the basis that the new provision in Section 278.92(1) extends the production scheme to records even if held in the possession of the accused. The record must be produced by the defendant in order to be subjected to the two-stage scrutiny established by the legislation. However, as can be seen from the quote above from Mills and the other discussion on this issue by the Supreme Court between paragraphs 97-101, the protective objectives behind the legislation are not altered by the fact of the accused’s possession. As Justice Chapman said in M.S.,
43 Equally clear is the notion that the mere fact that the accused has possession of the document in question does not in and of itself extinguish the complainant's privacy interest in the document. This was found to be the case prior to the amendments.
[27] The purpose of extending the two-stage production and admissibility procedure to records even if in the possession of the accused was to plug the hole in the legislative scheme which Shearing exposed. Shearing authorized an admissibility voir dire for the complainant’s diary. But the first stage of the production regime in the Criminal Code did not apply because the diary was already in the accused’s possession. There is no valid reason why the accused’s possession of the records ought to be permitted to circumvent the safeguards for the complainant and the judicial process itself. As Justice Binnie held in Shearing, modern privacy rights are independent of property rights: see paras. 87-93. The privacy interest of the complainant is not altered depending on who is in possession of the record: C.C. at para. 73. The waiver of the complainant’s privacy interest under Section 278.2 may be affected on the facts of a particular case depending on who is in possession of the record but that is quite a different matter.
[28] The essence of the Reddick judgment on overbreadth is in direct contradiction to the conclusions of the Supreme Court in Mills. Part of the reason might be that Justice Akhtar’s statement that the 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” (emphasis added) casts the purpose of the legislation too narrowly. As outlined above, the Supreme Court was at great pains throughout Mills to emphasize that it is the privacy rights of complainants in the broadest sense which was at the heart of the production of records legislative framework.
[29] Confining the legislation to the purpose of dispelling myths and stereotypes distorts the constitutional analysis. With respect to the reflection in Reddick that a defendant should be able to proceed without disclosing anything in advance just like in any other type of case, the rejoinder is again found in Mills. The Court quoted from its earlier judgment in M. (A.) v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157, at paragraph 30, saying
91 … The intimate nature of sexual assault heightens the privacy concerns of the victim and may increase, if automatic disclosure is the rule, the difficulty of obtaining redress for the wrong. The victim of a sexual assault is thus placed in a disadvantaged position as compared with the victim of a different wrong.
[30] The sexual offence context is, as shown by the complex legislative provisions in Sections 276, and in 278.1 through Section 278.97, fundamentally different than other offences. The Supreme Court also recognized this in Osolin: see para. 33.
[31] For these reasons, in my view, the definition of records in the legislation is not overbroad. The constitutional attack in this respect must fail.
DOES THE COMPLAINANT’S STANDING AND PARTICIPATION IN THE VOIR DIRE RENDER THE LEGISLATION UNCONSTITUTIONAL?
[32] The major innovation brought in by Bill C-51 was to give the complainant standing and a right to make submissions upon the second stage of the admissibility voir dire. Section 278.94(1) to (3) reads,
(1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.
(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.
(Emphasis Added)
[33] The Applicant argues in his factum,
Like defence counsel, counsel for the complainant must be a zealous advocate for his or her client. This, it is submitted, is an unconstitutional disruption of balance struck between the Crown and defence at a criminal trial, especially because the complainant’s enhanced standing impacts a core function of trial proceedings: the determination of what evidence is admissible.
Thus, in a criminal trial, a complainant may advance interests adverse to both the Crown and defence, which, at the very least, is an unnecessary and unwarranted complication, and which, it is further submitted, is at its end an unconstitutional interference with an accused person’s right to a fair trial and his or her right to make full answer and defence. The complainant, it is submitted, has no proper role to play in determining what evidence is or is not admissible, especially when the complainant may eventually be cross-examined on that very same evidence.
[34] In Justice Akhtar’s reasons, this was the main constitutional infringement caused by Bill C-51. He put it this way,
89 The office of the Crown is an integral, fundamental part of our criminal justice system which, as the applicant strenuously argues, is looked to by accused persons and the court to provide essential safeguards in the justice system. The Crown's function has been acknowledged as constitutionally entrenched: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339, at para. 46.
91 I agree with the applicant that the effect of the amendments is to elevate the complainant from the role of an integral witness in the Crown's case to that of a party who is entitled to advance disclosure of records pertaining to an accused's line of questioning as well as their defence. As noted, the complainant is entitled to participate in the admissibility voir-dire, question the accused, and make submissions to exclude evidence which the accused claims will undermine their credibility.
102 … The amendments are a fundamental alteration to the way in which sexual assault trials are prosecuted. Nor do I agree … that prosecutorial independence is not threatened by this change because the Crown retains the responsibility of launching and discontinuing the prosecution of the accused or proving the case against them. The Crown's role as minister of justice encompasses far more than the start and end of a prosecution: it continues throughout the trial, at every stage, including that of dealing with defence applications and evidentiary issues.
103 Troublingly, the current framework allows the complainant and their representative to potentially ignore the Crown's conclusion in a given case that the proposed defence evidence and/or cross-examination is admissible. It permits the complainant to oppose the defence application thereby potentially setting up a dispute that pits them against the Crown--the very institution responsible for prosecuting the charges. Leaving aside the Charter consequences, this development does nothing to enhance the administration of justice.
104 Moreover, as previously described, under ss. 278.94(2) and (3), the complainant has access to the accused's affidavit and defence, as well as to legal representation providing confidential advice on that information.
105 Finally, the complainant would be present if an accused testified, be able to hear their entire voir-dire testimony, and have the right to cross-examine them with the aim of excluding evidence that might be used to undermine the complainant's account. The fact that the complainant might choose not to exercise this right, as suggested in A.C., does not make the provisions any less unconstitutional.
[35] In my view, this concern is significantly overblown. Granting the complainant the right to make submissions concerning her own privacy and dignity in no way supplants or trespasses on the executive function of the Crown in a criminal proceeding. Parliament decided to give complainants’ a voice in the determination of what records and evidence of her past sexual history are admissible. The complainant is in the best position to articulate the impact and potential prejudice upon her. This was a perfectly rational and natural step in the evolution of our procedural protections for sexual offence complainants. Parliament, in coming to terms with the privacy, dignity and equality rights at stake, brought complainants directly into the process and gave them a right to be heard. In light of the antiquated attitudes long prevalent with respect to sexual offences, this was a reasonable step forward to correct a historical imbalance.
[36] The right to make submissions is just that and no more. The voir dire judge must still apply the legislation and, as with all legal argument, may find the submissions of the complainant persuasive or not. Critically, the judge remains the exclusive evidentiary gatekeeper: Barton, at paras. 68 and 197; Goldfinch, at para. 75; R.V., at para. 71. This obligation is not compromised or qualified in any way. In so far as the argument of the Applicant implies that trial judges may lack the capability to discard arguments likely to deprive the accused of the right to full answer and defence, this must be rejected. Trial judges perform this type of function day in and day out. There is nothing unique in this context which suggests that the complainants’ submissions could have the tendency to pull the wool over a judge’s eyes. Judges have the necessary independence to properly perform their job when it comes to private records and sexual history.
[37] A conflict between the position of the Crown and the complainant with respect to admissibility as hypothesized by Justice Akhtar at paragraph 103 of Reddick does not alter this conclusion.
[38] Submissions whether made by the Crown or defence are not binding on a trial judge. A trial judge’s discretion remains unfettered. Complainants’ submissions might prompt an additional duty to give reasons but accountability in this area is to be encouraged and should be seen in a a positive light. The legislation already stipulates that reasons must be delivered with respect to the admissibility decision: Section 278.94(4) and (5). Providing reasons responsive to the complainant’s interests is not unduly onerous and can only contribute to public confidence that the spectrum of interests, including that of the complainant, have been properly considered and weighed.
[39] Nor does giving the complainant participatory rights interfere, impair or detract from the Crown’s role in prosecuting criminal offences. The complainant provides another perspective. As Ms. Agateillo argued on behalf of the Crown, Section 276(3) of the Code contains several factors upon which the complainant has a personal interest and can best present to the trial judge. These factors in Section 276(3) include,
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant's personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law
[40] The Crown’s responsibilities remain intact and uncompromised by giving the complainant a say on the admissibility of her records and sexual history. Those Crown responsibilities include the decision whether to bring the prosecution of a charge laid by police, whether to enter a stay of proceedings in either a private or public prosecution, accepting a guilty plea to a lesser charge, withdrawing from criminal proceedings altogether, the decision to pursue a dangerous offender application, deciding to proceed summarily or by indictment, and the decision to initiate an appeal, amongst other things: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167 (S.C.C.) at paras. 44; Krieger v. Law Society (Alberta) (2002), 2002 SCC 65, 4 C.R. (6th) 255, 217 D.L.R. (4th) 513, 168 C.C.C. (3d) 97 (S.C.C.) at para. 46. The involvement of the complainant or counsel on their behalf does not alter or infringe on the decision making responsibility of the prosecution.
[41] It is not unprecedented for a party other than the Crown or defence to participate in a criminal proceeding. Although there are obvious differences, a model for complainant input into the admissibility decision is that of intervenors in appellate proceedings. Intervenors are permitted the right to make submissions in appellate courts if the intervener: 1. Has a real and substantial interest in the proceeding; and 2. Is able to make submissions which will be useful and different from the other parties. A fresh perspective can be of assistance to the court: Reference re Workers' Compensation Act 1983 (Nfld.) 1989 CanLII 23 (SCC), [1989] S.C.J. No. 113, [1989] 2 S.C.R. 335 (S.C.C.); Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. 1990 CanLII 6886 (ON CA), [1990] O.J. No. 1378, 74 O.R. (2d) 164 at 167 (Ont. C.A., Chambers); Sopinka and Gelowitz on the Conduct of an Appeal, 4th Ed. (Sopinka, Gelowitz, Rankin) (online), PART III:— APPELLATE PROCEDURES, Chapter 8 Intervention on Appeal, Sections A,B, and D.
[42] Following along with the analogy, a complainant will always have a pressing interest because it is her or his privacy rights and sexual history which are at issue. The useful and different perspective is based on the same ground. A complainant is in the best position to speak to the prejudice that disclosure and evidentiary use at trial of the evidence may have upon her privacy and security rights.
[43] It is interesting to note that when the first version of the sexual offence shield provision was being constitutionally scrutinized in the Seaboyer and Gayme case, the Ontario Court of Appeal permitted intervention by Legal Education and Action Fund (LEAF). Chief Justice Howland permitted the LEAF intervention, concluding that although LEAF would be supporting the same position as the Attorney General, LEAF, “by reason of its special knowledge and expertise, may be able to place the issue in a slightly different perspective which will be of assistance to the Court.”: R. v. Seaboyer, (1986) 1986 CanLII 7320 (ON CA), 50 C.R. (3d) 395 (Ont. C.A.). The case to allow the input of complainants into the admissibility of trial evidence involving their own privacy is substantially more compelling.
[44] Besides the purely functional benefit of having the complainant speak to her own privacy concerns, there is real value in granting the complainant participatory rights in the adjudication of matters which could profoundly affect her own autonomy and well-being. Parliament made the judgment in enacting the legislation that as a stakeholder, a complainant should be given a seat at the table.[^3] This legislative judgment must be respected unless it significantly detracts from the right to full answer and defence and the right to a fair trial.
[45] Justice Akhtar in Reddick assumes that the complainant will have a right to cross-examine the accused on the admissibility stage governed by Section 278.94 (see paras. 91 and 105). The Applicant echoes this in his submissions. I do not agree. The legislation, although granting the complainant informational and implementation rights to counsel in Section 278.94(3), and the right to make submissions (ss. 2), makes no mention of a right to cross-examine. A plain reading of the legislation does not support that the complainant can cross-examine or call evidence. As was said in Sullivan on the Construction of Statutes, 6th Ed.,
§8.55 Expressio unius is based on a reader's legitimate expectation that the text in question will refer to a particular thing expressly. When this expectation is not met, when the text is silent with respect to the thing in question, interpreters infer that the silence was deliberate: the thing is not mentioned because the legislature intended to exclude it. This inference is based on the presumptions of perfection, consistent expression and orderly arrangement.
§8.90 An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. As Laskin J.A. succinctly put it, "legislative exclusion can be implied when an express reference is expected but absent". [University Health Network v. Ontario (Minister of Finance), 2001 CanLII 8618 (ON CA), [2001] O.J. No. 4485, at para. 31 (Ont. C.A.)]. The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.
[46] The right to made submissions is expressly provided in the legislation. The right to be involved in the adducing of evidence is not. There are many provisions in the Criminal Code providing the right to cross-examine a witness: see e.g. Sections 117.13(2), 145(10), 320.13(3), 347(6) amongst others. There should be a reluctance to conclude that the omission of a right of cross-examination was anything other than deliberate on Parliament’s part. Granting the complainant a right to cross-examine would be a major and novel departure from the two party structure of a criminal trial with the Crown and the defendant locked in adversarial combat. The Criminal Code often differentiates between evidence and submissions: see for e.g. Section 650(1.1) not permitting the calling of “evidence from witnesses” without the accused present but allowing all other aspects of a trial to proceed. Having a role in shaping evidence is qualitatively different than the right to make submissions.
[47] If the complainant has a right to cross-examine, a defendant would have to face, in evidence, not only the Crown but the complainant as well. That has both the appearance and the reality of unfairness. I do not agree with other judges who have concluded that to make a complainant’s standing “meaningful” there must be a right of cross examination of the accused on the voir dire: A.C., at paras. 68-69; R. v. Boyle, [2019] O.J. No. 155 (Ont.C.J.) at para. 42; F.A. at para. 71. This is far too generic a reason to depart from fundamental principles of criminal procedure in the absence of clear and specific legislative direction.
[48] Without going through a full analysis, there is every reason to believe that a right to cross-examine would be unconstitutional. I do not believe that there are two interpretations available of the legislation, but if there are, the one rendering the legislation constitutional would have to prevail: Mills, para. 22; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038 (S.C.C.) at p. 1078. In summary, I conclude that the complainant has no right to cross-examine the accused on a Section 278.94 hearing. Evidentiary matters lie in the exclusive purview of the Crown.
[49] In addition, although unnecessary to decide here, I am not certain that as Justice Akhtar suggests at para. 105 the complainant would necessarily always be present for all of the accused’s testimony and the other proceedings on the voir dire. Section 278.94(2) states that the complainant has the right to appear and make submissions. Within the parameters of the legislation, the judge still has the powers necessary to control conduct of the second stage voir dire. It is conceivable that a judge could exclude the complainant for part of the proceeding.
[50] In the end, I agree with Justice Doody’s suggestion that the complainant’s right to make submissions guarantees, unlike the situation before the amendments, that the trial judge will hear her perspective. He concluded in upholding the legislation in R. v. Barakat 2021 ONCJ 44 at paras. 61-64 that the former legislation relied on the Crown as a conduit for the complainant’s privacy interests. If there was an admissibility concession by the Crown, the complainant’s perspective might never have been heard by the judge. Furthermore, the process would be “opaque” to the complainant, a serious obstacle to developing a degree of “buy in” to the decision. The new amendment bolsters the complainant’s and the public’s confidence in the inclusivity and integrity of the process.
[51] In conclusion, in my view, giving a complainant the right to appear and make submissions is not a violation of the accused’s Section 7 or Section 11(d) rights.
DOES DISCLOSURE TO THE COMPLAINANT VIOLATE THE ACCUSED’S RIGHT TO A FAIR TRIAL?
[52] The third major branch of the Reddick decision declaring the legislative scheme unconstitutional was because Sections 278.92(1) and 278.94(2) and (3) mandate disclosure to the complainant of the defendant’s application to admit records or sexual history evidence. It should be noted that the former Section 278.3(5) already required an application for production of records be served on the complainant in advance of the application.
[53] As Justice Akhtar recognized, this issue of losing the advantage of surprise in the context of sexual history evidence was specifically considered by the Supreme Court of Canada in R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443 upholding the evidentiary shield in Section 276 of the Code. However, in my view, contrary to Justice Akhtar’s opinion, Darrach is definitive on this issue. The advance disclosure of the application and the loss of the element of surprise has already received the Supreme Court’s stamp of constitutional approval.
[54] Justice Akhtar wrote,
55 … in the s. 276 context, the defence was already under an obligation to disclose evidence they sought to adduce and reveal details of their defence. Here, the applicant concedes that the text messages and video recordings he seeks to adduce would fall within the prior regime and would have to be disclosed to the Crown and the court notwithstanding s. 278.92.
56 However, the difference is that ss. 278.92(1) and 278.94(2) and (3) mandate that disclosure be made to the complainant. The risks to the fairness of the trial are obvious.
57 First, as the applicant argues, the complainant is provided with an opportunity to tailor their evidence to the revealed defence. The result would be to significantly weaken the effectiveness of cross-examination conducted by the accused.
58 The critical value of a meaningful cross-examination cannot be overstated: R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 663. It is also trite law that the right to cross-examine is a s. 7 Charter protected right: R. v. Lyttle, 2004 SCC 5, [2004] 1 SCR 193, at para. 43.
60 The respondent points out that under the Darrach procedure the Court envisaged the complainant having knowledge of the accused's defence prior to testifying. At para. 55, the Court reasoned that the accused's affidavit had to be provided to the Crown "in part to allow the Crown to consult with the complainant".
61 I agree that upon receipt of the accused's affidavit, the Crown would be obligated to consult with the complainant on its contents, and negligent if it did not do so. However, there is a clear difference between, on the one hand, consultation of proposed sexual activity evidence and, on the other, disclosure of the accused's defence. When consulting, the Crown could not provide the entire affidavit and defence to the complainant. To do so would potentially taint the complainant as a witness and diminish their credibility when they testified.
62 I also believe that the Court's definition of "consult" was meant to be necessarily narrow. It did not entail the complainant's receipt of the accused's affidavit and defence, the right to retain counsel and receive legal advice on the evidence sought to be adduced. Nor, in my view, does the term "consult" envisage the complainant's presence when the accused testifies on the voir-dire or the right to cross-examine. In other words, the provisions extend far beyond what was envisaged by the Supreme Court of Canada.
(Italics emphasis added; underlining emphasis in the original)
[55] It is important to carefully examine the holding of the Supreme Court in Darrach that Justice Akhtar is referring to in these passages. Justice Gonthier for the Court in Darrach referred to the basic rule that the proponent of evidence sought to be adduced, the accused in this case, has the burden to demonstrate that it is relevant and admissible. The requirement to furnish an affidavit containing the evidence does not amount to a legal compulsion for the accused to testify and incriminate himself on the voir dire. It is an admissibility hearing, not the trial at large, and although the accused may have a tactical obligation to come forward in evidence, there is no legal onus (see paras. 46-53).
[56] Justice Gonthier than wrote,
54 The accused specifically objects to having to submit the affidavit on the grounds that it compels him to reveal his defence and to disclose evidence he hopes to call at trial. He claims that this violates his right to silence…
55 Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. For the reasons given above, the accused is not forced to embark upon the process under s. 276 at all. As the trial judge found in the case at bar, if the defence is going to raise the complainant's prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush. The Crown as well as the Court must get the detailed affidavit one week before the voir dire, according to s. 276.1(4)(b), in part to allow the Crown to consult with the complainant. The Crown can oppose the admission of evidence of sexual activity if it does not meet the criteria in s. 276. Neither the accused's s. 11(c) right not to be compelled to testify against himself nor his s. 11(d) right to be presumed innocent are violated by the affidavit requirement. This is borne out by the way in which the admissibility procedure operates.
(Emphasis Added)
[57] This passage authorizes detailed notice of sexual history evidence to the Crown and then authorizes the Crown to share it with the complainant. I agree with Ms. Agatiello that there is no basis for the conclusion in Reddick that the Supreme Court was using “consult” in a narrow sense in this passage. That the Crown before Bill C-51 was enacted would not provide the entire affidavit of the accused to the complainant is an erroneous supposition. The Crown would be permitted if not professionally obligated to review all material aspects of the application with the complainant. Furthermore, as pointed out in several of the decisions, the complainant was always free to consult with her own counsel even before the enactment of Bill C-51: F.A. at para. 66.
[58] More importantly, the general concern about prejudice arising from losing the element of surprise, as seen in the quotation from Darrach, was pointedly rejected by Justice Gonthier. Evidently the Court was of the view that the salutary benefits of the procedural scheme outweighed the deleterious effects which may befall the accused from the legal obligation to provide detailed particulars. Full answer and defence is not denied or infringed by this requirement. That determination is binding on the lower courts.
[59] There is no persuasive basis on which to distinguish Darrach. Consultation with the Crown as authorized by Darrach before the amendments is not materially different than solicitor client communications with the complainant’s own counsel after the amendments. Complainant’s counsel lacks the quasi-judicial function of the Crown but, like the Crown, is bound by the rules of professional ethics.
[60] The timing of the Section 278.94 admissibility hearing has been the subject of considerable debate in the cases. Justice Breen in R.S., at paras. 83-92, Justice Christie in A.M. and Justice Duncan in J.J found that the constitutionality of the legislative scheme is dependant on the application being made during the complainant’s examination in-chief, by this means ensuring she is not tipped off about what is likely to come in the defence cross-examination. In my view, as stated, the comments of the Supreme Court of Canada in Darrach decrying “defence by ambush” of the complainant are conclusive authority against keeping the complainant in the dark concerning the contents of the application until she is in the midst of defence cross-examination.
[61] Furthermore, I agree with Justice Chapman’s judgment in M.S. that the mischief to the trial process which would be produced by mid-trial applications makes it unworkable in practice. Resolution of Section 278.93 and 278.94 applications could be significantly delayed with the jury languishing for days waiting for the trial at large to resume. Justice Chapman wrote,
97 If the 7 days notice requirement stipulated in the Criminal Code means that the defence can bring their application at the close of the complainant's evidence then what is the point in the stipulation of 7 days? Realistically this would mean that many sexual assault trials will take place on a bifurcated basis. First the complainant would testify in-chief. Then the application would be brought. And then the application would be heard and decided at stage one. At that point, the trial would be adjourned to facilitate the complainant's right to obtain counsel. The trial would then resume at some later point with a stage 2 hearing. Then, once that is argued and decided, the trial will continue. This is unmanageable and not at all what Parliament intended.
[62] The majority in Mills emphasized that with respect to the notice with respect to production of records, fairness to the accused required that the application be held and decided well before trial: see para. 145. The judgments endorsing a mid-trial application during the complainant’s testimony propose an unwieldy solution which will often lead to intolerable chaos, particularly in jury trials. While the Supreme Court was concerned in Mills that the lead time may be too short, these judgments would allow no lead time whatsoever. If the judges who adopt this mid-trial position are correct that without this timing being read-in, the legislative scheme is unconstitutional, the fact remains that the proposed solution to the problem will cause major delays and other problems. This includes potential unfairness to the accused as suggested by Mills. It is quite clear from the jurisprudence and the notice period itself that this “on the fly” approach is contrary to the legislative intention.
[63] This does not mean that the judicial decision with respect to production of private records and sexual history evidence may not have to be revisited during the trial. It is inescapable that this will occur on occasion. This eventuality has been expressly recognized by the Supreme Court in R.V. at para. 74 and Barton at para. 65. But a case management judge hearing an application in advance of trial is in a good position to foresee possible contingencies and lay out a road map to assist the trial judge and expedite possible reconsideration if it becomes necessary in the course of the trial.
CONCLUSION
[64] The new amendments of Bill C-51 are constitutionally valid. For these reasons, the application is dismissed.
D.E HARRIS J.
Released: March 26, 2021
COURT FILE NO.: CR-20-87-00
DATE: 2021 03 26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
B.G.
Applicant
D.E HARRIS J.
Released: March 26, 2021
[^1]: Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, 1st Sess., 42nd Parl.. Royal assent on December 13, 2018.
[^2]: Marco Mendicino, former Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib., House – Concurrence at Report Stage, December 11, 2017; also see 53 Hon Senate – Standing Committee on Legal and Constitutional Affairs. Jody Wilson-Raybould, former Minister of Justice and Attorney General of Canada, Lib., June 20, 2018.
[^3]: Pam Damoff, Oakville North—Burlington, Lib., House – Debate at Second Reading of C-51, June 15, 2017. “These proposed amendments strengthen our already robust sexual assault provisions by clarifying and bolstering the law and facilitating its proper application. This is just one response to a complex issue that has raised significant concern over the past decades. Complainants continue to lack confidence in the criminal justice system, as reflected in the fact that the vast majority of sexual assaults go unreported, and when they are reported to the police, the vast majority never make it to trial.”