COURT FILE NO.: 19-SA4367
DATE: 2021/04/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DARREN GREEN
Applicant
Robert Thomson for the Crown
Lorne Goldstein for Mr. Green
HEARD: March 17 and 18, 2021
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF the COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLBISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.
decision on constitutional challenge to s. 278.92 CC
justice Sally Gomery
[1] This application concerns the constitutionality of s. 278.92 of the Criminal Code (“Code”) and the new statutory scheme it creates with respect to the use, at trial, of records that the accused lawfully has in his possession. The accused in this case, Darren Green, contends that s. 278.92, and more specifically s. 278.92(2)(b), is overbroad and unconnected to the purposes for which it was enacted. He seeks a declaration that it offends ss. 7, 11(b), (c) and (d), and 15 of the Canadian Charter of Rights and Freedoms and is of no force and effect under s. 52(1) of the Constitution Act, 1982.
Overview
[2] Mr. Green is charged with sexual assault and sexual interference under ss. 271 and 151 of the Code. The charges stem from two incidents involving the same complainant that allegedly took place between September 1 and December 31, 2015, at a time when the complainant was fourteen years old and Mr. Green was her teacher. Mr. Green’s trial is scheduled for June 2021.
[3] Mr. Green has a note that the complainant gave to him after the alleged incidents took place. He would like to produce the note into evidence at his trial and cross-examine the complainant on it. He accordingly applied, earlier this year, for directions about whether the note is subject to s. 278.92 of the Code, which establishes the presumptive inadmissibility of certain categories of records in the possession of a person accused of a sexual offence.
[4] On January 31, 2021, Corthorn J. held that the note is not “evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person”, and as such did not fall into the category of records described at s. 278.92(2)(a) of the Code. She found, however, that the note “contains personal information for which there is a reasonable expectation of privacy”, the category of records caught by s. 278.92(2)(b). It is therefore presumptively inadmissible at Mr. Green’s trial. In order to adduce it into evidence, Mr. Green must first persuade the judge who is to preside at the trial that the note constitutes evidence that 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”: Code, s. 278.92(2)(b). A hearing on this issue is set to take place on April 27, 2021.
[5] In the interim, Mr. Green has applied for an order declaring that s. 278.92 of the Code (the “new statutory scheme”) should be struck. This provision, which came into effect in December 2018, has to date been the subject of twelve challenges based on ss. 7 and 11 of the Charter. Most courts in Ontario and elsewhere in Canada have upheld the constitutionality of the new statutory scheme. In November 2020, however, in R. v. Reddick, 2020 ONSC 7156, Akhtar J. held that s. 278.92 and two subsections of s. 278.94 were null and void pursuant to s. 52(1) of the Constitution Act, 1982 because they violate an accused’s right to a fair trial. Leave has been granted by the Supreme Court of Canada for an appeal of the decision in Reddick directly to that Court: [2021] S.C.C.A. No. 5.
[6] Mr. Green advances two arguments in support of his application.
[7] First, he contends that I ought to accept the conclusion reached by Akhtar J. in Reddick. Mr. Green concedes that I am not required to do so. He contends, however, that Reddick is not plainly wrong and that I therefore should defer to it.
[8] Second, Mr. Green contends that, even if I reject the reasoning in Reddick, I should find that s. 278.92(2)(b) is not rationally connected to the concerns that gave rise to the enactment of the new statutory scheme. He argues that the purpose of the scheme is to prevent courts from engaging in mistaken “twin myths” reasoning, and that s. 278.92(2)(b) is overbroad because it renders presumptively inadmissible records that would not promote such mistaken reasoning.
[9] For the reasons that follow, I do not accept Mr. Green’s arguments. I am not bound to follow Reddick because there are other decisions of courts of concurrent jurisdiction that reached a different conclusion than Akhtar J. In the alternative, I find Reddick to be plainly wrong. I find that the new statutory scheme is rationally connected to the purposes for which it was enacted, which is not simply the curbing of false reasoning about complainants in sexual offences but the protection of their privacy interests and fostering a justice system that encourages other complainants to report offences. I further find that the new scheme does not offend Mr. Green’s fair trial rights or his equality rights under ss. 7, 11 or 15 of the Charter. The application is therefore dismissed.
ANALYSIS
The new statutory scheme
[10] In force since December 2018, s. 278.92 provides that certain types of records in the possession of a person accused of sexual assault or related offences (“sexual offences”) are presumptively inadmissible at trial. Section 278.92 reads as follows:
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.
(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.
(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.
[11] The new statutory scheme does not foreclose the use of any records at trials for sexual offences. The accused must, however, apply for authorization to adduce them at trial and persuade a judge or justice that the evidence should be admitted, based on the criteria set out at ss. 278.92(2) and (3). Notice of the application must be given to the complainant, who has the right to participate in it, be represented by counsel and make submissions.
[12] Pursuant to ss. 278.92(2)(a) and (b), there are two categories of records subject to the new statutory scheme.
[13] The first category (“sexual activity records”) are records that could be used to show that the complainant has engaged in prior sexual activity. Pursuant to s. 276(4), this includes “any communication made for a sexual purpose or whose content is of a sexual nature”. Prior to the enactment of the new statutory scheme, sexual activity records were already presumptively inadmissible in trials of sexual offences pursuant to s. 276. Sections 278.93 and 278.94 replace the application process previously in place under ss. 276.1 to 276.5, which have been repealed.
[14] The second category (“personal information records”) are “records” as defined in s. 278.1. These include any record that “contains personal information for which there is a reasonable expectation of privacy”. In trials for sexual offences, the admissibility of personal information records in the hands of third parties and the Crown was again already subject to a special regime set out at ss. 278.2 to 278.91. In R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, however, the Supreme Court of Canada held that statutory third party disclosure rules do not apply to such records already in the possession of the accused. Now, under the new statutory scheme, personal information records in the hands of the accused are presumptively inadmissible pursuant to s. 278.92. The process whereby an accused may seek to rely on such records at trial is again governed by ss. 278.93 and 278.94.
Am I bound to follow Reddick?
[15] Mr. Green acknowledges that Akhtar J.’s decision in Reddick does not prevent me from considering the constitutionality of s. 278.92. In R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, at paras. 31-41, leave to appeal granted, [2020] S.C.C.A. No. 232, the Court of Appeal for Ontario held that a s. 52(1) declaration by a superior court judge does not prevent another judge on the same court from reconsidering a provision’s constitutionality.
[16] The Court also held in Sullivan, however, that 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”: at para. 38, citing R. v. Scarlett, 2013 ONSC 562, at para. 43; Re Hansard Spruce Mills Ltd., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. Mr. Green contends that Reddick is not plainly wrong and that I therefore should defer to Akhtar J.’s conclusion that s. 278.92 as a whole violates his right to a fair trial.
[17] The situation is more complicated, though, given other decisions by other superior court judges and provincial court judges that have upheld the new statutory scheme.
[18] Prior to Reddick, Ontario courts rejected challenges to the new statutory scheme on four occasions, in R. v. F.A., 2019 ONCJ 391, 56 C.R. (7th) 182; R. v. A.C., 2019 ONSC 4270, 439 C.R.R. (2d) 360; R. v. R.S., 2019 ONCJ 645, 58 C.R. (7th) 215; and R. v. C.C., 2019 ONSC 6449, 448 C.R.R. (2d) 297.[^1] The scheme was also upheld by the Supreme Court of Nova Scotia in R. v. Whitehouse, 2020 NSSC 87, 61 C.R. (7th) 400, and the Supreme Court of British Columbia in R. v. J.J., 2020 BCSC 29.[^2] Constitutional challenges succeeded in Saskatchewan and the Yukon: see R. v. Anderson, 2019 SKQB 304, 61 C.R. (7th) 376; R. v. A.M., 2019 SKPC 46, 56 C.R. (7th) 389; and R. v. D.L.B., 2020 YKTC 8, 460 C.R.R. (2d) 162.
[19] Since Reddick was decided, two Ontario courts have declined to follow it. In R. v. A.M., 2020 ONSC 8061, and R. v. Barakat, 2021 ONCJ 44, Christie J. and Doody J., respectively, concluded that Reddick was plainly wrong, and that on a proper analysis the new statutory scheme does not violate the Charter.
[20] In my view, where there are conflicting decisions on statutory interpretation by courts of concurrent jurisdiction, a court is not bound to begin its analysis by determining if one or more those decisions is plainly wrong.
[21] In R. v. Craig, 2019 ONSC 6732, 449 C.R.R. (2d) 1, Dawe J. considered the retrospective application of legislation that eliminated peremptory challenges during jury selection. At the time, twenty-four superior courts in eight provinces had weighed in on the issue. At para. 23, Dawe J. found, citing Young et al. v. 503708 Ontario Ltd. (1986), 1986 CanLII 2471 (ON SC), 56 O.R. (2d) 411 (H.C.), that judicial comity did not require him to follow the majority of Ontario superior court decisions on the issue:
[T]he 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. [Emphasis in original; footnote omitted.]
[22] This reasoning was endorsed by Shandler J. in R. v. A.T., 2020 ONCJ 576, at para. 12, in rejecting the argument that he could not give a complainant standing at a s. 298.94 hearing based on Reddick.
[23] Sullivan has strengthened the principle stated in Craig. Faced with conflicting decisions by courts with concurrent jurisdiction over the subject matter of a s. 52(1) application, I should follow the decision or decisions I find to be correct. In doing so, I am required to confront any new arguments since made that could lead to a different outcome. But I do not necessarily need to begin my analysis by considering whether any given precedent is plainly wrong.
[24] If I am mistaken on this point, with the greatest of respect to Akhtar J., I agree and adopt the reasons of the judges in A.M. and Barakat who found that the outcome in Reddick was plainly the result of a wrong decision.
[25] It is particularly relevant, given the arguments advanced in this application, that Akhtar J. misidentified the purpose of the new statutory scheme. At paras. 47-48 of his analysis in Reddick, he advanced hypothetical situations where financial records or correspondence with third parties might be caught by s. 278.92. Based on these hypotheticals, he found, at para. 49, that the provision was overbroad because limiting the admissibility of such records was not rationally connected to the purposes for which the new statutory scheme was enacted:
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.
[26] This chain of reasoning, and the conclusion that s. 278.92 was not rationally connected to the purpose for which it was enacted, was premised on three errors.
[27] First, it assumes that the only purpose of the new statutory scheme is to address myths and stereotypes about sexual assault victims based on their sexual history. For reasons I will expand on below, this is clearly incorrect.
[28] Second, in reaching this conclusion Akhtar J. incorrectly states, at para. 43, that s. 278.92 would capture “any record in which the complainant has a reasonable expectation of privacy in the possession of the accused” (emphasis in original). In fact, s. 278.1 defines a “record” for the purpose of this section as “any form of record that contains personal information for which there is a reasonable expectation of privacy” (emphasis added). As found at paras. 65-68 of A.M., Akhtar J.’s misreading of the definition led him to rely on the hypothetical that financial records could be subject to the new statutory scheme.
[29] Third, Akhtar J. ignored the fact-specific and contextual analysis engaged in determining whether a particular record meets the s. 278.1 definition: see R. v. M.S., 2019 ONCJ 670; R. v. Mai, 2019 ONSC 6691; R. v. X.C., 2020 ONSC 410; and R. v. T.A., 2020 ONSC 2613. In the case at bar, for example, Corthorn J. engaged in a careful analysis of the evidence regarding the contents of the note that Mr. Green will seek to adduce at trial, how it was transmitted to him, his relationship with the complainant at the time, and the extent to which he disclosed the note to other parties after receiving it. It was only after considering this evidence that Corthorn J. concluded that the note contained personal information in which the complainant retained a privacy interest, even though she had shared the information with Mr. Green, and was hence subject to s. 278.92.
[30] I accordingly agree with Christie J.’s finding at para. 69 of A.M. that:
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.
[31] As a result of this error and other errors identified in A.M. and Barakat, I conclude that Akhtar J. failed to conduct an appropriate analysis of the constitutionality of the new statutory scheme or to balance the Charter interests at play.
Is the new statutory scheme contrary to ss. 7 and 11(b), (c) and (d)?
[32] I will first consider whether the new statutory scheme is rationally connected to the purposes for which it was enacted. If I conclude that it is, I will consider whether it nonetheless violates Mr. Green’s fair trial rights under ss. 7 and 11 of the Charter.
Is the scheme rationally connected to the purposes for which it was enacted?
[33] Counsel for Mr. Green recognizes that the new statutory scheme was enacted to address a legitimate gap in the Code, identified in Shearing, where personal information records are already in the possession of the accused. He contends, however, that the scheme is overly broad, because its application to personal information records is not rationally connected to the purpose for which the scheme was enacted. In his submission, the true purpose of the new scheme is to prevent the “twin myths” reasoning that has historically undermined the prosecution of sexual offences in Canada, that is, that a complainant’s past sexual activity makes her inherently less credible and more likely to have consented to the sexual activity giving rise to a charge for a sexual offence. Defence counsel argues that other courts, in upholding the constitutionality of s. 278.92, have done so without recognizing that the application of the scheme to personal information records does nothing to advance this purpose.
[34] This argument is based on the same false premise that compromises the reasoning in Reddick. The purpose of the new statutory scheme is not only to prevent twin myths reasoning, but also to protect the privacy rights of complainants who report sexual offences, insofar as this is reasonably possible given the nature of the proceedings and the need to ensure a fair process for the accused.
[35] The broader purposes of s. 278.92 are evident from a reading of the section itself as well as the legal history that motivated its adoption. In determining whether evidence is admissible under the new statutory scheme, a judge must take into account, among other things, the following factors:
• society’s interest in encouraging the reporting of sexual assault offences (s. 278.92(3)(b));
• society’s interest in encouraging the obtaining of treatment by complainants of sexual offences (s. 278.92(3)(c));
• the potential prejudice to the complainant’s personal dignity and right of privacy (s. 278.92(3)(g)); and
• the right of the complainant and of every individual to personal security and to the full protection and benefit of the law (s. 278.92(3)(h)).
[36] A judge must also weigh these and other factors, pursuant to s. 278.5(2), in determining the production to the accused of third party records that contain information in which a complainant or third party has a privacy interest.
[37] On their face, these factors indicate that the purpose of s. 278.92 is not merely to avoid myths and stereotypes about individuals who allege that they have been sexually victimized, but to create conditions in which such victims will more often report such crimes. This involves putting into place procedural mechanisms that require a judge to consider whether, in the particular circumstances of the case, the truth-seeking function of a trial is so meaningfully advanced by the admission of evidence that it warrants the public disclosure of information that a complainant, in any other circumstance, would expect to keep private. As the Supreme Court of Canada found in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at para. 144, in upholding the third party production regime at s. 278.5(2):
By giving judges wide discretion to consider a variety of factors and requiring them to make whatever order is necessary in the interest of justice at both stages of an application for production, Parliament has created a scheme that permits judges not only to preserve the complainant’s privacy and equality rights to the maximum extent possible, but also to ensure that the accused has access to the documents required to make full answer and defence.
[38] The inclusion of the factors cited above at ss. 278.92(3)(b), (c), (g) and (h) show that the new statutory scheme is likewise motivated by the purpose of preserving a complainant’s privacy and equality rights to the maximum extent possible, and promoting the reporting of sexual offences. The application process requires the judge or justice seized with the matter to consider the impact of production not only on the particular complainant, but also on other women who might not report sexual offences because they do not trust the justice system to protect their privacy rights at trial. This is entirely consistent with the criteria governing the production of personal information records in the hands of third parties, which Mills found to be constitutionally compliant.
[39] Contrary to the submissions by defence counsel on this application, the legislative record with respect to the new statutory scheme shows that Parliament was well aware that its purpose was, in part, to shield complainants’ privacy interests.
[40] The new statutory scheme was based on a recommendation by the Standing Senate Committee on Legal and Constitutional Affairs. In its December 2012 report on the operation of the third party production regime enacted in s. 278.2 and related provisions, the Committee noted concerns expressed by the Privacy Commissioner of Canada about “the possible use or misuse of records in which a complainant has a privacy interest, but which are already in the hands of the defendant”.[^3] The Committee noted that, as held by the Supreme Court in Shearing, the production of such records fell outside the ambit of s. 278.2. It agreed with Justice L’Heureux-Dubé’s dissenting opinion in that case that a complainant’s privacy and equality rights should be taken into account in assessing the potential prejudice caused by the cross-examination of the complainant and limits placed, as a result, on the accused’s right to full answer and defence. As a result, the Committee recommended that a regime similar to that governing production of third party records be put into place with respect to records in the possession of the accused.[^4]
[41] In the 2012 Senate Report, the Committee was clearly focused on both the avoidance of twin myths reasoning based on complainants’ sexual history and the protection of complainants’ broader privacy interests. On the latter point, the Committee stated at p. 19 of the 2012 Senate Report that it agreed with the Privacy Commissioner that:
[I]ndividuals may retain important privacy interests in information that is in the possession of an accused person. Moreover, we see no logical reason to deny to individuals who have been sexually victimized by persons with access to their personal records the same legal protection of their privacy, security and equality rights afforded to other victims of sexual offences.
Therefore, we believe that in a trial on a sexual offence charge, in which an accused is in lawful possession of a complainant’s private records and wishes to use these records for the purposes of cross-examination or seeks to introduce them into evidence, judges should take into account, when weighing prejudicial effect against probative value, factors similar to those governing their determinations on third party records applications under section 278.5(2) of the Code….
[42] When Bill C-51, the Act establishing the new statutory scheme, was debated in the House of Commons five years later, legislators again referred to the need to protect the privacy and security interests of complainants. The Parliamentary Secretary to the Minister of Justice stated that the scheme was being introduced because sexual offences were still under-reported in Canada despite restrictions in the Code on the use of evidence of complainants’ sexual activity:
One way we can, at the federal level, help encourage women to come forward is through law reform that increases the likelihood that our laws will be applied as they were intended, and in so doing, reduce the potential for unnecessary distress experienced by victims who participate in the criminal justice process.[^5]
[43] The Parliamentary Secretary characterized the new statutory scheme as one that was designed to enhance a complainants’ privacy rights, by creating “a new regime governing the admissibility of evidence in the hands of an accused person, where that evidence is a complainant’s private record”.[^6] After noting the need to ensure the fair trial rights of the accused, he adverted to the 2012 Senate Report and stated that:
[Bill C-51] 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 possibly [sic].[^7]
[44] Another government MP who spoke up in favour of the bill observed that it would “add a mechanism or lever for those victims to come forward, with the expectation they will be dealt with with the utmost dignity and respect”.[^8]
[45] The ambit of records captured by s. 278.92 was specifically raised by a member of the official opposition.[^9] He expressed the view that that Bill C-51 was problematic on the basis that the “type and scope of records that would be captured are just about any records related to the complainant”, including “records that were ordered subject to a third-party application”. He raised concerns about the delays that this might bring in prosecuting sexual offences and the appropriateness of a complainant, with a right to counsel, being party to an application under the new statutory scheme.
[46] Defence counsel on this application contends that the record of the debate around Bill C-51 indicates that parliamentarians focused on the issue of consent and the enhancement of rape shield provisions. This is not surprising given that the legislation, in addition to introducing the new statutory scheme, provided that an unconscious person could not consent to sexual activity, prohibited the defence of honest but mistaken belief in consent where it was based on a mistake of law, and provided that sexual activity included sexual communications. The references to consent and rape shield, read in the context of the debate over Bill C-51 as a whole, do not lead me to conclude that legislators were unaware of the scope of the new statutory scheme and, specifically, that they overlooked the application of s. 278.92 to personal information records that did not contain any evidence of sexual activity.
[47] Finally, Bill C-51 was discussed at the Standing Senate Committee on Legal and Constitutional Affairs in June 2018.[^10] The Minister of Justice stated that the amendments to the Code regarding sexual offences reflected “the critical need to respect all interests in a criminal trial: the rights of the accused; the truth-seeking function of courts; and the privacy, security and equality interests of the victim”. Senator Jaffer asked why the procedure would apply “to material that would not otherwise engage the current 276 process”, that is, “material that does not relate to sexual conduct”. The Minister noted that the scheme resulted from the recommendation in the 2012 Senate Report with respect to the gap in the Code regarding documents held in the possession of an accused.
[48] These passages again show that parliamentarians were aware that s. 278.92 would apply to personal information records as defined in s. 278.1. References to twin myths reasoning and sexual activity records do not mean that Parliament was misled or that the legislation was passed under a misapprehension as to its scope.
[49] In light of this history, I reject defence counsel’s argument that Parliament was uniquely focused on the production of sexual activity records and did not intend s. 278.92 to extend to personal information records.
[50] Defence counsel also argued that I should infer that a concern for the privacy and equality rights of victims did not really inspire the enactment of s. 278.92, because victims of other types of crimes would benefit from similar protections. He noted, for example, that victims of non-sexual domestic violence are often reluctant to report assaults to the police, yet defendants in such prosecutions do not need to obtain judicial authorization before adducing their personal information records. I do not accept this argument. As already found, the purposes of the new statutory scheme are evident on the face of s. 278.92 and its legislative history. The possibility that a similar scheme could be considered in the context of other criminal offences does not mean that the purpose of s. 278.92 was confined to concerns about twin myths reasoning.
[51] I conclude that the purposes of the new statutory scheme are reflected in the factors specifically set out in s. 278.92(3). I further find that its provisions are rationally connected with its purposes because, in determining the admissibility of personal information records, a judge must balance their probative value with the danger of prejudice to the administration of justice that their use may cause by referring to those same factors.
Does the new statutory scheme nonetheless violate Mr. Green’s right to a fair trial?
[52] I conclude that the new statutory scheme does not offend Mr. Green’s right to a fair trial, essentially for the reasons expressed in F.A. and C.C.
[53] First, s. 278.92 has a limited ambit. As already noted above in discussing Reddick, it does not apply to all records in the possession of the accused, but only those containing personal information over which the complainant enjoys a reasonable expectation of privacy. Furthermore, unlike the regime governing sexual activity records at s. 276(1), the new statutory scheme does not prohibit personal information records from being tendered for a specific identified purposes. As a result, an accused could seek, for example, to adduce a personal information record solely for the purpose of showing that the complainant was less worthy of belief.
[54] Second, restrictions on the defence’s right to cross-examine a complainant have been a part of our criminal law for decades. As Caponecchia J. observed at para. 43 of F.A.:
There has never been a right to adduce irrelevant evidence, therefore requiring an application does not offend a defendant’s rights. Courts have recognized, belatedly, that certain techniques of cross-examination traditionally employed in sexual assault cases have distorted rather than advanced the search for truth. [The new statutory scheme] guards against such techniques. [Footnote omitted.]
[55] In R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at p. 671, the Supreme Court of Canada held that, in order to ensure the fairness of a trial, a voir dire should be held to determine whether a complainant could be cross-examined on the contents of her medical records in the possession of the defence, or whenever “contentious issues” arose as to the cross-examination of a complainant. In R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at para. 39, the Supreme Court held that the screening mechanism for sexual activity records at s. 276 was “not a departure from the conventional rules of evidence”.
[56] The constitutionality of procedural aspects of the new statutory scheme has been considered by various courts. A s. 278.93 application must be made on seven days’ notice and is generally made prior to the commencement of trial. In R.S. and J.J., judges held that the scheme is constitutional only if it permits an accused to make an application during trial, after the complainant has testified in chief. The complainant has a right to participate in a s. 278.94 hearing. There are conflicting decisions about complainants’ participatory rights in a motion for directions under s. 278.: see R. v. E.A., 2020 ONSC 6657, and the caselaw cited therein. I am not focusing on these procedural aspects of the scheme because defence counsel in this application took the position that s. 278.92 was constitutionally offensive due to its overbreadth rather than due to the participatory rights afforded to the complainant or timing requirements. In any event, I find that the process in the new statutory scheme, which is already in place for third party records and applications to adduce evidence of other sexual conduct, is constitutionally valid per Mills and Darrach. In my view, the judges in C.C., Barakat and A.C. were plainly correct in finding that the required application under s. 278.92, its timing and complainant’s participatory rights do not violate the defendant’s right to make full answer and defence or the fundamental fairness of the trial.
[57] Third, the standard of admissibility required as a result of the new statutory scheme is not markedly more onerous than the existing standard. Judges routinely weigh the probative value of evidence with its potential prejudicial effect. In Osolin, Mills, Shearing and R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, the Court recognized that a complainant’s privacy and equality rights should inform the trial judge’s decision on whether to restrict the defence’s cross-examination. The new statutory scheme incorporates the existing criteria while also requiring judges to consider broader considerations in determining whether personal information records may be adduced.
[58] In Darrach, the screening mechanism at s. 276.1 was found to be constitutional. I see no reason why the extension of the process to personal information records in the hands of the accused would fatally undermine an accused’s fair trial rights. I agree with Caponecchia J.’s conclusion on this point at para. 51(ii) of F.A.:
The factors in s. 278.92(3) are in keeping with factors in s. 276(3) that a court must consider when deciding whether to admit a complainant’s prior sexual history. It stands to reason that the factors would be the same given the highly personal nature of both types of evidence and the potential for a trier of fact to rely on them for an irrelevant or stereotypical purpose. A requirement to consider the statutory factors enhances, rather than detracts, from the truth-seeking function of a trial. I find that the inclusion of such factors in the analysis of the admissibility of a complainant’s private records does not offend the Charter because they have already withstood constitutional scrutiny in Darrach.
[59] As already noted, in Mills the Supreme Court of Canada rejected the argument that the factors at s. 278.1, applicable in the context of the third party disclosure regime, gave inappropriate weight to the societal interests in encouraging the reporting of sexual offences and promoting the rights of complainants. I agree with Raikes J.’s observation at para. 73 of C.C. that there is no reason why the use of these same factors would fatally undermine an accused’s fair trial rights simply because the records are in his possession, rather than the possession of a third party:
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?
[60] I would add that it is not only the victim of a sexual offence who might be offended by the idea that an accused should be allowed to confront her in cross-examination with her private information simply because he happened to have prior possession of it when, if it were in anyone else’s hands, he could not obtain or produce it without seeking prior judicial authorization. Society as a whole might be offended. As aptly stated in C.C., at para. 71, trial fairness “must be examined and assessed through multiple lenses including that of the community at large and the victim”. We have an interest in ensuring that sexual offences are prosecuted. We also have an interest in eliminating procedural loopholes that, through happenstance, would give some defendants greater procedural rights and some victims lesser protections. An irrational distinction between records in the hands of the accused and records in the hands of a third party is contrary to both of these goals. As stated by Moldaver J. in the opening passage in R. v. Barton, 2019 SCC 33, we can and must do better.
[61] I therefore reject the challenge to s. 278.92 based on ss. 7 and 11 of the Charter.
Is the new statutory scheme contrary to s. 15?
[62] Section 15 protects individual equality rights. Section 15(1) provides that every individual “is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.
[63] Defence counsel submitted in his application that the new statutory scheme offends s. 15 in two ways. First, it discriminates against individuals accused of sexual offences, who in his submission have fewer rights than persons charged with other kinds of offences. Second, it discriminates against victims of sexual offences, because the application process at s. 278.92 complicates and lengthens the prosecution of such offences.
[64] These submissions were not pursued or fleshed out in oral argument. I could not find that a person accused of a sexual offence has fewer rights due to s. 278.92, because I have already found that the new statutory scheme does not compromise a defendant’s rights under ss. 7 and 11. I furthermore have no evidentiary basis to find that the scheme is discriminatory in its impact on either defendants or complainants. I have no basis to conclude, for example, that a complainant might want fewer safeguards for their dignity and privacy. I note, in any event, that a complainant may choose not to participate in a s. 278.92 application made by the defence.
[65] I therefore do not find that s. 278.92 violates s. 15.
Disposition
[66] The application is dismissed.
Justice Sally Gomery
Released: April 15, 2021
[^1]: However, in R.S., Breen J. held that s. 278.93 and s. 278.94 do not contravene ss. 7 and 11(d) of the Charter so long as they were interpreted to permit an application under the new statutory scheme to be brought during the cross-examination of the complainant.
[^2]: In J.J., the finding of constitutional validity was again subject to a reading that allows an accused to apply for a ruling under s. 278.93 only after the complainant has testified in chief.
[^3]: Senate of Canada, Statutory Review on the Provisions and Operation of the Act to amend the Criminal Code (production of records in sexual offence proceedings): Final Report of the Standing Senate Committee on Legal and Constitutional Affairs (December 2012) (Chair: Hon. Robert W. Runciman), at p. 17 (the “2012 Senate Report”).
[^4]: 2012 Senate Report, at pp. 18-20.
[^5]: “Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act”, 3rd reading, House of Commons Debates, 42nd Parl., 1st Sess., No. 249 (11 December 2017) at p. 16218 (Marco Mendicino) (the “Commons Debate”).
[^6]: Commons Debate, at p. 16218.
[^7]: Commons Debate, at p. 16219.
[^8]: Commons Debate, at p. 16267.
[^9]: Commons Debate, pp. 16254-55.
[^10]: Senate of Canada, Standing Senate Committee on Legal and Constitutional Affairs, Evidence, 42nd Parl., 1st Sess., No. 47 (20 June 2018).