Today, the Supreme Court of Canada released a decision that improves protections for sexual assault survivors in criminal trials.
These cases were about the constitutionality of Criminal Code rules that restrict the ability of the person accused of sexual assault to use the survivor’s private information at trial. This information can range from the survivor’s physical and mental health records to text messages sent by the survivor to the accused person. The rules also allow survivors to participate in court applications about if and how their private information can be used.
Parliament created these rules in 2018 to balance the right of the accused person to a fair trial with the privacy, equality, and security rights of the survivor. Before these Criminal Code reforms, defence counsel could surprise a survivor during cross-examination with their own private records.
This ambush strategy could harm and distress survivors, and was often used to support damaging myths and stereotypes about sexual assault.
The Supreme Court’s ruling upholds the rules in their entirety, putting this type of “trial by ambush” squarely in the past.
We jointly intervened alongside WAVAW Rape Crisis Centre in these cases to highlight the critical role that survivors can play in enforcing their own rights and protections in criminal trials.
Today’s decision means that key decisions about survivors will no longer be made without survivors.
Courts need to hear directly from survivors, especially those who are at highest risk of systemic discrimination in the criminal justice system, such as Indigenous women and sex workers.
We’d like to share what Dalya Israel, Executive Director of WAVAW, said about the impact of today’s ruling: “We know that access to justice is not a reality for all survivors of sexual violence. However, this ruling means that survivors who do gain access to the criminal justice system can count on some protection of their privacy, and it also continues the work of demonstrating that survivors are worthy of having their rights upheld before the court.”
While today’s decision is an important milestone in the development of survivors’ rights in criminal trials, we’re still concerned about how trial courts will decide which records are private “enough” to trigger these privacy protections.
Today’s decision also suggests that survivors could be shut out of the hearings that decide this fundamental question. History shows that these protections tend to look better on paper than in practice. We will watch closely to see how this plays out in the courts.
We’re grateful to pro bono counsel Gloria Ng, who joined me in representing West Coast LEAF and WAVAW in these cases.