This case is about the constitutionality of certain rules of evidence in criminal sexual assault cases. The rules in question—ss. 278.92 to 278.94 of the Criminal Code—limit the ability of an accused person to use documents in their possession that contain private information relating to the complainant (the person who reported the sexual assault). Examples of such private documents range from the complainant’s health records to text messages sent by the complainant to the accused person. Parliament created these rules in 2018 with an intention to balance an accused person’s rights to a fair trial with the complainant’s privacy rights, as well as to ensure that an accused person does not rely on documents that perpetuate myths and stereotypes about sexual assault.
Before the introduction of ss. 278.92 to 278.94, an accused person had no obligation to disclose documents in their possession before using them at trial. This allowed the accused person to surprise the complainant with documents during the complainant’s cross-examination—a tactic commonly used by defence counsel to challenge the complainant’s truthfulness. However, since the introduction of ss. 278.92 to 278.94, an accused person must apply for permission from the trial judge before using the complainant’s private documents. The trial judge will then hold a hearing to decide whether to admit the documents based on their relevance, their usefulness for proving important things in the trial, and their potential to undermine the fairness of the trial. Complainants have the right to participate and be represented by a lawyer at such hearings.
In the appeal before the Supreme Court of Canada, the accused person (J.J.) argues that the entire system of rules under ss. 278.92 to 278.94 is unconstitutional. In particular, J.J. is concerned that the rules allow the prosecutor and complainant to “preview” the accused person’s documents and case strategy, preventing the accused from using the element of surprise to challenge the complainant’s truthfulness during cross-examination. The Crown, on the other hand, argues the rules are constitutional and represent a small step in the evolution of criminal sexual assault law to better protect complainants’ rights to equality, privacy, and dignity.
WEST COAST LEAF’S INVOLVEMENT
West Coast LEAF and WAVAW Rape Crisis Centre successfully sought leave to intervene as a coalition in this appeal. The coalition intends to focus its arguments on the constitutionality of the complainant’s rights to participate in hearings on the admissibility of private documents under ss. 278.92 to 278.94. In particular, the coalition will argue that:
- Despite the evolution of the rules of evidence over the past three decades, these rules have not succeeded in their goal of eliminating myths and stereotypes about sexual assault from criminal sexual assault trials.
- Meaningful complainant participation in admissibility hearings under ss. 278.92 to 278.94 will help realize the regime’s goals. Complainants, especially complainants with independent legal representation, are best placed to prevent myths and stereotypes about sexual assault from affecting the interpretation and application of the regime.
- Meaningful participation is especially important to complainants who experience multiple and intersecting inequalities, as these complainants are disproportionately affected by myths and stereotypes about sexual assault.
This intervention builds on West Coast LEAF’s long-standing work to address the rights and interests of sexual assault survivors within and outside the criminal law system. Most recently, in Maia Bent, et al. v Howard Platnick, et al. and 1704604 Ontario Limited v Pointes Protection Association, et al., West Coast LEAF was part of an intervener coalition which sought a robust application of anti-SLAPP legislation to defamation suits against sexual assault survivors. SLAPP suits (Strategic Lawsuits against Public Participation) may be used to silence dissenting views, including to intimidate survivors of gender-based violence who have made the difficult decision to come forward about violence against them.
West Coast LEAF has also published a report entitled We Are Here, which discusses the barriers faced by survivors who seek justice through the criminal law system, and a toolkit for complainant counsel in sexual assault criminal cases. Both publications are part of our Dismantling the Barriers to Reporting Sexual Assault project.
West Coast LEAF and WAVAW will file their factum in April of 2021, and the Supreme Court of Canada will hear the appeal in May of 2021.