R. v. Darrach

R. v. Darrach
Collection
Supreme Court Judgments
Date
2000-10-12
Neutral citation
2000 SCC 46
Report
[2000] 2 SCR 443
Case number
26564
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 26564
Decision Content
R. v. Darrach, [2000] 2 S.C.R. 443
Andrew Scott Darrach Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Women’s Legal Education and Action Fund,
the Canadian Association of Sexual Assault Centres,
the Disabled Women’s Network of Canada and
the National Action Committee on the Status of Women Interveners
Indexed as: R. v. Darrach
Neutral citation: 2000 SCC 46.
File No.: 26564.
2000: February 23; 2000: October 12.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Fair trial ‑‑ Right to make full answer and defence ‑‑ Sexual assault ‑‑ Evidence of complainant’s sexual activity ‑‑ Whether substantive aspect of s. 276 of Criminal Code infringing accused’s right to make full answer and defence or his right to a fair trial ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 276(1) , (2) (c), 276.2(2) .
Constitutional law ‑‑ Charter of Rights ‑‑ Right to silence ‑‑ Right not to be compelled to be a witness in proceedings against oneself ‑‑ Sexual assault ‑‑ Evidence of complainant’s sexual activity ‑‑ Whether procedural aspect of s. 276 of Criminal Code infringing accused’s right to silence and his right not to be compelled to be a witness in proceedings against him ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11 (c) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 276.1(2) , 276.2(2) .
Constitutional law ‑‑ Charter of Rights ‑‑ Self‑incrimination ‑‑ Voir dire – Whether s. 13 of Canadian Charter of Rights and Freedoms protecting accused against self‑incrimination on voir dire – Criminal Code, R.S.C., 1985, c. C‑46, s. 276.2 .
The accused was charged with sexual assault and, at his trial, attempted to introduce evidence of the complainant’s sexual history. He unsuccessfully challenged the constitutionality of s. 276.1(2) (a) of the Criminal Code (which requires that the affidavit contain “detailed particulars” about the evidence), ss. 276(1) and 276(2) (c) (which govern the admissibility of sexual conduct evidence generally), and s. 276.2(2) (which provides that the complainant is not a compellable witness at the hearing determining the admissibility of evidence of prior sexual activity). At the trial proper, the complainant testified and was cross‑examined. The defence was allowed a voir dire to introduce evidence about her past sexual activity where the accused presented his own detailed affidavit but refused to be cross‑examined on it. After the voir dire, the trial judge refused to allow the accused to adduce the evidence of the complainant’s sexual history. The accused was subsequently convicted of sexual assault. The Court of Appeal dismissed the accused’s appeal, concluding that the impugned provisions did not violate the accused’s right to make full answer and defence, his right not to be compelled to testify against himself or his right to a fair trial as protected by ss. 7 , 11 (c) and 11 (d) of the Canadian Charter of Rights and Freedoms .
Held: The appeal should be dismissed.
The current version of s. 276 of the Criminal Code is in essence a codification by Parliament of the Court’s guidelines in Seaboyer. Section 276 contains both a substantive part that prevents a complainant’s past sexual activity from being used for improper purposes and a procedural part that enforces this rule. In view of Seaboyer, the constitutionality of both the rule and the procedure has already been established at a general level. Section 276 is carefully crafted to comport with the principles of fundamental justice. It protects the integrity of the judicial process while at the same time respecting the rights of the people involved.
The substantive aspect of s. 276 does not infringe the accused’s s. 7 right to make full answer and defence or his s. 11 (d) right to a fair trial. Far from being a “blanket exclusion”, s. 276(1) only prohibits the use of evidence of past sexual activity when it is offered to support two specific, illegitimate inferences, namely, that a complainant is more likely to have consented to the alleged assault and that she is less credible as a witness by virtue of her prior sexual experience. These “twin myths” are simply not relevant at trial. They are not probative of consent or credibility and can severely distort the trial process. Because s. 276(1) is an evidentiary rule that only excludes material that is not relevant, it cannot infringe an accused’s right to make full answer and defence. An accused has never had a right to adduce irrelevant or misleading evidence. Further, the fact that s. 276(2) (c) requires that the evidence tendered to support a permitted inference has “significant probative value” does not raise the threshold for the admissibility of evidence to the point that it is unfair to the accused. The word “significant”, on a textual level, is reasonably capable of being read in accordance with ss. 7 and 11 (d) and the fair trial they protect. The requirement of “significant probative value” serves to exclude evidence of trifling relevance that, even though not used to support the two forbidden inferences, would still endanger the “proper administration of justice”. In sum, s. 276 enhances the fairness of the hearing by excluding misleading evidence from trials of sexual offences. It preserves the accused’s right to adduce relevant evidence that meets certain criteria and so to make full answer and defence.
With respect to the procedural aspect of s. 276, the requirement that an accused present an affidavit and establish on a voir dire that the evidence is admissible in accordance with established criteria does not infringe his right not to be compelled to be a witness in proceedings against him, nor a right not to reveal his defence. The procedure mandated by s. 276 is consistent with the law of evidence and with Seaboyer. It is a basic rule of evidence that the party seeking to introduce evidence must be prepared to satisfy the court that it is relevant and admissible. Therefore, if the defence seeks to adduce evidence of sexual activity, it must establish that it supports at least some relevant inference. Further, the particular voir dire required by s. 276 does not offend the principle against self‑incrimination because the requirement that the accused establish a legitimate use for evidence of sexual activity does not compel him to testify. In applications under s. 276, there is free and informed consent when the accused participates in order to exculpate himself. Where there is neither a legal obligation nor an evidentiary burden on the accused, the mere tactical pressure on the accused to participate in the trial does not offend the principle against self‑incrimination or the right to a fair trial. Lastly, s. 276 does not offend the presumption of innocence because nothing in s. 276 obviates the Crown’s basic duty to establish all the elements of a sexual offence beyond a reasonable doubt.
Section 276.1(2)(a) of the Code requires the defence to enter an affidavit with “detailed particulars” of the evidence it seeks to adduce. The affidavit requirement does not infringe the accused’s right to silence. The right to silence in s. 7 comprises the right to silence before trial and the privilege against self‑incrimination at trial; it is inaccurate to speak of an absolute right to silence at the trial stage of the criminal process. Moreover, s. 276 does not require the accused to make premature or inappropriate disclosure to the Crown. The accused is not forced to embark upon the process under s. 276 at all. If the defence is going to raise the complainant’s prior sexual activity, it cannot do so in such a way as to surprise the complainant. The right to make full answer and defence does not include the right to defend by ambush.
If the trial judge is satisfied that the affidavit meets the requirements of s. 276.1, the accused has the right under s. 276.2 of the Code to an in camera hearing to decide whether the evidence is admissible. The non‑compellability of the complainant at the voir dire and the requirement to submit to cross‑examination on the affidavit do not infringe the accused’s right not to be compelled to testify at his own trial. An accused does not face a legal compulsion to testify and the tactical pressure he encounters is not unfair. The basic rules of evidence require the accused, having produced his affidavit, to submit to cross‑examination because the right to cross‑examine is essential to give any weight to an affidavit. An accused’s refusal to submit to cross‑examination on his sworn affidavit in effect reduces its weight to that of an unsworn statement, and it is well settled that an accused cannot make an unsworn statement. The Crown’s right to cross‑examine on the affidavit under s. 276 is essential to protect the fairness of the trial. Cross‑examination is required to enable the trial judge to decide relevance by assessing the affiant’s credibility and the use to which he intends to put the evidence. The cross‑examination must be confined to what is necessary to determine whether the evidence is admissible. Furthermore, on the voir dire, s. 13 of the Charter protects an accused against self‑incrimination. This privilege against self‑incrimination applies because a voir dire is an “other proceeding” within the meaning of s. 13 .
The complainant’s non‑compellability at the voir dire is based on sound legislative goals. To compel the complainant to be examined on her sexual history before the subject has been found to be relevant to the trial would invade the complainant’s privacy and discourage the reporting of crimes of sexual violence. The right to make full answer and defence, moreover, does not provide a right to cross‑examine an accuser. The fair trial protected by s. 11 (d) is one that does justice to all the parties.
Cases Cited
Applied: R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Mills, [1999] 3 S.C.R. 668; R. v. White, [1999] 2 S.C.R. 417; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Jones, [1994] 2 S.C.R. 229; Erven v. The Queen, [1979] 1 S.C.R. 926; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Underwood, [1998] 1 S.C.R. 77; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Kuldip, [1990] 3 S.C.R. 618; R. v. Cook, [1997] 1 S.C.R. 1113; approved: R. v. Stoddart (1987), 37 C.C.C. (3d) 351; R. v. Boss (1988), 30 O.A.C. 184; R. v. Frederick (1931), 57 C.C.C. 340; R. v. Tarafa, [1990] R.J.Q. 427; referred to: R. v. Lyons, [1987] 2 S.C.R. 309; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Crosby, [1995] 2 S.C.R. 912; R. v. Santocono (1996), 91 O.A.C. 26; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Whyte, [1988] 2 S.C.R 3; R. v. Dickson, [1994] 1 S.C.R. 153, aff’g (1993), 81 C.C.C. (3d) 224.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 , 13 .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 271 [am. c. 19 (3rd Supp.), s. 10 ; am. 1994, c. 44, s. 19], 276 [am. c. 27 (1st Supp.), s. 203 ; am. c. 19 (3rd Supp.), s. 12 ; rep. & sub. 1992, c. 38, s. 2], 276.1 [ad. 1992, c. 38, s. 2], 276.2 [idem], 278.3 [ad. 1997, c. 30 s. 1].
Authors Cited
Boyle, Christine, and Marilyn MacCrimmon. “The Constitutionality of Bill C‑49: Analyzing Sexual Assault As If Equality Really Mattered” (1999), 41 Crim. L.Q. 198.
Kelly, Katharine D. “‘You must be crazy if you think you were raped’: Reflections on the Use of Complainants’ Personal and Therapy Records in Sexual Assault Trials” (1997), 9 C.J.W.L. 178.
Schwartz, Hart. “Sex with the Accused on Other Occasions: The Evisceration of Rape Shield Protection” (1994), 31 C.R. (4th) 232.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
APPEAL from a judgment of the Ontario Court of Appeal (1998), 38 O.R. (3d) 1, 107 O.A.C. 81, 122 C.C.C. (3d) 225, 13 C.R. (5th) 283 (sub nom. R. v. D. (A.S.)), [1998] O.J. No. 397 (QL), dismissing the accused’s appeal from his conviction for sexual assault. Appeal dismissed.
Lawrence Greenspon and Blair Crew, for the appellant.
Rosella M. Cornaviera and Karen Shai, for the respondent.
Graham R. Garton, Q.C., and Robin Parker, for the intervener the Attorney General of Canada.
Joanne Marceau and Marie‑Claude Gilbert, for the intervener the Attorney General of Quebec.
Cynthia Devine, for the intervener the Attorney General of Manitoba.
Alexander Budlovsky and Marian K. Brown, for the intervener the Attorney General of British Columbia.
Elizabeth Thomas and Carissima Mathen, for the interveners the Women’s Legal Education and Action Fund, the Canadian Association of Sexual Assault Centres, the Disabled Women’s Network of Canada and the National Action Committee on the Status of Women.
The judgment of the Court was delivered by
Gonthier J. –
I. Introduction
1 The proper use of a complainant’s sexual history in sexual offence prosecutions was last before this Court in R. v. Seaboyer, [1991] 2 S.C.R. 577. There the Court struck down an earlier version of s. 276 of the Criminal Code, R.S.C., 1985, c. C‑46 , because it excluded all evidence about a complainant’s sexual history from the judicial process, subject to three exceptions. The majority found that s. 276 could potentially exclude evidence of critical relevance (at p. 616). Parliament then enacted the current s. 276 in Bill C-49 in 1992 (now S.C. 1992, c. 38). It essentially codifies the decision in Seaboyer and provides a mechanism for the trial judge to determine the admissibility of evidence of prior sexual activity.
2 The current s. 276 categorically prohibits evidence of a complainant’s sexual history only when it is used to support one of two general inferences. These are that a person is more likely to have consented to the alleged assault and that she is less credible as a witness by virtue of her prior sexual experience. Evidence of sexual activity may be admissible, however, to substantiate other inferences. Sections 276.1 and 276.2 provide a procedure to determine the admissibility of such evidence. In brief, the defence must file a written affidavit; if the judge finds that it discloses relevant evidence capable of being admissible under s. 276(2) , the judge will hold a voir dire to determine the admissibility of the evidence the defence seeks to adduce.
3 The accused challenges the constitutionality of parts of s. 276 under the Canadian Charter of Rights and Freedoms and the way in which they were interpreted by the trial judge. In my view, his challenge fails. The current version of s. 276 is carefully crafted to comport with the principles of fundamental justice. It protects the integrity of the judicial process while at the same time respecting the rights of the people involved. The complainant’s privacy and dignity are protected by a procedure that also vindicates the accused’s right to make full answer and defence. The procedure does not violate the accused’s s. 7 Charter right to a fair trial nor his s. 11 (c) right not to testify against himself or his s. 11 (d) right to a fair hearing. For the reasons below, I find that the impugned sections of the law are constitutional and that their application by the trial judge was beyond reproach.
II. Facts
4 The accused met the complainant in October 1991, when she began working at the retail store where he worked as a supervisor. They became friends and began a sexual relationship. After their sexual relationship ended, they saw each other casually, largely because they lived two doors apart on the same street. At some point, the accused lent the complainant $20. On November 6, 1992, he called her at work (he no longer worked there) and asked to be repaid. The complainant met him that night and, later that evening, they walked home together. The accused asked her to come into his apartment. Once inside, the accused sexually assaulted the complainant.
5 The trial judge accepted the complainant’s testimony about the assault as “clear, she was consistent and straightforward”. It was uncontradicted and unshaken by cross‑examination. The accused called no evidence and made no submissions. All the elements of the offence were proven by the Crown and the accused was convicted of sexual assault under s. 271 of the Criminal Code . He was sentenced to nine months’ imprisonment.
III. Judgments Below
A. Ontario Court of Justice (Provincial Division)
6 The trial judge, Judge Blishen, made many rulings in the course of the trial, which lasted over a year. Most were about the constitutionality of subsections of s. 276, all of which she upheld. She also ruled on the procedure to be followed on applications under s. 276.1 and s. 276.2 to introduce evidence of the complainant’s prior sexual activity. I shall discuss only those findings that were appealed before this Court. The correctness of the others is not in dispute. The operation of the legislation is best understood in the context of the proceedings, so I shall discuss the issues in the order in which they arose at trial.
7 The accused tried early on to introduce evidence about the complainant’s sexual history in the form of a brief affidavit signed by a lawyer at the firm by which he was represented. He also initially challenged the constitutionality of s. 276.1(2) (a), which requires that the affidavit contain “detailed particulars” about the evidence, on the grounds that it violates his rights under ss. 7 , 11 (c) and 11 (d) of the Charter . The trial judge ruled on December 20, 1993 that the affidavit must contain detailed particulars if she is to be able to decide whether to proceed to a voir dire. Although this may require the accused to reveal his defence, the rule is constitutional on the basis of Seaboyer and consistent with the procedure for Charter applications. Before she would require the detailed particulars, however, the trial judge had to decide the constitutionality of the sections that govern the admissibility of evidence of sexual activity generally, namely s. 276(1) and s. 276(2) (c).
8 The trial judge upheld the constitutionality of ss. 276(1) and 276(2) (c) on February 3, 1994 ((1994), 17 O.R. (3d) 481, at pp. 493 and 497). She found that these sections are faithful to Seaboyer and that they are capable of being read so as not to offend the Constitution. Section 276(1) prohibits only general inferences about consent and credibility. Evidence to support specific inferences may be admissible if it meets the criteria in ss. 276(2) and 276(3) . Section 276(2) (c) requires that evidence have “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice”. The trial judge upheld this section because it too faithfully “mirror[s]” Justice McLachlin’s (as she then was) requirement in Seaboyer that the trial judge exercise discretion to admit only evidence with “sufficient probative value” (p. 495). The balance between protecting the accused’s right to present evidence and ensuring that the court is not misled by highly prejudicial material is properly struck. Last, Seaboyer contemplated that the accused may have to testify on a voir dire before the evidence of sexual activity could be admitted. This requirement does not offend s. 7 or s. 11 (c).
9 On May 3, 1994, the trial judge confirmed that the Crown has the right to see the particulars and to review them with the complainant “to properly prepare a response” for the voir dire. The accused’s lawyer had argued against this on the grounds that the element of surprise was essential to his cross-examination, but the trial judge rejected this notion. Part of the purpose of the s. 276.1 proceeding was to prepare the witness for a potential intrusion into her privacy.
10 The trial judge then ruled on a new information and belief affidavit signed by a lawyer and submitted on May 10, 1994. The threshold test in s. 276.1(4)(c) for admitting the affidavit is whether the evidence is “capable of being admissible under s. 276(2) ” ([1994] O.J. No. 3162 (QL), at para. 19). She found that there was no requirement for a hearing at this stage; the point of the two-stage process is to have a hearing at the second stage, and only if it is warranted (para. 21). There is inconsistent case law on the application of the test to the affidavit. The trial judge concluded that the proper approach was to ask “firstly, whether [the evidence] was barred absolutely by s. 276(1), and secondly, whether it was capable of meeting the criteria outlined in s. 276(2) , and the general concerns and interests of justice as outlined in s. 276(3)” (para. 28).
11 The affidavit met this test and the accused was allowed to proceed to a voir dire. The defence then challenged the non-compellability of the complainant at the voir dire according to s. 276.2(2) . The trial judge upheld the constitutionality of this section on May 17, 1994, on the basis that in the description of the procedure in Seaboyer, “[t]he complainant is specifically not included, and the accused is included” as possible witnesses at the voir dire ([1994] O.J. No. 3161 (QL), at para. 11). To permit a cross-examination of the complainant before the affidavit has been ruled admissible would defeat the purpose of s. 276 . The complainant’s right to equality in ss. 15 and 28 of the Charter should be taken into account when putting reasonable limits on her cross-examination. This provision does not violate the accused’s s. 7 or s. 11 (c) rights not to be compelled to testify against himself because his decision to put her sexual history in issue was a tactical one and not a legal compulsion.
12 In her next ruling, on May 30, 1994, the trial judge decided how the voir dire in s. 276.2(2) should be conducted ([1994] O.J. No. 3160 (QL)). First she held that an information and belief affidavit, such as the one she had accepted at the first stage, would not suffice at the second stage. “[S]ome direct evidence” must be led (para. 11). She accepted the analogy to Charter applications, where “the onus will be on the accused, and the burden of proof will be on a balance of probabilities” (para. 15). To meet the mandate of the legislation and to determine admissibility properly, the trial judge also found that the Crown had the right to cross-examine the accused on the evidence he sought to adduce. The legislation requires “some weighing and some assessing of the evidence” (para. 20).
13 The court proceeded with the trial proper. The complainant was cross-examined and the defence renewed its application for a voir dire to introduce evidence about her past sexual activity. At the voir dire, the accused presented his own detailed affidavit but refused to be cross-examined on it. The trial judge found that without cross-examination, “the court can not attribute much, if any, weight to such evidence” because it is impossible to assess its probative value and prejudicial effect as the legislation requires. There were other problems with the affidavit. The trial judge also found that the sexual activity described in the affidavit was “in no way corroborated by the complainant”. The accused failed to lead any evidence “as to a link between the proposed evidence ... and the possible defence of honest mistaken belief in consent. He has provided no evidence as to his own state of mind resulting from the alleged previous sexual conduct”. The trial judge refused to admit the evidence of prior sexual activity and the trial ended.
B. Ontario Court of Appeal
14 The Court of Appeal upheld the trial judge’s findings about the constitutionality of the law and about the procedure the law requires: (1998), 38 O.R. (3d) 1. The law does not violate the accused’s right to make full answer and defence, his right not to be compelled to testify against himself or his right to a fair trial as protected by ss. 7 , 11 (c) and 11 (d) of the Charter .
15 The Court of Appeal affirmed that s. 276(1) is not a blanket prohibition on evidence of a complainant’s sexual history. The requirement of “significant probative value” in s. 276(2) (c) mirrors Seaboyer and can be read in accord with ss. 7 and 11 (d). Because the evidence at issue will “inherently” prejudice the complainant, its probative value will have to be high in any case, even at common law. With respect to s. 276.1(2) (a), the Court of Appeal agreed that requiring detailed particulars in the affidavit does not violate the accused’s s. 7 or s. 11 rights. They list several other contexts in which the accused may have to disclose a defence. Last, the Court of Appeal agreed that the complainant is not compellable in law at the hearing.
16 The Court of Appeal affirmed that the accused’s right to make full answer and defence should be protected as fully as possible while preserving the complainant’s legitimate privacy interest. Recognizing interests other than the accused’s does not in itself infringe the Constitution. “[A] decision [of a judge] could ... deny an accused the right to a fair trial. In such a case it would be the decision, not the legislation, which infringed the accused’s constitutional rights” (p. 17).
IV. Relevant Statutory Provisions
17 Criminal Code, R.S.C., 1985, c. C-46
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173 , 271 , 272 or 273 , evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2 , that the evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
276.1 (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 276.2 to determine whether evidence is admissible under subsection 276(2) .
(2) An application referred to in subsection (1) must be made in writing and set out
(a) detailed particulars of the evidence that the accused seeks to adduce, and
(b) 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) 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) .
276.2 (1) At a hearing to determine whether evidence is admissible under subsection 276(2) , the jury and the public shall be excluded.
(2) The complainant is not a compellable witness at the hearing.
(3) At the conclusion of the hearing, the judge, provincial court judge or justice shall determine whether the evidence, or any part thereof, is admissible under subsection 276(2) and shall provide reasons for that determination, and
(a) where not all of the evidence is to be admitted, the reasons must state the part of the evidence that is to be admitted;
(b) the reasons must state the factors referred to in subsection 276(3) that affected the determination; and
(c) where all or any part of the evidence is to be admitted, the reasons must state the manner in which that evidence is expected to be relevant to an issue at trial.
(4) The reasons provided under subsection (3) shall be entered in the record of the proceedings or, where the proceedings are not recorded, shall be provided in writing.
Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
V. Issues
18 The points in issue are, by order of Lamer C.J., the following constitutional questions:
1. Do ss. 276.1(2)(a) and 276.2(2) of the Criminal Code of Canada infringe upon an accused's right to silence and the right not to be compelled to be a witness in proceedings against himself in respect to the offence pursuant to s. 7 and/or s. 11 (c) of the Canadian Charter of Rights and Freedoms ?
2. If the answer to question number one is yes, are the infringements demonstrably justified in a free and democratic society pursuant to s. 1 of the Charter ?
3. Do ss. 276(1), 276(2)(c) and 276.2(2) of the Criminal Code of Canada infringe upon an accused's right to make full answer and defence pursuant to s. 7 and/or s. 11 (d) of the Charter ?
4. If the answer to question number three is yes, are the infringements demonstrably justified in a free and democratic society pursuant to s. 1 of the Charter ?
VI. Analysis
19 In Seaboyer, the Court unanimously affirmed the legitimate purposes of s. 276 as being to protect the integrity of the trial by excluding evidence that is misleading, to protect the rights of the accused as well as to encourage reporting of sexual offences by protecting the security and privacy of complainants (at p. 606). The majority found that the earlier version of s. 276 was unconstitutional because it was a blanket exclusion of evidence of sexual activity, subject to three categorical exceptions. It did not allow for the potential multiple relevance of this evidence or for the exercise of judicial discretion to determine its relevance (at p. 618). The law was struck down and in its place the Court provided guidelines for the admission of evidence designed to remedy these defects while preserving the intent of s. 276 .
20 The current version of s. 276 is in essence a codification by Parliament of the Court’s guidelines in Seaboyer. It contains substantive sections that prevent evidence of a complainant’s past sexual activity from being used for improper purposes and procedural sections that enforce this rule. The constitutional challenge in the case at bar focuses on four aspects of s. 276 ; two of them are substantive and two are procedural. The ultimate justification for all four is that they are found in some form in the Seaboyer guidelines (at p. 635). At a general level, the constitutionality of both the rule and the procedure has already been established. The procedure in particular was not discussed in any detail in Seaboyer, however, so I shall review why these rules, in the form in which they were ultimately enacted by Parliament, are constitutional.
21 The accused challenges the constitutionality of s. 276 on two grounds. He claims that the substantive sections that exclude evidence violate his s. 7 right to make full answer and defence and his s. 11 (d) right to a fair trial and the presumption of innocence. As I show below, his argument fails because the legislation enhances the fairness of the hearing by excluding misleading evidence from trials of sexual offences. It preserves the accused’s right to adduce relevant evidence that meets certain criteria and so to make full answer and defence.
22 The accused’s second challenge is that the procedural sections violate his right not to be compelled to be a witness in proceedings against him, as guaranteed by ss. 7 and 11 (c). The arguments relating to self-incrimination fail because s. 276 does not create a legal compulsion to testify. The accused participates voluntarily in order to exculpate himself. Because he seeks to introduce evidence about the complainant’s sexual activity, it is up to him to show how it is relevant. The presumption of innocence is preserved because the Crown still bears the burden of proving all the elements of the offence. His constitutional rights are not infringed by either the substantive or the procedural parts of s. 276 . The balance struck in Seaboyer among the interests of justice, the accused and the complainant is preserved in the current legislation.
A. The Approach to Sections 7 , 11 (c) and 11 (d) of the Charter
23 The accused claims that his right not to be compelled to testify against himself as protected by s. 11 (c) and his right to a fair trial with the presumption of innocence as protected by s. 11 (d) are infringed by s. 276 . He therefore claims that he is deprived of his liberty in a way that is not in accordance with the principles of fundamental justice, contrary to s. 7 of the Charter . In R. v. Mills, [1999] 3 S.C.R. 668, the Court dealt with a claim that s. 11 (d) was violated in combination with s. 7 , and the Court analysed the issues under the rubric of s. 7 on the grounds that the fair trial specifically protected by s. 11 (d) was itself a principle of fundamental justice under s. 7 . In R. v. White, [1999] 2 S.C.R. 417, at paras. 40 and 44, Iacobucci J. described s. 11 (c) as a procedural protection that underlies the principle against self-incrimination, which is also a principle of fundamental justice under s. 7 . In both cases, the Court analysed the rights involved in the context of s. 7 .
24 These cases are part of the Court’s jurisprudence that has consistently held that the principles of fundamental justice enshrined in s. 7 protect more than the rights of the accused. As McLachlin J. wrote in Seaboyer, supra, at p. 603:
The principles of fundamental justice reflect a spectrum of interests, from the rights of the accused to broader societal concerns.... The ultimate question is whether the legislation, viewed in a purposive way, conforms to the fundamental precepts which underlie our system of justice.
One of the implications of this analysis is that while the right to make full answer and defence and the principle against self-incrimination are certainly core principles of fundamental justice, they can be respected without the accused being entitled to “the most favourable procedures that could possibly be imagined” (R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362; cited in Mills, supra, at para. 72). Nor is the accused entitled to have procedures crafted that take only his interests into account. Still less is he entitled to procedures that would distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial.
25 In Seaboyer, the Court found that the principles of fundamental justice include the three purposes of s. 276 identified above: protecting the integrity of the trial by excluding evidence that is misleading, protecting the rights of the accused, as well as encouraging the reporting of sexual violence and protecting “the security and privacy of the witnesses” (p. 606). This was affirmed in Mills, supra, at para. 72. The Court crafted its guidelines in Seaboyer in accordance with these principles, and it is in relation to these principles that the effects of s. 276 on the accused must be evaluated.
26 The Court in Mills upheld the constitutionality of the provisions in the Criminal Code that control the use of personal and therapeutic records in trials of sexual offences. The use of these records in evidence is analogous in many ways to the use of evidence of prior sexual activity, and the protections in the Criminal Code surrounding the use of records at trial are motivated by similar policy considerations. L’Heureux-Dubé J. has warned that therapeutic records should not become a tool for circumventing s. 276 : “[w]e must not allow the defence to do indirectly what it cannot do directly” (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 122, and R. v. Osolin, [1993] 4 S.C.R. 595, at p. 624). Academic commentators have observed that the use of therapeutic records increased with the enactment of s. 276 nonetheless (see K. D. Kelly, “‘You must be crazy if you think you were raped’: Reflections on the Use of Complainants’ Personal and Therapy Records in Sexual Assault Trials” (1997), 9 C.J.W.L. 178, at p. 181).
27 The provisions that control the use of personal records contain a two-step procedure like that in s. 276 . The defence must first apply in writing under s. 278.3 with grounds to establish that the record is “likely relevant”. On a voir dire, the judge may order the holder of the record to produce it if the defence can demonstrate that the record is “likely relevant” and “is necessary in the interests of justice”. The judge then reviews the material and decides whether or not to produce it to the accused. The Code contains a list of factors to help the judge determine the relevance of the record, much like the list in s. 276 to help the trial judge exercise her discretion to admit evidence of prior sexual activity.
28 The constitutional issue in Mills was analogous to that in the present case bec