IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  The issue before the court is whether a complainant in a sexual assault prosecution has standing at an application by an accused pursuant to s. 278.93 of the Criminal Code seeking a hearing under s. 278.94 to determine the admissibility of sensitive evidence relating to the complainant.

[2]           The matter requires an interpretation of two procedural provisions of the Code, ss. 278.93 and .94, which came into force in December 2018 and introduced a new procedure with regards to the admissibility of evidence. The amendments are the latest efforts by Parliament to address the admissibility of certain forms of evidence in a sexual assault prosecution, in particular, records in the possession of the accused relating to the complainant and evidence with respect to sexual activity of the complainant other than the sexual activity that forms the subject matter of the prosecution.

[3]           The accused in this matter is charged with two counts of sexually assaulting the complainant on two separate occasions approximately three weeks apart in March 2019. The accused has filed notices seeking to have records in his possession relating to the complainant admitted into evidence at the trial pursuant to s. 278.92 of the Code and, as well, an order that evidence with respect to sexual activity of the complainant other than the sexual activity that forms the subject matter of the charges be admitted pursuant to s. 276(2) of the Code.

[4]           The procedures to be followed to determine the admissibility of such evidence are set out in the recently proclaimed ss. 278.93 and .94 of the Code. The sections read as follows:

[5]           Counsel for the complainant was appointed with respect to the two applications and sought to make representations on behalf of the complainant at the application mandated by s. 278.93 of the Code to determine whether the evidence sought to be adduced is capable of being admitted. A preliminary issue arose as to whether the complainant had standing at the application pursuant to s. 278.93 or whether she is only able to appear and make submissions at a hearing pursuant to s. 278.94 if the court grants the application pursuant to s. 278.93 and proceeds to a hearing to determine the admissibility of the evidence under s. 278.94.

[6]           A pretrial conference was held to determine a schedule to hear the issue as well as others raised in this prosecution. At the pretrial conference, counsel for the complainant indicated the complainant was no longer seeking standing at the application pursuant to s. 278.93. Crown counsel was not prepared to acknowledge that the complainant had no standing, resulting in counsel for the accused seeking a ruling on the issue in order to provide more certainty on the issues and determine how best to proceed.

[7]           Crown counsel, counsel for the accused, and counsel for the complainant filed written submissions on the issue, with Crown counsel submitting that the complainant ought to have standing to make submissions at the s. 278.93 application. Counsel for the accused and counsel for the complainant are in agreement that the complainant ought not to have standing at this stage of the process, but only at the s. 278.94 hearing if one is granted.

[8]           It is worth noting at the outset that the recently proclaimed provisions have been quite contentious since coming into force and continue to be the subject of much litigation across the country both with respect to their intent and constitutional legitimacy; see R. v. J.J., 2020 BCSC 29 and 2020 BCSC 349, R. v. W.M., 2019 ONSC 4270, R. v. A.C., 2019 ONSC 4270, R. v. Anderson, 2019 SKQB 304, and R. v. A.M, 2019 SKPC 46.

[9]           With respect to the specific issue before me, numerous courts have addressed the recently enacted procedure and all have concluded, without the matter being contested, that the amendments create a two-stage process and the complainant is not to become engaged at the initial stage under s. 278.93 as the complainant "is given no rights at the hearing held under s. 278.93 to determine whether to order a s. 278.94 hearing", R. v. Boyle, 2019 ONCJ 11, para. 10; also see R. v. J.E., 2019 NLSC 134, R. v. Francis, 2019 SKPC 67 and R. v. Bethinger, 2020 ABQB 253. I have not been provided any case law where the complainant has been granted standing at the application pursuant to s. 278.93. As far as I am aware the specific issue of the complainant's standing at the s. 278.93 application had never been contested before the courts.

[10]        Counsels’ submissions before me addressed the decision in this province of R. v. R.M.R., 2019 BCSC 1093, which considered the issue of a complainant's standing to make submissions at a hearing to determine whether text messages were "records" as defined in s. 278.1 of the Code and also whether the texts, if found to be records, should be admitted under s. 278.92(2). The court concluded the complainant had standing on the application to determine if the texts were records and ultimately admitted the texts as evidence under s. 278.92 after hearing from the parties including the complainant.

[11]        The reasons in R. v. R.M.R. do not address the specific issue before me of a complainant's standing on an application pursuant to s. 278.93 and whether the complainant should be involved in the initial application to determine if the evidence sought to be adduced is capable of being admitted under s. 278.92(2). In discussing s. 278.93 and .94, the reasons indicate:

[12]        I do not understand this statement to suggest that s. 278.93 and s. 278.94 do not require the court to first determine if the application under s. 278.93 should proceed to a hearing under s. 278.94, but only that these sections do not create a process involving two separate hearings in camera as is required by ss. 278.3 to 278.7. The reasons do not discuss the relationship between s. 278.93 and .94, nor whether a complainant has standing at the 278.93 application as such an analysis was not required given the issues before the court.

[13]        That no courts have concluded the complainant ought to have standing at the application stage under s. 278.93 is not surprising given the language of the legislative provisions and the legal history surrounding the troublesome evidentiary issues engaging the complainant's security and privacy interests in sexual assault prosecutions. After reviewing the provisions of the Code, the jurisprudence addressing the provisions, and the legal history and policy considerations engaged in addressing the admissibility of sensitive evidence in sexual assault prosecutions, I am satisfied that it was never the intention of Parliament, nor should it be the practice of the courts, to engage the complainant at the initial application pursuant to s. 278.93.

[14]        In reviewing the new provisions generally, it is clear a two-stage process has been created for the court to follow when determining the admissibility of evidence relating to both records in the possession of the accused relating to the complainant (s. 278.92) and evidence of sexual activity of the complainant other than that forming the subject matter of the charge (s. 276(2)). In the first stage, s. 278.93 requires the accused to satisfy the court, among other things, that the evidence sought to be adduced is capable of being admissible. If satisfied, the court must then proceed to the second stage and hold a hearing pursuant to s. 278.94 to determine whether the evidence is admissible.

[15]        In this regard, s. 278.93 is not ambiguous in stating that in order for the judge to hold a hearing pursuant to s. 278.94 to determine the admissibility of evidence, the judge must be satisfied that the accused has met the procedural requirements and that "the evidence sought to be adduced is capable of being admissible" under s. 276(2) or s. 278.92(2). Upon being satisfied, the judge "shall grant the application and hold a hearing under s. 278.94." In short, a hearing under s. 278.94 can only proceed once the accused has satisfied the judge of the requirements set out in s. 278.93(4) and the judge grants the accused's application to hold the hearing under s. 278.94.

[16]        Although of marginal weight in determining Parliament's intent, the legislative summary issued by the Federal Government with the release of the amendments succinctly sets out the two-stage process contemplated by s. 278.93 and .94. It reads as follows:

[17]        In essence, the application pursuant to s. 278.93 provides the court an opportunity to screen these sensitive applications at the outset to ensure that an admissibility hearing, often lengthy and contentious, is not embarked upon until such time as the court is satisfied by the accused at this initial screening stage that the evidence sought to be adduced is capable of being admitted at the trial. Only if the accused satisfies the judge and meets this initial threshold will the court proceed to the second stage set out in s. 278.94 and hold a hearing to determine if the evidence is admissible after considering the various factors referred to in s. 276(3) and s. 278.92(3).

[18]        The central issue before me is whether the complainant has standing to participate in the initial application under s. 278.93.

[19]        As indicated earlier, I am satisfied that a common-sense reading of the provisions, coupled with an understanding of the history, context, and purpose underlying the procedural changes, supports the conclusion that Parliament did not intend for the complainant to be engaged at the initial application under s. 278.93.

[20]        The provisions of the Code do not contemplate the complainant's involvement at the initial application. Section 278.93 is silent on the issue of whether the complainant is able to participate during the screening stage of the procedure. Conversely, s. 278.94, which addresses the hearing at the second stage, specifically stipulates the complainant may appear and make submissions at this stage and places an obligation on the presiding judge to inform the complainant of the right to be represented by counsel at the s. 278.94 hearing.

[21]        Given the clear indication in s. 278.94(2) that the complainant has a right to appear and make submissions at the hearing stage, one would have thought that had Parliament intended the complainant to have similar standing at the screening stage under s. 287.93, a similar if not identical provision would have been contained in this section. No doubt the court must be extremely cautious when invoking the implied exclusionary rule of statutory interpretation, expressio unius est exclusio alterius, in that while, "It is often a valuable servant, it is a dangerous master to follow. Much depends upon the context."; Turgeon v. Dominion Bank, 1929 CanLII 47 (SCC), [1930] S.C.R. 67, p.72

[22]        The context addressed below satisfies me that Parliament did not provide the complainant standing in an application under s. 278.93 as it did not want the complainant to become involved at the initial screening stage of the legislated process. Moreover, this interpretation is supported by the general rule of statutory interpretation that Parliament's intention is discovered by looking at the words of the provision informed by its history, context, and purpose, R. v. Mabior, 2012 SCC 47, para. 20

[23]        Construing the provisions to not provide the complainant standing at the initial application is consistent with the wording of the provisions as well as Parliament's various responses to address the troubled history of the treatment of sexual assault complainants in our criminal justice system and its efforts to limit the complainant's exposure to abusive tactics employed by the defence. Upon reading the amendments in the context of the jurisprudence over the past several decades, it is clear that Parliament's intent in enacting s. 278.93 of the Code was to create a screening stage whereby, before the complainant is brought into the evidentiary dispute, the court must conduct a preliminary review of the issue to determine if there is any merit to the position advanced by the accused, and only upon the court determining that the evidence sought to be adduced by the accused is capable of being admitted, is the complainant engaged and given the opportunity to make representations to the court on the evidentiary issues at the hearing held pursuant to s. 278.94.

[24]        The extensive jurisprudence from the Supreme Court of Canada emphasizes that one of the central purposes of the evidentiary provisions relating to sexual assault prosecutions is to protect the complainant's dignity, privacy, security of the person, and equality rights and prevent the use of irrelevant and misleading evidence (“rape myths”) in the trial which had historically been employed to discriminate against the complainant and adversely impact the search for justice and truth. The shameful history of this practice in our justice system is well documented in the jurisprudence and has resulted in extensive efforts by the courts and Parliament to arrest the practice and provide a more sensible and sensitive procedure to accommodate the court's fact-finding mission and not subject the complainant to abuses. (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 R. v. Darrach, 2000 SCC 46 (CanLII), [2000] 2 S.C.R. 443, and R. v. Shearing, 2002 SCC 58)

[25]        Efforts to protect the complainant's privacy, dignity, security, and equality rights, while belated, have been significant, resulting in extensive litigation which continues today with the recent amendments. The efforts have been directed at preventing the unfair and harmful treatment complainants were often subjected to in sexual assault prosecutions.

[26]        The efforts have attempted to address the complainant's fear of further victimization at the hands of the justice system which provided a disincentive to report sexual assault offences. And, if a report was filed and a prosecution did proceed, the abuses often distorted the trial exercise and resulted in unwarranted torment, if not harm, to the complainant. The spectacle of the accused pursuing the admission of evidence with little probative value, yet highly prejudicial to the complainant's reputation and privacy, was often traumatizing to the complainant. While the evidence of other sexual activity and personal information of the complainant was on occasions relevant, it was not uncommon for the accused to seek admission of such evidence simply to prejudice the complainant and ultimately distort the truth-seeking exercise at the trial.

[27]        Over the years, Parliament and the courts have recognized the disadvantaged position of a complainant in a sexual assault prosecution and have taken steps to address the often irrelevant and unfair attacks on the character, privacy, and security of the complainant. The efforts have focused on many injustices including the harassment of the complainant by the improper defence tactics engaged.

[28]        There was recognition that the tactics, even when unsuccessful, were often unsettling, if not harmful, to the complainant and constituted harassment resulting in humiliation, intimidation, and injury to the complainant. In some cases, the objective of the tactics was no more than to cause upset and throw the complainant off balance. The prosecution of a sexual assault allegation is "not an occasion for putting the complainant's lifestyle and reputation on trial," and a "complainant should not be unduly harassed or pilloried to the extent of becoming a victim of an insensitive justice system", R. v. Osolin, pp. 672 and 669. The Supreme Court of Canada recognized that, "Cross-examination techniques in sexual assault cases that seek to put the complainant on trial rather than the accused are abusive and distort rather than enhance the search for the truth", R. v. Shearing, para. 76.

[29]        In short, Parliament and the courts have endeavoured to ensure the justice system would no longer permit unwarranted and unfounded attempts to invade the complainant's privacy or challenge their security or character.

[30]        Sections 278.92, .93, and .94 are the latest efforts by Parliament to provide further safeguards to prevent the abuses which complainants have historically been subjected to during sexual assault prosecutions and ensure the court properly manages the delicate balance of providing the accused the right to make full answer and defence while ensuring the complainant is not subjected to unwarranted invasions into their privacy and attacks on their dignity and security. Section 278.93 further addresses the abhorrent practices addressed by McLachlin J., as she then was, in R. v. Seaboyer where she declared:

[31]        The fundamental purpose of the screening stage created by s. 278.93 is to ensure the expedition’s vessel does not leave the dock, potentially disrupting the trial process and causing needless anxiety, if not harm, to the complainant, until the judge is satisfied that there is a valid reason to embark on the expedition. The justice system must ensure the difficult position of the complainant is not compounded by frivolous and harmful evidentiary applications attacking the complainant's privacy, dignity, and security.

[32]        A complainant should not be engaged in or troubled by evidentiary applications with respect to their sexual history or personal records until the court is satisfied the accused has reached the threshold set out in s. 278.93. This interpretation of the provisions is of benefit to the complainant, the accused, and the trial process.

[33]        There can be no doubt that sparing the complainant the anxiety and aggravation of engaging in a meritless application by the accused attacking the complainant's character and privacy is beneficial to the complainant. As well, delaying the complainant's engagement until the s. 278.94 hearing is ordered is of no prejudice to the complainant as the burden on the accused is much greater at the s. 278.94 hearing.

[34]        The onus on the accused at the s. 278.94 hearing is not merely to satisfy the court that the evidence is capable of being admitted, but that the evidence is admissible and it meets the conditions set out in s. 276(2) or 278.92(2) after considering the numerous factors enumerated respectively in ss. 276(3) or 278.92(3). The complainant is in a much stronger position at the second stage to contest the application to introduce evidence. Whatever successful argument(s) the complainant could have advanced at the initial hearing pursuant to s. 278.93 would no doubt be successful at the hearing pursuant to s. 278.94. The complainant's participation at the screening stage would serve little benefit to the complainant and has the potential of causing them needless upset if not harm.

[35]        As well, the provisions, while protecting the complainant from being needlessly engaged in a frivolous application, also may assist the accused. As much of the recent litigation illustrates, accused persons are very concerned that their efforts to establish a probative purpose to the sensitive evidence requires a disclosure to the complainant of the defence and the intended tactics, perhaps allowing the complainant to subconsciously or otherwise alter their evidence to address the accused's defence. In this regard, the screening stage introduced by s. 278.93 avoids the involvement of the complainant until the threshold is met to proceed to a hearing pursuant to s. 278.94. The process protects the accused from disclosing to the complainant any information relating to the defence until such time as the court determines a hearing is necessary, R. v. Boyle, para. 21.

[36]        Lastly, and not insignificantly, s. 278.93 provides for procedural efficiencies permitting the court and the parties to identify frivolous applications and dismiss same early on in the proceedings, thus avoiding lengthy and costly interruptions of the trial process. In this regard, I understand from Crown counsel before me that a process has been developed in this province whereby once an application pursuant to s. 278.93 is received by the Crown, steps are taken to engage the complainant with the appointment of counsel for legal representation and ensure the necessary funding is provided. Indeed, that is what I understand to have occurred in this matter and why counsel for the complainant became involved at this initial stage. For the various reasons provided herein, I do not believe engagement of the complainant ought to occur until the court determines a hearing pursuant to s. 278.94 is necessary.

[37]        In conclusion, I am satisfied, based on the clear wording of the amendments, the applicable jurisprudence, and the policy considerations surrounding the admission of sensitive evidence engaging a complainant's privacy and security interests, that s. 278.93 is designed to allow the court to screen applications without engaging the complainant until the accused satisfies the court it has met the required threshold, in particular, that the evidence sought to be adduced is capable of being admitted. I am satisfied that Parliament did not intend nor would it be in the interests of the complainant, the accused, or the administration of justice for the complainant to have standing at the initial application pursuant to s. 278.93.