R v JJ : The SCC Expands the Privacy Rights of Sexual Assault Complainants

In R v JJ (2022 SCC 28) (“JJ”), the Supreme Court of Canada (“SCC”) considered the scope and legality of Bill C-51, which attempts to remove some of the hurdles that prevent victims of sexual assault (hereinafter referred to as “complainants”) from coming forward. The Bill was enacted in 2018, as An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, and led to the inclusion of ss. 278.92-278.94 of the Criminal Code. These were the provisions that were at issue in the present case.

Background

Over the past few decades, Parliament and the SCC have gradually attempted to reshape the law as it relates to sexual assault and the subsequent trials involved. This began with the outlawing of the “twin myths” under s. 276 of the Criminal Code, specifically, the use of the complainant’s prior sexual history to suggest that, as a result of this past sexual activity, they were (1) less worthy or belief and/or (2) more likely to have consented (JJ, para 5).  Subsequently, Parliament also sought to regulate the inclusion of complainants’ private records for the purpose of attacking their character (ss. 278.1-278.91 of the Criminal Code). However, these changes did not address records that may already be in the hands of the accused. Bill C-51 and its associated provisions sought to regulate the admission of such documents in a trial on behalf of the accused. Parliament’s ultimate intention in this case involved the inclusion of an element of privacy in the production of such records in trials involving sexual offences, and was not restricted to documents only related to the complainant’s past sexual history.

How did the Bill seek to make this change? It implemented an enhanced structure of review: despite already being in the hands of the accused, the records now had to undergo a certain level of scrutiny before they were admissible in court. They were subject to a two-part inspection. First, if the records implicated twin myth reasoning under s. 276, then the requirements of s. 276 must be satisfied. Secondly, even records that were simply private in nature and that did not implicate s. 276, had to be shown to not only contain evidence that was relevant to an issue at trial, but also that this information had “significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice” (Criminal Code, s. 278.92(2)(b)).

The factors that the judge was to consider were enumerated under subsection (3), and included, among others, the right of the accused to make full answer and defence (s. 278.92(3)(a)), as well as society’s interest in encouraging the reporting of sexual assault offences (s. 278.92(3)(b)).

Thus, a two-stage test was developed: first, the determination of whether the documents in question are records for the purposes of these provisions; and if so, whether they meet the balancing test set out subsequently. Additionally, in keeping with the focus on privacy, the statute also introduced a number of other provisions that sought to protect the privacy of the accused, including the exclusion of the jury and public from a hearing to make these determinations, and the removal of the complainant as a compellable witness. The complainant was also allowed to be represented by counsel at such proceedings and was allowed to appear and make submissions themselves – this was a participatory right (Criminal Code, s. 278.94).

This was challenged in JJ, where it was argued that these provisions contravened the accused’s right to a fair trial, specifically under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (“Charter”).

The SCC’s Decision

The accused, JJ and Shane Reddick, argued that by enacting Bill C-51, Parliament had contravened the fundamental rights of the accused, including:

1. The right to silence and privilege against self-incrimination under ss. 7 and 11(c) of the Charter;
2. The right to a fair trial under ss. 7 and 11(d) of the Charter; and
3. The right to make full answer and defence under ss. 7 and 11(d) of the Charter (JJ, para 10).

The accused argued that the provisions forced the defence to:

 “…disclose both its strategy and the details of its proposed evidence to the Crown prior to trial, thereby violating the right to silence and the privilege against self-incrimination… that [they] provide complainants with advanced notice of defence evidence and the purposes for which it is being adduced. As a result, complainants will be able to tailor their responses during examination in chief and cross examination. This detracts from the right to make full answer and defence, and from the truth-seeking function of trial. Finally, complainant participation in voir dires threatens trial fairness, as it disrupts the structure of a criminal trial, inserts a third-party adversary into the process, and undermines the role of the Crown.” (JJ, para 12).

The Supreme Court ruled against the argument, upholding the validity of the provisions.

The Majority Judgement

The majority judgement, written by Chief Justice Wagner and Justice Moldaver, defended the validity of the provisions on the grounds that full answer and defence and the right to a fair trial were not simply rights to be enjoyed by the accused, but were rather available to the accused, the complainant, the community and the criminal justice system at large (JJ, para 121). They held that although of exceeding importance, the right to a fair trial had never allowed an accused to rely on any evidence but had always placed certain restrictions. Further, the accused was not entitled to favourable procedures, but merely fair procedures.

“The key principles of s. 11(d) that apply in the present case are as follows: (1) an individual must be proven guilty beyond a reasonable doubt; (2) the state must bear the burden of proof; and (3) criminal prosecutions must be carried out in accordance with due process. (JJ, para 124).

S. 11(d) does not guarantee ‘the most favourable procedures imaginable’ for the accused, nor is it automatically breached whenever relevant evidence is excluded. As this court affirmed in Darrach, an accused is not ‘entitled to have procedures crafted that take only [their] interests into account. Still less are they entitled to procedures that would distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial’. Nor is the broad principle of trial fairness assessed solely from the accused’s perspective. Crucially, as this Court stated in Mills, fairness is also assessed from the point of view of the complainant and the community” (JJ, para 125).

As a result, the majority held that the provisions in question do not impugn any constitutional provisions. In fact, the intention of the provisions is to help remove barriers that prevent sexual assault victims from coming forward. The process enumerated in ss. 278.92-278.94 does not violate the Charter rights of the accused, and as a result, the provisions are constitutional and legally valid.

The Dissenting Judgements

Justices Brown, Rowe, and Cote all dissented.

Justice Brown held that the record screening regime limited the accused’s rights under ss. 11(c), (d) and s. 7 of the Charter, and held that these limitations were disproportionate. As a result, he held that the provisions should be struck down, but only to the extent to which they related to the record screening regime, and that they should be returned to Parliament for reconsideration and reformulation in a more limited shape (JJ, paras 200-205).

Justice Rowe agreed, holding that “the legislation restricts the fair trial rights of accused persons by placing limits on how they can conduct the cross-examination of Crown witnesses and what evidence they can introduce in support of their own defence, even if that evidence is highly probative and not prejudicial to the complainants” (JJ, para 322). He proposed an analytical approach in respect of s. 7.

Justice Cote held that “the record screening regime does not come close to passing constitutional muster,” arguing for a narrower interpretation of ”record”, and that expectations of privacy were contextual and “must be assessed in light of the totality of circumstances… in the context of a trial in which the accused’s liberty is at stake, a complainant therefore does not have an objectively reasonable expectation of privacy in their communications with the accused” (JJ, paras 439, 456).

Analysis

In JJ, the SCC continues its trend of modifying evidence law in order to make the legal system more accessible for complainants. Recognising the barriers that prevent complainants from approaching the legal system and reporting such crimes, Parliament attempted to ease their entry be ensuring that their private records were not used against them in a superfluous manner. In many ways, this is an extension of the twin myth regime espoused under s. 276, which attempts to protect complainants from unjustified and unjustifiable attacks on their character or rely on outdated notions surrounding the concept of consent.

In noting that the right to a fair trial extends not only to the accused, but also to the complainant and the community at large, as well as the criminal justice system as a whole, the SCC recognises that the impact of a trial extends beyond merely the rights of the accused. Certainly, the accused occupies the most privileged position in a trial, owing to the fact that it is their rights that are most threatened, and that they are at danger of losing their liberty. However, trials are, in essence, a mode through which society has designated the finding of guilt or innocence to an impartial third party (the judge and jury) – as such, the SCC appears to imply that it is their duty to consider not only the interests of the accused, but rather those of all parties involved. While the accused’s interests take primacy, they cannot do so at the cost of undermining the system itself. Through the original promulgation of s. 276, society, through Parliament, in effect stated that the rights of the accused would not take primacy over the rights of society to have outdated notions surrounding consent vitiated; that despite the prejudice to the accused, they could not rely on such reasoning in order to make their case. This is the same idea that ties to the reasoning behind the sections in question in the present case.

In essence, R v JJ involves the SCC reiterating that, although the accused enjoys primacy in a trial, the rights of other parties must be taken into account as well. It does not place a complete barrier to the introduction of such evidence, but instead requires that it goes through an enhanced review process so as to ensure that such information is brought up for its true relevance, and not merely because the possibility of its exposure is intended to intimidate the complainant against coming forward in the first place. The SCC is conscious of the fact that historically, a large portion of sexual assault trials have been based not only on plain objective fact, but rather on social mores and a culture of silence and oppressive intimidation that is designed to prevent complainants from making complaints in the first place. R v JJ is thus a step in the right direction.