R. v. Tait, 2021 CM 2009

COURT MARTIAL Citation: R. v. Tait , 2021 CM 2009 Date: 20210506 Docket : 202040 Standing Court Martial Asticou Centre Gatineau, Quebec, Canada Between: Sergeant C.A. Tait, Applicant - and - Her Majesty the Queen, Respondent Before: Commander S.M. Sukstorf, M.J. RESTRICTION ON PUBLICATION Pursuant to

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , the Court orders that any information that could disclose the identity of the person described during these proceedings as the complainant shall not be published in any document or broadcast or transmitted in any way. DECISION ON ACCUSED’S APPLICATION SEEKING A REMEDY UNDER

SECTION 52 OF THE CONSTITUTION ACT, 1982 FOR BREACH OF RIGHTS GUARANTEED UNDER

SECTION 7 AND PARAGRAPH 11( d ) (Orally) Introduction [ 1 ] On 22 September 2020, the Director of Military Prosecutions (DMP) preferred one charge for an offence contrary to

section 130 of the National Defence Act ( NDA ) that is sexual assault, contrary to

section 271 of the Criminal Code against the applicant. [ 2 ] On 11 February 2021, the Court Martial Administrator convened a Standing Court Martial for the trial of the applicant to be

held from 12 to 23 April 2021 in 4th Canadian Division Support Base. [3] Historically, complainants in sexual assault cases were subjected to unfair and irrelevant cross-examination on their priorsexual history. Both the courts and Parliament reacted to eliminate such attacks and the landscape has evolved over the past severaldecades. [4] Parliament’s initial attempt to exclude all prior sexual history evidence with

section 276 of the Criminal Code was foundunconstitutional by the Supreme Court of Canada (SCC) in R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577. [5] Parliament reacted to the Seaboyer decision by amending the

section 276 regime, incorporating changes that were laterupheld in R. v. Darrach, 2000 SCC 46 , [2000] 2 S.C.R. 443. [6]

Section 276 of the Criminal Code sets out legislative protection of sexual assault complainants. As such,

section 276 is alegislative exclusionary rule that prohibits evidence that the complainant has engaged in other sexual activity (OSA), which is not thesubject of the charges, with the complainant or any other person if the evidence is intended to support one or the other of the “twinmyths”. [7] The twin myths are: a woman who has consented to sexual activity in the past is more likely to have consented to it on thisoccasion and, secondly, an unchaste or sexually active woman is less worthy of belief. [8] In short, an accused may not tender evidence of a complainant’s sexual history unless and until the accused meets theadmissibility criteria set out in subsection 276(2).

Even if the OSA is not being used to support either of the twin myth inferences, OSAis not admissible unless a judge determines that the evidence is of specific instances of sexual activity; relevant to an issue at trial; andhas significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [9] A related issue was the access to and use of a complainant’s medical, counselling or other private records that were in thehands of third parties.

Parliament enacted a production regime for these third-party records by enacting sections 278.1 through 278.91.The framework set out a process whereby an accused could apply to the court, in advance of a trial, for the production of third partyrecords for vetting and, if relevant, disclosure to the defence. The SCC upheld the constitutionality of this third party records scheme inthe case of R. v.

Mills, (SCC), [1999] 3 S.C.R. 668. [10] As the law surrounding sexual assault continued to evolve, concerns regarding private records belonging to the complainant,but in the possession of the accused, started to develop and attract interest. [11] In R. v. Osolin, (SCC), [1993] 4 S.C.R. 595, one of the issues related to circumstances under which defencecan cross-examine a complainant on records that were already in the accused’s possession. In Osolin, the majority held that where issuesarise during the cross-examination of a complainant in a sexual assault trial, a voir dire must be held.

The Court also held that the onuswas on the defence to demonstrate that the proposed cross-examination was appropriate and a jury would need to be instructed on theproper use of the evidence. [12] A few years later in R. v. Shearing, 2002 SCC 58, the SCC dealt with this same issue again when the accused had the privatediary of a complainant in his possession. Defence counsel confronted the complainant with the diary on cross-examination. The trial wasadjourned and the complainant retained legal counsel to represent her privacy issues.

The Court found that the fact that the diary was inthe possession of defence counsel did not extinguish the complainant’s privacy interest in its contents. Although the SCC in Shearingordered a new trial because the accused’s cross-examination of the complainant had been unnecessarily restricted, it endorsed theholding of a voir dire during cross-examination to determine whether cross-examination could occur with respect to the private recordand set out the scope of permissible cross-examination. [13] On 13 December 2018, Bill C-51 was enacted into law.

Sections 278.93 and 278.94 of the Criminal Code replaced theprocedural protocols previously set out in sections 276.1 and 276.2 of the Criminal Code.

[ 14 ] Bill C-51 amended, among other things, the procedure to determine the admissibility of evidence of OSA of the complainant. In doing so, it also expanded the definition of "sexual activity" to include "any communication made for a sexual purpose or whose content is of a sexual nature.” [ 15 ] With respect to records in the possession of the accused that do not relate to “sexual activity" evidence under

section 276, a new provision was also implemented,

section 278.92, which created a regime to determine the admissibility of private records that are already in the possession of the defendant, over which the complainant has a reasonable expectation of privacy. The nature of this evidence would include such things as emails, texts or other documentary evidence that the accused may have that relates to the complainant. [ 16 ] Both the new and older provisions are attached as Annex A. The amended sections are essentially the same as the repealed sections, with two exceptions.

Prior to admitting into evidence or cross-examining any sexual activity other than the sexual activity that forms the subject matter of the charge, or any record that is in the possession or control of the accused relating to a complainant containing personal information for which there is a reasonable expectation of privacy, the complainant has the right to participate in the hearing (see sections 276 and 278.92). Secondly,

section 278.94 provides that a complainant "may appear and make submissions" at a hearing held in relation to a defence application under sections 276 or 278.92 and may be represented by counsel. [ 17 ] In addition, subsections 278.94 (2) and (3) establish that:

(2) The complainant is not a compellable witness at the hearing but may appear and make submissions.

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel. [ 18 ] In filing this application, the defendant has indicated that he intends to ask the court to permit the cross-examination of the complainant on evidence of OSA of the complainant that does not form the subject matter of the charge. [ 19 ] Step one of the process has not changed.

If an accused seeks to have OSA admitted, the accused must make an application to the trial judge for a hearing to determine admissibility of the OSA (see subsection 278.93(1) of the Criminal Code ).

The defence must submit an application in writing and file an affidavit with detailed particulars of the evidence it seeks to produce and the Crown and Office of the Chief Military Judge must be served at least seven days in advance of the hearing or any shorter interval as ordered . [ 20 ] The first step of the application is held in camera pursuant to subsection 278.93(3) and, if the judge is satisfied that the application was made in accordance with subsection 278.93(2), the trial judge shall grant the application and hold a hearing under

section 278.94 to determine whether the evidence is admissible under subsection 276(2). [ 21 ] Step two determines whether the evidence is admissible pursuant to

section 278.94 . Once again, the hearing is in camera (see subsection 278.94(1). It is the second step that changed with Bill C-51. Prior to the amendments, the complainant did not participate in a hearing to determine the admissibility of “her” private information or her OSA.

The amendments added the right of both the complainant and the complainant’s counsel to appear at the hearing to determine admissibility and to “make submissions” (see subsections 278.94(2) and (3)). [ 22 ] After the hearing, the trial judge must determine if the evidence sought, or any part of it is admissible under subsection 276(2) and the judge shall provide reasons for the decision (see subsection 278.94(4)). [ 23 ] On 12 March 2021, the applicant filed a Notice of Constitutional Question on the constitutional validity and applicability of sections 278.93 to 278.94 of the Criminal Code . [ 24 ] On 12 March 2021, the applicant also brought a notice of application seeking a declaration pursuant to

section 52 of the Constitution Act, 1982 that sections 278.93 to 278.94 of the Criminal Code are of no force or effect because they violate the applicant’s Charter rights as guaranteed by

section 7 and paragraph 11 (

d) and/or any other relief this Court sees fit. [ 25 ] Since the coming into force of the new provisions, trial courts across the country have been divided on the question of

whether some or all of the amended provisions pass constitutional scrutiny. There is absolutely no unanimity even within the sameprovinces and there are no appeal court decisions on the matter. This is the first time this issue is being heard within the military justicesystem and consequently, this Court does not have to address the issues surrounding judicial comity that other judges were confrontedwith addressing in other jurisdictions. [26] On this subject, the case of R. v. J.J., 2020 BCSC 29 was granted leave to appeal by the SCC: Her Majesty the Queen v. J.J.,SCC No. 39133 [23 July 2020]. The case of R. v.

Reddick, 2020 ONSC 7156, has now joined J.J., in the direct appeal to the SCC. TheSCC is tentatively set to adjudicate on the issues set out in those appeals in October 2021. [27] In response to the applicant’s Notice and Application, the prosecution took the position that, in order for the applicant tochallenge the provisions in question, he had to first disclose the OSA he sought to have introduced. [28] Relying upon R. v. Mills, (SCC), [1999] 3 S.C.R. 668 at paragraphs 19 and 35 to 42, the applicant argued itwas not a necessary prerequisite.

In hearing the prosecution’s motion to quash the application, the Court agreed with the applicant andaccordingly determined there was nothing more required than a reasonable hypothetical before the Court. [29] The Court benefited from counsel’s written and oral submissions on the issue before the Court. In addition, the Courtrequested that Ms Way, who is an experienced legal counsel representing complainants, appear and make submissions to ensure that theCourt is informed of a complainant’s perspective.

Positions of the Parties Defence (Applicant) [30] The applicant argues that constitutional breaches of an accused’s

section 7 and paragraph 11(

d) Charter rights arise from thecumulative effect of the following factors: (

a) the significant burden that the accused must meet in order to introduce evidence under

section 276; (

b) the extent of evidence and trial strategy that the accused must reveal in order to meet the burden established by

section 276; (

c) the advance notice requirement contained at subsection 278.93(4) which obliges the accused to reveal important aspects of hisdefence well in advance of the complainant’s testimony at trial; (

d) the expanded definition of “sexual activity” at subsection 276(4), which now includes any communication made for a sexualpurpose or whose content is sexual in nature; (

e) the involvement of the complainant at the admissibility hearing under subsection 278.94(2) and 278.94(3), permitting her toparticipate in the hearing and be represented by counsel; and (

f) the degree to which the complainant’s involvement in the admissibility hearing undermines the vital role of the prosecution. [31] The applicant further argues that the impugned provisions (subsections 278.94(2) and (3)) state that the complainant is not acompellable witness but may appear and make submissions. He argues that there is no mention of a right to receive materials in advanceof the hearing or the right of cross-examination by the complainant or her counsel and guidance is sought on these issues. It is theapplicant’s position that the

interpretation of the impugned provisions play a significant role in the ultimate violation of the accused’srights under

section 7 and paragraph 11(

d) of the Charter.

[ 32 ] In short, the applicant argues that it is the degree of participation afforded to the complainant in the admissibility hearing, combined with the advance notice requirement that renders the later cross-examination of the complainant ineffective, thereby violating the accused’s Charter rights. [ 33 ] Consequently, during oral submissions, the applicant also requested that in rendering its decision on the issue of constitutionality of the impugned provisions, that the court also answer the following questions, which counsel argues underpins whether or not the changes render the process constitutional: (

a) What information should the complainant receive – affidavit and application? (

b) What is the prosecution’s duty to consult with the complainant – with or without counsel – whether or not she is appearing at the hearing? (

c) Should the complainant be offered any opportunity to attend or participate at Stage 2? (

d) If complainant does have some level of involvement, what should be the extent of her participatory rights? (

e) What is the proper timing for the two stages to be considered? Prosecution (Respondent) [ 34 ] Conversely, the prosecution submitted that the 2018 Bill C-51 is simply an incremental step to further protect the privacy and dignity rights of victims of sexual violence. In doing so, he argued that Parliament requires that an accused bring an application if they wished to adduce, in a public courtroom, the private documents of a complainant of sexual violence.

Parliament further granted the complainant, who is the person most impacted by these documents, standing at that hearing. [ 35 ] The prosecution asked the Court to reject the application. He submitted that the sections 278.93 to 278.94 framework, properly interpreted, respects the accused’s Charter rights. Further, he submitted that while these provisions have been the subject of significant trial level litigation, the majority of courts have upheld the constitutionality of the impugned provisions, especially as it relates to evidence captured by

section 276 of the Criminal Code . [ 36 ] He further submitted: (

a) Sections 278.93 and 278.94 are constitutional as they align with the principles of fundamental justice. The provisions achieve the proper balance between the accused’s right to make full answer and defence, the complainant’s right to privacy, security and equality, and society’s interest in encouraging victims of sexual assault to report. (

b) By adding the sections 278.92 , 278.93 and 278.94 to the Criminal Code , Parliament filled a legislative gap as it pertained to third party records already in the hands of the accused. (

c) The current framework set out in sections 278.93 and 278.94 of the Criminal Code captures extrinsic sexual activity in a very similar manner as the prior

section 276 regime which was deemed constitutional in Darrach . The additional participatory rights of the complainant at the admissibility hearing align it with the framework for adducing third party records not in the hands of the accused (sections 278.1 to 278.91), deemed constitutional in Mills .

Issues [ 37 ] The constitutional question before the Court is whether sections 278.93 to 278.94 of the Criminal Code infringe

section 7 and paragraph 11(

d) of the Charter and, if so, whether they were saved by

section 1. [ 38 ] Although the above two provisions relate to the admissibility of evidence of both OSA and records in which the complainant has a reasonable expectation of privacy, in the case at hand, the focus was on the constitutionality of those sections as they relate to the admissibility of evidence of OSA.

Summary of decision [ 39 ] For the reasons that follow, I find that the complainant is entitled to receive the defence’s full notice of application and/or factum as well as the sworn affidavit prior to the Stage 2 hearing. I further find that the complainant’s and her independent legal counsel’s participation at the hearing includes the ability to ask questions of the affiant. The purpose of this type of voir dire is to assist and provide the trial judge with the necessary information needed for the judge to make an informed decision on relevancy and no party has the right to exploit it for an improper purpose.

Consequently, a trial judge has a duty to limit and control any cross-examination. [ 40 ] With respect to the Notice of Constitutional Question, I find that sections 278.93 to 278.94 of the Criminal Code do not infringe the accused’s rights under

section 7 and paragraph 11(

d) of the Charter because the statutory procedure set out for the determination of the admissibility of evidence of extrinsic sexual history can be applied in a manner consistent with the principle against self-incrimination, the right to a fair trial and the complainant’s rights to privacy and equality. After Seaboyer , Parliament specifically provided trial judges with discretion to ensure that they do not exclude relevant evidence whose probative value is not substantially outweighed by its potential prejudice.

The changes enacted with the new provisions in sections 278.93 and 278.94 did not change or remove this discretion. [ 41 ] The SCC has continually reminded trial judges that they hold the ultimate responsibility for enforcing compliance with the mandatory regime.

Although the SCC recognized that the “vetting” of such applications pre-trial provide benefit in focusing all parties on the legitimate use of such evidence, it also made it clear that an early ruling on the admissibility of prior sexual activity is not set in stone and there may be circumstances when it is appropriate to reopen and reconsider the application (see R. v. Barton , 2019 SCC 33 at paragraphs 65 and 68 ; R . v . R.V ., 2019 SCC 41 ; R. v.

Goldfinch , 2019 SCC 38 at paragraph 145 ). [ 42 ] The SCC also recognized that c ross-examination is a key element of the right of an accused to make full answer and defence and a judge’s failure to allow relevant cross-examination will almost always be grounds for a new trial.

In short, if the defence is denied the right to call and challenge evidence, then it is synonymous to the denial of his right to rely on a defence to which he is legally entitled. [ 43 ] Consequently, a trial judge must exercise her discretion to hear and possibly revisit decisions when the door to admissibility opens or when the appropriate relevance has been established, which sometimes will not occur until after a complainant has testified and the appropriate evidence is before the court . [ 44 ] Unlike the findings rendered in some courts, this Court finds that there is no statutory bar or common law limitation that prevents a trial judge from hearing a

section 276 application after a complainant has testified in their examination-in-chief. Further, I find that the purpose and objectives of the legislative regime, including the recent changes, are met by permitting such a mid-trial application. Law [ 45 ] The concerns raised with respect to the legislative changes ushered in under Bill C-51 are focused on the cumulative effect of all the changes to an accused’s

section 7 and paragraph 11 (

d) Charter rights which read as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance

with the principles of fundamental justice. . . . 11. Any person charged with an offence has the right . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [ 46 ] The applicant seeks relief pursuant to

section 52 of the Constitution Act, 1982 . Primacy of Constitution of Canada 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes (

a) the Canada Act 1982 , including this Act; (

b) the Acts and orders referred to in the schedule; and (

c) any amendment to any Act or order referred to in paragraph (

a) or ( b ). Amendments to Constitution of Canada

(3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada. Analysis

Section 7 [ 47 ] As a serving member of the Canadian Armed Forces (CAF), the applicant is entitled to all the protections of the Charter. In simple terms,

section 7 of the Charter permits a decision maker in the military justice system to impose restrictions on the life, liberty and security of its members provided it does so in a way that is not contrary to the principles of fundamental justice. An analysis as to whether or not the sections 278.93 and 278.94 of the Criminal Code lead to a violation of the applicant’s rights guaranteed under

section 7 of the Charter involves a two-step assessment: (

a) Is there an infringement of one of the three protected rights, that is to say a deprivation of life, liberty or security of the person?

(

b) Is the deprivation in accordance with the principles of fundamental justice? [ 48 ] T he first step of the

section 7 analysis is straightforward, as sections 278.93 and 278.94 of the Criminal Code have the capacity to deprive the accused of his liberty. If the accused is convicted of sexual assault, he may be sentenced to imprisonment. Insofar as sections 278.93 and 278.94 are applied in a manner that affects conviction, they may deprive him of his liberty. [ 49 ] In Seaboyer , McLachlin J. found that the right of an accused to make “full answer and defence” is a principle of fundamental justice, protected by

section 7 of the Charter as explained, at page 608: The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. [ 50 ] After hearing the submissions of counsel, it became clear that there is no dispute that the accused’s right to a fair trial is a principle of fundamental justice.

Further, both counsel conceded that the legislation seeks to create conditions that encourage the reporting of sexual offences and protect the complainant's privacy, which are legitimate goals provided they do not interfere with the accused’s right to a fair trial. [ 51 ] The issue that concerns the applicant is that the cumulative effect of the new provisions has destabilized the delicate balance that previously existed.

In doing so, it is the applicant’s position that the new provisions combined with the advanced notice requirement have tipped the scales too far in protecting a complainant’s privacy rights that the

section 276 protocol now infringes on the accused’s right to a fair trial. The question is whether the trier of fact will be able to get at the truth and properly and fairly dispose of the accused’s case. [ 52 ] Consequently, based on the facts of this application and the submissions of counsel, the Court must ask whether the challenged legislation infringes the Charter guarantee in its effect arising from the actual consequences of the legislation. [ 53 ] In short, a constitutional challenge under

section 7 and the right to a fair trial under paragraph 11(

d) overlap when the issue to be dealt with relates to overbreadth of the legislation in question. As such, the analysis for both alleged infringements unfolds primarily under one

section 7 analysis (see Darrach , at paragraph 23 ). [ 54 ] A determination as to whether or not sections 278.93 and 278.94 of the Criminal Code overreaches needs to be analyzed by considering the impact of the provisions on the purpose for which the legislation was implemented. The underlying purpose of the

section 276 regime was described most recently by the SCC in Barton , the Court also restated the purpose behind the legislation as follows: [74] Turning to purpose, the s. 276 regime’s objects — which include protecting the integrity of the trial by excluding irrelevant and misleading evidence, protecting the accused’s right to a fair trial, and encouraging the reporting of sexual offences by protecting the security and privacy of complainants ( see Seaboyer , at pp. 605-6; Darrach , at paras. 19 and 25 ) — are fundamental. Giving the s. 276 regime a broad, generous

interpretation that does not unduly restrict the regime’s scope of application would best achieve these objects. [ 55 ] After a thorough review of the jurisprudence on the issues surfacing from Bill C-51, I find the purpose of the legislative changes themselves which is the focus of this application is to further safeguard the privacy interests of complainants, while upholding a defendant’s right to a fair trial. This is best summarized by Doody J. in R. v. Barakat , [2019] O.J. No. 705 (Ont.

C.J.) as follows: [32] The purpose of the amendments in issue before me was, in my view, to strengthen the last of the three subsidiary purposes set out in Seaboyer , that of safeguarding the privacy interests of complainants, while upholding a defendant’s right to a fair trial. That was made clear by the Honourable Senator Murray Sinclair when he moved third reading in the Senate of Bill C-51.

He said: Bill C-51's changes safeguard the privacy interests of victims while upholding an accused's right to a fair trial, and they reinforce the long-standing rule that it is never permissible to introduce evidence of prior sexual activity in a criminal trial for the sole purpose of showing that a victim is more likely to have consented to the sexual activity at issue or is less worthy of belief. [33] In an earlier decision, R. v. Boyle , 2019 ONCJ 253 , I wrote at para. 3:

In my view, when Parliament granted the right to complainants to appear and make submissions at the hearing, it did so because it recognized that the complainant’s rights and interests could be affected by the decision to be made by the judge. Allowing the complainant the right to appear and make submissions would both give a measure of procedural fairness to the complainant and assist the court by granting it access to submissions from the perspective of one of the persons directly affected by the order. Bell J. agreed with that conclusion in R. v. E.A. , 2020 ONSC 6657 at para. 26 .

Analysis [ 56 ] In assessing the application of the accused, the Court conducted its analysis by examining the following questions: (

a) What information is a complainant entitled to receive – affidavit and application –and when? (

b) What are the complainant’s participatory rights? (

c) Is there flexibility in the timing of hearing such applications? What information is a complainant entitled to receive – affidavit and application and when? [ 57 ] As referenced earlier, the applicant noted that subsection 278.94(2) stipulates that a complainant can appear and make submissions.

Further, she is entitled to be represented by legal counsel; however, the legislation does not stipulate what materials a complainant or her counsel should receive prior to exercising this right. [ 58 ] The applicant contends that the complainant’s right to participate in the Stage 2 hearing must be restricted in order to protect the applicant's Charter rights.

Although counsel for the applicant stated that the notice was not an application for direction, she recognized that the constitutionality was predicated somewhat on understanding what rights a complainant is actually entitled to with the impugned provisions. Consequently, she asked the Court to interpret what the complainant is to receive in terms of disclosure, as well as to clarify her participation rights, including those of her counsel in terms of the ability to "appear and make submissions” pursuant to

section 278.94 of the Criminal Code . [ 59 ] The applicant acknowledged that such an application would include the defence counsel’s submissions on the relevance of the materials it seeks to admit which will disclose the applicant’s theory or trial strategy.

It is the applicant’s position that putting this information in the hands of the complainant prior to her testimony is problematic on a number of levels. [ 60 ] The applicant argued that being compelled to reveal his strategy is especially harmful if he wishes to introduce evidence previously unknown to the complainant or if he wishes to allege a motive to fabricate, which is a defence that would rely heavily on an effective cross-examination. [ 61 ] Although there was some suggestion by the applicant that to protect his Charter rights, a complainant should be provided with a redacted version of the defence’s application, I do not find this position to be persuasive.

In her submissions, Ms Way explained that a

section 276 application for OSA is essentially asking the court for permission to air the details of some of the most intimate aspects of the complainant’s life, being her sexual experiences that do not relate to the facts before the court, and have them discussed in open court. So to suggest that the complainant should not be provided the full details of the defence’s application runs counter to what Parliament intended to do in protecting the rights of a complainant.

She would be expected to make her submissions without the appropriate context thus denying the court of the best evidence to ensure that the pursuit of truth is achieved. [ 62 ] The requirement to provide the complainant with the full application particulars for the Stage 2 hearing has been decided in a number of other decisions, including R. v. Barakat , [2019] O.J. No. 705 (Ont. C.J.), at paragraph 7 ; R. v. A.M. , 2020 ONSC 1846 as well as in R. v. Marrello, [2020] O.J. No. 3617 at paragraph 15 . Justice Maxwell, as he then was, in Marrello explained his reasons as

follows: 79 For the reasons that follow, I find that R.R.'s counsel must be provided with a complete copy of the application record, including the communications which are the subject of the hearing, and the facta. I come to this conclusion for several reasons. 80 First, preventing the complainant from having a complete copy of the application materials is incongruous with Parliament's clear intention to give complainants the right to "appear" at a hearing under s. 278.94 of the Code .

The purpose of the hearing is to hear submissions on the admissibility of records, which necessarily means the applicant will discuss the communications and his arguments as to their relevance to an issue on the trial. The plain wording of s. 278.94 states that the complainant has the option to be present at the hearing. 81 It must have been understood by Parliament that giving complainants the right to appear on the hearing would result in the complainant being privy to all the information presented and arguments advanced on the hearing.

It would be illogical, and inconsistent with Parliament's intention, to interpret the complainant's participation rights in such a way that she can hear the information during the hearing, but not see or read it in advance of the hearing. 82 Second, in granting complainants the right to appear at the s. 278.94 hearing with counsel, Parliament granted complainants the right to effective assistance of counsel. Effective assistance of counsel necessarily requires access to the evidence and arguments, including the ability to share information with the client to obtain instructions.

It is not the role of the Crown or the defence to determine that a complainant can adequately present her views concerning her privacy and dignity rights on partial information. Nor can it be expected that complainant's counsel can present helpful and complete submissions based on a general

summary of the communications in question. There may be important context that only the complainant can explain and provide to the court, through counsel. The specific content of the records may be the catalyst the complainant requires to identify and articulate what privacy and dignity concerns arise. 83 In my view, giving the complainant only partial or summarized information about the records diminishes the complainant's ability to make meaningful submissions and risks the complainant being relegated to making submissions which are generalized and of limited use to the court.

Other courts have come to a similar conclusion: Boyle , at para. 32; R.S.#2 , at para. 22. 84 Similarly, restricting access to the application record and facta asks complainant's counsel to make submissions about the complainant's privacy and equality interests in the abstract, without knowing the legal arguments being advanced, or the purported relevance of records. This again creates the risk that the complainant or her counsel will be forced to resort to generalized submissions, or present arguments which are not responsive or misconstrue how the records will be used, if admitted. [ 63 ] Similarly, in R. v.

Simon , 2019 ABPC 186 , at paragraphs 55 to 58, the Court also concluded that the complainant should be granted access to the full application record. In that case, the Court observed, at paragraph 56, that Parliament specifically prescribed that there could be three counsel at the hearing. [ 64 ] After an exhaustive legislative analysis in R. v .

Boyle , 2019 ONCJ 11 ( Boyle “1”) , Doody J. at paragraph 43 relying upon the SCC position in Darrach , found “ the complainant is entitled to see the application record of the defendant sufficiently in advance of the hearing to allow her to prepare and make meaningful submissions.” [ 65 ] Prior to the enactment of the new provisions, in Darrach , the SCC addressed whether a complainant is entitled to learn the contents of the accused’s affidavit filed in support of a

section 276 application in. At paragraph 55, Gonthier J. wrote:

Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. For the reasons given above, the accused is not forced to embark upon the process under s. 276 at all. As the trial judge found in the case at bar, if the defence is going to raise the complainant's prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush.

The Crown as well as the Court must get the detailed affidavit one week before the voir dire , according to s. 276.1(4)( b ), in part to allow the Crown to consult with the complainant. T he Crown can oppose the admission of evidence of sexual activity if it does not meet the criteria in s. 276. Neither the accused's s. 11(

c) right not to be compelled to testify against himself nor his s. 11(

d) right to be presumed innocent are violated by the affidavit requirement. [ 66 ] I am most persuaded by the decisions of the aforementioned cases and similarly find that Parliament intended for a

complainant to have the full application materials. [ 67 ] Although I find that the complainant is entitled to see the application of the defendant sufficiently in advance of the Stage 2 hearing to allow her to prepare and make meaningful submissions, I emphasize that it is not required until after Stage 1 has been completed. This is the same conclusion that Doody J. came to in Boyle “1”. He found that: Parliament’s omission of an obligation to serve the complainant with the s. 276 record when it is served on the prosecutor – before the first stage hearing – was deliberate.

Parliament did not intend that it be served on the complainant at that time. The “implied exclusion” of service of the record at that time was intentional. The maxim applies. [Emphasis in original.] [ 68 ] In short, I am of the belief the complainant has no role or rights at the first stage. What are the complainant’s participatory rights? What should be the extent of the complainant’s participatory rights? What is meant by

section 278.94(2), which gives the complainant the right to “appear and make submissions”? [ 69 ] There has been significant concern raised in all arenas as to what is included in a complainant’s right to appear and make submissions. [ 70 ] The applicant submitted that the involvement of the complainant as a participant at the hearing permits the complainant or her counsel to test the accused’s evidence well in advance of trial.

The applicant argued that there is a risk that, without necessarily intending to mislead the Court, she will alter her testimony to account for the defence’s evidence, bolster her credibility or to fill holes in an incomplete version of events. [ 71 ] The Court noted that the applicant did not challenge the complainant’s right to independent legal advice and, in fact, went so far as to fully endorse this right.

The issue that was raised by the applicant was not the ability of the complainant to have her own legal advice, but rather it was the extent of the participatory rights of the complainant and her counsel in cross-examining the accused on his application that attracts concern.

Once again, there is legislative authority for a complainant and her counsel to appear and make submissions, but there is no reference to the right for the complainant or her counsel to cross-examine the affiant on the application at the Stage 2 hearing. [ 72 ] Relying upon the case of Reddick , the applicant argued that if the complainant and her counsel are permitted to cross-examine the accused on his affidavit, there is a real risk that the complainant will usurp the prosecution’s duty to evaluate the admissibility of evidence, to test it and ultimately determine how to treat the evidence in the prosecution’s case.

He suggests that to hand the wheel over to the complainant on such a critical aspect of the trial’s conduct is to fundamentally change how a sexual assault trial is conducted. He argues that it is the prosecution that is in charge of the prosecution because of its quasi-judicial and impartial role as a minister of justice.

It is the applicant’s position that the complainant is partisan and therefore cannot be offered the same standing. [ 73 ] However, Ms Way submitted that by giving the complainant her own voice through legal counsel, the role of the prosecution is actually enhanced, permitting the prosecution to focus on advocating in the public interest. In the past, the prosecution wore two hats which was challenging.

The SCC decisions in Barton and Goldfinch reflect the challenge the prosecution faced when their role of running the trial conflicted with protecting the privacy of an individual complainant. [ 74 ] As the applicant argued, a complainant’s interests are partisan, while the prosecution is required to be impartial, which further supports the need for the complainant to have her privacy interests advocated by a third party at the hearing.

A complainant and her counsel will be specifically invested in preserving the complainant’s privacy interests while the prosecution is required to consistently assess the public interest and the overall evidence in his case.

[75] To illustrate how this change was for the better, Ms Way provided multiple examples as to how the interests of theprosecution and the complainants diverge. One example is that the prosecution will know more about the case as a whole and is in amore advantageous position to represent the public interest.

Similarly, when the complainant has independent legal advice, she can sharewith her lawyer private relevant information that would not otherwise have been shared with the prosecution. [76] With that being said, I reject the suggestion that the ability of a complainant’s legal counsel to ask questions about theadmission of her intimate sexual activity or other highly private moments necessarily means that they will engage in a broad and robustcross-examination to test the accused’s defence.

The Court finds that it is inconsistent with the intent of Parliament to suggest that thecomplainant and her counsel can appear and make submissions but they are not entitled to ask questions or even seek clarity. [77] It is incumbent on the trial judge to manage the court and control the cross-examination on the voir dire as it does throughoutthe trial. Similar to what occurs in a Garofoli application (see R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421), there mustbe limits placed on the range of cross-examination and this is the trial judge’s responsibility. [78] Consequently, it is important to go back to first principles and remind ourselves of what Lamer C.J. explained at paragraph 10in R. v. Underwood, (SCC), [1998] 1 S.C.R. 77: [T]he purpose of this voir dire is not "defence disclosure.” It creates no independent rights in the Crown, and, therefore should not betreated as an excuse for the Crown to deeply probe the case for the defence...

The point is to provide the trial judge with the informationhe or she needs to make an informed decision, but the Crown has no right to require more than that. [Emphasis in original.] [79] With the purpose of the voir dire placed in context, it is clear that it is incumbent on the trial judge to tightly limit theevidence and any cross-examination to the pivotal issues that the trial judge needs in order to make a decision on the narrow issue that isbefore the court. With this context and with the fact that the testimony given in the voir dire is protected by

section 13 of the Charter,the risk to an accused is clearer. What this means is that the testimony of an accused cannot be tendered later by the prosecution to try toincriminate an accused, it can only be used to challenge a defendant's credibility. [80] Similarly, a judge can order that the prosecution conduct its cross-examination first, leaving no requirement for acomplainant’s lawyer to engage further. As Ms Way pointed out, if a complainant’s counsel does seek to cross-examine, then it is limitedto the four corners of the affidavit and it is not a broad invitation to test other waters. [81] In the Boyle “1” decision, Doody J. examined the relevant principles of statutory

interpretation which must guide an analysisin interpreting the statutory language in subsection 278.94(2). At paragraph 27, he cited the Ontario Court of Appeal's decision in R. v.Stipo, 2019 ONCA 3 in which the Court reiterated that statutory intent cannot be founded on the wording of the legislation alone. Inshort, the words of the enactment must be “read in their entire context and in their grammatical and ordinary sense harmoniously” andtogether with that scheme, object, and intention. [82] In R. v.

Boyle, 2019 ONCJ 253 (Boyle “2”), Doody J. then examined this issue at length before concluding that the right toappear and make submissions does include the right to cross-examine: [14] The defendant submits that it is fundamentally unfair that he be subject to double cross-examination. I do not acceptthis. Accused persons who choose to testify are often cross-examined by more than one person. Examples are multiple accused cases andprosecution by both the Federal and the Provincial Crown counsel on a single information or indictment.

Parliament decided that thecomplainant’s interests are different than the Crown’s and she should be heard and her interests considered. That does not mean that thecross-examination of the Crown and the complainant can be duplicative. I will not allow that. Nor will I allow them to stray beyond whatis at issue on this application as the Supreme Court of Canada warned about in R. v. Darrach, [2000] 2 SCR 443, 2000 SCC 46 atparagraph 64. [83] In coming to his decision, Doody J. provided an excellent

summary of the jurisprudence that existed at the time he renderedhis decision: [5] The issue is whether the words “appear and make submissions” include the right to cross-examine the defendant on theaffidavit he swore in the s. 276(2) application. When read in that context, I conclude that they do. I realize that I said in paragraph 40 of

my January 13th decision that at first blush the language did not seem to give complainants the right to lead evidence or cross-examine. Ihave now read the cases provided by Mr. Carter and considered the issue fully. [6] I start with the proposition that the right to appear and make submissions must be meaningful. Parliament has decided that thecomplainant’s perspective is important to the issue in this application and the court should take that perspective into account. Herperspective may require evidence to flush out her submissions. Submissions made without evidence are often of limited use.

AndParliament wanted to ensure her rights to privacy were protected, and that may require that certain things be brought out by cross-examination. [7] Similar language in other statutes has been held to give rise to rights to call evidence and cross-examine. In American Airlines,Inc. v.

Canada (Competition Tribunal), (FCA), [1989] 2 FC 88, (FCA), the Federal Court ofAppeal was considering s. 9(3) which provided that: Section 9(3) of the Competition Tribunal Act authorizes any person, with leave of the tribunal, to ‘intervene ... [and] makerepresentations ...’. [8] Strayer, J. sitting as a member of the tribunal, held that this did not include the right to call evidence or cross-examine. TheCourt of Appeal reversed, holding that the word “representations” included relying on facts as well as argument.

More importantly, asJustice Iacobucci, as he then was, held, the context and nature of the proceedings under the Competition Act supported a broadinterpretation that allowed interveners to inform the Tribunal of the ways in which matters complained of impacted on them. The courtheld that that permitted interveners to play a wider role than simply presenting an argument, and that that

interpretation was a fairer wayof treating interveners. Justice Iacobucci held, on behalf of the Court of Appeal, that the Tribunal had discretion using the language Ihave quoted to allow interveners to call evidence and cross-examine. [9] In the case of Ammazzini v. Anglo American PLC, 2016 SKCA 164 , the Saskatchewan Court of Appeal held that on aclass certification motion a representative plaintiff in a competing class action could file evidence. The statute gave him the right to“make submissions” at the certification hearing.

At paragraphs 46 to 48, the Court of Appeal held that applying the principles in theRizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, (SCC) case, keeping in mind the purpose of the legislation, and I amquoting from paragraph 48 of the decision: Again, the answer seems quite straightforward.

A purposeful and liberal view of the word ‘submissions’ bearing in mind theLegislature’s evident purpose in amending the Act, leads inevitably to the conclusion that s. 5.1 comprehends an entitlement to fileevidence. [10] The only limitation imposed by the Court of Appeal was that the evidence to be filed must relate to the purpose for which hewas allowed to appear, that is whether it would be preferable to allow claims to be determined by the other class action rather than theone initiated in Saskatchewan. [11] More importantly, the same conclusion has been reached by cases considering the same language in s. 278.4(2) dealing with s.278 applications.

In R. v. Monkman, 2007 MBQB 6, Schulman, J. of the Manitoba Court of Queen’s Bench held that the right of thecomplainant to appear and make submissions included the right to cross-examine. In fact, he held that the Crown had only a limited rightto do so. I would not agree with that. [12] In R. v. N.W.P., 2000 NWTSC 22, Vertes, J. of the Northwest Territories Supreme Court held that the right of the complainantand the record-holder under s. 278 to appear and make submissions implied that if they wanted to rely on facts they had to adduce themin evidence.

A right to adduce evidence goes hand in hand with the right to cross-examine. Timing - Is there any flexibility in the timing of hearing such applications? [84] After having decided that the complainant is entitled to receive the full application and has full participatory rights at theStage 2 hearing, the timing of the voir dire becomes essential to the analysis on the overall constitutionality of sections 278.93 and278.94. [85] The applicant acknowledges that giving the complainant standing in a

section 276 hearing provides the complainant with avoice (through herself or counsel) to speak specifically as to how the admission of the evidence personally impacts her. [86] The applicant acknowledges that this is a laudable goal, but argues that it is its combination with the existing advance noticeprovisions that violates the rights of the accused and renders the cross-examination ineffective.

Further, there is no argument that asection 276 application will be required in the instant case, but in light of all the participatory rights of the complainant, the applicantquestions how the application can be considered pre-trial without violating his rights. [87] The applicant vigorously argued that if the complainant receives the accused’s application pre-trial, it will reveal potentiallycritical information about the evidence the accused wishes to introduce, how that evidence will be used, the relevance of the evidence tothe accused’s case and the strategy of the defence.

[ 88 ] Further, the applicant argues that the complainant being able to cross-examine the accused on evidence that will later be put to the complainant is a profound violation as it would render a later cross-examination of the complainant completely ineffective. The applicant contends that the ability of the complainant to conduct a cross-examination in advance of the trial permits the complainant not just to hear the evidence, but to test it. [ 89 ] It is my assessment that the underlying reasons and analysis conducted in Reddick are predicated on the assumption that an admissibility voir dire under

section 278.94 must be conducted as a pre-trial application. Justice Akhtar explains why the timing for serving notice of such applications cannot be “read down” or interpreted as being held after the direct examination of a complainant.

Delaying the Voir-Dire [67] In order to overcome some of these difficulties, the courts in R.S . and J.J. purported to “read down” the provisions by postponing the s. 276 voir-dire to the end of the complainant’s evidence in chief. [68] With respect, and for the following reasons, I do not agree with this approach. [69] First, even though the judges sought to “read down” the sections in modifying the process in those cases, their preferred option of delaying the voir-dire is, in my view, a “re-write” of the

section which explicitly states that the accused’s affidavit must be provided 7 days prior to trial . [70] The route taken by the courts in R.S. and J.J. defeat both the spirit and purpose of the

section which finds its roots in Darrach . As Chapman J. observes in R. v. M.S ., 2019 ONCJ 670 , at para. 81 , “such an

interpretation would defeat the spirit and intent of the legislation and lead to significant trial management mischief”. This re-writing of the legislation is an encroachment on Parliamentary territory. [My emphasis.] [ 90 ] For the reasons that follow, after a review of the competing jurisprudence on the issue of timing and based on this Court’s analysis, I find that this specific assumption by Akhtar J., that

section 276 applications may only be heard pre-trial, is not supported by either leading SCC and appellate jurisprudence nor by the strict

interpretation of the Criminal Code provisions at issue. Most particularly, the position adopted in Reddick rings hollow given that the SCC specifically cautioned trial judges in the trilogy of cases, being Barton , Goldfinch and R.V. , of their responsibility to exercise their discretion to re-hear an application mid-trial in order to ensure that an accused’s right to make full answer and defence are not frustrated. [ 91 ] The relevant subsection 278.93(4) of the Criminal Code related to the filing of a

section 276 application reads as follows: Judge may decide to hold hearing

(4) If the judge, provincial court judge or justice is satisfied that the application was made in accordance with subsection (2), that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice and that the evidence sought to be adduced is capable of being admissible under subsection 276(2), the judge, provincial court judge or justice shall grant the application and hold a hearing under

section 278.94 to determine whether the evidence is admissible under subsection 276(2) or 278.92(2). [My Emphasis.] [ 92 ] The plain reading of the legislation situated directly below the subheading, “ Judge may decide to hold hearing ”, requires that the application be provided seven days prior, which I can only interpret as being the hearing of the application that the judge decides to hold, not the trial itself. In fact the legislation does not specify at all when it must be heard either pre-trial or mid-trial.

It does state at subsection 278.93(3) that it should be held in the absence of the jury, which suggests that Parliament did not limit when it is to be held. Importantly, the provision also specifically provides discretion for the trial judge to shorten that time interval in the interests of justice with “ or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice .” The requirement for judges to exercise this judicial discretion is peppered throughout jurisprudence at both the trial and appellate levels.

In fact, when judges have not exercised the discretion provided by the legislation, appeal courts and the SCC have been quick to remind trial judges of this requirement. [My emphasis.]

[93] In R. v. Harris, (ON CA), 1997 102 OAC 374, Moldaver J.A., as he then was, noted that during the pre-trial application to admit a prior incident of sexual activity, the trial judge had refused to admit an incident that had occurred between thecomplainant and the accused on the Tuesday evening prior to the alleged sexual assault.

However, upon a review of the evidence,Moldaver J.A. noted “once the complainant testified, the door to admissibility was opened for an altogether different reason.”[Myemphasis.] He then summarized the situation as follows: [41] It will be recalled that in her evidence in-chief, the complainant testified that prior to the March 4th weekend, her relationshipwith the appellant was a platonic one.

Apart from his attempts to kiss her on the way to Pettawawa [sic] and at Sassy's Pub, she testifiedthat there had been nothing of a sexual nature between them and that she had made it known to the appellant that she was not interestedin a sexual relationship. That is why, according to the complainant, she was shocked when the appellant broached the subject of sex upontheir return to the motel room. [42] By testifying as she did, the complainant placed the nature of her relationship with the appellant in issue.

Accordingly, in orderto be able to make full answer and defence, the appellant was entitled to lead evidence designed to rebut the complainant's testimony. [43] In R. v.

Seaboyer (1991), (SCC), 66 C.C.C. (3d) 321 at pp. 409-410 (S.C.C.), McLachlin J. for the majority setout five examples where evidence of prior consensual sexual conduct on the part of the complainant is admissible, the fifth being"evidence tending to rebut proof introduced by the prosecution regarding the complainant's sexual conduct." In my view, the proposedevidence of the Tuesday night incident falls squarely within this category because it served to rebut the complainant's assertion that sheand the appellant had not engaged in sexual conduct prior to the weekend of March 4th. [My emphasis.] [94] In Harris, Moldaver J.A. recognized the need for defence to file their applications and judges to hear them when theappropriate relevance has been established, which sometimes will not occur until after a complainant has testified and the appropriateevidence is before the Court.

He described the dilemma as follows: [37] This illustrates the dilemma that trial judges face when they are called upon to make evidentiary rulings on a record that isfragmented and incomplete. In these situations, trial judges rely heavily on counsel to supply the missing links needed to arrive at aproper ruling.

If counsel are less than diligent in their task or even worse, less than forthright, this is likely to skew the trial judge'sreasoning process and result in rulings that later prove to be legally unsound, thereby raising the prospect of a mistrial. [38] Given the vagaries that all too often exist when trial judges are asked to make "advance" evidentiary rulings, it seems to methat as a matter of prudence, apart from perhaps stating a tentative view, trial judges should resist making final rulings until such time asthey are required to do so.

Experience suggests that as the trial progresses, issues raised at the outset of the proceedings have a tendencyto either disappear or get resolved. Those that remain outstanding are likely to be brought into much sharper focus as the evidenceunfolds. To be certain, where the proposed evidence is likely to have a significant impact on the outcome of the trial, an ounce ofprevention is worth a pound of cure and trial judges would be well advised to refrain from making conclusory rulings until such time asthey are required to do so. [39] The case at hand serves to illustrate the point.

Had the trial judge waited to make his final ruling on the Tuesday night incidentuntil after the complainant had completed her evidence in-chief, he would have been in a much better position to assess its admissibility. [Footnote omitted.] [95] In Harris, Moldaver J.A. expressly clarified the concern that underlies the defence arguments before the Court, “Thesignificance of that evidence cannot be underestimated and the opportunity to lead it was essential to the appellant's right to a fair trialand to avoid a possible miscarriage of justice.” [96] Importantly, in the SCC decisions rendered after the coming into force of the amended provisions, Moldaver J. purposefullyreminded trial judges of their continuing duty as the gatekeeper for ensuring the necessary balance in protecting a complainant’s rightsand an accused’s rights to a fair trial, which in some cases includes the requirement to reconsider earlier pre-trial decisions made on asection 276 application when the relevancy becomes apparent.

[97] In R.V., the application judge rendered his decision on the pre-trial 276 application at a voir dire, then he invoked section669.2 of the Criminal Code (that he could no longer continue to preside over the case) which meant that the trial proceeded under adifferent judge. At trial, when requested by defence to reconsider the

section 276 application, the trial judge refused under the belief thata mid-trial application could not be considered. [98] In R.V., at paragraph 42, the Court wrote: Here, the Crown introduced evidence of the complainant’s pregnancy and virginity to corroborate her testimony that the assaultoccurred.

In his s. 276 application, R.V. sought to challenge that inference by questioning the complainant about her sexual activity fromJune 1st to July 1st, 2013 in order to determine “whether any other individual could have impregnated the complainant” [Referenceomitted.] [99] As Moldaver J. concluded at paragraph 57 of R.V., in light of the Crown’s evidence led in chief, the legal situation shifted andthe issue of relevancy was clear. [57] In Seaboyer, McLachlin J. noted that the complainant’s other sexual activity “may be relevant to explain the physicalconditions on which the Crown relies to establish intercourse or the use of force, such as semen, pregnancy, injury or disease”: p. 614.L’Heureux-Dubé J., writing in dissent, agreed that where the Crown contends that physical consequences such as pregnancy were causedby an assault, the defence may adduce sexual history evidence in rebuttal: p. 682. [100] At paragraph 83 of R.V., Moldaver J. found that “given the application judge’s refusal to grant the application, the evidence thatemerged at trial would likely have constituted a material change of circumstances, justifying a re-consideration.” In short, the decision inR.V. reaffirms that there is a continuing duty for the trial judge to consider a

section 276 application within the main trial. Trial judgesmust be sensitive to the evidence led and be open to reconsidering a request from the defence if the relevance for which they are seekingto question a complainant is established in evidence. [101] Also, in Barton, the SCC specifically recognized that a pre-trial ruling may need to be reconsidered particularly if the accusedseeks its admissibility in order to cross-examine a complainant for credibility purposes: [65] Finally, a ruling on the admissibility of prior sexual activity evidence under s. 276 is not necessarily set in stone.

There may becircumstances in which it would be appropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider theadmissibility of prior sexual activity evidence. By way of illustration, where a complainant makes a statement to the police that priorsexual activity occurred but later contradicts that evidence in her testimony at trial, that contradictory testimony would open the door tothe defence bringing a renewed s. 276 application seeking to have the prior sexual activity evidence admitted for credibility purposes(see R. v. Crosby, (SCC), [1995] 2 S.C.R. 912; R. v.

Harris (1997), (ON CA), 118 C.C.C. (3d) 498(Ont. C.A.)), despite an initial ruling of inadmissibility. This is but one example. There may be other circumstances in which it would beappropriate for the trial judge to reopen a s. 276 ruling and hold a new hearing to reconsider the admissibility of prior sexual activityevidence. [102] After having surveyed the guidance from the SCC, including the purpose for the

section 276 regime and the corresponding newprovisions, and the range of jurisprudence on the question of timing, I adopt the view of Christie J. set out in R. v. A.M., 2020 ONSC4541 as follows: [42] It is the view of this court that it is not the timing of these applications, but rather the requirement for the application itself thatachieves these purposes and objectives. This type of evidence, whether it involves a record already in the hands of the accused or not, ispresumptively inadmissible.

This type of evidence will not be permitted unless and until a judge makes a determination that it ispermissible pursuant to the factors set out in the legislation.

This type of evidence will not be permitted without notifying thecomplainant of the details of the application, providing the complainant with sufficient time before being required to respond, andallowing the complainant the opportunity to speak directly to the court, either personally or through counsel, on issues impactingprivacy, security, dignity and equality interests. [43] The threshold issue of when this application must be brought and the ultimate issue of whether the records are admissible aretwo discreet inquiries.

Merging the consideration or the interests involved for each stage would be problematic and must be avoided. There is no argument in the case at bar that the application will not be required. The only argument is when that application will need tobe determined.

[ 103 ] Further, in Shearing , the SCC made it clear that in terms of timing a voir dire must be held prior to cross-examination. It also made clear that in responding to the attempt by defence to admit private records, a complainant is to be provided standing and permitted to have independent legal counsel to make submissions to ensure that her voice is heard. Interestingly, it was also the case of Shearing where the SCC also found that the trial judge unnecessarily curtailed the accused’s cross-examination of a complainant.

In short, the SCC recognized that judges also need to be alert to the fact that the cross-examination itself might establish the foundation for wider relevance of topics on cross-examination (see Shearing at paragraph 146 ).

This further emphasizes the need for judges to be constantly vigilant to the changing landscape of the evidence as it unfolds. [ 104 ] I accept that there is a risk for a complainant to tailor their evidence after reading the defence’s application pre-trial, but I also believe that complainants take their oaths seriously, and would not want their personal credibility doubted based on an underlying mistrust that their evidence has been tailored simply because they saw the defence application before their direct examination. [ 105 ] In

summary, I agree entirely with the comments of Christie J., in A.M . at paragraph 109 as to how a complainant can still be appropriately protected from being surprised or ambushed prior to cross-examination: The timing of the application is not what serves to protect the complainant from being ambushed or surprised. It is the application itself and all of the protections it brings. It is of note that the legislation does not even refer to notice to the complainant or the timing of any notice.

The complainant is entitled to have her voice heard and to have a judicial determination made before being confronted with this type of evidence. [ 106 ] The applicant argues that an effective cross-examination depends on the ability of a witness to give an honest and forthright response to a question without a view towards how that question fits into an overall theory or strategy. I also agree that the importance of cross-examination in a criminal case cannot be understated. At paragraph 86 of R.V., Moldaver J. wrote: Cross-examination is undoubtedly a key element of the right to make full answer and defence.

This Court has held that sometimes “there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed”: Lyttle , at para. 1 [Emphasis in original.]; see also Osolin , at p. 663. Thus, as a general rule, counsel “may pursue any hypothesis that is honestly advanced on the strength of reasonable inference, experience or intuition”: Lyttle , at para. 48 .

Because it is difficult to predict what lines of questioning counsel might pursue and what evidence may have emerged had cross- examination been permitted, a failure to allow relevant cross-examination will almost always be grounds for a new trial : Shearing , at para. 151 ; Crosby , at para. 20 ; Osolin , at pp. 674-75. [Second underlining, my emphasis.] [ 107 ] The SCC, in R. v. Lyttle , 2004 SCC 5 , stated: [1] Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth.

At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed. [2] That is why the right of an accused to cross-examine witnesses for the prosecution – without significant and unwarranted constraint – is an essential component of the right to make full answer and defence. [Emphasis in original.] [ 108 ] More recently, the SCC in Shearing at paragraph 76 highlighted not just the importance of cross-examination, but also clarified the balance that must be attained in addressing a crime that unfolds almost always in complete privacy.

The critical importance of cross-examination is not doubted. The appellant stood before the court accused of crimes by numerous complainants but he was presumed to be innocent of each and every count. All of the alleged sexual misconduct, by its very nature, was in private. At trial, it was his word against the credibility of his accusers, individually and (by virtue of the similar fact evidence) collectively. If the complainants were untruthful about what happened in the privacy of their encounters, the most effective tool he possessed to get at the truth was a full and pointed cross-examination .

The general principle was stated in Seaboyer , supra , per McLachlin J., at p. 611:

[My emphasis.] Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted.

It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. [Emphasis in original.] It has been increasingly recognized in recent years, however, that cross-examination techniques in sexual assault cases that seek to put the complainant on trial rather than the accused are abusive and distort rather than enhance the search for truth. Various limitations have been imposed. One of these limits is the privacy interest of the complainant, which is not to be needlessly sacrificed.

This was explored by Cory J. writing for the majority in Osolin , supra , at pp. 669 and 671, as follows: A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system. Yet a fair balance must be achieved so that the limitations on the cross-examination of complainants in sexual assault cases do not interfere with the right of the accused to a fair trial. . . .

In each case the trial judge must carefully balance the fundamentally important right of the accused to a fair trial against the need for reasonable protection of a complainant, particularly where the purpose of the cross-examination may be directed to “rape myths” . [Emphasis in original.] [ 109 ] In most cases of sexual assault, the complainant will have had some kind of relationship with the accused and, in many cases, they may have served closely together in the military environment.

Consequently, there will likely be significant shared experiences and background between them, including communications. [ 110 ] The applicant submitted that the accused will need to ask himself if he should risk revealing his trial strategy and permit the complainant to prepare in advance or simply not attempt to introduce evidence that could prove his innocence for fear that its value will be diminished, not to mention its impact on the overall trial strategy when the complainant receives advance notice. [ 111 ] Ultimately, as a trial judge, I am required to balance the defence’s request to admit evidence of OSA that may be fundamental to him making full answer and defence, while at the same time discharging my duty of protecting the complainant and the integrity of the court martial process from prejudicial reasoning.

This duty as a trial judge is challenging when provided with ideal submissions on clear relevance. However, if counsel hold back information for fear of disclosing too much, including their theory and strategy, given the concerns articulated, the challenge is magnified and a trial judge runs the risk of having to render a decision in a vacuum which may end up requiring the judge to reconsider the decision again when the relevance is established in evidence. [ 112 ] I appreciate that the nature of sexual assault generally occurs in private and consequently a finding will most often turn on credibility.

There is generally only one witness whose testimony will be central to the prosecution’s case. Consequently, I find that pursuant to the interests of justice, in most cases, the trial judge is in a better position to render a decision that is the most fair and balanced for both the complainant and the accused if they hear the application after the complainant’s testimony in chief. [ 113 ] In light of all these reasons, and my responsibility to uphold the enhanced protection of a complainant, I find that any rigidity by a judge that

section 276 applications can only be heard pre-trial exposes the fairness of the trial to significant jeopardy and potential mischief that risks infringing an accused’s rights.

Further, I can find no legislative or common law impediment to these applications being served on a complainant mid-trial, nor can I find any legislative authority that requires such an application to be held pre-trial. [ 114 ] Consequently, I find that there is sufficient judicial discretion in the legislation to permit a trial judge to conduct the necessary balance of ensuring that the application is heard at a time that preserves all the participatory rights that Parliament intended for complainants, while still ensuring an accused’s right to a fair trial.

I note that this Court’s view is consistent with the finding of Christie J., at paragraph 60 of A.M. :

[60] It is the view of this court that requiring pre-trial disclosure of the defence’s cross-examination material, versus allowing for mid-trial disclosure of the material, unnecessarily infringes the applicant’s rights set out above because of the danger that it will render the cross-examination ineffective. A witness with full advance notice of impeachment material is in a position to tailor their evidence to fit the disclosure. In the case at bar, the witness is a sexual assault complainant whose testimony is central to the prosecution’s case.

Therefore, any unnecessary risk of tainting the complainant’s testimony that occurs by requiring the defence to proceed with a s. 276 application before trial can be fatal to a fair trial. [ 115 ] As Christie J., further wrote in A.M .: [110] The only difference that results from the timing of this application being mid-trial is that the complainant would not know the detailed particulars of the communications prior to giving her evidence in chief. There would be no opportunity to tailor the evidence in chief to line up with the text messages. This is in everyone’s best interests.

This is fundamental to the search for truth and the fair trial rights of the accused. Use of prior inconsistent statements to impeach a witness is a well-established means of testing the credibility and reliability of witnesses. The evidence of the complainant in this case, as in many cases, is crucial. While there are circumstances where the complainant may be aware of defence strategy prior to trial, this does not mean that it should be encouraged or that it should be the norm. [ 116 ] In

summary, on the issue of timing, once a complainant testifies in chief, it is distinctly possible that defence may have evidence that only becomes relevant and highly probative of the issue of credibility after the testimony, which is what occurred in the case of Harris .

The probative value of credibility evidence is not being used for the purpose of the now debunked myths suggesting some connection between prior sexual activity and a lack of veracity, but it is useful in its ability to contradict specific evidence given by the complainant that might be central to her version of the relevant events. [ 117 ] In supporting his conclusion that all such applications must be addressed exclusively in a pre-trial motion, Akhtar J. in Reddick suggests that a mid-trial hearing will only lead to a bifurcated process.

He writes as follows: [71] Second, delaying the application to be heard after the complainant’s examination-in-chief would create substantial practical difficulties. [72] The trial would necessarily be halted to allow the disclosure of the records. Counsel for the complainant would have to be retained, meet with the complainant, prepare a response, file materials, and argue the matter in front of the trial judge. This could conceivably delay the trial for weeks if not months.

Such methods would be unworkable in a jury trial. [73] In this regard, I agree with the comments of Chapman J. in M.S. , at para. 97 : If the 7 days [ sic ] notice requirement stipulated in the Criminal Code means that the defence can bring their application at the close of the complainant’s evidence then what is the point in the stipulation of 7 days? Realistically this would mean that many sexual assault trials will take place on a bifurcated basis. First the complainant would testify in-chief. Then the application would be brought. And then the application would be heard and decided at stage one.

At that point, the trial would be adjourned to facilitate the complainant’s right to obtain counsel. The trial would then resume at some later point with a stage 2 hearing. Then, once that is argued and decided, the trial will continue. This is unmanageable and not at all what Parliament intended. [ 118 ] The above concerns are not without merit and need to be weighed.

There is an undeniable negative impact on the administration of military justice where mid-trial applications are submitted given the uniqueness of a court martial. [ 119 ] Similarly, I accept Ms Way’s submissions that although some mid-trial applications cannot be avoided, in general, they negatively affect a complainant’s rights as they are likely faced with a difficult choice: either participate in the application at that time or adjourn the trial to permit them t

[…]