R v Boyle – Unreported – January 13, 2019 – Ottawa – (OCJ – Doody):

[13] The defendant takes the position that he is not required to provide the com­ plainant with the application record, but submits that Crown counsel has the discretion to determine whether and what to disclose and in what manner.

[14] I have concluded that the complainant must be provided with the defendant’s application record. I reach that conclusion for the following reasons.
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[28] These principles require that I interpret the statutory language ins. 278.94(2) which gives to complainants the right to “appear and make submissions” at the s. 278.94 hearing, commencing with the “fundamental question of what Parlia­ ment intended”, considering the language of the provision, its context, and its purpose.

[29] The section states that complainants have the right to appear and make submissions at the hearing. It must have been intended that those submissions be useful. The issue at the hearing is, ass. 276(2) states, whether the evidence the accused seeks to adduce is relevant, is not being adduced for the purpose of supporting one of the “twin myths” set out in s. 276(1), and has “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.”
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[32] The language of the section must be interpreted in a manner consistent with that purpose. To put it another way, the rights of appearance and making sub­ missions must be meaningful. In order to be able to make meaningful submis­ sions, the complainant must be able to learn what evidence is proposed to be admitted, the purported relevance of that evidence, and the evidence relied up­ on to support its admissibility. Without that information, the complainant would be unable to make meaningful submissions. To hold otherwise would be in­ compatible with the object of the enactment. It would, to a significant extent, de­ feat its purpose.
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[34] Allowing the complainant to see the application record before the hearing does not offend the accused’s Charter rights. Nor would interpreting the right to appear and make submissions so as to require knowledge of the written record be contrary to Charter values.

[35] Nor is disclosure of the defence position in pre-trial applications highly unu­ sual. It is routine for the defence to set out its position, and provide supporting evidence if appropriate, in pre-trial Charter applications. Applications for pro­ duction of third party records under s. 278.2 require an evidentiary foundation and an explanation of the grounds upon which the defendant relies for his submission of likely relevance. Those records are served on the complainant as well as the Crown.
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[42] The section in issue gives complainants a right to appear and make submis­ sions. That right, to be meaningful, requires that they be able to see, hear, and read the basis of the application. The right is the complainant’s. It is not a right which can be diminished or attenuated by any state actor, including the Crown. Prior to the enactment of the new section, the contents of the application could be shared with the complainant should Crown counsel choose to exercise their discretion to do so. The new section is different. What was previously a possi­ bility is now a right.

[43] In my view, the complainant is entitled to see the application record of the de­ fendant sufficiently in advance of the hearing to allow her to prepare and make meaningful submissions. I need not rule now on the manner in which that is to be accomplished. In this case, the complainant already has counsel. He can obtain the record from either Crown counsel or defence counsel.