R. v. A.V., 2022 ONCJ 437

CITATION: R. v. A.V. , 2022 ONCJ 437 DATE: February 22, 2022 Court File: 3111-998-19-25522 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. A.V. TRIAL PROCEEDINGS BEFORE THE HONOURABLE JUSTICE W. BLACKLOCK On Tuesday, February 22, 2022, at 7755 Hurontario Street, BRAMPTON, Ontario VIA ZOOM Publication order: s. 486.4(1) APPEARANCES : J. Vlacic Counsel for the Crown C. McKeown Counsel for the Defence RULING ON APPLICATION BLACKLOCK, J: (Orally) This is an application of an unusual nature brought by A.V. at the end of a trial convicted him of the offence of sexual interference in relation to his daughter.

The conduct in the case occurred in Dubai in the United Arab Emirates. A.V. had been working there and his children had come to visit him for a short period without their mother when the conduct occurred. At the outset of the trial when A.V. was arraigned and it was made plain to me that the alleged conduct was said to have occurred entirely in Dubai, I queried counsel as to whether there was an issue regarding the court’s territorial jurisdiction. During the exchange with counsel that followed I was directed both of them to s. 7(4.1) of the Criminal Code .

It was also pointed out to me that in accordance with the section, the Attorney General had given the necessary consent to the prosecution. As a result, it became clear to me that no issue was being advanced as to the jurisdiction of the court.

After A.V. was convicted it appears he began to explore his appeal routes and prior to sentencing, he ended up discharging his original trial counsel and retaining Ms. McKeown who has now brought this application, which is aimed at ultimately challenging the court’s jurisdiction to make the finding of guilt on the basis that s. 7(4.1) of the Code is unconstitutional. An affidavit was filed by the Crown from the original trial counsel that he actually considered the issue of the constitutional validity of s. 7(4.1) and discussed it with a few of his colleagues.

He deposes that ultimately, he came to the conclusion that any constitutional attack was, to use his words, “a long shot.” He also agreed in his affidavit that he did not discuss this issue with A.V., again, to use his term, “directly.” A.V. also filed an affidavit on the application indicating he was not advised that he could bring a challenge to the court’s jurisdiction through a constitutional attack on s. 7(4.1) and he also deposed that had he been so advised, he would have given instructions to do so. No cross-examination was conducted by either party on either affidavit.

There is, in addition, no argument that has been advanced to me in this case on the basis that the failure to directly discuss this with A.V. means that he was deprived of the effective assistance of counsel and that a reopening should occur on that basis. The defence position that has been advanced is that I should, having now heard a

summary of the constitution argument, do one of two things. I should either simply adjourn the sentencing for a further period of time to permit the perfection and presentation of the full argument of the application to find s. 7(4.1) to be constitutionally infirm. If I ultimately conclude that the challenge was successful, I would then reopen my finding of guilt and presumably set it aside. Alternatively, defence suggests that I could reopen my finding of guilt in this matter at this stage on the basis of what I have heard so far and then permit the bringing of the full constitutional attack on 7(4.1).

The defence submits that this a case of exceptional circumstances and one of the rare cases in which either order is justified. They submit that they have demonstrated that this is in the interest of justice to permit the challenge to go forward and there is no prejudice to the Crown. They note that this is not a case which will involve the court reconsidering any finding they have made or the recalling of any evidence going to any of the elements of the offence charged. They note that this matter is not one in which it can be said there is any change in defence tactics in any meaningful sense.

The decision not to bring the constitutional attack did not affect how the Crown presented its case originally. They submit that they have demonstrated arguable or facial merit in the challenge, and they suggest that to proceed to potentially incarcerate someone on the basis of the exercise of the jurisdiction that was constitutionally flawed is per se a miscarriage of justice. They submit that this is particularly so when the accused was not specifically advised of his ability to bring that type of application earlier. The Crown is opposed to this application.

They argue that no exceptional circumstance exists here to justify either approach outlined by the defence, and they assert that to proceed to sentence here will not lead to any miscarriage of justice. They argue that on the record before me the failure to bring a constitutional challenge at the outset was, in a sense, a tactical decision made by defence counsel in this case. Counsel considered the bringing of the application, concluding that the challenge was, in effect, just not worth it.

They pointed it out that no one has argued that such a decision was indicative in the circumstances of the ineffective assistance of counsel. The matter was structured and scheduled without any motion. Time and effort was allocated on the merits of the trial. Witnesses had to relive the events in the witness box.

To now reopen the possibility that it was all for nought because the defence has now changed its approach to the case undercuts important notions of finality and in proceeding this way an unseemly situation unnecessarily and potentially arises in that a court which has now just found an individual guilty is asked to turn around and stay the proceeding.

In addition, they submit that if the reopening is granted sentencing will be significantly delayed, which is again not consistent with the proper administration of justice. They submit that there has been no facial or arguable merit demonstrated in the proposed application and in those circumstances, it clearly is not in the interests of justice to proceed as the defence suggests. I must say that since the argument of this matter, it has occurred to me that the principles emerging in the reopening cases which both parties focused on, may not be fully applicable here.

The jurisdiction of the court, unlike other issues, is an ongoing matter as the court proceeds to exercise its power throughout the case. It may well be that a constitutional attack of this general nature, going as it does to the actual jurisdiction of the court, might be available to a person finding themselves before the court at any time prior to the court exercising any aspect of its powers over the matter before it.

For example, quite apart from reopening a finding of guilt if the constitutional challenge in this case was successful, as of this moment, the remedy might be a refusal by the court to make any further orders in relation to it on the basis that it has no constitutionally valid basis to exercise any jurisdiction in relation to sentence.

Having said that, however, given my trial management function generally and my right to satisfy myself that there is at least some arguable basis to support a proposed Charter application before the court, I believe I do have a discretion to exercise as to whether or not I should at this stage entertain the defence’s proposed application. I have come to the conclusion that in all the circumstances here I should permit the bringing of the application in part.

As I said, this application, unlike all the cases put to me, is not just based on a desire to adduce fresh evidence or to make new legal argument as to guilt, or even to attack the availability of evidentiary issues based upon a constitutional basis. This is an argument that potentially goes to the actual jurisdiction of the court which was never directly discussed with the accused. Moreover, if it is not advanced in any way that creates an appropriate record, there is also a risk that it will not be considered by any subsequent appellate court that reviews the matter.

Although I accept that there is prejudice to certain administration of justice interests here, it seems to me that unless I am now satisfied that there is no merit to the argument, I should permit it to proceed. Having said that, let me now turn to the nature of the arguments which were proposed to me. The defence alleges two constitutionally based defects. It suggests that s. 7(4.1) is a breach of s. 7 and 11(

b) in that it amounts to a deprivation of the right to make full and answer and defence and thus involves a breach of principles of fundamental justice. Although this is an attack on the legislation itself, this argument is largely based on the hardship that accused persons may face in defending themselves in relation to acts that are said to occur in another jurisdiction. It is submitted that Canadian court’s subpoena power necessarily does not run beyond the country’s borders and distance itself creates hurdles to defence investigation in the securing of defence evidence.

In this regard, it is noteworthy at the outset to say that even in cases prosecuted in Canada that there is no guarantee that witnesses will be located or will be cooperative in terms of complying with the processes to bring them before the court or the documents or other evidence sought by the defence will continue to exist. This potentiality, however, hardly means that no trials will ever occur in this country. The fact that a subpoena may not run to a foreign jurisdiction does not mean that there are not other means of securing evidence in other jurisdictions.

These include, as pointed out by the Crown, Letters Rogatory, Commission Evidence and the Mutual Legal Assistance Program. Moreover, in a case in which the defence could demonstrate that it was unable through reasonable efforts to secure material evidence, which could not be adequately addressed through other sources, a case-specific remedy could also be fashioned. For example, such a circumstance may be considered by the court in assessing the weight to be attributed to the evidence that was adduced.

Or again, in an appropriate case a stay might be ordered on the basis that the defence had shown that they were indeed denied their right to make full answer and defence in the context of that particular matter.

Given those protections, I do not see any basis to assert that the legislation itself should be struck down on the basis that it may possibly be more difficult to assemble defence evidence in some cases as a result of the fact that the prosecution relates to matters arising in another country. I would note that in the case before me there is no evidence of any efforts made by the defence to secure any evidence from Dubai, which they were simply unable to obtain.

Taken to an extreme, this is an argument which would suggest that it is a prima facie breach of s. 7 whenever Canada asserts jurisdiction criminally over even its citizens or permanent residents in relation to matters that arise, in whole or perhaps even in part, outside its borders. Any such extension would, after all in theory, make gathering the defence case to some degree more problematic than in relation to matters that arise within Canada’s borders. Such a notion, it seems to me, is also inconsistent with the approach taken to a related problem in R. v. Klassen 2008 BCSC 1762 .

In Klassen supra, the only Canadian authority brought to my attention, that has considered the constitution of s. 7(4.1) of the Code , the argument was in effect the obverse of the same theme. It was argued there that too much evidence would be available from foreign jurisdictions. It was asserted that evidence obtained by conduct amounting to a Charter breach would potentially be available to the prosecution in cases arising outside Canada’s borders.

The court in Klassen , however, noted the trial court’s ability to fashion a case-specific remedy to exclude evidence if its admission rendered the trial itself unfair in a particular case and as a result, dismissed the challenge to the legislation itself. It seems to me extremely difficult to see why any court would not apply the same analysis to the aspect of the problem raised by the defence before me. The second argument made by counsel for A.V. is that the

section is a breach of s. 7 of the Charter in that it is overly broad and is thus a breach of s. 7. Paragraph 30 of the defence factum identifies the purpose of this legislation as being the prevention of Canadian nationals using the advantages of their nationality and residence to sexually exploit children in other nations. The defence notes that there is no requirement for dual criminality or other analogous prerequisites such as requiring a request for enforcement from the state in which the conduct occurred. The

section has never called for dual criminality, however, the defence points out it did originally include a requirement that no prosecution could occur under its provisions except in relation to conduct amounting child prostitution without a request from the state in which the conduct occurred. That requirement was later apparently dropped. As I understood it and as suggested by the Crown, this was done to bring all of the offences caught by 7(4.1) into conformity with the approach to have been taken in relation to child prostitution. Ms. McKeown on behalf of the defence submits that as a result of this state of affairs, there is conduct caught by this

section which is not rationally connected to the purpose she has identified as driving this legislation. It is said that this situation arises in the context, in part as a result of there being different ages of consent in various countries in relation to when an individual may in law consent to sexual activity. The example she posits is a 21-year-old Canadian studying in France who begins a sexual relationship with a 15-year-old French national, consensually.

It is submitted in oral argument that even a kiss perhaps might be caught and the requirement for the consent of the Attorney General provides no constitutionally relevant protection. The defence submits that this conduct would be caught under the current s. 7(4.1), notwithstanding the fact that under French law the age of consent being different than in Canada, such conduct would be perfectly legal there and would certainly thus not in any way be likely to give rise to any requests by France to Canada if that was a prerequisite, nor could it satisfy any requirement for dual criminality, should one exist.

It is said this example demonstrates that the law is overly broad because it can capture conduct which is not truly rationally connected to the prevention of the exploitation or abuse of anyone but captures conduct that in the eyes of the community in which it occurs is completely innocent.

I appreciate that the Crown suggests the purpose of the legislation is indeed broader than that suggested by the defence. Whether the purpose, as broad as that advanced by the Crown, can legitimately be said to lay behind the legislation may be a live issue in this case. I also understand that the Crown also argues that in any event there may remedies available such as reading in or reading down the legislation in issue, even if it is found to be overly broad. Those matters, however, may raise their own arguable issues.

Having considered all the material before me, I cannot now say that there may not be some arguable merit in the second aspect of the s. 7 argument presented. As a result, I have come to the conclusion that I will at this stage adjourn sentencing for a further period of time to prevent that aspect of the defence application to proceed. I will also say that in light of that conclusion, I will also consider permitting all aspects of the defence application to proceed, notwithstanding my views of the merits of its first branch. In the end, I have concluded that that would not be an appropriate course to take.

While arguable merit on such a fundamental matter as the court’s jurisdiction is enough in the precise circumstances before me to overcome the prejudice present in the orderly administration of justice that has arisen from the approach taken by the defence, it does not justify complicating matters by entertaining the arguments on issues that the court is indeed satisfied are devoid of merit. To take any other course would only be to add needless length to the proceedings, which in turn would risk a further delay in arriving at a full and final determination in the matter whatever it may be.

COURT ADJOURNED FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Debbie Knight certify that this document is a true and accurate transcript of the recording of R. v. A.V. in the ONTARIO COURT OF JUSTICE held at 7755 Hurontario Street, Brampton, Ontario taken from Recording 3111_207_20220222_094559__30_BLACKLJA which has been certified in Form 1. September 19, 2022 Debbie Knight, ACT# 1760322488 debbie@knighttranscripts.com 416-550-4710