New rules of evidence found unconstitutional in Ontario

The “new rules” granted a complainant standing in evidentiary hearings prior to trial. This standing allowed the complainant to avoid “ambush” and the ability to block the accused from adducing evidence in his own defence.

On November 23, 2020, Justice Akhtar of the Ontario Superior Court, ruled that sections 278.92, 278.94(2) and 278.94(3) were of no force or effect in Ontario. The decision will likely go to the Court of Appeal.

The impugned sections provided standing to the complainant in pre-trial hearings to determine the admissibility of defence evidence and created a blanket exclusion of all evidence in the possession of the accused. Section 278.92, commonly referred to as the reverse disclosure requirement, captured all evidence in possession of the accused even if it was not sexual in nature.

Section 278.92 had already been declared unconstitutional in Alberta, Saskatchewan and the Yukon Territories but other provinces have ruled that the legislation was either constitutional or saved by section 1 of the Charter - primarily for the purpose of increasing public confidence in the legal system.

Two decisions, from Ontario and BC, “read down” the seven day notice requirement and determined that it was constitutional as long as the evidentiary hearings took place after the complainant had testified in chief.

With leave to appeal, the case of R. v. J.J., 2020 BCSC 29 will be the first challenge heard by the Supreme Court of Canada.

In the recent Ontario decision, R. v. Reddick, 2020 ONSC 7156, Ontario’s Superior Court Justice Akhtar considered the history of sexual assault “shield provisions” and historic concerns where there is a blanket exclusion of evidence unless it is approved through an advance application.

When the previous provisions had been struck down in R. v. Seaboyer, [1991] 2 S.C.R. 577, the Supreme Court created a common law regime to stand in place until new legislation was passed. The next legislation survived the challenge in R. v. Darrach, [2000] 2 S.C.R. 443 and then the new, enhanced legislation that was enacted in December 2018 added to the existing regime with further restrictions.

Justice Akhbar’s ruling returned the legislation to the guidelines set out in Darrach. The Crown’s ability to consult with the complainant is narrow and does not permit access to full defence material and strategy with the complainant prior to trial. The ruling also removed restrictions on defence evidence of a non-sexual nature.

While the Crown argued that the legislation sought to further protect a complainant from “ambush,” Justice Akhtar wrote “There is no reason why an accused in possession of these documents should not be able to surprise a witness with them in sexual assault cases when they are able to do so in any other type of offence.”

Particular emphasis was placed on the fundamental role of the prosecutor to protect the interests of all parties and concerns that the legislation can pit the complainant against the Crown, turning the trial into a “tripartite proceeding.”

Justice Akhtar pointed out that “the Crown owes a duty to an accused person to ensure that they are treated fairly and to exercise its discretion within the proper prosecutorial limits.” This includes a duty to withdraw charges which do not have a reasonable prospect of conviction, disclose evidence that damages the Crown’s case and to also make admissions of fact that may weaken their case.

A complainant being granted standing at pre-trial hearings effectively undermines the independence of the Crown in their fundamental role and duty to provide essential safeguards in our criminal justice system.

This decision will affect other cases currently navigating pre-trial applications. The Supreme Court will have an opportunity to speak to the new legislation when they hear R. v. J.J. but, in the meantime, those accused of sexual assault continue to face different rules depending on when they were tried and in which province their trial takes place.