Court File and Parties

Court File No.: CR-21-89-0000 Date: 2023 10 25 Superior Court of Justice - Ontario

Re: His Majesty the King And: A.H.

Before: Coats J.

Counsel: Kelli Frew, for the Crown Charles Spettigue, for Defence

Heard: October 10, 2023

Publication Restrictions

R ES TR I CT ION ON P UBL IC A T ION Pursu a nt t o s. 648(1) o f t he C r i m in a l Co de , no i n f o r m ati o n r e g arding this portion o f t he trial shall b e publ i s h ed in a ny d ocu m ent o r br o ad c ast or tra n s m itt e d in any w a y b ef o re t he jury reti r es to c o nsid e r its v erdict.

PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Application Endorsement

Reasons for Ruling Re: Leave to Re-Open

Nature of Application:

[1] A.H. made several pre-trial applications to the Case Management Justice, Justice Kurz. This included an application pursuant to s. 276 of the Criminal Code during the week of June 12-16, 2023. The decisions were reserved. In an omnibus ruling dated July 27, 2023, Kurz J. denied A.H’s s. 276 application.

[2] I was assigned as the trial justice. On the day before jury selection, October 9, 2023, counsel for A.H. served a new Notice of Application wherein he sought leave to apply to reopen before the trial justice the portion of Kurz J.’s ruling that deals with evidence related to a game referred to as “Spin The Vape.”

[3] I heard argument on this application after the jury selection of October 10, 2023, and in the absence of the jury. On October 11, 2023, I advised that the application was dismissed, with written reasons to follow. These are the reasons.

The Law on Re-Opening Rulings:

[4] The legal test for re-opening a ruling made by a case management judge is set out at paragraphs 10-24 of R v. Lu, 2022 ONSC 6578:

[10] When she ruled on the statement, Justice Baltman was presiding over the pre-trial motions as a case management judge. The Criminal Code, (R.S.C., 1985, c. C-46) permits that prior rulings of a case management judge may be revisited at trial if doing so is “in the interests of justice.” Section 551.3(4), which is in the case management part of the Code, reads,

A decision that results from the exercise of the power referred to in paragraph (1)(g) [the adjudication power] is binding on the parties for the remainder of the trial — even if the judge who hears the evidence on the merits is not the same as the case management judge — unless the court is satisfied that it would not be in the interests of justice because, among other considerations, fresh evidence has been adduced.

[11] The “interests of justice” phrase is exceedingly broad. In R v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), Doherty J.A. commented on the breadth of the same clause in s. 684(1) of the Code which gives the Court of Appeal authority to appoint counsel on an appeal. He said,

The phrase "interests of justice" is used throughout the Criminal Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case by case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused. [Emphasis added.]

[12] The same “interests of justice” phrase is used in the related context of s. 653.1 of the Code which makes pre-trial rulings in a case that is later mistried presumptively binding on a subsequent trial judge: R. v. Victoria, 2018 ONCA 69, [2018] O.J. No. 710; R. v. Beals, 2022 ONSC 2574.

[13] Fresh evidence, unlike in s. 653.1, is specifically mentioned in s. 551.3(4). The application to reopen could be based on “other considerations” as well. But the case at hand relies on fresh evidence to support the application to re-open.

[14] As in other contexts, the “interests of justice” phrase was a deliberate choice by Parliament to embrace any evidence or argument sufficient to justify departing from a prior trial judge’s ruling. The Court of Appeal in Victoria at paragraph 55 prepared a long non-exhaustive list of the type of matters that could be included under s. 653.1. A similar list could be compiled with respect to s. 551.3(4).

[15] Section 551.3(4) has the same structure as s. 653.1. The prior ruling is presumptively binding; the presumption is rebuttable, but no standard is articulated. The open list of matters capable of rebutting the presumption, in conjunction with the interests of justice standard, gives the presiding judge a particularly open-ended discretion.

[16] The rationale behind the presumption is efficiency and judicial economy, critical values in modern day criminal justice. Justice Watt said in Victoria at para. 49,

[Section 653.1] represents a parliamentary determination to limit or minimize the consequences of a mistrial on court resources by restricting relitigation of certain issues determined in the prior proceedings.

[17] I said in Beals, at para. 22, with respect to s. 653.1:

The purpose of s. 653.1 is to promote economic use of court time, efficiency, judicial comity and to protect interests akin to the rule against collateral attack. In a post-Jordan world, those gals have taken on renewed urgency. Re-litigation can be very time consuming and often is of little or no benefit.

[18] The same is true of s. 551.3(4). It is no exaggeration to say that the case management system in criminal cases is now indispensable to the functioning of the trial docket in Ontario. While it might be preferable from the point of view of institutional continuity to have the same judge stay with a case from the pre-trial motion stage right through the trial, this is often not feasible. The crush of cases-- their length and complexity—often preclude a one-judge solution to cases with a significant pre-trial component.

[19] The case management system permits cases to be broken into several segments. The pre-trial segments and then the trial can be presided over by different judges. This facilitates the scheduling of pre-trial motions and applications and the trial. Wasted time in waiting for the trial judge to become free is minimized. Piecemeal hearing of pre-trail applications allows the judicial work for each matter to be packaged into more compact time allocations, fitting the segments neatly together and preserving valuable judicial resources.

[20] In present day criminal procedure, a system without case management and the separation of pre-trial work from trial work would be untenable. In the Central West Region, an already badly overburdened system would collapse into chronic delay and regular Jordan stays.

[21] In this environment, issues previously decided should not be reargued without good cause. The system cannot bear redoes without a persuasive justification. As a result, as there was in this case, there should be a hearing in which leave is sought to embark on a full reconsideration of the previous decision. This hearing was less than a half day but ideally a s. 551.3(4) application ought to be considerably shorter.

[22] The leave requirement acts as a crucial safeguard to channel and narrow the breadth of s. 551.3(4). Several aspects of the discretion to be exercised are relatively clear. Key is that there be very substantial deference to the previous ruling. It would be clearly inappropriate for a trial judge to substitute his or her discretion for that of the case management judge. It is obvious that the standard of review for overturning a case management decision cannot be correctness. That would encourage re-litigation and initiate a potentially endless cycle of revolving judicial consideration. In exercising the s. 551.3(4) discretion, a judge must also be cognizant that if convicted or acquitted, the losing party will have appellate remedies available to them.

[23] The discretion to arrive at a result different than the case management judge will come into play where there is new and fresh evidence, an obvious and demonstrable error of law or a clearly inappropriate decision: see by analogy R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 139; s. 686(1)(a) of the Criminal Code.

[24] Procedurally, an application ought to be determined largely on a written presentation with oral argument as a means to highlight and complement the applicant’s position. To protect the system and to ensure timely resolution of cases, in a s. 551.3(4) application, a judge has the power to summarily dismiss the application if there is no reasonable prospect of success: Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, Rule 34.02.

The Applicant’s Position

[5] It is the applicant’s position that it is in the interests of justice to re-open Kurz J.’s ruling on three basis- one, fresh evidence; two the release of the Court of Appeal’s decision in R. v. Choudhary, 2023 ONCA 467, 89 C.R. (7th) 149; and three, Kurz J. misapprehended the evidence and the submissions of defence counsel.

The Crown’s Position

[6] The Crown opposed the reopening.

Analysis

[7] I will deal with the applicant’s three submissions. Overall, I deny the applicant leave to embark on a full reconsideration of the previous decision.

a) Fresh Evidence

[8] The fresh evidence the applicant seeks to rely on is the Affidavit of A.H., affirmed October 9, 2023.

[9] In Lu, the fresh evidence test is described at paragraphs 25-30:

[25] In this instance, the defence relies on fresh evidence, a basis explicitly referred to in s. 551.3(4). The Applicant Lu argues that the fresh evidence adduced requires a reassessment of the prior ruling. There is no direct attack made on the previous ruling of Justice Baltman.

[26] To build the analytic framework for this application, it makes logical sense to borrow from the fresh evidence jurisprudence with respect to criminal appeals. This is what the Supreme Court did in the bail review decision in St. Cloud, at paras. 122-138. The fresh evidence test from Palmer v. The Queen, was adapted to fit the bail context. The same approach should be used under s. 551.3(4) of the Code.

[27] The four-part test as it appears in R. v. Warsing, 1998 SCC 775, [1998] 3 S.C.R. 579, at para. 50, is,

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial... (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[28] There may well be some differences of approach between the due diligence requirement for appellate review of a conviction or acquittal and the s. 551.3(4) discretion. Finality on appeal may well be a more pressing value than finality of a ruling by another judge during the trial stage.

[29] As a comparison, however, finality is much less important in the ever changing, fluid context of a decision whether to release an accused on bail: St. Cloud, at para. 130; R. v. Jaser, 2020 ONCA 606, 152 O.R. (3d) 673 (C.A.), at paras. 52-53; R. v. Saracino, [1989] O.J. No. 28, 47 C.C.C. (3d) 185 (S.C.J.), at para. 17. In the bail review context, the Supreme Court has said, in effect, that with a change of circumstances, due diligence will rarely be a factor in defeating a review application: St. Cloud, at para. 134.

[30] It is enough to say that in the present case, there is a strong societal interest in not allowing a “second kick at the can” without good and sufficient reason. The case management process in criminal matters must be protected. But it must yield in appropriate circumstances to ensure trial fairness. The comments of the Supreme Court in Warsing, at para. 51, are apropos:

It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.

[10] The Affidavit of A.H. could have been adduced before Kurz J. Further, the issue of the vape game was squarely before Kurz J. and specifically referenced in his Endorsement. The complainant was questioned about whether she knew what “seven minutes in heaven” meant at the preliminary hearing and referred to “a spin the bottle game”. Clearly, the defence knew about this before the application was before Kurz J.

[11] In A.H’s Affidavit, he refers to a meeting with counsel during the week of October 2, 2023 and it becoming clear that he could not respond to the complainant’s allegations and defend himself if he couldn’t talk about the vape game. This is not fresh evidence. Presumably, this is why defence counsel brought the s. 276 application in the first place. It is not in societal interest to allow a “second kick at the can” (see para. 30 of R v. Lu).

b) R v. Choudhary

[12] The decision in Choudhary was released July 4, 2023. It was released after submissions before Kurz J. but before his decision was released. The applicant submits that the law was changed in Choudhary and that Kurz J. did not have the benefit of submissions in this regard. The applicant specifically refers to paragraphs 30-34 of Choudhary:

[30] In engaging in that exercise, trial judges may want to keep the following in mind.

[31] First, while there are no bright line rules, trial judges should use their common sense and not artificially parse a sequence of events that may be integrally connected. For example, other sexual activity may include sexual words and gestures that are anchored to the sexual activity that forms the subject-matter of an alleged sexual assault because they were made immediately before, during or immediately after the sexual activity at issue.

[32] Second, it is important to keep in mind that one of the underlying purposes of the regime is to prevent trials from becoming infected with twin-myth and stereotypical reasoning based on the complainant’s sexual history. Section 276(2)(a) expressly prohibits the admissibility of evidence of other sexual activity for twin-myth reasoning. Keeping this underlying purpose in mind may help guide the analysis of what this provision was meant to exclude and whether this other sexual activity should be screened.

[33] Third, if a trial judge is uncertain about whether the other sexual activity is integrally connected to the sexual activity that forms the subject-matter of the charge, the trial judge should proceed with screening the evidence. This is consistent with the approach of the majority decision in R. v. J.J., 2022 SCC 28, 471 D.L.R. (4th) 577. In that case, the majority upheld the constitutionality of ss. 278.92 to 278.94 of the Criminal Code and the procedure to determine if a “record” relating to the complainant and in the possession of the accused is admissible. Such evidence is inadmissible unless a judge determines that the conditions for admissibility in those provisions have been met. The majority noted that if it was unclear whether the evidence is a “record” as defined under s. 278.1, counsel should err on the side of caution and initiate the screening process as reviewed above. The majority also had the following guidance for trial judges, at para. 104:

The test we have articulated for interpreting s. 278.1 is designed to assist counsel and judges in reducing the need for motions for directions. However, in cases where the accused does bring a motion for directions, the presiding judge must decide whether the proposed evidence is a “record”. Where, in the opinion of the judge, the evidence is clearly a “record”, the judge should deal with the matter summarily and order the accused to proceed with a private record application. Equally, where the judge is uncertain whether the proposed evidence is a “record”, they should instruct the accused to proceed with an application. Only if the judge is clearly satisfied that the proposed evidence does not constitute a “record” should they direct that the accused need not bring an application. [Emphasis added.]

[34] Although this appeal does not involve a motion for directions to determine if something is a “record”, the same approach would be warranted considering the shared purpose of the legislation. I note that the determination as to whether other sexual activity is within the ambit of s. 276 does not determine admissibility. In short, if a judge harbours some reservations that the other sexual activity does not form the subject-matter of the charge, they should act with caution and proceed with a s. 276 analysis. Ultimately, the evidence may be ruled admissible. [Footnotes omitted.]

[13] In my view these paragraphs summarize the existing law, which Kurz J. applied. The law was not changed. It is not in the interests of justice to reopen the case on this basis.

c) Misapprehension of evidence on submissions

[14] Kurz J. did not misapprehend the evidence with respect to the vape game. It is summarized at paragraph 122 of his Endorsement. The applicant submits that Kurz J. misapprehended the purpose for which the applicant intended to use the evidence, by Kurz J.’s reference to advance consent. The applicant further submits that the purpose was two-fold to explain why only the complainant, Mr. Stewart and the applicant got in the vehicle after the first parking lot and on the defence of honest but mistaken belief. Kurz J. did not misapprehend the argument on the first point. On the second, the Affidavit of A.H. makes clear that his position is that every aspect of what happened in parking lot 2 occurred with the complainant’s explicit consent. Honest but mistaken belief is not in issue. Similar to what is set out at paragraph 23 of R v. L.A., 2019 ONCA 877, “this is not a case where it was possible to splice together a coherent set of facts capable of supporting the suggestion of a mistaken belief in consent.” There was no misapprehension by Kurz J.

Conclusion

[15] The applicant’s request for leave to re-open Kurz J.’s ruling is dismissed.

Coats J. Date: October 25, 2023