R. v J.J.
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 records in their possession that contain private information relating to the complainant (the person who reported the sexual assault). Examples of such private records 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 the accused person’s rights to a fair trial with the complainant’s privacy rights, as well as to ensure that the accused person does not rely on evidence that perpetuates myths and stereotypes about sexual assault.
Before the introduction of ss. 278.92 to 278.94, the accused person had no obligation to disclose records in their possession before using them at trial. This allowed the accused to surprise the complainant with records 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 records. The trial judge will then hold a hearing to decide whether to admit the records based on 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 the complainant to “preview” the accused person’s documents and case strategy, preventing the accused person 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.
A.S. v Her Majesty the Queen, et al. (A.S.)
This case also concerns the constitutionality of ss. 278.92 to 278.94 of the Criminal Code. However, A.S. additionally addresses the complainant’s right to participate in an application by the accused person to rely upon or use evidence about the complainant’s sexual history. Section 278.94 empowers the complainant to participate in evidentiary applications concerning the complainant’s private records as well as those concerning the complainant’s sexual history.
An exciting aspect of A.S. is that the appellant is the complainant. After the trial judge in her case decided that the system of rule under ss. 278.92 to 278.94 was unconstitutional, the complainant successfully sought leave to appeal the decision to the Supreme Court of Canada. The records at issue in her case were two videos which were in the accused person’s possession and which depicted the complainant engaging in sexual activities. They thus simultaneously triggered the rules concerning the use of private records and the use of sexual history evidence.
WEST COAST LEAF’S INVOLVEMENT
In March of 2021, West Coast LEAF and WAVAW Rape Crisis Centre (WAVAW) (“the Coalition”) were granted leave to intervene as a coalition in R. v J.J. In its factum (i.e., written submissions in the appeal), the Coalition made arguments about the relevance and significance of the complainant’s participatory rights to realizing the purposes of ss. 278.92 to 278.94, as well as how to interpret the regime so that the complainant’s participation can be meaningful.
In April of 2021, the Supreme Court of Canada granted leave to appeal to A.S. and decided to hear A.S. at the same time as R. v J.J. In July of 2021, the Coalition was granted leave to intervene in A.S. so that it could holistically address the overlapping issues in R. v J.J. and A.S. In addition, the Coalition will make submissions about how the historical exclusion of the complainant from sexual history applications has affected the development of the legal framework surrounding the admissibility of sexual history evidence. In the absence of the complainant’s voice, the case law has paid outsized attention to the accused person’s rights at the expense of a contextual analysis, fairness to the complainant, and societal objectives.
These interventions build 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 that 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 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.
The Supreme Court of Canada heard R. v J.J. and A.S. in October of 2021. We await the court’s decision.
October 2021 infographic produced by WAVAW Rape Crisis Centre (image description below):
Blue and green infographic: Things You Should Know… About How Canada’s Criminal Justice System Processes Sexual Assault Cases.
Sexual assault is not viewed as a crime against the survivor: When accessing the Criminal Justice System, survivors do so as a witness of a crime against the state, not as a victim of a crime against them. This means they don’t get a lawyer or to testify. [Icon of a person testifying.]
Changes to the criminal code were a step forward: In 2018 the definition of what evidence is “protected” expanded. It requires the accused to disclose their possession and intention to use things like diaries, text messages, personal interactions and more during trial. [Icon of a lock.]
Protection of privacy grants survivors legal representation: Survivors can now have counsel to protect their privacy, and judges will determine if evidence is relevant to the trial, ensuring that it doesn’t cause a harm to a survivor’s dignity and reinforce myths and stereotypes about sexual assault. [Icon of documents]
Reversal or repeal of these legal protections would harm survivors: It would tell survivors that their dignity, autonomy, and rights are not a central concern of the courts. This will likely leave survivors feeling that accessing justice after sexual violence is even less of an option. [Icon of a courthouse.]
WAVAW Rape Crisis Centre and West Coast LEAF are intervening in two cases to advocate for the protection of survivors’ privacy. Hearings commence Oct. 5th at 7:30 AM PST.