2019 ONCJ 670, 2019 ONCJ 670

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

ONTARIO COURT OF JUSTICE CITATION: R. v. M.S. , 2019 ONCJ 670 DATE: September 25, 2019 BETWEEN: HER MAJESTY THE QUEEN — AND — M.S. (Young Person) Before Justice Susan Chapman Heard on August 29, 2019 Reasons released on September 25, 2019 Jason Balgopal................................................................................... counsel for the Crown Christian Angelini................................................................... counsel for the accused M.S.

Chapman, J.: Introduction [ 1 ] On December 13, 2018, a number of amendments to the Criminal Code enacted by Bill C-51, now S.C. 2018 c.29, came into force.

That statute amended, among other things, the procedure to determine the admissibility of both sexual history evidence and private records relating to a complainant that are in the possession or control of an accused in a sexual assault related case. [ 2 ] In light of these recent Criminal Code amendments, and the very few cases considering them, I agreed to provide direction as to whether or not defence counsel needs to bring an application pursuant to s.278.93 of the Criminal Code in order to cross-examine the complainant at a sexual assault trial on documents in the possession of the accused.

I have agreed to consider these issues out of fairness to the parties and to prevent any needless disruption of the trial. Defence counsel needs to know, to the extent that it is possible at this juncture, whether or not the court is of the view that the documents in question are the kind that require an application be brought pursuant to the Code regime, and/or when such an application need be brought as there is a dispute in relation to both issues as between the parties.

Procedural History of the Case [ 3 ] The young person is charged with sexual assault and his trial is set to take place on October 10 and 11, 2019. At a Judicial Pre-trial (JPT) that took place on June 19, 2019 defence counsel advised that he is in possession of text messages from the complainant to the accused which he may wish to use in cross-examination. At the pre-trial he took the position that the records in his possession were not within the procedurally protected category of records set out in s.278.92 or 276(2) of the Criminal Code and therefore no application was required.

The Crown disagreed and thought it possible, based on the description of the documents in question, that they may be the kind that meet the definition in s. 278.1 of the Code . [ 4 ] The judge presiding at the JPT advised counsel that this issue should be vetted by the trial judge to make a ruling on whether the documents in question are covered by the new amendments to the Code . If they are covered, then counsel must bring an application under s. 278.93 of the Code , with notice to the Crown and the Court. Further, the application, if required, must be brought in accordance

with the time requirements set out in the Code provisions and again there is a dispute between the parties as to when and how those notice requirements are triggered. [ 5 ] Accordingly, a date was set for the hearing of this preliminary issue and on July 16 and 18 the parties appeared before me.

Counsel were not prepared to argue the issues at that time so the matter was then adjourned to August 29, 2019 for oral argument. [ 6 ] The defence take the position that they do not need to bring an application to adduce the records in question as they are not the kinds of records defined in s. 278.1 or s. 276 of the Code .

Further, counsel takes the position that if he did need to bring such an application, the rules require that the application for admissibility be made “at least seven days previously, or any shorter interval that the judge, provincial court judge or justice may allow in the interests of justice” (s. 278.93(4)) which he interprets to mean that notice is only required after he has made the decision to ultimately adduce the documents in question, likely after the complainant has testified in chief and possibly during cross-examination. [ 7 ] On August 29, 2019 defence counsel brought with him a USB containing the documents he has in his possession that he may or may not chose to use in the cross-examination of the complainant.

Both counsel agreed that the court should look at the documents in question and make a preliminary determination as to whether or not they are the kind of documents that meet the definition of record as set out in s. 278.1 of the Code such that an application would be required [1] . Further, it was agreed that I should provide counsel with my

interpretation of the notice provisions out of fairness to the parties. [ 8 ] Counsel has not expressly sought an order for directions from this court but in many respects that is what this is. Both of the rulings that I am asked to make are mostly anticipatory. However, I agreed to entertain them on the basis that there appears to be some uncertainty concerning the scope of the new Code provisions in particular those concerning private records and, in fairness to counsel, the rules of engagement should be set down prior to the commencement of trial. The Issues to Be Decided [ 9 ] Accordingly, there are two main issues for me to decide: (

i) Do the records in question meet the definition of records as set out in s. 278.1 and/or s.276(1) to (4) of the Criminal Code such that an application must be brought pursuant to s. 278.93 should counsel wish to adduce them at trial? (ii) If so, do the notice requirements mandate service and filing of the application 7 days prior to trial or at some other point in time, such as when defence counsel makes the decision to adduce them, whether before or after the commencement of the complainant’s cross-examination?

Judicial Inspection [ 10 ] Though there are two issues squarely before me, they in turn raise a number of difficult subsidiary issues that I need to decide starting with whether a judicial inspection of the documents at this threshold stage, and prior to any application being brought to admit them, is appropriate? I asked for an argument on this preliminary issue.

Afterall, records regimes, whether at common law or by statute, tend to operate in two stages with a preliminary showing of likely relevance as a threshold prior to judicial inspection of the documents in question. [ 11 ] Defence counsel agreed that the court should look at the documents but was, perhaps understandably, reluctant to tell me anything at this threshold stage about where he got the documents from or what use he plans to make of them in the interests of his client. Afterall, we are not yet even at stage 1 of an application to admit.

As a result, and for reasons elaborated upon below, I am at a significant disadvantage in definitively determining whether or not the documents in question fit within the Code definition of “record”. I have, however, made the decision, to inspect the documents for the purposes of deciding whether or not they possibly require an application pursuant to the Code regime. The Crown also agreed that I should do so. [ 12 ] By reviewing the documents at this juncture I am possibly violating the privacy of the complainant and/or needlessly intruding on the rights of the accused to hold his cards close to his chest.

That concerns me greatly. However, I am not sure how else to proceed without occasioning potential prejudice to the parties and the undue disruption of the trial proceedings. This is, after all, essentially a case of first impression. Reviewing the documents will help the Court to determine whether ss. 276 and 278.92 are engaged. [ 13 ] In deciding to inspect the documents, I do take some comfort from the fact that the complainant is entitled to representation at stage 2 of the admissibility hearing and not at stage 1.

Stage one requires that the court be provided with detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial. Judicial inspection of the documents in question at this threshold stage of the proceedings could be seen as part and parcel of the stage one process. In saying this, I do not wish to detract from the case law that has very clearly established that even judicial inspection of private documents engages the privacy rights of the complainant, and in this case, those of the accused.

The State of the Record [ 14 ] There is an additional problem with my making a threshold determination as to whether the documents in the possession of the accused are the kind that require an application pursuant to s. 278.92 . I know nothing about the allegations or the events said to have led up to the allegations other than that they involve an assault and a sexual assault said to have taken place on September 11, 2015 and February 29, 2016 respectively.

The trial is set to take place on October 10 and 11, 2019. [ 15 ] As indicated, all I have are the documents in question provided to me on a USB with limited information concerning their origins. I have ordered that these documents remain on the USB and under seal with the court. The Crown has not seen what is on this

USB. [16] It was due to this sort of insufficient record that Justice Kane declined to decide a similar application in R. v. Lebrun, 2019ONSC 4251 . In that case, the defence brought an application in a sexual assault case asking for a preliminary ruling that thekind of electronic communications he had in his possession were not “records” within the meaning of s. 278.1 of the Code.

Justice Kanedeclined to decide the application on the basis of the inadequate record before him, including the fact that the court had no knowledge ofthe actual content of the communications in question. [17] As I proceeded along, the wisdom of Justice Kane’s decision came into sharp focus[2].

Unlike Justice Kane, I do at least havebefore me the documents in question and though I cannot make any definitive decisions about admissibility on this record – or even forthat matter a definitive determination as to whether any particular document constitutes a “record” – for the reasons set out below, I havedecided to nonetheless embark on the process and provide what guidance I can. I do so out of fairness to the parties and in the interestsof justice. The Statutory Regime and the Recent Amendments [18]

Section 278.1 to 278.91 of the Criminal Code sets out a statutory regime that governs defence access to certain records in thepossession of the Crown and third parties. The provisions are triggered by an application by the accused charged with any of the sexualoffences, enumerated in s.278.2, for disclosure or production of records as defined in s. 278.1. The provisions are now very familiar,having been considered by a number of appellate courts over the years, including the Supreme Court of Canada where they were upheldas constitutional in R. v. Mills, (SCC).

Accordingly, I will not review them here in any detail. Suffice to say that thecontent of those same records will be the subject of an admissibility hearing, pursuant to the amendments discussed below. [19] Further, those provisions of the Code, like the current amendments, were implemented for the purpose of addressing some ofthe historic inequalities faced by complainants in sexual assault cases. In the recent case of R. v.

Barton, Justice Moldaver expressed theongoing problem as follows: We live in a time where myths, stereotypes and sexual violence against women – particularly Indigenous women and sex workers – aretragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating theconsequences can be. Without a doubt, eliminating myths, stereotypes and sexual violence against women is one of the more pressingchallenges we face as a society.

While serious efforts are being made by a range of actors to address and remedy these failings bothwithin the criminal justice system and throughout Canadian society more broadly, this case attests to the face that more needs to bedone. Put simply, we can – and must – do better.[3] [20] Bill C-51, which came into force on December 13, 2018, made a number of procedural and substantive changes to the rulesgoverning the admissibility of evidence in sexual offence cases[4]. First, it (potentially) broadened the range of admissibility decisions governed by the s. 276 regime[5].

Section 276 regulates theadmission of sexual history evidence. It prohibits the defence from adducing evidence of the complainant’s other sexual activity withouta formal application. Bill C-51 has been seen by some to expand the definition of sexual activity to include “any communication madefor a sexual purpose or whose content is of a sexual nature.”: s. 276(4). The former sections 276.1 to 276.5 have been repealed andreplaced with sections 278.93 through 278.97; Second, it created a defence obligation to apply to adduce certain records.

A defendant must now bring a formal two stage pretrialapplication (previously only required for the admission of sexual activity evidence) to adduce records in his possession in respect ofwhich the complainant has a reasonable expectation of privacy; Third, it granted the complainants in sexual offence cases the right to participate in hearings to determine the admissibility of sexualactivity (under s. 276) and private records (under s. 278.92). If an application proceeds to a second stage hearing, the complainant mustbe notified of her right to retain counsel and to make submissions. [21] Again,

section 278.92(1) is different than ss. 278.1 to 278.91 of the Code in that it deals with the admissibility of certain recordsrelating to a complainant that are in the possession of the accused, as opposed to their production or disclosure. The

section provides, inpart, as follows: 278.92(1) Except in accordance with this section, no record relating to a complainant that is in the possession or control of theaccused – and which the accused intends to adduce – shall be admitted in evidence in any proceedings in respect of any of the followingoffences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:[(

a) and (b)enumerate the offences] 278.92(2) The evidence is inadmissible unless the judge, provincial court judge, or justice determines, in accordance with theprocedures set out in sections 278.93 and 278.94, (

a) If the admissibility of the evidence is subject to s. 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 substantiallyoutweighed by the danger of prejudice to the proper administration of justice. 278.92(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice, shalltake 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 complainant’s 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 or 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 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. [ 22 ] An order under s.278.92 is required before defence counsel may put the contents of a record in the possession of the accused in which the complainant has a reasonable expectation of privacy to a witness in the trial of a sexual offence. This is so whether the record is ultimately made an exhibit in the proceedings or not: R. v. Boyle , 2019 ONCJ 226 [6] [ 23 ]

Section 278.93 sets out the first step for making an application to admit evidence of the sexual activity of the complainant (other than the sexual activity which forms the subject matter of the charge) or to admit private records relating to a complainant that are in the possession or control of the accused. The

section requires a written application setting out the particulars of the evidence sought to be adduced by the accused and the relevance of that evidence. [ 24 ] The application to admit the evidence proceeds as a two step process. Under this section, the judge determines whether the formal requirements have been met such as the written application and notice (seven days unless otherwise ordered) and whether the evidence is capable of being admissible.

If these requirements are met, then the accused is entitled to an evidentiary hearing, conducted in accordance with s. 278.94, to determine whether the evidence should be admitted. The test for the admissibility of evidence of the sexual conduct of the complainant is set out in s. 276(2) , while the test for the admissibility of records relating to the complainant that are in the possession or control of the accused is set out in s. 278.92(2). [ 25 ]

Section 278.94 sets out the final step in the procedure for making an application to admit evidence of the sexual activity of the complainant (other than the sexual activity that forms the subject matter of the charge) or to admit records relating to a complainant that are in the possession or control of the accused. If the prerequisites set out in s. 278.93 have been met, then the accused becomes entitled to an evidentiary hearing, conducted in accordance with this section, to attempt to show that the evidence sought to be adduced meets the test for the admissibility as set out in ss. 276(2) or 278.92(2). [ 26 ] The hearing under this

section is held in camera . The complainant is not a compellable witness at the hearing. Rather the complainant must be informed by the judge of his or her right to be represented by counsel at the hearing. The trial judge is to provide written reasons for the decision and certain publication restrictions are set out in s. 278.95.

Section 278.1 of the Criminal Code and the Definition of “Record” [ 27 ] Prior to the enactment of Bill C-51,

section 278.1 of the Code defined “record” as follows: 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, without limiting the generality of the foregoing, medical,psychiatric, therapeutic, counselling, education, employment,child welfare, adoption and social services records, personaljournals and diaries, and records containing personalinformation the production of which is protected by any otherAct of Parliament or a provincial legislature, but does notinclude records made by persons responsible for theinvestigation or prosecution of the offence. (emphasis added) [28] The term “record” is defined in

section 278.1, for the purposes of both proceedings under s. 278.2 (the Mills regime forproduction of third party records in sexual assault cases) and s. 278.92 (the new admissibility regime for complainant records). Accordingly, we already have a substantial body of appellate case law looking at the definition of what constitutes a record under thisvery section. [29] In R. v. Mills, (SCC), [1999] 3 S.C.R. 668, the Supreme Court found that the definition of record in the sectionwas not overly broad.

The Court discussed the tensions among the principles of full answer and defence, liberty, privacy and equalityand found that no single principle is absolute and capable of trumping the others. It is important to interpret rights in a contextualmanner looking at the particular circumstances [7]. The Court’s concerns about privacy – the right to be free from intrusion orinterference being at the heart of liberty in a modern state – continues to be relevant to the

interpretation of s. 278.1 The Court in Millsnoted that privacy concerns are at their strongest in the context of information about one’s lifestyle and intimate relationships [8]. TheCourt quoted from its earlier decision in R. v. Plant, (SCC), [1993] 3 S.C.R. 281 at p. 294: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect abiographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individuals. [30] In relation to Charter equality rights, the court in Mills states at para. 90: Equality concerns must also inform the contextualcircumstances in which the rights of full answer and defenceand privacy will come into play. In this respect, an appreciationof myths and stereotypes in the context of sexual violence isessential to delineate properly the boundaries of full answer anddefence.

As we have already discussed, the right to make fullanswer and defence does not include the right to informationthat would only distort the truth-seeking goal of the trialprocess. The accused is not permitted to “whack thecomplainant” through the issue of stereotypes regarding victimsof sexual assault. [31] The Court in Mills concludes that the scope of the right to make full answer and defence must be determined in light of privacyand equality rights of complainants and witnesses. In R. v.

Quesnelle, 2014 SCC 46 , [2014] 2 S.C.R. 390, the Supreme Courtsubsequently explained that the inquiry to determine whether a document is a “record” involves two stages:

I) Does the document contain personal information forwhich there is a reasonable expectation of privacy”; II) Does it fall into the exemption for investigatory and

prosecutorial documents. [ 32 ] A trial judge will usually determine whether a record contains personal information for which there is a reasonable expectation of privacy based on the type of document at issue, with reference to the list provided in the definition [9] . However, the definition is not exhaustive, and documents not of the type listed in s. 278.1 will still be protected if they contain certain personal information that gives rise to a reasonable expectation of privacy [10] .

Whether there is a reasonable expectation of privacy is informed by the jurisprudence applying s. 8 of the Charter , and is assessed in light of the totality of the circumstances [11] .

In that case the Court found that police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness other than the offence being prosecuted count as “records” and are ordinarily subject to the Mills regime. [ 33 ] With the enactment of Bill C-51 the statutory definition of “record” was modified to the extent that the basket clause – “without limiting the generality of the foregoing” – was removed. Was this modification made in a deliberate attempt to narrow the definition of “private record” to better suit the new regime to which it would now apply?

Are only the enumerated kinds of records included and no others? Or was the modification merely an effort by Parliament to clean up redundant language? [ 34 ] It would seem that the phrase is rendered redundant by the use of the word “includes” in s. 278.1 , which itself indicates that the list of examples of records provided is not exhaustive and does not limit the general proposition that a “record” is one that “contains personal information for which there is a reasonable expectation of privacy”. The meaning of s. 278.1 is the same with or without the phrase “without limiting the generality of the foregoing”.

In accordance with modern drafting conventions, legislative drafters can take the opportunity to remove redundant language when amending provisions for other reasons (in this case to add a reference to the new

section 278.92 ). [ 35 ] Further, the lack of amendments to the French version of

section 278.1 indicates that no substantive change was intended with the removal of the phrase “without limiting the generality of the foregoing”. The French

section 278.1 did not include equivalent language to the phrase, using only “notamment” which means “including”. Federal legislation is drafted and enacted in both French and English, such that both are equally authoritative and must receive the same

interpretation. The French and English versions of s. 278.1 had the same meaning before the Bill C-51 Amendments. Following the amendments brought by Bill C-51, both versions of the

section continue to mean the same thing: they provide a list of examples of what are “records” for the purpose of s. 278.1, without that list being exhaustive. [ 36 ] I would also observe that if it was really the intention of Parliament to remove the basket clause in an effort to restrict the definition of record to those enumerated in the section, this would lead to arbitrary results. Part of the definition of record in s. 278.1 includes “records containing personal information the production of disclosure of which is protected by any other Act of Parliament or a provincial legislature”.

Clearly the inclusion of these words in the definition was intended to incorporate provincial privacy laws that could not otherwise govern Criminal Code proceedings. Each province has its own privacy statutes, such as the Mental Health Act of Ontario , or the Personal Information Protection Act of British Columbia, etc. Not all provinces have the same privacy protections. If s. 278.1 is to be interpreted in a manner that restricts it to enumerated records only that would mean that a complainant in British Columbia might receive different protection than a complainant in Ontario.

Further, the notion of a reasonable expectation of privacy has not been rendered superfluous to the definition of record. [ 37 ] There are very few decisions considering the new amendments. In R. v. R.M.R . [12] a decision of the Supreme Court of British Columbia, the court found that the definition of records in s. 278.1 is not limited to the enumerated records listed in the section; rather, the definition is inclusive and whether a document is a record is to be decided in the context of the privacy interest in a specific case. I agree with this.

A trial judge is entitled to assume that a reasonable expectation of privacy attaches to any of the records falling within the enumerated categories but that list is not exhaustive and the provisions apply with equal force to other records that a reasonable expectation of privacy attaches to. [ 38 ] In making the

section applicable to private records in the possession or control of the accused, what if any impact does this have on the proper

interpretation and scope of s. 278.1? It must be recalled that a reasonable expectation of privacy is not an all or nothing concept and its analysis is contextual. Expectations of privacy must be assessed in light of the “totality of the circumstances”. [ 39 ] It would seem that one of Parliament’s intentions in amending the records regime in the Code was aimed at implementing the 2012 recommendation of the Senate Standing Committee that government “[address] evidentiary issues the Supreme Court of Canada identified in the case of R. v. Shearing ” [13] .

One read of the Shearing decision from the Supreme Court would suggest that a court should not ordinarily consider how the accused came into possession of certain information in making a ruling on its admissibility. [ 40 ] In the Shearing case, the private diary of a complainant, left behind when she essentially escaped the cult she was raised in, was found by the accused and used by him at trial to cross-examine her on the fact that she apparently did not document the alleged sexual abuse in her diary.

The court found that the manner in which the accused came into possession of the diary was not relevant in assessing what use could be made of it at trial. That Parliament was troubled by this scenario is captured by some of the discussion in Hansard. The Senate Standing Committee made several recommendations based on that fact pattern and similar hypothetical scenarios involving a complainant’s therapeutic records. It noted: The Committee could imagine similar problems [to Shearing] arising where a person alleges that he or she was the victim of a sexual assault by that person’s psychologist.

Since the psychologist would have access to the records of a

complainant’s counselling sessions, defence counsel could usethose records as a basis for cross-examination in a sexual assaulttrial. [41] The 2012 Senate Committee and the government that enacted Bill C-51 both thought these sorts of situations should have beengoverned by a pre-trial admissibility screening mechanism. The amendments are designed to achieve that purpose. But was thatParliament’s only purpose in passing these amendments?

It would seem not. [42] Clearly, Parliament was concerned about the admissibility of private records of complainants in sexual offence proceedingsbeyond those that were improperly or illegally obtained or used by an accused. The material covered in the new provisions is verysimilar to what is already covered in the provisions relating to third party records, and the only difference being who possess them. [43] Equally clear is the notion that the mere fact that the accused has possession of the document in question does not in and ofitself extinguish the complainant’s privacy interest in the document.

This was found to be the case prior to the amendments. Forexample, if an accused was present for some of the complainant’s counselling sessions and thereby privy to some of her disclosures tothe counsellor and the counsellor’s advice, that fact alone does not undermine her reasonable expectation of privacy in the counsellorsnotes of the sessions: R. v. Clifford (2001), (ON CA), 163 C.C.C. (3d) 3 (Ont.C.A.). [44] So then, what constitutes a private record in the possession or control of the accused?

Section 278.1 of the Code refers torecords in which the witness has a “reasonable expectation of privacy”. This same expression is most notably found in s. 8 of theCanadian Charter of Rights and Freedoms. Accordingly, the rich body of jurisprudence considering the ambit of s. 8 is useful inproviding meaning to this Code section. [45] However, there are some potential distinctions in the analysis that necessarily applies. Notably, s.8 is generally concerned withstate action as against an individual. State action may include a court order compelling production of a private document from a thirdparty.

Cases such as R. v. Marakah[14] and R. v. Craig[15] concern an accused’s privacy interest in text messages between himself andothers, asserted against the state, so as to deny their use for prosecutorial purposes. [46] Further, the starting point in any s. 8 analysis involves a consideration of the target’s subjective expectation of privacy. Again,that concept is not easily lifted from the s.8 context and incorporated into a provision of the Code that renders the complainant a non-compellable witness on the application. [47] In R. v.

Jarvis[16] some of these very same distinctions were at play in defining the concept of a reasonable expectation ofprivacy as it relates to the

interpretation of the voyeurism sections of the Code[17]. The voyeurism sections are concerned with theviolation of an individual’s privacy interests by a non-state actor – for example, the “peeping Tom”. Further, the spying that took placein Jarvis took place in public spaces, including the hallways of a school that were constantly monitored by video. In that context theSupreme Court of Canada found that the complainants did have a reasonable expectation of privacy that they would not be surreptitiouslyrecorded for a sexual purpose.

In so finding, the Court acknowledged that the s. 8 jurisprudence recognizes that the inquiry into whetheran individual has a reasonable expectation of privacy vis-à-vis the state with respect to a certain subject matter may be informed, in part,by considering the individual’s privacy expectations vis-à-vis other individuals[18]. [48] In Jarvis the Court emphasizes that cases about privacy expectations in the s. 8 context are informed by our fundamental sharedideals about privacy as well as our everyday experiences.

Though the privacy issues at play in s. 162.1 of the Code are quite differentthan those contemplated by s. 278.1 of the Code, the list of considerations that the court enumerates as relevant to the former havesignificant value in interpreting the meaning of the latter. Most importantly, for present purposes, the court observes that there isnothing incongruous about considering the purpose of the observation or recording in determining whether it was done in breach of areasonable expectation of privacy.

I would add that what use information is tendered for may very well also inform whether or not anexpectation of privacy attaches to it. For example, if tendered for a sexual purpose, the contents of a text message will not only constitutesexual activity evidence, it may also then amount to a private “record”. [49] A “reasonable expectation of privacy” is a protean concept that takes on meaning from the context in which it is used. Part ofthe important context of the concept of privacy, when interpreting the provisions in question, concerns its overlap with the

section 15Charter equality rights of complainants in sexual offence cases. Women and children are overwhelmingly the victims of sexualoffences. Women who experience multiple inequalities, such as women with mental and physical disabilities, Aboriginal women, poorwomen, street-involved women and childhood sexual assault survivors, are significantly more vulnerable to sexual assault, often bymultiple perpetrators. These are the most documented and vulnerable women.

That being said, in light of the fact that most perpetratorsof these offences are known to the complainant, and with the advent of social media and texting, it will be common place that accusedpersons will possess private communications with or about the complainant. [50] The following factors gleaned from the jurisprudence concerning privacy principles more generally, though by no meansexhaustive, are relevant to a consideration of whether or not a particular record in the possession of the accused is a private record withinthe meaning of s. 278.1:

(1) Is it a record akin to those enumerated in the section?

(2) Is the information in the record akin to that which one might reasonably expect to find in the records that are enumerated in thesection?

(3) How was the information obtained? Was it voluntarily surrendered or surreptitiously recorded in the form of a permanentrecord?

(4) For what purpose was the information provided to the accused?

(5) Was the communication public or semi-public or between two private individuals?

(6) Was there an express desire that the communication remain private or can such a desire be reasonably inferred from all of the circumstances?

(7) How many other people were privy to the communication?

(8) If it is not sexual history is it something akin to sexual history?

(9) If it is not akin to sexual history, is it the kind of information that has historically, and improperly, been used to discredit sexual assault complainants? Such as their street-involved status or (non-sexual) mistreatment by others?

(10) Is it information that might be considered biographical core information as that concept is explained in Plant , Mills and all subsequent case law?

(11) In relation to photos/videos where were they taken? By whom were they taken? For what purpose were they taken and how did the accused end up with them?

(12) For social media postings, what is the nature of the social media application in question? Is it designed for public sharing of information or immediate destruction of the communication once sent?

(13) Is the social media posting of a child or an adult?

(14) What is the nature of the relationship between the parties that are communicating? For example, is it a relationship of trust or authority?

(15) Whose account was the information taken from and what are the privacy settings?

(16) Did the accused gain access to the account through fraud or deceit? [ 51 ] I will now I consider the communications at issue in this case and provide the guidance that I can on this limited record. This Case Introduction [ 52 ] In defining what constitutes a record, I have before me a number of different categories of documents all of which have different features and attract different considerations as to whether or not a reasonable expectation of privacy attaches to them. Some of the documents in question are clearly sexual in nature and some are not.

Others, it is difficult to determine which category they potentially fit into. For example, there are some photographs of the complainant. It has not been made entirely clear to me where these photographs come from or what use they will be put to. And use does matter in determining the nature of the record. [ 53 ] Are these photos the complainant sent to the accused on his phone? Or is it something she (or someone else) posted to Instagram? If it is posted to Instagram does it matter if she has one follower on Instagram or hundreds?

Further, if the purpose of adducing the picture is to suggest that she sent it to him for a sexual purpose, does that create a reasonable expectation of privacy or demand that the document be vetted through s. 278.92 for that reason? [ 54 ] Further, the accused is a young person and it may well be that the complainant was also a child at the time of the communications in question.

Does that fact impact upon the privacy implications of accessing her social media and other communications? [19] These comments are designed to show the difficulty of finally determining whether something constitutes a “record” or sexual history in the absence of a formal application. The Kinds of Records at Issue [ 55 ] As indicated above, I have seen the documents in question. They fit into the following broad categories: I. Photos/videos (

i) Some are apparently taken in a public place and do not appear to be particularly private or sensitive; (ii) Some are of a more intimate nature II. Social media posts and messages Including, Instagram, Facebook, Whatsapp and Snapchat

III. SMS text messages. The Positions of the Parties [ 56 ] Defence counsel takes the position that no pre-trial application is required in order for him to make use of any of the documents in his client’s possession in the cross-examination of the complainant. He submits that records of communications between the accused and the complainant – whether digital or not – are not the kind of records that attract a reasonable expectation of privacy.

The regime is not engaged because the complainant has no reasonable expectation of privacy that the accused would keep, for example, their text messages private. [ 57 ] On the other hand, the Crown argues that records containing digital communications with sexual content are clearly covered by s.276 and that records containing other sensitive content may well be covered by s. 278.92. Analysis [ 58 ] I have decided not to set out in detail the contents of the records at issue but rather deal with some of the features of the documents in question that tend to put them into one category or another.

Again, I wish to emphasize, that I am not deciding the ultimate admissibility of the documents in question. Nor am I even in a position to ultimately determine whether any particular document amounts to a record within the meaning of s. 278.1 of the Code , in the absence of a proper evidentiary foundation. I am instead providing guidance as to whether or not certain documents potentially constitute “records” or “other sexual activity” evidence such that an application is necessary for them to be adduced at trial. Photos/Videos [ 59 ] First, there are a number of photos and videos at issue.

Some of the photos and videos appear to have been taken in public. Many of them appear on social media sites. However, I do not know how it is that they ended up on those sites, who put them there and for what purpose and most importantly I don’t know what the privacy settings are on those social media sites, assuming that the accounts are either those of the complainant or the accused. These concerns obviously apply with equal force to the other kinds of content found on the social media sites as discussed below.

Assuming that there were at least some privacy settings on the account, it would seem to me that there may be some residual privacy in them. [ 60 ] Some of the photos are potentially sexual in nature. Others, though perhaps not quite sexual, are intimate in nature and are likely private records. Such a record needs to be vetted for relevance. I conclude with some confidence that the intimate photos/videos are presumptively records that require vetting. In Appendix A I provide some more specific direction to defence counsel.

However, given that no application has yet been brought seeking the admission of any records or sexual history I will seal it with the court for now. Social media posts and messages [ 61 ] There are both images and communications among the documents some of which appear to come from various social medial accounts including Instagram, Facebook, Whatsapp and Snapchat. Again, I do not know if they are taken from the complainant’s account or that of the accused and what if any privacy settings attach to the accounts. I accept what Justice Bawden concluded in R. v. Patterson , [2018] O.J.

No. 3781 , that a posting on Facebook can amount to an invitation for the world to see. However, it is not always. Again, I need to know more about the different social media applications at play the privacy settings employed. For example, unlike Facebook, it is my understanding that the whole point of Snapchat is that the communication disappears immediately into the ether. Clearly that did not happen in this case, as there are screenshot images that appear to be from Snapchat, but the temporary nature of the communications associated with this app could certainly inform the privacy analysis.

I would also observe that in some of these communications it is not entirely clear to me who is posting them and who is responding to them, for example, whether these communications are between the complainant and people other than the accused. [ 62 ] Accordingly, I am not prepared to decide definitely whether any of the social media communications are “records” in this case, at this juncture. SMS text messages. [ 63 ] Did Parliament mean to include some, none or all digital communications between the accused and the complainant in its definition of “record”?

Does the complainant have an ongoing reasonable expectation of privacy in records of the communications she exchanged with the accused, which are available to the accused through his own computer, phone, internet or telecommunications account? Does it matter if such an expectation is expressed or can be inferred from the content of the communications? [ 64 ] The defence take the position that any digital communications between the accused and the complainant are by definition not private. Afterall, there was no express suggestion that they be kept private.

At first blush, this appears to be at odds with the Supreme Court’s ruling in Marakah [20] . As well, it appears to ignore the fact that section 276(4) of the Code defines other sexual activity evidence as including “any communication made for a sexual purpose or whose content is of a sexual nature.” The content of some of these communications is clearly flirtatious and in some cases outright sexual. [ 65 ] In R. v. R.M.R ., [2019] B.C.J. No. 1442 , the court, in considering whether or not Parliament intended that text messages

between the accused and the complainant are included in the definition of record, points to the fact that this very issue was debated. Parliament received submissions proposing an amendment to the Bill to clarify that records of correspondence between a complainant and an accused, in which there is a joint privacy interest, did not fall into the regime.

Justice MacNaughton excerpts an exchange between Senator McIntyre and Senator Sinclair found in the Debates of Senate, 42nd Parl, 1st Sess, Volume 150, Issue No. 233 (3 October 2018) in support of the proposition that such correspondence was indeed contemplated by Parliament’s decision to amend the provisions and that the case of R. v. Ghomeshi was in contemplation. [ 66 ] In R. v. Marakah the Supreme Court of Canada found that whether a reasonable expectation of privacy exists in a digital conversation must be assessed on all of the evidence. In that case the majority of the Court found that Mr.

Marakah had a reasonable expectation of privacy in the text messages recovered from Mr. Winchester’s smartphone since Mr. Marakah subjectively expected them to remain private and that expectation was objectively reasonable. Therefore, Mr. Marakah had standing to challenge the search of Mr. Winchester’s phone. The Court identified a number of factors to be considered in determining whether the claim to privacy was objectively reasonable, including the private nature of the information and control over the sent messages. Loss of control was not determinative of the issue [21] . [ 67 ] Further, in R. v.

Reeves , 2018 SCC 56 , the Supreme Court recognizes that both parties to a text message chain can have a reasonable expectation of privacy in that electronic conversation, just as two cohabitants can have a shared and overlapping expectation of privacy with respect to a common area of a home. [ 68 ] Therefore, an electronic communication between a complainant and an accused – in the form of text messaging – may very well attract a reasonable expectation of privacy and therefore be subject to an admissibility hearing.

A person’s reasonable expectation of privacy can vary in the circumstances and while a complainant may not have a reasonable expectation of privacy in respect of an accused being in possession of a text or email message between them, she could retain a reasonable expectation of privacy as it relates to the use of the message in a criminal trial.

The assessment is always case-specific and would depend on the nature of the communication, its relevance to the offence in question, and its remoteness in time. [ 69 ] For example, communications with the accused about the complainant’s abusive relationship with her father or her mental health history or her attendance at an AA meeting, that have nothing to do with the offence, would likely attract a reasonable expectation of privacy.

Again, this is not to say that even these kinds of documents will not be admitted at trial but only that they require vetting. [ 70 ] A nuanced approach to privacy is required in this context. For example, if not expressed, a desire for confidentiality may sometimes be inferred from the content of the communications or the circumstances under which they were exchanged. In some of the messages in this case there is clear communications concerning other sexual activity.

Whether or not these amount to private records, as set out in the definition of s. 278.1 of the Code , they certainly meet the definition of “other sexual activity” as set out in s. 276(4) of the Code and for that reason need to be vetted pursuant to an application brought under s. 278.93 of the Code . This would seem to be self- evident. [ 71 ] Further, I wish to make clear that whether the cross-examination based on these records is followed up with impeachment using the communications or not, is still “adducing” sexual activity. Again, as set out above, in R. v.

Boyle ibid, it was argued that an application under s. 278.92 is only required if defence counsel seeks to have admitted into evidence the record itself, i.e. the physical or digital record, but that no such order is required to ask the complainant about the contents of the record. The accused maintained that if the complainant did not agree with the proposition suggested (the information contained in the record) then an order would be required before the record itself could be admitted into evidence. The court reviewed the Parliamentary debates as well as the principles of statutory

interpretation and concluded that the position suggested was not consistent with the scheme of the Act and the intention of Parliament and would invite absurd results [22] . Conclusion [ 72 ] In conclusion, all text messages, social media postings, photos or videos that involve any sort of discussion of sexual activity and/or sexual innuendo, require an application be brought prior to their admission into evidence.

Further, subject to additional information or context, I find that the complainant has an ongoing reasonable expectation of privacy in relation to the text messaging record between herself and the accused. Those communications contain personal information such as the parties’ thoughts, aspirations, feelings, friendships, social interactions and the details of their daily activities. It may be inferred from their content that they were not intended to be shared with the public.

Even non-sexual digital communications between the complainant and the accused that potentially involve biographical core information or sensitive information or are of an intimate nature are also potentially records that require vetting. Unfortunately, on this record, I cannot provide more specific guidance. The Notice Requirements [ 73 ]

Section 278.93 of the Criminal Code states as follows:

(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).

(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.

(3) The judge, provincial court judge or justice shall consider the application with the jury and the public excluded.

(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 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) [23] , 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). (emphasis added) [ 74 ] The Honourable Senator Murray Sinclair was the sponsor in the Senate of Bill C-51.

When he moved third reading of the bill on October 3, 2018, he said the following: Bill C-51’s changes safeguard the privacy interests of victims while upholding an accused’s right to a fair trial, and they reinforce the long-standing rule that it is never permissible to introduce evidence of prior sexual activity in a criminal trial for the sole purpose of showing that a victim is more likely to have consented to the sexual activity at issue or is less worthy of belief. [ 75 ] In response to another Senator’s question concerning the effect of the Bill’s provisions regarding the application and admissibility process relating to complainant’s records, and the potential requirement for the defendant to disclose elements of its case and the relevance of the evidence to the complainant, who would have an opportunity to participate at stage 2 of the hearing, Senator Sinclair said: This measure requires that an accused person, who is in possession of records that they wish to use to cross-examine the complainant at trial, must give notice that they intend to use those records and what those records are, and then a judge must rule on their ability to use those records to cross-examine the complainant.

The complainant has the right to appear, with or without counsel, to argue about the potential usage of the records. What that is, in effect, is a requirement for an accused to disclose the documents they have in hand. They also argue that it impinges upon the accused’s right to silence, but it does not do that because an accused does not have to testify either during the proceeding regarding the documents nor does an accused have to testify at all during the trial. It is his lawyer who can use those documents in the trial judge determines they can be used for cross-examination purposes.

So the accused’s right to silence is not impinged by that requirement. [ 76 ] Recently, the Supreme court of Canada released a trilogy of cases concerning the admissibility of sexual history evidence. In R. v. Goldfinch , at para 2, the Court states as follows: In 1992, Parliament enacted s. 276 of the Criminal Code, R.S.C. 1985, c. C-46 , to protect trials from these harms. Nearly 30 years later, the investigation and prosecution of sexual assault continues to be plagued by myths. One such myth is that sexual assault is a crime committed by persons who are strangers to their targets.

In fact, in 2016-2017, Statistics Canada found that over 80 percent of reported sexual assaults occurred between people who knew one another in some way.[1] In other words, most complainants will have some kind of relationship with the accused.

This case requires the Court to review the balance between, on the one hand, admitting evidence of a sexual relationship that may be fundamental to making full answer and defence, and on the other, protecting complainants and the integrity of the trial process from prejudicial reasoning. [ 77 ] As already indicated, with the passage of Bill C-51 the former rape shield was repealed and replaced. In doing so, Parliament made no changes whatsoever to the notice provisions. Accordingly, the notice requirements at play in the amendments are the very same ones that were considered and upheld as constitutional in R. v.

Darrach. [ 78 ] While it is to some extent true, that by having to bring an application prior to trial the defence are to some extent tipping their hand, the reality is that this is already the case under the former s. 276 of the Code and, again, the

section was challenged and ultimately upheld as constitutionally sound in Darrach . In fact in Darrach the court was concerned not merely with the defence particularizing the sexual history evidence they hoped to adduce but the tactical necessity of the accused swearing an affidavit and being cross-examined on it as part of the application, which strikes me as the most demanding form of a s. 276 application. [ 79 ] In R. v. R.S.(A.), Breen, J., ruling September 17, 2019 (OCJ), entertained a constitutional challenge to ss.278.92 to 278.94 of the Code .

In advancing and responding to the application, both the Crown and the Defence acted on the assumption that an admissibility voir dire under s.278.94 is to be conducted as a pre-trial application. Afterall, that is how it has always been done since the first efforts of Parliament to regulate the admission of sexual history evidence.

However, my colleague concludes that if this assumption is correct the provisions would offend the principle against self-incrimination and the right to a fair trial. [ 80 ] Justice Breen concludes that a statutory provision that compels disclosure of “impeachment material” to a complainant in advance of cross-examination compromises trial fairness under s. 7 of the Charter . This is so even if that impeachment material involves sexual history evidence or prior intimate records.

He therefore decides that it is necessary to interpret the notice requirements so as to permit the bringing of a s. 278.93 application essentially at a time of the defence choosing, including even during the cross-examination of the complainant at trial. [ 81 ] Indeed, he contemplates s. 278.94 applications being routinely brought mid-trial/during cross-examination of the complainant. Given the reality that most sexual assault takes place in intimate relationship, and the expanded definition of record, this will mean in

most cases sexual assault trials will be bifurcated. In my view, such an

interpretation would defeat the spirit and intent of the legislationand lead to significant trial management mischief. [82] First it must be remembered that these Code sections govern all applications to adduce any and all “other sexual activity”evidence at a sexual trial as well as private records. The rape shield is not new. Under the former s. 276 an accused needed to make anapplication and such applications are routinely brought in sexual assault cases. In my experience, they are almost always brought priorto the trial. This has worked well.

Further, the Crowns have routinely consulted with the complainants about the subject matter of theapplication – again, in advance of trial. [83] The constitutional validity of the procedural safeguards found in the former s. 276 was decided by the Supreme Court of Canadain R. v. Darrach.

In that case, the highest Court concluded that the requirement that the accused bring an application, setting out detailedparticulars of the evidence they intend to adduce at trial and its relevance to the issues of trial, including in some cases the filing of anaffidavit from the accused upon which he can be cross-examined, did not violate ss. 7 or 13 of the Charter. [84] In Darrach the Court concluded that the participation of the accused required by then s.276.2 does not offend the principleagainst self-incrimination: [49] The accused is not forced to testify by s. 276.

Nor is he coerced by the state in any way that engages Charter protection. Coercionto testify violates the principle against self-incrimination, but as Lamer C.J. defined it, “[c]oercion … means the denial of free andinformed consent” (R. v. Jones, [1994] 2 S.C.R., at p. 249, cited in White, supra, at para. 42). In White, supra, at para. 76, Iacobucci J.found that “[i]f a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required bylaw to do so, then it cannot be said that the statute is the cause of the declarant’s statements”.

In applications under s.276, there is freeand informed consent when the accused participates in order to exculpate himself. He knows that he is required to do so. [50] There is an important difference between a burden of proof with regard to an offence or an evidentiary burden, and the tactical needto respond when the Crown establishes a prima face case, in order to raise a reasonable doubt about it. “[T]he criminal law does notallocate an evidential burden to the accused to refute the Crown’s case and he or she may decline to adduce any evidence.

Nevertheless,if the accused decides not to call any evidence, he or she runs the risk of being convicted” (Sopinka, Lederman, and Bryant, supra, atpara. 3, 17). Where there is neither a legal obligation nor an evidentiary burden on the accused, the mere tactical pressure on the accusedto participate in the trial does not offend the principle against self-incrimination (s.11(

c) or the right to a fair trial (s.11(d)). … [55]

Section 276 does not require the accused to make premature or inappropriate disclosure to the Crown. For the reasons given above,the accused is not forced to embark upon the process under s. 276 at all. As the trial judge found in the case at bar, if the defence isgoing to raise the complainant’s prior sexual activity, it cannot be done in such a way as to surprise the complainant. The right to makefull answer and defence does not include the right to ambush. The Crown as well as the court must get the detailed affidavit one weekbefore the voir dire, according to s. 276.1(4)(

b) in part to allow the Crown to consult with the complainant. The Crown can oppose theadmission of evidence of sexual activity evidence if it does not meet the criteria in s. 276. Neither the accused’s s. 11(

c) right not to becompelled to testify against himself no his s. 11(

d) right to be presumed innocent are violated by the affidavit requirement. (emphasisadded) [85] In R. v. R.S.(A.) the court seeks to distinguish the decision in Darrach on the basis that on the facts of that particular case theCourt was concerned with an application brought to admit sexual history in a case of apprehended consent. But upon my reading, thedecision is not limited to that context. The Court was considering a constitutional challenge to the provisions and ultimately found theprovisions sound.

In doing so, they would necessarily consider reasonable hypotheticals and not confine their decision to the facts of thecase before them. Any reference to the mistake defence in that case is a recognition by the Supreme Court that, given its jurisprudenceattempting to restrict the routine use of sexual activity evidence, such evidence will most often be tendered in apprehended consentcases.

The reference to this context in no way confines the significance of the ruling on the constitutional questions that were before theCourt. [86] In any event, it has long been understood, before and certainly since Darrach , that s. 276 applications are to be brought prior totrial regardless of the nature of the use the defence intend to make of the sexual activity evidence, which is most often for impeachmentpurposes. For example, in R. v.

Powell, (ONCA), the accused was convicted of sexual assault and one of hisgrounds of appeal related to the ruling of a trial judge shutting out the cross-examination of the complainant at trial on evidence of othersexual activity due to his failure to bring the application in accordance with the notice requirements, and in particular prior to trial.

TheCourt found that the trial judge did not err in dismissing the application and states as follows: The appellant applied to cross-examine the complainant with a view to establishing that he and the complainant had slept together in thesame bed on the night of June 3rd and that they had kissed the next morning when he left the premises. The trial judge held that theproposed questioning raised an inference of sexual activity and thus required an application under s. 276 of the Criminal Code. Weagree. The trial judge refused to permit the proposed questioning.

Inso concluding, he considered the timing of the request, theappellant’s failure to comply with the notice requirements of s.276 and his further failure to provide detailed particulars of theevidence he was seeking to adduce. He also took into account

the limited probative value of the impugned evidence, bearing in mind the appellant’s contention that it was solely designed to show that he and the complainant had slept together in the same bed without engaging in any sexual activity. In that regard, as the trial judge noted, the jury was already aware from the complainant’s evidence that although she had broken off the relationship with the appellant two weeks prior to June 5 she was nonetheless allowing him to stay at her residence until he got back on his feet.

The jury also knew that the appellant had slept over at the complainant’s residence on the night of June 3rd and that he and the complainant had parted on friendly terms the next morning. Accordingly the trial judge was on solid ground in holding that the evidence had little probative value. As for the prejudicial effect of the proposed evidence, there was a real concern that it would leave the jury, by design or implication, with the erroneous impression that the appellant and the complainant had engaged in sexual activity on the night of June 3rd.

In that sense, its prejudicial effect clearly outweighed its probative value.

In the circumstances, we are not persuaded that the trial judge erred in refusing to permit the proposed questions . [emphasis added] [ 87 ] While it is clear that, like the trial judge, the Court in Powell was not overly impressed with the value of the proposed cross- examination on sexual history in that case, it is equally clear that the Court recognized the trial judge to be entirely correct in dismissing the application at least in part due to the failure of the defence to respect the notice requirements under s. 276 and in particular that the application be brought prior to trial. [ 88 ] Similarly in R v.

P.S., 2007 ONCA 299 , the Court considered the procedural requirements that govern a s. 276 application and it can be readily inferred from the discussion of the issue that the Court of Appeal contemplated that such applications would be brought in advance of trial: The appellant sought to introduce evidence of his sexual activity with the complainant between January 18 and April 9 to show that they continued to have sexual relations during that time. The trial judge dismissed his application on the basis that the appellant had not met the requirements set out in the Criminal Code, R.S.C. 1985, c. C-46 .

The appellant challenges this ruling as his first ground of appeal. … [13] The procedure to be followed by an accused in seeking admissibility of such evidence is set out in ss. 276.1 and 276.2 of the Code.

Section 276.1(2) requires that the accused make an application in writing, setting out detailed particulars of the proposed evidence and its relevance to an issue at trial.

Section 276.1(4) then says this:

(4) Where the judge, provincial court judge or justice is

satisfied (

a) that the application was made in accordance with subsection (2), (

b) that a copy of the application was given to the prosecutor and to the clerk of the court at least seven days previously, or such shorter interval as the judge, provincial court judge or justice may allow where the interests of justice so require, and (

c) 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 276.2 to determine whether the evidence is admissible under subsection 276(2). [14] In this case, defence counsel made no written application and only alerted the Crown to his intention at the opening of trial. When the trial judge gave him overnight to prepare the necessary materials for the application, counsel indicated that he was making oral application only, and would not be providing any written materials. He confirmed this the next day.

The trial judge then pressed him for exactly what evidence he proposed to elicit and was advised that it would simply be that between the time that the complainant left the appellant in January and the alleged sexual assault in April, they had sexual relations. As counsel put it, “It will just be a general question as to whether they made love after their separation.” [15] The trial judge dismissed the appellant’s application, finding that there were no written materials and no evidence in support of the appellant’s request, and that there was no discretion to waive either requirement.

The appellant challenges these conclusions. [16] I do not find it necessary to determine whether the

failure to make a written application must always be fatal, evenif the substantive requirements of notice and particulars areotherwise met. [17] Apart from the absence of written materials, herethere were no particulars whatsoever offered, and no notice wasprovided of any basis upon which it could be argued that theapplication should succeed. Thus, in my view, the trial judgewas quite correct to dismiss the appellant’s application. He wasshown no reason to allow it.

The appellant offered nothing –either in writing or orally – to demonstrate that the evidencesought to be adduced was capable of being admissible under s.276(2) of the Code. The description of the proposed evidencethat was given was not of specific instances of sexual activity.This made it clearly inadmissible.

There was simply no basisupon which the trial judge could have granted the applicationand gone on to the hearing contemplated by s. 276.2. [89] Other provincial appellate courts have similarly determined that an application to ask questions of a complainant concerningother sexual activity should be brought in advance of trial. Indeed, in R. v. Wright, 2012 ABCA 306 , the Alberta Court ofAppeal set aside a conviction in part due to the decision of a trial judge to permit sexual history questions be asked of a complainantdespite the inadequacy of the timing and content of the defence application to do so.

In reversing the acquittal on this basis, the Courtstates as follows: [8] Evidence about a complainant’s prior sexual history is not admissible to support an inference that the complainant was more likely tohave consented to the sexual activity that forms the basis of the charge or that she is less worthy of belief: Criminal Code, RSC 1985, cC-46, s 276(1). Section 276(2) makes such evidence potentially admissible for specific purposes (such as its relevance to an issue attrial), but only if certain procedures are followed.

For example, a written application must be sent to the prosecutor and the clerk of thecourt in advance of the trial: s 276.1(2). No application was made here. [9] If the judge is satisfied that the evidence might be admissible, there must be a hearing: s 276.1(4). There was no hearing in this case.Nor was there compliance with subsections 276.2(3) and (4), which require the judge to provide written reasons for a decision that theevidence is or is not admissible. [10] These provisions are mandatory: R v Darrach, 2000 SCC 46 , [2000] 2 SCR 443, R v Sheppard, 2002 SCC 26 ,[2002] 1 SCR 869.

For the purposes of an appeal, the judge’s determination under

section 276.2 is deemed to be a question of law: s276.5. [16] We cannot say that the trial judge would have enteredan acquittal without this evidence. Without an advance section276.1 application, there was no opportunity to prepare thecomplainant for the questions which, understandably, she foundintrusive. The judge was “annoyed” by her unwillingness todiscuss her previous sexual relationship. Credibility wasessential, especially as regards to whether the respondentcontinued to have sexual relations with the complainant after

learning her real age. Although the trial judge neglected to consider the conflicting evidence on this key issue, had he done so he would have needed to evaluate the credibility of the complainant and the respondent. We are persuaded that the inadmissible evidence may have had a material bearing on the acquittal. [17] Given this, we allowed the appeal and ordered a new trial. [emphasis added] [ 90 ] The notice requirements under the new regime are the same as under the former s. 276 [24] .

In order to have any real meaning or provide any protection for the integrity of the fact finding process they must continue to be interpreted as they always have been, namely requiring an application be brought to admit sexual history evidence prior to trial. Presumably the Supreme Court in Darrach , in approving of the Crown’s ability to consult with the complainant concerning the contents of the affidavit, was not suggesting it was appropriate to do so while she is under cross-examination by defence counsel. [ 91 ] In R. v. F.A . , [2019] O.J.

No. 3041 , Justice Caponecchia points out that in Darrach , in upholding the constitutionality of the s. 276 regime, the Supreme Court of Canada contemplated that the Crown would routinely consult with a complainant on a s. 276 application and that the defence could not raise s. 276 in a way so as to surprise the complainant. The court in F.A. further noted that there was no compelling reason why defence disclosure of private records sought to be adduced into evidence should be treated any differently.

If the notice requirements are not respected, this cannot take place in a timely fashion. [ 92 ] I would also add that one incidental benefit of the notice requirements is that complainants can make an informed decision as to whether or not they wish to take

part in a trial. They are now routinely consulted about this process given the trauma associated with testifying. It may very well make a difference to a complainant if she is not only being made to testify to the events that are the subject of the charge but also, for example, the sexual abuse she experienced at the hands of her father. Yes, she is a mere witness and yes, the Crown can subpoena her and force the case on to trial.

But the reality of the historic disadvantage women and children have faced in seeking justice in cases of sexual abuse cannot be ignored and indeed further perpetrated through an evisceration of what is the obvious intent of Parliament – namely that, as much as possible, evidence of other sexual activity be vetted prior to trial [25] . [ 93 ] In fact, in some respects, this

interpretation of the new rape shield, that Parliament enacted in an effort to offer greater protections to the equality and privacy rights of complainants, would be in fact offer less protection and greater delay despite the fact that there were no express or implied modifications to the notice requirements. [ 94 ] Clearly, there are significant trial management problems that will arise if my colleague’s

interpretation of the notice provisions is to be adopted. It will not just be in some cases but rather in many if not most cases that the defence in a sexual assault trial will wish to rely upon sexual history evidence or private records of the complainant. Such applications are routinely brought in the busy trial courts of this province and a day well in advance of trial is usually set outside for their adjudication. [ 95 ]

Section 1.1 (1) of the Criminal Rules of the Ontario Court of Justice states that the fundamental objective of the rules is to ensure that proceedings in that court are dealt with justly and efficiently.

Section 2.4(1) states that a pre-trial application shall be heard at least 60 days before trial, unless the Court orders otherwise. Rule 2.5 deals with when trial applications should be heard, namely at the start of the trial or during the trial, unless the Court orders otherwise.

Section 2.5(2)(ii)(

b) and (

c) includes sexual activity evidence applications and applications to adduce records. However, this

section does not dictate the notice requirements for bringing these or any of the other listed applications. Further, it cannot trump the notice requirements of the Criminal Code and does not appear to attempt to do so. Rather, it suggests that these kinds of applications – namely those that must be heard by a trial judge as opposed to those that can be heard by a case management judge who is not a trial judge , such as a Garofoli application – may be heard at the outset of a trial or at a later tim

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