COURT FILE NO.: 8147/19
DATE: 2021-04-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Karen Pritchard, Counsel for the
Respondent
Respondent
- and -
T.D.
Jennifer Tremblay-Hall, Counsel for the
Applicant
Applicant
Eric D. McCooeye, Counsel for the
Complainant
HEARD: November 10, 2020, January 29, March 24, 2021 and written submissions
varpio j.
reasons on charter motion
[1] The accused, Mr. T.D., stands accused of sexual offences as against his stepdaughter. The complainant allegedly came home with a bad report card and her mother and stepfather took the complainant’s cell phone away as punishment. The complainant allegedly later spoke with police from a friend’s house and sexual assault and sexual touching charges were laid.
[2] Social media posts and messages were located by the accused on the cellphone. The communications over social media involve:
a. Messages between the complainant and the accused;
b. Messages between the complainant and her mother;
c. Messages between the complainant and third parties; and
d. Social media posts on dating websites where the complainant allegedly displays photos of herself and indicates that she is 21 years old.
[3] The accused wishes to cross-examine the complainant with respect to these posts.
[4] Initially, the accused brought an application under s. 278.92 and s. 278.94 of the Criminal Code of Canada to enable him to cross-examine on these records. These sections govern the accused’s ability to use records in his possession in cross-examination. They delineate a process whereby the accused makes application to the court to have admissibility determined. The Crown and the complainant are entitled to make submissions. I have not yet looked at the documents in question.
[5] After hearing argument but before I released a decision, the accused brought an application to have ss. 278.92 and 278.94 declared unconstitutional in so far as they infringe his s. 7 and 11(d) rights under the Canadian Charter of Rights and Freedoms as per R. v. Reddick, 2020 ONSC 7156.
[6] The Crown takes the position that the impugned legislation passes constitutional muster and that Reddick is “plainly wrong”.
[7] Upon consideration of the legislation and governing jurisprudence, I am obliged to follow Reddick. It is not “plainly wrong”. Ergo, I hereby find ss. 278.94(2) and 278.94(4) unconstitutional and to be of no force or effect pursuant to s. 52 of the Constitution Act, 1982.
POSITION OF THE PARTIES
[8] The accused takes the position that Reddick is not ‘plainly wrong”. He also takes the position that sections 278.92 and 278.94, working together, infringe upon his rights to silence and his right to a fair trial. These infringements cannot be justified under the Oakes test. Specifically, the accused states that:
The sections are overly broad in so far as they capture the use of any “record” in the possession of the accused. Some of these records may have minor privacy interests which are unrelated to sexual offences;
The fact that disclosure is made to the complainant impacts the right of cross-examination and thus jeopardizes the accused’s right to a fair trial;
The complainant’s participation in the ss. 278.92 and 278.94 process is such that it subverts the Crown’s independence and ability to prosecute an offence in a fashion consistent with its duties as described in R. v Boucher (1954), 1954 CanLII 3 (SCC), [1955] S.C.R. 16.
[9] The Crown argues that the legislation does not offend the Charter for the following reasons:
The sections are not overly broad in so far as “records” are defined as documents or other things in which the complainant has a privacy interest and, as such, the scope of the legislation is narrow.
There is no unfettered right to cross-examine and certainly no right to trial by ambush. Accordingly, the impugned sections of the Criminal Code do not infringe the accused’s right to a fair trial; and
The Crown’s independence is not subverted as a result of the complainant’s participatory rights. If anything, justice is assisted by the complainant’s submissions because the Crown cannot adequately defend a complainant’s privacy interests given its status as a quasi-Minister of Justice.
[10] In Reddick, the court found ss. 278.92 and 278.94 to be unconstitutional. The Crown submits that the following make clear that the court’s reasoning is “plainly wrong”:
The presiding justice misstated the purposes driving the legislation and, as such, his reasoning fails to give adequate weight to Parliament’s intentions;
The presiding justice used flawed hypotheticals which in turn suggest that the accused has a right to “surprise” witnesses in cross-examination;
The presiding justice erred in finding that the legislation was overbroad in that it captures records that have nothing to do with the legislation’s purposes; and
The presiding justice erred in finding that the participatory rights of the complainant within the s. 278.92 process were unconstitutional.
[11] It should be noted that, with the consent of both the Crown and the accused, I permitted counsel for the complainant to make submissions. The complainant sided with the Crown and submitted that:
The Crown cannot adequately advance the interests of a complainant with respect to her privacy interests;
The complainant ought to be able to take different positions than the Crown with respect to admissibility; and
The Crown will not always be able to ask pertinent questions of a complainant when preparing them for cross-examination given the Crown’s disclosure obligations. Accordingly, s. 278.92 assists all parties in arriving at a just determination of the issue at hand.
ANALYSIS
The Impugned Legislation - Sections 278.1, 278.92 and 278.94 of the Criminal Code of Canada
[12] Section 278.1 of the Criminal Code of Canada defines a “record” for the purposes of this section:
Definition of record
278.1 For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
[13] It is important to note that the Supreme Court of Canada has recently found that the sender of an email or text message retains some level of privacy interest in the messages sent, even though others may further disseminate same: R. v. Marakah, 2017 SCC 59. As such, email, text messages and social media messages appear to be captured by s. 278.1 of the Criminal Code.
[14] Section 278.92 of the Criminal Code of Canada describes, inter alia, the nature and requirements for a hearing under the section:
Admissibility — accused in possession of records relating to complainant
278.92 (1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
(a) an offence under section 151, 152, 153, 153.1, 155, 160, 170, 171, 172, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3; or
(b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (a) if it occurred on or after that day.
Requirements for admissibility
(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94,
(a) if the admissibility of the evidence is subject to section 276, that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or
(b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge shall consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences;
(d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(e) the need to remove from the fact-finding process any discriminatory belief or bias;
(f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
(h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(i) any other factor that the judge, provincial court judge or justice considers relevant.
[15] Section 278.94 of the Criminal Code of Canada describes the scope of the hearing and its participants:
Hearing — jury and public excluded
278.94 (1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2).
Complainant not compellable
(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.
Right to counsel
(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.
Judge’s determination and reasons
(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and
(a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and
(c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
Record of reasons
(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.
R. v. Reddick
“Plainly Wrong” and the Standard of Review
[16] In R. v. Reddick, the court ruled sections 278.92 and 278.94 of the Criminal Code of Canada unconstitutional in so far as they offend ss. 7 and 11(d) of the Charter. Other courts have come to the opposite conclusions including R. v. C.C., 2019 ONSC 6449; R. v. A.C. 2019 ONSC 4270; R. v. A.M., 2020 ONSC 4541 and 2020 ONSC 8061, [2020] O.J. 5809[^1].
[17] Counsel agreed that, as per R. v. Sullivan 2020 ONCA 333 at paras. 36 to 38 and R. v. Ferguson 2008 SCC, once a court of coordinate jurisdiction rules that legislation is invalid as per s. 52 of the Constitution Act, that ruling ought to be followed unless it is “plainly wrong”.
[18] A review of some of the caselaw dealing with the former mandatory minimum sentencing regime under s. 95 of the Criminal Code of Canada, demonstrates how the “plainly wrong” test ought to be applied in cases where there may be disparate lines of constitutional reasoning.
[19] In R. v. Nur 2011 ONSC 4874, [2011] O.J. No. 3878, Code J. found the former minimum sentencing provisions under s. 95(2)(a)(i) to be constitutional with a caveat. That section imposed a mandatory minimum three-year sentence for a first conviction, provided the Crown elected to proceed via indictment. On the facts of his case, Code J. found that the offender ought to have received a two-and-a-half-year sentence had the minimum not existed. As a result, the provisions of s. 95(2)(a)(i) were constitutional because they did not mandate that a grossly disproportionate sentence be imposed. By way of contrast, however, Code J. noted that the mandatory minimum sentence for a first-time offender where the Crown proceeded via summary conviction was only one year. Accordingly, there was a disparity in mandatory minimums driven by the Crown’s election and Code J. found in obiter that this difference contravened the Charter.
[20] In R. v. Smickle 2012 ONSC 602, 110 O.R. (3d) 25, Molloy J. was faced with a situation where the accused challenged the Crown’s election under s. 95 and argued that the disparate mandatory minimums as described in Nur contravened the Charter. Molloy J. agreed with Code J. and found s. 95(2)(a)(i) to be unconstitutional and of no force or effect as per s. 52 of the Charter.
[21] In R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562, Strathy J. (as he then was) faced a situation where the offender had been found guilty of a s. 95 offence and was sentenced to three years of imprisonment. Strathy J. was faced with the dilemma of whether to impose the sentence as a result of the mandatory minimum (Nur and Smickle had not yet been heard by the Court of Appeal), or without consideration to the mandatory minimum. Strathy J. observed at paras 41 and 42 that:
In both Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 31, and R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 65, the Supreme Court of Canada observed that a declaration of invalidity establishes the invalidity of a legislative provision for all future cases. In Ferguson, Chief Justice McLachlin, giving the judgment of the court, observed at para. 65 that the effect of a declaration of invalidity is not simply to make the law inapplicable to the case at hand, but to make the law null and void and to put the issue back to Parliament for resolution:
The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies: see Osborne, 1991 CanLII 60 (SCC), [1991] 2 S.C.R. 69, per Wilson J. In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole: Vriend, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493; Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. Where this is not possible -- as in the case of an unconstitutional mandatory minimum sentence -- the unconstitutional provision must be struck down. The ball is thrown back into Parliament's court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either case, the remedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectively removed from the statute books.
McLachlin C.J.C. expressly rejected the notion that, after a declaration of invalidity in one case, the courts should continue to consider the issue on a case-by-case basis, requiring the accused to seek a constitutional exemption in the circumstances of his or her particular case. She noted, at paras. 72-73, that this would create uncertainty for accused persons, and for Parliament, concerning the precise scope of the law. It would also lead to uneven and unequal application of the law.
[22] At paras. 43 and 44, Strathy J. found that, as per McLachlin C.J.C.’s reasoning, he ought to follow Smickle. He determined that once a piece of legislation was struck and found to be of “no force and effect”, judges of coordinate jurisdiction ought to accede to that finding:
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 Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, 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.
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. [Emphasis added.]
[23] Therefore, although it was arguable that on the facts of Scarlett that Strathy J. could have followed Nur and found s. 95(2)(a)(i) to be constitutional since the offender was to receive a three-year sentence, irrespective of the minimum, Strathy J. nonetheless found s. 95(2)(a)(i) to be of “no force and effect” as a result of the principles described in Ferguson.
[24] That reasoning is important in the case before me in so far as I have competing decisions regarding the constitutionality of ss. 278.92 and 278.94 of the Criminal Code of Canada. Nonetheless, at para 132 of Reddick, the presiding justice found the impugned provisions to be of “no force and effect” as per s. 52 of the Charter. Based upon my reading of Sullivan, Ferguson and Scarlett, once that determination is made by a court of coordinate jurisdiction, I ought to follow that decision unless it is plainly wrong.
[25] The Crown agrees with this legal position but argues that Reddick is “plainly wrong”. I will deal with each of the Crown’s submissions on this point in turn.
“Plainly Wrong” and Reddick
Misstatement of Purposes
[26] All the Ontario judges whose cases I reviewed were justifiably careful in commenting upon the need to protect complainants in sexual crime trials from injustices that can arise: A.M. 2020 ONSC 4541 at paras. 26 and 27; Reddick at paras 124 to 127; R. v. A.C. 2019 ONSC 4270 at para. 1. Moldaver J. of the Supreme Court of Canada addressed these concerns authoritatively in R. v. Barton 2019 SCC 33 at para. 1:
We live in a time where myths, stereotypes, and sexual violence against women -- particularly Indigenous women and sex workers -- are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can -- and must -- do better.
[27] These are the concerns that Parliament intended to address when they enacted ss. 278.92 and 278.94. As was stated at paras. 8 to 10 in A.C., Parliament engaged in a balancing act:
The then Minister of Justice and Attorney General of Canada (the Minister), in explaining the amendments to the Standing Senate Committee on Legal and Constitutional Affairs, stated:
I am proud to say that this is the first time in over 20 years that any government has made significant updates to the Criminal Code provisions regarding sexual assault. Many of the proposed reforms seeks to codify what is already the state of the law following Supreme Court of Canada decisions.
In answering questions from Senator McIntyre, concerning the complainant's ability to prepare for cross-examination at trial in advance, the Minister responded:
Again, in drafting the legislation we sought to ensure that we create balance in our legislation with respect to the rights of the accused while assuring that we look at the victims of sexual assault and provide them with the necessary respect in terms of evidence or correspondence that would be held in the hands of the accused.
Further, in responding to questions from Senator Batters on the specific concerns raised by the Canadian Bar Association Criminal Justice Section, on the extent of the involvement in the prosecutorial process of the victim, and giving the victim standing, the Minister explained that the amendments do not give victims standing:
I would respond in the same way in terms of ensuring balance. One of the intentions behind introducing to the sexual assault provisions is to recognize and understand that there are extraordinary number of victims of sexual assault out there, many of whom do not report the crimes that have been committed against them. We are wanting to change that. We are wanting to ensure that the criminal justice system will also address the concerns of victims of sexual assault.
Bill C-51 provides them with a right to representation. I stand behind that right to representation and this provision within Bill C-51 because we need to ensure that we do everything we can to address the concerns victims have been expressing for many years and decades in terms of the criminal justice system and how that criminal justice system lends itself to victims not coming forward.
[28] No one has argued that these objectives are anything less than pressing and substantial. I agree with the passages reproduced above, especially the quote from Barton that these concerns are important and that we “must… do better”.
[29] The Crown argues that the court in Reddick was too narrow in its interpretation of the purposes of the legislation in that the court only identified the purposes as being “designed to curtail irrelevant cross-examination and evidence promoting myths and stereotypes associated with sexual assault complaints”.
[30] The Crown argued that the purpose of the legislation is:
to ensure that the Charter rights of complainants -- to privacy, security, dignity and equality under ss. 7, 15 and 28 - are fully considered, appreciated, and respected in circumstances where a court is charged with making a ruling as to the admissibility of evidence bearing on their other sexual activities;
to improve victim and community confidence in the criminal justice system, thereby increasing the likelihood that victims of offences of sexual violence will report these crimes and participate in criminal prosecutions; and
to protect the integrity of the trial process by ensuring that evidence that is misleading or rooted in dangerous myths and stereotypes is not admitted into evidence such as to distort the truth-seeking function.
[31] One possible view of the ostensibly disparate purposes described in Reddick as compared to those described by the Crown is that the more expansive purposes described by the Crown are simply derivative effects of the narrow purposes enunciated by the court in Reddick. For example, one would imagine that some of the underreporting of sexual crime by complainants would have to do with a concern that dangerous stereotypes and myths may be engaged by the courts. Use of such stereotypes and irrelevant cross-examination would in turn diminish the complainant’s and the community’s confidence in the criminal justice system. As such, I do not see these supposedly competing views of legislative purpose as being necessarily different. It is quite possible – even likely – that they describe the same phenomenon. I do not therefore find the reasoning in Reddick to be “plainly wrong” in this regard.
Overbreadth and Flawed Hypotheticals
[32] The Crown submits that the court in Reddick was plainly wrong in finding that the legislation is overly broad. The court accepted that the legislation could capture documents that do not meet the definition of “record”: Reddick at paras. 43 to 49. The Crown submits that other courts of coordinate jurisdiction have addressed this problem by requiring the defence to bring a Motion for Direction on this issue prior to the s. 278.92 hearing.
[33] A Motion for Direction is a possible way to enable a court to determine if a document is a “record” for the purposes of the section but I do not believe that Reddick can be said to be “plainly wrong” by failing to entertain this procedure. Unlike in Seaboyer which dealt with a purely common law regime, or Mills which dealt purely with legislation, a Motion for Direction in this circumstance would be a hybrid phenomenon whereby the courts use the common law to effectively improve legislation. Some may argue that this is an appropriate use of the common law to protect legislative intent. I do not believe that a relatively novel use of a common law procedure is such that failure to adhere to this hybrid approach can be seen as “plainly wrong”, which is undoubtedly a higher standard than simply being incorrect.
[34] As a follow-up to the overbreadth issue, at paras. 47 and 48 of Reddick, the court pointed to hypotheticals where bank records or a letter to a third party containing a discrepancy in the complainant’s knowledge of the accused could be captured by the impugned sections. The Crown submits that, at para. 49 of Reddick, the court erroneously suggested that there was a right to surprise a witness with such documents:
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] While I accept that there is no right to “trial by ambush” or to “surprise” a witness with a document, I do not believe that para. 49 in Reddick suggests that such a right exists. It is merely stating that in many circumstances, the accused has the ability – although not necessarily the right – to engage in surprising a witness with a document. Again, this logic cannot be said to be “plainly wrong” since that phenomenon accords with everyday courtroom experience and evidentiary standards.
Participatory Rights of the Complainant
[36] At paras. 78 to 106 of Reddick, the court found that the Crown may be deprived of knowledge that the complainant may only share with her/his counsel. The court was also concerned that the complainant might be made aware of more evidence than they ought to know prior to cross-examination (i.e. evidence of other witnesses, etc.). As such, the Crown’s ability to conduct itself in an appropriate fashion is curtailed.
[37] The Crown argued that the Crown will continue to be able to conduct itself in a fashion consistent with its Boucher duties and that the court’s concerns in Reddick are overstated. The Crown also argued that the court failed to give deference to Parliament’s choices in this regard.
[38] I disagree with the Crown. It is trite to suggest that witnesses may, either consciously or subconsciously, recollect events differently based upon the objective information they are provided. That is the rationale behind, inter alia, orders excluding witnesses and other protective mechanisms. Providing the complainant with a record prior to cross-examination could trigger some of the concerns that underly the existence of orders excluding witnesses and the like. That is not to state that complainants in sexual assault cases will be likely to tailor their evidence to the documents in hand. Complainants in sexual assault cases are undoubtedly no more likely than any other witness to intentionally or unintentionally misrepresent evidence and any suggestion to the contrary would run afoul of several sexual assault myths as described in Barton. Nevertheless, the trial fairness concerns described in Reddick are legitimate as evidenced by the law’s attempt to shelter witnesses from the testimony of others (notwithstanding exceptions like re-trials and the like).
[39] I also note that, in cases where procedures that could fundamentally negate trial fairness, little if any deference should be afforded Parliament.
[40] Therefore, Reddick cannot be said to be “plainly wrong” on this point.
CONCLUSION
[41] I hereby follow the ruling in Reddick, as it is not “plainly wrong”. I therefore find ss. 278.92 and 278.94 to be of “no force and effect” as per s. 52 of the Constitution Act.
Varpio J.
Released: April 19, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
T.D.
REASONS on charter motion
Varpio J.
Released: April 19, 2021
[^1]: Although asked to decide same, I will not comment on whether the court in Reddick ought to have applied the “plainly wrong” standard to prior cases.