Her Majesty the Queen - v. -, 2019 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 46 Date: August 1, 2019 Information: 991043635 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - A.M. Appearing: Ms. Leona Andrews (Public Prosecutions) Ms. Katherine M. Roy (Constitutional Law Branch) For the Crown Mr. John M. Williams and Mr. Thomas Hynes For the Accused RULING ON CONSTITUTIONAL Q UESTION B.D. H ENNING , J NOTE TO READERS: A PUBLICATION BAN PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA HAS BEEN MADE IN THIS MATTER. IT IS PROHIBITED THAT PUBLICATION OR BROADCAST OF INFORMATION WITH RESPECT TO THIS CASE BE DONE IN ANY MANNER THAT PERMITS THE IDENTIFICATION OF THE ALLEGED VICTIM.

HISTORY AND BACKGROUND [1] The applicant/defendant A.M. (the “Applicant”) stands charged that he did: 1. On or about the 16th day of November 2017, at or near Regina, SK, did commit a sexual assault on K.V., contrary to

section 271 ofthe Criminal Code. 2. On or about the 16th day of November 2017, at or near Regina, SK, did, being in a position of trust or authority toward K.V., aperson aged 16 years, for a sexual purpose, touch, directly or indirectly, with a part of the body or with an object, hands, any part of thebody of K.V., contrary to section 153(1)(

a) of the Criminal Code. [2] This matter has been in the Provincial Court of Saskatchewan since April 25, 2018 and there were many appearances as well as earlier applications filed by the defence. The present proceeding results from a notice by theApplicant dated May 28, 2019 stating that he would apply to the Court under

section 52 (sic) of the Canadian Charter of Rights andFreedoms (hereafter ‘the Charter’) for relief stated as follows: A finding pursuant to

section 52 of the Charter that the effects of sections 278.92(1), 278.92(2)(

b) and 278.94(2) of the Criminal Codeare inconsistent with the provisions of the Constitution and the said Code sections are thereby invalid and inoperative and shall not beapplied in the trial of this matter. And further take notice that the constitutional rights that have been infringed or denied by the said code sections are: 1. The Applicant’s right to make a full answer and defence to the said charges guaranteed in

section 7 of the Charter. 2. The Applicant’s right to a fair trial guaranteed in

section 11(

d) of the Charter. [3] This was further particularized in the Applicant brief, dated May 27, 2019 which was filed with a book of case authorities, also filed in electronic form with hyperlinks to the various authorities cited. [4] The Supreme Court has stated in R v Lloyd, 2016 SCC 13 at para 15, [2016] 1 SCR 130 [Lloyd]: Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of theConstitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power.However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them.

As thisCourt stated in R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 316, “it has always been open to provincialcourts to declare legislation invalid in criminal cases. No one may be convicted of an offence under an invalid statute.” [5] The complainant was represented by her counsel Mr. Matthew Schmelling at the outset of this proceeding in accordance with

section 278.94(3) of the Criminal Code, but the complainant did not take

part in the defenceapplication for a preliminary ruling on the constitutional status of the sections cited above. The Crown was represented by counsel fromPublic Prosecutions of the Ministry of Justice for the Province of Saskatchewan and also by counsel for the Constitutional Law Branchfrom the same Ministry, and they each filed written briefs and authorities as well as electronic versions of the same. The defence hadobjected to the Crown being represented in this way but the two branches of the Ministry were permitted to argue separately althoughtheir arguments, not surprisingly, were very similar.

Procedure and dates for argument were discussed, and an earlier trial date wasvacated as unfeasible given this proceeding and new trial dates of September 16, and 17, 2019 were selected. The defence applicationhad originally suggested that the application should be heard as a voir dire, but as this is an application preliminary to the trial, thatprocedure is not required. It was confirmed, however, that the application must be heard by the trial judge. The defence cited the case ofR v Mills, (SCC), [1999] 3 SCR 668 [Mills] for the appropriateness of this procedure, and it was agreed upon by allcounsel.

LEGAL ISSUES AND APPLICANT ARGUMENT [6] Relevant sections of the Criminal Code, as well as the entire Charter of Rights and Freedoms are reproduced and attached as Appendix A and Appendix B respectively to this ruling. [7] The Applicant had filed other notices for matters not part of the proceeding at this time. A notice under

section 278.93 (for ahearing under

section 278.94) of the Criminal Code was filed which stated that the material in possession of the Applicant consisted of adiary and text messages to a third party that were written by the complainant in the matter. The defence has asserted that there is not adirect sexual aspect to this material, although they could raise a possible privacy interest. Given the development and nature ofelectronic communication it is perhaps to be expected that material in the possession of an accused person would often include text oremail messages. [8] The Applicant argues that his rights with respect to making full answer and defence as guaranteed by the Charter areinfringed by this

section in that it potentially limits or eliminates a legitimate avenue of cross-examination, and further, that it wouldgreatly weaken the efficacy of such examination even where records in his possession are allowed to be used. This would be so becausethe complainant will have the opportunity to possibly plan and adjust testimony to counter the material. It also deprives the defence ofthe opportunity to rely on the material itself to establish probity and relevance.

An example where such material was used with greateffect in the context of an alleged sexual assault is cited by the Applicant is the case of R v Ghomeshi, 2016 ONCJ 155 [Ghomeshi],particularly at paragraphs 132 and following. No appeal was taken from that decision delivered in 2016. [9] It is to be noted that the material described in

section 278.92(1) does not necessarily have a sexual aspect or an aspect ofbeing sensitive personal information, whereas the previous categories of restricted material related unequivocally to past sexual conductor sensitive personal information with a high privacy interest.

The earlier processes could therefore be related directly to the eliminationof what is sometimes referred to as the ‘twin myths’ that are set out in section 276(1) of the Criminal Code as well as other desirablesocial goals of encouraging the reporting and prosecution of sexual offences. [10] The use of prior inconsistent or other statements in possession of a party conducting examination in court is well established asa means of testing the veracity and credibility of a witness.

The Applicant brief makes the point that any accused is presumed innocentand is entitled to question and challenge the credibility of the complainant in the proceedings notwithstanding that legislated provisionsare also of relatively long-standing that restrict the manner in which that may be done in sexual assault prosecutions. The Crown positionis that the newest provisions in question are a principled extension of existing protections to complainants in sexual assault proceedings,and any infringements are justified in a free and democratic society under

section 1 of the Charter. Further, it is the Crown position thatthese new provisions need to apply to a person subject to this category of prosecution because there are other higher competingprinciples to be considered than

section 7 and 11 Charter rights. Crown arguments will be set out in greater detail below. [11] The provisions of sections 7 and 11 of the Charter are rights broadly stated but reflect long-standing principles in Canadianjurisprudence and they have been interpreted and elaborated upon. The defence cites Carter v Canada (Attorney General), 2015 SCC 5,[2015] 1 SCR 331 as a recent discussion of

section 7 rights. The defence also cited an early Charter case Dersch v Canada (AttorneyGeneral), (SCC), [1990] 2 SCR 1505 where the term ‘full answer and defence’ was applied to the rights in

section 7of the Charter at page 1514, lines a,b,c. The case of R v Stinchcombe, (SCC), [1991] 3 SCR 326 [Stinchcombe], alsocontains remarks by Sopinka, J. on the history and development of disclosure and the right to a fair trial with full disclosure andconsideration of all evidence available to the Crown whether favorable to their position or not, as well as the principles of full answer anddefence. [12] Other cases were cited in support of these general propositions in the defence brief.

However, it must be remembered thatwhile a trial is a search for the truth of a matter, the restriction of evidence in sexual assault matters is well established and certaincategories of evidence have been subjected to close scrutiny for true probative value to protect privacy of a complainant and promote thereporting and prosecution of such cases. The defence brief admits that cross-examination has always been subject to some restrictions.See: R v Osolin, (SCC), [1993] 4 SCR 595 and R v Lyttle, 2004 SCC 5, [2004] 1 SCR 193 [Lyttle].

The defence,however, asserts that the prior restrictions on questioning and use of material with a privacy interest did not require that the complainantin a proceeding be given notice and standing on the question of their use and thereby permit preparation in advance by a complainant totailor evidence to counter defence use of such material. The defence has referred at paragraph 44 of their brief to the long-standingpractice of excluding witnesses from proceedings until after their testimony is given to prevent modification of evidence based upon whatthey might hear from other witnesses.

That this practice is desirable for the purpose of maintaining the integrity of the trial process in thesearch for truth has been axiomatic up to the present time. [13] In Lyttle, at paras 1 and 2, the Supreme Court of Canada wrote:

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. 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.

The Supreme Court then stated at paragraph 44 of Lyttle, that the “right of cross-examination must therefore be jealously protected and broadly construed.” [ 14 ] A case dealing with sexual offences and the use of a complainant’s diary was considered in R v Shearing , 2002 SCC 58 , [2002] 3 SCR 33 [ Shearing ]. The legal issues were over cross-examination on this material and it was done without the process now mandated in

section 278 of the Criminal Code . Notwithstanding that situation, the trial court and the Supreme Court were very much alive to the issues in the use of such material and considered the principles relating to disclosure of third-party records with a high privacy interest to be within the discretion of a trial judge to limit the use of such even without specific statutory authority. The trial judge weighed probative value with prejudicial effect and gave precedence to the probative value.

The Supreme Court upheld the trial judge’s discretion on the whole, and made some significant remarks regarding cross-examination at pages 36-37: Cross-examination of the complainants was of criti​cal importance. Evidence relevant to a defence can be excluded only if its prejudicial effect substantially out​weighs its probative value. Cross-examination in a sexual assault case may distort the search for truth if it puts the complainant on trial and limitations have been imposed by the courts to protect a complainant’s privacy interest, particularly where cross-examination may be directed to rape myths.

This concern lay at the heart of the trial judge’s ruling. The cogency of the proposed cross-examination rested on the unspoken premise that sexual assaults, if they occurred, would have been recorded in the diary. The diary was not wrongfully taken. The real issue concerned the privacy status of the information it con​tained. Privacy rights have been disentangled from their roots in private property and a loss of physical possession will not necessarily defeat a privacy interest.

Sections 278.l to 278.9 of the Criminal Code address produc​tion of personal information and had no application to the admissibility or use of the diary. [ 15 ] The Applicant relies further on the Shearing case, making these comments in their brief: The Supreme Court completely agreed with the spirit of the trial judge’s ruling - that is - his application of the law that prohibits the use of rape myths in cross-examination: See Shearing at paras 120 and 121 . However the Supreme Court ruled that the trial judge should nonetheless have permitted the accused to cross-examine on the absence of entries.

The Court drew a distinction between assuming, based on stereotypical thinking, the truth of the premise (that if the abuse occurred it would have been recorded) and demonstrating through cross-examination, the truth of the premise. While the defence was rightly precluded from the former, the defence should not have been precluded from the latter. The Court put it this way at para 146: [T]he probative value to the defence depended on establishing the premise that if the physical and sexual abuse occurred, it would have been recorded.

The defence was rightly precluded from assuming the truth of that premise, but it did not follow that the defence should also be precluded from attempting to demonstrate it with this particular diary on the particular facts of a case. This case is an illustration of how very sensitive material was handled in a trial without the application of sections 278.2(1) and (2) or

section 278.92(1) of the Criminal Code where the Court was aware of privacy interests of the complainant, and the risks of cross- examination that might pertain to ‘rape myths’. The Supreme Court in Shearing made further significant observations about cross-examination in that context: [76] 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: 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 added.] 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 forreasonable protection of a complainant, particularly where the purpose of the cross-examination may be directed to “rape myths”. [Emphasis added.] [16] The Applicant then returned to the issue of preserving the efficacy of cross-examination in support of the right to full answerand defence that might be lost in the event that the provisions are applied to allow a significant defence position and strategy to bedisclosed in advance.

Exclusion of witnesses in all categories of court proceedings has long been held to be an important safeguard to allparties in a proceeding to prevent witnesses from shading their evidence in improper ways. The Applicant quotes extensively from theGhomeshi case to illustrate how important cross-examination may be.

The defence contends that such cross-examination is a powerfultool in the search for the truth in a trial that is paramount in Canadian jurisprudence notwithstanding the very important considerations ofprotecting complainants in testifying in sexual assault cases. [17] The essence of the Applicant’s position is that the new requirements of

section 278.92 not only restricts the use of materialalready in possession of an accused person, but the use that they might be put to in cross-examination must be disclosed to a complainantand his or her legal counsel at the outset of the process to consider whether such material may be used. The right to legal counsel for acomplainant has also been extended to the process under section 276(2) of the Criminal Code, but that is not relevant to the considerationof this matter.

Involvement of a complainant in the legal question of the relevance and use of material was enacted as further protectionto complainants in sexual assaults from improper lines of inquiry that might deter such complaints from coming forward and proceeding. However, the effect is also to possibly diminish the rights to full answer and defence that have been recognized under sections 7 and 11of the Charter. These rights must be balanced with the rights of a complainant and social policy with respect to sexual assaultprosecutions.

SUBMISSIONS BY CROWN, CONSTITUTIONAL LAW BRANCH [18] Counsel for the Constitutional Law Branch filed a brief that included an extensive overview of the legislation and legislativeintent, emphasizing that the legislation improves protections to all parties, but particularly the rights of a ‘victim’, a status that is perhapsmore accurately described as ‘complainant’ until after the adjudication of a complaint.

This position at the outset is supported byquoting statements by the former minister of justice and her parliamentary secretary without identification of whether such came fromparliamentary debate, committee proceedings, a press conference or another context. The precise context may not be significant, but theuse of such statements in support of a position is limited and has been commented upon judicially.

In Canadian National RailwayCompany v (Canada) Attorney General, 2014 SCC 40 at para 47, [2014] 2 SCR 135, wherein the Supreme Court of Canada stated: [47] This Court has observed that, while Hansard evidence is admitted as relevant to the background and purpose of the legislation,courts must remain mindful of the limited reliability and weight of such evidence (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 35; R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463 (S.C.C.), at p. 484; Sullivan, atpp. 608-14).

Hansard references may be relied on as evidence of the background and purpose of the legislation or, in some cases, asdirect evidence of purpose (Canada Attorney General) v. Mowat, 2011 SCC 53, [2011] 3 S.C.R. 471 (S.C.C.), at para. 44, per LeBel andCromwell JJ.). Here, Hansard is advanced as evidence of legislative intent. However, such references will not be helpful in interpretingthe words of a legislative provision where the references are themselves ambiguous (Placer Dome Canada Ltd. v. Ontario (Minister ofFinance), 2006 SCC 20, [2006] 1 S.C.R. 715 (S.C.C.), at para. 39, per LeBel J.).

Accordingly, the evidence relied on by CN in this casedoes not support the argument that an implied restriction to questions of fact and policy should be read into the otherwise broad andunrestricted language in s. 40. [19] Similar statements were relied upon in a decision in the case of R v A.C., 2019 ONSC 4270 [A.C.] at paragraphs 8 to 10 whichwas a similar challenge to the sections in question here. That case will be considered further below.

However, the use of publicstatements regarding the purpose and intent of legislation may be useful in some contexts where the objectives of legislation are not clearand could affect

interpretation. However, the legislative intent or purpose of the challenged provisions under consideration here are notat all obscure or difficult to discern. The Supreme Court in the case cited directly above accepted the use of this type of material forsome purposes, but not for the

interpretation of possibly ambiguous words within the legislation. Similarly, consideration of theconstitutional validity of a

section that might impinge significantly on Charter rights is not, in my opinion, assisted by statementsrestating broad purposes and intent which are widely known and accepted in sexual assault cases. [20] The Crown arguments refer to the similar and parallel provisions under

section 278.2 pertaining to materials to which a highlevel of privacy apply that have existed for some time. The Crown cited the case of Mills which discussed the now well-establishedpurposes of section 276(1) and (2) of the Criminal Code legislation to limit “use of stereotypes pertaining to victims of sexual assault”.The Crown further referenced statements from the Senate Standing Committee characterizing the new legislation as having the samegoals as earlier provisions to protect complainants in sexual matters who must take

part in trials. These goals have become well known,understood and applied in numerous contexts, and the Crown argues that the new provisions continue these objectives without anyimpingement on the rights of an accused person.

The Crown states in paragraph 22 of the Constitutional Law brief “It is clear fromParliament's amendments to the Code in Bill C-51 that Parliament sought to directly respond to concerns arising from the Shearingdecision as well as to replicate the appropriate constitutional balance struck in Mills with respect to third party records.” The 2016decision in Ghomeshi, is not referenced, and the Crown asserted that Bill C-51 was not a response to that case, but only the earlier casesare.

At paragraph 10, the Crown adopts remarks that suggest that the material covered in the new provisions are really very similar towhat is already covered in the provisions relating to third-party records, and the only difference being in who possesses them. The

notice provisions to the complainant are minimized in significance both in the Crown submissions and in public statements cited andrelied upon in the brief. However, no previous legislation made the complainant a party to a hearing with notice of all records orquestioning disclosed to the complainant. [21] This minimization in considering these provisions is not helpful in determining the complex effects and validity of thelegislation.

The new Criminal Code provisions relating to records in possession of the accused do in many aspects of procedure parallelwhat has been mandated for some time with respect to third-party records and questioning on prior sexual activity. However, statementsthat the changes are only a small incremental extension of those provisions to further the principles behind them leaves muchunconsidered in the provisions with respect to the effect of the new notice to and participation by the complainant.

Disclosure to thecomplainant in the process to determine the use of third party records or questioning on prior sexual activity had been discretionary forthe trial judge to determine within the hearing process, but it is not discretionary in the new Criminal Code provisions. [22] The material that may be covered in the new provisions relating to materials in possession of an accused is very broad, andmay not in all cases have an aspect relating to sexual conduct or matters with a high privacy interest, though that is, of course, possible.

Itmight well be that in the future a great many such cases relating to material in possession of an accused will involve electroniccommunication, the ultimate destination of which are neither predictable nor controllable once sent by any originator. That does notmean, of course, that such material could not have privacy rights that attach or relate to sexual activity.

Shearing dealt with privacyrights where limitations on use and sensitivity to the complainant were weighed with probative value and fair trial process. [23] The Constitutional Law Branch brief canvasses in copious detail the provisions of the earlier legislation relating to theoperation of the provisions relating to questioning on prior sexual activity and the use of personal records in possession of third parties towhich a high privacy interest attaches, citing the procedure and the discretion of the Court to allow use of such material in appropriatecases where probative value is established.

The value and purpose of such provisions are well established but that does not address thecentral question raised by the defence in this application: the provision of notice to a complainant and legal counsel for that person is anentirely new innovation that does not have precedent in earlier legislation.

That there has been restriction on questioning and use of thirdparty materials for some time, with detailed procedural provisions, does not diminish the significant differences in the new provisions.The previous legislation has been applied by the highest judicial authorities in Canada and is not being challenged. The undisputed factthat the present legislation is well-understood and accepted does not bolster the validity of the new provisions on the question of whetherit may affect full answer and defence.

This is not a conclusion on the question of whether such additional provisions are constitutional,but the changes should not be minimized in considering them. [24] The making of a complainant a party to a hearing to determine the use of such material is innovative, but not in itself achallenge to the right of full answer and defence, except insofar that it may impact on the right and efficacy of cross examination, in myopinion. At paragraph 18 of the Constitutional Law Branch brief, reference is made to a committee report from 2012 which consideredShearing and Mills and suggests that Bill C-51, including

section 278.92(1) of the Criminal Code was introduced as a response to thosecases. At that time, however, no reference was made to the making of a complainant a party to the proceeding in the way that has beendone. [25] The Crown cites the recent case of R v Boyle, 2019 ONCJ 232 as an example of how the new provisions would be applied,although the case involves

section 278.92 and not

section 278.94 of the Criminal Code. It concerned the use of a private record, arecording that was ruled not permissible under existing rules with respect to relevance and cogency, but utilizing considerations undersection 278.92. In Shearing similar material, a diary, was considered in 2002. Also referenced was Mills, which was decided earlier thanShearing, but no reference was made in the brief to Ghomeshi, heard in 2016, perhaps because issues were not raised in the samemanner. [26] The Crown further argues that even if the legislation in question infringes sections 7 and 11 of the Charter, that it should beupheld as under

section 1 of the Charter as being within “… reasonable limits prescribed by law as can be demonstrably justified in afree and democratic society”. The defence in all of their arguments has suggested that cross-examination on records in their possessionthat must be disclosed to the party being examined and legal counsel, is so diminishing to the efficacy of cross-examination and a fairtrial process, that it cannot be saved by

section 1 of the Charter. The Crown argues to the contrary and cites the test in applying

section 1after a breach of Charter rights has been determined from the Supreme Court in R v Oakes, (SCC), [1986] 1 SCR 103[Oakes], which at paragraphs 138-139 lists the following requirements: • The legislative objective or objectives must be pressing and substantial; • The impugned law must be rationally connected to its objective; • The impugned law must impair the right or freedom in question as minimally as possible; and • The deleterious effects of the impugned law must not outweigh its salutary benefits.

[ 27 ] The need to protect complainant witnesses in sexual assault trials has been recognized and addressed with legislative safeguards to eliminate the ‘twin myths’ and unreasonable harassment through improper examination on personal records. Both evils have in the past had the effect of discouraging the reporting and proper prosecution of such offences. The social value of eliminating them from the justice system cannot be overstated, nor the need to limit examination on material with a high privacy interest which could also deter legitimate complaints from coming forward.

Limitation on cross-examination, as has been noted above, has been legislated before, but has also always been within a trial judge’s discretion to restrict even without legislation. PUBLIC PROSECUTION ARGUMENTS [ 28 ] The Crown brief for Public Prosecutions listed the questions and issues raised by the Applicant, starting with the application under

section 278.93 of the Criminal Code for a determination on admissibility and use of records, pursuant to

section 278.94(1) of the Criminal Code . The second application listed by the Crown is the current application which challenges the constitutional validity of

section 278.94(2) . Other notices and applications had been filed by the defence, namely, to adduce evidence of the loss of materials in possession of the Crown and seek relief under section 292(4) of the Criminal Code and for a section 24(1) Charter order staying the matter for loss of evidence. However, only the issues of the validity of the provisions under Bill C-51 and the resulting legislation of

section 278.92(1) of the Criminal Code were argued as some other questions may become moot on the determination of this matter. The Crown did file argument on the question of notice and compliance with

section 298.93(1) which was deferred pending determination of this matter. [ 29 ] The Crown presented arguments on the constitutional question that closely parallel those of the Constitutional Law Branch and many of the same cases were cited. (A significant number of the same cases had also been cited by the Applicant.) On the whole, they concentrate on the value of the public policy considerations of the challenged legislation, its extension of accepted principles, and the broad objectives and public policy involved in sexual assault cases.

The effect of limitation of cross-examination through disclosure to the prime witness in a sexual assault prosecution was not the subject detailed argument, except in the broad sense of asserting that trial fairness is not affected.

The Crown argued that the effect of a complainant participating in the hearing to determine the question of what records might be used by the defence did not affect overall trial fairness when principles relating to the elimination of stereotypical characterizations and harassment on personal matters are weighed in balance. [ 30 ] The Crown cited R v Darrach , 2000 SCC 46 at para 37 , [2000] 2 SCR 443 [ Darrach ], the Supreme Court stated: An accused has never had a right to adduce irrelevant evidence.

Nor does he have the right to adduce misleading evidence to support illegitimate inferences: “the accused is not permitted to distort the truth-seeking function of the trial process” ( Mills , supra , at para. 74 ). Because s. 276(1) is an evidentiary rule that only excludes material that is not relevant, it cannot infringe the accused’s right to make full answer and defence. Section 276(2) is more complicated, and I turn to it now. The Crown observed further that even where evidence is not barred, the Court must still weigh the probative versus prejudicial value of it before admitting it in to evidence.

These propositions are fundamental and have been noted above. [ 31 ] At paragraph 22 of the Crown Prosecutions brief, the case of R v Boone , 2016 ONCA 227 [ Boone ] was cited which contains some statements that recognize the challenge to the defence where consent or other issues exist that are difficult to prove or disprove. The case emphasizes that such difficulties do not justify bending or distorting the law to permit easier defence.

However, the Court also observed: “it is always open to an accused to challenge the complainant’s credibility in other ways by exposing prior inconsistent statements and general lack of veracity”. Inconsistent statements in emails were a prominent feature of the Ghomeshi , case, and the use of such material in cross-examination was recognized by the Court in Boone as a prime way of challenging veracity of a complaint, a point very much emphasized by the Applicant. The Crown asserts that the provisions in Bill C-51and

section 278.94 are reasonable limits on cross-examination notwithstanding any effect of disclosure on the efficacy of cross-examination. [ 32 ] Following argument in this case, a decision was released in Ontario, A.C. which ruled on a similar issue and upheld the validity of the legislation under consideration here. The accused had made applications under

section 278.94(2) (complainant may appear and make submissions at the hearing) and

section 278.94(3) (judge to inform the complainant of that right). The complainant took

part in the hearing with Crown counsel and defence counsel and made submissions. There was disagreement as to the analytical approach to be applied in considering the issue, and the “ Mills/Darrach ” approach was accepted by the Court, which is in fact the approach taken in argument in this matter.

The Court concluded that competing values were the fair trial guarantees of sections 7 and 11 of the Charter , that is, “the right of the accused to make full answer and defence, but also society’s interest in reporting sexual assault offences, the potential prejudice to the complainant’s personal dignity, the right to privacy and her personal security, and to full protection and benefit of the law”.

[ 33 ] The Court then analyzed the issues considered in Mills and Darrach and concluded that they were fully determinative of the matter. The Court concluded that the changes in the legislation were small and incremental and did not change the trial process significantly. The judge then focused on the role of counsel for the complainant and the effect that would have on a fair trial, particularly considering that the legislation does not define the role of the complainant and counsel.

The Court appeared to focus on process and did not consider the effect of disclosure and any impact on cross-examination and ability to challenge the veracity of the complainant. The Court approved of the fact that a complainant could give direct evidence on the issue of privacy, and went on to enumerate ways that the trial process was not changed which, in my opinion, does not assist in determining the issues relating to what is changed. The Court considered the role that a complainant should have in a hearing and in the overall trial, and concluded that it was to be limited and focused by the trial judge.

As noted, the effect of disclosure on the defence ability to effectively cross-examine was not considered and as a result this case is of limited assistance in determining the issue in this proceeding. DISCUSSION AND CONCLUSIONS [ 34 ] It is to be noted that in any court proceedings, even in a non-sexual matter, a complainant or any other witness cannot be assured that being challenged on their evidence will not be a difficult experience.

Nonetheless, it is desirable that all witness or victims in any category of matter should not be deterred from coming forward and testifying in court, and be protected from unreasonable cross- examination. A Court always has a duty to prevent such conduct. The protections to a witness do not consist entirely of procedures mandated by legislation, and judicial discretion must apply in controlling the trial process in any category of case, but most especially in cases of sexual assault.

However, it is not always possible, even in matters relating to sexual assault where special provisions apply to minimize any difficulties or trauma in giving evidence, that cross-examination will occur without any form of discomfort or stress to a witness. The law must, however, in all cases, and particularly in this special category of offences, be alert to improper or abusive questioning even where such questioning is permitted in a sensitive area because it has been ruled to be permitted because of potential probative value.

The Shearing case is an example of how material that would be covered by the new legislation was nonetheless sensitively handled without such provisions. [ 35 ] Fundamental principles of justice and trial fairness have been elaborated upon in cases cited above that include Mills, Stinchcombe , Lyttle, Shearing, and others.

Fundamental justice has also been considered in relation to the special provisions governing sexual assault trials that have in Canada long been in place to impose limitations on the use of sensitive material and questioning on sexual history, and those objectives and protections cannot be subject to challenge. The defence points out, however, that prior provisions related to questions of sexual history or to records in possession of third parties with a high degree of privacy, are fundamentally different from records already in the possession of an accused person.

An aspect of difference asserted by the Applicant is that the material covered in the new provisions does not necessarily relate to sexual history or be material to which a high privacy interest attaches, which was clearly the case in the prior legislation regulating evidence in sexual assault proceedings. However, the records subject of the challenged legislation could have those characteristics.

Much of the discussion at the trial and in the Supreme Court in Shearing concerned those special considerations which were observed and applied. [ 36 ] However, the main argument, in my opinion, presented by the Applicant focuses on the effect of notice regarding records in possession of an accused person that would be used in cross-examination, and the effect of disclosure on the efficacy of cross- examination.

It is relevant to note, in my opinion, that under the law of evidence in criminal cases, cross-examination of a witness regarding prior inconsistent statements does not require disclosure in advance of examination, and such would not be considered of assistance in seeking the truth of a matter.

Judicial statements on the essential character of cross-examination in seeking truth within a fair trial process have been cited, and the significant use of such materials at trial has been referenced. [ 37 ] The Crown response to these arguments is that the changes that are challenged are of no significance to the fairness of trial process and are an incremental development of principles and processes long accepted in Canada as necessary protections to complainants and the integrity of trial process in sexual assault cases.

Impact on the trial process with respect to cross-examination is argued as minimal and consistent with established principles that already limit such examinations. [ 38 ] In my opinion, the Crown arguments do not address adequately the effect of disclosure to the complainant that may allow the complainant to prepare for trial ready to explain and possibly modify their evidence.

Such modification of testimony is possible and that concern is reflected by the long-standing practice to exclude witnesses from a trial until after their evidence is given, and this is done in all trials to minimize the possibility of improper modification of testimony. The evidence of a complainant is almost always crucial and central in any trial relating to sexual assault. Mandatory disclosure to the prime witness in a prosecution reaches to the center and integrity of the trial process in such cases.

The importance of cross-examination has been judicially recognized, though it is always subject to limitations either in the discretion of a trial judge or by legislation to minimize harm to a witness or the trial process itself, and to promote social policies. [ 39 ] Disclosure in this context is therefore different from the prior processes that have been in place dealing with questioning on

prior sexual history or limiting use of private and sensitive records in possession of a third party. The prior processes have not compromised the integrity of the trial process and have still provided powerful protections to a complainant in the trial of a sexual assault complaint. They are different from the Criminal Code sections under consideration in this application which do affect the trial process in a significant and fundamental way, as discussed above. [ 40 ] I conclude for reasons and authorities that are referenced above, that the combined effect of sections 278.92(1), 278.92(2)(

b) and 278.94(2) is to seriously limit an accused person’s ability to effectively challenge the veracity of a complainant in cases where the accused is in possession of potentially significant material that would be utilized in cross-examination to counter evidence already given in court. This constitutes a serious infringement of an accused person’s ability to challenge a complainant in seeking truth in a trial. As a result, the Applicant’s right to a full answer and defence and to a fair trial that are guaranteed under sections 7 and 11(

d) of the Charter is infringed. [ 41 ] I must now determine whether I should rule the legislation relating to records in possession of an accused person that requires notice and permits participation by a complainant in the hearing process, must be declared invalid and inoperative in accordance with Lloyd . I must also consider

section 1 of the Charter and apply the considerations and principles set out in Oakes to determine if the legislation in question that breaches

section 7 and 11 Charter rights may nonetheless be upheld under

section 1 of the Charter . The Oakes principles are summarized again as follows: • The legislative objective or objectives must be pressing and substantial; • The impugned law must be rationally connected to its objective; • The impugned law must impair the right or freedom in question as minimally as possible; and • The deleterious effects of the impugned law must not outweigh its salutary benefits. [ 42 ] I conclude that these breaches of Charter rights are not permissible or justified under

section 1 of the Charter for the following reasons: a. The legislative objectives of the challenged Criminal Code sections are important and well-recognized as being of extraordinarily high value, and are intended to protect complainants in sexual assault prosecutions in the ways that are set out in above; b.

However, the provisions are an extension of already existing substantial protections that have been in effect for some time, and though it is argued they should be allowed to add to those protections, they do so with significant limitations to the right of full answer and defence for an accused person in a trial. This is also an important Charter right, and was a long-established principle before enactment of the Charter . c. This impairment is significant and goes to the center of the trial process which is a search for truth and justice for all parties.

The current trial process for sexual assaults has significant and powerful legislated provisions and protections currently to achieve the objectives that shield a complainant in a sexual assault trial from unwarranted intrusions into privacy, sexual history and to dispel improper stereotypes, and thus promote overall the reporting and prosecution of sexual complaints. d.

Given these conclusions, I find that deleterious effects of the challenged legislation outweigh the benefits, which are incremental and are not the whole of the provisions that have the objective of protecting complainants in sexual assault proceedings and encouraging a fair hearing for a complainant. This is essential and unchallengeable social policy.

However, the right to a fair trial in a free and democratic society is also a consideration of the highest order that need not be diminished in promoting the other high objectives in sexual assault prosecutions. [ 43 ] In conclusion I would note that the trial process is a flexible and nuanced process, and case law has illustrated, in my opinion, that courts have the means of protecting a complainant and maintaining the objectives in contemporary sexual assault provisions in the Criminal Code without adding a further provision that could fundamentally impair the right to full answer and defence of an accused person in a sexual assault trial.

I conclude and rule that the challenged provisions must be declared invalid and not applied in this trial proceeding. Dated at the City of Regina, this 1 st day of August, 2019.

______________________ Judge B.D. Henning APPENDIX A R. v. A.M., Ruling August 1, 2019 CRIMINAL CODE OF CANADA (Material taken from CanLII with formatting unchanged.) Evidence of complainant’s sexual activity 276

(1) In proceedings in respect of an offence under

section 151 , 152 , 153 , 153.1 , 155 or 159 , subsection 160(2) or (3) or

section 170 , 171 , 172 , 173 , 271 , 272 or 273 , evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (

a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (

b) is less worthy of belief. Conditions for admissibility

(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94 , that the evidence (

a) is not being adduced for the purpose of supporting an inference described in subsection (1); (

b) is relevant to an issue at trial; and (

c) is of specific instances of sexual activity; and (

d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. [See:

section 278.93 (1) – complainant has standing and counsel] Factors that judge must consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (

a) the interests of justice, including the right of the accused to make a full answer and defence; (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

d) the need to remove from the fact-finding process any discriminatory belief or bias; (

e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

f) the potential prejudice to the complainant’s personal dignity and right of privacy; (

g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (

h) any other factor that the judge, provincial court judge or justice considers relevant.

Interpretation

(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature. R.S., 1985, c. C-46, s. 276 R.S., 1985, c. 19 (3rd Supp.), s. 12 1992, c. 38, s. 2 2002, c. 13, s. 13 2018, c. 29, s. 21 276.1 [Repealed, 2018, c. 29, s. 22 ] 276.2 [Repealed, 2018, c. 29, s. 22 ] 276.3 [Repealed, 2018, c. 29, s. 22 ] 276.4 [Repealed, 2018, c. 29, s. 22 ] 276.5 [Repealed, 2018, c. 29, s. 22 ] Reputation evidence 277 In proceedings in respect of an offence under

section 151 , 152 , 153 , 153.1 , 155 or 159 , subsection 160(2) or (3) or

section 170 , 171 , 172 , 173 , 271 , 272 or 273 , evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant. R.S., 1985, c. C-46, s. 277 R.S., 1985, c. 19 (3rd Supp.), s. 13 2002, c. 13, s. 14 Spouse may be charged 278 A husband or wife may be charged with an offence under

section 271 , 272 or 273 in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred. 1980-81-82-83, c. 125, s. 19

Definition of record 278.1 For the purposes of sections 278.2 to 278.92 , record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence. 1997, c. 30, s. 1 2018, c. 29, s. 23 Production of record to accused 278.2

(1) Except in accordance with sections 278.3 to 278.91 , no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (

a) an offence under

section 151 , 152 , 153 , 153.1 , 155 , 159 , 160 , 170 , 171 , 172 , 173 , 210 , 211 , 213 , 271 , 272 , 273 , 279.01 , 279.011 , 279.02 , 279.03 , 286.1 , 286.2 or 286.3 ; or (

b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (

a) if it occurred on or after that day. Application of provisions

(2) Section 278.1 , this

section and sections 278.3 to 278.91 apply where a record is in the possession or control of any person, including the prosecutor in the proceedings, unless, in the case of a record in the possession or control of the prosecutor, the complainant or witness to whom the record relates has expressly waived the application of those sections. Duty of prosecutor to give notice

(3) In the case of a record in respect of which this

section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents. 1997, c. 30, s. 1 1998, c. 9, s. 3 2014, c. 25, ss. 17, 48 2015, c. 13, s. 5 Application for production 278.3

(1) An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge before whom the accused is to be, or is being, tried. No application in other proceedings

(2) For greater certainty, an application under subsection (1) may not be made to a judge or justice presiding at any other proceedings, including a preliminary inquiry. Form and content of application

(3) An application must be made in writing and set out (

a) particulars identifying the record that the accused seeks to have produced and the name of the person who has possession or control of the record; and (

b) the grounds on which the accused relies to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify. Insufficient grounds

(4) Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify: (

a) that the record exists; (

b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or is receiving; (

c) that the record relates to the incident that is the subject-matter of the proceedings; (

d) that the record may disclose a prior inconsistent statement of the complainant or witness; (

e) that the record may relate to the credibility of the complainant or witness; (

f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling; (

g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused; (

h) that the record relates to the sexual activity of the complainant with any person, including the accused; (

i) that the record relates to the presence or absence of a recent complaint; (

j) that the record relates to the complainant’s sexual reputation; or (

k) that the record was made close in time to a complaint or to the activity that forms the subject-matter of the charge against the accused. Service of application and subpoena

(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 60 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under

Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served. Service on other persons

(6) The judge may at any time order that the application be served on any person to whom the judge considers the record may relate. 1997, c. 30, s. 1 2015, c. 13, s. 6 2018, c. 29, s. 24

Hearing in camera 278.4

(1) The judge shall hold a hearing in camera to determine whether to order the person who has possession or control of the record to produce it to the court for review by the judge. Persons who may appear at hearing

(2) The person who has possession or control of the record, the complainant or witness, as the case may be, and any other person to whom the record relates may appear and make submissions at the hearing, but they are not compellable as witnesses at the hearing. Right to counsel

(2.1) The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel. Costs

(3) No order for costs may be made against a person referred to in subsection (2) in respect of their participation in the hearing. 1997, c. 30, s. 1 2015, c. 13, s. 7 Judge may order production of record for review 278.5

(1) The judge may order the person who has possession or control of the record to produce the record or part of the record to the court for review by the judge if, after the hearing referred to in subsection 278.4(1) , the judge is satisfied that (

a) the application was made in accordance with subsections 278.3(2) to (6) ; (

b) the accused has established that the record is likely relevant to an issue at trial or to the competence of a witness to testify; and (

c) the production of the record is necessary in the interests of justice. Factors to be considered

(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account: (

a) the extent to which the record is necessary for the accused to make a full answer and defence; (

b) the probative value of the record; (

c) the nature and extent of the reasonable expectation of privacy with respect to the record; (

d) whether production of the record is based on a discriminatory belief or bias; (

e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (

f) society’s interest in encouraging the reporting of sexual offences; (

g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (

h) the effect of the determination on the integrity of the trial process.

1997, c. 30, s. 1 2015, c. 13, s. 8 Review of record by judge 278.6

(1) Where the judge has ordered the production of the record or part of the record for review, the judge shall review it in the absence of the parties in order to determine whether the record or part of the record should be produced to the accused. Hearing in camera

(2) The judge may hold a hearing in camera if the judge considers that it will assist in making the determination. Provisions re hearing

(3) Subsections 278.4(2) to (3) apply in the case of a hearing under subsection (2). 1997, c. 30, s. 1 2015, c. 13, s. 9 Judge may order production of record to accused 278.7

(1) Where the judge is satisfied that the record or part of the record is likely relevant to an issue at trial or to the competence of a witness to testify and its production is necessary in the interests of justice, the judge may order that the record or part of the record that is likely relevant be produced to the accused, subject to any conditions that may be imposed pursuant to subsection (3). Factors to be considered

(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2) (

a) to (

h) into account. Conditions on production

(3) If the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions: (

a) that the record be edited as directed by the judge; (

b) that a copy of the record, rather than the original, be produced; (

c) that the accused and counsel for the accused not disclose the contents of the record to any other person, except with the approval of the court;

(

d) that the record be viewed only at the offices of the court; (

e) that no copies of the record be made or that restrictions be imposed on the number of copies of the record that may be made; and (

f) that information regarding any person named in the record, such as their address, telephone number and place of employment, be severed from the record. Copy to prosecutor

(4) Where the judge orders the production of the record or part of the record to the accused, the judge shall direct that a copy of the record or part of the record be provided to the prosecutor, unless the judge determines that it is not in the interests of justice to do so. Record not to be used in other proceedings

(5) The record or part of the record that is produced to the accused pursuant to an order under subsection (1) shall not be used in any other proceedings. Retention of record by court

(6) Where the judge refuses to order the production of the record or part of the record to the accused, the record or part of the record shall, unless a court orders otherwise, be kept in a sealed package by the court until the later of the expiration of the time for any appeal and the completion of any appeal in the proceedings against the accused, whereupon the record or part of the record shall be returned to the person lawfully entitled to possession or control of it. 1997, c. 30, s. 1 2015, c. 13, s. 10 Reasons for decision 278.8

(1) The judge shall provide reasons for ordering or refusing to order the production of the record or part of the record pursuant to subsection 278.5(1) or 278.7(1) . Record of reasons

(2) The reasons referred to in subsection (1) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing. 1997, c. 30, s. 1 Publication prohibited 278.9

(1) No person shall publish in any document, or broadcast or transmit in any way, any of the following: (

a) the contents of an application made under

section 278.3 ; (

b) any evidence taken, information given or submissions made at a hearing under subsection 278.4(1) or 278.6(2) ; or (

c) the determination of the judge pursuant to subsection 278.5(1) or 278.7(1) and the reasons provided pursuant to

section 278.8 , unless the judge, after taking into account the interests of justice and the right to privacy of the person to whom the record relates, orders that the determination may be published.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on

summary conviction. 1997, c. 30, s. 1 2005, c. 32, s. 14 Appeal 278.91 For the purposes of sections 675 and 676 , a determination to make or refuse to make an order pursuant to subsection 278.5(1) or 278.7(1) is deemed to be a question of law. 1997, c. 30, s. 1 Admissibility — accused in possession of records relating to complainant 278.92

(1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of the accused — and which the accused intends to adduce — shall be admitted in evidence in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences: (

a) an offence under

section 151 , 152 , 153 , 153.1 , 155 , 160 , 170 , 171 , 172 , 173 , 210 , 211 , 213 , 271 , 272 , 273 , 279.01 , 279.011 , 279.02 , 279.03 , 286.1 , 286.2 or 286.3 ; or (

b) any offence under this Act, as it read from time to time before the day on which this paragraph comes into force, if the conduct alleged would be an offence referred to in paragraph (

a) if it occurred on or after that day. [hearing, see section: 278.93 (1)] Requirements for admissibility

(2) The evidence is inadmissible unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94 , (

a) if the admissibility of the evidence is subject to

section 276 , that the evidence meets the conditions set out in subsection 276(2) while taking into account the factors set out in subsection (3); or (

b) in any other case, that the evidence is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. Factors that judge shall consider

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account (

a) the interests of justice, including the right of the accused to make a full answer and defence; (

b) society’s interest in encouraging the reporting of sexual assault offences; (

c) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; (

d) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; (

e) the need to remove from the fact-finding process any discriminatory belief or bias;

(

f) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; (

g) the potential prejudice to the complainant’s personal dignity and right of privacy; (

h) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and (

i) any other factor that the judge, provincial court judge or justice considers relevant. 2018, c. 29, s. 25 Application for hearing — sections 276 and 278.92 278.93

(1) Application may be made to the judge, provincial court judge or justice by or on behalf of the accused for a hearing under

section 278.94 to determine whether evidence is admissible under subsection 276(2) or 278.92(2) . Form and content of application

(2) An application referred to in subsection (1) must be made in writing, setting out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial, and a copy of the application must be given to the prosecutor and to the clerk of the court. Jury and public excluded

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded. 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) . 2018, c. 29, s. 25 Hearing — jury and public excluded 278.94

(1) The jury and the public shall be excluded from a hearing to determine whether evidence is admissible under subsection 276(2) or 278.92(2) . Complainant not compellable

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

(3) The judge shall, as soon as feasible, inform the complainant who participates in the hearing of their right to be represented by counsel.

Judge’s determination and reasons

(4) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part of it, is admissible under subsection 276(2) or 278.92(2) and shall provide reasons for that determination, and (

a) if not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted; (

b) the reasons must state the factors referred to in subsection 276(3) or 278.92(3) that affected the determination; and (

c) if all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial. Record of reasons

(5) The reasons provided under subsection (4) shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing. 2018, c. 29, s. 25 Publication prohibited 278.95

(1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following: (

a) the contents of an application made under subsection 278.93; (

b) any evidence taken, the information given and the representations made at an application under

section 278.93 or at a hearing under

section 278.94 ; (

c) the decision of a judge or justice under subsection 278.93(4) , unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and (

d) the determination made and the reasons provided under subsection 278.94(4) , unless (

i) that determination is that evidence is admissible, or (ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted. Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on

summary conviction. APPENDIX B R. v. A.M., Ruling August 1, 2019

CHARTER OF RIGHTS CONSTITUTION ACT, 1982

PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: GUARANTEE OF RIGHTS AND FREEDOMS 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. FUNDAMENTAL FREEDOMS 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (

c) freedom of peaceful assembly; and (

d) freedom of association. 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 4.

(1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. 5. There shall be a sitting of Parliament and of each legislature at least once every twelve months. 6.

(1) Every citizen of Canada has the right to enter, remain in and leave Canada.

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (

a) to move to and take up residence in any province; and (

b) to pursue the gaining of a livelihood in any province.

(3) The rights specified in subsection (2) are subject to (

a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (

b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada. LEGAL RIGHTS

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. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 11. Any person charged with an offence has the right (

a) to be informed without unreasonable delay of the specific offence; (

b) to be tried within a reasonable time; (

c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (

e) not to be denied reasonable bail without just cause; (

f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (

g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. 14.

A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. OFFICIAL LANGUAGES OF CANADA 16.

(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

(2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick.

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French. 16.1

(1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

(2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is affirmed.

(1) Everyone has the right to use English or French in any debates and other proceedings of Parliament.

(2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick. 18.

(1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative. 19.

(1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick. 20.

(1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where (

a) there is a significant demand for communications with and services from that office in such language; or (

b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French. 21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other prov

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