A two-day hearing that has significant implications for how courts handle sexual assault cases is underway at the Supreme Court of Canada.
We are intervening alongside WAVAW Rape Crisis Centre in the two appeals being heard together—R. v J.J. and A.S. v Her Majesty the Queen et al. These cases are about rules introduced in the Criminal Code in 2018 that limit an accused person’s access to the survivor’s private records and their ability to surprise the survivor with those records during the trial.
There is a long history of an accused person using a survivor’s private information to humiliate and discredit them in court. Ambushing survivors was a common defense counsel tactic used to disturb the ability of a survivor to testify during trial. Aside from disrupting a trial, it often had serious mental health impacts.
We argue that survivors need a voice at the table to ensure that courts are respecting their rights to privacy and substantive equality. Courts must 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.
These provisions are important not just because of private records. Before the provisions were added in 2018, complainants in sexual assault trials didn’t have their own lawyer to represent their interests. As sexual assault is considered a crime against the state, the survivor is regarded as a witness to the crime. Sexual assault cases are brought by the Crown.
With these changes to the Criminal Code, survivors can participate in the legal process and be represented by a lawyer in the applications related to these private records, such as text messages, videos, or health records, which may include information about the survivor’s sexual history. Survivors of sexual assault cannot and should not have to rely on Crown counsel to put their perspectives and experiences before the court.
An outcome of these cases could be the repeal or watering down of these provisions, which better protect survivors in an already difficult and often re-traumatizing legal process. Rolling them back would represent a devastating setback for survivors of sexual assault.
West Coast LEAF and WAVAW are working to ensure survivors’ rights remain protected.
You can view the hearing, which will be livestreamed again tomorrow, Wednesday, Oct. 6, starting at 7:30 a.m. PST.
We are grateful to pro bono counsel Gloria Ng for her work on this case.