COURT FILE NO.: CR-19-142
DATE: 2021-06-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JAMES D. GERROND Defendant/Applicant
Counsel: Greg Skerkowski, for the Crown (Respondent) Dawn Livicker Quelch, for the Defendant (Applicant)
HEARD at Kingston (by videoconference): 28 May 2021
THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANT OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
REASONS FOR DECISION
MEW J.
[1] James Gerrond is charged with sexual offences against A.N and R.N. The trial of these charges is scheduled to commence on 18 August 2021.
[2] The applicant has brought a "motion for directions" raising the prospect of an application to adduce evidence of other sexual activity in relation to A.N. The substantive test for admitting evidence of other sexual activity is set out at s. 276 of the Criminal Code, R.S.C. 1985, c. c-46 (as amended). The procedural requirements of such an application are contained in sections 278.93 and 278.94 of the Code.
[3] The provisions of the Criminal Code with respect to prior, or extrinsic, sexual history were amended in 2018. As a result, a complainant has "standing" to make submissions at the hearing of a section 276 application.
[4] The practical effect of these amendments in the present case is that if the applicant wishes to cross-examine A.N. at trial on any issues that may involve asking questions about her prior sexual history, he is required to set out, in writing, the specific incidents that he wishes to cross-examine on; those issues must relate to a specific issue at trial, and their probative value must outweigh their prejudicial effect. Consistent with the practice established in R. v. Darrach, [2000] S.C.R. 443, the applicant would typically have to file an affidavit in support of his application, upon which the deponent (most likely himself) might be cross-examined at the voir dire.
[5] If the applicant establishes (or the complainant agrees) that the evidence is capable of being admissible under section 276(2), the court must then hold a hearing to determine whether the evidence is admissible under s. 276(2) or s. 278.92(2), and at such a hearing, the complainant is entitled to "participate and make submissions".
[6] Mr. Gerrond asserts that the recent amendments to the Criminal Code contained in sections 278.92, 278.94(2) and 278.94(3) impair his rights to a fair trial and violate sections 7 (life, liberty and security of the person) and 11(d) (fair hearing) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[7] Ordinarily, if a party wishes to challenge the constitutionality of a legislative provision, the process set out in Rule 27 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 must be followed. Rule 27 requires an applicant to file a "notice of application and constitutional issue" not later than 30 days before the date on which the application is scheduled to be heard. The application must contain the precise relief sought, a statement of the constitutional issue to be raised, a statement of the constitutional principles to be argued, a reference to any statutory provisions upon which reliance will be placed, and the documentary, affidavit and other evidence to be used at the application.
[8] Section 109(1) of the Courts of Justice Act, R.S.O. 1990, c C.43 requires service of a Notice of Constitutional Question on both the federal and provincial Attorneys General.
Issue
[9] The issue raised on this motion for directions is whether it is necessary for the applicant to follow the formal process in Rule 27 given that this court has already struck down sections 278.92, 278.94(2) and 278.94(3) of the Criminal Code as being unconstitutional.
[10] In R. v. Reddick, 2020 ONSC 7156, Akhtar J. concluded that sections 278.92, 278.94(2) and 278.94(3) were unconstitutional and of no force and effect pursuant to section 52 of the Constitution Act, 1982.
[11] 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. I am advised that the appeal will be heard in the autumn of 2021.
Summary of Parties' Positions
[12] Mr. Gerrond argues that unless and until Reddick is overruled by the Supreme Court, or its effect is otherwise validly extinguished, the impugned provisions of the Code are no longer good law in Ontario. As a result, it would be redundant to relitigate the constitutionality of these provisions before a judge with coordinate jurisdiction to the judge in Reddick.
[13] Alternatively, the applicant argues that as a matter of comity, I am bound to follow the decision of Akhtar J., who is a judge of coordinate jurisdiction to my own, unless I am satisfied that his decision was plainly wrong: R. v. Scarlett, 2013 ONSC 562, at para. 43.
[14] On either of these two grounds, I am asked to declare that I consider myself bound by the decision in Reddick, thereby by-passing the need for the applicant to place a full evidentiary record before the court, to be followed by a hearing of his constitutional challenge on its merits.
[15] The Crown responds that the circumstances of this case do not justify taking shortcuts in the procedure prescribed by Rule 27 and, in particular, the requirement to serve a Notice of Constitutional Question. Reference is made to other cases in which this court has been asked to adopt R. v. Reddick and dispense with the rules governing challenges to the constitutionality of legislation. In R. v. Bickford, 2020 ONSC 7510, [2020] O.J. No. 5268, the defendant also "sought directions" from court with respect to whether it felt bound by Reddick. The application judge disagreed that a constitutional issue could be determined in this fashion, and directed that the accused serve and file a Notice of Constitutional Question in keeping with the rules. An identical view was expressed in R. v. A.M., 2020 ONSC 7674.
[16] Furthermore, the Crown asserts that in R. v. Sullivan, 2020 ONCA 333, the Court of Appeal held that the usual rules of stare decisis continue to govern in the context of a declaration of constitutional invalidity, such that the principle of comity articulated in Scarlett has no application. And even if comity is considered, it is inapt where there are conflicting decisions of coordinate jurisdiction.[^1] In that regard, the Crown cites a number of Ontario decisions that have declined to follow Reddick, finding either that it is "plainly wrong"[^2] or that the court can chose the preferred result.[^3]
Are the Impugned Provisions of No Force or Effect?
[17] The applicant takes as his starting point the oft-cited passage from this court's decision in Scarlett, where Strathy J. stated, at para. 43:
The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., 1954 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 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.
[18] However, the applicant goes on to argue that the question of judicial comity does not even come in to play where a legislative provision has been declared unconstitutional. Reliance is placed on the decision in R. v. McCaw, 2018 ONSC 3464. In that case, at the outset of trial, the defence brought an application seeking a declaration that 33.1 of the Criminal Code was invalid and of no force and effect on the basis that a previous Superior Court decision had found that the provision was unconstitutional. Noting that in three subsequent cases, the Superior Court had considered the constitutional issue anew, it not having been argued in those cases that the court was bound by the earlier decision, Spies J. stated, at paras. 76-77:
... If a judge of this Court finds that a provision of a statue is unconstitutional, by virtue of s. 52 of the Constitution Act and [R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96], that provision is invalid for all future cases – it is "off the books." Coming to this conclusion does not require a consideration of judicial comity. In my view, the question of judicial comity has no relevance to the issue before me.
[77] Accordingly, it follows that if a judge of this Court has already declared s. 33.1 of the Criminal Code as unconstitutional then s. 33.1 has effectively been removed from the Criminal Code and I am bound by that decision. If the applicant's interpretation of [R. v. Dunn, 1999 36525 (ON SC), [1999] O.J. No. 5452 (S.C.)] is correct, then by virtue of that decision, as of its release in 1999, s. 33.1 of the Criminal Code was of no force and effect in the province of Ontario, and that remains the case unless and until that decision is overturned, or I suppose my decision to find that I am bound by Dunn is overturned by a higher court.
[19] A similar argument was made by one of the appellants in Sullivan (see para. 31 of that decision). The Court of Appeal referred, at para. 33, to McCaw, and to "an obiter comment made in another context, where, "in R. v. Boutilier, 2016 BCCA 24, 332 C.C.C. (3d) 315, at para. 45, Neilson J.A. commented that a declaration is "a final order in the proceeding directed at the constitutionality of [the impugned provision], binding on the Crown and on other trial courts of [the] province" (emphasis added)."
[20] Paciocco J.A. disagreed with that approach, finding (at para. 34 of Sullivan), that the ordinary principles of stare decisis applied. He continued, at para. 35:
After all, declarations made by trial courts are subject to appeal, and if overturned on appeal, will have no effect. Even on Mr. Chan's theory, superior court declarations are not binding outside of the province in which they are made. In these circumstances, it cannot be said that a superior court declaration determines the validity or enforcement of the statute "for all future cases", effectively removes the impugned provision from the statute books, or throws the ball back into Parliament's court. These things happen only if the Supreme Court of Canada affirms or makes a s. 52(1) declaration.
[21] Paciocco J.A. gives an example to underscore his rationale (at para. 39):
For example, three superior court judges in succession could find a provision to be constitutional, but the fourth judge's ruling to the contrary would be the only one to have full force or effect in the province. Unless that fourth decision is appealed, it becomes the law in the province. The Crown can no longer rely on the provision; therefore, decreasing the prospect that the issue of constitutional validity would make it before the provincial appellate court. The development of the law would be driven by coincidence in the sequence of trial level decisions and the fortuity of discretionary decisions about whether to appeal, when it should be determined by the quality of the judicial ruling.
[22] The applicant argues that Paciocco J.A.'s comments are obiter and do not displace the principle enunciated by Spies J. in McCaw.
[23] The Latin terms ratio decidendi and obiter dicta are frequently employed in connection with the system of adhering to precedent in judicial decision-making, or, to use the Latin term, stare decisis.
[24] In David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161 (C.A.), Laskin J.A. offered the following description of stare decisis:
[119] The values underlying the principle of stare decisis are well known: consistency, certainty, predictability and sound judicial administration. Adherence to precedent promotes these values. The more willing a court is to abandon its own previous judgments, the greater the prospect for confusion and uncertainty. "Consistency", wrote Lord Scarman, "is necessary to certainty -- one of the great objectives of law": see Farrell v. Alexander, [1976] 1 All E.R. 129, [1977] A.C. 59 (H.L.), at p. 147 All E.R. People should be able to know the law so that they can conduct themselves in accordance with it.
[120] Adherence to precedent also enhances the legitimacy and acceptability of judge-made law, and by so doing enhances the appearance of justice. Moreover, courts could not function if established principles of law could be reconsidered in every subsequent case. Justice Cardozo put it this way in his brilliant lectures on The Nature of the Judicial Process (New Haven: Yale University Press, 1960) at p. 149:
[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him.
[25] Laskin J.A. was addressing the effect on the Ontario Court of Appeal of precedents from that court. Lower courts are, of course, required to follow binding precedent of higher courts: Robert J. Sharpe, Good Judgment: Making Judicial Decisions, (Toronto: University of Toronto Press, 2018), at pp. 153-155.
[26] Put more bluntly, but nevertheless effectively, by Ewaschuk J. in R. v. Hummell (1987), 1987 4075 (ON SC), 36 C.C.C. (3d) 8 (Ont. H.C.) at p. 11:
... the doctrine of precedent whereby the decision of a higher court binds a lower court also applies to Charter issues. To permit individual judges to make separate rulings on Charter issues without regard to rulings of higher courts would result in palm-tree justice and would displace the rule of law.
[27] Obiter dictum (plural obiter dicta) in the context of legal precedent is understood as "that which is said in passing". It is judicial commentary that is extraneous to the resolution of the case. Master Linda S. Abrams, Kevin P. McGuinness and Jay Brecher in Halsbury's Laws of Canada - Civil Procedure (Toronto: LexisNexis, 2017 Reissue), at HCV-28, describe what ratio decidendi is, and, in that way, define what obiter is not:
The term ratio decidendi describes the process of judicial reasoning that was necessary in order for the court to reach a result on the issues that were presented to it for a decision. All other comments contained within the reasons of the prior court are termed obiter dicta, and in essence such incidental remarks are treated as asides. They may have persuasive value, but they are not binding.
[28] I do not accept the applicant's contention that I am not bound by the Court of Appeal's decision in Sullivan.
[29] The appellants in Sullivan were arguing that section 33.1 of the Criminal Code is unconstitutional, because it deprived them of access to a non-mental disorder automatism defence. One of the grounds of appeal raised by the appellant Chan was whether the trial judge was bound by precedent to accept the unconstitutionality of s. 33.1. He argued, as does Mr. Gerrond on the motion now before the court, that once a Superior Court judge declares a law to be unconstitutional, that declaration is binding on other Superior Court judges, unless the Crown has successfully appealed that decision.
[30] Paciocco J.A. squarely addressed that ground of appeal in paras. 31-41 of his reasons in Sullivan, ultimately rejecting it. His judicial reasoning, extracts of which I have quoted above, clearly consists of more than incidental remarks. It culminates in his resolution of the issue, namely whether a superior court declaration determines the validity or enforcement of the statute "for all future cases" in clear and unequivocal terms. At para. 38, he states:
Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made. (Emphasis added)
[31] As a result, the "shortcut" proposed by the applicant is not appropriate.
Process
[32] In Bickford, at para. 15, Quigley J. directed that in order to seek to apply the ruling in Reddick on the unconstitutionality of the s. 278.92 and associated provisions to the applicant's case, defence counsel would first need to bring a Notice of Constitutional Question with the requisite notice to the provincial and federal Crown, and other interested parties. At para. 14, he offered the following rationale:
I am motivated in reaching this conclusion by the obvious fact that the stipulations of the s. 278 regime are intended to be protective in nature, permitting access to documentation in particular circumstances, but potentially subject to the privacy interests of the complainants whose text messages are sought to be introduced into evidence. The provisions also permit the complainants to be represented. It is not clear to me how a simple direction of unconstitutionality in Reddick would suffice to bind a subsequent motions judge to follow it, regardless of facts and circumstances, which may differ significantly from those in Reddick.
[33] I agree with Quigley J's rationale, and his approach.
Disposition
[34] The applicant's requests for a declaration that this court is bound by the ruling in R. v. Reddick that sections 278.92, 278.94(2) and 278.94(3) were unconstitutional and of no force and effect pursuant to section 52 of the Constitution Act, 1982, is dismissed, without prejudice to the applicant bringing an application to challenge the constitutional validity of those sections, in accordance with the procedure established by Rule 27 of the Criminal Proceedings Rules.
Mew J.
Released: 22 June 2021
COURT FILE NO.: CR-19-142
DATE: 20210622
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JAMES D. GERROND Defendant/Applicant
REASONS FOR DECISION
Mew J.
Released: 22 June 2021
[^1]: R. v. C.C., 2019 ONSC 6449; R. v. A.C., 2019 ONSC 4270; R. v. B.G., 2021 ONSC 2299; R. v. Green, 2021 ONSC 2826 [^2]: R. v. A.M. 2020 ONSC 8061 at para 59; R. v. Green, 2021 ONSC 2826 at para. 24 [^3]: R. v. B.G. 2021 ONSC 2299 at para. 7