This week’s top three summaries: R v Goldson, 2021 ABCA 193: #DUI #Over80 analyst certificates, R v AM, 2021 ONSC 3515: #sexual assault: #reasons and toxicologists and R v Zabihullah, 2021 SKQB 127: #judicial comity relaxed.
R v Goldson, 2021 ABCA 193
[May 21, 2021] Certificate of Analyst of Standard Solution Must be Filed [Barbara Lea Veldhuis, Jo’Anne Strekaf, Ritu Khullar JJ.A.]
AUTHOR’S NOTE: Herein, the ABCA returns to the underlying premise that while the perils of drinking and driving are serious, the provisions that provide shortcuts to the Crown to prove these offences have to be interpreted strictly because they are an exception from the general operation of the criminal law. Particularly since the beginning of the Charter of Rights and Freedoms era, accused persons or suspects typically cannot be forced by law to provide evidence against themselves. Also, the Crown is not usually permitted to rely on hearsay to convict people. These principles led the Court here to bar the Crown from relying on the breath technician’s testimony that the Alcohol Standard solution had been certified by an analyst.
Facts
[1] On May 6, 2018, the appellant, following a fail on a roadside screening device, was arrested and taken to the RCMP detachment where he was required to provide samples of his breath to a qualified technician (QT). The results of the breath test were 120 mg% and 130 mg%. He was charged with impaired driving and driving with an illegal blood alcohol limit, commonly referred to as an “over 80” charge.
[2] On December 18, 2018, a newly enacted s. 320.31 of the Criminal Code, RSC 1986 c C46 came into effect setting out what the Crown must prove to engage the new presumption of accuracy for a breath test. It is part of the new driving provisions contained in An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, SC 2018 c 21 [Amending Act]. Section 320.31 applies retrospectively, therefore, the Crown was required to establish the requirements of the new legislation in the appellant’s trial in 2019.
[3] One of the requirements that the Crown must prove in s. 320.31(1)(a) is that:
320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst; [Emphasis added]
[4] At the provincial court trial on April 8, 2019, rather than tendering a Certificate of Analyst, the Crown called the viva voce evidence of the QT, who testified as follows about the certification of the alcohol standard:
Q MR. CORBIN: So you had indicated — in your evidence you said the alcohol standard is certified by an analyst?
A Yes.
Q And what information do you have based on that?
A There’s a certificate of analyst that’s posted on the wall, and then when we run our initial checks of the system, we would match — well, first check that it’s not expired, and then we would check that to — there’s another little certificate on the side of the — just a handwritten certificate on the side of the instrument itself.
Q So, basically, your knowledge of the alcohol standard being certified by an analyst is a certificate.
A Yeah. It’s an approved certificate that’s posted on the wall there, and we wouldn’t conduct any tests if it had have been expired or anything like that.
[5] The trial judge found that this hearsay evidence from the QT was inadmissible to satisfy the requirements of s. 320.31(1)(a) that the alcohol standard was certified by an analyst. As the presumption of accuracy was not met and the Crown was relying on the presumption to convict, the appellant was acquitted.
[6] The Crown appealed. The summary conviction appeal was heard on June 13, 2019 and the summary conviction appeal judge issued reasons for decision on August 8, 2019 reported as 2019 ABQB 609. The summary conviction appeal judge disagreed with the provincial court judge’s interpretation of s. 320.31(1)(a). She overturned the acquittal and convicted the appellant of the “over 80” charge.
Position of the Parties
[14] No one disputes that hearsay is presumptively inadmissible and that the QT’s viva voce evidence or Certificate of Qualified Technician as it relates to whether the alcohol standard is certified by an analyst is hearsay in both forms. The issue is whether the changes introduced by the Amending Act should be interpreted to include a statutory exception to the hearsay rule (commonly referred to as an evidentiary shortcut) and permit evidence from the QT to prove that the alcohol standard used to conduct the test was certified by an analyst or whether it is necessary to tender the Certificate of Analysis or call viva voce evidence from the analyst to establish that the alcohol standard was certified.
Analysis
The Presumptions
[22] As set out in R v St Pierre, 1995 CanLII 135 (SCC), [1995] 1 SCR 791 and again in R v Alex, 2017 SCC 37 at paras 17-19there were presumptions and evidentiary short cuts in the Criminal Code that assisted the Crown in proving the “over 80” charge.
[23] One provision created a statutory exception to the common law hearsay rule and permitted the Certificate of Qualified Technician, which set out the breath test results, to be filed for the truth of its contents without the need for viva voce evidence.
[24] Another provision provided two inferences that would presumptively be drawn from the Certificate of Qualified Technician. The first inference, the “presumption of accuracy”, was that the breath readings in the Certificate of Qualified Technician were accurate measures of the accused’s BAC. This presumption dispensed with the need to call the QT who administered the tests to verify their accuracy. The second inference, the “presumption of identity”, provided that the breath test results also identify the accused’s BAC at the time of the alleged offence. This presumption avoided the need to call an expert toxicologist to interpret or “read-back” the breath readings with a view to identifying the accused’s BAC at the time of the alleged offence.
[26] As stated by the Supreme Court in Alex at paragraph 20 these three evidentiary shortcuts streamlined the trial proceedings by permitting an accused’s BAC at the time of the alleged offence to be presumptively proven through filing the Certificate of Qualified Technician.
[29] Under the Amending Act, the presumption of identity is no longer required because the offence is no longer framed as driving while over the legal limit; rather, the offence is now framed as being over the legal limit within two hours after ceasing to operate a vehicle, subject to certain exceptions: Criminal Code, s. 320.14. As a result, there is no need for a presumption to bridge the gap between the time of testing and the time of driving: Kettles at para 10; Hanna at para 75.
[30] The Amending Act has also impacted the presumption of accuracy and the provision regarding the Certificate of Qualified Technician. The implications of these changes are directly at issue on this appeal.
The Evolution of the Presumptions
[47] These three provisions and their relationship changed with the Amending Act.
a) First, the phrase “alcohol standard, identified in the certificate, that is suitable for use” changed to “alcohol standard that was certified by an analyst”. The phrase was also moved from the Certificate of Qualified Technician provision (s. 258(1)(g)) to become one of the preconditions for the presumption of accuracy in s. 320.31(1) (previously s . 258(1)(c)). The precondition also, for the first time, included a requirement that the QT conduct a “system blank test” and a “system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst”. These changes are noted in italics in the table below.
b) Second, the two provisions that contained information to be contained in the Certificate of Qualified Technician (s. 258(1)(g)) and Certificate of Analyst (s. 258(1)(f)) were replaced with one provision that allowed the certificates to be admitted without calling the QT or analyst to give evidence (s. 320.32). However, this new provision did not delineate the information to be contained within the certificates, or preconditions to the evidentiary short cut. Instead, reference is made only to a “certificate … made under this Part is evidence of facts alleged within the certificate”. These changes are bolded below. The applicable provisions from ss. 258(1)(c), (f) and (g) and ss. 320.31(1) and 320.32(1) are set out below for comparison…
[48] The Amending Act, for the first time, added certification of the alcohol standard by an analyst as a precondition to triggering the presumption of accuracy, in s. 320.31(1) (formerly s. 258(1)(c)). This is a significant change from the way that the legislation was drafted when the Supreme Court found in Lightfoot, citing Ware, that “the Crown may obtain the advantage of the statutory presumption under s. 237(1)(c) [later s. 258(1)(c)] by offering proof, by certificate or by oral evidence, of the three elements specified therein.” Reference to the solution used or alcohol standard was not one of the three preconditions to triggering the presumption at that time.
[49] The evidentiary short cut still exists to allow the certificates (which are hearsay) to be entered into evidence without calling either the QT or the analyst, but there is no guidance in the current scheme as to what that evidence will contain other than that it is “made under this Part”.
[58] As set out above, the two lines of authority appear to turn on Parliament’s stated intent to simplify the law related to proof of the BAC and how to reconcile that intent with the changes in wording to the provisions.
[59] The scheme of the Amending Act contemplates the following procedures:
a) An analyst certifies the alcohol standard: s. 320.31(1)(a).
b) The QT conducts the system blank test and then tests the breath samples: s. 320.31(1).
c) The test results and Certificate of Analyst are disclosed to the accused: s. 320.34(1).
d) The accused may apply for further disclosure: s. 320.34(2).
e) The Crown has the option of introducing certificates from the analyst and QT, presumably in lieu of calling them to testify: s. 320.32(1).
f) If so, notice of intention to produce the certificate in evidence is to be given by the Crown: s. 320.32(2).
g) If notice is given, the accused can apply for an order requiring the attendance of the person who signed the certificate for the purpose of cross-examination: s. 320.32(3).
[60] There are a number of similarities to the procedures that existed before the Amending Act. Both the prior scheme and the current one contemplate the role of an analyst and QT (s. 254(1); s. 320.11) and the use of certificates to establish the statutory presumptions (ss. 258(1)(c)(f) and (g); s. 320.32(1)). Both permit cross-examination of the analyst or QT by the accused pursuant to a court order (s. 258(6); s. 230.32(3)), and both require that certificates be disclosed to the accused before trial in order to be received into evidence (s. 258(7); s. 320.32(2)).
[62] Most importantly for the purposes of the appeal, and as described above, the requirement for a system blank test and system calibration check within 10% of the target value of an alcohol standard that is “certified by an analyst” has been added to the section that sets out the preconditions for the presumption of accuracy, in s. 320.31(1)(a), and the language regarding what is contained in the Certificate of Qualified Technician has been removed.
Interpretation of s.320.31(1)(a)
[63] The modern approach to statutory interpretation will guide resolution of this issue. The modern approach requires us to consider the words of the Amending Act in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the statute, the object of the statute and the intention of Parliament: Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 26.
[67] The grammatical and ordinary meaning of s. 320.31(1) sets out the preconditions to the existence of the presumption of accuracy. It envisions the employment of a calibration check to confirm the accuracy of the approved instrument. The alcohol standard’s usefulness in this calibration procedure depends upon it containing a known concentration of alcohol, which explains the requirement that the alcohol standard be “certified by an analyst”. This change to the legislation indicates that successful calibration is a fundamental precondition to the existence of a presumption of accuracy: Flores-Vigil at paras 29-30 and Hanna at para 46.
[68] Unlike the predecessor provision of s. 258(1)(g)(i), which expressly set out that the Certificate of Qualified Technician would state, among other things, that the alcohol standard would be “suitable for use”, the new provisions (ss. 320.31(1) and 320.32(1)) do not specifically delineate what facts “made under this Part” are required in the Certificate of Qualified Technician to trigger the presumption of accuracy.
[69] Parliament is presumed to know the law: Canada (Attorney General) v Mowat, 2011 SCC 53 at para 45. This would include the general rules about admissibility of evidence in criminal trials as set out in R v Egger, [1993] 2 SCR 451 at 474-475, 1993 CanLII 98 (SCC):
While proof on a balance of probabilities is an acceptable standard in deciding a preliminary question of fact with respect to the admissibility of evidence (see R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740), the general rule with respect to determination of vital issues in the criminal process requires proof beyond a reasonable doubt. See R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368, at p. 415 …. When admission of the evidence may itself have a conclusive effect with respect to guilt, the criminal standard is applied. This accounts for the application of this standard with respect to the admission of confessions (see Ward v. The Queen, 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30, at p. 40, …) … Establishing the facts which trigger a presumption with respect to a vital issue relating to innocence or guilt is a step further advanced than the admissibility of evidence and is only reached after crossing the hurdle of admissibility. The effect of the presumption in this case is to provide conclusive proof of the accused’s blood alcohol concentration at the critical time, in the absence of evidence to the contrary. This conclusion respecting the application of the criminal standard is supported by the view which has been taken relating to the presumption which arises by virtue of s. 258(1)(a).
[70] Further, Parliament would have known that hearsay evidence, in particular, was inadmissible unless a statutory exception was created. It also would have been aware that for decades the legislative scheme included a similarly-worded provision that set out what must be contained in the Certificate of Qualified Technician and that prior case law, including the Supreme Court of Canada, found that this created an evidentiary shortcut that not only allowed the Crown to rely upon the QT’s hearsay evidence but also the analyst’s hearsay evidence: see Ware and Lightfoot….
[71] The exclusion of a similarly-worded provision from the new scheme in the Amending Act was presumably intentional.
[72] The Amending Act demonstrates that Parliament was aware of its ability to create a statutory exception to the rule against hearsay. As discussed above, the evidentiary short cut to allow certificates in place of viva voce evidence remains in s. 320.32(1) of the Criminal Code.
[73] The revised conditions to trigger the presumption of accuracy and the omission of language in the Amending Act setting out the content of the certificates must be taken to be intentional, leaving the Crown with the ordinary rules of evidence to prove that the alcohol standard was “certified by an analyst” or by way of the statutorily recognized Certificate of Analyst. As the Supreme Court has recognized, the preconditions or elements now specified in s. 320.31 must all be proven, “by certificate or by oral evidence”: see Lightfoot at 575.The content of those elements has now changed, but they must still be proven for the Crown to obtain the advantage of the statutory presumption.
[75] We reject the Crown’s submission that because it is obligated to disclose the certificates to the defence, the defence has what it needs to bring any meritorious challenge to the accuracy of the breath samples, and as a result, it is not required to tender the Certificate of Analyst at trial. The summary conviction appeal judge also relied upon this procedure in support of her interpretation that a hearsay exception existed.
[76] This reasoning appears to shift the burden to the accused and is inconsistent with fundamental criminal law principles. If the Crown wishes to rely on the statutory presumption of accuracy, it is up to the Crown to prove (not the accused to disprove) that the statutory preconditions to its operation are met.
[77] Additionally, an accused can only bring an application to cross-examine the analyst, and thus test or challenge his or her analysis of the alcohol standard, after the Crown gives notice that it intends to produce the Certificate of Analyst at trial (ss. 320.32(2) and (3)). If the Crown is not required to either call the analyst as a witness or tender the Certificate of Analyst, then there is no process for the accused to challenge the information contained within it.
[78] Additional justifications put forward by the summary conviction appeal judge in support of her interpretation involving the scheme of the Amending Act are similarly unpersuasive.
Conclusion
[83] The answer to the question on leave is as follows: the proper interpretation of “certified by an analyst” in s. 320.31(1)(a) of the Criminal Code requires evidence from the analyst regarding certification, either by way of the analyst’s viva voce evidence or by way of the statutorily recognized Certificate of Analyst. The QT’s evidence about whether an alcohol standard is certified by an analysis is inadmissible hearsay.
[84] Given our conclusion on the question, the appeal is allowed. Without evidence that the alcohol standard was certified by an analyst, the Crown has failed to establish the presumption of accuracy, which was the sole basis on which it was relying to establish the elements of the offence. The appellant is therefore acquitted of the “over 80” charge.
R v AM, 2021 ONSC 3515
[May 13, 2021] Sufficiency of Reasons on Sexual Assault in Blackout Situations – Adverse Inference on Crown Expert Witness Evidence [Cull-in, J.]
AUTHOR’S NOTE: The first useful point from this case is that judges in sexual assault matters have an obligation to give reasons on every element of an offence. Here, a dearth of evidence existed on whether the complainant in her state of blackout had consented to the sexual activities or not. All she could recall was coming out of the blackout state and asking the accused to stop which he did. The trial judge convicted on the basis that the complainant essentially did not see herself consenting to sexual activity with the accused. In doing so, the trial judge failed to account for the fact that the only consent issue that matters is whether at the time of the sexual act the complainant consented to it.
Another interesting point that arose was a failure by the Crown to lead evidence about issues relevant to a Crown toxicologist’s opinion about the complainant’s level of intoxication at the time of the sexual acts. The toxicologist could not say how intoxicated the complainant had been because they did not have the complainant’s regular consumption patter for alcohol and codeine as well as when she last took codeine (which was present in her blood sample afterwards). The summary conviction appeal court opined that an adverse inference would have been appropriate here due to the Crown’s failure to arm their expert with relevant information.
Overview
[1] This is an appeal of the appellant’s conviction on one count of sexual assault. The conviction arises as a result of a single incident which is alleged to have occurred on December 19, 2017. The sole issue at trial was consent.
Evidence at Trial
[3] At the outset of trial, the appellant admitted the date and time of the alleged offence, jurisdiction, his identity, the voluntariness of his statement to the police and the continuity of DNA samples. The appellant also consented to the filing of the Crown’s expert reports and to the expertise of the Crown’s expert.
[4] In closing submissions, the defence conceded that the Crown had established that a sexual act had taken place. The triable issue identified was whether the Crown had proven, beyond a reasonable doubt, that there was a lack of consent.
[5] The principle witness for the Crown was the complainant, B.N-T., who gave the following evidence:
She took one Percocet in the early afternoon for a sore back. Between 3:00 p.m. and 10:00 p.m., she drank two eggnog with rum and six orange juice with vodka. The drinks were prepared by the appellant, and she did not know how much alcohol was used.
d. It was not the first time that she had drank or drank alone with the appellant. She testified that she had known the appellant since she was 15 or 16 years old. He was a close family friend, akin to an uncle.
e. She was “buzzed but…nothing out of the ordinary”. It was not unusual for her to have eight to ten drinks. She did not consider herself to be a heavy drinker but felt that she drank heavily that night.
f. At some point during the evening she, “blacked out”. Her last memory was decorating the Christmas tree with Kyle and listening to music. Based upon her statement to the police and her last texts with her sister, she believed that to be between 9:30 p.m. and 10:00 p.m.
h. Her next memory was at approximately 1:00 a.m. She “woke up”. The residence was in darkness and she was lying on her stomach on the appellant’s bed in his bedroom. She had her shirt and bra on, but her pants and underwear were removed. She had no memory of how she had gotten to the appellant’s bed, how long she had been there, or how her clothes had been removed.
i. The appellant was on his stomach behind the complainant. He was touching her vagina with his mouth and fingers. He was fully dressed.
j. She “assumed” that the sexual activity began while she was unconscious because she “woke up” while it was happening.
l. When she became aware of what was going on, she moved the appellant’s hand and told him to stop touching her. He complied with her request.
m. She did not know and could not say whether she consented to sexual activity with the appellant. She assumed that she did not consent. She did not believe that she would have consented.
[6] The complainant’s friend, T.Y. also testified for the Crown. T.Y. provided the following evidence:
b. The complainant appeared to be in a state of shock and became upset upon arriving at T.Y.’s house. She recounted the evening’s events to T.Y. She testified that she appeared to be sober and that she, “didn’t seem intoxicated whatsoever”.
[7] The final witness to testify for the Crown was Nathalie Desrosiers, a forensic toxicologist who was qualified to give forensic evidence. She testified as follows:
a. She analyzed the complainant’s blood and urine samples taken at Health Sciences North at 7:30 a.m. Her blood tests revealed 59 milligrams of alcohol per 100 millilitres of blood, and her urine tests revealed 92 milligrams of alcohol per 100 millilitres of blood.
b. That, in her opinion, between 10:00 p.m. and 1:30 a.m., the complainant had between 119 and 249 milligrams of alcohol per 100 millilitres of blood.
c. That the impact of alcohol on the complainant would depend on factors such as the complainant’s alcohol tolerance, her alcohol experience, and her frequency of alcohol consumption.
d. That the impact of this level of alcohol would have ranged from a red face, minor slurred speech, some gross motor incoordination, increased sociability, and talkativeness at the low end of the range, to fine motor incoordination, gait instability, vomiting and nausea, and unconsciousness at the high end of the range. A frequent consumer of alcohol may have demonstrated no visible signs of impairment at these blood alcohol levels.
f. That if the alcohol and codeine were taken together, they could result in increased sedation, drowsiness and memory impairment. She could not say whether the codeine found in the complainant’s urine was in her blood and interacting with the alcohol at the time of the incident.
Essential Elements of Sexual Assault
[9] The essential elements of the offence of sexual assault were reiterated by the Supreme Court of Canada in R. v. J.A., 2011 SCC 28. In proving the actus reus, the Crown must establish the application of force and the absence of consent. In proving the mens rea, the Crown must establish the intention to apply force and the knowledge of the absence of consent. Knowledge can be established with proof of actual knowledge or proof that the accused was reckless or wilfully blind to the absence of consent.
[10] In R v. J.A., the focal point of the court’s analysis was the issue of consent. Referring to its earlier decision in R v. Ewanchuk, 1999 CanLII 711 (SCC) (paras.48-49), the court noted that the actus reus of the offence considered whether the complainant was subjectively consenting in their mind, whereas the mens rea of the offence considered whether the accused believed that the complainant communicated consent.
[11] In particular, the court noted s.273.1(2)(b) of the Criminal Code R.S.C., 1985, c.C-46, which provides that the accused is deemed not to have obtained consent where, “the complainant is incapable of consenting to the activity.” From the court’s perspective, this required the complainant to have a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act.
Establishing Consent in Challenging Circumstances
[12] The Crown’s burden of proving the element consent can be challenging in cases where, as here, the complainant has lapses in her memory of the events at issue.
[14] Of these, circumstantial evidence is often the most challenging. As noted by Rouleau, J.A. in R. v. Garciacruz, 2015 ONCA 27(para. 68):
In order to infer guilt based on circumstantial evidence, the trier of fact must be “satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty” (R. v. Griffin, 2009 SCC 28 (S.C.C.) at para. 33). This is a high standard that requires that alternative explanations be excluded because “the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt” (ibid. at para. 34; see also R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4).
[15] The fact that the complainant experienced blackout or memory loss is not, in and of itself, proof of lack of consent or lack of capacity (R. v. J.R., para. 19). As noted by Major, J. in R. v. Esau (para. 19): “Any number of things may have happened during the period in which [the complainant] had no memory.”
[16] Although the complainant’s intoxication may trigger inquiries regarding capacity, it cannot be equated with incapacity or the absence of consent. As noted by Trotter, J. in R. v. Meikle, 2011 ONSC 650 (para. 57):Based on all of the evidence, the most that I can conclude is that, on the night she was with Mr. Meikle, N.T. was intoxicated and perhaps drunk. But as Duncan J. held in Regina v. Cedeno (2005), 2005 ONCJ 91 (CanLII), 195 C.C.C. (3d) 468 (Ont. C.J.) at p. 475:Cases where the complainant is said to be incapable due to consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision making, memory loss, loss or inhibition or self-control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. [footnotes omitted]
[17]The complainant’s assertion that she would not have consented to sexual activity with the accused is also not, in and of itself, evidence of the absence of consent. In R. v. Esau, where the complainant asserted that she would not have consented because she was related to the accused, Major J. noted (para. 23), “My colleague concludes that the complainant would not for personal reasons have consented. This, in view of the complainant’s failure to remember, is no evidence of her denying consent.”
[18] While the burden of proving the element of consent can be challenging in the absence of the complainant’s unhindered memory of the event, it is not insurmountable. In R v. J.R., Ducharme J. noted that lack of capacity, and a corresponding lack of consent, have been found in cases where there is direct evidence that: (1) the complainant was extremely intoxicated; (2) the complainant was asleep or unconscious when the sexual activity commenced; or, (3) the complainant was asleep or unconscious during all of the sexual activity (para. 45).
[19] The appellant has raised three grounds of appeal:
a. Did the trial judge fail to provide sufficient reasons to permit meaningful appellate review?
b. Did the trial judge fail to consider all the evidence and to follow her own guidance regarding expert evidence?
Analysis: Sufficiency of Reasons
The Judgment
[22] After identifying the elements, the trial judge noted that there was no question that sexual activity had occurred and that, as such, the Crown had satisfied its burden of proving the first and last elements of the offence. She relied on the evidence of the complainant as well as the DNA evidence.
[26] After considering the authorities, the trial judge identified the task of determining whether the complainant actively consented without remembering or whether she was unable to consent due to intoxication and passing out. In choosing the latter, she relied upon the following:
a. That the complainant described A.M. as a close family friend and an uncle. She described that her plans were to go to his place, decorate the tree, listen to music and prepare for a Christmas party the next day.
b. That when it was suggested to her in cross-examination that she did not know whether she consented or not, she said that she would not have consented to that.
c. That the complainant was an extremely credible witness. She was not contradicted in her testimony and there were no material inconsistencies put to her.
d. That the manner in which the complainant described the incident, and specifically her use of the words, “waking up”, led the court to the conclusion that she was unconscious.
e. That when she “woke up” she was not consenting to the sexual activity that was still occurring when she became aware of it.
[27] The trial judge made no reference to the evidence of the forensic toxicologist in her reasons.
Law of Sufficiency of Reasons and Where the Trial Judge went Wrong
[30] In R. v. Braich, 2002 SCC 27 and its companion case R. v. Sheppard, 2002 SCC 26, the Supreme Court of Canada set out the following propositions in relation to appellate intervention in a criminal case based on insufficient reasons:
a. The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office.
b. An accused person should not be left in doubt about why a conviction has been entered. The question is whether, in all the circumstances, the functional need to know has been met.
c. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal.
d. Not every failure or deficiency in reasons provides a ground of appeal.
e. Where the functional needs of reasons are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1)(a) of the Criminal Code.
f. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.
g. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection.
h. The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed that is, a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.
i. While it is presumed that judges know the law with which they work, it is the correctness of the decision in the particular case that the parties are entitled to have reviewed by the appellate court.
j. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial.
[32] It is clear from the trial judge’s reasons that she found the complainant to be a credible and compelling witness. It is also clear that she accepted the complainant’s evidence that she viewed the appellant as a friend and an uncle, and that she did not believe that she would have consented to sexual activity with the appellant.
[33] The trial judge concluded from the complainant’s evidence that she, “woke up” to the appellant touching her vagina with his fingers and mouth that she had been unconscious throughout the interaction and had been incapable of providing consent. What she failed to address in her reasons was the following:
a. When the complainant became unconscious; and,
b. Whether the complainant consented to the sexual activity (or any sexual activity) before she became unconscious.
[34] It is impossible to know with certainty what happened on the night in question. It is possible that the appellant took liberties with the complainant while she was incapable of consenting due to intoxication or unconsciousness. It is also possible, however, that the complainant consented to escalating sexual activity with the appellant while she was “blacked out” and conscious, that the escalation to vaginal contact made her uncomfortable, that she physically and mentally reacted to that discomfort, and that she asked the appellant to stop, which he did. On cross-examination, the complainant admitted that she did not know whether she had consented or not. The trial judge was required to grapple with both possibilities. She did not.
[35] The trial judge also failed to establish the path that she followed to the conclusion that the complainant was unconscious. In my view, this was an essential analysis given contradictions and deficiencies in the evidence regarding the complainant’s alcohol consumption and level of intoxication, including the following:
a. The complainant’s evidence that the appellant was preparing her drinks and that she had no idea how much alcohol she or the appellant had consumed, leaving open the equal possibilities that the servings of alcohol were average, less than average or more than average.
b. The complainant’s evidence that she felt “buzzed but…nothing out of the ordinary” prior to “blacking out”, as well as T.Y.’s evidence that the complainant appeared to be sober when she attended at T.Y.’s residence between 1:30 and 2:00 a.m.
c. The expert’s qualified opinion regarding expected impairment levels and signs of impairment, the differences between “naïve” drinkers and “seasoned” drinkers and the complainant’s evidence that she consumed approximately 8 drinks and that it was not unusual for her to consume eight to ten drinks.
d. The expert’s evidence that between 10:00 p.m. and 1:30 a.m., the complainant had between 119 and 249 milligrams of alcohol per 100 millilitres of blood, and that the impact of this level of alcohol would have ranged from no visible signs of impairment and escalating from there to a red face, minor slurred speech, some gross motor incoordination, increased sociability, and talkativeness and then further to fine motor incoordination, gait instability, vomiting and nausea, and unconsciousness.
e. The expert’s evidence that she was unable to say when the complainant consumed codeine, whether the codeine was in her blood at the time of the incident and whether a drug interaction occurred at the time of the incident that would have aggravated the effects of alcohol and the complainant’s outward presentation.
[36] In short, the record disclosed no reliable lay witness evidence and no expert evidence establishing the complainant’s level of alcohol consumption or level of intoxication at any point during the evening. There was no foundation upon which to establish when or whether the complainant was rendered unconscious. There was no foundation upon which to establish the absence of consent or the appellant’s knowledge of the absence of consent. If the trial judge observed a pathway in the evidence to reach these conclusions, she did not disclose it in her reasons.
[37] The Court of Appeal in R. v. Garciacruz, 2015 ONCA 27 was faced with a similar dilemma. In granting the accused’s appeal, Rouleau, J.A. noted (para. 76):In my view, the trial judge’s failure to advert to and deal with inconsistencies in the complainant’s testimony precludes meaningful appellate review, and was an error of law. As explained in R. c. Dinardo, 2008 SCC 24 (S.C.C.) at paras.2, 23-31, even if it is open to a trial judge to reach a particular conclusion based on a complainant’s testimony, it is not open to the trial judge to do so without explaining how she reconciled serious problems with that testimony.
[38] The reasons provided by the trial judge in this case do not meet the functional needs of reasons for decision. In this matter, the complainant’s absence of consent and the accused’s knowledge of that absence of consent were the central issues to be determined by the court. It was not enough for the trial judge to unconditionally accept the complainant’s assurances that she could not imagine herself consenting to sexual activity with the appellant, regardless of how credible or sympathetic she may have been. There were factual and evidentiary issues that required explicit consideration and judicial resolution. That analysis was not present in the reasons before this court, and its absence was an error of law.
Analysis: Expert Evidence and Adverse Inferences
[40] At minimum, some degree of analysis was required by the trial judge to explain why she accepted the toxicologist’s most dire estimation of the complainant’s state of mind at the time of the incident. The trial judge did not identify any circumstantial evidence connecting the expert’s opinion to the evidence. She did not reconcile the evidence before the complainant’s blackout and after the incident that contradicted a conclusion of debilitating intoxication. She also did not analyze the complainant’s anecdotal evidence about her alcohol consumption in the context of the expert’s opinion – this omission was particularly significant given the expert’s evidence that an experienced drinker may have demonstrated no visible effects of intoxication.
[43] The forensic toxicologist was the Crown’s expert witness. It is difficult to image that the Crown would not have known in advance of trial that evidence regarding the complainant’s consumption patterns was going to be required by the expert to provide a conclusive opinion or by the court to make factual determinations based upon the expert’s evidence. Their failure to elicit this evidence ought to have been considered by the trial judge in assessing the reliability and credibility of the complainant, and the overall strength of the Crown’s case.
[44] Although adverse inferences ought to be used sparingly in criminal law this was an instance, in my view, where it would have been appropriate for the trial judge to consider such a finding (R. v. Ellis, 2013 ONCA 9, paras. 43-49). The toxicologist’s evidence was essential to fill the gaps in the complainant’s evidence regarding the issue of consent. The Crown’s failure to fully arm their expert and the court with the facts suggests that those facts may not have supported the Crown’s theory regarding the complainant’s capacity to consent or the appellant’s knowledge of any lack of capacity.
Analysis: Error in After the Fact Conduct
[46] The final ground of appeal argued by counsel addressed the trial judge’s reliance upon post-offence conduct, specifically her finding that, “Mr. [M.] asking Ms. [N-T.] if she was mad demonstrates to this Court that he knew she was not consenting.”
[47] Evidence of post-offence conduct is admissible provided it is relevant to a material issue at trial and its admission does not offend any exclusionary rule of evidence. This evidence may also be excluded as an exercise of recognized judicial discretion (for example, if its probative value is outweighed by its prejudicial effect). Post-offence conduct is a form of circumstantial evidence. (R v. White, 2011 SCC 13, para. 31)
[48] In R. v. Hall, 2010 ONCA 724, Feldman and Simmons, JJ.A. noted the following about post-offence conduct (para. 131):
…the problem with post-offence conduct evidence is that it is often at best equivocal, and as the court stated in White at para.22, “susceptible to jury error”. Evidence of post-offence conduct is not evidence of the commission of a crime or its planning…Rather, it is evidence of what someone did after an event, which proves nothing directly, but from which the jury is asked to conduct a psychological analysis of what a person logically would or might do in given circumstances.
[49] In assessing post-offence conduct, a trial judge must be alive to what has been described as, “the temptation to ‘jump too quickly from evidence of post-offence conduct to an inference of guilt’ without proper consideration of alternate explanations” (R. v. Calnen, 2019 SCC 6, para. 25).
[50] The trial judge’s perfunctory conclusion that the appellant’s inquiry about whether the complainant was “mad” demonstrated his knowledge of her lack of consent flies in the face of all appellate court guidance about the treatment of post-effect conduct evidence.
[51] I concur with the appellant’s submission that this evidence was equivocal and did not demonstrate actions inconsistent with that of an innocent person. I concur with his submission that this evidence was equally consistent with the inference that he was confused about why the complainant had terminated sexual activity which had been, up to that point, consensual.
Conclusion
[53] In my view, the trial judge’s errors of law were fatal to her decision to convict the accused and are not saved by a review of the decision in conjunction with the evidentiary record.
[54] I therefore allow the appeal and set aside the appellant’s conviction….
R v Zabihullah, 2021 SKQB 127
[April 30, 2021] Judicial Comity and Constitutionality of Statutes – Applied to s.278.92(1),(2)(b), and (2) [Mitchell J.]
AUTHOR’S NOTE: As the Ghomeshi amendments to the Criminal Code wind their way through the system, they are leading to some extensive discord in the judgements that are being produced. Some judges have ruled these provisions entirely unconstitutional, some have altered their plain meaning to preserve their constitutionality, while others have upheld the provisions. In Saskatchewan, all reported judgments have held the provisions to be unconstitutional. The interesting portion of this decision is an extensive discussion of judicial comity as it relates to constitutionality judgments. Encouraging a true judicial debate, Justice Mitchell comes down on the side of a relaxed interpretation of when judges should be permitted to depart from their peers. In the spirit of a classical debate of the issues, defence counsel can use this ruling as a persuasive tool to ask courts to depart from the rulings of their peers on constitutionality issues where they are not in our favour.
Overview
[1] Mr. Mohammad Mahdi Zabihullah [applicant] stands charged on a two-count indictment which reads as follows:
2. THAT HE, the said Mohammad Mahdi Zabihullah between the 29 th day of July, A.D. 2017 and the 30 th day of July A.D. 2017 at or near Regina, Saskatchewan, did wound B.M. in committing a sexual assault on her, thereby committing an aggravated sexual assault, contrary to section 273 of the Criminal Code.
[2] On March 12, 2020, counsel for the applicant filed a Notice of Charter Application [Notice] in compliance with s. 15 of The Constitutional Questions, Court-appointed Lawyers Act, 2012, SS 2012, c C-29.01. He seeks the following relief:
1. That sections 278.92(1), 278.92(2)(b) and 278.94(2) be ruled a violation of sections 7 and11(d) of the Canadian charter of freedoms and cannot be save by section 1 of the charter therefore these sections should be struck for being constitutionally invalid.
[3] In his Notice, the applicant asserts that these impugned sections of the Criminal Code, RSC 1985, c C-46, have already been declared to be unconstitutional by another judge of this Court. This is true. In two decisions, Rothery J., following a bifurcated hearing, determined that these provisions of the Criminal Codeviolated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms [Charter]. She ruled that the disclosure requirements set out in these sections so seriously impaired an accused’s right to cross-examine the complainant, they could not qualify as reasonable limitations upon those rights under s. 1. See: R v Anderson,2019 SKQB 304, 61 CR (7th) 376 (Charter infringement ruling), and R v Anderson, 2020 SKQB 11, 61 CR (7th) 391 (s. 1 ruling) [Anderson]. In this fiat, I will refer to these two judgments collectively as Anderson.
[4] To date, Anderson has been followed by subsequent courts in Saskatchewan asked to adjudicate the constitutionality of these recent amendments to the Criminal Code. These courts have uniformly applied the principle of judicial comity and followed the Anderson rulings. See: R v S.S. (23 April 2020) Regina, CRM 194/2018 (Sask QB); R v C.M., 2020 SKQB 260 [C.M.], and R v T.T., 2020 SKQB 261.
[6] These reasons explain why I, too, have decided it is prudent to apply the principle of judicial comity in these circumstances, and follow Anderson. Accordingly, I declare the impugned sections of the Criminal Codeto be of no force and effect pursuant to s. 52 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Analysis: The Legal Landscape Now
[8] Since that time, numerous trial courts – but to date no appellate court – have been called upon to adjudicate the constitutionality of these amended provisions. It would be fair to say that the jurisprudence which has ensued is unsettled, if not unsettling. An overview of the reported case law reveals that these cases generally fall into one of three categories.
[9] The first line of cases from various provinces found the impugned provisions of the Criminal Codeto be constitutional. See, for example: R v C.C., 2019 ONSC 6449, 448 CRR (2d) 297; R v A.C., 2019 ONSC 4270, 439 CRR (2d) 360; R v F.A., 2019 ONCJ 391, 56 CR (7th) 182; R v A.T., 2020 ONCJ 576 [A.T.]; R v A.M., 2020 ONSC 8061 [A.M.]; R v Whitehouse, 2020 NSSC 87, 61 CR (7th) 400 [Whitehouse]; R v Barakat, 2021 ONCJ 44 [Barakat]; and R v Green, 2021 ONSC 2826 [Green].
[10] The second and opposing line of cases found these impugned provisions to be wholly unconstitutional declaring them to be of no force and effect. In addition to the Saskatchewan cases already referred to, see also: R v A.M., 2019 SKPC 46, 56 CR (7th) 389; R v J.S., [2019] AJ No 1639 (QL) (Alta QB); R v D.L.B., 2020 YKTC 8, 460 CRR (2d) 162; and R v Reddick, 2020 ONSC 7156 [Reddick].
[11] The third line of cases adopts a middle ground. See: R v R.S., 2019 ONCJ 645, 58 CR (7th) 215; R v J.J., 2020 BCSC 29; and R v J.J., 2020 BCSC 349 [J.J.]. In J.J., for example, the court read down s. 278.92 of the Criminal Code and added the words “at the conclusion of the complainant’s examination in chief, or as otherwise required by the judge, provincial court judge or justice in the interests of justice” to clarify when an application may be brought. See: J.J. at para 21.
[13] The Supreme Court granted leave to appeal in both cases. See: R v J.J., 2020 CanLII 48929 (SCC), and A.S. v Her Majesty the Queen, 2021 CanLII 22783 (SCC). The court has scheduled the hearings of these appeals for its 2021 fall term.
Judicial Comity
[14] This application involves a consideration of horizontal stare decisis, that is should a judge follow a non-binding decision of another judge of their court on the same or a similar issue. Certainly, the doctrine of stare decisis does not compel a judge to do so. However, Wimmer J. in R v Wolverine and Bernard (1987), 1987 CanLII 4603 (SK QB), 59 Sask R 22 (QB) stated at para. 6 that the “rule – if it can be characterized as such – …is that one trial judge will not, except in extraordinary circumstances, refuse to follow a prior decision of another judge of the same court”.
[15] More recently, however, it appears that the stringency of this rule has been relaxed in constitutional matters. The point was adverted to in Saskatchewan v Durocher, 2020 SKQB 224 at para 19, 453 DLR (4th) 650 as follows:
[19] Constitutional adjudication is a dynamic, not a static, enterprise. Originalism is not a doctrine generally espoused by Canadian courts. Consequently, the principle of stare decisis is somewhat relaxed in this context. See: Canada (Attorney General) v Bedford, 2013 SCC 72, at paras 43-44, [2013] 3 SCR 1101, and Carter v Canada (Attorney General), 2015 SCC 5 at paras 44-45, [2015] 1 SCR 331. So, too, is judicial comity. See: Robert J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018) at 155, and David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 OR (3d) 161 (Ont CA) at para 127.
[16] This relaxation became apparent in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101 [Bedford]. There, following a lengthy trial, the trial judge declared the bawdy-house and communicating provisions of the Criminal Code unconstitutional despite the Supreme Court of Canada’s judgment in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 SCR 1123 (WL) [Prostitution Reference] which had upheld the constitutionality of those laws. See: Bedford v Canada (Attorney General), 2010 ONSC 4264, 102 OR (3d) 321.
[18] It is rather audacious for a trial judge – or an appellate court, for that matter – to refuse to follow a decision of the Supreme Court respecting the same issues before it. Nevertheless, both the Ontario Court of Appeal and the Supreme Court upheld the trial judge’s decision. As McLachlin C.J. explained in the Bedfordcommencing at para. 42:
[42] In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
[43] The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. It submits that lower courts should not be limited to acting as “mere scribe[s]”, creating a record and findings without conducting a legal analysis (I.F., at para. 25).
[44] I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.
[19] Subsequently, in Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331 [Carter], the Supreme Court affirmed Bedford’s approach to stare decisis, at least in important constitutional matters. At first instance, and following a lengthy trial, L. Smith J. of the British Columbia Supreme Court declared s. 241(b) of the Criminal Code which criminalized assisted suicide to be unconstitutional (2012 BCSC 886, 287 CCC (3d) 1). The constitutionality of this provision had earlier been upheld in Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519 [Rodriguez]. The British Columbia Court of Appeal overturned Smith J.’s declaration of invalidity because she had departed from the reasoning and result in Rodriguez (Carter v Canada (Attorney General), 2013 BCCA 435, 51 BCLR (5th) 213). The majority of the Court of Appeal concluded at para. 324 “the trial judge was bound to find that the plaintiffs’ case had been authoritatively decided by Rodriguez”.
[20] Ultimately, the Supreme Court in Carter endorsed the trial judge’s refusal to follow Rodriguez. In an unattributed unanimous decision, the court explained at paras. 43 and 44 as follows…
[21] … It appears that Bedford/Carter signal a relaxation in the operation of the doctrine of vertical stare decisis in Canada, at least in constitutional matters.
[22] The precedential question in this application, however, concerns the operation of horizontal stare decisis, namely whether a judge is obliged to follow a non-binding decision of their judicial colleague(s) on the same or similar constitutional issue.
[23] To begin, it is agreed that a trial judge’s declaration of unconstitutionality under s. 52(1) of the Constitution Act, 1982 does not bind judges of court of coordinate jurisdiction. See, for example: R v Sullivan, 2020 ONCA 333 at paras 37-38, 151 OR (3d) 353 [Sullivan]; Green at para 15; Barakat at para 26; and A.T. at paras 7-8.
[24] Further, when faced with conflicting decisions of courts of coordinate jurisdiction under s. 52(1) of the Constitution Act, 1982, the trial judge is free to follow the decision or decisions they determine to be correct. See, for example: Green at paras 21-23, and A.T. at para 12. This would include decisions from superior courts of other provinces which have also considered the issue. See: Green at para 21 citing R v Craig, 2019 ONSC 6732, 449 CRR (2d) 1.
[25]However, the Ontario Court of Appeal in Sullivan opined at para. 38, that although a declaration of invalidity under s. 52(1) made by a superior court judge is not binding on other judges of the same court, it should be followed “absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision”.
[26] With respect, this approach to horizontal stare decisis in constitutional matters is problematic for three reasons. First, it means that a trial judge has greater latitude to depart from a binding decision of the Supreme Court of Canada than from a non-binding decision of a judge of his or her court. As noted, the Bedford/Carter standard does not impose the pre-condition that the prior binding decision be shown to have been plainly or manifestly wrong.
[27] Second, it privileges the decision of a superior court judge who has issued a declaration of invalidity under s. 52(1) of the Constitution Act, 1982 over prior decisions from other judges of that court who may have upheld the constitutionality of the law in question. No persuasive rationale was provided why the former decision should be given preference. Simply put, this approach recalls the adage “first out of the gate”, namely, the first superior court judge to make a declaration of invalidity under s. 52(1) wins!
[28] Third, while the phrase “plainly wrong” or “manifestly wrong” is often used in these circumstances, it is a troublesome standard to apply in cases which raise new or novel issues of constitutional law. The Supreme Court has endorsed the concept of the Charter dialogue between the legislative and judicial branches of government in a number of its judgments. See, especially: Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493 at paras 138-139 [Vriend] and R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668 at paras 20, 57 and 125. As Iacobucci J. stated in Vriend at paras 138 and 139 “the Charter has given rise to a more dynamic interaction among the branches of governance” and this dialogue has fostered greater accountability among them.
[29] However, the requisite standard of plainly or manifestly wrong in the circumstances of applications like this one, in my view, runs counter to the Charter dialogue accepted by the Supreme Court when applied in the context of disagreements among members of the judicial branch of government, especially judges of courts of concurrent jurisdiction. Rather than permit such differences to be exposed and explained, this standard effectively stymies meaningful judicial dialogue on important issues of Charter interpretation and application.
[30] Significantly, the court in Sullivan did not refer to the important decision in David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 OR (3d) 161 (Ont CA) [Polowin] in its reasons. In Polowin, a five-member bench of that court considered whether it should overrule one of its earlier decisions – McNaughton Automotive Ltd. v Co-operators General Insurance Co.(2001), 2001 CanLII 21203 (ON CA), 54 OR (3d) 704 (Ont CA) [McNaughton]. The parties arguing in favour of retaining the precedential value of McNaughton submitted that in keeping with the doctrine of stare decisis, it could be overruled only if it is demonstrated to be manifestly wrong.
[31] Writing for the court, Laskin J.A. in Polowin espoused a more nuanced approach to be employed by a court when determining whether to depart from a prior precedent. He explained at paras. 126-127:
[126] Our court has never itemized a similar list of factors to justify overturning one of our decisions. The Supreme Court’s factors likely provide a useful, though not exhaustive, checklist for provincial appellate courts in Canada. Certainly, our court has adopted a similar view to that of the Supreme Court. Thus, for example, we have said that we will not overrule one of our previous decisions unless it was “manifestly wrong”; and we have not felt bound by a judgment of the court “where the liberty of the subject is in issue if [we are] convinced that the judgment is wrong”: see R. v. Jenkins (1996), 1996 CanLII 2065 (ON CA), 29 O.R. (3d) 30, [1996] O.J. No. 1726 (C.A.) (leave to appeal to S.C.C. denied [1996] S.C.C.A. No. 583); and R. v. Santeramo, 1976 CanLII 1456 (ON CA), [1976] O.J. No. 987, 32 C.C.C. (2d) 35 (C.A.), at p. 46 C.C.C. In short, although departure is the exception, we will overrule our precedents in an appropriate case.
[127] Instead of focusing on phrases such as “manifestly wrong”, the approach I prefer is that adopted by this court in R. v. White (1996), 1996 CanLII 3013 (ON CA), 29 O.R. (3d) 577, [1996] O.J. No. 2405 (C.A.), at p. 602 O.R. It calls on the court to weigh the advantages and disadvantages of correcting the error in a previous decision. This approach focuses on the nature of the error, and the effect and future impact of either correcting it or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants, but also on the integrity and administration of our justice system.[Emphasis added]
[32] The less rigid approach to stare decisis and judicial comity advocated in Polowin is more accommodating to interpretive differences which will frequently arise in cases where Charter interpretation is central to their resolution. A principal advantage of this holistic approach is it does not suppress further analysis and debate by focussing exclusively on whether a prior decision is manifestly wrong. Rather, it encourages a wider assessment of the benefits versus the costs of either overruling or declining to follow a prior precedent.
[33] I have chosen to adopt this approach when considering whether to follow Anderson and other authorities from this Court which have applied it.
Analysis
[34] To begin, I am not bound either by stare decisis or the principle of judicial comity to follow Anderson and, like Rothery J. in that case, declare
ss. 278.92(1), 278.92(2)(b) and 278.94(2) of the Criminal Code of no force or effect.
[36] This reality, in my view, engages the principle of judicial comity. At the outset, I confess that I do not find the reasoning in Anderson persuasive. Rather, I prefer the views set out in A.M.; Whitehouse; Barakatand Green respecting the constitutionality of the sections of the Criminal Code impugned on this application. Like the judges in those cases, I believe these sections do not violate the Charter.
[37] However, taking a holistic approach to this application, I conclude that on balance it is more prudent in these circumstances to follow Anderson. I do so for the following three reasons.
[38] First, I am principally persuaded to apply judicial comity in these circumstances because the Supreme Court will soon hear two appeals – J.J. and Reddick – involving the constitutionality of the very legislative provisions challenged on this application. The Supreme Court will, most certainly, be alive to the reality that in trial courts across Canada the issues at play in these cases are highly controversial, and the jurisprudence respecting their constitutionality is unsettled. I anticipate the court will wish to issue a decision in a timely way and provide much needed guidance to Canadian trial judges. The court may even announce the result at the conclusion of the appeal hearing with reasons to follow as was recently done in R v Chouhan, 2020 CanLII 75817 (SCC), for example. In any event, I believe it is preferable to await definitive guidance from our apex court.
[39] Second, were I to decline to follow Anderson and hold the impugned provisions to be constitutional, it would mean that the applicant’s trial, which is currently scheduled to begin in late June 2021, would proceed in a manner different from all other sexual assault trials which have been or will be held in this province post-Anderson. In my opinion, this is not a desirable result.
[40] Third, departing from Anderson and dismissing the applicant’s constitutional challenge could further delay the criminal trial in this matter which is also not optimal from the perspective of the complainant or the administration of justice, more generally. Counsel for the applicant has asserted that should I find the impugned provisions constitutional he would seek leave to appeal. As has already been noted, an appeal from such a ruling made pre-trial lies only to the Supreme Court. This is a consequence which should be avoided especially when a definitive ruling from the Supreme Court is on the horizon.
Conclusion
[41] For these reasons I apply the principle of judicial comity and will follow Anderson. Accordingly, the applicant’s constitutional challenge is allowed, and ss. 278.92(1), 278.92(2)(b) and 278.94(2) of the Criminal Code are declared to be of no force and effect.
[42] As was noted in both Anderson and C.M., the procedure set out in R v Shearing, 2002 SCC 58, [2002] 3 SCR 33 continues to operate. The applicant must adhere to this procedure before records relating to the complainant which are in his possession may be admitted into evidence at his upcoming trial.
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