Court File and Parties
COURT FILE NO.: CR-20-87-00 DATE: 2021 03 31
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 30, 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 DEFENCE ADJOURNMENT REQUEST
D.E HARRIS J.
[1] On March 26, 2021, I released my ruling upholding the constitutional validity of Criminal Code subsections 278.92, 278.94(2) and 278.94(3): R v. B.G., 2021 ONSC 2299 (Ont. S.C.). Mr. Henderson, counsel for the accused, now makes application for an adjournment of the two-week judge alone trial scheduled for April 12, 2021 for the purpose of awaiting the decision of the Supreme Court on this same issue. As I noted in the constitutional ruling, there are two cases which are scheduled to be heard in the Supreme Court in the fall on a date that remains to be determined: R. v. Reddick 2020 ONSC 7156, [2020] O.J. No. 5412 (Ont.S.C.) and R. v. J.J., 2020 BCSC 291 (B.C.S.C.), R. v. J.J 2020 BCSC 349 (B.C.S.C.)
[2] I denied the adjournment request at the hearing and these are my reasons for doing so. The factors which convinced me that an adjournment would not be in the public interest are these.
[3] The issue of delay is a major weight against granting an adjournment. The Supreme Court argument in Reddick and J.J. is at least six months away. The decision could, as is typical, not be delivered for six months after the oral hearing. The total waiting period could be a year. I suspect that there is a good chance the Supreme Court, no doubt aware of the extreme havoc this issue is causing in the trial courts across the country (and which led them to take the exceptional step of granting leave directly to the Court from two interlocutory trial decisions), may release a bottom line decision from the bench directly after the oral hearing as they did in comparable circumstances in R. v. Chouhan, 2021 SCC 26, [2020] S.C.J. No. 101 (S.C.C.). Nonetheless, the point is that the delay will be at least six months or possibly longer.
[4] Our jurisdiction currently has a very serious trial delay problem which has likely persisted from the time of R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 (S.C.C.) 30 years ago. In that case, the Supreme Court called Peel “the worst district … north of the Rio Grande”: para. 83, also see R. v. Ny, 2016 ONSC 8031, 343 C.C.C. (3d) 512 (Ont. S.C.J.) at para. 46; R v. Simonelli, 2021 ONSC 354 (Ont.S.C.) at para. 98. To exacerbate the problem, the pandemic has led to most if not all jury trials over the last year being adjourned. That will cause, if it already has not, a staggering backlog affecting all jury as well as non-jury Superior Court criminal matters. To adjourn this trial without powerful reasons would display unacceptable complacency towards delay: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (S.C.C.) at paras. 4, 40. This pending trial is already at the 27 month trial delay mark. Although the time between now and the Supreme Court of Canada clarifying the issue would be chargeable to the defence and Mr. Henderson offered to waive the delay, there is an important societal interest in this trial being completed.
[5] Mr. Henderson submits that not adjourning the matter will likely cause irreparable harm to his client. Once the bell is rung, it cannot be un-rung. Or, to put it in terms of the statutory regime, once the complainant receives the material and makes submissions on stage two, the constitutional Rubicon has been crossed and, if the Applicant is correct, his fair trial and full answer and defence protections have been permanently compromised.
[6] I do not agree. The defence argument is premised on two main contingencies. First, the Supreme Court might strike down the legislation. So far, Justice Akhtar is the lone judge to hold it unconstitutional out of the many who have dealt with the issue. But that is of little predictive value. The second contingency is that, assuming the new provisions are unconstitutional, there would have to be some serious, demonstrable prejudice to the Applicant from following the new procedures.
[7] I am not convinced that following the two main changes brought about by Bill C-51--permitting the complainant to make submissions or to have advance warning of the nature of the production and sexual history defence application--would, if these provisions are later declared unconstitutional, lead to a miscarriage of justice within the meaning of Section 686(1)(b)(iii) of the Criminal Code: R. v. Khan 2001 SCC 86, [2001] 3 S.C.R. 823 (S.C.C.). As pointed out in the ruling, the complainant is already entitled by reason of R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443 (S.C.C.) at para. 55 to advance warning of the nature of the sexual history application. In addition, the complainant must be served and given notice with respect to an application for production: Section 278.4(5).
[8] I also do not believe that if it is wrong to allow complainant’s counsel to make submissions as provided for in Section 278.94(2), hearing submissions would be likely to taint or distort my rulings on these matters. The actual harm to the Applicant would be minimal. R. v. Bolton [2001] O.J. No. 2816 (Ont.S.C.), a case relied upon by the defence, was a much more compelling case to wait for the guidance of the Supreme Court. The Court was to resolve the definition of the child pornography offence under which the accused was charged. They ultimately issued their judgment in the leading case of R. v. Sharpe, 2001 SCC 2. If the trial court had plowed forward and interpreted the offence differently than had the Supreme Court, a new trial would be all but certain.
[9] That provides a useful contrast to this case. Unlike Justice Akhtar in Reddick, whatever the constitutional validity of the new provisions, I do not see the legislative changes as a radical departure from the former state of the law: see R. v. A.C., 2019 ONSC 4270, 439 C.R.R. (2d) 360 (Ont.S.C.) at para. 56.
[10] It is also a hidden premise of the adjournment application is that the Applicant will fail in his application to have evidence admitted. Prior to hearing submissions, the outcome cannot be foreseen. But a major lack of success on these applications would likely be necessary to demonstrate prejudice to the Applicant’s fair trial interests. The procedural innovations brought in by the new legislations are not likely sufficient on their own, in my view, to project an appearance of a miscarriage of justice if the process is later found to be unconstitutional.
[11] In summary, the validity of the new provisions is not one that goes to the heart of a defendant’s fair trial rights. In addition, it should be mentioned that there are no case specific facts which would differentiate this case from any other case in which the legislation has come under constitutional attack. Although an adjournment is a matter of discretion for each judge who must deal with it, if an adjournment is appropriate in this case, it would be appropriate in virtually every similar case in which the constitutional validity of the new provisions has been argued. This would result in widespread delays in many sexual offence trials and potential chaos throughout the court system. I would not put a great amount of weight on this factor as it is more concerned with other cases than the one before me, but it does suggest that an adjournment here would not be in the best interests of the judicial system.
[12] Balancing the interests of finality in the trial process against the accused’s rights to fundamental justice, the concern for finality must win out. It has often been said that waiting for a decision of a higher court should be discouraged: see Bolton at para. 28; R. v. Baker, [1994] N.S.J. No. 135 (N.S.C.A.) at para. 10. Although it is difficult to generalize given the wide variety of different situations which can arise, this is a good example of a case that should follow the disinclination to wait for the guidance of a higher court.
[13] For these reasons, the trial will continue as scheduled on April 12, 2021 for two weeks. The Applicant must file his materials on the pre-trial motions as soon as possible. These motions will, in light of the circumstances, begin on the first day of trial.
D.E HARRIS J.
Released: March 31, 2021
COURT FILE NO.: CR-20-87-00 DATE: 2021 03 31
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 31, 2021